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OF Τ Η Ε
L A W
N A T U RE
NATIONS
96
Ο F
AN D
Eight BOOKS.
Written in L A T I N by the Baron
PUFFENDORF, Counſellour
of State to His late SWEDISH
Majeſty, and to the late King of
PRUSSIA
Done into ENGLISH by BASIL KENNET, D. D.
late Preſident of Corpus Chriſti College in Oxford.
The THIRD EDITION:
Carefully Corrected, with Two T A BLES
To which are now added
All the large Notes of Mr. B A R BEYR A C, Tranſlated
from his Laſt Edition ; printed at Amſterdam, in 1712.
Printed for R. Sare, R. Bonwicke, T. Goodwyn, J. Walthoe, M. Wotton,
S. Manſhip, R. Wilkin, B.Tooke, R. Smith, T. Ward, and W. Churchill. 1717.
JX
2136
7717
TO THE
RIGHT HONOUR ABLE or nighet
Sir Nathan Wright, Knight,
LORD-KEEPER DO
OF THE
Die of Great Seal
OF
ENGLAND
One of the LORDS of Her MAJEST Y's moſt Honourable
PRI V Y COUNCIL, GC.
T
My Lord, botos lle dinge
HE Author and Subject, here Pre-
ſented to Your Lordihip, have, in
Themſelves, the beſt of Claims to
ſo Great a Protection: For, neither can
He, whoſe known Capacity, Induſtry, and
Integrity, renderd Him the Ornament of His
own Profeſſion, and of His Prince's Council,
apply Himſelf with more Succeſs, than to
One, who has riſen, by the fame Steps, to a
Nobler Eminence of Honour and Employ-
ment; nor ought any other, than the Guar-
dian and Diſpenſer of Publick Equity, be
Acknowledg d as the Patron of the Law of
Nature and Nations But the Ambition of
this Addreſs was alike necdful, in reſpect

a 2
of
The Epiſtle Dedicatory.
of the Tranſlators; as an Occaſion of acknow-
ledging the Influence, which they feel from
Your Lordihip's Authority, with regard both
to their Function and their Studies: Your
Lordihip eſteeming it no leſs worthy a Part
of Your Character and Office, to Support
the moſt Primitive Church, and the moſt
Regular Univerſities; than to Preſide over the
Juſtice of the Wiſeft State, or to Direct the
Policy of the Happieſt Reign. I am,

With all Duty and Reſpect,
Dudu bre zone A IH
SUSIbro MTOY bom
orange Your Lordſhip's moſt Obliged
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bas uomo 70 ongoin toldot
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T is a Dilemma frequently urged againſt Verſions of this kind, that when a
Subječt lies remote from Vulgar Confideration, Perſons of Learning will purſue
the Knowledge of it in the Learned Languages, whilſt others muſt remain equally
Strangers to it in all
. Which yet abates, proportionably of its Force, according as either
the Original Performance has been leſs fortunate in Stile; or as the Improvements of the
Modern Tongue have been able to extend themſelves to the abſtruſeſt Reaſonings, and to
Speak even of Philafophy with the Advantages of Eloquence. As there is a Concurrence
of theſe two Conditions
, to juſtify the preſent Attempt; fo the ſecond of them, which,
thro Perſonal Inability, may have been impair’d, ſeems yet to be recompenſed, by a pe-
culiar Weight and Prevalency in the firſt
. For the Commendation of our Author's Judge
ment hath Jcarce been more Univerfal
, than the Cenfure of his Compofition ;, which though,
by Ally acknowledgʻd to be expreſive, yet to moſt appears to difficult and diſcouraging,
; .
left theſe Irregularities, as the Token's of its Violence. It is true, He has not fail'd in
the very Entrance of His Work, to apologize for this Defect of Ornament ; but the Plea
He offers is, what may better excuſe the neceſſary roughneſs of a Subject, than the particu-
lar Unhappineſs of a Writer. Another viſible Diſadvantage there was, which calld for Re-
lief. Our Author having publiſh'd the firſt Draught of this great Undertaking in the Year
MDCLX, with the Title of Elementa Juriſprudentiæ, having alſo employ'd the La-
bour and Colle£tions of Twelve Years, in bringing it to its preſent Method and Name, was
not content to have drawn together all Aſſiſtances
, which were of direct and immediate Uſe,
from the Stores of Morality
, Politicks and Lap; but engaged himſelf in a longer and
wider Search, running thro’ the whole Circle of Philological Authors, Ancient and Mo-
dern, and diſpoſing, under the Heads of His Work, the moſt remote Examples, and il-
luſtrations. Hence every Page came to be loaded, not only with numerous Citations at
large, but with diſorderly Marks of Addition, Reference, Compariſon, and the like:
as if the Confuſion of a ſwelling Margin had run over, and diſcharg'd it ſelf upon the
Text. Thus the Periods were frequently disjointed, the Argument interrupted or obſcured,
and the greateſt part of the main Body thrown into the diſagreeable Figure of a Common-
Place.


Some
THE PRE FACE.

Some Endeavours have been here applied towards the leffening of both theſe Im-
perfections. In reſpect of Style, it is hoped, that the Mettal, how rude ſoever and in-
capable of being poliſh'd 10 exact Beauty, fet after a ſecond melting, may appear leſs
deform’d, and may paſs into more General Uſe. But tis beyond Doubt, that the other
Inequality has been farther rectified, by our caſting under the Page the needleſs and mil-
Jhapen maſs of Foreign Supplies : which it might have been no unpardonable boldneſs ut-
terly to have pared away ; but that we ought to be cautious of practiſing upon an Author,
and to take care, leaſt by cutting off an Excreſcency, we ſhould endanger the Life of a
Deſign.
Cuſtom has not ſo far prevail'd over Decency, as to engage the Tranſlators in pro-
claiming the Juſtice of their Choice, and Merit of their Author. Much leſs would
they ground his Charaĉter on the invidious Argument of Compariſon. To contend with
the admired Names of Grotius, Selden, and the Right Feverend the preſent Lord
Biſhop of Peterborough, is what He ought to decline in point of Modeſty, if not of
Safety. Yet this ſeems to have fallen out to his Advantage, that no one of thoſe
great Men attempted a compleat Body of Moral, or Political Do&trine. The Firſt chose
rather to inſiſt on Authorities
, taken from the Hiſtoaians, Civilians and Canoniſts than
on Philoſophical Deductions, from the Nature of Men, and the Reafons of Things
.
The Second entred no farther into this Subject, than as the Jewiſh Inftitutions dire&ted
His View. My Lord of Peterborough, having overthrown the deceitful Fabrick of a
late Treacherous Builder, and ſettled the Science of Morality, on its trueft and deepeſt
Foundations, left the Superſtructure to be rais’d by Inferior Hands. Thus, while each
had a particular Boundary to his own Enquiries
, All contributed to the Perfection of our
Author's Syſtem : in which, as He abftains not from grateful Remembrances of theſe,
and other Learned Benefa&tors, ſo He now teaches the Publiſher of this Tranſlation moft
gladly to acknowledge the Favour and Aſiſtance of his Friends ; of whom Two eſpecial-
ly,
Reverend Mr. Percivale, and the Reverend Mr. Itchiner, by entirely rendring
the Fifth and Eighth Books, have, with the ſame Kindneſs
, accepted a Part in his
Burthen, and allow'd him a Share in their Reputation and Succeſs
. Avlageret social
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Τ Η Ε
CON
C Ο Ν Τ Ε Ν Τ S
S
2.
T
on.
Sect. I.
2.
enou A INOM
BOOK I.
Jest to not liom
CHAP. I.
6. Whether any thing be good or bad before ang
Inftitution.
Of the Origine and Variety of Moral 7. Whether Shame be a Proof of it. sagt
Entities.
8. Of the Extent of Moral Actions as to the
Quality
9. Grotius's Opinion conſider’d.
V
Sect. 1.
HE Introduction.
Man's Life is govern'd by Moral
10. In Moral Quantities there is a Latitude.
Entities,
11. What is called Morally Certain.
3. What are Moral Entities, what is their Cauſe
and End.
4. The way of producing them. Their Inſtituti
CHA P. III.
Their Operation, and from whence.
5. Their Diviſion.
Of the Underſtanding of Man, as it concurs to
6. Their State what,
Moral Actions.
7. Their natural and adventitious State.
8. Peace and Wür, and bow manifold?
9. Determinate. States.
T
Wo Faculties of the Underſtanding.
What is the Genius of the Repreſenta-
10. States having reſpect to Time.
tive Foculty of the Underſtanding.
11. Certain Precepts concerning States,
3. The Underſtanding natural apprehends Things
12. The Diviſions of ſingle Perſons.
Moral rightly.
13. And Compound.
4. Conſcience wbut it is, and how manifold.
14. Some Precepts about Moral Perſons.
s. A right and probable Conſci nce.
Is. Feigned Perſons.
6. Rules for a probable Conſcience.
16. Moral Things.
7. Rules how to chuſe Things profitable.
17. The Diviſion of Moral Modes.
8. A dubious Conſcience.
18. Titles,
9. A ſcrupulus One.
10. Ignorance, what it is, and how manifold.
20. Right.
21. The remaining Moral Qualities.
II. Error, of how many Sorts.
22. Moral Quantities.
13. Speculative Error about necelſary Aktions.
23. How Moral Entities periſh.
14. Or indifferent ones.
15. Practical Error.
16. Error in an ill Action.
CHAP. II.
Of the Certainty of Moral Science.
CHAP. IV. tad XI
Seet. I.
Mº
OST Men deny that there is a des Of the Will of Man, as it concurs in or con-
monſtrative Certainty in Moral
Sciences.
Jents to Moral Actions.
2. What is a Demonſtration.
3. The Principles of a Demonſtration.
O
F the Acts of the Will.
4. Demonſtration agrees to that Moral Science
Of the Liberty of the Will.
only, that treats of the Goodneſs or Evil 3. That the Will muſt of neceſſity be indifferent
of Man's Actions.
i. e. not forced to chule Good or Evil.
5. The Uncertainty of Moral Things is ob 4. How the Will is inclined to good Things, and
jectedo
to Goodneſs in general,


19. Power.
Sect. 1.
2.
Et S. The
The C O N T E N T S.
16. The Matter of Laws.
17. Who is obliged by a Law?
18. The Diviſion of a Law?
s. Certain Diſpoſitions of the Body ftir up the
Will.
6. As alſo fome Habits.
7. And Paſſions.
8. Alſo Intemperance.
9. Actions of a Mixt Nature.
10. Involuntary and forced Actions.
CHAP. VII .
Sect. i.
Hom
W.
Of the Qualities of Moral Actions.
CH A P. V.
OW many are the Qualities of Moral
Of Moral Actions in General, and of
Actions.
their Application to the Agent, or their
2. A neceſſary, lawful Action.
3. The Goodneſs or Evil of tetions, in what
Aptnefs to be Imputed.
they confijt.
4. A good Action muſt have all things requiſite,
an evil one is made Such, by wanting one
HAT & Moral Action is.
Condition.
2. Its Matter.
5. GOD can't be the cauſe of any Evil.
3. Its Form, where we treat of a Moral Cauſe. 0. Juſtice is either in Perſons or Actions,
4. A Moral A&tion conſider'd in it ſelf is a poſi 7. What is the Juſtice of A&tions.
tive Entity.
8. Univerſal and particular fufti:e.
s. The Cauſe or Ground why a thing may be im 9. Juſtice diſtributive.
puted or not.
10. Commutative.
6. Things not to be imputed to a Man are Things 1. Grotius's Opinion about Juftice.
wan neceſary.
12. Ariſtotle's Fudgment upon the ſame.
7. The Operations of our Vegetable Faculties.
13. Hobbes's Opinion of Tuſtice and Wrong.
8. Things impoſſible.
14. What is an unjuſt Action.
9. Things compelled, where meer Execution is
15. What an Injury is.
treated of.
16. An Injury is done by Deſign and Choice only,
10. Things done through Ignorance.
where the Nature of a Fault is treated of.
11. Things done, or ſeen in a Dream.
17. No Wrong is done to any Man, that wills it.
12. Evils to come to pafs.
13. But evil Actions proceeding from an Habit
muſt certainly be imputed.
14. How other Men's actions may be imputed
CH A P. VIII.
Of the Quantity [or Eſtimation ] of
Moral Actions.
CH A P. VI.
Sect. 1.
HE abſolute Quantity of Moral A&tions.
2. Wbat Intention is requir’d to make
Of the Rule of Moral Actions, or of Law
an Action good before GOD's Tri-
in General.
bunal.
3. What Intention is good in human Judicatures.
Law differs from Counſel.
4. What is a perfect and compleat Action,
2. From a Bargain or Covenant.
s. The Relative Quantity of Actions.
3. And from Right.
4. What a Law is. À
s. What an Obligation.
CH A P. IX.
6. How it comes to paſs that a Man is obliged.
2. No Man is obliged to himſelf.
8. He that is to be obliged muſt have a Superior. Of the Imputation of Moral Actions.
9. How a Man may lay an Obligation on ano-
ther.
F actual Imputation.
10. It can't be done by meer Force.
2. Of Imputation thro' Favour.
II. Nor by any Excellency of Nature alone.
3. Of Imputation from Debt.
12. What gives greater Force to an Obligation. 4. What can be effectually imputed to another.
13. The Lawgiver and Law ought to be known. 5. Merit, and Demerit what.
14. What are the Eſſential Parts of a Law?
6. How the Effects of Moral Actions may be en
15. What is the permiſſion of a Law?
boliſhed.
воок.
to us.
T"
1.
A

0
The C Ο Ν Τ Ε Ν Τ S,
BOOK II. CHAP. I.
.
It is not agreeable to the Nature of Man to
live without Laws.
Sect. 1.
"
W His Loubtful.
Hether a Law may be impoſed on Man,
is doubtful.
2. What Freedom of Will is.
3. What ſort of Freedom of Will is in God?
4. What is the Freedom of Beaſts?
5. Man too Noble a Creature to be allow'd ſuch a
Freedom
6. The Corruption of ſuch a Freedom.
7. The Variety of Mens Tempers.
8. Man's Natural Weakneſs and Rudeneſs.
13. The Principles of natural Right are diſcover'd
by the Light of Reaſon.
14. The true Original of the Law of Nature is
derived from the Condition of Man.
15. The Fundamental Law of Nature.
16, 17, 18. Hobbes's Opinion is enquired
into.
19. The former Original i: ſufficient.
20. The Obligation of the Law of Nature
is from GOD.
21. Of the Establiſhment of the Law of Nature.
22. Some Things are ſaid to be of th, Law of Na-
ture reductively and improperly.
23. Whether the Law of Nature is different from
the Law of Nations.
24. A Diviſion of the Law of Nature.
CH A P. IV.
CH A P. II.
Of the Natural State of M A N.
Of the Duties and Performances of Man
towards himſelf; as well in Regard to
Sect. I.
An's Natural State diverfly conſidered.
the Improvement of his Mind, as to
2. His Miſery.
the Care of his Body and of his Life.
3. Its Laws and Rights.
4. The State of Nature qualified.
5. Whether it has an Inclination to War. Sect. 1. 'Very Man is to take Care of himſelf.
6. Hobbes affirms it, and his Reaſons are pro-
1.EP
2. In what that Care conſiſts.
ducid.
3. The Mind is to be inſtructed in Religion.
7. Men's Relation one to another concludes the
4. And all corrupt Opinions to be rooted out of it.
negative
5. The Knowledge of a Man's Self is neceſſary.
8. Hobbes's Reaſons anſwered.
6. A Man ſhould know his soul and its Offices.
9. Reaſon is not to be deny'd its Uſe in the State 7. And how great its Abilities are.
of Nature.
8. Nothing above its Abilities may be attempted,
10. The Manners of barbarous Nations do not 9. How much we are to labour after Fame.
make up the State of Nature.
10. And how much after Riches.
11. Natural Peace has no need of Covenants.
1. And about Pleaſures.
12. Natural Peace is not to be truſted to.
12. Our Paſſions are to be governed by Reaſon.
13. Of our Study for Learning
14. Of the Care of the Body.
15. Of the Uſe of Life.
CHAP. III.
16. What Obligations we are under to preſerve
Life.
Of the Law of Nature in general:
17. How far Life is to be employed in the Ser-
vice of others.
18. Whether it is to be endangered for them.
Sect. i.
He Connexion
19. Whether Self Murder is Lawful.
2, 2. The Law of Nature is not com.
mon to Man and Beaſts.
4. The object of the natural Law is not neceſſary
before there is a Law.
CHAP. V.
, 6. Wbether the natural Law is common to
GOD and Man.
7, 8, 9. The natural Law does not depend upon
Of Self-Defence.
the Conſent of Nations.
10, 11. Whether Profit be the Foundation of
Law.
Sect. H E Defence of a Man's ſelf is a lawful
12. Whether the Law of Nature appears plain
Violence.
from the End of the Creation,
2. And is ordain'd by the Law of Nature.
T
"T"
Ta violence
* b
3. What
The C O N T E N T S.
E"
3. What ſort of Defence is allowed in a Natural
CH A P. II.
State.
4. And wbat ſort in Cities?
5. Whether it is lawful againſt one that Miſtakes. That Men are to be accounted by Nature
6. Tbe time for ſuch Defence in a Natural State.
Equal.
7, 8, 9. And how to be ſettled in a Civil State.
10. Of Maiming any part of the Body.
Sect. 1. L'Very Man is to account another bis Equal.
II. Of Chaſtity.
2. What is a Natural Equality.
12. Of a Box on the Ear.
13. Whether a Man is bound to fly.
3. The Popular Reaſons for it.
14. Whether the Chriſtian Religion commands
4. The Opinion of ſuch an Equality makes Mens
otherwiſe.
helpful to one another.
15. Slaughter committed in Self-defence, is guilt-
5. How things are to be divided by it among
lefs.
6. Men offend againſt it by Pride.
16. Of the Defence of our Goods.
7. And by Affronts offered to others.
17, 18. Of a Nighi.Thief.
8. Whether any be Servants by Nature.
19. Of ſuch Defence as is made by him who has
offered the Injury.
9. Whence has proceeded that inequality that is
found among Men.
many.
2:HOV
CH A P. III.
CH A P. VI.
Of the Common Duties of Humanity.
Of the Right and Privilege of Neceſſity. Sect. 1. Very Man ought to promote the Intereſts of
Eu
2. And that either indefinitely.
Sect. I. Ow many Kinds of Neceſſity there is.
3. Or definitely by common Humanity.
Wherein the Right and Privilege of
4. A lefſer ſort of Examples, viz.
Neceflity conſiſt s.
5. Of allowing a way through another's Land,
3. What Right it gives every One over himſelf,
6. And for Carriage of Goods,
and directly over others.
7. Whether Toll may be required for ſuch a
4. And what indirectly.
Pallage.
5, 6, 7. What Right it confers over other Mens 8. Of our touching upon a ſtrange Shore.
Goods.
9. Of entertaining Strangers.
8. What we may do to Others Goods to preſerve
10. Of allowing a Settlement to Foreigners.
our own Goods,
H. Of granting a Market.
12. Whether a Man be bound to buy a Strangers
Goods.
13. Of permitting Marriages.
14. Whether any ſingle Perſon may be denyed
BOOK III. CH A P. 1.
what is common to all.
15. Of Beneficence.
16. Of a Grateful,
That no Man be hurt ; and if a Damage 17. And ungrateful Mind.
be done to any Man, that Reparation be
made.
CH AP. IV.
Sect. 1. T Hat no Man ought to do any Damage to
1.'T Har
another, or his concerns.
2. That if any be done, it ought to be Repaired.
3. What a Damage or Hurt is.
4. Who are they that do an Hurt.
5. How ſuch as hurt others are obliged.
6. How many ways a Damage may be done.
7. An Example of Reparation in a Murderer.
8. In one that has maimed another.
9. In an Adulterer.
10. In a Raviſher.
11. In a Thief.
Of the Duty of keeping Faith, and the
Diverſity of Obligations to it.
Sect. I.
Time In Humane Societies
Here muſt be Covenants and Agreements
in all Humane Societies,
2. Covenants are to be kept.
.3. Obligations are natural or adventitious
4. Atheiſm deſtroys all Natural Obligations.
5. A Natural or Civil Obligation.
6. What is the Force of each of them.
7. A Perpetual and Temporary Obligation.
8. Obligations not mutual.
9. Ok
The C O N T E N T S.
HOM
time to come.
9. Obligations perfectly or imperfectly mutual.
4. Whether our utmoſt Endeavour is ſufficient
5. Whether a Man be obliged to bear ſuch Affli-
Etions as are above Man's Courage and
Strength?
CHAP. V.
6. There is no Obligation to things unlawful.
7. Diſhoneſt Bargains do not oblige, though in our
Power.
Of the Nature of Promiſes and Pacts [or
8. Nor ſuch as can't be performed, but by some
Covenants) in general.
foul A&tion.
9. Whether thing's diſhoneſtly given can be rea
covered.
Sect. I.
Hence adventitious Obligations ariſe ?
10. Other Men's Goods are promiſed in vain.
What is vir. Hobbes's transferr
11. Tea, and our own, if they are under any
ing of Right?
Obligatiin to another
3. No Man has a Right to all things, as Mr.
Hobbes aſſerteth.
4. In what a transferring of Right confifts ?
5. A meet Allertion doth not oblige.
CH A P. VIIT.
6. An imperfect Promiſe obligetb, but does not
give mother a Right.
Of the Conditionis of Promiſes.
7. A Perfect Promiſe.
8. Promiſes in the Future Tenſe give no Right.
9. 10. 1. Whether there be a Power of obliging Sect. 1.
Ow many ways is a Promiſe made ?
in bare Pacts or Covenants,
What is a Condition?
3. A Condition refers to the time preſent, or the
4. A Condition is either Caſual, Arbitrary of
Mixt.
+ H A P. VI.
s. An impoſible and unlawfal Condition.
6. The Addition of Place.
Of the Conſent required in making Promiſes
7. The Addition of Time.
and Pacts.
8. The difference between Bargains and Conditio-
nal Promiſes.
Sect. I.
Onſent is required to make Promiſes and
Pacts.
2. Conſent is fignifyed openly or Tacitly.
CH A P. IX.
3. Conſent Suppoſes the uſe of Reaſon.
4. Great Drunkenneſs hinders it.
5. Of ſuch as are under Age.
of the Miniſters or bgents concern’d in con-
6. Of Error in Promiſes.
tracting Obligations for other Men.
7. Of Error in Promiſes and Contratis.
8. Of Fraud.
9. A Suſpicion of a Cheat makes Patts void.
Sect. I. E may Promile and Bargain for
10. 11, 12, 13. Fear makes Promiſes and Paets
another.
void.
2. How many ſorts of Commiſſions there are ?
14. How Promiſes, null in themſelves, may be
3. How if a Deputy die before he has finiſhed?
made valid.
4. The difference between a Deputy and Mediator.
15. Of the Conſent of the Perſon to whom a
5. How far another may accept a Promiſe for us.
Promiſe is made.
6. Heirs can't accept a Promiſe for a Perfon dead.
16. Of the Signs and Inſtruments of Conſent.
7. Of a Burden annexed to a Promiſe.
8. The General Diviſion of Pacts or Bargains.
"
Compras
WE
CH A P. VII.
BOOK IV. CHAP. I.
of the Matter of Promiſes and Covenants of Speech, and the Obligation which at-
tends it.
W cm.
Se&. 1.
E are obliged to things poſſible to be done
only.
2. Promiſes of things impoſſible are void.
3. Impoſſibilities which ariſe about Covenants.
b 2
Sect. 1.
Se&. 2: 0
F the Uſe of Speech.
Of the Diverſity of Signs.
3. Of
The CO N T E N T S.
3. Of tbe Origin of Speech.
17. How an Heir is obliged by the Oath of the
4. Words ſignify according to Impoſition.
Dead.
5. Impoſition is attended with a Compact.
18. & Diviſion of Oaths, as, 1. For Confirma-
6. This Compact is either General or Particular.
tion. 2. In bearing Witneſs. 3. Deciſive
7. Whence the Obligation of diſcovering our Mind
of a Controverſie. 4. Suppletory or Clear-
to another.
ing;
8. What Truth is, and what a Lye.
19. Whe ber every breach of an Oath is Peras
9. Every Untruth is not a Lye; and therefore
jury.
not Criminal.
20. Of the ways of diſpenſing with Oaths.
10. Of the Right which is violated by Lying,
and whence 'tis deriv'd.
II. How far Part of the Truth may be honeſtly
conceald.
12. Simulation in Things how far lawful.
CH A P. III.
13. Of Ambiguous Speech.
14. Of Mental Reſervations.
15. How far we may be allowed in Speaking of the Power of Mankind over [the]
falſly to Infants.
16. It is lawful to Speak what is falſe, for the
Preſervation of others.
Things Cof the World.]
17. How far the Governours of States may be in-
dulg'd in giving out falle Reports.
He
employed
about worldly Things
2. Man uſes other Creatures by Gods Ordina-
19. It is Lawful to ſpeak falſe to a profeſs’d
tion.
Enemy.
20. Whether a Guilty Perſon, arraign'd, may
3. Man does no injury by deſtroying Vegeta-
bles,
deny the Charge.
4. Some doubts about killing and eating Living
21. What the Advocates or Counſèl may, in
Creatures.
this reſpect, do for their Client.
5. Which yet is maintained.
6. The abuſe of our Right over Living Creatures
is to be reproved.
18. In what manner is is lawful to deceive an ill. Se&. I. T He greatest part of the Law is en
CHA P. II.
CHAP. IV.
Of an O AI H.
Of the Origin of Dominion or Property.
Seet, 1.
2:
2.
Sect. I.
Roperty
lities,
2. What is Property and Community.
3. That it has no piace, but where there are more
Men than one.
4. It proceeds immediately from an Agreement a-
mong Men.
He Sanctity of an Oath.
What an Oath is?
3. It muſt be taken only by the Name of God.
4. And according to the Religion of bim that
Swears.
5. Of the Intention of bim that wears.
6. An Oath is an Additional Bond of an Obli-
gation.
7. Of Oaths obtain'd by Deceit.
8. Of Oaths obtained by Fear.
9. Oaths to perform things unlawful bind not.
10. Nor thoſe, which hinder a greater good.
11. An Oath doth not alter the Nature of thoſe
A&tions to which they are joyned.
12. An Oath excludes all Cavils.
13. But is not always to be interpreted ſtrictly.
14. Or without ſome Tacit Conditions and Limi-
tations.
15. An Oath is to be explained by the intention
of the Impoſer.
16. Of an Oail made in another's ſtead to oblige
bim.
5. Of the Ancient Community of Goods.
6. By what degrees Men departed from it.
7. That it was profitable to Mankind.
8. The Opinion of the Ancients about the Ori-
ginal of Dominion or Property.
9. Grotius's Judgment conſider’d.
10, 11, 12, 13. The Arguments of those who
deny the Community of Goods uſed among
the Ancients.
14. In what Senſe Dominion is ſaid to be by Na.
tural Right.
15. How far Infants are capable of Pro-
perty.
CHAP
The CONTENT S.
CH A P. V.
CHAP. VII.
Of the Object of Dominion and Property.
Of Additional Acquirements.
Sect, I.
WAT is requird to make things our | Sect. z: H
,משנס
2. Things conſumed in their uſe are in vain made
our own,
3. A thing become cur own ſhould be capable of
keeping
4. The uſe of some things made our own is com-
mon to all.
5. The Divine Grant is not contrary to our Do-
minion over the Sea.
6. Reaſons againſt all Property on the Sea,
7. What the uſe of the Sea is.
8. What parts of the Sea are made a Poleſion.
9. The main Ocean can't be in any Man's Do-
minions.
10. How far Navigation and Commerce on the
Sea is free.
. 1. OW many ſorts of Additions.
Additions properly belong to the Owner
of the thing:
3. How many ſorts of Fruits.
4. The young ones of Beaſts belong to the Owner
of the Damm or Mother.
5. Things planted paſs with the Soil.
6. How Buildings go along with the Soil.
7. The Paper goes along with the Writing.
8. The Canvaſs with the picture.
9. The Purple with the Garment.
10. Of New Models in Things.
II. Of whole Countries left by Waters.
12. Of Fields belonging to Private Perſons.
CH A P. viii.
CH A P. VI.
OF Right over other Men's Goods or Pola
Jeſions.
Of Occupancy: :
Sect. 1.
A
Sect. I,
T minion
.
Man may have a Right over other
Men's Goods diverſe ways.
2. How many ſorts of Right we have over
other's Goods.
3. The Right of holding in Fee [Simple.]
4. The Right of a Ground.plat.
5. The Right of an honeſt Pollefjor.
6. Services, what and of how many forts?
7. The Uſe with the Profits.
8. The bare Uſe.
9. The Habitation.
10. The Works of Servants.
Ir. The Services of City-Eſtates.
12. And of country- Farms.
He ſeveral ways of acquiring Do-
minion,
2. The Original Methods of acquiring it.
3. Occupancy is gain’d in whole, or by parcels.
4. The Poſſeſion of Moveables depends on the diſ-
posal of the chief Governour.
5. In ſome places the catching of Wild- Beaſts is
allowed to every one.
6. In other places it is the privilege of great Men
only.
7. Whether be that hunts contrary to the Law,
bas a Property in the Beaſt he takes,
8. When things occupied ure underſtood to be im-
movable.
9. When they are movable.
10. Whether a Wild Beajt becomes mine as ſoon
as I have wounded it.
II, Whether the Fish are ours, that are in our
Ponds.
12. Things left become immediately the firſt Oc-
cupants.
13. Of Treaſures.
14. Of Poleſions obtain'd by War.

CHAP. IX.
Of Transferring of Property in General.
Sect. 1.
I
I proceeds from Property, that we may
alienate a thing.
2. The
The C ) N T E N T S.
2. The Conſent of two Perſons is required in eve
ry Alienation.
3. Which is to be expreſſed by ſome Signs.
4. An Alienation is made entirely, or upon Con-
ditions.
s. Whether Livery be required in every
Aliena-
tion.
6. Property is either accompanied with, or ſepa-
rated from Pofleffion.
7. What, and hiw manifold Pofeſſion is.
8. Horw Property is gain’d by bargaining only
9. True and feigned Delivery.
10. Provided that the Father owns them,
11. Or does not diſinherit them.
12. Of the Kight of Repreſentation.
13. Parents muſt ſucceed for want of Children.
14. And for want of tbem, the neareſt Relations
in their Order.
15. Whether Friends may be preferred before
Kindred?
16. Or Benefa&tors before Relations?
17. The Order among Kindred.
18. The Civil Laws allow a large Power of die
(poſing Eſtates.
19: The Heir of the Diceas'd, how far he is
oblig'd to pay bis Debrs.
CH AP. X.
P.
CHA P. XII.
Of Wills and Teſtaments.
Of Ufucapion or Preſcription.
Sect. 1.
A fation ?
O W many derivative ways of Acqui-
2.
2. Grotius's Definition of a Will is examin'd.
3. What is a Will to us
4. Whether Wills proceeded from the Law of
Nature, is doubted.
5: The Ancients diſpoſed of their Goods while
they were living.
6. How far Wills proceeded from the Law of Na-
ture, and how far from Poſitive Laws?
7. An Inheritance given by Will, wanting due
Form, may be enter'd upon, if nine oppoſe
Sect. I.
H.
O W Uſucapion and Preſcription differ.
What Uſucapion is by the Roman
Laws, and where it takes place.
3. How far honeſt dealing is requir’d in Uluca-
pion.
4. Continual Poſſeſſion is requir’d.
S. The Reaſons of introducing Uſucapion.
6. Whether the Law for Uſucapion be penal,
7. Many refer Uſucapion to Civil Right.
8. Whether Uſucapion can ariſe from a tacit
Dereliction of the Proprietor.
9. It ſeems to depend upon the tacit Agreement of
Nations.
10. How Uſucapion may be prejudicial to Chile
dren not yet born.
11. Uſucapion is alſo in uſe among diverſe Na-
ţions.
it.
8. But the Heir may null tbat Will, as if his An
ceſtor had dyed Inteſtate.
9. Donation in caſe of Death.
CH A P. XI.
Of Succeſſions to Perſons who die Inteſtate.
CHA P. XIII.
Sect. I.
SURAT
Sect. I.
Uccellion to Perſons that die Inteftate de of the Obligations which ariſe immediately
pends upon a Preſumption of their Will.
from Property.
2. Yet as it is agreeable to Reaſon.
3. Children are preferred before all others.
4. Parents are to maintain their Children.
✓ Very One is obliged to abſtain from Ano-
E
s. What is meant by Maintenance.
ther's Goods.
6. Who are to be accounted children?
2. Other's Goods kept by us are to be reſtored.
7. What more than Maintenance is due to Chil
3. Which is proved.
dren, and why?
4. And illuſtrated.
8. It is not neceſſary that Goods ſhould always be 5. Contracts made about Other's Goods, are void,
equally divided among Children
as ſoon as they are known.
9. Legitimate Children are to be preferred before 6. What is gained by tn. ther's Goods, muſt be
Natural.
reſtored.
33
The CONTENT S.
7. An honeſt Poflelor is not bound to reſtore, if
the Goods are decay'd, or loſt.
8. But he is bound to reſtore the preſent Fruits.
9. And ſuch as are ſpent, if he muſt have ſpent
others of the like Value.
10. But not them, he has neglected to gather.
11. He is not obliged, who has given away
what was given him, but with a di-
ftinction.
12. Nor if he has brold what he bought with a
diſtinction alfo.
13. How may he recover the Price, who has
really Gold another Man's Goods.
14. Whether if a Man buys another's Goods, he
ought to reſtore them to the Seller?
15. He that has another's Goods, and knows not
the Owner, may keep them.
16. Whether what's given for a bad Reaſon
muſt be reſtored.
3. Some advice about what they have delivered.
4. Our Opinion about the Difference.
5. Contracts are divided into ſuch as oblige, 1.
one Party only ; and, 2. ſuch as oblige both
Parties.
6. And into Real, or bare Conſent, Verbal,
in Writing
9. In ſome particular Name, and without a
Name
8. Beneficial and Chargeable.
9. How many ſorts of Chargeable Contracts.
10. Of Mix'd Contracts.
CH A P. III.
Concerning the Equality that ought to be oba
ſerved in Chargeable Contracts.
BOOK V. CHAP. I.
OF PRICE.
Sect. I.
T T
Se&. I. A .
3.
Sect. 1.
Frer Property, the Meaſure of Things
muſt be introduced
2. What is the Moral Quantity of Things.
How
many kinds of Price.
4. What is the Foundation of the Common Price
of Things.
s. Many Profitable Things have no Price, and
why?
6. Why the Prices of Things Riſe.
7. Of the Price of Fincy.
8. Of the Lawful Price.
9. Of the Common Price.
10. The Cauſes why the Common Price riſes and
falls.
II. The Common Price is not ſufficient for the
Commerce of Man's Life.
12. Hence an Eminent Price was ſet in Money.
13. Which, for the moſt part, was made of
Metals.
14. How far the Governours of Societies may ſet
an Eſtimate upon Money.
15. In ſo doing, they ought to have reſpect to
Land.
16. The Value of Money is alſo ſubject to an
Alteration.
THE Equality to be obſerved in
Chargeable Contracts.
2. The Faults of a Thing are not to be diſcover'd.
3. The Nature of a Contract requires it.
4. Whether what concerns not the Thing it ſelf,
muſt be diſcovered?
5. The Faults known on both sides need not be
mentioned.
6. N. Man is to be ſcar’d into a Contract.
7. In Gainful Contracts Equality need not to be
ſerved.
8. In a Chargeable Contract nothing is suppoſed
to be given.
9. How Inequality not foreſeen is to be corrected.
10. Whether Over-reaching in Buying be lawful,

CHAP. IV.
Of Gainful Contracts in particular.
very dia
CHAP. I.
Of Contracts in General, that preſuppoſe
the Price of Things.
Se&. I. T ,
HE between Bargains and
Contracts, according to Mr. Hobbes.
2. According to the Interpretation of the Roman
Sect. I.
Hat a
2.
The
Romans.
3. The Perſon commiſſioned ought to be
ligent.
4. How far be ought to be indemnified.
5
Whether a Commiſſion can be ſatisfied by an
Equivalent.
6. Of a Loan, and how it differs from a voluna
tary Grant,
7. Of a Charge.
Law,
СНАР,
The CO N T E N T S.
CHAP. V.
CHA P. VIIT.
Of Partnerſhip
Sect. 1.
of Chargeable Contracts in particular ;
and, Firſt, of Bartering, Buying and
Selling
Sect. I.
O
F Exchanging or Bartering.
2. When a Contract of Bilying and Sel-
ling is compleat.
3. Of the Loſs or Gain of a Thing fold.
4. Of Agreements commonly join'd with Sales.
5. What the Buyer ought to perform to the Seller,
and è contra.
6. Of Buying in Hope and Expectation.
7. Of Monopolies.
OW many ways Partnerſhip may be
brgun
2. Money and Labour are ballanced ſeveral ways.
3. Irregular Partnerſhip.
4. A Partnerſhip in all Goods.
CHA P. IX.
Of Contracts depending on Chance.
C H A P. VI.
Sect. I.
Of Renting and Hiring.
BA
Argains mixt with Chance.
2. They are us’d, as well in Peace,
3. As in War.
4. Contraet's in Laying Wagers.
5. Contracts in Play.
6. Of Rafflings.
7. Of Lotteries.
8. Of Enſurance.
Sect. I.
W WA T.Things Hiring hath Common
T Things
hath Common
with Buying
2. The certain Uſe of a Thing, if it be in-
tercepted, tends to the Loſs of the Leſſor.
3. The uncertain regularly to the Loſs of the
Lellee.
4. Whether the Same Work may be Let to many
together.
C H A P, X.
Of Zcceſſory Bargains.
CHAP. VII.
A
Of the Loan of a Conſumable Com-
modity.
Sect. 1.
HAT a Loan is, and what a con-
W lumable Commodity.
2. À double Uſe of theſe Things.
3. For what Things we are wont to be Credited.
4. Of tacit Lending:
5. Whether Lending be an Alienation.
6. What if Money be Altered in the intrinſick
Value.
7. Or in the extrinſick Value?
8. The Doctrine of the Jews about Uſury.
9. That Uſury is not contrary to the Law of Na-
Sect. I. Cceſory Contracts of two Sorts.
2. Variety of Additional Bargains.
3. An Additional Bargain, if it's lewd, is void.
4. Sometimes it diſorders Buſineſs.
s. Being preſently added, is valid, if other
Things agree.
6. Being added after ſume time, in the Negative,
is liable to an Exception.
7. Being affirmative, how far 'tis Good.
8. Of Truſting.
9. A Surety can't be engag’d for more than the
Debtor.
10. But he may be more ſtrictly Bound.
11. What Advantages the Law allows a Surety.
12. Of Bails.
13. The Uſe of Pawns.
14. A Pawn is either fruitful or barren.
15. Whether a Pawn may be gained by Uſe.
16. What is the difference between a Mortgage
and a Pawn.
CHAP
ture.
10. The Arguments to the Contrary are anſwered.
II. Some Contracts are much the ſame as Uſury.
12. The Evaſions uſed to avoid the Diſgrace of
Uſury.
The CONTENT S.
Sed,
muſt wage War without the Command of
C H A P. XI.
another.
16. Of theſe Words, Carthage ſhall be free.
17. A Conje&ture when a Law muſt be enlarged.
18. Of Tricks to evade a Law.
By what means Obligations founded upon
19. A Conjecture when the Law ought to be re-
Compact may be diſſolved.
ſtrained upon the Account of some Defe&t in
the Will of the Lawgiver
20. (An Obſervation upon this Conjecture.)
Sect. 1. THE moſt natural Way of diſolving an 21. Or upon the Account of ſome Accident in-
Agreement, is to perform the things
conſiſtent with his Will, as where it is either
agreed on.
unlawful,
2. What if one pays a debt for one who knows 22. Or too grievous in Reſpect of the Performance.
not of it?
23. What if two Laws are contrary one to
3. To whom we muſt pay ?
another.
4. What muſt be paid?
5. To whom and by whom may Compenſation be
made.
6. Where it may be uſed.
7. A Debt is paid by a Releaſe.
CHAP. XIII.
8. How an Obligation is made void by a diſ-
agreement.
9. The Knavery of one Party frees the o: her from of the Way of deciding Controverſies in the
bis Obligation.
10. As alſo a Change of that Condition on which
Liberty of Nature.
the Obligation was founded.
11. How an Obligation ceaſes by Time.
Hat is due to others is willingly to be
12. And how by Death.
performed.
13. Of Delegation.
2. In a State of Nature there is no Judge.
14. Of Confuſion.
3. Controverſies, which can't be decided by Con-
Is. Of Novation.
ference are to be referred to Arbitrators.
4. There is a Covenant between an Arbitrator
and the contending Parties.
5. Arbitrators, in a Doubt, are bound to judge
CHAP. XII.
by Laws.
6. Arbitrators are not to judge of the Poffeſioni
7. Of the Mediators of a Peace.
8. What if Deeds be left.
Of the Interpretation of Compacts and
9. Of Witneſſes
Laws.
10. Of the Execution of the Sentence.
Sect, I.
"W"
IT"
T
n
blir
ted on
Sect. I. HE Reaſon of the Order.
2. The Neceſity of a right Interpre BOOK VI. CHAP. 1.
tation.
3: The Words are ordinarily to be underſtood accor.
ding to the common Uſage. And
of Matrimony
4. Words of Art according to the Art.
s. Conjecture is ſufficient,when Words are dubious. Sect. 1. HE Coherence.
6. Or ſeem to contradict one another.
2. Matrimony the Propegatin of Man-
7. Conjecture muſt be taken from the Matter trea-
kind.
3. Whether there be an Obligation to marry,
8. From the Effeet, or
4. A wandring Luſt oppoſite to the Laws of Na-
9. From the Coherence, Original and Place.
10. How the Senſe may be gathered from the 5. Mankind, not to be propagated but by Marriage.
Reaſon of them.
6. What Obligation may be laid on Men to marrng
11. Some Words have both a large and ſtrict Sig-
by the Laws of Nations.
nification.
7. What it is by the Law of Nature.
12. Some Things are favourable, others odious. 8. How far the Laws of Nations may order con-
13. Rules are to be made from thoſe Diſtin&tions.
cerning Marriage.
14. An Example of Two who came to the Goal The diſorderly Marriages of the Amazons.
together.
10. The Laws and Rights of a regular Marriage.
15. How this Order is to be interpreted. No Man 11. Whence ariſes the Man's Power over the Wife.
12. Whether
ture.
*
с
The C Ο Ν Τ Ε Ν Τ 5,
12. Whether it be beſtow'd immediately by 3. And from her is derived to others,
God.
4. On mbat Reaſon is Paternal Authority
13. Whether it neceſſarily implys a Pożver of Life
grounded.
and Death.
5. How far the Father bas more Rigbr tban
14. Whether Conſent, not Bedding makes the
the Mother.
Marriage.
6. How great the Power of the Father is, as
I5. No Woman may marry more than one Hus-
ſuch, over his Children.
band.
7. Both in their Infancy and Childhood.
16. Polygamy in iſe among many people.
8. How far Children are capable of being
17, 18. Whether it be repugnant to the Law of
govern'd at this time.
Nature.
9. Whether a Father may ſell bis Son.
19. The trie Nature of Marriage is for one 10. Of the Obligation of Children made
Man, and one Woman to be joyned to-
free.
gether.
II. What Power Fathers have over tbeir
20. It is not lawful rafhly to part Man and
Children, out of Civil Societies.
Wife.
12. What Power in Civil Societies.
21. Adultery, and wilful Deſertion make a 13. How this Power is loff.
Marriage void.
14. Whether Children ought to have their Pa-
22. Whether an intolerable ill Nature is a reaſon
rents Conſent to their Marriages.
for Divorce.
23. The Opinion of ſome Men, about the Senſe of
the Law of God about Divorce.
24. Particularly of Mr. Milton.
25. Marriage requires ſuitable Qualifications of
Nature.
26. An Error concerning Matrimony.
27. A marry'd Woman can't rightly marry ano-
CH A P. III.
ther.
28. Marriages with Kindred, why forbid-
29. How it comes to paſs that Men are aſhamed
of a Maſter's Power.
of their Genitals.
30. Of Nekedneſs.
31. The original of natural Sbame.
32. Marriages between Parents and Children Sect. I.
THAT is the Relation of Mafter
wicked.
and Servant.
33. The Opinion of the Jews about it.
2. Servitude was not ordained by Nature.
34. Of the Marriages of Brothers and Siſters. 3. Nor by God immediately.
35. Of the other Degrees forbidden.
4. The Original of Servitude ſeems to have
36. Of ſecondary Wives.
been from Contract.
made the Number of Servants
greater.
6. What is the Duty of Captives to their
Maſters.
CHA P. II.
7. They are almoſt of the ſame Nature with
their Goods,
Of Paternal Power.
8. Yet an Injury may be done them.
9. Of the Children of Servants.
Sect. 1. HE Common Opinion of the Original
10. The Inconveniences of Servitude.
of Paternal Authority.
11. How many Ways a Servant may become
2. According to Hobbs, the Original Power
free.
over Children is in the Mother.
den?
W
S. War
"T"
BOOK
The C O N T E N T S.
BOOK VII. CHAP. I.
Of the Cauſes and Motives inducing
Men to eſtabliſh Civil Societies.
16. This Rule admits of a Limitation.
17. Of Equality of Votes.
18. Of joyning, or dividing Suffrages.
19. How many Perſons at leaſt, are requiſite to a
Ruling Council.
20. Civis, or a Member of a Civil State, who
may properly be fo term'd.
21. Subordinate Bodies, of how
many
kinds.
22. Inveſted with what Rights and Privileges.
23. Of Unlawful Bodies, and Factions.
24. The peculiar Duties incumbent on the Mem-
bers of Civil States.
I Naroduction.
Sect. I.
2. Man naturally loves himſelf more than
Company.
2. Yet the Love of Company does not im-
mediately infer the Love of Civil So-
ciety.
4. Many Vices in Man prejudicial to Civil
Union.
s. Whether Civil States aroſe in the World by
Nacural Conſequence.
Cauſe
Eſtabliſhments.
Origine of
CHAP. III.
or Majeſty.
not ſufficient to ſecure the Peace of Man-
kind.
9. Nor the fole force of Arbitrators; or of Co-
venants.
10. Difference in Opinion greatly prejudicial
10 the Peace of the World.
II. Men need a much more ſevere Reſtsaint,
than the Law of Nature only.
Overeignty, the Reſult of thoſe Covenants
by which the Publick Body was firſt .
2. This done by tbe Divine Will and approbation.
3. Whether the Majeſty of Princes is imme-
diately derived from GOD.
4. The Arguments wbich ſome make uſe of to
prove the Affirmative.
5. Civil Authority not the Effe&t of War.
6. Whether a Father of a Family may, witb-
out any new ått, commence a Prince.
7. How a Vaffal, or Feudacory, may become a
Sovereign Lord.
8. Whether à Free State, or a Monarch, rea
ſigning their Power into other Hands, are
the efficient Cauſe of the Sovereignty produced.
9. Who has properly the Power of conferring the
Regal Title:
CH A P. II.
CHAP. IV.
Of the Parts of Sovereignty, and their
Natural Connexion.
"IM
of the Inward Structure and Conſtitution
of Civil States.
Sect. 1.
Se&. ME
EN only are a ſufficient Defence againſt
tbe Wickedneſs of Men.
2. To this End it is neceſary that many ſhould
join together.
3. Thoſe who join'd in this manner ought to
agree in their Reſolutions.
4. The Difference between the Polities of Bees
and Men.
5. An Union of Wills and of Strength ne-
cellary to a Civil State.
6. This Union produc'd by intervening Co-
7. The first Covenant, with the Decree fol-
lowing upon it.
8. The ſecond Covenant, giving the final
Perfection to a Civil Eſtabliſhment.
9. The Reaſon for which Hobbes will acknow
Ledge but one Covenant.
10. Ibis Realon ſufficient.
11, 12. Hobbes's Arguments anſwer d.
13. A Civil State, how defined.
14. In a Monarchy, the Will of the Prince
is the Will of the State.
15. Under other forms of Government, accord-
ing to tbe regular Courſe, the Community
is concluded by the Votes of the Major
Part.

venants.
Sect. 1.
N what Senſe the Supream Power may
be ſaid to conſiſt of Parts.
2. The Legiſlative Power.
3. The Vindicative Power.
4. The Judiciary Power.
S. The Power of War and Peace, and of making
Leagues.
6. The Right of appointing Magiſtrates.
7. The Right of levying Taxes.
8. The Right of examining Doctrines.
9. Government, a more ſtrict Obligation than
bare Compact,
to. Who may properly be ſaid to hold a part in
the Government.
11. The Connexion of Parts in the Supream
Authority demonſtrated.
12. And illuſtrated.
13. Many are for dividing thoſe Parts.
14. Grotius amongſt the reſt ; whoſe Opinion is
particularly diſcuſs’d.
*C2
Of
The CONTENT S.

Sect. 1.
9. Limited Governments, how occaſion'd.
CHAP. V.
10. Founded on what Covenants. &
11. In what reſpect the different parts of the
Government may
be limited.
of the Forms of Commonwealths. 12. Of the Power of Eftates, Senates and
Councils.
HE Accidents of Civil States cannot
13. Hobbes anſwer d.
TH
14. The various ways of bolding the Sovereign
confiitute a new Species.
Power.
2. Irregular Forms and syſtems of Government.
3. The three Forms of Regular Government.
IS. A Temporary Sovereignty, whether
poſſible.
4. Democracy ſeems to be the moſt Ancient
16. Of Patrimonial Kingdoms.
Form.
5. Democracy no leſs inveſted with Supream
17. Of Kings, aſſumed by the free Act and
Grant of the People.
Power, than Monarchy.
6. Democracy, how conſtituted.
7. The ordinary Requiſites of Democracy.
8. How Ariſtocracy is eftabliſh'd :
CH A P. VII.
9. And bow Monarchy.
10. In Bodies Politick, there may be Vices of
Men, and Vices of State.
Of the Ways of acquiring Sovereignty,
11. Yet theſe compoſe not a peculiar Species of
eſpecially Monarchical.
Government :
12. As neither do the various Accidents of De
Sect. 1.
mocracies and Ariſtocracies.
"
'H E way of acquiring Sovereignty in
is
13. Of the mixt Governments, propoſed by
2. In Ariſtocracies and Monarchies, various.
modern Authors.
3. How far Government may be ſeiz'd on by
14. The Nature of Irregular States.
juft Force.
15. This Irregularity beft illuſtrated by Ex-
amples.
4. How far by unjuſt Force.
5. How a Perſon may be releas'd from the Go
16. States which admit of Provinces do not
hence become neceſſarily Syſtematical.
vernment of Anocher.
6. Election of bow many kinds.
17. Of Syſtems, occafion'd by a Common
Prince.
7. Inter.regnum, what.
8. And Inter-reges.
18. Of Syſtems, compoſed by League and
Confederacy.
9. Hobbes examin'd.
10. The Caſe of Pofthumous Iſſue, in the
19. Of the Communication of Councils and
Hereditary Line,
Buſineſs in theſe united Bodies.
11. Of Succeſſion in a Patrimonial King-
* 20. Whether the greacer part ought here to con-
dom.
clude the leſs.
12. Of the ſame in Kingdoms eſtabliſh'd by
21. How theſe Syſtems are diffolv'd.
the free A&t of the People ; and this either
tid 22. The ſeveral Forms of Government compared.
Simply Hereditary.
13. Or Lineal,
14. Or Tranſverſe.
Guess 15 WECH A P. VI.
15. Of the Judge of Controverſies ariſing in
the Caſe of Succellion.
Of the Affections, or Properties belong-
ing to Sovereignty.
CHA P. VIII.
Hºe
TOW the ruling Power in a State comes to
be ſtyld Supream.
That the Supream Power is to be held
2. He that is inveſted with this Power is un-
Sacred in Civil States.
accountable.
3. And above Human Laws,
4. Of the Diſtinction between Real and Perſo-Sect. 1.
1.T
H E Supream Power not to be refifted
nal Majeſty
in lawful Commands.
5. That a King may be Superior to a whole 2. Whether a Private Member can ſuffer Injury
& People, demonſtrated.
from the State.
6. The Arguments to the contrary refuted.
3. Subjects very prone to unjuft Complaints
7. Abſolute Governments, what.
againſt their Governours.
8. Not occurring alike in all Forms of Civil Eſta 4. How many ways a Sovereign may injure his
ago bliſhmentsa
Subject.
3. Whether

foto
Seat, 1.

The CON TEN TS.
5. Whether, in the Caſe of Grievous Injury
and Oppreſſion, a Lawful Prince may be
refifted.
6. The Name of a Tyrant does not juſtify the
uſe of Violence in the Subject.
7. Grotius's Opinion.
8. No Princes are to be held Sacred, but ſuch
as are truly inveſted with Royal Autho-
rity.
9. In what Cafe an Uſurper may be acknow
ledg’d for a Lawful Prince.
10. How far the Commands of an Uſurper
oblige the Subjects, while their Lawful
Sovereign is alive, tho in an Exild
condition.
3. Whether the Definition of Crimes is left
arbitrarily to the Deterinination of the
Civil Law.
4. The Precepts of the Decalogue whether
Civil Laws.
5. Whether any thing Juſt antecedently to the
Civil Laws.
6. Whether a Sinful Command of a Superior
may at any time be obey'd without Sin.
7. N. Sin lawfully committed upon the Com-
mand of a Superiour.
8. Whether á Subject may lawfully bear Arms
in an unjuſt War at the command of his
Prince ?
Sect. I.
T"
T.
CHAP. II.
CHAP. IX.
Of the Power of the Sovereign over the
of the Duty of Sovereigns. Lives of the Subject for the Defenſe
of the Common-wealth.
HE Office and Duty of Sovereignis,
whence to be diſcover’d.
Sect. I.
HE Sovereign may hazard the Lives
2. The Obligation that Princes have to be well
of his Subjects in War.
inſtructed in it.
2. Whether lawful to refuſe bearing Arms upon
3. The People's afety is the Supreme Law.
a Compact with an Enemy?
4. The Subjects are to be train d up in Good
3. No Man to make himſelf unfit to bear
Manners.
Arms.
5. Fit Laws are to be enacted.
4. The Obligation of a Souldier what.
6. And put in Execution.
5. Whether the Common-wealth may give up
7. Penalties are to be inflicted with Juſtice
an innocent Subject.
and Moderation.
6. The Common-wealth may deliver up a
8. The Subjects are to be reſtrain'd from Mutu
Subject for an Hoftage.
al Injuries.
9. An Able and Honeſt Miniſtry is to be im-
ploy'd in State Affairs.
10. Taxes are to be equally laid, and rightly
gather'd.
11. The Wealth of the State is to be advan-
CHAP. III.
ced.
12. Factions to be prohibited.
13. A Sufficient Force to be kept up for the Of the Power of the Sovereign over the
oppoſing of Foreign Invaders.
Lives and Fortunes of the Subject in
Criminal Caſes

Se&. I.
BOOK VIII. CHA P. .
T
of the Power to dire&t the Actions of the
Subject.
HE Power of Life and Death whe-
ther and bow transferr'd from particum
lar Men to the Common-wealth,
2. In a Liberty of Nature no human Puniſh-
ment:
3. But only in a Common-wealth.
4. Puniſhment, what.
5. Puniſhing, to what Species of Juſtice redu-
ducible.
6. That one Man Should puniſh another, Hof
unjuſt.
7. The Power of Puniſhing where lodgʻd.
8. Human
Sec, 1.
F the Nature of Civil Laws in ge-
neral.
2. Whether a Civil Law may contradi&t the
Natural,
O
The CONTENT S.
pulſe;
8. Human Puniſhment ought to have ſome End.
9. The firſt End of Puniſhment the Amend.
ment of the Offender.
10. Whether Lawful for any Man to correct
any.
II. The ſecond End of Puniſhment, Caution for
the Injured.
12. The third, the general Security.
13. How far Private Men are allowed to infliet
Puniſhment.
14. What Offences it is needleſs for human
Juſtice to puniſh.
15. Whether lawful at any time to pardon?
16. How far this is lawful antecedently to the
Penal Law
17. How far after it.
18. The Quality of a Crime to be eſtimated
from the Object of it.
19. And from the Paſſion that gave the Im-
20. And from the Force of the Inclination
and 'Intention;
21. And from the Obſtinacy and Reſolution
of the Criminal;
22. And laſtly from Cuſtom and Habit.
23. What to be regarded in determining the
Quantity of the Puniſhment
24. The meaſure of Puniſhments, what.
25. In Puniſhment the Perſon of the Sufferer
to be regarded.
26. The Jewiſh Law whether an univerſal ad
equate meaſure of Puniſhment.
27. Of Retaliation.
28. A Corporation or Community, how pu-
niſhed.
29. The Crimes of Corporations wear out in
Courſe of Time.
30. Every fatal Evil not an human Puniſh-
31. Difference between Damage ſuffered di-
rectly and by Conſequence.
32. Difference between the Occaſion and the
Cauſe of Evil.
33. N. Man to be puniſh'd for another's Crime.
7. Or upon a Criminal Account.
6. No diſhonour to refuſe to engage in a Duel
when the Laws forbid it.
9. Simple Etteem not dependent upon the
Pleaſure of the Government.
10. Nor to be ſacrificed for it.
11, Intenſive Esteem :
12. The Foundations of it.
13. Whether Power the ſole Foundation of
Honour.
14. An Aptitude only for Honour the Reſult
of thoſe Foundations.
15 What Perſons have a Right of Precedence
to Others.
16. Arguments upon which Precedence is
pretended to.
17. That of Antiquity examin'd.
18, 19. That of Power, of its Quality, and if
Titles.
20. One Sovereign Prince not obliged to gield
the Precedence to another.
21. How ſuch Princes might meet, without
any Diſpute for Places,
22. Of Order between Equals.
23. The Power of appointing the Order of
the Subjects lodg’d in the Sovereign.
24. Subjects of different Common wealths,
how compar’d.
25. Nobility of Birth not from Nature :
26. But from the Inſtitution of Common-
wealths.
27. Uſually is, and ought to be founded upon
Merit.
28. The Nature of the Roman Nobility in
the earlieſt of times.
29. Offices born in the State, the Meaſure
of it afterwards.
30. What the Nature of the Modern Nobility
in the greateſt Part of Europe.
31. Nobility of Blood little regarded in some
Places.
32. How far Civil Honours depend upon the
Common-wealth,
ment.
CHAP. IV.
CHAP. V.
Of the Power of the Sovereign in deter- of the Power of the Sovereign, both over
mining the Value of the Subjects. the Publick Patrimony, and the Eſtates
of Private Subjects.
Sect. 1.
ESC
Steem defin'd and divided.
2. Simple Eſteem Natural.
be either Entire.
HAT Power the Prince bath over
4. Or Impair’d,
W
the Goods of the Common-wealth,
s. Or utterly loft.
where the Kingdom is his Pasrs-
6. Simple Eſteem Civil leſſen'd, or loft, either
mony.
from a certain State,
2. The
3. Which may
The CO N T E N T S.
2. The Subjects do not every where owe the
Propriety of their Eſtates to the Common
wealch.
3. The Sovereign may make Laws to direct
the Subjects in the Uſe of their Goods and
Eſtates.
4. And alſo impoſe Taxes upon them.
5. What to be obſerv'd in the Impoſition of
Cuſtoms.
6. And other Taxes.
7. Of the Sovereign or Tranſcendental Pro-
priety.
8. What Power the Prince hath over the Goods
that beling to the Common-wealth as
ſuch.
9. Of the Alienation of the Kingdom, or any
10. A Prince cannot make his Kingdom a Fief,
or Mortgage it, without the Conſent of his
People.
II. Nor Alienare any thing incorporated in the
Crown.
19. Things Sacred not exempt from the Liber-
ties of War.
20. Things, how acquired in War.
21. To whom the Acquiſitions of War bem
long
22. Things incorporeal, bow far acquired in
War.
23. A Loan, whether acquirable in War.
24. Dominion over the Conquer'd, how
many ways acquired.
25. Things loft in War, how recovered.
26. Whole Nations, how reſtrained to Liberty,
part of it.
CHAP. VII.
Of Compacts that relate to War.
Sect. 1.
TH
Sect. 1.
Chapter.
THE Diviſion of Compacts that prea
Suppoſe War.
2. Compacts that have no Tendency to remove
C H A P. VI.
the War, whether valid.
3. A Truce, what.
4 Of the Duration of Truces.
5. Å Truce leaves the Diſpute, the War began
Of the Right of War.
upon, undecided.
6. No need of a new Declaration of War when
the Truce expires.
T
H E Diviſion of what follows in the 7. Truces contracted and made by expreſs Com-
pact.
2. Peace the ordinary proper State of Man;
8. Of the Beginning and End of Truces.
War extraordinarily indulged by Nature. 9. The Subject when obliged by Truces.. si
3. War either Offenſive or Defenſive.
10. What Liberties a Truce allows, and what
4. The Cauſes of War ought to be manifeft.
forbids.
5. The Unjuſt Cauſes of War recounted.
II. Whether a Man, taken in an Enemy's
6. Fraud lawful againſt an Enemy.
Country, and forcibly detain'd, may be
7. How far Violence may be lawfully uſed a-
kept Priſoner after the Truce is' ex-
gainſt an Enemy.
pired.
8. In a Common-wealth particular private
What enſues upon Violation of the
Men loſe their Right of War.
Truce.
9. War either ſolemn or leſs folemn.
13. Of Compacts that relate to Safe Conduct.
10. A Magiſtrate as ſuch bath no Right to
14. Of the Redemption of Captives.
make War.
15. Of the Compacts of Generals. On olingan
11. Whether he may make War upon a Preſump 16. Of the Compacts of Private Perſons in
tion of his Prince's Confent.
War.
12. How far an Injury, done by a Subject,
may give Reaſon for a War againſt the
Common-wealth.
13. Of the Equity of Reprizals.
CH A P. VIII.
14. For whom we may juſtly make War.
15. Of the Declaration of War.
Of Compacts that reſtore Peace.
16. Of the Liberties commonly uſed in War.
17. Of the Liberties uſed upon the Perſon of Sect. 1. Hether Compacts of Peace are invaa
an Enemy.
lidated by an Exception of Fear.?
18. Whether lawful to kill an Enemy by Aſal 2. Whether a Peace made with Rebels is
fines?
valid.
12.
W
3. How
The C O N T E N T S,
3 How far, upon a Pacification, the Goods of
Private Subjects may be excuſed.
4. The Term limited for the Performance of the
Condition of Peace, to be ſtrictly inter-
preted.
5. How if a Peace be refer'd to the Deciſion of
the Sword.
6. An Holtage ſucceeding his Prince can be no
longer detain'd.
7. Of the Mediators of Peace.
6. How far a Subject may have an Aktion
againſt bis Prince upon Matter of Con-
tract.
7. The Contracts of the Subject liable to be
over-ruled by the Tranſcendental Propriety.
8. How far Succeſſors are obliged by the
Contracts of their Predeceſſors.
9. The Grants and Donations of Princes
whether revocable.
C H A P, XI.
CHAP. IX.
"T
A
Of Leagues.
How Subjection ceaſes.
Sect. I.
Man ceaſes to be a Subject when his
Sect. -I.
H E Diviſion of Leagues.
Prince dies without a Succeff r:
2. Leagues that eſtabliſh nothing but
2. Or, if he Removes out of the Common.
what was due by the Laws of Nature
wealth
3. Equal Leagues which, and what ſorts of
3. What to be obſerv’d in ſuch a Remove.
them.
4. Whether lawful to remove in great Com-
4. Of Unequal Leagues,
panies.
5. Of Two Confederates, which a Third
5 Whether lawful to counterfeit a Refuge.
ought to eflift.
6. Whether the Commonwealth my eject a
6. Leagues Real, or Perſonal.
Subject when over power'd by an Enemy.
7. Which may be diſtinguiſh'd either by parti
cular.
7. Of Puniſhment.
8. Å Man is depriv'd of the Privileges of a
8. Or general Marks.
Subject when over-power'd by an Enemy.
Whether Exild and Depoſed Princes can
9. Whether a Subject ſurrendi'd to an Enemy,
have the Benefit of their Leagues.
10. Future Allies, whether comprebended under
and not accepted, continues a Member of
the Commonwealth.
the Name of Allies in general.
11. Leagues not to be ſuppoſed to be tacitly re
newed.
12. What Obligations lie upon the Engagers,
die batohen their Engagements are not own d and
CHAP: XII.
confirm’d.
13. An Engagement whether ratified by the of the Changes and Diſſolution of the
Silence of the Sovereign.
Commonwealth.
9.

CHAP. X.
»T"
Promiſcuous Compacts of Sovereign
Princes.
Sect. I.
T
H E Diviſion of the Chapter.
2. How far a Prince may reſtore him
Jelf to bis Right, when injured in
Compact by a Foreigner.
3. How far, when by his own subjects.
4. The Contracts of Princes, bow far exempted
from the Civil Laws.
S. A Prince cannot diſpence with any valid Oath
2 be bath taken. 50 To
Sect. 1.
HE People continue the ſame, tho' the
Form of the Common-wealth be
changed.
2. The Debts of the Commonwealth not dif-
charg'd by a Change in the Form of it.
3. The Acts of an Uſurper how far valid after
bis Government is expir’d.
4. What Place a Commonwealth may Chal-
lenge after a Change in it.
s. One Commonwealth may divide into more :
6. More may unite into One.
7. The People, bow eternal?
8. How tbe Materiale of the People may be de-
stroy'd.
9. How the Formale.

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BOOK I.
Containing the Preliminary Parts of that Knowledge.

ora 2016 CH A P.
I.
-0211
of the Origine and the Variety of MorAL ENTITIES.oved
The are
101 voto
The CONTENTS of every Paragraph of the firſt Chapter. wieloletnih
novo
I. The Introduction.
XII. The Diviſions of ſingle Perſons in
II. Man's Life is govern d by Moral Entities. XIII. And Compound.obtineribotolog
III. What are Moral Entities, what is their Cauſe and End. XIV. Some Precepts about Moral Perfonsinou
IV. The Way of producing them. Their Inſtitution. i XV. Feigned Perſons. I od mnou go
Their Operation, and from whencë.
XVI. Moral Things.
base
V. Their Diviſion.
XVII. The Diviſion of Moral Modes. 100.00
VI. Their State what.
XVIII. Titles.
Dus zod
VIT. Their natural and adventitious State.
XIX. Power.
sirrygon Oman
VIII. Peace and War, and how manifold?
XX. Right.
IX. Determinate States.
XXI. The remaining Moral Qualities.
X. States having reſpect to Time.
XXII. Moral Quantities.
XI. Certain Precepts concerning States.cl
XXIII. How Moral Entities periſha
T was the Buſineſs of the First with that Refpe& which their Dignity requir'd.
and Highest Philoſophy (1), and Many Authors ſeem never ſo much as to have
that by which alone it could ful- thought on them; others only touch them lightly
I ly anſwer the Deſign of its Name, over, as idle Fictions, of no Uſe or Moment in
and Inſtitution, to deliver the the World. When, at the ſame time, it was high-
moft Comprehenſive Definitions ly expedient, that they ſhould be fully underſtood
of Things, and to rank them a- by Mankind, who are endu'd with the Power of
greeably under their proper Claſſes,ſubjoyning the producing them (3), and through whoſe whole
General Nature and Condition of every Sort of Lives and Conducts their Force and Activity is
Beings. Now as the Series of Natural Things (2) diffus’d. This Reflection obligeth us to premiſe
hath been fairly enough regulated by thoſe, who ſomewhat on a Part of Knowledge generally neg-
have hitherto apply'd themſelves to the Adorning lected; ſo far as ſhall ſeem requiſite to illuſtrate our
of that Science, ſo it is evident, that Men have not Principal Undertaking. Eſpecially leaſt our Defi-
been equally ſolicitous about Conſtituting the nitions of Moral Things ſhould, either upon ac-
Entia Moralia, or Moral Entities, nor treated them count of their Obſcurity, or of their Novelty,
Mr. Barbeyrac's NOTES on Chap. I. §. I.
(1) Metaphyſicks are moſt probably meant by our Author's Philoſophia prima, becauſe it comprehends (as fome Philoſophers
hold) not only the Science of Effences in general, their chief Properties, and moſt eminene Species, but alſo Natural Theolo-
gy, and an Account of the Nature of Spirits.
(2) Our Author reſerving the Diſtinction of Phyſical and Moral Entities to the next Paragraph, paſies it over here in the be:
ginning of the Chapter.
(3) How this is done, ſee $ 3. and 4. following.
B
prove
2
Of the Origine and the Variety of Moral Entities. Book I.
prove a Stop to the Reader, who perhaps in Com- ed ſo far as to denote, not only the General Maſs
mon Treatiſes bath rarely met with the like Terms. of Things, but alſo the Modes and Acts flowing
And here, if thoſe who have been bred up in the from the internal Force of their Conſtitution, by
nicer Delicacies of Letters, ſhall diſdain our En- which is produc'd that infinite Variety of Motions
deavours of this kind, and caſt a cenſorious Frown which turns and manages all the Buſineſs of our
on Words unknown to Ancient Eloquence; we on World. Thoſe Things which exerciſe their Ope-
ly Petition them for this Favour, that as we often rations, either without any Senſe at all, or with
pardon the Impertinences of their over-ſcrupulous pure down-right Senſe, or with ſuch as is aſſiſted
Exactneſs, ſo they would be pleas’d to grant us the by very imperfect Reflection, are guided by the
Toleration not to be Polite (1), whilft we profeſs fole Inſtinct of Nature, and are unable to govern
a clofer Regard to the ſtrict Severity of Things, their A&tions by any Rules or Modes of their own
than to the exterior Ornaments of Speech.' For Invention. But Man, who beſides his excellent
how to expreſs ourſelves with more Advantage a Form and moſt accurate Contexture of Body, fit-
bout theſe Matters, we are yet to ſeek; unleſs by ting him for the nobleſt and the quickeſt Offices of
tedious Circumlocutions we would leave them Life and Motion, is endu'd with a ſingular Light
more Obſcure and more Perplex'd than we found of Underſtanding, by the Help of which he is a-
them. Againſt the Charge of Novelty, Tully ble moſt exactly to comprehend and to compare
himſelf will be our Advocate : New Names (ſays Things, to gather the Knowledge of Obſcurities
(2) he) are to be apply'd to new Things; nor is this to from Points already ſettled, and to judge of the
be wonder'd at by any Man of ordinary Knowledge, when Agreement which Matters bear to each other; and
he conſiders, that in every Art and Craft, not vulgarly hath alſo the Liberty of exerting, ſuſpending, or
underſtood, there is a Variety of Terms coyn'd for that moderating his Actions, without being confin'd to
particular Subject
. And then giving Examples in any neceſſary Courſe and Method : Man, we ſay,
the Liberal and Mechanick Arts, he concludes; is farther inveſted with the Priviledge of inventing
A Philoſopher of all Men bath an eſpecial Right to this and applying new Helps to each Faculty, for the
Priviledge; for Philoſophy is the Art of Life, and he that more eafy Regulation of its Proceedings. To
would undertake to explain its Rules, cannot, from the conſider what numberleſs Modes and Notions have
common Currency of Words, find Stock enough to anſwer been introduc'd for the Aſliſtance of the Underſtand-
bis Occaſions (a) (3). But he that can upon no ac- ing, and for preventing the Confuſion which might
count digeſt ſuch Harſhneſs of Stile, is left at his ariſe from the undiſtinguiſh'd Vaſtnefs of its Ob-
Liberty to turn out of theſe rougher Tracts, and to jeets, is the Province of another Sort of Enqui-
paſs immediately to a Field of more Smoothneſs rers. Our Buſineſs is to declare, how, chiefly for
and Pleaſure.
the Direction of the Will, a certain (5) Kind of
II. All the Beings (4) which compoſe this Uni- Attributes have been impos'd on (6) Things and
verſe, as they conſiſt of ſuch Principles as were by their Natural Motions; whence there ſprings up a
the moſt Wiſe Creator temper'd and fitted for the peculiar Agreement and Conveniency in the Adi-
producing of each particular Eſſence; ſo they have ons of Mankind, a grateful Order and Comelineſs
every one of them their particular Properties
, ari- for the Ornament of Human Life. And theſe At-
fing from the Diſpoſition and Aptitude of their tributes are call’d Moral Entities, becauſe the Manners
Subſtance, and exerting themſelves in agreeable and the Actions of Men are judg’d and temper'a
Actions, according to that Portion of Strength with relation to them; and do hence aſſume a
which their Divine Author and Founder hath im- Face and Habit different from the horrid Stupidi-
printed on them. Theſe Properties we now uſually ty of the dumb Creation.
call Naiural,ſince the Term Nature hath been extend-
The Author in his laſt Edicions adds theſe Quotations here.
(a) We find Manilius uſing the like Excuſe : Lib. III. V. 39. doc.
Örnari res ipſa negat, contenta doceri.
And though ſome Words of foreign Stamp appear,
Et ſi qua externa referantur nomina lingua,
Seem harſh, untun'd, uneaſy to thy Ear,
Hoc operis, non vatis erit : non omnia fleti
This is the Subjeft's, not the Writer's Fault:
Poſſunt, do propria melius ſub voce notantur.
Some things are ſtiff, and will not yield to Thought.
I muſt be plain : and if our Art hach found
Nor hope ſweet Verſe and curious Turns to find :
Expreſſions proper, it neglects the Sound.
I'll leave thy Paffions, and inſtruct thy Mind.
Mr. Creech.
To the ſame purpoſe, V. Lucret. Lib. 1. V. 137. & Horat. Art. Poet. V.48. which last ſpeaks thus :
Si forte neceſſe est
None may to us chat Liberty refuſe,
Indiciis monſtrare recentibus abdita rerum,
Suppoſing that it prudently be done.
Fingere cin&tutis non exaudita Cethegis
Continget: dabitur que licentia ſumpta prudenter.
Licuit, ſemperque licebit
Thus in Engliſh:
Signatum preſente notâ producere nomen.
If to expreſs Things new found out, we uſe
It ever was, and e'er will lawful be
New Words, unto the Ancients never known,
To uſe the Words forg'd by Neceſſity.
Mr. Barb. NOTES on S. I, II.
(1) Cicero maintains it to be a childifh Thing to ſpeak Elegantly of Matters Philoſophical : In ſuch Caſes to ſpeak plain is ſuffici-
ene, and learned Men have no other Intent, but to expreſs themſelves clearly. Cic. de fin. l. 3. c. 5.
(2) L. 3. c. I. The following Part of this Diſcourſe plainly ſhews us, that he ſpeaks exprefly of ſuch Philoſophers as treat
of Moral Knowledge, becauſe he diſtinguiſhes them from Logicians, Natural Philoſophers, Geometricians, doc.
(3) Our Author infers from theſe Quotations, that 'cis as lawful for him, as theſe ancient Poets, to borrow ſome Terms from
other Languages, to expreſs himſelf in this work, fince he can find none proper in his own, and he has no other way to render
himſelf Intelligible. And this might have been a good Excuſe for the ancient Schoolmen, if they had not carry'd this Liberty
too far, and made uſe of Terms wholly barbarous.
(4) By Beings our Author means the Subſtances of Things, with all their Properties and Qualities, internal and external, as
appears by what follows.
(5) See Nore 2. upon S. 5. of this Chapter.
(5) Men and their Adions are here underſtood, as $. 16. ſhews,
III. WE



Char. I. Of the Origine and the Variety of Moral Entities. 3
III. We may define our Moral Entities to be cer- Human Conduct, as ſuperior to Brutal, in being
tain Modes fuperadded to Natural Things and Motions, capable of regular Beauty and Grace : that thus in
by Underſtanding Beings; chiefly for the guiding and ſo inconſtant a Subject, as the Motions of Men's
tempering the Freedom of voluntary A&ticns, and for the Minds, an agreeable Elegance and Harmony
procuring of a decent Regularity in the Method of Life. might be produc'd.
We call them Modes, becauſe we conceive Ens, or IV. As the original Way of producing Natural
Being in general, to be more conveniently divided Entities is (4) by Creation, ſo the Manner of fra-
at large, into Subſtance and (1) Mode, than into ming Moral Entities cannot be better expreſs’d
Subſtance and Accident. And as Mede is contradi- than by the Term of (5) Impoſition. For theſe do
stinguiſh'd to Subſtance, ſo it is manifeft, that Mo- not proceed from Principles ingrafted in the Sub-
ral Entities have no Self-fubfiftence, but are found- ftance of Things, but are added, at the Pleaſure
ed in Subſtances and in their Motions, and do on- of Intelligent Creatures, to (6) Beings already
ly affect them after a certain manner. Of Modes, (2) perfect in their Nature, and to the real Producti-
ſome flow, as it were, naturally from the Things ons of thoſe Beings; and conſequently obtain
them.ſelves, (3) others are ſuperadded by the Inter- their (7) whole Exiſtence from the Decermination
vention of an Intelligent Power. For whatever is of their Authors. The ſame Power afſigns them
endu'd with Underſtanding, can from the reflex ſuch and ſuch Effects, which, when it fees conve-
Knowledge of Things, and from comparing them nient, it can deſtroy (8) without cauſing any Na-
with one another, form ſuch Notions as may prove tural Alteration in the ſubject to which they were
very ſerviceable in the Direction of an agreeable apply’d. Hence their Force and Ability of Ope-
and conſiſtent Faculty. Moral Entities are of this ration doth not conſiſt in this, that they can by
the Original of which is juftly to be referr’d their internal Efficacy produce any Natural Moti-
to Almighty God, who would not that Men on or Change in Things, without the Interventi-
Thould paſs their Life like Beaſts, without Culture on of other Cauſes; but, partly in ſhewing. Men
and without Rule; but that they and their Actions how they ought to govern their Freedom of Acti-
ſhould be moderated by ſettled Maxims and Princi- ons, and chiefly in making them capable of re-
ples; which could not be effected without the Ap- ceiving Benefit or Injury, and of exerciſing ſeve-
plication of ſuch Terms and Notions. But the ral Works towards other Perſons, with ſome pecu-
greateſt Part of them were afterwards added at liar Effect (9). And the Efficacy of Moral Enti-
the Pleaſure of Men, as they found it expedient ties, produc'd by Almighty God, flows from this
to bring them in, for the poliſhing and the metho- Principle, that he, by his Right of Creation, háth
dizing of Common Life. And from hence the the Power of Circumſcribing, within proper Li-
End of them is plainly to be diſcover'd, which is mits, that Liberty of Will with which he indulg'd
not, like that of Natural Beings, the Perfection Mankind, and when it grows refractory, of turn-
of the Univerſe, but the particular Perfection of ing it which way ſoever he pleaſeth, by the Force

kind;
Mr. Barb. NOTES on S. III, IV.
(1) Our Author, without doubt, intends by this Diſtinction to make a Difference between Modes properly 10 called, which
are not to be ſeparated from cheir Subſtance, and have no Exiſtence by themſelves; and ſuch, as being real Subſtances of them-
ſelves, can have an independent Exiſtence from the Subject to which they are joyned. For the Term, Mode, in its true Signi.
fication is oppoſed to Subſtance, and imports only the Modification, or Manner of Being. It is not the ſame with Accident.
(2) For Inſtance, The Figure of a Body, which is really inherent in it; and therefore called an Internal Mode.
(3) Such are Moral Entities, which are not in the Things themſelves, but depend upon the Operation of the Mind; and are
therefore called External Modes, becauſe they are nothing elſe but certain Relations of objects or Idea's one to another. See
The Art of Thinking, l. 1. c. 2. and Mr. Lock's Human Underſtanding, 1. 2. C. 28.
(4) This Word is ſometimes uſed in Latin co lignify, the Eſtabliſhment of a Man in an Office, as, Conſul creatus est, He was
made Conſul.
(5) The French renders it Inſtitution which being uſed in Engliſh for every Thing that proceeds from mere humane Inventi.
on and Appointment, in Oppoſition to what proceeds from Nature, may be better uſed here.
(6) We muſt not imagine, that the Exiſtence of Moral Entities is always poſterior to the Exiſtence of the Things they are
annexed to. 'Tis true in reſpect of ſuch as are of human Inſtitution only, but not of ſuch as are of Divine, becauſe they are ap-
propriated to Man from the Moment of his Creation, of which Sort are all Natural Obligations, of which our Author treats, 1.
3. c. 4. §. 5. and the State of compleat Nature, of which he ſpeaks S. 7. So that there is no moment, in which a Man may be
conceived free from all Moral Entities. Nevertheleſs, as Moral Entities, which are born with a Man, are not leſs true Modes
than the other, though they do not proceed from the Subſtance and Phyſical Qualities of the Man, but from the Derermination
and Will of the Creator, in ſuch manner as ſhall be explained in the following Note; yer theſe may be conceived abſtractly, as
the Properties and Phyſical Qualities of Man, by Virtue of Divine Inſtitution. This Expoſition is taken ouc of a work of this
Author's, called, A Specimen of the Controverſies with Puffendorf about his Right of Nature, &c. c. 3. S. 10.
(7) To obviate all Objections againſt this Expreſſion of our Author, we ought to obſerve, That he makes two ſorts of Inſtitus
tion. 1. Purely Arbitrary. 2. Another which has a Foundation in the Thing it ſelf, and which is a neceſſary Conſequent of
what is before freely reſolved, and can't be oppoſed or contradicted: As for Example, An architect may or may not build a
Palace; but when he has reſolved to do it, he muft neceſſarily order the Materials in a clear different Manner than if he were
to build a Cottage; and he'd paſs for a Fool, if, after he had built a Cortage, he ſhould affirm it to be a Palace : yer this hin-
ders not, but the ordering of the Materials proceeds from the Contrivance and will of the Architect. In like manner it was alto-
gether free for GOD either to create Man or not; but after he had reſolved to ſend him into the World, it was neceſſary chac
he ſhould lay ſuch Obligations on him, as became a rational and ſociable Creature ; ſo that if the Laws of Nature depend origi-
nally on the Divine Inſtitution, they are not a pure Arbitrary Conſtitution, as the Ceremonial Laus given to the Jews were;
buc an Inſtitution founded upon che very Nature of Man, and the Wiſdom of GOD, who can't will the End, but he muſt at the
ſame time will the Means to the End. Nevertheleſs, though the Will of GOD can't be feparated from his Goodneſs and Wif-
dom, yet we impute the Eſtabliſhment of the Laws of Narure chiefly to the Divine Will, becauſe it is not only the Principle of
all Divine Actions, but becauſe GOD's Wiſdom and Goodneſs are Attributes entirely free, and ſo can't be conceived with-
our the Will. Theſe Expofitions are taken from this Author's Works, viz. Specim. Controverſ. cap. 5. §. 9. Diſert. Acad. p. 743.
Spicil. Controv. cap. 3. $. 9.
(8) See the laft Paragraph of this Chapter.
(9) By virtne of Moral Entities, we have a Right to do our ſelves, or require of others certain Things, or rather we are
obliged to do them, or ſuffer others to do them. See Note 2, in the next Paragraph.

B 2
of
4 Of the Origine and the Variety of Moral Entities. Book I.
1
of ſome threatned Evil: Men likewiſe were im- the latter is a Kind of imınoveable Subſtance, ex-
power'd to give a Force to their Inventions of tended primarily, and of it ſelf, and which might
the ſame kind ; by threatning fome inconvenience, ftill ſubliſt, if all the Natural Things, which now fill
which their strength was able to make good, a- it, were remov’d: But States, and all other Moral
gainſt thoſe who ſhould not act conformably to Beings, conſider'd formally as ſuch) obtain no high-
them.
er Condition than that of Modes or Attributes;
V. Since then Moral Entities were inſtituted for ſo that upon taking away the Perſons ſuppos’d to
the Regulation of Men's Lives, to which End it be in ſuch a State, the State it ſelf is in manifeſt
is neceſſary, that thoſe who are to obſerve this Danger of loſing its own Exiſtence.
Rule ſhould bear ſome ſettled Relations to one a Vil. There are two Sorts of Spaces; one accord-
nother, ſhould govern their Actions by a fix'd Me- ing to which Things are ſaid to be in a Place,
thod; and, laſtly, ſhould act with determinate Re- which the Logicians call Ubi, as here, there, &c.
ſpects and Titles about ſuch Goods and Poſſeſſions and another according to which they are pro-
as the Occaſions of Life require; we may hence con- nounc'd to be in Time, which they call Quando,
ceive them to be principally inherent, 1st, In Men; as Yeſterday, to Day, to Morrow, &c. In the ſame
2dly, In the A&tions of Men; And, 3dly, after a ſort manner we may conceive a double Notion of
(1), in Things; which Nature, either by her own State; one which denotes a Moral Ubi, and bears
Strength, or with the Aſliſtance of Human Indu an Analogy to Place; another which includes a
ſtry may produce. (2) But though it would be Reſpect to Time, ſignifying the Application of
no Abſurdity to ſtate their Diviſion according to ſome Moral Effect to Perſons exiſting in ſuch a
theſe three Heads or Subjects, yet it ſeems a more
Time. The former State, which hath a Relation
exact Method to make the Claſſes of Natural En to Place, may be conſider'd either Undeterminate-
tities our Patterns in digeſting the Moral. Not ly, as it reſalts only from (4) Moral Qualities;
only becauſe the former have more engag'd the or Determinately, as it ſuppoſeth a Dependance
Studies of Philoſophical Men, and being compar'd on Moral Quantities, and on Compariſon. The
with the latter, caſt a conſiderable Share of their State of Man conſider'd Undeterminately, is either
own Light and Evidence upon them; but like- Natural or (s) Adventitious. We uſe the Word
wiſe becauſe our Underſtandings are ſo immers’d Natural, not becauſe ſuch a State flows from the
in Corporeal Images, as to be hardly capable of internal Principles of Human Effence, antecedent
apprehending ſuch Moral Beings any otherwiſe to the Power of Impoſicion; but becauſe it was
than by their Analogy to thoſe of Nature. impos'd by God Himſelf, not by Man, and af-
VI. Now though Moral Entities do not ſubſiſt of fects us immediately upon our Nativity. We are
themſelves, and for that Reaſon ought not, in ge- wone to conſider the Natural State of Man, either
neral, to be rank'd under the Claſs of Subſtances, abſolutely, or with relation to other Men. The for-
but of Modes; yet we find many of them to be mer Notion, till we can find a more convenient
conceiv'd in the Manner of Subſtances, becauſe o- Terin, we may expreſs by the Word Humanity, im-
ther Moral Things ſeem to be immediately found- porting that Condition in which Man is plac'd by
ed in them, juſt as Quantities and Qualities inhere his Creator, who hath been pleas’d to endue him
in the real Subſtance of Bodies. Farther, as Na- with Excellencies and Advantages in a high De-
tural Subſtances ſuppoſe ſome kind of Space, in gree above all other Animate Beings (a). Of
which they fix their Exiſtence, and exerciſe their which State this Principle is a direa Conſequence,
Motions ; fo in Allufion to theſe, Moral Perſons that Man ought to be a Creature acknowledging
are eſpecially ſaid to be in ſome State, which in and worſhipping his Divine Author, and admiring
like manner contains them, and in which they per- his Works; and that 'tis expected that he ſhould
form their Operations. Hence a State may not
maintain à Courſe of Life far different from that
improperly be defin’d a Mural Entity, fram'd and of Brutes. To this State is oppos'd the Life and
taken up, on account of the Analogy it bears to Space. the Condition of Irrational Animals.
And as Space ſeems no Principal and Original Be Since then the very being a Man is a State, ob-
ing, but is devis’d, to be, as it were, ſpread under liging to certain Duties, and giving a Title to
other Things, to hold and to ſuſtain them in ſome certain Rights, it cannot be out of the way to con-
particular manner; ſo the ſeveral States were not fider the preciſe Point of Time, at which particu-
introduc'd for their own fakes, but to make a Field lar Perſons may be ſaid to enter on ſuch a State.
for (3) Moral Perſons to exiſt in. Yet there is in- And this we conceive ought to be fix'd on the ve-
deed this Difference between State and Space, that ry firſt Moment, when any one may be truly call’d




(a) Cicero Off. 1. c. 28. Nature hath given us a Perſon and Chara&ter to lultain, in a Degree of Excellence far above any other Creatures.
Mr. Barb. NOTES on S. V, VI, VII.
(1) See what the Author ſays S. 16.
(2) All Moral Entities may be reduced to two Heads: 1. Right. 2. Obligation. Theſe are the Foundation of all Morality,
which conſiſts either in Actions or Perſons, which have Right to act in ſuch a Manner, or are under an Obligation co do it.
This Right and Obligation are Relatives, which always reciprocally ſuppoſe each other, as they refer to different Perſons. See
Lib. III. c. 5. §. 1. In fine, as all Right, and every Obligation depends on the Authority of a Superior, who regulares by Laws
the Actions of all that are ſubject to him, Natural Order requires, that we treat firſt of Human Actions, their Principles, and
different kinds; and then of a Law in General ; after which, the Explication of Moral Entities, which are founded on Laws,
will properly follow.
(3) As for Example, when a Prince in favour to, or to reward any of his Subjects, eſtabliſhes an Ofice or Dignity, which
he would not elſe have done, nor was otherwiſe neceſſary, but purely to advance the Honour of him for whom it was eſtabiſh'd.
Such are all honorary Employments.
(4) From the 17 to the 22 of this Chapter, the Author lhews what he means by Moral Qualities and Quantities.
(5) Adventitious is a sort of Moral Stare, which is added by way of overplus to the State of Nature, in conſequence of
fome human Action.
a Man,

Char. I. Of the Origine and the Variety of Moral Entities.
5
ces.
a Man, though he as yet want thoſe Perfections to the other, nor have any Acquaintance by the
which will follow his Nature in a longer Courſe: Means of Benefits, or of Injuries. To which may
That is, whenſoever he begins to enjoy Life and be added a third Notion of a Natural Staté, as it
Senſe, though his Mother hath not yet deliver'd abſtracts from all Inventions and Inſtitutions
him into the World. Now becauſe the Obligations brought in, either by Human Induſtry, or by Di-
cannot be fulfilld by him, without he underſtand vine Revelation, for the Grace and the Conveni-
his own Nature and the Ways of Working, they ency of Life.
for that Reaſon do not actually exert their Force, The Adventitious State is that which obligeth Men
'till he is able to ſquare his Actions by ſome Rule, at, or after their Birth, by the Authority of ſome
and to diſtinguiſh them by their proper Differen- Human Conſtitution, the Diviſions of which will
But the Rights, on the contrary, date their be better ſettled hereafter (3).
Validity from the very Beginning of our Being, in But we ought to obſerve, by the way, that there's
as much as they engage other Perſons, already ar no Reaſon why People ſhould imagine a State of
riv’d at the full Uſe of Reaſon, to ſuch and ſuch Nature, in the Senſe but now deliver'd, to be a
Performances towards us, and may turn to our Be- Thing that never was, or can be in the World; be-
nefit, even whilſt we are incapable of apprehend- cauſe there was never any Set of Men joyn'd to-
ing the Favour. Hence, it being a general
Right gether barely by that Similitude of Nature, as it
and Privilege of all Men not to be Hurt by Others, abſtracts from Confanguinity; Eve being knit to
if the Body of a Fetus in the Womb ſhould ſuf- Adam in the Conjugal Tie, and all their numerous
fer any unlawful Violence, the Injury is not only Deſcendants being cloſely united and ally'd by the
done to the Parents, but to the Child; who, we Communion of Blood and Race. For we muſt
ſuppoſe, may in his own Name demand Juſtice know, that the Bond ariſing from Nearneſs of Birth,
on that ſcore, when he is grown up to Know- doth by Degrees wear our, amongſt Perſons re-
ledge of the Adion (1). But before the Imperfect mov'd at a great diſtance from the Common Stock,
Materials, (2) have acquir’d an human Form in the nor is eſteem'd of any farther force, when once
Womb, if any one ſhould diſſipate or deſtroy got beyond the reach of thoſe ſeveral Appellations
them, he can't properly be term'd Injurious with and (4) Terms which Mankind have invented to
regard to that ſenſeleſs Maſs; tho' he hath indeed expreſs it by. And therefore ſuch a State, though
broken the Law of Nature, by intercepting a Mem- it did not appear at the Commencement of Hu-
ber of Human Society, and hath done an Injury to man Race, aroſe afterwards in a longer Tract of
the Commonwealth, and to the Parents, by de- Time, when the Memory of the Univerſal Root,
priving them of their promis’d Citizen and Off- and the Senſe of the Relation ſpringing from it,
ſpring.
were funk out of the Thoughts and Minds of Men.
The Natural State of Man, conſider'd with rela VIII. But although every State ſuppoſeth, in the
tion to other Men, is that which affects us upon the Perſon whom it affects, a Reſpect and Diſpoſition
bare account of an Univerſal Kindred, reſulting towards others, in as much as it is attended with
from the Similitude of our Nature, antecedent to ſome Right, or fome Obligation, neither of which
any Human Act or Covenant, by which one Man we can conceive without an Object to imploy their
is render'd peculiarly obnoxious to the Power of Force upon; yet ſome kinds of States do more ex-
another. According to which Senſe, thoſe Perſons preſly include and denote a Relation towards other
are ſaid to live in a State of Nature, who neither o- Men, whilſt they ſignifie the Manner and Proceſs
bey one common Maſter, nor are at all ſubject one by which the Mutual Buſineſs of Mortals is on both

(1) Another Example may be; If a Thing be given to an Infant before he comes into the World by Will, or by any other
Title, when he is in Conception, the Infanc has a certain
Right to it, ſo that if it be caken from him, he may legally require
it, when he comes to an Age of Diſcretion: For it is ſufficient, that he declares, that his Goods were taken away without his
Conſent. This Compariſon will clear the Matter. When any perſon in our Abſence robs us, or does us any manner of Damage,
he does us a real Injury, though we may not know it till a long time after. We have taken this out of our Author's Work,
callid The Elements of the Civil Law, p. II, 12. We may add, that by the Roman Law, an Infant in the Mother's Womb is ſup-
poſed to be come into the World at all times, when any thing may be done for irs Advantage, as the Words of the Digeſt. 1. 1.
Tit. III. de Statu hominum Leg. VII. import. Qui in utero eſt, perinde ac fi in rebus humanis eſſet, cuftoditur, quotiens de commodo
ipſius partûs quæritur. See Leg. XXVI, of the ſame Title. Yet the Roman Lawyers are not well agreed upon this point ; for ſome
of them hold, that the Foetus is a part of the Mother, or of her Entrails, and that it can't be called a Man, till it is born in-
to the World, Partus enim, antequàm edatur, mulieris portio est, vel viſcerum. Digeft. 1. XXV. Tit. IV. Leg. I. $ 1. They bor-
row'd this Nocion of the Stoicks, who in this agreed with divers others of the Ancient Philoſophers. See Julius Paulus written
by Mr. Noodt. c. 2. and 11.
(2) The Explication, which Philo the few gives upon Exod. 21. 22. is ſo very pertinent here, that 'cis a wonder our Author
did not apply it. The Text is, If Men, in ſtriving together, hurt a Woman great with Child, ſo that fhe miſcarrý, tho' no o-
ther Miſchief follow, they ſhall pay the Husband of that Woman ſuch a Fine, or Mulet, as he ſhall lay on them, and give it
him before the Judges, but if Death follow, ye ſhall give Life for Life. Theſe Words may be underſtood of the Death of the
Mother only, as Joſephus thinks, or of both the Mother and Child, as Philo ſuppoſes, according to the Opinion of this Author,
'Edy rele
' danasov, &c. If the Foetus be nor formed, he that ſtrikes the Mother, ought to make Satisfaction, as well for the
Harm done her, as becauſe he hath hindred Nature from perfecting her work, and giving Life to ſo noble a Creature as Man ;
but if the Foetus be already formed, every Member being in its Natural Place, and having its proper Qualities, the Perſon
ought to be put to Death; Philo dex Leg. Special. See Selden de Jure Nat. do Gent. See Hebr. 1.4.c. 1. Further, if before the
Fætus be compleatly formed, a Man by hurting the woman on purpole, cauſes a bodily Deformity, or other Infirmity in
the Child; he may, when he is grown up, proſecute the Author of ſuch a Damage, and ſhall obtain Satisfaction according to his
Damage, as our Author ſpeaks in a Place cited hereafter, where he trears alſo of another Queſtion, which deſerves our Notice,
lib. 4. c. 12. S. 10.
(3). Yet Our Author does no where do it formally, but he treats in their proper Place of the four principal Adventitious States,
to which all the reſt may be reduced, viz. Marriage, the Relation of Parents and Children, Maſter and Servant, and Citizen,
or Member of a Society. To this we may add the Diviſions of Moral Perſons, which our Author lays down in the ſame Chap-
ter, S. 12. doc.
(4) Viz: When we have paſſed the Degrees of Father, Mother, Grandfather, Grandmother, Brother, Siſter, Uncle, Aune,
Nephew, Niece, Couſins, he and ſhe, and ſome others depend ing on them; for as we have no other Names proper for ſuch De-
ſcendents, ſo cheLine of Kindred produces no ſuch ſtrong Ties between them, who are in ſuch diftant Degrees of Relation.
fides
o Of the Origine and the Variety of Moral Entities. Book I.

Sides manag'd and tranſacted. Of this Sort the moft neral Diviſion, we ſettled with relation to Time,
ſignal and material are Peace and War, which ewo in conjunction with ſome Moral Effect, may be
States, (I) Libanius ſays, comprehend all the Af- divided, firſt, into Seniority and Juniority; both
fairs, and all the Conduct of Life, Peace is that which are conſider’d, either with reſpect to che Du-
State by which Men live quietly together, without the ration of Human Exiſtence, and are then callid
Diſturbance of Violence or Injuries, and veluntarily dif- Age, the Degrees of which are Infancy, Childbood,
charge tb
Mutual Duties, as Matters of neceſſary Ob- Puberty, Touth, Manhood, fix'd Age, Declining, old,
ligation. War, on the other hand, is a State of Men and Decrepit Age: or, with regard to ſome Adven-
mutually engag'd in offering and repelling Injuries, or en- titious State, (7) according as a Man hath conci-
deavouring forcibly to recover their Dues. Peace may nued a longer, or a ſhorter Time in it. Secondly,
be divided into Common and Particular; the former Into Plen-age (8), when one is preſum'd able by
ſuch as is maintain’d amongſt Men by Duties flow- his own Strength
and Diſcretion to manage his Al-
ing purely from the Law of Nature ; (2) the latter fairs; and Non-age, when a Perſon hath need of a
ſuch as derives its force from expreſs Covenants Tutor, or Guardian, becauſe he is ſuppos’d, upon
and Leagues, binding both Sides to agreeable Per- the account of Weakneſs of Judgment, incapable
formances : This again is branched into Internal of dexterouſly proſecuting his own Buſineſs. The
and External, the one (3) between Members of the Limits of this State are different, according to the
fame Commonwealth, the other regarding Per- various Conſtitutions and Cuſtoms of Nations.
fons of different Countries and Governments, Different from Non-age, is what we may call an
whether as Common Friends, or as Special Con- Age capable of (9) meditated Guile; the Bounds of
federates and Allies. A Common or Univerſal War which it is likewiſe impoſſible to aflign. Ælian in
ingaging all Mankind at the fame time, is an im- his Various Hiſtory relates a very remarkable Way
poſſible Suppoſition; this being a direct Conſe- of diſcovering ſuch an early Deceit. A Boy, ha-
quence of the State of Beaſts. Particular War is ei- ving taken up a Golden Plate (b) dropt out of Di-
ther Internal and Civil, or External; that, between ana's Crown, was indicted in Court: The Judges
Members of the ſame; (4) this, between thoſe of dif- order'd a pack of trifling Play-things to be laid up-
ferent Communities. When the Acts of War are
on the Board, and amongſt theſe a Plate of Gold,
ſuſpended, though the State ſtill continue, ſuch a and bid the Boy chufe which he lik'd beſt; who a-
Ceſſation is call'd a Truce (a). de son biber gain laying hands on the Gold, was condemn'd as
IX. States are ſaid to be conſider'd determinately, guilty of the former Sacrilege.
when we meaſure them according to the high or XI. Before we proceed to other Matters, it ſeems
low Degree of Eſteem which attends them, or ac- neceſſary for us to obſerve, that, through Scarcity
counting as they are reckon'd more or leſs honour of Words we are frequently compell’d to expreſs by
able. (5) For ſince peculiar Rights and Obligati- the ſame Term, the State it felf, and the Attribute
ons accompany each State, every one obtains a proper to ſuch a State; though they are really di-
larger Share of Splendor and Credit, either as its ſtinct, and form different Conceptions in our
Rights are more numerous and (6) more forcible; or Minds (c). Thus, to give an Inſtance, Liberty is
as its Obligations are directed towards the Perfor-us'd as well for a State with analogy to Space, as for a
mance of ſuch Works as require a ſingular Ability Faculty of working with reſemblance to an Active
of Parts and Wit. On the other hand, thoſe Quality (10). And ſo Nobility, ſometimes expreſſeth
which demand only dull Pains and Labour of Bo- a State, ſometimes an Attribute, or Affection of the
dy, are in very little Value and Repute. von Perſon in ſuch a State, in the manner of a Paſſive
X. The latter Sort of State, which, in our Ge- Quality. So likewiſe the word Truce denotes both
---
(a) Vide Grot. de Fur. B. do P. 1. 3. C, 21. (6) Lib. 5. Cap. 16.
(c) Senec. de Benef
. I. 2. c. 34. There is a vaſt multitude of things which have no peculiar words fix'd upon them; and theſe we
expreſs not by proper, but by foreign and borrow'd Names.
Mr. Barb. NOTES on S. VII, IX, X, XI.
(1) Progymnaſm. p. s. c. Edit. Parif. Morel. Ariſtotle, as Mr. Hirtius obſerves, had before ſpoken to the ſame effect. Alantou
det my vás o BIG, &c. The whole Life of Man is divided into Labour and Idleneſs, War and Peace. Pólit. I. VII. c. 14. Edit.
Pariſ. 1629.
(2) See Book the VIII. Chap. 1X. Se&t. 2, 3. &c.
(3) Viz. So far as they execute the fundamental Agreement, punctually, for the ſake of which the Society was eſtabliſhed,
and do not oppoſe by open Fact the Lawful Power, which is exerciſed over them; and ſo that Peace is nor diſturbed by any Sort
of Violence, but only that which we are engaged not to uſe, when we entred into a Society. As for Example, The Internal
Peace of a State ſuffers no Interruption, when the Magiſtrate uſes the Power entruſted to him to curb in and puniſh the Breakers
of the Laws. But when the Subjects will by force deliver a Criminal from Punishment, and endeavour to oppoſe the Magiſtrate
in the Exerciſe of his Legal Authority, this is called a Civil War, Element. Juriſprud. Univers. p. 17. The War alſo which
breaks out among Confederates united together by a perpetual Alliance may alſo be looked upon as an Inteſtine War, ar Mr. Hir-
tius there obſerves.
The brood
(4) When this ſort of War is extinguiſhed at its firſt Riſe, viz. without any regular Preparations on either Side, it is a Sedi-
tion; when Subjects take up Arms unjuſtly againſt their Sovereign, it is a Rebellion. In Democracies and Ariſtocracies, when
the People and the Magiſtrates make two Parties, and uſe Acts of Hoſtility one againſt the other, this is properly call’da Civil
War, Element. Juriſprud. Vniverſ, p. 18.
wiziao su
(5) See Mr. Daumat’s Publick Right, Lib. I. Tit. IX. Se&. 1. and what our Author ſays 1. 8. c.4.vm blir
(6) More forcible.] The French Tranſlator renders the words, validiora jura, more conſiderable, i. e. of greater Validity and
Certainty; for the Honour of an Employ does not depend upon the Manner of obtaining it, but upon the Dignity and Privi,
leges, which it confers on ſuch as are inveſted with it. And ſo this ſeems the better Tranſlation. 2006 2007
(1) And fo we ſay for Example, an Old General, an Old Soldier, a Young Apprentice, doc.
3) See Lib. III. Ch. VI. S. 4. and Lib. IV. Ch. IV. S. 15.
O) The Roman Law declares ſuch as are in their Non-age, or not far from it, capable of Deceir. Igitur doli non capaces, ut ad-
modumi mpuberes -excuſati ſunt. Digeft. Lib. 47. Tit. 12. de Sepulchro violato, Leg. III. S. 1. See Cujas's Obſervations Lib.
VI. Cl. 22. do Digeſt. Lib. 47. Tit. 8. de vi bonorum Raptorum, Leg. II. S. 19.
(10) The Author will explain a little lower, wiz. S. 19. what he means by Qualities Adive and Paſſive.
the
fo
Chap I. Of the Origine and the Variety of Moral Entities.
7

the State of Peace, and the Manner of Settling it. without the Addition of Poſitive Laws and Conſti-
Nor muſt we forget to hint, that as one Perſon tutions ?
may be at the ſame time engag’d in ſeveral States, XII. Moral Entities, fram'd with Analogy to Sub-
provided that the Obligations of thoſe States do not ftances, are call'd Moral Perſons (a); which are ei-
interfere with one another, ſo the Obligations ad- ther particular Men, or ſeveral joyn'd in one Body
hering to one particular State, may, according to by ſome Moral Tie, confider'd with the State and
different Parts, be deriv'd from different Princi- Office which they maintain in Common Life. Mo-
ples. And therefore he that only collects the Ob- ral Perſons are either Simple, or Compound. The
ligacions flowing from a ſingle Principle, and o- Simple, according to the Difference of cheir Poſts
mits the reſt, doth not preſently form a diſtinct and Employments, are either Publick, or Private;
State incapable of other Obligations, beſides thoſe as their Dury is immediately apply'd, either to the
which he hath taken notice of. Thus he that ga- Benefit of Civil Society, or to the particular Ad-
thers ſeveral Parts of the Office of Prieſts purely vantage of (3) every Private Member. Publick
from the Holy Scriptures, doth not in the leaſt de- Perſons, by the general Cuftom of the Chriſtian
ny, but that they are likewiſe bound to ſuch Per- World, are divided into Civil and Ecclefiaftical. The
formances as the Conſtitutions of particular Go- former (4) are either Principal, or Inferior. Of
vernments ſhall farther enjoyn. So we that profeſs Principal Perſons, fome adminiſter Affairs with a
in this work to treat only of thoſe Duties of Men, Supreme Power ; others either execute fome Part of
which (1) the Light of Reaſon ſhews to be necef- the Adminiſtration by Commiſſion from the Su-
ſary, do not at all pretend that there ever was, or preme Power, who are properly call’d Magiſtrates,
now is, or ought to be, ſuch a State in which thoſe or elſe afliſt with their Advice and Counſel in the
Obligations only ſhould prevail, excluſive of all o- Management of the Commonwealth. The Inferior
thers. Nay, it would be almoſt a needleſs Diſqui- perform a leſs Noble Service to the Community,
ſition to ſearch, whether ſuch a State of Men was and Act under the Magiſtrates, with reſpect to their
once ſo much as likely to have been in the World. Publick Capacity. In War the Officers, whether
For the Affertion, which fome ſo confidently lay of higher or lower Commiſſions, anſwer to Ma-
down, could never yet be clearly made out; That giftrates, and are aſſiſted, in Subordination, by the
If Man had continued in his Primitive Holineſs, the Common Soldiers. We reckon Men of that Pro-
Law of Nature alone, as it govern'd him at firſt, so feſfion amongſt publick Perſons, in as much as
ſhould have continu'd its Sway, except that one or two they are authoriz'd by the Supreme Power, either
(2) Poſitive Commands might probably have been added immediately or mediately, to bear Arms in the
to it. We may juftly queſtion, whether Mankind, Service of the Commonwealth.
or
although untainted with Sin, ſhould have always There is likewiſe a peculiar Species of Politick
paſs’d their Time in the Compaſs of a ſingle Gar. Perſons, which we may ſtile Repreſentatives, becauſe
den, ſuſtaining themſelves with the Fruits of Spon- they ſuftain the Character of other Perſons : ſuch
taneous Growth, and not have cultivated and a. as, being inveſted with the Power and Authority
dorn'd their ways of living, by Induſtrious Ma- of acting by another, do in his room tranfact Bu-
nagement, and by Variety of Arts and Inventions. fineſs with the ſame Force and Validity, as if he
For what Prejudice could it have been to their O- himſelf had manag’d it. Of this kind are Legates,
riginal Innocence and Integrity, if upon the Mul- Vicars, Burgeſſes, &c.
tiplication of Human Race, they had divided into A new Diſtinction hath been brought in of late,
ſeparate Societies in the Forms of Commonwealths? between Miniſters (5) of a Repreſentative Cha-
And what Notion can we frame of ſuch Societies, racer, who are Ambaſſadors properly ſo call'd; and
(a) The Roman Lawyers ordinarily reſtrain the word Perſon to thoſe that are Free: and rank their Slaves amongſt the Goods they
possesed.
Mr. Barb. NOTES on s. XII.
(1) In Oppoſition to Revelation, and particular Rules of the Civil Laws of every Country, froni whence ariſe three diftin&t
Sciences, viz. Natural Right, which is common to all Men without Exception, Civil Right, which is or may be different accor-
ding to the intereſt of every State, and Moral Theology. See the Author's Abridgment of the Duties of a Man and Citizen.
Præf. $. 2.
(2) It is not known, whoſe words theſe are, which our Author cenſures. As to the Queſtion it ſelf 'tis one of the moſt im-
pertinent; for our Author elſewhere acknowledges, that it is very hard to imagine, how a Propriety of Goods and Government,
on which our whole lives now are ſpent, could have Place in our State of Integrity, See his Spicil. Jur. Nat.c. 2. §. 9. and his
Comment. Super, inven. Vener. Lipf. pullo. p. 386. Nevertheleſs ſome others have treated feriouſly upon this frivolous Queſtion; as
Mr. Thomaſius Inſt. Juriſpr. Div. Lib. I. c. 2. §. 37. 38. and Mr. Hirtius in his Elem. prud. Civil. I. 1. Se&t. 3. S. 5.
(3) There is another Reaſon, why they are called ſo, and that is, that they are ſettled in publick Employ's by the Autho-
rity of a Civil Society, or of them that govern it. Whereas private Employments depend upon the Will and Choice of every
Man, unleſs the State will interpoſe and confer them.
(4) Why does he not define what is meant by Perſons Political, or Civil? They are ſuch, as ( for fo our Author himſelf
ſpeaks. Elem. Juriſprud. Vniverſ
. p. 23. ) adminifter by publick Authority thoſe Afairs which have a particular Regard to Civil
Society, conſidered as ſuch, whereas Eccleſiaſticks are to take care of Matters of Religion only. Theſe laſt, though they oughc
to be ſubject to their Sovereigns in Temporal and Civil Matters at all times, yer may and ought alſo to be independent, as to
Spirituals, provided they keep within their Bounds, and do not ſet up any other Religion, befides the eſtabliſhed : and the Rea-
ſon of ie is, that as Religion is a Thing in its own Nature Free, at leaſt
, directly, and can'c be ſupposºd to be admitted into Ci-
vil Society for no End, every Ecclefiaftical Society may do what it judges for the Intereſt of Religion, provided it encroach
nec upon any Prerogative of the Civil Power. See what ſhall be ſaid hereafter, lib. VII. ch. 4. §. 11. Note 2. Nevertheleſs, 1
do not affere any Thing here, which may be a Foundation for any Principles contrary to the Engliſ Author, Of tbe Rights of
the Chriſtian Church.
(5) The Author here quores the work of Mr. Wicquefort, Entituled, The Embaſador, and his office, printed in his time with-
out a Name, and under a different Title, viz. Memoirs concerning Embasſadors ; but lately publiſhed with many Additions,
as above.
Miniſters

8 Of the Origine and the Variety of Moral Entities. Book I.
Miniſters of the ſecond Order, as Envoys or Refi- and Perſons of various (3) Ages require a various
dents, who do not, like the former, expreſs the fall Treatment and Application.
Power and Grandour of their Maſters (1).
XIII. A Compound Moral Perſon is then conſtitu-
With reſemblance to thefe Publick Repreſenta- téd, when ſeveral Individual Men are ſo united to-
tives, Tutors and Guardians are concern'd for Pri- wgether, that wliat they will or act by virtue of thac
vate Perfons, as they manage Affairs in Behalf of Union, is eſteem'd a ſingle Will, and a ſingle Act,
Pupils or Minors given them in charge.
and no more. And this is ſuppos’d to be done,
On this point Mr. Hobbes (a) is miſtaken, when when the particular Members ſubmit their Wills
he will have it frequently to happen in Commu- to the Will of one Man, or of one Council, in
nities, that a Man ſhall bear the Perſon of an Inani- ſuch a manner as to acknowledge, and to defire o-
mate Thing, which therefore is it felf not properly a Per-thers to acknowledge, for the common Act and
fons as suppoſe of a Church, a Hoſpital
, a Bridge, &c. Determination of them all, whatever that Man,
For there appears no Neceſſity of introducing a or that Council ſhall decree or perform, in Mar-
Fiction of Law, to conſtitute Perſons by whom a ters which properly concern ſuch an Union, and
ny of theſe ſhould be repreſented. It being more
It being more are agreeable to the End and the Intention of ir.
Natural to ſay in plain Terms, that particular Men Hence it comes to paſs, that whereas in other Ca-
are impower'd by the Community, to collect the fes, when many Men will or act any Thing, we
Revenue, ſettled for the preſerving of ſuch Places, conceive ſo many diſtinct Wills and Acts as there
or Things, and to carry on and ſuſtain any Suits are in number Natural Perſons, or Human Individuals;
that ſhall ariſe on thoſe Accounts. vo To 1919 yer when they cloſe, and form a Compound Perſon,
The Variety and Diviſion of Eccleſiaſtical Perſons they are ſuppos’d to have but a ſingle Will, and e-
is obvious to every Man, according to the particu- very Adion which they perform is conſtrued as
lar Religion in which he hath been bred up. Nor one only, although a Number of natural Indivi-
can any
Man of Letters be at a loſs to apprehend duals concur in its Production. And hence ſuch a
what Kinds of Perſons are founded in the Manage- Compound Perſon doth and ought to obtain ſome par-
ment of Schools.
ticular Goods and Rights which none of the Mem-
Private Perſons are of a vaſt Latitude and Ex- bers, in their private and ſeparate Quality, can
tent; yet their principal Differences may be taken; claim or arrogate to themſelves (4).
firſt, from their buſineſs, Craft, or Trade, which Here alſo we muſt remark, that as Natural Bo-
imploys their Pains, and exhibits their Livelihood: dies continue the ſame, although in length of Time,
and theſe are, either Creditable and Genteel, or by flow and filent degrees they receive a conſidera-
ſuch as ſeem to carry in them more Baſeneſs, or ble Alteration from the various Acceffions and De-
Drudgery. Secondly, From the Condition, or, as ſertions of their Particles; fo by the particular Suc-
we may ſay, the Moral Situation which any one ceſſion of Individuals, the Identity of the Com-
obtains in a Community; in which reſpect one is pound Perſon is not injur'd: unleſs at one and the
a Citizen, with more or leſs Priviledges; another fame time ſuch a Change ſhould arrive, as would
a Sojourner, and a third a Stranger. Thirdly, From entirely take away the Nature and Conſtitution of
the Place in a Family, upon which account one is that united Body. On which Point we ſhall be
ſaid to be a Houfholder, which may comprehend more large in (s) another Part of our Work.
the Perſon of a Husband, a Father, and a Maſter; Compound Moral Perſons, or Societies, may, after
another is call’d a Wife, another a Son, another a the manner of ſingle Perſons, be divided into Pub-
Servant: Theſe may paſs for the ordinary Mem- lick and Private. And the former again are fub-
bers of a Family; the extraordinary are Gueſts divided into Sacred and Civil. Of the Sacred, fome
and Lodgers. Fourthly, Upon account of Race we may call General, as is the Catholick Church,
and Birth; whence ariſe Nobles, (divided into dif- and likewiſe any particular Church, whether com-
ferent Degrees in different countries) and Plebei- prehended within the Bounds of ſuch a Nation, or
ans. Fifthly, From Sex and Age, whence come the diſtinguiſh'd from others by Publick Forms of Con-
Differences of Men and Women, and the Diſtin- feflion. Others peculiar, as are Councils, Synods,
Aions founded in Childhood, Youth, Manhood, Conſiſtories, Presbyteries, &c. Civil Societies are
and Old-Age (2). For though the Diverſity of Sex, alſo either General, as a Commonwealth, of which
and Number of Years, are not of external Impofi- there are many Species, as Simple, Compound, Re-
tion, yet in the Method of a Social Life, they in- gular, and Irregular; or particular, as a Senate,
volve ſome kind of Moral Notion; in as much as an Order of Knights, a Tribe, a Parliament, &c.
different Actions are becoming in different Sexes, Armies may be called Military Societies, and confift
(a) Leviath. cap. 16.
Get i hela
Mr. Barb. NOTES on S. XIII.
(1) This is a viſible Miſtake in our Author, who has afferred the contrary elſewhere, and ought to have been corrected by
Mr. Hirtius, who put out the Frankfort Edition in 1705; for there is great Reaſon to reject the Sentiments of ſuch Men ( as
Chirles Paſcal, Richard Z sucheus, &c.) who affirm that Embaſſadors, properly ſo called, are as their Mafter himſelf, who ſends
them; inſomuch, that the Prince or State, to whom they are ſent, ought to give them the ſame Honour, they would to their Ma-
fter. The Character of an Embaſſador certainly gives neither the Dignicy nor Title of a Sovereign, and ſuch a Miniſter may
not pretend, becauſe his Maſter has a Superiority above another Prince, that he muſt perfonally be preferred before him. See
what our Author ſays, Lib. III. ch.4 S. 20.
(2) In the Civil Law ſome other Diſtinctions are made among Perfons froin their Age and Sex. See Mr. Daumat's Civil Laws
in their Natural Order, Lib. I. Tit. II. Se&t. I. of the Preliminaries ; and the Interpreters upon the Digeſt. Lib. I. Tit. V. De ſtatu
Hominuin.
(3) Ages is not in the Original, but the Manner of Reaſoning, and Beginning of the Sentence require the Addition of it, as
our Author himſelf does in his Elements. Juriſpr. Vniverſ. p. 28.
(4) As for Example, No Private Perſon harh a Right to puniſh Criminals, although the Right to do it proceeds Originally
from Private Perſons, the Sovereign only has that Power,
(5) See Lib. VIII. Ch. XII.
of

Chap. I. Of the Origine and the Variety of Moral Entities. 9
of (1) Regiments, Troops, Cohorts, Companies, i obferv’d, that the Splendor of Men's Dignity hath
&c.
one Isolamp is ud frequently a ſtrong Influence on their Actions, and
Amongſt Private Societies
, we do not only recko that many Men have made very different Figures
on Families, but all the (2) Colleges, or Corpora- in a Publick, and in a Private Station. But we
tions in a Kingdom, or a City, as thoſe of the may reckon theſe Fancies amongſt the common
Merchants, of the Artificers, and the like. To: Deceptions of Sight, occafion’d by gaudy Pomp
make a minute Catalogue of every Species we and Show. The Caſe being much the ſame, as
think unneceſſary to our preſent Deſign. iw bus when Country People imagine the Name and Ti-
XIV. Concerning the Nature of ſimple Moral tle of Doctor to have ſome Share in the Force and
Perfons, we have this farther to obſerve; That as the Succeſs of a Preſcription (d). Except indeed,
óne and the fame Man may be in ſeveral States to that ſome kinds of Parts and Diſpoſitions are rouz’d
gether, (3) provided they do not claſh with each and enliven’d by Buſineſs; and on the contrary,
other, ſo he may ſuſtain ſeveral Perſons together, lye dormant in a State of Eafe (e). Yet there is
upon Suppoſition that the Duties attending thoſe no Queſtion to be made, but that when God Al-
Perſons may be perform’d together by him. For mighty impoſeth a peculiar Charge and Perſon on
though upon a natural account one cannot be both any Man, he can, and often doth indue him with
a Husband and a Wife, both a Son and a Daugh- extraordinary Qualities, beyond the Meaſure of
ter; nor in a Moral Conſideration, at the ſame Moral Acquirements; as is evident from the Holy
time, a Maſter and a Servant, a Judge and a Pri- Scriptures (f). H & miri sve one kort?
foner, a Party and Witneſs; yet nothing hinders From what hath been offer'd on this Subjeđ it
why the fame Man may not be, (for example ) appears, that the fews heretofore attributed too
at home a Houſholder, a Senator in Parliament, an large Effects to their Regeneration, by which the
Advocate in the Halls of Juſtice, and a Counſel- new Perſon of a Profelyte of Fuſtice was impos'd on a
lor at Court. In as much as thoſe particular Offi- Gentile : as when they affirm'd, that there was no
ces do not require and engage the whole Man; Force remaining in his former Kindred ; that he
but may, at different times, be all conveniently ought not to eſteem, or uſe as Relations, his Bre-
adminiſtred (a). And upon this Principle the wi- thren, Siſters, or Parents ; nor his Children be-
fer Heathens undertook to defend Polytheiſm (b), gotten in his firſt Condition (g). The Cauſe of
which they knew well enough was contrary to this Error was their abſurd Belief, that a new Soul
Reaſon: for their Excuſe was, they only con- was infus’d into the Profelyte. ad
5098
ceiv'd ſuch a Number of Perſons in the fame Su XV. It may not be amiſs, in the laſt place, to
preme Being, as might anſwer the Variety of O- obferve, that Men ſometimes frame a kind of Sha-
perations which proceeded from his Eſſence and dows, or Images of Moral Perſons, for the repre-
Nature (c)(4).
ſenting of them in Sport and Jeft. Whence it came
It's very plain from the Name and the Notion of to paſs that the Term of Perſon hath been peculiar-
Inſtitution, that when a Man enters on the Capaci- ly challeng’d by the Stage. The Effence of a Feigna
cy of a new Perſon, there is no Natural Change ed Person conſiſts in this
, that the Hábit, Geſture,
produc'd in him, no Generation of new Natural and Speech of another real Perſon be handſomly ex-
Qualities, no Augmentation of old ones: but what- preſs’d: Thus the whole Procedure bears only á
ever accrues to him from this Relation, is compre- Countenance of Mirth, and whatever ſuch a ficti-
hended within the Sphere of Moral Things. So tious Actor ſays or does, leaves no Moral Effect be-
when a Man's declar'd Conſul, he is made ne'er the hind it, and is valu'd only according to the Dexte-
wiſer, nor when he lays down his Office doth he layrity and Artifice of the Performance. For which
down any of his Parts with it. Though ſome have Reaſon we may, by the way, juftly wonder, why
Vion
2012
(a) Cicero, Off. lib. 1. c. 30. We muſt underſtand, that we are by Nature inveſted, as it were, with two Perſons, or Capacities ; ônë
and
Common to Mankind, on account of our being Partakers of Reaſon, and of that Excellence by which we ſurpaſs the Beasts : the other
proper to particular Men. A third is caft, upon us by Time or Chance : A fourth wè undertake and accommodate to our ſelues bý our open
1 Idem de Oratore. I suſtain Three Perſons at the ſame time; mine Own, the Adverſary's, and the Judge's. EM 14olls
(6) Senec. de Benef. 1. 4. c. 7. There may be ſo many Appellations of GOD, as there are Employments.
(c) Maxim. Tyrius, Diſſert. 23. The Gods are one in Nature, though many in Name. But we, Such is our ignorance, aſign
them different Titles, according to the different Helps and Favours which they afford Mankind.
si d29992 rindiT 592 )
Semana2 odt to mi3 to meet
-Purpos de vendit. 1997 th II (b)
Cauſidicum, vendunt ameshiftina; convenit illis,
Et ftrepitu do facie majoris vivere emjus. Juv. Sat. 7.V. 135, &c. nounong (1)
( Vide Corn. Nep. Alcibiad. c. t. , ad nodig voor didá to s orla se bostire treba za maji zipa & bahtoisia elit a rierw
Vide Exod. III.
IV. Deut. XXXI". 9. Sam. X. 6; 9. Matr. X, 1. 19, 20, diftom co BEM od tort, tigilat e veta A $
(8) Vide Selden de 3. N. & G. 1. 2.C. d. baiba s Santana ni Soisalire a váloh hond nito.A lo rloosde yaw A ()
MOYO
anyt) nemalang sud d. 31 st. 1788 ni bora noto19 9010 hot bolloo od bivorf RA 194091
so ventino
cu Slow bas Mr. Barb. NOTE s. inson vorul seda no al moy 101 Sloors se
(1) Our Author expreſſes thefe Parts of an Army according to the manner of the Romans, as Legio, Turma, Cohors, Manipu.
9.1.500.por lo 100
mg
lus, &c. to which we have no Terms that will exactly anſwer, and therefore we are forced to tranſlate them thús. See the Trea-
tifes of Juſtus Lipfius upon this Marter. Istuse nr 2
en (2) Collegia is a Name given to the Afſemblies of ſome particular Society of Men of one Trade or Calling in a City or Cor-
totoisins le
poration, and ſuch were the Collegia, or Societies of Coachmen, Augurs, Æſculapius, or Health, Dendrophori, or Timber-Merchants,
&c, as we have at London Companies, or Collegia of Mercers, Drapers, &c. Vide Mr. Dauniat, of Publick Right, Lib. 1. Tit. 15.
(3) Mr. Hirtius has treated at Large of this, and cleared it by a great Number of Examples in his Diſcourſe, De uno homine
plures fuftinente Perſonas, which makes up a Part of the third Tome of his Commentaries, and ſmall Tracts, Printed at Frankfort
on the Mein, A. D. 1700.....
лока оз охil at 37 esto
(4) See Mr. Le Clerc's Bibliotheque Choiſie, i. e. Choice Library Tom. 3. Art. Ignidan 916 29
arollo
Voloviny s to one
Roosa na to norbaita aloqu bas noteid te ble? Shkoz do
С
Peter

10. Of the Origine and the Variety of Moral Entities. Book I.
Peter (1), Biſhop of Alexandria, approv'd of the But the Things themſelves obtain'd nothing hence,
Baptiſm which Athanaſius, when a little Boy, had but an excrinſical Denomination, as they make the
adminiſtred to one of his Play-fellows(a).
Object of ſuch a Right, and of ſuch an Obligati.
But the Inſtitution, which produceth true Moral on. So when certain Things are ſaid to be Holy
Perſons, is allow'd no ſuch Liberty ; but ought al- or Sacred, no Moral Quality of Holineſs inheres
ways to preſuppoſe fach Qualities as may contri- in the Things; only, an Obligation is laid upon
bute to the ſolid Uſe and real Benefit of Human Men to treat them in ſuch a particular manner :
Life: And he that in conſtituting Perſons hath nor and when that Obligation ceaſeth, they are ſup-
a Regard to theſe Endowments, is to be efteem'd pos’d to fall again into promiſcuous and ordinary
an extravagant Buffoon, and a vain Inſulter over Uſe. Yer if, ftill, any Man will poſitively main-
Mankind (2). Thus Caligula might have made a tain, that there are ſome Things, as well as Per-
Conful of the moſt Wicked, or of the moſt Senſleſs Sons, which ſhould be calld Moral, he muſt take
Wretch in Rome, provided the Man had been a free care ſo to explain himſelf, that he may be underſtood
Citizen, and could at leaſt have perform’d the to attribute this Morality to the Things, not formally,
Common and Formal Part of that Office: Bur to as if it were inherent, but only objectively, as it is
deſign his Horſe Incitatus the ſame Honour, was a terminated in them (3).
Pitch of Madneſs, and of Infipid Raillery: nor a
XVII. Thus much of thoſe Moral Entities which
leſs Impudence than when he fet him up for a Maſter are conceiv'd with Analogy to Subſt ance. We are
of a Family, and gave him a Houſe and Furni- now to enquire about thoſe that are really and for-
ture; where there was good Entertainment pro- mally Modes
, and paſs in our Notion as ſuch.
vided for Gueſts invited in the Name of the Beaſt Modes may be conveniently enough divided into
(b). An equal Madneſs was it, as well as a horrid (4) Modes of Affection, and Modes of Eſtimation :
Impiety, that many of the Ancients, to flatter According to the former, we ſuppoſe Perſons to be
their Princes, their Founders of States, and other affected in ſuch and ſuch a manner; according to
Worchies, rank'd them after their Death in the the latter, both Things and Perſons may be rated
Number of the God's (c). And what to think of and valu'd. The former fall under the Name of
the Canonization amongſt the Modern Papiſts, no Quality, the latter of Quantity ; if we take both
Man of Senfe is at a loſs.ro
thoſe Terms in the moſt extended Senſe, Quali-
XVI. As to Things conſider'd as they are the Ob. ties, ſo far as concerns our Buſineſs, may be divid-
ject of Law (d), there ſeems to be no occaſion of ed into Formal and Operative. Formal Qualities are
ranking them under the Head of Moral Entities. For fuch as do not tend, nor are directed towards any
though Men are conceiv'd as different Perſons, up- A& or Work, but agree and are joyn'd with the
on account of their different State or Office, yet Subject, in the manner of pure and naked Forms:
Things do not raiſe ſuch diſtinct Notions in us, whence we may likewiſe call them Simple Attributes.
with reference to their Owners, whether our felves Operative Qualities are, either Primitive, or Deriva-
or others, or whether the Propriety be yet uncertain. tive. By the Primitive a Thing is conceiv'd fit and
When at firſt ſome Things fell under particular able for ſuch an Ad: They are divided into Inter-
Right and Dominion, and others were left exempt, nal(s), and External (6), and may be term’d
we muſt not fancy, that they themſelves acquirá Moral Paſſive Qualities. The Derivative are thoſe
any new Qualities; it ſeems rather, that upon in- which proceed from the Primitive, and are the (7)
troducing this Propriety of Things, a Moral Qua- Axts themſelves, as the former were the Powers.
lity aroſe amongſt Men, of which the Men were SEXVIII. Among Moral Attributes, Titles have a
the Subjects, and the Things only the Terms : For, conſiderable place, which are apply'd for the Di-
as during the Primitive Communion of Goods, any ftination of Perſons in Civil Life, with reference
Man had a Right of applying to his proper Ufe, to their State and their Efteem. They are chiefly
what equally belong'd to all; fo when one of two Sorts. Some directly fignifie the Degree of
Maſters or Owners were conſtituted, there fprung sthe Rate and Value, which Perſons bear in com-
up a Right in each particular Maſter of diſpoſing mon Account, together with the Qualities pecu-
how he pleas'd of his own, and an Obligation in liar to Men of that Rank : but the State it felf
all other Maſters. to abſtain from his Poffeffions. they only denote indire&tly and by the Bye, and
1, 2.com
, (a) Sozom. I. 2. c. 17. Add the Argument of the Biſhops of Minorca in the Council of Trent, by Father Paul, B. 2. concerning
the Intention of the Miniſter in the Celebration of the Sacrament. (6) Sueton. Calig. c. 55. (c) See Tiberius's Speech in
Tacitus, An. IV. (d) The different Diſtinations of Things with reference to Law, will be explain’d in the 4th aid sth Books.
Bet tons.
a Mr. Barb. NOTES.stiges
(1) The greateſt Number of Learned Men reject this Story, becauſe (as they prove) 8. Athanaſius was Eighteen Years old,
when this pretended Baptiſm was adminiſtred. See the Life of this Father written by the Benediktines, but it is ſufficient for
our Author's Deſign, thar the Fact was poſſible.
(2) A witty Speech of Antiſthenes deſerves our Notice in this place. He adviſed the Athenians upon a certain time, to decree,
that hereafter Alles Mould be called Horſes. Some preſent replied in Banter, That can't be. But Gentlemen (fays he ) you
can chooſe for your Generals Men that know nothing of Warlike Affairs, and whoſe Qualifications conſiſt only in having a
greater Number of Voices, Diog. Laert. Lib. VI. S. 8. Edit. Amſt. 110505 A me to
(3) The different Diſtinctions of Things in relation to Right, ſhall be explain’d in Lib. IV. and V. See the Inſtit, l. 2. Tit. I.
G Digeſt, 1: 1.
Tit. 8. de rerum Divifione, as alſo Mr. Daumat's Civil Laws in their natural Order in the Preliminaries, Tit. 3.
(4) Modi affe&ivi. Words hard to be tranſlated: The French renders them, Simple Modes; becauſe, as our Author explains
them, they only modify, i. e. difpofe Moral Perſons.
dono 20131002 to pigalle 9i w How Do 104109
(5) Internal Qualities are ſuch, as are really inherent in a Perſon, as Power, Right, Obligation; as alfo fuch Paſſive Qualities
of which our Author treats in . 20. following. It were to be wiſhed, that our Author had been clearer in his Diviſions, which
are not very Scholar-like.
ca
(6) External Qualities are ſuch, as are not annexed to the Perſon, but being fixed to External Objects, make an Impreſſion
upon the Perſon. See $. 21. following.
(7) Vit. Theſe derivative Qualities are nothing but the Efect and actual Operation of the primitive Qualities. In a word,
pur Author ought to have avoided all this Jargon and uuprofitable Diftinctions of the Schools.
that

Chap. 1. Of the Origine and the Variety of Moral Entities. II
that either more clearly, or more obſcurely, ac- convenient for the preſent Condition of their Afs
cording as ſuch a Title is uſually attributed to fairs to flatter and careſs, or to deſpiſe and vilify
fewer, or to more States. Of this kind are thoſe them. And even in the latter fort of Titles, as we
Honorary Epithets, commonly prefixed to the above divided them, it frequently falls out that the
Names of Great Perſons, as Marks of General Re- Title may continue, tho' the Thing itſelf, or the
ſpect: as, the most Serene, the moſt Eminent, the Dignity and Right be in a high manner either bet-
molt Illuſtrious: the lignification of which riſes higher, ter’d or impair'd. And farther, 'tis very uſual, chac
or falls lower, according to the Condition of the in different Countries the fame Word ſhall expreſs
Subſtantive to which they are joyn'd. Other Ti- very different Degrees of Honour. And therefore
tles directly ſigrifie ſome particular State, or ſome it would argue a very unskilful Head, to place in the
peculiar Seat and Place in a State, but indirectly de- fame Claſs all thoſe who bear the fame Title all over
note that degree of Value and Repute which uſu- the World (2). It muſt not be forgot, that ſome-
ally accompanies ſuch a State: as are the Names times a bare Title is atcributed to a Man without the
of Moral Perſons, of thoſe eſpecially who fill any Thing, or without the Offices and the Profits which
Poft of Honour. Now theſe Titles are not con- uſed to attend ſuch a Title; only to this intent, that
fider’d, as they are only Notions repreſenting he may hence obtain the external Enſigns and Bad-
to one Man's Underſtanding the State and Office ges of the Honour, and may acquire a more crea
of another, but as by virtue of human Impoſition ditable Place and Seat in the Community of which
they declare the Power and Authority of the Per- he is a Member, Laſtly, It is worth remarking,
fon that enjoys them. So that 'tis not a vain Con- that chiefly in the Titles of the principal Houſes of
tention about empty Ceremonies, when Men fre- Europe, the fame Title fometimes imports both the
quently have ſuch hot Diſputes and Quarrels a- Family, and the Poffeffion of the mention'd Ter-
bout Titles: becauſe upon the denial of a Title, ritory; ſometimes the Family only, without the
we are ſuppos’d at the ſame time to deny the Poffeſion, yet with the Right of fucceeding to it
State, the Office, the Power and the Rights, which according to the due Courſe and Order of Inheri-
bol
ſuch a Title generally expreſſes or includes. But tance.to sonom in
here we muft be ſure to obſerve, that the Impo- 30 XIX. Moral Operative Qualities (3) are either A-
ſition of moſt Titles is not perpetual and uniform ; ative or Paſſive. Of the former the moſt noble
but in different Countries, and in the fame Coun- Species are Power, Right, and Obligation. Power is
try at different times admits of very large Altera- that by which a Man is enabled to do a thing lawfully and
tions. Thus the Titles of the firſt kind which we with a Moral Effects which Effect is, that the Per-
mention'd, (or the Honorary Epithers) made uſe fon exerciſing this Power, ſhall lay an Obligation
of by our Anceſtors, how mean and little do they on others to perform fome certain Buſineſs which
found to the Ears of our own Age: while what he requires, or to admit ſome Action of his as Valid,
was thought heretofore a worthy Mark for the or not to ſtop and hinder it ; or that he ſhall con-
Greateſt of Mortal Men, ſhall now be deſpis’d by fer on others a Licence of doing or poſſeſſing fome-
an Inferior Scribler? For which reaſon the increaſe thing, which Licence they did not before enjoy.
of ſuch Titles does not always argue the increaſe of Whence appears how wide this Quality runs, and
Dignity; but when the Titles (well higher, while how very diffuſive it is of it felf. Power, with re-
the thing itſelf maintains its firſt condition, their ſpect to its Efficacy, is divided into perfect, and
Value and Price is ſuppoſed to be conſiderably de- imperfect
. The former is that, the Exerciſe of
baſed. Sometimes alſo a certain Title is affix'd by which may be afferred even by Force, againſt thoſe
way of Elogy and Complement to ſome particular who indeavour unlawfully to lett and oppoſe it.
Order, becauſe the quality or thing meant by that Now Force is chiefly applied, within the Bounds
Title, is or ought to be conſpicuous in the genera- of the fame Community, by an Action at Law,
lity of the Members belonging to ſuch an Order and without theſe Bounds by a War. The latter,
And hence thoſe Members, who are not really pof- or imperfe&t Power, is that, the Exerciſe of which,
ſeſs’d of the thing, do however enjoy the Title (1). if any Man is unlawfully prohibited, he may be
Thus in the Order of Men of Letters, many Per- faid indeed to be inhumanly dealt with, yet he
ſons are faluted with the Appellation of most Famous, has no Right to defend it either by Proceſs of a
and most Learned, who are as much any thing elſe Court, or by the Force of Arms, unleſs this (4)
in the World as what thoſe Terms ſignify. And Inefficacy or Imperfection is ſupplied with abſo-
ſo too, an idle unactive Nobleman muſt have In- lute Neceſſity. With reſpect to its Subject, Power
duſtry, and Strength, and Valour applied to him in is further divided into Perſonal and Communicable.
our Addreſſes. It happens likewiſe very common- The former is ſuch as one Man cannot lawfully tranſa
ly, that Private Men, or others, either advance or fer to another. But then this muſt be conſider'd
diminiſh the Titles of Perſons, as they judge it under ſeveral Differences. For ſome Powers are
VI 30.
9. DOST
Mr. Barb. NOTES on s. XVIII, XIX.
(1) Hence it is that Cicero calls Titles of Honour, no certain Marks of Dignity. Lib. X. Epift. ad famil. Ep. 6. and obſerves a
little after, that during the Troubles of the Commonwealth, ſeveral Perſons were honoured with the Titles of Conſuls, who
were altogether unfit for that Dignity, Conſules di&ti, sed nemo in Rempublicam conſularis. See The Art of Thinking, Part II. Ch. VII.
$: 2and The New Letters of Mr. Baile, on the Occaſion of his general Critical Remarks on Maimbourg's Hiſtory of Calviniſm..
Let. IV. S. 348.
animosit yo bem citielloras
(2) Vide Mr. Le Clerc's Ars Crit. Tom. 1. Part II. Selt. I. Cap. 13.
ai 100
(3) We muſt underſtand by theſe Qualities, ſuch as our Author calls Original and Primitive, and in that number thoſe that he
calls Internal. See s. 17. above.
(4) As for Example, if a Man refuſe to let us paſs through his Ground, tho’ we do him no Injury, and we can paſs no other
way, without great and manifeſt Danger, he is guilty of an inhumane Act towards us ; which nevertheleſs does not licenſe us to
offer him any manner of Force; but if a Man finds himfelf'atracked, and can't otherwiſe ſave his Life, as when an Enemy pro-
fecutes us furiouſly, then we may force a Paſſage. Puffend. Elem. Juriſpr. Univerſo R 91. See alſo what he ſays; 1. 2.6.6.
C2
fo
12. Of the Origine and the Variety of Moral Entities. Book 1.

ſo cloſely united with the Perſon, that the Acts how any one acquir'd it. Whereas the Word Righe
belonging to them cannot rightly be exerciſed by does properly and clearly ſhew, that the Quality
Another. Such is the Power of the Husband over was fairly got, and is now fairly poffefs'd. Yet
the Body of his Wife, which no Laws allow him to becauſe the ſeveral kinds of Power have for the
diſcharge by a Deputy. In ſome again, tho' we moſt part a peculiar Name, which * that Quality,
cannot transfer the Poſſeſſion, yet we may by De- by which we conceive ſomething to be due to us,
legacy commit the Acts to the Adminiſtration of wants, we have thought it convenient to give it
others; but in ſuch a manner, that the whole the name of Right in a peculiar manner, tho' we
ſtrength of their Authority muſt be deriv’d from do not in other places abſtain from its more com-
him, in whom thoſe Powers are originally ſeated, mon fignification, as may be obſerved in the fol-
Of this kind is the Power of ſuch Kings as are con- lowing Parts of this Diſcourſe. We place Right in
ſtituted by the Will of the People. For they can- the Claſs of Aktive Qualities, as by virtue of it any
not transfer the Right of Reigning to Another, thing may be requir'd of Others. It may
likewiſe
and yet they may uſe the Service of Miniſters for be rank'd in the number of Paſſive Qualities, as it
the Performance of the Aets belonging to that impowers us lawfully to receive any ching from
Right. Communicable Power is ſuch as may be law. Others. For Moral Paſſive Qualities are thoſe by
fully devolv'd upon Others ; and that either at which we are ſaid to do or ſuffer fomewhat, or to
the Pleaſure of the Perſon ſo devolving it, or by admit and receive it. Of theſe there be three Kinds.
the Authority or the Conſent of a Superior (1). One according to which we rightly indeed admit
Laſtly, In reſpect of the Objects, the Generality ſomething, but in ſuch manner, that neither we
of Powers may be reduced to four Heads. For ourſelves have any Power of exacting it, nor others
they regard either Perſons or Things; and both theſe any Obligation to give it: Such is the Ability of
as they are either our own, or other Mens. A Power receiving a Gift purely under the notion of a Ġra-
over our own Perſons and Adions is called Liberty, tuity. And that this Quality is not meer Fancy and
(2) the different Acceptations of which Word ſhall Fiction is evident from this one Conſideracion, that
be hereafter diſcuſs’d. This muſt not be conceiv'd it may be reſtrain’d by a Law: A Judge, for Ex-
as a diſtinct Principle from him who enjoys it, or ample, may be debarr'd the Liberty of taking a
as an Authority (3) of conſtraining himſelf to any Gift from Parties engag’d in a Suit, under what
thing which is oppos'd by his Inclinations (a): But Colour or Pretence foever. A fecond Species is
as a Licence to diſpoſe of himſelf and of his Acti- ſuch as puts us in a Capacity of receiving fome-
ons, according to his free Pleaſure ; which at the thing from Another, not ſo, that we can force it
ſame time includes a Negation of any Impediment, from him againſt his Will, unleſs in Caſes of Ne-
proceeding from a ſuperior Power. A Power over ceſſity; yet ſo, that he is oblig'd by ſome Moral
our own Things or Goods, is called (4) Property, Vertue to pay or perform it. This (b) Grotius calls
A Power over the Perſons of other Men is properly (8) Aptitude or Defert. The third Species is that
Empire or Command(). A Power over other Mens by which we are enabled to compel another to
Things, is what the Civilians term Service.
fome Performance even againſt his Will, to which
XX. Right is that Moral Quality by which we juftly Performance he is likewiſe fully oblig'd by the
obtain either the Government of Perſons, or the poſſeſſion Force of ſome Law ordaining a Penalty upon his
of Things, or by the Force of which we may claim fome Default. Here 'tis worth our remembring, that
what as due to us. The Latin Word Jus is a very many Things in common reckoning paſs under the
wide and ambiguous Term : beſides the ſignificati- Notion of Rights, which if we would ſpeak ac-
on here uſed, it is taken for Law, and for (6) a Sy- curately, we fhould rather call Compoſitions,
item
or Body of Municipal Laws or Conſtitutions, made up of Power and Right in the ftria Senſe
and likewiſe for a (7) Sentence pronounc'd by a of thoſe Words : At the ſame Time involving, or
Judge. There ſeems to be this difference between ſuppoſing, ſome Obligation, fome Honour, or the
the Terms of Power and Right, that the firſt does like. Thus the Right or Priviledge of being a
more exprefly import the Preſence of the ſaid Qua- Citizen, contains both the Power of exerciſing
lity, and does but obſcurely denote the manner with full Vertue all Acts peculiar to the Members
fino
1100
(a) Vide L. 51, D. de Recept. L. 13. D. ad L. Aquil. (6) De Jure B. & P. l. 1. c. 1. §. 7.
-Oos
Mr. Barb. NOTES.
(1) Such was, among the Romans, the paternal Power, which a Father hach obtained by Adopting a Son; for there muſt alſo
be beſides, a transferring of the Paternal Authority, confirmed by the People, Magiſtrate, or Prince. See Aul. Gel. Lib. V.
Ch. XIX. and the Titles De Adoptionibus, in the Digeſts, and Inſtitutes.
(2) See Chap. IV. of this Book, S. 2, 3. and Lib. IV. Ch. I.
Todo
(3) Neque autem imperare ſibi, neque ſe prohibere quiſquam poteft, i. e. No Man can command or forbid himſelf. Digeſt. Lib. IV.
Tit. 8. De Receptis, qui arbitrium, doc. Leg. 51. See alſo Lib. IX. Tit. 2. ad Leg. Aquil. Leg. 13.
(4) See Lib. IV. Ch. IV.
(5) This Command or Authority is divided into, I. Abfolute, 2. Limited, ſee Lib. VII. Ch. 6. As alſo into, 1. Private,
2. Publick. The firſt is, that with which Private Perſons are inveſted for the Management of their private Concerns, as ſuch to
which may be referred the Authority of Parents over their Children ; of Maſters over their Slaves, or Servants; of an Hui.
band over his Wife; of a Schoolmaſter over his Scholars; of a Tutor over his Pupils, &c. The other is that which Publick
Perſons are endowed with as ſuch, for the Advantage of the Civil Society. Puffend. Elem. Juriſpr. Univ. p. 93, 94.
(6) Thus the Collection made by the Command of Juſtinian, is called the Civil, or Roman Law; and in the ſame Senſe this
Book is entitled; The Right of Nature and Nations.
(7) This is only proper in Latin. See Digeſt, L. I. Tit. 1. de Juſtitia do Jure Leg. 11.
* This relates to what the Interpreters of the Roman Law call, jus ad Rem, or, a Right to a Thing. See what is ſaid Lib. IV.
Ch. IX. §. 8. Note 2. Vlpian the Lawyer, as Mr. Hirtius thinks, calls it, jus crediti; i.e. a ſort of active Debt. Digeſt. l. 4.
tit. 2. Quod metûs caufd, doc. Leg. 1 2. Par. 1. See Lib. L. Tit. 16. De verborum ſiguificat. Leg. 19, &c. And what is ſaid
Lib. V. Ch. XI. S. I. Note 4.
(8) See Ch. VIE 9.7. where we ſhall explain the Diſtinction of perfect and imperfet Right
of
Chap. I. Of the Origine and the Variety of Moral Entities13
.

of that City, and alſo a Right of enjoying the Be- culiar Name. Of each Species we ſhall treat in its
nefits proper to it, ſuppoſing in tbe Perſon an Ob- proper place. What we have hitherto inſiſted on
ligation toward the Corporation. So, for Exam- about the Variety and Diſtinction of Moral Entities,
ple, the Honours and Degrees of Learned Men in- may ſeem ſufficient to our preſent Deſign
clude both the Power of performing certain Acti-M. XXIII. We will only add this general Remark,
ons proper to ſuch a Dignity, and the Right of That, as Moral Entities owe their Original to Impo-
ſharing in the Profits of their Order ; to which fition, ſo they draw their continuance and their
Notion there is further added the height of Eſteem Changes from the fame Cauſe, and when that
and Reſpect
, which accompanies their Place and once ceaſes, they immediately vaniſh, juſt as when
Ticle.
we put out the Light the Shadow inſtantly diſap-
XXI. An Obligation is that by which a Man is pears. Thoſe which are made by Divine Impoſition
bound under a Moral Neceflity to perform, or ad- are not diſſolv'd but by the Divine Pleaſure. Thoſe
mit, or undergo any thing. The ſeveral kinds of Ob- which are fram'd at the Will of Men, are deſtroy'd
ligations † will be hereafter inſiſted on at large a). by the fame Power, without the leaft Alteracion
There are alſo a ſort of (1) Moral Patible Quali- in the Perſons or Things, as to their Natural Sub-
ties, which are conceiv'd to affe&t the Underſtand- ftance. For tho'it implies a Contradiction in the
ings of Men in ſome certain manner : as in Natu- Nature of Things, that what has been done alrea-
ral Qualities, thoſe have obtain'd the name of Patie dy ſhould be made not to have been done ; as that
ble which affect the Faculty of Senſation. Of this a Man, who has been Conful, ſhould not have been
Order are Honour, Ignominy, Authority, Gravity, Conſul; yet we find every Day how eaſy 'cis to
Fame, Obſcurity, and the like.
caufe a Man not to be for the future, what he has
XXII. It remains that we ſubjoin ſomething a- already been : and we ſee at the ſame time all the
bout the Modes of Eſtimation, or the Moral Quantities. Moral Entities that inher'd in ſuch a Man, entirely
For 'tis evident in common Life, that Perſons and defac’d, and leaving no real Footſteps behind.
Things are rared, not only according to the Ex- For 'tis impoflible that a Moral Entity ſhould ever
tenſion of their Natural Subſtance, or according to grow up to the Strength and Force of a Natural
the Intenſeneſs of their Motion, and their other Quality. Whence 'tis a very weak thing to be-
Natural Qualities, conſidered as they flow from the lieve, that, when a Man is conſtituted ſuch or
Principles of their Effence; but likewiſe accord- ſuch a Perſon, an Indelible Character is imprinted
ing to another kind of Quantity different both on him barely by vertue of that Moral Impoſition.
from Phyſical and Mathematical : and this Quan- For thus, when a Commoner is created a Noble-
tity ariſes from the Impoſition and Determination man, he only acquires new Right, but does not at
of a Rational Power. Now Moral Quantity is met all change his Subſtance, or the Qualities founded
with firſt in Things, where it is called Price; ſecond- in it: And if a Nobleman be degraded, he only
Iy in Perſons, where we term it Eſteem; both which forfeits the Rights of his Order, but the Benefits
were included in the Notion of Value; and thirdly he holds from Nature, remain perfect and unim-
in Aktions, where it has not yet acquired (2) a pe- pair'd (3). Shu ulo
More
diumo
Son GOGO
(a) Vide, 1. 3.6.4.
to rosa, lodgid sa svima
Mr. Barb. NOTES.
See Ch. VI. S. 5. of this Book, and lib. 3. C. 4.
not be used on 11 bars
(1) Our Author calls theſe External Operative Qualities, $i 17. above, and the French tranſlates them, Moral Senſible
Qualities.
somoto
(2) Vide, For the firſt, I. s. c. 1. For the ſecond, l. 8. c. 4. For the third, l. 1. c. 8.
(3) The proper and real Foundations of Honour lofe nothing of their Value, although Men are ſtript of their Titles. Des
metrius Phalareus lively exprefles this Macter, as he is quoted by Mr. Hirtius, when it was told that Philoſopher, That the A-
thenians had thrown down his Statues ; Well, ſaid he, but they cannot overtårn that Virtue for the Sake of which they were ere&ted,
Diog, Laert. Lib. 5. §. 82. See other Examples concerning the Manner how Moral Entities are deſtroyed, in the laſt Chapter of
this Book, ş. 6.0
Rodos
e motorno ad to on doit
ud
5 90 de yd 10 bits
bio
pie
аз Сн Ар
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dostane
நாம மாமி மாய்
o moto
9117
porto con i EM TO
worlab boothum odisert
14
Book I.
Of the Certainty of Moral Science.
CHA P. II.
Of the Certainty of MORAL SCIENCE. O dabei de buna
doidy 03
11077
The Contents of every Paragraph of the ſecond Chapter.
ſecond Chapter. doiron
I. Moſt Men deny that there is a demonſtrative Cor- | VL. Whether any Thing be good or bad before any Inſti-
tainty in Moral Sciences.
tution.
II. What is a Demonſtration. dove son
VIL Whether Shame be a Proof of it.
III. The Principles of a Demonftration. ichibion VIII. Of the Extent of Moral Ačtions as to the Quality.
IV. Demonftration agrees to that Moral Science only, IX. Grotius's Opinion conſidered. pasion
that treats of the Goodneſs or Evil of Man's Aktions
. I X. In Moral Quantities there is a Latitude.
V. The Uncertainty of Moral Things is objected. S. XI. What is called Morally Certain.al
IT T has been an eſtabliſh'd Perſwafion among the and under a kind of Shadow and Figure. It becomes a
generality of Learned Men, that Moral Know- Man well Inſtituted to require ſuch proof and ſuch expli-
ledge is deſtitute of that Certainty which is ſo fa- cation of any matter, as the nature of the thing will bear.
mous in other Parts of Philoſophy, and eſpecially For it ſeems equally abſurd, to demend Demonſtrations
in the Mathematicks (1). The foundation of their from an Orator, and to let a Mathematician ſatisfy us
Notion is this : they take Morality to be incapable with Probabilities (3). We, for our part, as we are
of Demonſtration, from whence only true Science, not at all influenc'd by the Name of a ſingle Philo-
and free from the fear of Error, can proceed, but fopher; ſo we intend to enquire what Anſwers are
imagine that all its evidence riſes no higher than a to be return'd to the Principal Arguments urg'd by
Probable Opinion. An unhappineſs that has been him, and others, ſo ſoon as we ſhall have premis d
prodigiouſly Injurious to the moſt noble Diſci- a word or two concerning the nature of Demonſtra-
plines, and the moſt neceſſary to Humane Life. tion in general.
For hence it came to paſs, that Men of Wiſdom Il. To demonſtrate then, as we apprehend it, is
and Parts were afraid of ſpending too much labour Syllogiſtically to deduce the neceſſary certainty of
in cultivating Notions which depended on ſo weak any Matter propos’d from ſuch Principles, as being
a bottom. And the ſame Principle furniſh'd thoſe its Cauſes, muſt needs make it known beyond
who were intirely idle and negligent about theſe doubt and diſpute. Now tho’’tis manifeſt that
Studies, with a fair excuſe; while they might al- there is ſuch a thing as we here define, and we ſee
ledge, that there was no firm and demonſtrative Inſtances of it every day in Mathematical Opera-
aſſurance to be had in ſuch Diſquiſitions, but that tions, to which no Man in his Wits ever denied
they could only be profecuted in a rude and unac the Art and Power of Demonſtrating ; yer from
curate manner. To which Ariſtotle contributed the falſe Expoſition of two or three Words, it has
not a little, who in the common Judgment of the happen'd that the greateſt number of Philoſophers
World, has arriv'd at the higheſt pitch of Moral have committed a wretched overſight in the Point,
Attainments, and left no farther field for the face and have raſhly excluded this noble way of Proof
ceeding Induſtry and Wit of Men. Ariſtotle then, from many parts of Knowledge, which had a juſt
as to the truth of Ethicks, in his Treatiſe on that Title to its Poffeſſion. The chief occaſion of the
Subject, addreſs’d to Nicomachin (a), delivers him Error was this : They found it laid down for a
ſelf in the following Propofitions : It must not be Rule, that the Subje&t of a Demonſtration ought to
expected, that all kinds of things ſhould be explain'd with be neceſſary, which they interpreted, as if in a de.
the same accuracy
. Honeſty and Juſtice, which fell un- monftrative Syllogiſm the subject of the Concluſion,
der the confiderction of (2) Civil Knowledge, have ſo to which the Predicate was applied, ought always
many different Faces, and are liable to ſo many Miſtakes, to be a thing neceſſarily exiſtent ; as for example, in
that they ſeem to be only inſtituted by Law, and not ori- that thread-bare Inſtance, Man is rational, therefore
ginally decreed by Nature. We ſhall therefore think it riſible, the Subject of the Demonſtration is Man,
ſufficient, when we diſcourſe on ſuch Heads, or when we who muſt be own’d for a Necefl'ary Being (4). But
argue from them, to ſhew the Truth in a ruder manner, in reality the Subje&t of Demonftration is not any

(«) Vil. Lib. I. cap. 1.
Mr. Barb. NOTES.
(1) If we would know the Reaſons, why it is falſely believed, that all demonftrative Knowledge borders upon Mathematical
Quantity, we need read nothing but Mr. Lock's excellent Work of human Underſtanding, 1. 4. c. 2. S. 9, 10, doc. and
Chap. 3. S. 19, 20.
(2) Ariſtotle underſtands not by this, the Art of Government fimply, but the Knowledge of Morality, and the Condition of
a Citizen, of whatever Degree he is. This very Word among the Greeks includes ſometimes all practical Sciences, as Oeconomicks,
Rherorick, doc. See Mr. Hirtius's Introdu&t. Element. Prud. Civil. S. 8.
(3) Theſe Words appeared fo plain to Mr. Budsus, that he was wholly of Opinion that Ariſtotle's Judgment about the Ori-
ginal of Juftice and Honeſty was the ſame as Epicurus’s. See his Diſcourſe of Moral Scepticiſm, printed with his Anale&ta of Hiſt.
Philof. in 1705. S. 12. However, Mr. Hirtius in his Notes upon that place, pretends to excuſe Ariſtotle, by ſaying, That lie
wrote for ſuch of his Scholars, as, according to the Cuſtom of thoſe Times, applyed themſelves cloſe to Mathematicks, and
on that Account fancied that they found Geometrical Demonſtrations every where. Hereupon he quotes a Paſſage in his "Meta-
phyficks, where he ſays, That we muſt not expect a Mathematical Exactneſs in all ſorts of Subjects, no cempo Bonozidev pia binuciler'w,
1ib. 2. c. ult. and refers us to Rachelius's Introduction to the Philoſophy of Ariſtotle, Ch. 12.
(4) He does not mean that Man has ſuch an Exiſtence that he can't but exiſt ; for that's the Property of God only. The
Exiſtence of Man then, is no otherwiſe necefiary, than as God has determined to ſend him into the World, and that being
ſuppoſed, he muſt exiſt till God deſtroys him.
one
CHAP II. Of the Certainty of Moral Science.
15

one fingle Term, but ſome entire Propoſition, the poſition to be demonſtrated, till we arrive at the
neceffary Truth of which is from ſettled Principles firſt Principle, on which it depends. For they are
fyllogiſtically inferr’d.
Where ic ſignifies little, not the only Matters of Reaſoning, who are ſo
whether or no the Subject of this demonftrable Pro- very quick and expert at their quicquid, their atgui,
poſition neceſſarily exiſt
, but’tis ſufficient, if grant- and their ergo ; but thoſe alſo, who beginning at
ing its Exiſtence ſuch certain Affe&ioris neceſſarily evident Principles, underſtand how to frame an
agree to it, and if it can be made out, that they do Argument by a juſt Train of neceſſary Conſequen-
thus agree to it, by undoubted Principles. Thus ces. Another Requiſite in ſuch Propofitions is,
a Mathematician never troubles himſelf to enquire that they be immediate (3), that is, that they flow
whether a Triangle be neceſſary or contingent, ſo long immediately from one another, without any Gap
as he can demonſtrate all the Angles of it to be or Interruption. For a demonſtrative Argument
equal to two Right ones. And therefore the Sub- jould be work'd up in the manner of a Chain,
ject of Demonſtration is only call'd neceſſary upon the Propoſitions being knit within one another,
account of the neceſſary Connexion by which the like ſo many Rings, ſo chat if any one Link breaks,
Predicate cleaves to it in Concluſions of that Na or proves deficient, the whole Frame muſt diffolve
ture (1).
and fall in pieces. Laſtly, 'tis neceſſary that the
III. But what kind of Propoſitions thoſe ought Propoſitions in Demonſtration be the cauſes of the
to be which we are to uſe in Demonſtration, will Concluſion, as containing the Reaſon why in ſuch a
appear from the Conſideration of its End and Effect. Concluſion the Predicate neceſſarily agrees to the
That then, which we require by Demonſtration is Subject (4).
bolo
Science, or a clear and certain Knowledge, every way, ſy. This being premis'd, it is farther obſervable,
and at all times conſtant to itſelf, and plac'd beyond the that tho'tis a Thing common to all Moral Diſci-
Fear of Miſtake. What we have Science pline not to take up with a bare Theory, but to paſs
* Eth. Nicom. of (ſays * Ariſtotle) we imagine under an into Uſe and Practice, yet there is a vaſt Diffe-
Impoſſibility of being otherwiſe.
rence to be diſcover'd between the two Principal
Therefore 'tis neceſſary the Propoſitions ſhould of them; of which one is concern'd about the
be true (2) really and abſolutely, and not upon Con- Rectitude of Human Adions in order to Laws;
the
ceffion or Suppofiiion. For tho' from a Suppoſition other about the dextrous Government of our own,
laid down, a long Chain of Concluſions may be and of other Mens Actions, for the Security and
drawn; yet 'tis impoſſible that, being deriv'd from the Benefit of ourſelves, and more eſpecially of the
a precarious Principle, the Streams Thould not re- Publick. For this latcer Part of Ethicks ought to
liſh of the Fountain. And tho' we ſhould make be rank'd under the Name of Prudence, which Ari-
the two moſt contradictory Suppoſitions in Nature, ſtotle ('s) defines; A Habit, ačtive according to Reaſon,
one of which muft of neceſſity be true; yet we about the Good and Evil that can happen to a Man.
can by this means only prove for certain id ori, Whence he thus ſettles the Duty of a prudent Per-
as the Logicians call it, or that the Matter is really fon : It ſeems to me to be the Property of a Man of Pru-
fo: for tỏ són, or the Reaſon why it is fo, requires, dence, to take right Conſultations about thoſe Things
as an indiſpenſable Condition, the Firmneſs of the which are good for him, and of univerſal Uſe in well
precedent Hypotheſis. The Propofitions of De- living. And theſe Opinions he builds upon Axi-
monftration muſt likewiſe be the first and the oms drawn from the accurate Obſervation and
higheſt that can be, ſo as to want no farther Proof, Compariſon of Human Manners and Events. Buc
but to deſerve Credit upon their own Evidence; or thoſe Axioms do not appear ſo very firm and evi-
however, ſo as at laſt to be reducible to ſome first dent, as to be the Ground of infallible Demonſtra-
Truth. For as ſome Propoſitions are placéd at a tion, as well upon account of the wonderful Frail-
leſs, and ſome at a greater Diſtance from the firſt neſs and Inconftancy that occurrs in the Wits and
Principles; fo we muſt not imagine that every Tempers of Men, as becauſe the Events of Affairs
Demonſtration can be finiſh'd in a ſingle Syllogiſm, are frequently turn'd in a little Moment, and dri-
but we muſt carry on the Argument from the Pro- ven to a Reſult quite contrary to our Intentions
1.6.c. 3:

Mr. Barb. NOTES.
(1) So that though the Actions of Men and all other Moral Entities not neceffarily exiſt, but depend upon the free Deter-
mination of our Underſtanding, yet if we ſuppoſe certain Relations between Deeds which are actually produced, or may
exiſt, and a Rule with which we may compare them, fome Right and obligation will as neceſſarily follow from thence, as
ſuppouug a Triangle, it follows, that its three Angles are equal to two Right. Durga
(2) Our Author argues here upon the Principles of Ariſtotle, whoſe Words are, 'AzÓS négw, &c. I call that
ftration, which by Reaſoning produceth Knowledge, as ſoon as we apprehend it. Aud if this be the Way to know, it is a
neceſſary Conſequence, that all demonſtrative Knowledge muſt be deduced from Maxims ſo evidently true, that they enforce
a Concluſion immediately, and ſo are the proper Principles of the Thing to be demonſtrated. Arift
. Analyt. Poft. l. 1. c. 2. D.
If demonſtrative Knowledge be from neceffary Principles, 'cis plain, that all demonftrative Reaſoning muſt be from ſuch,
Ib. Ch. 6.
(3) Every Step or Degree of Inference ought to be known intuitively, i.e. at the firſt View, and of itſelf: viz, we muſt ſee
the Agreement or Diſagreement of the Medium which unites the Terms cogether ; and which intervenes to ſhew the Agreemenc
of the two Extreams at one ſingle View. See Mr. Lock's Eſay of the Human Underſtanding, Lib. 4. c. 2. S. 7,
(4) Our Author might have obſerved here, that all that he was about to ſay of the Nature of a Demonſtration, is explained
more at large in a Latin Boak entitled, Analyſis, &c. An Analyſis of Ariſtotle's Philoſophy, according to the Principles of Euclid.
By Erhard Weigel, Profeſſor of Mathematicks ac Fena. This Perſon firſt encouraged Mr. Puffendorf to undertake this work, and
furniſhed him with ſome Materials for it; as our Author owns in his Preface to his Elements of Juriſp. Vniuers. He adds there
alſo, that no Man of his Nation has ſo well caught the Art of Demonſtration as that Profelſor.
(5) Ariftot. Ethic. ad Nicom. lib. 6. c. 5. Cicero alſo calls Politicks, Prudentia civilis. Partit. Orat. Ch. 22.
and
16
Of the Certainty of Moral Science. Book I.
C
C
Te dy 715 AXÒS, &c. Any Man may affert it as a Probabis he Senfe of ancient Poet, cited by Ariſtotle, Rbetor. lib. 2. c. 24.
and Expectations (a) (1). Nor is Haman Subtlery to produce crue and folid Science. Or, in other
in the Applications of theſe Rules and Maxims words, its Decrees may be in ſuch a manner deriv'd
baffled only by ſuch unlook'd for Accidents and from certain Principles, as to leave no Room, no
Occurrences, but the Divine Wiſdom is pleas'd Excuſe for Doubt (e). Whatever contributes to the
often to interpoſe, and to elude the craftieft Stra- improving of our Vertie, or of our Happineſs,
tågems, and the beſt contriv'd Plots of Mortal Nature hath taken cåre to lay either directly before
Deſigns. And therefore the ableſt Managers of us, or at a very eaſy diſtance for our Search. This
Affairs aſpire not to act always with ſtrict Demon- Affertion will be more clearly made out, if we in
ftration of Succeſs (2), but when they have tapa the firſt place conſider and examine the Arguments
ply'd the moſt fage Circumſpection, and the moſt ufually alledg’d to the contrary. But, by the way,
piercing Forecaſt, they commit the Iffue to Pro- we acknowledge Mr. Hobbes (f) to have been ex-
vidence and Fate. (b) For tho' generally we may treamly miſtaken, when he contends that Ethicks
know what can poſſibly happen, cho' we may com- and Politicks are therefore capable of a Demon-
pare theſe poſſible Events together, tho' we may 'ftration à priori, i.e. by Reaſons drawn from the
determine for certain, not only which of two pol- Nature of the Thing; becauſe we ourſelves are
ſibilities is of greater, and which of lefſer Value, the Authors of the Principles of Juſtice and Inju.
ſuppoſing them now to exiſt; but alſo what Effect ftice, of Right and Wrong, by making thoſe Laws
can proceed from more, what from fewer Cauſes, and Compacts whence the Meaſures of Juſtice
either now in being, or hereafter to be: and tho are to be taken: fince before any ſuch Laws or
we may conclude that Effect, which can be pro Compacts were inſtituted, there was no ſuch
duc'd by moſt Cauſes and Ways, to have the high Thing as Juſtice or Injuſtice, Publick Good orEvil,
eft Degree of Probability, and therefore beſt to de- ' among Men, any inore than among Beaſts? (5)
ferve our Hopes and Expectations (c); yet all Pof- The abſolute Falſeneſs of which Poſition we ſhall
fibilities do not occur to the Mind at all. Times hereafter-(g) have occaſion to demonſtrate; as
land Places ; or, if they do, are not always rightly there is alſo a Fallacy lurking under the word Pub-
weigh’d and conſider’d: and by reaſon of ſtrangelick. til anoishoqeri opis autoritet 97070ta.
and fudden Accidents, which could ſcarcely have --V..To proceed therefore to the Objections :
been foiefeen, many Things which we at firſt Some affirm Moral Things in general to be uncer-
thought to be moſt poſſible, or the moſt likely to tain and unftable; and no Science can be of a
fall out, when we come to the Point, appear quite more firm and ſettled Nature than the Object an
otherwiſe than we before imagin'd them. Hencé bout which it is employ'd. s To which it may be
in Prudential Managements moſt-Men think it anſwer'd, That tho' Moral Entities owe their Ori-
fufficient to follow that Rule of Ariſtotle (d): - We ginal to Impoſition, and therefore cannot be calld
ought no leſs to bearken to the undemonſtrated Declara- Neceffary in an abſolute Senſe; yet they do not
tions and Opinions of Skilfül, of Anciedt, or of Wiſe proceed from ſuch looſe and wandring Principles,
Men, than to Demonſtration itſelf: for ſuch Perfons as that on this account all Knowledge about them
found their ſight of Things on Experience, and ſo look in- ſhould be weak and uncertain. For the very Na-
to the very Principles of action. But let others fight ture of Man, aflign’d him by the Wiſdom and
out this Prize (3) As for the former and more Goodneſs of the Almighty Creator; requir’d the
"noble-Species, which we aflign’d to Moral Diſci- Inftitution of the chief Part of them and theſe at
pline, that which confiders what is Right, and leaft cannot be ſaid to be unſettled and uncertain.
what Wrong in Human A&ions, the beſt Share of This will appear beyond Diſpute, when we come
which (4) will ben illuſtrated in our preſent At to enquire into the Origine of the Law of Nature.
tempt; this is built altogether on fo fure Grounds, Beſides, Human Adions are chiefly on this account
that we thence draw genuine Demonſtrations, able call’d Moral, becauſe they are not neceſsary but free;
-f(a) Tis not barely the Event of Things (fays Fabius in Livy, 1. 22.) which communicates this Knowledges for that is only as the In-
Stru&tor of Fools: but it is the same immutable Reason which
(b) 2 Sam. x. 12
will be for long as the World continues in its preſent Condition,
(C) Vide D. Cumberland de. L. Nat. c. 4. 5. 4. 1. 4. (d) Ethic. 1.6.c.12. (e) Senec. de Benef. 1. 7.6. 7.
De Homine, c. 10. (8) Cap. 7. S. 13. and L. 8. c. 1. S. 5.
Here alſo we may obſerve,
that fome Events are not
, to the
Tax , many .
Di&tion. Tomp. 94
(2) In our
babilities. It is a judicious Maxim of Deſcartes's, and, long before him, laid down by seveca. We muſt not expe&t a certain
Knowledge of the Trátb, sbich ir hard to find out ; but we thuit follow Probabilities
. All our Actions are grounded on this, so we
Reaſon, not Truth leads: If we tarry till we can know
what will happen well, and what is certain Truth, we may fit fill for ever. I will not fear'to follow Probabilities
. Sen. de Be-
nef. Lib. 4. Ch. 33. 3 Arnobius has a like Paffage, in the place where he anſwers the Pagans Objedions againſt the Faith of
Chriſtians.
(3) It is certain, that Politicks, as well as Phyſick is
: a Conje&tural Science, as Mr. Bayle expreſſes himſelf, in his Rep.to the
Queſt. of a Province, Tom. 1. p. 570. But whatever thác famous Philoſopher ſays, who, according to his Cuſtom, pretends to
gather from thence fome Argumenes for Scepticiſm, p. 565. yet if he would ſeriouſly examine true Politicks, he would find
that moſt of its Principles and Maximns have a Certainty in them,
which cotnes very near a Demonſtration ; and as to thoſe
Things which look like Problems, their Obfcurity proceeds rather from the Difficulty of Application, Ignorance of fome Circum-
ſtances, or Want of Atrention, than any abfolute Impoffibility to eſtabliſh a Rule of Certainty upon them. See what Mr. Hir-
tius ſpeaks here, and the Diſcourſe of Mr. Budeus, De Scepticiſmo Morali, s. 6. The Boaſting of the Seepticks proceeds
from the Obſervation of the Behaviour of bad Politicians, and ambitious Sovereigns, and not from the Principles and Maxims
which ariſe from the Natural Deſign of Civil Government, and the publick Good, ſeparate from the private of fome Perſons.
(4) Our Author nevertheleſs explains the fundamental and principal Queſtions of Politicks in the two laft Books of this
(5) For ſome pretend that the Determination of what is morally Good or Evil, depends upon the Will of the Sovereign.
yet

We go,
Work.
CHAP. II. Of the Certainty of Moral Science.
17

a.
on the
with of Sciences Wrirers, that there are ſeveral Things
enctions.
to underſtand what Power any Circumftance has Wifdom thought the Actions of Mankind ſhould
yet from hence it does not follow, that upon the 'tis not worth while for Legiſlators in their written
laying down of certain Principles, ſuch Affections Laws to preſcribe any thing about Caſes that very
may agree to theſe A&tions, as may be undoubted- rarely happen, ſince ſuch may be eaſily determind
ly demonſtrated concerning them. For 'tis evident, by the Judges out of the Principles of the Law.of
that the Ads which fall under the Conduct of the Nature (b).
Law of Nature, do in themſelves contain an in VI. But to make the Knowledge of the Law of
trinſical Force and Power directing towards a So- Nature, of which we are now creacing, and which
cial Life, tho' the actual Exerciſe of them depends includes all Moral and Civil Doctrines that are
,
we are properly ſaid to be free, and the Effects ſay, fully come up to the Meaſure and Perfection
but
Honeſt
)
:
act, the connection between our Actions and the cedent to all' Impoſition, and ſo to make theſe
depending Effects is neceſſary and natural, and things the Object of our Natural and Perpetual
conſequently capable of Demonſtration. Neither Law, in oppoſition to Poſitive Laws, where Mat-
do they argue any thing to the purpoſe, who deny ters are right or wrong, juſt as the Lawgiver was
the poſſibility of palling a clear Judgment on Hu- pleas'a to make them either
. For fince Honeſty
man Deeds, upon account of the great variety of (or Moral Neceflicy) and Turpitude are Affections
Circumſtances, any one of which ſeems to put a of Human Deeds, ariſing from their Agreeableneſs
Face and a new Quality on the Action; of Diſagreeableneſs so a Rule pr Law, and ſince
whence it happens that Legiſlators can feldom a Law is the Command
frame ſuch a Law as ſhall admit of no Excepțion, appear how we can conceive
we can cos ceive any Goodnelis mot
and where there ſhall not be frequent occaſion to Turpitude before all Law, and without the Impos
neglect the Letter of the Statute, and to have re-
(ab
And truly, as for thoſe
courſe to Equity for Relief. Becauſe indeed there who would eitabith an Eternal Rule for Morality
are eſtabliſhựa Principles, by which it may be of the Aations, without reſpect to the Divine In-
fhewn how much Weight and Force any Circum- jun&ion and Conſtitution, the Refüle of their En-
Itance bears in affe&ing or varying any Adion. deavours ſeems to us to be the joining with God
And theſe very Principles are the occaſion, that Almighty ſome Coeval Extrinſical Principle, which
Law-givers are frequently leſs anxious about ex- He was oblig'd to follow, in afligning the Forms
SON
involv'd in extraordinary. Circumſtances (1), but on all hands, that God created Man, as well as
proceed with more Security in the uſe of general every Thing elſe, according to his own Free-will
.
Words. For they take it for granted, that the From whence it evidently follows, that it muſt
Judges whoſe Duty it is to examine particular needs have been his Power and Pleaſure to
Axions the Rule of the Law, will be very able this Creature with whatever kind of Nature his
how then ſhould it
over any Fact (a) (2),
to
inferr’d, that conſtant and perpetual Decrees ſome be vefted with any Affection or Quality proceed.
times fail; bue we ought rather to conclude, that ing from intrinſical and abſolute Neceſſicy, with
new
SSRS
111916
(2) And hence chiefly we are to draw the Reaſon of it, $. 3, 4, 5, 6. de Legib. Laws are to be enacted, as Theophraſtus us’d t?
ſay, with Regard to Things, as they moſt commonly fall,out, not as they ſometimes happen beſide Expectation. , Little particular
Caſes and accidental Exceptions, are not worth the Notice of a Legiſlator. (b) Add. D. Cumberland de L. N. C. 4, §. 4. n. Io
(c) Selden de J. N. d. G. l. 1.C. 4.
SA Pozostom vraldo llow od bigon is sw
31960 also ! Juoniin ev Mr. Barb. NOTES.OM ISTOV1 or 10 ,900915 ibaia bali
(1) By theſe Principles (adds this Author ) the following Maxims of the Roman Lawyers are to be explained. Laws are to
be made (ſays Theophraſtus) about ſuch Things as commonly happen, and not about such things as fall out nexpe&tedly and by Chance :
For what happens once or twice, Lawgivers paſs over. Dig. Lib. 1 Tid. 3. De Legibus, Senatus con tonga Conjuetu.iine,
Leg. 3, i. e. In a Word, Laws are made about Things that commonly happen, and not for extraordinary Cafes, which may
fall out once or twice by Chance. See Ariſtot. Ethic. ad Nicom. Lib. s. Ch.14. and what is: faid Lib. 5. Ch. 12. S. 16 and 21
following. A
.
allows you
sed od zgilan aku
(2) We muſt ovn, that becauſe of this infinite Variety of Circumſtances, we can hardly come to a final Deciſion in our Ex-
amination of all particular Caſes; yer that does not at all ſhake our Moral Certainty, nor leſſen the Uſe of it, for the Impo fi-
,
or ,
duced to the like Nature; fuch an Impoſſibility (I ſay) can't deſtroy thie
Line perfectly
Righe, a fingle Surface exactly round or plain, a ſingle Body compleatly regular, or whatever elfe may be re.
cerning the Meaſure of Lines, Superficies, and Solids. It is ſuficient that they come ſo very near Exactneſs, that nothing
confiderable can be deſired to niake them uſeful to us ; and ſo we may arrive at our Ends as well by the Principles of Morality,
as by thoſe of Geometry. It is true nevertheleſs, that Things Moral, ſuch as God and Man, with their mutual Acts and Relations,
can't be known fo diſtinctly and exactly, as Mathematical Queſtions, and to Moral Conclufions can't
be fo perfectly known. But as
to the Method, Rules of Demonſtration, and inferring one Thing from another, they are all exactly the ſame in Geomerry and
Morality; and there is no more need of an abſolute Exactnefs for the Ufe of Life, than to meaſure the Diſtance of Place or
E xtent of a Field Cumberland. de Legib, Nat. Ch. 4, Š: 48 m. . It is thought neceffarý to gire
, the Reader this Paffage entire,
(3) To remove all Équivocations, and leave no place for Cavil, we ought to obſerve, that we muſt own Things honeſt or
diſhoneſt of themſelves, or in their own Nature, 1. By Way of Oppoſition to Human Appointment, as the Agreements or Opi-
nions of Men. 2. In Reſpect of the Subject, with Relation to which they are thought 1o. As for Example, there are ſome Acts
which
agree to God no way, i.e. which he can't do withouc derogating from his perfections, and fó contradicting himſelf
.
There are Actions alſo, which of themſelves agree or diſagree with the Human Nature in our preſent State. But if we under-
ſtand that an Action is honeſt or diſhoneſt in its own Nature, without any Relation to the Appointment of God, or the Laws
which God hath impoſed upon us by our Creation, in this Senſe the Propofition is falſe. "Specim. Controvers, Ch. 5. §. 7. See
Lib. 2. Ch. 3. S. 4, 5. following:
D
out
18
Of the Certainty of Moral Science. Book I.
.

STO10
ſaid properly to termin'd by no Obligation, be cannot be to be guilty of them, is to commit Sin. But 'tis by no
out regard to the Inſtitution, and to
Inſtitution, and to the good Human Actions is by us maintain's and eſtabliſh'd
Pleaſure of the Creator (1) ? So that in reality all only in reſpect to Morality : For otherwiſe Acti-
the Motions and Actions of Men, upon ſetting ons enjoin'd by the Law of Nature, have from the
aſide all Law both Divine and Human, are per- Determination of the firſt Cauſe a native Force in
fectly indifferent (2): And ſome of them are there- themſelves of producing Effects good and uſeful
fore only ſaid to be naturally Honeft or Diſhoneft, to Mankind; as Adions forbidden by the ſame
becauſe that Condition of Nature, which GOD Law are productive of contrary Effects. But this
has freely beſtow'd on Man, ſtrictly enjoins the Goodneſs and Illneſs which an Action bears natu-
Performance or the Omiſſion of them (3). Not rally and of itſelf, can never conſtitute any new
that any Morality inheres of itſelf
, and without all thing in Morals which are quite beyond its reach
Law, in the bare Motion, or the meer Applicati- and concern. For there are many things highly
on of Natural Power (a)! And therefore we ſee conducing to the Happineſs and Advantage of a
Beaſts every Day doing ſuch things without Fault Man (s) which are not morally Good, as neither
or Sin, in committing which Man would have being Voluntary Deeds, nor Performances of any
been guilty of the higheſt Wickedneſs. Yet are Law (b); and many Actions which contriture to
not the Natural Motions of Men and of Beaſts
in Human Welfare, do in the ſame manner promote
themſelves different, but ſome Adions of Men are the Benefit of Beaſts, in whom certainly they can-
by the Authority of a Law inveſted with a a Moral not bear any Moral Quality. Thus the abſtaining
Quality, which does not at all touch or affect the from mutual Hure, the moderate uſe of Meat and
Proccedings of Brutes.
Drink, the Care of Progeny or Off-ſpring, are
Nor will it be to the purpoſe for any one to ob- equally ſerviceable in the Preſervation of Rational
je&, that ſince Men are indu’d'with Reaſon, which and of Irrational Kinds ; and yér Beaſts are never
is wanting in Beaſts, therefore there muſt be a faid to perform Actions morally Good (C). So tho
Natural Difference between Human and Brutal all Human Actions falling under the Guidance of
Actions. For if we conſider Reaſon, as uninform’d the Law of Nature, may be finally reſolv'd into
with the Knowledge and Senſe of Law, or of that natural Strength and Force which they bear
ſoine Moral Rule, it might perhaps even in this in advancing the Profit or the Harm of Men (6),
Condition, furniſh Man with the Faculty of a&ing conſider'd either in a ſingle or in an united State;
more Expeditiouſly and more Accurately than yet it does not follow on the other hand, that
Beaſts, and might allift the
Natural Powers by an whatever Thing is indu'd with a Natural Power of
additional Shrewdneſs or Subtlety. But that it doing Good or Harm to any Species of Animals,
ſhould be able to diſcover any Morality in Human is therefore the Object of the ſame Law.
Actions, without reflecting on ſome Law, is equal Another Objection againſt the Doctrines we are
ly impoſſible as that a Man born Blind ſhould make now eftabliſhing, is taken from that Paſſage in
a Judgment on the diſtinction of Colours (4), Ariſtotle's Ethicks (7): Every Action and
Another Argument in favour of our Opinion is fečtion does not admit a Mediocrity: For there are ſome
fuggeſted by Ofiander, in his Notes on Grotius, de Affections which involve a kind of Pravity in their very
Jure Belli & Pacis, p. 60. If (ſays he) there were any Name, as Malice, Impudence, and Envy,
Such Thing as Moral Good or Evil before all Law, how rexice, or Rejoicing af another Man's Misfortune
, and
could there be any Obligation to make ſuch a difference in likewiſe fome Actions, as Adultery, Theft, and Murder
.
our Actions, ſince all Obligation proceeds from the Com- Now theſe and the like being Evil direčtly and in their
mand of a Superior ? For Moral Good or Evil involve a own Natures, are not called Vices with relation to any
Reſpect to a Perſon acting either of thoſe ways ; and if Exceſs or Defeet ; for abſolutely, and without any degrees
that perſon be ,
means a good Conſequence, that becauſe we have
But here we deſire it ſhould be well obſerv'd, fome Names of Actions or Affections, which of
That this Indifference of the Natural Motion in themſelves, and without any Exceſs or Defect,
timolano Tortugu: 255 deran atera
is
(a) Plato in Sympoſ. This is the Nature of every Action, to be in itſelf neither good nor vicious; as what we are now doing, Drink-
ing, Singing, Arguing. Neither of theſe, conſider'd by it felf, honeſt or diſhonest ; but the manner of performing it gives every A&tion
its proper Denomination. For what is done right, we call good, and what is done wrong, evil or indecent. The ſame Rule the Philo
Jopher afterwards applies to Love. (6) Such are a quick Apprehenſion, Knowledge, Memory, &c. (c) Add. D. Cumberland
de L. N. c. S. $. 9.0 fons
Mr. Barb. NOTES.
(1) See Note 4. upon Ch. 1. $.4.
(2) This will appear more plain from this Confideration : There are ſome Actions, in which the Phyſical Motion is entirely
the ſame, but the Morality is very different ; the one being accounted good, or at leaſt allowable, the other evil and unlawful.
As for Example ; To kill a Man is a Wickedneſs in a Thief, but a good Action, or at leaſt an allowable one, in an Executioner,
Soldiers, or a Perſon that fights in his own Defence, doc. 1o that the Action in itſelf may be reckoned altogether indifferent.
(3) Plato, in his Treatiſe of Banquets, ſpeaks to the ſame Effect. The Nature of all our Adions is ſuch, that they are nei-
ther honeft nor diſhoneſt in themſelves, as to Drink, Sing, Diſcourſe, and ſuch like Actions, but 'tis the manner of doing that
denominates the Action ; for what we do well,
and according to our Daty, is honeſt, but what
we do ill is diſhoneſt
.
(4) Here we muft diſtinguiſh between ſuch 'Terms and Expreſſions, as denote purely and ſimply the Motion of our natural
Faculties, and theſe Terms and Expreſſions which fignify to us an Action purely Moral, i. e. à Phyſical and Moral Motion. As
for Example : To labour, to kill, to ſpeak, ſignity only certain natural Motions, and thoſe indifferent : But when we ſay,
He laboured to kill his Neighbour, He New an innocent Perſon, when he had no Right to kill, He ſpake ill of his Neighbour,
theſe are bad Actions. And theſe are good ones, or at leaſt allowable ones, To Labour in our Calling, Slay an unjuft Ag-
greffor, Speak fincerely, &c. There are alſo ſome ſimple Terms, which in themſelves contain both a Phyſical Morion and
Morality. As for Example, Adultery, Inceſt, Theft, doc. as our Author fpeaks in his Difert. Academ. p. 733, 734.
(5) Such are (faith Biſhop Cumberland, de Leg. Nat. C. 5. S. 9.) a quickneſs of Wit, Knowledge of ſpeculative Sciences and
divers Arts, an happy Memory, Strength of Body, the Help of ourward Things, loc.
(5) See what our Author writes, Lib. 2. Chap. 3. $. 21,
167) Ethic. ad Nicom, b. 2. c. 6.
and every Aft
ty med omogeneige
CON
tasnya
imply
CHAP. II. Of the Certainty of Moral Science.
19
imply Vice; therefore there are ſome Actions and have without Law; to take away the Life of a
Affections bad in themſelves, without reſpect to Creature of the ſame Species with your ſelf; to
any Law. Becauſe theſe Terms or Names do not take a Thing which another man had de-
fignify bare Natural Motions and Acts, but ſuch fign'd for his Ufe, tho' he had obtain'd no Right
entire Moral Motions and Acts as are repugnant by Law to exclude others from their Share in irs
to ſome Law, and ſo take in and expreſs the whole Poffeffion. And the Reaſon why ſo few Perſons
compaſs of a Moral Deed (1). For why, for Ex- can conceive and apprehend ſuch a natural Indif-
ample, are Envy and its vile Conſequenes, which ference as we are maintaining, is only this, be-
we but now mention'd under the Greek Name of cauſe from our Infancy we are taught to deteſt
imzeeseranid, reputed evil Affections, but becauſe ſuch Practices; and this Abhorrence being im-
the Law of Nature ordains, that a Man ſhould printed on our tender Minds, ſeems to grow into
never be a Stranger to his own Kind, but ſhould a kind of natural Judgment; ſo that it feldoın en-
bear a part in the Pleaſures and in the Sorrows of ters into Mens Heads to diſtinguiſh between the
his Neighbours: to which Rule it is an open Con- Materiality and the Formality of thoſe Actions, or
tradiction, to receive any Joy from
the Calamity between our Performance of them as Natural, and
of others, and to repine at their Happinefs and our Commiſſion of them as Moral Agents (2).
Succefs (a)? And ſo what elſe is Impudence, but Hence it appears that Grotius had not confider'd
a wicked Firmneſs and Hardineſs of Mind in the this Matter throughly (3), when a
(3), when among thoſe
Commiſſion of ſuch Things as the Law bids him Things to which the Power of God himſelf does
be aſham'd of? For not to be aſham’d, or not to not excend, becauſe they involve a manifeſt Con-
bluſh can never be a Fault, when we are not by tradiction, he reckons (b) the malignity of ſome Hu-
fome Law-ſuppos'd and enjoin'd to do otherwiſe. man Actions. Indeed 'tis impoſſible that twice
After the ſame manner, Adultery is the Pollution Two ſhould not make Four, becauſe twice Two
of another Man's Wife, whom the Laws appropri- and Four are really the ſame thing, and only dif-
ate to her Husband. Theft is the taking away of fer in Name, and in our manner of conceiving
another Man's Goods, againſt the Conſent of the them. But the Contradiction which appears in Acti-
Owner, who by the Law is made the fole Diſpoſerons repugnant to Nature's Law, is of a much lower
of them. Murder is the Killing of a Perſon in his Degree, and can never riſe to an abſolute Impoſli-
Innocence, and againſt the Laws. Inceſt is a bility. And upon the ſame account he derives this
Conjunction with ſuch a Perſon as the Laws oblige Malignity from ſuch Actions as compar’d with
us to abſtain from, upon account of the Reverence right Reaſon. For in the very Terms of right
which Men are by Law likewiſe taught to pay to Reaſon, when apply'd to Man, there inheres a
Nearneſs of Blood. And the ſame Judgment is to reſpect to the Law of Sociableneſs enjoind to Hu-
be made of other Vices. But now, if from all man Race by the Creator. Thus at the ſame rate
theſe you take away the Reſpect to the Law, and he alledges (c) for a Proof of the Independency
the Morality inherent in ſuch Actions, the bare of ſome of Nature's Laws, the neceſſary Agreement
natural Fact will involve no Abſurdity or Contra- and Diſagreement of Things to Rational and So-
diction. For in a natural and abſolute Senſe theſe cial Nature. But Man obtain'd a Social Nature
are altogether indifferent Things : to have Con- from the good Pleaſure of GOD ALMIGHTY, not
junction with your neareſt Relation, or with the from any Immutable Neceſſity: and conſequently
ſame Woman who is enjoy'd by another, ſuppo- the Morality of Actions agreeable or diſagreeable
fing he has no peculiar Right to her, as he cannot to him as a Social Creature, muſt be deriv'd from

(a) Add. Stob. Serm. II. (b) De J. B. & P. l. 1. c. 1. ſ. 10. (c) Ibid. f. 12.
Mr. Barb. NOTES.
(1) It is true, that we ſometimes confound the poſitive Idea and phyſical Action with its moral Relation, though they are
really two very diſtinct Things. As for Example, To drink Wine, or any other ſtrong Liquor, till we loſe the Uſe of our Rea-
fon, is that which we call Drunkenneſs; but as that Word imports, in its ordinary Uſe, a moral Turpitude in the Adion con-
trary to a Law, Men are obliged to condemn every Thing that is contrary to that, which we call Drunkenneſs, as an Evil Action,
and contrary to the moral Law; but if a Man happen to have his Brain diſturbed, by drinking a certain Quantity of Wine,
which was preſcribed him as a Medicine for the Recovery of his Health, though we may call ſuch an Action Drunkenneſs, con-
fidering it as a Name of a mixt Nature, yet ’ris plain that if we compare it with the Law of GOD, our ſupream Rule, 'cis
no Sin, nor a Tranfgreffion of that Divine Law, though Drunkenneſs is ordinarily taken in that Senfe. Mr. Locke's Eſſay of the
human Vnderſtanding, Lib. I. Ch. 28. S. 16. There is a great Uſe of this Remark in the Queſtion of Lying, which is treated on
Lib. 4. Ch. I.
(2) Here's a racit Anſwer to an Objection that may be offered. There are ſome Men that have as natural an Abhorrence of
ſome Vices, as others have of Meats. Now ſuch an Horror being a kind of natural Motion, or Paffion, it ſeems that our
Senſe of the Turpitude of ſuch an Action, ought to be looked upon as a natural Quality, and not as a Moral one, reſulting
from the Law of GOD. This Difficulty is ſpecious, and the Author ſeems to give it an Anſwer, which that we may under-
ftand, let us unfold his Words; Cuſtom being a ſecond Nature, as the Proverb is, it happens, that ſome Perſons, of a more ele-
vated Genius, conceive, from their Cradle, ſuch an Horror againſt ſome Vices of a more heinous Nature, that they retain ic
the reſt of their Lives. This ſort of Antipathy proceeds more from a confuſed and indeliberate Thought, than a diſtinct Knowa
ledge and Reaſoning about the Contrariety of thoſe Vices to the Law. As for Example, It is certain, that in the firſt Ages of
the World, Marriages between Brother and Siſter were in Uſe, and authorized by the preſent Diſpoñicion of human Affairs, ſo
that the moſt of our Divines and Lawyers acknowledge the Prohibition of theſe fort of Marriages to be only of politive Right;
nevertheleſs, the Ufage of them being long lince aboliſhed by moſt Nations, Men have entertained fo great an Averfion to
them, not only becauſe they are forbidden by their Laws, but upon the Account of the Impreſſions of their Education, that
they look upon it as a monſtrous Thing for a Brother and Siſter to have a Carnal Love one for anocher. And it ſeems as if
their Senſes were lock'd up in that Reſpect, for we may ſee young Men Converſe all their Days with their Siſters of extraordi.
nary Beauty, and yet be under no Temptation, though very amorous towards others of their Sex. Such as háve tlieſe Impreffi-
ons regard not the Laws, nor the Phyſical Motion of the action, but are ſtrongly perſwaded that they ariſe from a Turpitude
in the Action, as contrary to the Nature of Man, as exceſſive Cold, or Heat, Grief, or other Phyſical Qualities deſtructive to
his Being. Puffend. Letters do Specim. Controv. c. 5. §. 5. See Plato, cited Lib. 2. Ch. 4. S. 3. Not. 4. and Plutarch. de Virtut.
Moral. Tom. 2.
(3) See the Defence of Grotius, Lib. 2. Chap. 3. S. 4. Note s.
the


D 2
20
BOOKI
Of the Certainty of Moral Science.
-

the ſame Original and Spring; and muſt be ac Human Axions of themſelves, and by the Force
tributed to Man, not by an abſolute, but by an of their own Nature, not by the Power of external
hypothetical Neceſſity; or upon ſuppoſal of that Impoſition; for this reaſon, becauſe our very Blood
Condition which God was pleas'd freely to be ſeems to have a natural ſenſe of wicked Deeds,
ftow on Mankind above the Privileges of the In- which it expreſſes by ſpreading a ſudden Redneſs
ferior Creation. Nor can this Opinion of Grotius over the Face, whenfoever we are touch'd either
find any Shelter or Protection in thoſe Places of with the Memory of them, or with the Reproach.
Scripture which he quotes to fhew, that GoD Now they ſay 'tis very improper to attribute a
ALMIGHTY permits Himſelf to be judg’d accor- Natural Effect to a Moral Quality ; but, on the
ding to the Original. Laws, and therefore they contrary, that ſince ſuch a certain Motion of the
muſt be abſolutely Immutable. For without doubt Blood raiſing a Redneſs in the Face, reſults in the
God declar'd to Mankind from the very beginning manner of a Natural Effect from an Ill Action, that
of Things, that He would be a Rewarder of the Illneſs or Pravity muſt likewiſe be applied to the
Good, and an Avenger on the Wicked, Heb. xi. 6. Action as a natural and a neceffary Affe&tion or
and that He would render unto every Man according Quality. In return to which, in the firſt place,
to his Works, Rom. ii. 6. From which Declaration we confeſs that the moſt wiſe Creator has implant-
his Veracity not permitting him to go back, Abra- ed in the Minds of Men the Paſſion of Shame, to
bam had reaſon to make that Appeal which we find ſerve as it were for a Guard and Defence to Ver-
Gen. xviii. 25. Shall not the Judge of all the Earth do tue, and for a Bridle to wicked Deſigns. And it
right (a)? But how does it follow hence, that (1) is likewiſe probable, that unleſs God had deſign'd
Human Actions have any Moral Quality antece-Man for an Agent, who was to frame his Proceed-
dent to the Divine Impoſition. Nor does it ac all ings by a Law, he would never have mingled ſuch
appear how the ſame Concluſion can be drawn a Paſſion in Human Conſtitution, ſince without
from the Fifth Chapter of Iſaiah, where God is that Suppoſition it does not appear to be of any
pleas'd to refer the Cauſe between him and his Vine- uſe at all in the World. But indeed it is no man-
yard, to the Judgment of Iſrael and Judah, and ner of Contradi&ion, that a Moral Quality owing
concludes, that he may lawfully neglect the far- its Original to Inſtitution, ſhould produce in Man,
ther Care and Culture of it, ſince the degenerate (tho' not directly and immediately) a Natural Ef-
Fruit made ſo ill a Return to his Pains. And laſt- fe&. For (3) the Soul being united by the cloſeſt
ly, from that place in the Sixth of Micah, where Ties to the Body, while itſelf apprehends Moral
God is ſaid to have a Controverſy with his people, Concerns, and is affe&ed with them, may at the
and to reaſon with Iſrael, it ſeems to be hinted, that ſame time eaſily raiſe a peculiar Motion in ſome
Men may by their own Judgment underſtand the part of the Body. Beſides, we ought to obſerve,
Equity of returning Thanks for Benefits receiv'd; that Shame does not only ariſe from the Pravity
but we cannot thence infer, that, becauſe Men of Actions, but alſo from any Fact, tho' not mc-
who have a ſenſe of Kindneſs
, are oblig'd to be rally Evil, which we think will leſſen our Cha-
Grateful, therefore this Gratitude is not comman racter and Eſteem. For according to Des Cartes's
ded by any Law, but is of itſelf, before all Law, Definition, it is nothing elſe but a Species of Sorrow,
a neceſſary Duty. From all that we have urg'd founded upon Self-love, and proceeding from a Senſe or
on this Head, it may appear, that the Sentence Fear of Diſgrace (b): Or, as Ariſtotle ſpeaks(c), it is
which is frequently in the Mouths of moft Men, a certain Grief and Confuſion at Things which appear
(2) That the Precepts of Natural Law are of Eternal hurtful to our Reputation. For Man is a moſt ambi-
Verity, is ſo far to be reſtrain'd and limited, that tious Creature, and highly conceited of his own
this Eternity ought to reach no farther than the Excellency, whence he takes an extraordinary
Impoſition and Inſtitution of God ALMIGHTY, Pleaſure, if he can find out any Advantage or
and the Origine of Human Kind. Tho'to ſay Perfection in himſelf, on the Strength of which he
the Truth, the Eternity which we improperly may brag, and ſwell, and carry himſelf above the
attribute to the Laws of Nature, is only to be Dimenſions of his Neighbours
. And whenever
rated in Proportion to the Oppoſition they bear to he apprehends theſe Talents to be the leaſt im-
Poſitive Laws, theſe being fubject to frequent Alte- pair'd, and to weigh lighter in common Account,
rations, while thoſe remain fixt and unchangeable. he immediately conceives the deepeſt Regret in
VII. It may be farther objected, and with ſome his own Mind. Now the Heart, that chief Seat
face of Probability among vulgar Judges, That of Human Excellency, being affected with this
Honeſty and Turpitude muſt needs inhere in fome Paſſion, preſently fends up the Blood to be an
(«) Add. Ezek. xviii. 25. Rom, iii. 6. (6) De Paſſion. Art. 205. (c) Rhetor. I. 2. c. 6. init.
Mr. Barbeyrac's NOTES.
(1) What Grotius infers from hence is no direct conſequence. He alledges theſe Paſſages, to prove, that GOD conſents
that Men may judge (as we may ſay) of his Conduct by the Principles of the Duties he impoſes on them, to which he himſelf
conforms, as much as the great Diſtance between the Creature and Creator will permit. See the Diſcourſe of Mr. Noodt, of the
Power of Sovereigns, with the Note of the French Tranſlator, printed, A. D. 1707.
(2) Thoſe who have firft ſpoken of the Eternity of the Laws of Nature, muft mean it in Oppoſition to the Novelty and
frequent Changes of the Civil Laws ; for they affert only, that natural Light had not its Beginning in the Times of Minos, So-
lon, or Licurgus, bur exiſted before any Civil Society, and is as ancient as Mankind. Further, That this Right is not ſubject
to Change, as Civil Laws are, which are aboliſhed according to the Neceffities of a State, or the Humour of Sovereigns, but
it remains the ſame in all times and Places, and ſhall end only with Mankind. In fine, 'Tis no ways neceſſary to maintain,
that the Law of Nature is Coeternal with GOD; for fince it has no Regard to him, and is only contrived for Men, on whom
it is impoſed; to what Purpoſe is it to fuppofe, that it had a Being before Men? But if we ſay, that he had them from all E-
ternity in his Præſcience, we attribute nothing thereby to the Law of Nature, but what's common to every Thing that exiſts.
Puffend. Apolog. S. 26.
(3) See the Paffage of Plutarch, s. 6. Note 10, and what goes before and follows it.

out-
CHAP. II. Of the Certainty of Moral Science.
21

outward Sign of it in the Face. But becauſe (1) them in itſelf. As for the Goodneſs or Pravity of
Man does not only value himſelf upon account of Actions, as they denote their agreeableneſs or re-
abſtaining from Evil Deeds, but for ſeveral other pugnancy to the Rule of the Law, in this reſpect
Things, which are not endued with any Moral they ſeem capable of no manner of Latitude, but
Quality, if he ſuffer in any of theſe latter Points, he whatever declines from Good muſt immediately be
is equally liable to Shame : Thus we ſee many Per- pronounc'd Evil. Yer under other Conſiderations,
ſons who cannot forbear bluſhing at their Lameneſs, at leaſt with reſpect to Men, they admit of ſome-
or Baldneſs, at a Wen, a Crump-back, or any other thing like Latitude ; Latitude, properly ſpeaking,
Deformity of Body, at ſome particular Diſeaſes, being applicable only to Quantity. And firſt
, be-
ar Poverty, bad Cloaths, at faultleſs Ignorance, cauſe in Laws the Force and Power of obliging
or at harmleſs Miſtake, and at (2) many other Men is not always of the fame Tenour and De-
Things, which are by no means morally Evil (a). gree, but appears more ſtrict in commanding and
And anong Sins, thoſe eſpecially put a Man to forbidding fome Actions, and more looſe about
the Bluſh, which directly argue a Lowneſs and De- others. Whence it comes to paſs, that we are
jection of Mind, and which for that reaſon make forc'd to diſtinguiſh between Law and Equity, or
us appear more contemptible (b); ner has the between what's rigorouſly and exactly juft, and
Fear of this contempt the ſame general Power, (4) what's equal and fair to be done. The diffe-
but only when we are in danger of ſuffering it rence between which Things is this, we lie under
from thoſe Perfons, whoſe Efteem and good Opi- a more neceffary Duty of performing the former,
nion we are particularly covetous of enjoying (b). but the latter engage our Obedience with a gentler
And thoſe deſperate Wretches who have once ſin- Tie, and with an inferior Obligation. Yet theſe
ned themſelves out of all Care of Credit, are not laſt have a wider Object than the firſt; the Offices
afterwards (3) touch'd with the leaſt Bluſh upon of other Vertues being extended much farther than
the Commiſſion of the vileft Wickedneſs (c). thoſe of Juſtice. It happens likewiſe very com-
Whatever we have urg'd againſt the natural, the monly, that among Men, and in Human Courts,
abſolute, and the neceſſary Goodneſs or Pravity ſmaller Deviations from the Law ſcarce fall under
of Human Deeds, does not at all ſeem to rob moral Conſideration or Animadverſion. Many Things
Knowledge of its requiſite Certainty, for this too are ordain'd and commanded in ſo weak and
would remain fixt and unmov'd, tho' the Morality indifferent a manner, that they ſeem to engage
of our A&ions depended entirely on Impofition. Men rather by affecting their Modeſty than their
VIII. But if this Doctrine be true which we have Honeſty: ſo that thoſe who perform them deſerve
aſſerted, what will become of that Moral Latitude, Commendation, thoſe who omit them are not
which is ſo much talk'd of, and ſo frequently op- obnoxious to Reprehenfion. And among theſe
pos'd to Mathematical Striętneſs? Does not that Matters Grotius (à) ſeems to reckon Concubinage,
ſeem to detract ſomewhat from the Certainty Divorce, and Polygamy, before they were forbidden
which we maintain ? This Doubt will be clearly by the Law of God: Theſe ( faith he) are ſuch
folv'd, if it be conſider'd how far we affirm De- Things as Reaſon itſelf tells us it is more honest to abſtain
monſtration to prevail in theſe Notions, and in from; yet not ſo, as that (ſetting aſide the Divine Pre-
what Things this Latitude is to be found. Demon- cept) they include any grievous fault.
ftrations therefore are here chiefly employ'd about But of theſe we ſhall treat in their proper place
Moral Qualities, ſo far as thoſe Qualities appear (e). Hicher likewiſe is to be referr’d that Paſſage
for certain to agree to ſuch Aations or Perſons : of Ariſtotle (f); He that declines but a little from
When we enquire (for example) whether ſuch an right dealing, whether to the exceſs or to the defect, is
Action be juſt or unjuſt, whether ſuch a Right, or not chargʻd with guilt ; but he that tranſgreſſes in a lar-
ſuch an Obligation accrue to ſuch a Perfon, con- ger meaſure, becauſe hus faultineſs diſcovers and betrays
fider'd in general, or as that perſonal Capacity is itſelf by its bulk. It may happen too that a Thing
common to others with him. Now all theſe kinds in itſelf ſhall be unobliging and indifferent, and
of Truths we maintain to be ſo clearly and cer- yet the performance or the omiſſion of it ſhall
tainly deducible from their genuine Principles and either always, or however at ſome (s) certain
Cauſes, that no Man in his right Wits, can enter- Juncture, be more for our Advantage and Uſe.
tain a Doubt concerning them.
And tho' we To this Caſe belong thoſe Paſſages of St. Paul in
ſhould diſcover ſome little Latitude, or ſomething his firſt Epiſtle to the Corinthians, Chap. VI. ver.12.
analogous to Latitude, in the Queſtions ; yet that Chap. VII. ver. 6,7,8,9. Chap. X. ver. 23. And
would not be able to prejudice the Certainty of that Obſervation of Grotius (g), That ſometimes by
(a) Add. Sirac. c. XLII. 9, &c. (6) Vid. Ariſtot. Rhet. I. 2. C. 6. (c) Add. Cartes de Paffion. art. 207.
(d) L. 1. c. 2. f. 6.
(0) L.6.c. 1. (f) Ethic. c. ult. (8) L. 1. C. 1. . 10.
Mr. Barb. NOTES.
(1) So far from that, that we are ſometimes aſhamed that we have done Things that we believe to be good, and not done
Things that are evil. See Plutarch's Treatiſe of Falle Shame, Tom. 2. p. 528.
(2) Seneca in his Letters, Numb. II. proves, that Bluſhing is the Effect of our Temperament, and that diverſe Cauſes produce
it... As for Example, Pompey the Great could not help Bluſhing, when he appeared in a great Aſſembly ; and Fabianus the
Philofopher and Orator bluſhed, when he came but to give an Evidence before the Senate. Seneca ſays it proceeds not from
Weakneſs of Spirit, but from Surprize ; for what a Man is not accuftonied to, diſturbs ſuch as are ſubject to Bluſhing,
(3) Tacitus has a like Remark, Annal. 11. Ch. 26. Ob magnitudinem infamie, doc. The Greatneſs of the Infamy gives Pleaſure
to the Crime, in the Minds of ſuch as have caſt away all senſe of their Honour. Tacit. An. 11. S. 6. which Mr. Hirtius cires.
(4) So that Equity includes not only what is really and fully due to any one, although he cannot require ir of us in Strict-
neſs by any wricten Law, but all that is due to another upon a Principle of Humanity, or Charity, or any other Virtue, which
is ſuch, that if we do not our Duty, he to whom we ought to do it can't complain of 'any Wrong done him; ſo that the Right
from whence this Obligation ariſes, is that which is called by our Author, Imperfect. See chap. 1. §. 19, 20. foregoing, and
ch. 7. $. 7, II, 16. Book 3. ch. 1. §. 3. and ch. 3. S. 16. and ch. 4. 5. 6. Book 8. ch. 1. S. J.
(5) We may add, cr with Relation to certain Perſons. See what I have faid in my Treatiſe, printed in 1709. lib. 3. ch. 6.
22
Of the Certainty of Moral Science.
Book I.

11
we may
a
in Sentence of
an abuſe of Words, thoſe things which Realon shows to on the State. But that the Cauſes of doubting in
be honest, or better than the contrary (1) iho they are ſuch Caſes proceed from the uncertainty of Moral
not enjoin'd, yet fhall be call’d, Dictates or Ordinances of Matters, this we abſolutely deny. The reaſon
the Law of Nature. From all that has been ſaid, why the Demonſtrations in Mathematicks are fo
underſtand whether, and in what manner very accurate, is not the Abſtraction from Matter,
there may be ſaid to be Degrees of Good. If then but another, that we ſhall produce by and by
we conſider Good in a ſtrict Senſe, for a Congru- That in Morals the least Circumſtance alters the Matter,
ity to the Law, 'tis as impoſſible there ſhould be is an ambiguous Expreſſion. If this be the ſenſe
any thing better than what is Good, as that there of it, that the leaſt Circumſtance alters the Qua-
ſhould be any thing ſtraiter than what is properly lity of an Action, that is, turns it from Good to
ſtrait. Yet one Good may be pronounced better Evil, this Variation does not at all injure the Certi-
than another, according to the different Degrees tude of Moral Knowledge. For a Line chat re-
of Neceſſity which are found in both, and upon cedes never fo little from ſtraitneſs, degenerates
account of which, if they cannot be both per- into crookedneſs, and yet no uncertainty ariſes
form’d, one of them manifeſtly gives place to the hence in Geometrical Operations. But if this be
other. To this purpoſe ſee Matth. VIII, 21, 22. the meaning of the place, that the leaſt Circum-
where it was a good Thing to bury a dead Father, ſtance either raiſes or leſſens (3) the Quantity of
but a better to follow our Saviour: Atts VI. 2. an Action ; this, at leaſt in Human regard, is not
where it was a good Thing to miniſter to the Poor, always true; for trifling Accidents and Punctilio's
Point we ſhall be larger hereafter (a). Laſtly, Judge. Yet if we grant this Suppofition, it will
when Actions, in themſelves lawful and indifferent, not in the leaſt diminiſh the Certainty of Mora:
are meaſur'd and rated according to their Uſeful- lity; ſince even in Mathematicks the ſmalleſt Ac-
neſs or Expedience, one of them is declar'd better ceſſion, or the moſt inconſiderable Loſs, varies the
than another, as ić is more advantagious to the Quantity. Lawful or indifferent Things, which
preſent Circumſtance or Occaſion (2)
compoſe the Medium between Commands and
IX. According to our Doctrine already deli- Prohibitions, we have already obſerv'd only in
ver'd, muſt that place of Grotims (b) be explain'd, this reſpect to incline ſometimes more to one hand,
about the Cauſes of Doubt in Moral Actions; ſometimes to the other, as it appears more expedi-
where he ſays, There is not an equal Certainty to be ent and uſeful fometimes to perform them, fome-
met with in Morals and Mathematicks : which therefore times to omit them. Yet even hence nothing of
happens, becauſe Mathematical Sciences treat of Forms, Uncertainty can ariſe, nor is any ſuch Medium
as diſtinct and abſtracted from all ſorts of Matter, and form’d as we can clearly underſtand either to be
becauſe the Forms themſelves are generally ſuch as will Good or Ill. So that thoſe Examples and Inſtances
admit of no Medium, as we can find nothing which is of Twilight and Lukewarm water, are improperly
not either crooked or ſtrait. But in Morals the least applied to the preſent Wafe; they being of that
Circumſtance alters the Matter; and the Forms, of kind of Media we call Media Participationis, as Luke-
mvhich they treat, have commonly ſome intervenient La warm Water partakes of hot and cold together.
titude, by reafon of which they ſometimes approach nearer But thoſe Media which we call Media Negationis, as
to one Extream, and ſometimes to the other. Thus be- are Indifferent and Lawful Matters, poffefs not
tween Things abſolutely commanded, and abſolutely for the leaſt Share of either the Extreams, but equally
bidden, there are ſome Things left indifferent ; but this deny them both. For we ſay in the ſame manner,
medium of Indifference ſometimes inclines nearer to the Good is not Indifferent, and Evil is not Indiffe-
Injunction, ſometimes to the Probibition. Whence fre- rent; and it does not appear, how a Medium of
quently ariſes an Ambiguity, Somewhat like what we this Nature can prove a Cauſe and an Occaſion of
meet with in Twilight, or in Water not perfectly hot. Uncertainty.
As to this Affertion, we muſt confeſs, that, as a X. Yet as to the quantities which are uſed in
bout other Actions, ſo eſpecially about making Morality, they, we confeſs, are capable of ſome
War, a Doubt may probably ariſe, either becauſe Latitude, and it's chiefly on this account, that Ma-
the Fact which occaſions the War is not yet fully thematical Knowledge is eſteem'd to have ſo much
made out, or whether it be of ſo great Conſe- higher Degrees of Nicety and Exactneſs than Mo-
quence as to deſerve a Proſecution by Arms, ral. The Reaſon of this depends on the different
where the Caſe is ſo deſperate, and where the at- Conſtitutions of Natural and of Moral Quantity.
tending Miferies are ſo numerous; or whether in For Natural or Phyſical Quantities may be accu-
the preſent Jun&ure and Condition of the Com- rately compared, and meaſured, and divided into
monwealth, it be a moot Caſe which courſe the moſt equal Parts; becauſe they are repreſented
ought to be taken, either to return the Injury in as the Affections of Material Things, which are
an hoſtile Manner, or rather conceal the Affront, the Objects of our Senſes.
and deferr the Satisfaction, leit an untimely pur- ciſely determine, what Rule and Proportion they
ſuit of Revenge ſhould draw greater Misfortunes bear to one another; eſpecially if we employ the
Whence we may pre-
(a) L. 1.C.3. §. 8. & L. 5. c. 12. §. 23.
(6) L. 2. c. 23. f. 1.
Mr. Barb. NOTES.
(1) Such is, for Example, the Cuſtom of covering thoſe Parts of the Body which diſtinguiſh Men from Women : To which
we may refer what St. Paul ſays of the Cuſtoms of his Time, i Cor. xi. 14. Nature itſelf teaches us, That if a Man have long
Hair, 'tis a shame tolim; but if a Woman have long Hair 'tis ber Honour, as Frederick Gronovius explains theſe Words, in his
Notes; buc our Author gives them another Turn, lib. 2. ch.3. 9. 22.
(2) There are other Principles by which the reſpective Quality of Moral Actions may be determined. See ch. 8. S. 5. with
the Note.
(3) As for Example, It renders a Fault more or leſs excuſable, and a Crime more or leſs enormous.
affiſtance

CHAP. II. Of the Certainty of Moral Science.
23
proceed from the Impoſitions and the Eſtimation Rear but the inderſtanding. And in the Deciſion of
rent, and to be determin'd by the private Bar Slike- modities, the Periods of the Price of ſome Com-
alliſtance of Numbers, by the application of which not us’d to cut every thing to the quick. The Laws;
all Queſtions of this kind are moſt exquiſitely and the Philoſophers (ſays (6) Tully) clear Subtleties in
Solv'à. And beſides, thoſe Quantities are the ef a different manner : The Laws no otherwiſe than as
fect of Nature, and conſequently immovable and Things may be felt and handled, by reaſon of their Groſs-
neß Philoſophers as they may be diſcern'd by
of intelligent and free Agents, whoſe Judgment Cauſes 'tis a Maxim vulgarly known, That the
and Pleaſure not falling under natural Dimenſions, Judge does not concern himifélf with every petty
the Quantities which they thus conceive and de- Circumſtance. And ſo when ſuch a number of
termine, cannot be circumſcribed by any ſuch Honeſt Men are appointed (5) Arbitrators of any
Meaſure, but retain, as it were, fomewhat of the Controverſy, there is fair room for Latitude in
Loofneſs and Liberty of their Original. Nor in- their Judgment and Sentence (6). Farther, in ex-
deed did the Ends for which Moral Quantities ecuring Vindi&ive Juſtice, there is an Indulgence
were firſt introduced, require any ſuch punđual made of a convenient Latitude, not only on the
Minuteneſs (í), but it was fufficient for the Uſe part of Clemency, but of Severity too. To which
of Human Life, that Perfons, Things, and Actions purpoſe is that Saying of Tacitus (). All great Ex-
ſhould be more grofly rated and compar'd cogether amples have ſomewhat of Injuſtice;, but the Injury they
(2). Thus we diſcover a Latitude in the Value or do to particular Perſons is recompenc'd by the common Ad-
Eſteem of Perſonş; by which tho’ we underſtand vantage they bring to the Publick; And that of Jaſon
that one Perſon is to be preferr’d to another, yet in Plutarch (a); "Tis neceſſary that thoſe fhould ait un-
we cannot exactly determine whether be exceeds juſtly in ſmall Matters, who intend to maintain Juffice
him in a double, or treble, or quadruple Proporti- in the grand and chief Concerns (7). Moſt Vertues
on of Worth. The like Latitude occurrs in the likewiſe, beſides Juſtice, admit a free Looſneſs and
Valuation of different Things, and of Actions bé- Latitude in the Exerciſe of them; as for Example,
longing to Commerce; on the account of which Pity, Liberality, Gratitude, Equity, and Charity.
we can ſcarcely fix any (3) ſettled Price on any And ſo, in common Life, we apply the Names of
other Things beſides thoſe which the Civilians call Habits under a Latitude of Signification (8). Thus
Res fungibiles (a) Conſumable Goods, that is, ſuch as we call him a Juſt Man, who commits (tho’ deli-
we borrow for our preſent Uſe, upon condition berately) but a few Pieces of Injuſtice. Laſtly, we
of repaying them in the ſame quantity and quality; may obſerve, that if in Moral Conſideration ſome
As co the reſt, we eſteem them equal and indiffe- Quantities are brought to an exact Standard, and
as
9) fettled by Law,
wiſe the Proportion between many Faults and Pu- and the like ; yet this preciſe Determination does
niſhments is adjuſted with ſome Latitude: For not ſo much proceed from the Things themſelves,
who, for example, can tell preciſely how many or from the Times, as from the Inſtitution and
Laſhes, and how ſmartly laid on, comes juft up to
Will Men e.
(From all theſe Remarks we
the Guilt of ſome particular piece of Thievery? conceive the Difference between Mathematical
But in fuch Caſes we aſſign what Proportion we and Moral Demonſtrations to appear very Clear
think fit, with great Looſneſs and Security. We and Evident; and it is no more than this, that the
find too a very remarkable Latitude in many Buſi- former are chiefly employ'd about Quantity, which
nefles and Affairs of Life (4). Human Lawgivers are is in its own
Nature diſpos'd for the
niceft Divifion
(a) To underftand what is meant by theſe Terms, ſee B. 5. 6. 7. 1. 1. (6) Off. III. c. 17. (c) Annal. 14. C. 44.
(d) De Sanitat. tuend. do Precept. Reipub. gerend. See alſo Ariſtot. Rhet.l.I.C.12. (e) Add. D. Cumberland de L. N. c. 8. f. 14.
the boiwon
See the Words of Biſhop Cumberland, S. 5. Nor mer. Barb. NOTES,
10 (2) The Author treats here of Quantities Moral
, which are the Matter of Moral Actions. He ſpake in s. 8. of the Quantity
or Degree of Extent, which he conceived to be in the fame Actions, in certain Reſpects.
(3) Quæ funktionem in ſuo genere recipiunt, is an Expreſſion of the Civil Law; about which, ſee the Author, lib. 5. ch. 7. 9. 1.
(4) This is the Foundation of that excellent Expreſſion of the Pagan Philoſopher Seneca: Quam anguſta Innocentia eſt, doc.
De Irâ. lib. 2. c. 27. How little is the Virtue of that Man, whoſe Goodneſs extends no farther than the Law? How much larger is
our Duty than the Rules of the Law direl? How many Things do Piety, Humanity, Liberality
, Juſtice, and Fidelity require
of us
,
which the Laws give no Commands for? What the Law forbids not, Honour and Conſcience reſtrains us from : for Example, The
Law puniſhes the injuſtice of a Seller, when he has taken more than a juſt Price, but Philoſophy and Virtue order the Reſtitution of
the leaſt Thing, which he has fraudulently got, more than the worth of bis Goods. See Grotius, lib. 3. ch. 10. 5. I.
So when it is ordered, That one ſhall immediately pay a certain Sum ; it is to be underſtood with fame Limitacions; for
it can't be ſuppoſed, that he muſt go that very moment, and deliver the Money into the Hands of him to whom 'tis to be paid.
de solutionibus do liberat, doc. Leg. 105.
(7) Some Reflections made by Mr. Bayle, Diłt. Hift. & Crit. p. 235. and 2317, are worth our Obſervation here. He ſays,
The publick Good requires, in ſome caſes, that Juſtice ſhould depart from the Rigour of the Laws, becauſe an Injury done to a private
Person, is a leſs Evil
, politickly ſpeaking, than the Advantage that redounds to the Publick by it, is a Good - For this Reaſon
it is, that the Laws condemn to the moſt rigorous Puniſhmencs, ſuch Servants as lie with their Maſter's Wife or Daughter, tho'
they alledge that they were by many Promiſes and Threarnings drawn into it: Thus a Foorman was hang’d at Paris in 1698.
For though the Excuſes be true, yet Juſtice will not releaſe them, that ſuch Perſons may expect no Favour, and ſo may be
more cautious of Offending. Bodin the famous Lawyer, ſpeaking of a Law made by King Henry II, againſt Women who made
away their Children, ſo rigorous, that it might happen that an innocent Woman might ſuffer by it, ſays, " That the Uſe of
“ profitable Laws ought not to be ſuſpended, upon the Account of ſome Inconveniencies produced by them.
And thereupon,
he quotes a Saying of Cato's, That there is no Law that is profitable for all, 'tis ſufficient that it is beneficial for the moſt part,
and generally. Liv. lib. 34. c. 3. See Montagne’s Eſsays, l. 3. c. 3. and Charron of Wiſdom, l. 3. c.2.
(8) See ch. 7. 9. 6. following.
cie,
The Periods of time ſettled by Law, the Latin is Tempora fatalia, a Phraſe taken from the Roman Lawyers, who meant
by it, ſuch a Term of Time, as after it no Appeal will lie againf a Sentence given by Law. See Cod. Lib.7. Tit. 63. Leg. 2.
where you'll find Tempora fatalium Dierum, & fatales dies,
and
DSC

24
Of the Underſtanding of Man, Book I
at an
would
nothing farther than whereas for certain ſuch a that
honest and ſerious Perſon when be takes an Oath,
Quality of ſuch a Subject, leaving the Deciſion of favears truly. And get this Evidence is not Abſolutely
Moral Quantities to the larger Scope and Range of ſuch, but Conditionally, becauſe it is not directly impolli-
Human
Will.
ble, but that a Man of theſe good Qualities may for-
XI. But we muſt take heed of confounding this ſwear himſelf, ſince he may fall from bis Vertue and Ina
Moral Certitude, which we have been ſo long e- tegrity. But now that Certitude, by which we know
with that which is ſo often apply'a to Perjury to be an Evil, is very different from that
Matters of Fact; as when we declare (for Exam- by which we believe a good Man is not guilty of
ple) ſuch a Thing to be Morally Certain, becauſe it Perjury; nor is the latter Propoſition deduced
has been confirm'd by creditable Witneſſes. For "fairly as a Concluſion from the former. Thus in
this latter ſort of Moral Certitude is nothing elſe the ſame manner ghe Faith we give to Hiſtorians
but a ſtrong Preſumption grounded on Probable is reckon’d Morally certain, when they teſtify a
Reaſons, and which very feldom fails and deceives Thing, vaſtly remote from our Memory and
us. Zeigler in his Notes on Grotius (a), has not Knowledge, and of which there is no real and
fufficiently diſtinguiſh'd this inferior Certainty demonſtrative Proof now extant; and eſpecially
from the former and the more noble Kind, while, if many agree in the Relation: Becauſe it is not
tho' he grants the more general Precepts of Ethicks probable that many Perſons ſhould join together
to bear an equal Evidence with the Propoſitions by Compact, in putting a Trick on Poſtericy, or
of any Science properly ſo call’d, yet he affirms, ſhould entertain any hopes, that the Lie
That the particular Concluſions bave a much ſhorter De nor in time be diſcover’d. And yet for all this, if
gree of Certitude
, and are often involv'd in dark Obſcur occaſion were, we could produce Examples of
rities, by reaſon that the Things themſelves, concerning many popular Fables that have paſs'd through ſe-
which ſuch Concluſions are form’d, are many ways veral Ages, under the Colour and Character of
changable and contingent : And the Example he Truth,
also as ar no 90181 O 0,
(a) L. 2. c. 20. 1. I but
on ylee ow
VAS 10 9 bist) YA y yisou no
Tinomonis do bankat abnu ciddi
saban cadal o el orj stoino slots sobiks' 233 Tronto
Coiffon 02931 wisud (rood sonsibno com 910 30510 100 107 worsted
sto ne ustabion, from or is n C H A P. III. suponsorni maria galyseren in
DILSOO CROY9 4601 ing word gistuse
Hound supe more resw efter ed as ah.
300
of the Underſtanding of Man, as it concurs to MORAL ACTIONS. A in
2900 ron SCT979 id
scbno -]aiust vast nieswiririqori singlim
ris agnide The CÓNTENT's of every Paragraph of the third Chapter.
I. Two Faculties of the Underſtanding.
me sa mott 10 VIII. A dubioza Conſcience.
Conſcience. wod balles de
11. What is the Genius of the Repreſentative Faculty of IX. A ferupulous One
.
Isorto the Underſtanding.
X.
Ignorance, what it w, and bow manifold.
III. The Underſtanding natural apprebends Things Mo- XI. Error, of how many Sorts.
XII. Error in Lawful Actions.
V. Conſcience wbat it is, and how manifold.
28.79 Col
XIII. Speculative Error about neceſſary Actions.
Voi nici
fton
V. A right and probable Conſcience.
XIV: Or indifferent Ones.
VI. Rules for a probable Conſcience.
XV. Practical Error.
VII. Rules how to chuſe Things profitable.
1. XVI. Error in an ill Action, you kmon Astene
Since
Ince that Part of Knowledge which we have of Brute Creatures, that he is endow'd with a moſt
undertaken to explain, is chiefly employ’d in noble and exalted Soul, which exerts itſelf not
demonſtrating what's Right and what's Wrong, only with a ſingular Light, as to the Knowing and
what's Good and what's Evil, what's Juſt and Judging of Things, but alſo with a prodigious
what's Unjuſt, in Human Actions ; in the firſt Quickneſs and A&tivity, as to Embracing or
place we are oblig'd to conſider and examine the Rejecting them. So that on this Score the Actions
Principles and the Affections of theſe Actions, and of Mankind ought to be rank'd in a much higher
to ſhow how by the Help of Imputation they are Claſs than the Motions of Beaſts, which proceed
conceiv'd to be Morally join’d and connected to purely from the Spurs of Senſes, without the pre-
the Authors of them: in this reſpect then, the Ex- cedent help of Reflexion (1), whatever Charon (b)
cellency of Man chiefly outſhines the Condition has alledg’d to the contrary. That Power of the
(b) De la Sagele. L. 1. C. 34.
(1) Mr. Charron's Words are theſe, Man ſets himſelf above, and calling himſelf Maſter of all Creatures, diſdains the reſt
. He divides
them into Parts, and allows them what Faculties and Powers he pleaſes. On the other. Side, he degrades bimſelf as it were in
Spite, he Groans, Complains, blames Nature as a cruel Stepmother to bim, and makes himſelf the Refuſe and most miſerable Creature in
the World, both which are equally contrary to Reaſon, Truth and Modeſty. Nevertheleſs
, Beaſts can't be reaſonably debaſed to the condition
of meer Automata, i. e. Clock-work, such an Opinion must proceed from Preſumption, and not a ſerious Conſideration of their Aflions ; for
as Mr. Locke ſpeaks very well : For Thall we believe that Dogs and Elephants do not Think, when we plainly ſee, that they can
find out that in us which we can't diſcern in our ſelves ?. Do they not give us all the Demonftrations imaginable of their Senſe,
except they can't tell us fo. It is hard indeed to fix the Bounds of the Faculties of the Souls of Beaſts, tho' Mr. Charron afferts,
that they can from Particulars infer Univerſals; but yet we have ſufficient Reaſon to be convinced, that Beaſts act with fonte
Knowledge and Reaſoning. See Mr. Lacke l. 2. cb. 9. g. 11, 14. & 10. $!o.& 11. $ 7,10,11. As alſo Mr. Le Clerc's Phyficks,
1.4. c. 12. What Mr. Puffendorf's Notion was in this Matter is hard to know, for he allows Beaſts in one place what he denies
them in another.
Human

ral rightly.
COM
1.2.1.1.190
Mr. Barb. NOTES.
CHAP. III. as it concurs to Moral Actions.
25
Human Soul which it bears as a Light for its Gui- yond Human Ability that the Underſtanding
dance and Direction, we commonly call the Under- Nould apprehend Things after another Manner
ſtanding, and in this, as it is concern'd about vo than they appear; and ſince Credit or Affent can-
luntary Actions, we conceive Two Faculties (1): not but anſwer the Idea of the Underſtanding, no
One is that by which, as by a kind of Mirror, the Perſon can judge otherwiſe of a Matter, than as
Object is ſhewn to the Will, with a general and he appears to have conceiv'd it; nor can he by
confus’d Notice, whether it be Agreeable or Dif- any juft Law be compell’d to a contrary Judg-
agreeable, Good or Evil. The Other is that byment: For fuppoſe a Man to be in the Wrong,
which the Reaſons of Good and Evil, which in yet (3) a bare Injunction and Command will never
feveral Objects offer themſelves numerouſly on make him the Wifer. Yet becauſe many Things
both Sides, are weigh’d and compar'd, and Judg- eſcape a negligent Searcher, which offer them
ment is given; what, when, and in what manner ſelves to the Notice of more curious Enquirers;
we are to act ; and Conſultation taken about the and becauſe the Will may hinder the Underſtand
moſt proper Means for the Accompliſhment of the ing from contemplating ſome Truth, by preſent-
propos’d End. And here it muſt be obſerv’d, that ing other Objets to tempt and engage its Care;
the Beginning of a voluntary Act ſhould regularly therefore an earneſt and affiduous Application of
proceed from the Underſtanding, whence ariſes Mind is of vaſt Uſe in confirming the Judgment;
the vulgar Maxim,
and conſequently thoſe who'are entruſted with a
Care and Authority over others, ought to make
Ignoti nulla Cupido.
all fair Proviſion for the Aſſiſtance and Direction
of a ſerious Meditarion : aud they may likewiſe
Objects unknown can never move Defire: engage Men by the Sanction of Puniſhments to
apply with Diligence thoſe Means which are moſt
Altho’ this Knowledge, which precedes the Acts likely to diſpel the Clouds and Perplexities of
of Volition, is not always diſtinct, becauſe a con- Things, and to repreſent them in their genuine
fus’d Notion is ſufficient to make the Will beftir it Colours and Condition (4).
felf. And thus when we have not a tolerable III. Farther, Since the Underſtanding performs
Knowledge of a Thing, we cannot be ſaid pro- the Office of a Light in our Courſe of A&tion, and
perly and fully to deſire it ; yet we may deſire to fince when it doth not guide us aright, 'tis impoſſi-
make Trial of it.
ble but we ſhould loſe our Way, we ought to eſta-
II. As to the former Faculty of the Underſtand- bliſh this as a certain Principle, That there is bothi
ing, we muſt remark, that it is of the Number of in the apprehending Faculty, and in the Judgment,
thoſe which are commonly callid Natural Faculties, a natural Rectitude, which, upon due Attention
(2) contradiftinct to the Free : in as much as it is given, will not ſuffer us to be deceiv'd in reference
not in the Power of Man to apprehend Things to Moral Things, and that neither of thoſe Pow-
otherwiſe than as the Images of them preſenters are ſo far corrupted and deprav'd, as to put us
themſelves to the Mind ; nor can the Will by any under a Neceſſity of being miſtaken. For at the
Force hinder the Underſtanding from aſſenting to fame rate it would follow, that becauſe a Glafs ill
a Propoſition which appears clear and evident to it. cut preſents every Image in a diſtorted Confuſion,
But thus far a Man is at Liberty, he can more di- and becauſe the Tongue, when cover'd with the
ligently conſider the Obje&t in view, and more Tincture of the Jaundice, is not able to diſcern
exa&ly weigh in his Mind the oppoſite Reaſons of the Difference of Taſtes, therefore the Senſes to
Good and Evil, and ſo not ſtick at the outward which thoſe Offices belong muſt be in general pro-
Face and Semblance of Things, but pierce into nounc'd Fallacious and Uncertain. Neither could
the deepeſt Secrets of their Texture and Conſtitu- it be charg’d on us as Guilt, that we have done a
tion. And after ſo ftri&t an Enquiry and Exami- bad Action, if we were not furniſh'd with a clear
nation, he can pronounce a poſitive Judgment in Diſcernment of Good and Evil; and it would be
the Cauſe before him. The Underſtanding being the higheſt Injuſtice to impute that Error as ſinful,
in this reſpect, as in many others, like the Eye, which was beyond our Power to avoid or ſhake off.
that it makes a very important Difference, in be- Therefore, unleſs we would utterly ſubvert and
holding Things with a roving and tranſitory Caſt, deſtroy all the Morality of Acting, we muſt by all
and in contemplating them with a fix'd and ſteady Means maintain, that the Underſtanding of Man
Application (a). And hence 'tis eaſy to conceive, is naturally Right and Certain, and upon ſuffici-
how far this Power of the Soul falls under the Cul ent Enquiry and Meditation, does always appre-
ture and Cognizance of Laws. For ſince 'tis be- hend Things clearly, and as they are in their own

(a) Add. D. Cumberland, de L. N. c. 2. f. 9.
Mr. Barb. NOTES.
(1) To ſpeak truly, One Faculty cannot have another fixed in it, as in its Subject, becauſe every Faculty muſt have its pro-
per Subject. Faculties, or Powers, (ſays Mr. Lock) belong only to agents, and can only be attributed to Subſtances, and not to any
other Power. Hum. Underſtand. 1. 2. C. 21. S. 16.
(2). By Natural Faculties, is meant, Paſſive Faculties, which receive the Impreſſions of objects, and do not properly. Act ar
all ; for the Underſtanding is like the Eye, which diſcerns Ideas with the different Relations, without adding or diminifhing
any thing; whether it only perceives the objects, or judges what is, or is not to be done: For in the Underſtanding there is
nothing but bare Perception or Reception of Ideas. The Determination from whence Action proceeds, is an Act of the Will
only. The Diſtinciion of the Schools, that is, Underſtanding is either Speculative or Practical; is founded upon the Nature of
the objects it contemplates, and not upon the different Actions of the Soul : For the Soul is diſpoſed alike in the Preception of
Good and Evil, Truth and Fallhood. See the Searches after Truth, lib. 1. ch. 2. and Mr. Clerc's Diſcourſe of Spirits, Se&t. 1. c. 3.
(3) i. e. Without any Reaſon or Motive.
(4) But if this fails
, ’ris to no Purpoſe to have Recourſe to Force and the Authority of the Sovereign. Elem. Juriſpr. Vnia
verf. p. 375. See lib. 7. c. 4. S. 8. and 11.
E
Nature

26
Of the Underſtanding of Man, Воок І.
Nature and Conſtitution : And likewiſe that (1) of Reaſon, but an ordinary Portion of natural Light
the practical Judgment cannot prove ſo far De- is ſufficient, provided that the Mind be not viti-
bas'd and Degenerate, (at leaſt as to the general ated and obſtructed by ſome Diſtemper. To which
Precepts of Nature's Law) as to excuſe the Acts Purpoſe Tully's Diſtinction about Folly and Mad-
proceeding thence from being imputed as if they nefs is obſervable : Folly (ſays (b) he) if affifted with
were Effects of invincible Ignorance (a). And a due State of Health, is able to maintain a competent
here we deſire it ſhould be confider'd, that we are Sett of Duties, and to keep up, in ſome manner, the Cusl-
not debating what Power the Underſtanding has ture and the Methods of Common Life ; but Madneſs is
about Matters which depend on peculiar Revelati a perfect Diſeaſe, that quite Extinguiſhes the sight of the
on from God. or what it can perform in ſuch ex- Mind, and involves all its Objects in a general Obſcu-
traordinary Caſes, without the ſingular Aſliſtancerity (3).
of Divine Grace, becauſe this is the Subject and IV. The Judgment paſs’d on Moral Actions by
Buſineſs of another Profeſſion. Neither are we the Underſtanding, as it is ſuppos’d Conſcious of
concern'd to examine whether in Speculative a Law, and therefore Accountable to the Law-
Truths, requiring the moſt ſubtle Diſquiſitions of giver, is commonly calld Conſcience, which as it
Mind, a Man may not through ill Information, either (4) precedes or follows the Action, we may,
get ſuch firm Poſſeſſion of a falſe Tenet, as not to for Diſtinction fake, branch into Antecedent and
be able to recover himſelf out of the Miſtake : Conſequent : This laſt is the reflex Judgment of the
But we are diſcourſing only about the Power of Underſtanding, on Things done or forborn (5),
the Underſtanding, as it is employ'd in fquaring approving what's Well, and condemning what's
our Actions according to the Dictates of Nature. Ill; the Attendants of which are either Tranquil-
And, as to this point, we conceive that there's no lity or Reſtleſneſs of Mind, according to the dif-
Man of proper Years, and Maſter of his own ferent Teſtimony it bears; and as it gives us Oc-
Reaſon, (2) ſo deſperately dull and ſtupid, as not caſion to expect either the Favour or the Diſplea-
to comprehend, at leaſt, the moſt general Rules ſure of the Legiſlator, and either the Good-Will,
of Natural Law, and thoſe which are of the great- or the Hatred of other Men (c). . The Former,
eſt Uſe in Common Life, and not to diſcern the coming before the Action, informs us what is
Agreement they bear to the Rational and Social Good and what Evil, and conſequently what to
Condition of Mankind. And tho’a Perſon through be done, and what to be omitted. But here it is
extream Idleneſs, may poſſibly never have thought carefully to be obſerv’d, that the Conſcience ob-
of one or two Precepts, or through precipitate tains no other place in the Guidance of Human
Raſhneſs may have fram'd wrong Opinions of Operations, than with reſpect to its being inſtru-
Acting, or by bad Information, or a Mind cor- cted in the Knowledge of ſome Law, ſince Laws
rupted with vicious Courſes, may have call’d their only are the proper Rules of (6) Acting. And
Truth and Neceſſity in queſtion, or have taken up therefore, if any Man will attribute to the practi-
other Rules of Action contrary to Natural Sug- cal Judgment, or the Conſcience, any peculiar
geſtions; yet we do not by any Means acknow- Force or Ability of directing us in our Doings,
ledge this ignorance or this Error to be Inſupera- owing neither its Original to, nor its Dependance
ble, ſo as to hinder the Imputation of Deeds con on any Law, he will inveſt with a Legal Power
fequent on ſuch a Principle. For theſe univerſal the vain Fancy of Private Men, and will bring
Edicts are ſo clearly publiſh'd and explain'd, and the wildeſt Diſorder and Confuſion on the Affairs
fo cloſely interwoven with our Being, that no one and Tranſactions of the World. For we muſt de-
can be overcome with ſo brutal a Sottiſhneſs, as clare, that as far as our Diligence could reach in
not to be capable of apprehending and diſcerning Searching, the Word Conſcience, in this ſtrange
them; ſince to this Buſineſs there is not requir'd Senſe, is neither to be met with in the Holy Scri-
any ſingular Force of Wit, any peculiar Shrewdneſs ptures, nor in the ancient Latin Authors : but it



(a) Vid. D. Cumberland.de L. N. c. 2. S. 10. (6) Tuſcul. Quæft. 1. 3. (c) Plin. Panegyr. One Man may poſibly deceive
another, but there's none who can deceive himſelf; Let him only look into his own Life and Condult, and take his Merit and Chara&ter
from his Heart.
Mr. Barb. NOTES.
(1) See Note on S. 2.
(2) V. the Note on Book 1. chap. 1. S. 4. of the Abridgment of the Duties of a Man and Citizen, Printed at Amſterdam in 1707.
(3) Cicero cites this Caſe out of the Laws of the Twelve Tables, but to a clear different Purpoſe from what our Author uſes
it, vix. To prove a Difference between Inſania, Madneſs, and Furor, Fury ; but our Author has no Regard to the Contexture of
the Diſcourſe, and uſes the words to this Senſe only, Folly is no Impediment to the comprehending the common Duties of Life,
but to be ignorant generally of all the Principles of Morality, is a Sort of Madneſs. In other Circumſtances the Words might
be ſo underſtood, but our Author miſtakes them here.
(4) This Diviſion is according to the Schools, Conſcience antecedent and conſequent ; but our Author reverſes the natural
Order, in defining the Conſcience, which follows, before that which preceeds the Action.
(5) Pliny Panegyr. ch. 74, doc. vide (c).
(6) This is true, but it hinders not, but that the Conſcience may be the immediate Rule of Action : for a Man can't conform
himſelf to a Law, unleſs he know it, and if he do Good without knowing it, he loſes his Pains, the Lawgiver regards ir nor.
Nevertheleſs it follows not, but that every one may do all that he believes either permitted or commanded, after what Manner
ſoever it comes into his Mind. Here are two Rules, which the moſt fimple may, and ought to follow, to facisfy themſelves, upon
all Occaſions, that the Motions of their Conſcience are according to the Law. 1. To conſider, whether they are not out of the
State of determining concerning an Action, by ſuch clear Arguments as may fatisfy any Man of Senſe. 2. To ſee that they have
ſufficient Reaſons to do what their Conſcience leads them to withour farther Examination. In the firſt Cafe, 'cis evident, that
we can't determine or attempt any thing but with an univarrancable Raſhneſs. In the other, we muſt of Neceſſity fufpend our
Judgment and Action till we are fully ſatisfied. All the Inconveniences and Evils which are conſequent upon a miſuſed Con-
Icience, come under the Breach of one or other of theſe Maxims, which are eaſy to be obſerv'd by ſuch as love their Duty.
This appears chiefly in Matters of Religion, as every Man's Experience will teach him. See Biblioth. Vniverf. Tom. I. P. 343, 344.
and Parrbahana, Tom. 2. p. 97. as alſo Biblioth. Choiſie, Tom. 10. P.336.
was

CHAP. III. as it concurs to Moral Actions.
27

Work by Inſtruments Mechanically prepar'd, and propos de conſcience two Opinions being
was firſt introduc'd by the Schoolmen, and has leave the Mathematicians to demonſtrate the Rea-
been maintain’d in theſe latrer Ages by the crafty ſons of their Operations. And Men are apo eſpe-
Caſuiſts, for the better ſecuring of Mens Minds cially to content themſelves with theſe probable
and Fortunés, to their own Authority and Advan- Appearances, when the Propoſition in Debate is
tage. But if we have regard to the true and ge- remov’d at a vaſt Diſtance from the firſt Principles,
nuine Signification of the Word, to do a Thing and therefore requires a tedious and troubleſome
againſt Conſcience, is nothing elſe but to commit Deduction, which is commonly above the Capa-
a voluntary Evil, knowing it to be
, ſuch; and is city of thoſe who have not run the Courſe of the
oppos’d to Tranſgrefling out of Ignorance and Sciences, nor cultivated their Reaſon by a Learn-
Miſtake. And this we mean by Conſcience in ed Inſtitution. Yet hence can be drawn no Pro-
our preſent Enquiry, recovering it to its ancient tection for that pernicious (3)
Probability maintain'd
Import, and exploding the new Abuſes that have by the later Caſuiſts, and eſpecially by thoſe of
been oberuded on its Signification, 1009
the Order of the Feſuits, which reſolves itſelf into
V. Conſcience rightly inform'd is of two Sorts; the ſole Authority of a ſingle Doctor, tho' deſtitute
for either it clearly underſtands that the Perſwali- of Reaſons, and oppos’d by all other Judgments.
on which it holds concerning, fome Performance For this Principle tends to the utter Subverſion of
or Omiſlion, is built on certain Principles, and all Morality, and ſeems deſign d only for the
agrees with the Laws, which are the Rule of Aći- keeping under the Senſes and the Conſciences of
on and of Conſcience; or elſe it eſteems, indeed, Men, and making them depend entirely on the
its Perſwafion as True and Certain, and fees no Pleaſure of the Prieſts : as has been prov'd at large
Reaſon to doubt of it
, tho'it cannot reduce it to by others (c). We need only obſerve farther, that
a formal Demonſtration ; but, on the contrary, they act not at, all fairly when they confound
relies chiefly on Arguments from Probability. In Probability of Fact with Probability of Judgment,
the former Cafe
Caſe it is commonly termd a (1) Right, and of Law. For indeed, in Matters of Fact the
and in the lartér a Probable Conſcience
. Concerning Authority of one Great and Credible Perſon may
à Right Conſcience this general Maxim is eſtabliſh'd, raiſe a probable Preſumption, and obtain at leaſt
That every voluntary Action againſt its Suggeſtie half the Force of a full Proof. But in defining
on, and the Omiſlion of any Action which it de- Matters of Law, cwould be the higheſt Abſurdity
clares to be Neceſſary, is Sin; and ſo much the and Raſhneſs to, attribute ſo much to the Decla-
more heinous Sin, as the Perſon had a more perfect rations of one Man, not grounded on good Ar-
Knowledge of his Duty; becauſe a Tranfgreffion guments, and at the ſame time contradicted by
under ſuch Advantages argues a greater Pravity Perſons of equal Rank and Power, as that it
and Corruption of Mind (a), A
ſhould be ſafely admitted for the Square and
The Difference of a Probable Conſcience from a Standard of Acting.
Right, we conceive not to be in reference to the VI. For the Information and Direction of a
Truth of the Perſwalion, but upon account of its Probable Conſcience, there are many Ruleș common-
Ignorance and Inability, to reduce this Truth Ar- ly laid down, concerning which our Opinion is
tificially into the Exactneſs of a Demonſtration ; this, That they take place only where there feems
for which Reaſon it has not ſo evident and unſha- to be a Claſhing between ftriét Law and Equity;
ken a Knowledge of its Certainty: For (as the or when both sides of the Queſtion are alike free
Logicians ſpeak) nothing is Probable in itſelf
, but from the Obligation of the Laws; yet ſo as that
only with reſpect to our Underſtanding. And by one of them may ſeem to approach nearer to Ho-
this Rule of Probability the greateſt Part of Man- neſty, or may appear more likely to produce ſome
kind are Steer'd and Govern'd in their Proceed- Convenience or Inconvenience than the other.
ings.
to apprehend For in Matters abfolutely determind by the Com-
Human Duties as they flow from their firſt Origin mand or Prohibition of fome Law, there is no
and Foundation. And moſt Men rely with ſo room left for ſuch a free Choice, as that we may
much Security on the Tenor of common Life (b), reject one side and take the Other, becauſe poſi-
on the unqueſtionable Authority of (2) unſuſpect- tive Laws will not be ſatisfy'd with Equivalents,
ed Teachers, and on the manifeſt Decency or but demand a punctual Obedience to their Den
Conveniency of ſuch and ſuch Actions, that they crees. And therefore this Freedom of Election
think it a ſuperfluous Trouble to make a more cu- muſt be confin’d to indifferent Things, to which
rious Enquiry into the Reaſons and Foundations the Laws do not extend their Sphere and Autho-
of them. In the ſame manner as the greateſt Num- rity. The chief Rules are theſe:
of performing theird 1. In a Probable
144
(a) See Luke xii. 47, 48. (6) Vide I, II. C. III. L. 13. (c) Vid. Lud. Montalt. in Lit. Provincial. and upon
them
Wendrocbius, and Sam. Rachel.
Mr. Barb. NOTES.
(1) This Epithet is not well apply'd, for our Author owns that -a Right and Probable Conſcience are the ſame, a little lower :
He ought rather to have called it a Clear Conſcience ; but his Diviſions are nor exact: Theſe are better ; An Antecedenc Conſci-
ence is, 1. Reſolved. 2. Dubious. The Reſolved Conſcience declares poſitively, not only about the Quality but Execution of
an Adion; in which, if it miſtakes, 'tis erroneous ; if it judges well, 'cis right; which will be clear or probable according as
the Reafons which Men give of their Opinions, are cercain, or only probable. A Dubious Conſcience is either ſimply ſo, when
che Underſtanding hangs like a Ballance, not knowing which Side to take, or whether the Action be good or evil, and ſo can't
put it in Execution ; or ſcrupulous, when we are determined about the Morality of the Action, and Execution of ic, yet with
ſome Fear of being miſtaken. Gott. Gerh. Titius's Obſerv. on Puffend. De Officio Hom. do Civ. Obf. 17.
(2) See Lib. 2. ch. 3. S. 13:
(3) See Buddeus's Diſcourſe, De Scepticiſmo Morali, S. 31. in his Analelt. Hift. Philof. To start
E 2
one
28
Of the Underſtanding of Man, BOOKI.
3.
one of which is founded on better Reaſons, the Things bearing a great Force in our Proceedings ;
other is more fafe; either of the Two may be fol- according to that of the Apoſtle, i Cor. V. 12.
low'd without Blame.
All things (that is, all Things which he had been
2. Two Opinions being propos’d, of which one there ſpeaking of ) are lawful for me ; (5) but all
is built on weaker Reaſons, the other is the more things are not expedient. And in Civil Buſineſs, Af-
fafe, the latter ought juſtly to have the Preference. fairs are many times commitced to the ſole Wif-
In a Probable Conſcience a Learned Man inay dom and Conduct of the Perſon employ'd, in
follow that Opinion which ſeems to him to have which Caſes a Man is conceiv'd to have acted ill,
the greateſt Degree of Probability, tho' perhaps it if by Imprudence or by Negligence he has taken
may appear different to others: unleſs he is under the leſs profitable Courſe. In Debates therefore,
Apprehenſion of incurring fome Inconvenience or ariſing about ſuch Things, to which we are bound
Damage upon account of diſſenting from the com- by any Neceffity, or any determinate Obligati-
mon Judgment.
on, (for Neceſſity excludes all Deliberation and
4. An Unlearned Man may ſafely follow the Debates, and determinate Obligations leave no-
Authority of Wifer Perſons.
thing to the Agent, but the Duiy of Execution ;)
5. A Subject
, or one plac'd under the Com- this is laid down for a Foundation, That nothing
mand of others (1), may, upon the Order of his ought to be undertaken, from which, in Morai
Superiors, fairly do a Thing which he does not Eſteem, (or as far as human Forelight can pierce
certainly know to be Unlawful, tho' in his pri- into the Obſcurity and Uncertainty of future E-
vate Judgment he does not think it very Probable vents,) there does ſeem likely to follow as much
that it ought to be done.
Evil as Good (6), or more Evil than Good. The
6. In Things of little Moment and Concern, Reaſon of which Maxim is evident. For as much
(2) if there are probable Arguments alledg’d on of Evil as any Thing has join'd with it, ſo much
both hands, either Side may be taken.
it loſes of its Goodneſs, and conſequently, when
7. In Things of great Moment (3) if there the Good and Evil are in equal Degrees, the for-
ariſe probable Arguments on both Sides
, the ſafer mer is ſwallow'd up by the latter, and the Thing
Part is to be preferr'd, or that from which there is depriv'd of the Nature and Denomination of
cannot follow ſo great an Evil, tho' we are never
Good. Hence that Field is reckon'd very unpro-
fo much Miſtaken, as there might have done, had fitable, which does not in the Value of its Fruits
we err'd in the oppoſite Opinion.
exceed the Charges of Tillage (a). For thoſe
VII. To proceed ; Tho' according to our pre- Matters which make the Subjects of ſuch Delibe-
ſent deſign, we are engag'd only to treat of what's rations as we are now ſpeaking of, are underta-
Good, and what Evil, what Juft and what Unjuft; ken purely on Account of the Uſe and Advantage
leaving the enquiring about Things profitable and which may accrue to us from them
(4) Unprofitable to another Part of Knowledge, (7)(b). As Corollaries from this Xenophon's
yer it will not be much cut of the Way, if we here general Truth, we may ſubjoin the words at )
conſider in ſhort, what Rules the Underſtanding three Rules eftabliſh'd by Grotius (e): the Original.
ought to have regard to, in Deliberations con I. If the Thing under Debate has an e-
cerning Uſefulneſs and Convenience. Eſpecially qual Efficacy or Ability for the Production of Good and
becauſe the Directions already laid down, depend Evil, that is, if we may as eaſily Gain as Loſe by
very much on theſe; the Profit or Advantage of it, we may then venture on it, when the good Confe-






2) de R. Field that time turns to little Account
(6) Xenophon. Rer. Græc. 1.6. They are very far from deſerving Commendation, who having carried off Glory and Vi&ory from many
Encounters, do ſtill continue to engage, till being at length ſhamefully overcome, they loſe their former Honour and their former Labour.
The Caſe is the ſame with thoſe Gameſters, who once meeting with a Run of good Fortune, are entic'd to venture on, till they loſe double
to their former Gains, and, in Concluſion, are commonly Beggars. Theſe Examples ought to warn us in orr. Martial Affairs, 'that we
never suffer our ſelves to be drawn into ſuch a Combat, where we muſt of Neceſity either win all or loſe all.
Lucan. I, 1. Par labor atque inecus pretio majore pecuntur.
Au equal Labour for a greater Prize.
Iſocrat. Archidam. Two Things propos'd, the one plain and exident, tbe other doubtful and perplex'd; would it not be ridiculous for
you to reje&t that which is beyond Diſpute, and to chooſe that which is Controverted and Uncertain (c) L. 2. C. 24. Lose
Mr. Barb. NOTES.
(1) See Lib.8. ch. 1. §. 6.
2) This hath Place cominonly in Regard to thoſe Judgments, which we are obliged to make Ex tempore, upon ſome nrgent
Occaſions, wherein Neceſſities of Life oblige us to act. See Biblioth. Vniverf. Tom. 5. p. 344.
(3) As for Example, If the Debate be about putting a Perſon to Death, it is better to run the Risk, and ler a Criminal eſcape,
than puniſh an innocent Perſon. This was the Deciſion, both of ſeveral ancient Philoſophers, which are quoted by Grotius,
Lib. 2. ch. 23. §. 5. n. 2. and of the Emperor Trajan, who would have no Man condemned for Suſpicion, as he writes in his Ree
ſcript to Aſia. Severus, for it is better that the Crimes of the Guilty eſcape unpuniſhed, than that an innocent Perſon ſhould be
condemned. Digeſt. Lib. 48. Tit. 19. De pænis Leg. 5. For, as Mr. Bruyere ſpeaks, in' his Chapter of Certain Cuftoms, p. 506.
If a Criminal be puniſhed 'tis a Terror to the Gang, but if an innocent Perſon be condemned, all honeſt Men are affrighted.
In fine, War brings Evils upon many innocent Perfons, if then Judgments be divided, we muſt incline to Peace.
(4) The Author does not mean by the Word Inutili, unprofitable, but noxious, or hurtful, as he plainly uſes it, Lib. 2. ch. 2.
with the Note, and ch.3. S. 10. It is certain, that in Macters of Morality and Politicks, that which is oppoſed to profitable,
is noxious.
(5) The Words of the Apoſtle have no Manner of Connexion with what went before, but on the contrary, refer manifeſtly
to what follows, either to the Liberty of eating certain Meats without any Regard whether it offends ochers or not ; or rather,
tho' St. Paul applies it indeed to that particular Subject, it is a general Maxim, and extends to all Things indifferéne in their
Nature. See Chap. 2. &. 8. Note 4. above.
(6) Here is a plain Inverſion of the due Order of Things, contrary to the right Way of Reaſoning, and Sequel of the Dir-
courſe. This Blemiſh is ſo notorious, that 'tis a Wonder the Author did not mend ic in his laſt Editions.
(7) Theſe Words of Xenophon are deſigned only to ſhew, that when one has got an Advantage or Gain, he ought to take Care
to preſerve it, and not run to the utmoſt Bounds of his Fortune.
quence

9.
CHAP. III. as it concurs to Moral Actions.
29
quence is a greater Good, than the ill Conſequence is an of a wiſe and cautious Man to abſtain from ſuch
Evil: that is, If we are like to gain more by be- a Matter, unleſs he is driven on it by urgent Ne-
ing ſucceſsful in the Attempt, than we can loſe, ceflity.
if we prove (1) unſucceſsful. Thus it would be
VIII. When the Judgment of the Underſtand-
no Raſhneſs or Imprudence to hazard Ten Pounds, ing is at a loſs, and cannot diſcern whether 2
ſuppoſe in a dangerous Adventure, when we may Thing be good or evil, and conſequently, whe-
get an Hundred, if the Chance prove fortunate(a). ther it ought to be perform’d or omitted, we call
2. If the Good and Evil which may proceed from the this a (2) Doubtful Conſcience
. Concerning, which
Thing in Debate, appear equal, we may then chuſe it, this Rule ought to be obſerv'd, That as long as
with this Proviſion, that it has a greater Efficacy or the Judgment cannot by the Force of any Argu-
Ability for producing the Good than the Evil : that is, ments be inclin'd to one Side more than to the o-
if ’tis more eaſy that Gain ſhould ariſe from it ther, the Adion is to be ſuſpended; and that there-
than Damage. In which Point we cannot omit fore, he who proceeds to do a Thing, about which
the noble Argument of Arnobius (b): “Since this his Conſcience ſtill hangs in an Aquilibrium, com-
(ſays he) " is the Condition of future Things, that mits a (3) Sin ; becauſe, as much as in him lies,
“they cannot be felt or held by any anticipating he has tranſgreſs'd a Law. For he declares his
“Touch, is it not much the clearer Reaſon, of Mind to this Effect, I am not indeed certain, whether
cwo Uncertainties, the Expectation of which is or no this Action is repugnant to the Luws; but when
equally doubtful, rather to believe that which ther it be or no, I am reſolu'd to undertake it. 'Tis
“ brings fome Hopes along with it, than that good Advice (ſays (d) Tully) to forbear doing a Thing,
which brings none? For in the former Caſe, where (4) we doubt whether it be fair and juft, or foul
“there can be no Danger, tho' the Matter ex- and injurious : For when we are certain tbe Thing is
peded never come to paſs: But in the latter we juſt, we have a clear Light and Guide to proceed by; but
incur the higheſt Damage, if what we disbe- to act with an unſettled Judgment, does not free us
lieved ſhould
not prove a Falſity in the final E- from the Thoughts and Intentions of offering an Injury.
vent of Things (c).” 3. If the Good and Evil Grotius (e) ſays, that this Rule, of abſtaining from
ſeem to be unequal, and the Ability of the Thing to pros a doubtful A&ion, does not hold when we are oblig'd
duce them not leſs unequal, then we muſt determine our to do either this or that, and yet are unſatisfied in either,
Choice by one of the two Conditions, either that the A- whether it be juſt or not; for then we are allow'da to
bility for producing Good compar’d with that for produ- chooſe that Side which appears leſs evil or unjuſt. For
cing Evil, be greater in Proportion, than the Evil it whenfoever we are under the Neceſſity of making a Choice,
ſelf compar'd with the Good (that is, If the Exceſs of the leſſer Evil aſſumes the Charaéter of Good. This
Evil be leſs than the Ability for producing Good;) Obſervation, we think, ought rather to have a
or, if the Good be greater, compar'd with the Evil, Place in Evils of Damage, than in thoſe of Mo-
than the ability for producing the Evil, compar'd with rality; becauſe in the former it is reckon'd a Gain
that for producing the Good: that is, If the Power and an Advantage, to avoid a greater Evil by ad-
and Efficacy which ſeem to incline towards the mitting a leſs.
mitting a leſs. But it cannot be applied to Moral
Production of the Evil, be leſs conſiderable than Evils,
Evils, without a very dextrous Conſtruction.
the Degree by which the Good exceeds the Evil. Properly ſpeaking, therefore, of two Moral E-
To which we will add this fourth Rule, That vils, neither is to be choſen. Yet it frequently
where both the Good and the Ill Effect of a Thing; happens, that two Laws, either both Affirmative,
and likewiſe its Ability for producing of both, re or one Affirmative and the other Negative, ſhall
main uncertain and undetermin'd, 'tis the Part ſeem to claſh with one another, ſo that we cannot
(a) Comp. Epi&tét. Enchirid. c. 35, 36. (6) L. 2. (c) Add. Penſees de M. Paſchal. c. 7. (d) Off. 1. (e) L. &.c. 23.4.2.1.2.
Mr. Barb. NOTES.
(1) Our Author, in his laſt Editions, quotes an excellent Paſſage of Arnobius to this purpoſe: Since future Things are of that
Nature, that no Man can clearly diſcover them, nor foreknow their Events; no Man of Senſe, but of two Things equally uncer-
tain, will chooſe that which he may hope ſome Good from, rather than that from which he can hope for none. “In ſhort, if
the Evil that threatens us, has no Effect, we run no Riſque ; whereas we are expoſed to very great Danger, and hazard All, if,
when the Time comes, we find by ſad Experience, that we were not afraid without Cauſe, Adv. Gentes, lib. 2. See lib. 2. ch.3.
8.21. not. 6. Our Author miſtakes, in annexing this to the firſt Rule of Grotius, whereas Mr. Paſcal, in his Thoughts, ch. 7. proves
it ought to be joined to the ſecond.
(2) Mr. Thomafius, in his Inſtit. Juriſpr. Divin. lib. 1. ch. 1. $ $9. affirms, that there is no ſuch Thing as a doubting Conſci-
ence, becauſe Doubting is no Determination of the Soul, buc a Suſpending the Judgment only. But Mr. Titlus will not allow
this to be a fufficient Reaſon to take away the Diſtinction; for beſides the Suſpenſion, there is a Determination, by which the
Conſcience is put upon an Action, the Doubts which ought to prevent it ſtill remaining.
(3) Mr. Titius (in his Obſervat. on Puffend. Obſerv. 19.) affirms, That this Maxim is not abſolutely true and without Reſtriction;
for (ſays he) when an Agent has no more Intention to do Evil than Good, he is not blameworthy, unleſs the Action be found
contrary to the Law; for he acts not according to the Nature of the Action in it ſelf, and therefore whatſoever produces that
Quality contrary to the Deſign of the Agent, hinders the Impuration of a Crime to him, if the action prove evil. In fine, if
te ſuppoſe the Agent to be careleſs whether he does Good or Evil, and that the Realons for and againſt him are altogether
equal, his Diſpoſition, nevertheleſs, is corrupt before GOD, becauſe he has reſolved to act without a certain Knowledge that
what he is about to do is good, or, at leaſt, harmleſs, and ſo he renders himſelf liable to fall into Error, and conſequently, en-
gages himſelf, as much as in him lies, in all the Evil Effects. This hath Place in Matters of the greateſt Importance, as when
We condemn any one, and do him any Miſchief any Ways: for the Juſtice of an Action ought to be ſo clear, that they to whom
ir is done, may acknowledge it ſuch. See Parrhafíana Tom. 2. p. 406.
(4) 'Tis a Maxim of Holy Scripture, which reaches us, That whatſoever we do without Faith, i. e. without a thorough Conviction
of the Goodneſs of it, is sin. And all the Heathen Wiſe Men, both Greeks and Barbarians, have given us the ſame Rule. Qui
in vero dubitat, male agit, cum deliberat : He thar doubts of the Truth, does Ill while he deliberates. Publ. Syr. See Grotius l. 2.
ch. 23. §. 2. The Scholars of Zoroaſtres had this Rule, If it be dubious, whether an Action be Good or Evil, we muſt not do it,
eill we are informed by our Doctors. Hyde in Sadder Portå 30.
ſatisfy

30
Of the Underſtanding of Man, Book I.
2. ;
fatisfy both at the ſame time (1). In this Caſe ourſelves to the forming of certain and determinate
ignorant Perſons are apt to fancy, that a Compa- Judgments of all Things that offer themſelves to us.
riſon is made between two Evils, or Sins of O. But we muſt obſerve farther, that theſe Judgments
miſſion, and that i we are to do that, which it ought to be drawn from genuine and folid Science,
would have been the greateſt Sin to have left un or from the Doctrine of the Laws of Nature, and
done. Bue in Reality, we do not here of two from the Chriſtian Religion, purg'd from the vain
Sins chooſe the lefſer; but that Action, which with- Additions of Superſtitious Men. For tho' without
out this claſhing and interfering had been a Sin, this Security, the Mind may indeed be ſo far har-
now.ceaſes to be ſinful, when we are oblig'd to den'd, as not to perceive any Fluctuation, or to feel
a contrary Duty, by the Force of a ſtronger Law. any Remorſe of Conſcience, yet ſuch a Firmneſs
Thus, for Example, when there ſeems to be a claſh- and Obduracy is neither of long Continuance, nor
ing between the Affirmative Command, Give Alms, free from the Imputation of Sin. Whence we
and the Negative, Do not Steal, without doubt we cannot approve of the latter Part of Des Cartes's
muſt not be guilty of Thievery to gather Matter Preſcription, where he tells us, We should always
for our Alms ; according to that of the Apoſtle, think our Duty is diſcharg’d, when we have done what
we must not do Evil, that Good may cone of it. Yet we judg’d beſt, altho' we have made the worſt Judg-
in this Caſe, not to give Alms, is not properly a ment that can be. For this is not to cure the Diſeale,
Sin, becauſe Affirmative Precepts exert not their bur by an ill-temper'd Opiate, to bring a Drowfi-
Force of Obligation, when there remains no Sup- neſs and Stupidity on the Mind.
ply of Matter to furniſh out the Action. So a-
gain, when a claſhing is made between the two -X. When the Knowledge of the Underſtanding
Affirmative Precepts, Obey God, and Obey the Ma- is wanting, as to the Performance or the Omiſſion
giftrate, no Queſtion but we ought to obey GOD of any Thing, we call this Ignorance. Which, as far
rather than Men (2)(a): Not becauſe, of two as concerns our preſent Deſign, may be divided,
Evils the leaſt is to be choſen, but becauſe it is not either with Reſpect to its (4) Influence on the Action,
an "Evil to deny Obedience to the Magiſtrate, or with Reſpect to its Origine. With Reference to
when it cannot be given without violating the the former, it is of two Sorts, one being the Cauſe
Duty. we owe to GOD(3). For a weaker Oblic of the Thing ignorantly done, and the other not.
gation always yields to a ſtronger, when both can- The firſt may be call'd Efficacious, and the other
not be fulfill'd together.
Concomitant. The firſt is the Negation of ſuch a
* IX. To a Doubtful Conſcience a Scrupulous one is Knowledge in the Underſtanding, which, had it
very near related; and this is, when the Judgment been preſent, would have hinder'd the Action.
of the Underſtanding is poſſeſs’d with an anxi- Such was Abimilech’s Ignorance, Gen. XX. 4, s.
ous. Fear, left the Thing which we fancy to be who, had he known Sarah to have been Abraham's
Good, ſhould prove Evil, or vice verſa. Now Wife, had never entertain'd any Thoughts of
when ſuch Scruples are founded on probable Ar- taking her for himſelf. The latter is a Negation
guments, the Action is to be ſuſpended, 'till of ſuch a Knowledge in the Underſtanding, as
they can be taken away and clear’d up, either by would not have hinder'd the Fact, ſo that the
the Force of Arguments, or by the Authority of Man, tho' he had known what he was indeed ig-
Wiſe Men: but when they proceed only from a norant of, yet would have done the Thing never-
melancholy and a fuperftitious Softneſs and Indif. theleſs. As ſuppoſe a Man ſhould kill his Enemy
cretion, they are by all Means to be diſcouraged, by a chance Blow, whom he would otherwiſe have
and forcibly driven out of our Thoughts
. There: Killd, had he known him to be in that particular
fore 'tis a good Remedy which Cartes (b) preſcribes Place, where he now threw his Weapon caſually,
againſt Fluctuation of Mind, and the Bitings of and without any Intention of Hurt (5). Thus the
Conſcience which preceed an Action, to accuſtom Boy who flung a Stone at a Dog, and by miſtake
(a) This was the brave Declaration of Socrates, I honour and eſteem you, O ye Athenians; but in point of Obedience, my Duty
to God is to be ſatisfied before my Obligation to you. Plato Apolog. (6) De Paſſion.Arc.170. & 177.
Mr. Barb. NOTES.
(1) See Lib. 5. ch. 12. §. 23.
(2) This Saying of Socrates is by many learned Men compared with the Paſſage in the Afts, Chep. iv. 19. v. 29. but, as Mr.
Le Clerc obſerves, Ars Crit. To. I. he ſpeaks of his Dæmon or Genius, and not of the True GOD.
(3) Hierocles ſpeaks much to this purpoſe, in his Diſcourſe of the Honour and Obedience due from Children to their Parents,
and therefore is worthy our Notice. His Words are, Com. in aur. Pythag. Carmina p. 53. If it happens that the Will of our Parents
is contrary to the Law of GOD, what can they do, who fall under ſuch ar Oppoſition of Laws, other than is uſually done, when any
Duties are incompatible? For when the choice of two Things is offered, the one Good the other Evil, we must neceſſarily prefer the Good,
if we can't fairly diſcharge ourſelves of both at the ſame time, &c.
(4) The Diviſions of our Author are neither clear nor compleat enough; and therefore Titius in his 23d Obſervation rectifies
them, by conſidering Ignorance, 1. With Reſpect to the Influence of the Object upon the Thing we act; whence ariſes Efficaci-
Law, and an Ignorance of Falt. 3. With Reſpect to the Conſent of the Agent; whence reſults Voluntary and Involuntary Ignorance.
(5). This Definition comes near the Opinions of the Peripateticks, which diſtinguiſh the Sorts of Ignorance and Error, by the
Sorrow or Penitence, which the Agent ſhews, or not, after the Action, Ethic. Nicom. lib. 3. ch. 2. which, if it be allowed, ſcarce
any one, but would eaſily avoid the Imputation of his Crimes. But Mr. Puffendorf 's Definition, depends not only upon a falſe
Suppofition, but is incompleat, becauſe ir agrees nor to Actions allowable and indifferent. Nothing but want of Knowledge,
which hinders acting, renders Error eficacious, and conſequently not to be imputed. Now ſuch Ignorance is thus diftinguiſhed,
1. It is efficacious, when it reſpects the necefiary Knowledge of the Action we are about, either as to the Nature of the Thing,
or Intention of the Ageut, fuch Ignorance hinders Conſent, and being involuntary, can't be imputed. This may be eaſily ap-
plied to particular Actions, as well Lawful as Unlawful. On the contrary, 2. Concomitant Ignorance, is that which reſpects
chat Knowledge which has no Relation to the Affair we are about, and which not hindring Conſent, can'c preſerve us from
Imputation. It is voluntary or Involuntary, and having no Influence upon the Buſineſs in Queſtion, can't contribute any thing
to cauſe an Alteration. Tit. Obf. 25.





hit
CHAP. III. as it concurs to Moral Actions.
31
Tant.
neither Ability nor Obligation to know. This An Inſtance of Ignorance about what, and in what,
hit his Mother-in-law and kill'd her, ſaid, (1) T'a' account of not knowing what was to be done,or what
rólamou sme se vennew Bende), Fortune had a better Aim to be avoided, which Ignorance he calls Ignorance
than I. Some diſtinguiſh theſe two Species's of Ig- in Election (3), or Ignorance of Univerſals (4): for
norance in this manner, That whac is upon the theſe every Man was oblig'd to know. But that
former ſhall be ſaid to be done out of ignorance, Ignorance of Particulars, is the thing which renders
what by the latter, to be done by one that is Igno- an Adion capable of being conſtrued Involuntary.
Yer even in the latter Caſe, no Murder, ac- Theſe Particulars are, who, what, about what, and
cording to the ſtrict and proper Senſe, is commit- in what, with what Inſtrument, for what Cauſe, and
ted. For tho' that ill Affection of Mind was in it- by what manner. All theſe no Man in his Senſes
ſelf vicious, yet it contributed nothing to the Fact. can be ignorant of together, becauſe he is at leaſt
With reference to its Origine, Ignorance is divided apprehenſive of his own acting, and therefore can
into Voluntary and Involuntary. The former is by reſolve the firſt Queſtion (Who?) But (5) in all
ſome term’d Conſequent and Vincible, the latter An- the other Circumſtances Ignorance may intervene.
tecedent and Invincible
. The former, whether it be Thus Perſons offend who ſay (6) what they ought
directly affected, or proceeds only from Idleneſs and not, not knowing that what they have ſaid ought
Unattention, is when a Man knows not that which to be kept ſecret. And the ſame is the Caſe of a
he could, and ought to have known: the latter, Man who intending to ſhow his friend ſome
when a Man knows not ſuch things, as he had ſhooting Engine, ſhould let it go off, and kill him.
Invincible Ignorance is either ſuch in itſelf (2) and not (which are the ſame thing) may be, when a Man
in its cauſe, or elſe both in itſelf, and in its cauſe too. kills his own Son, miſtaking him for
his Enemy,
The former is, when in doing a thing a Man is Ignorance of the Inſtrument, is, ſuppoſe a Man ſhould
not able to overcome the Ignorance from which throw a pointed Spear at another, and kill him, ta-
it proceeds, and yet is in fault for falling into that king it to have had no Point. For what Cauſe, comes
Ignorance. Thus frequently when a drunken Man to be conſider'd in Ignorance, in ſuch a Caſe as this,
commits a Sin he does not know what he is doing, Suppoſe a Man ſhould apply a Remedy to another,
yet he is culpable for not knowing it. The latter with deſign of preſerving his Health, and the Re-
is, when a Man not only is ignorant of ſuch things medy ſhould (againſt his Knowledge) prove Mor-
as could not be known before the A&ion, but is tal. The laſt Circumſtance is, in what manner; as
alſo free from any blame upon the account of his if a Man in teaching another ſhould intend only
falling into that Ignorance, or his continuing in to give him a ſlight Blow, but ſhould by accident
it. On this Point is obſervable what Ariſtotle has deſperately wound him (7). The Roman Lawyers
ſaid in his Ethicks, Book III. Chap. 1. 11. and what have treated under a peculiar Head concerning
Euſtathius has commented on the place. Where Ignorance of the Law, and Ignorance of the Fa&t (8).
he diſtinguiſhes between what is done by one being But they did not conſider Ignorance ſo much for
Ignorant, and what is done out of Ignorance. For In- the force and uſe it had in Moral Actions, as for
Itances of the former, he brings the Actions of a the influence it had on Matters of Right, and as it
Drunken, or of an Angry Perlon ; for ſuch Men, made for the keeping, or (9) acquiring, or loſing
tho' they often know not what they do, yet the of any Legal Poffeffion or Qualification. But
Ignorance is not the Cauſe of their Ašting, but the their numerous Reaſonings about both Kinds, may
GoDU
Drunkenneſs, or the Anger, of which 'twas in their be reduc'd to this ſhort Iſſue, That Ignorance of
Power to decline the former, and to reſtrain the the Law is, for the moſt part, join'd with ſome
latter. He adds farther, that thoſe Perſons cannot degree of Culpable Negligence, (10) but Igno-
be ſaid to do a thing unwittingly, who ſin upon rance of the Fact is not; and that therefore Equity

Mr. Barbeyrac's NOTES.
(1) Plutarch, who mentions this Sentence, in two Places of his Works of Morality, makes this to be the Speech of the Step-
Son, ON ITW râs; 'twas not badly thrown. De animi tranquil. p. 467.
(2) This Divition is not very neceſſary, for only the laſt Sort of ignorance is involuntary or invincible ; for in Matters Moral,
Voluntary comprehends not only what is formally conſented to, but what preceeds Conſent, if it be a neceſſary Conſequent of
it. Titius Obſ.27.
(3) i. e. When we are ignorant which of two Things propos'd to us is moſt Advantagious, or with what view we muſt act;
as for example, when we prefer a profitable or agreeable Good before an honeſt one.
(4) Such is the Ignorance of the Law of Nature, at leaſt of its common Principles ; and the Ignorance of the Civil Laws of the
Government to which we belong: So that tho' we may Kill or Poiſon another without any ſuch Deſign, we can’t innocently per-
ſwade ourſelves that Murder or Paiſoning is allowable.
(5) There are ſome other particular Circumſtances, the Ignorance of which is as inexcuſable as that of general Principles.
As for Example, If one ſhall Thoor off a Gun in a Publick Place, and kill a Man, it will be no Excuſe that he thought no Man
would pafs that Way, because he muſt needs imagine that ſuch Places are much frequented.
(6) Thus ſays Ariſtotle; Æſchilus the Poet, being accuſed for publiſhing the Myſteries of Venus Eleuſina, was acquitted, becauſe he
knew not, that thoſe Things wbich he had ſpoken were to be kept ſecret. For the Ignorance of a Thing as to the Quality, or what, cons
fifts not in being ignorant of what is done, but of its being of ſuch a Nature, or having ſuch a Quality.
(7) Two other Circumſtances may be added; as, 1. The Time ; for we may be ignorant whether a Day be Holy or not, a
Fettival, or Working-Day, doc. 2. The Place, whether it be Conſecrated or Common.
(8) See the Digeſt. lib. 22. Tit. 6. and Cod. lib. 1. Tit. 18. ſee alſo Mr. Daumat's Civil Laws in their Natural Order, Part It
Lib. 1. Tit. 18. S.I.
(9) Ignorance of Right (fay the Digeſt.Lib.22. Tit. 6. Leg.7.) hinders not from preſerving our juft Due, but is of no Uſe to acquire
any thing. As to Crimes, their Judgment is, that Ignorance of what is forbidden by the Law of Nature, or Nations, or by the
Revealed Law, is altogether inexcuſable; but as to what is contrary to the Civil Laws, Ignorance or Error excuſes fome.
times, either wholly or in part, in which Cafe Men are conſidered as having Means, or not, to know the Law.
(10) The Reaſon is, becauſe the Law may, and ought to be clear and determinare, but Facts are often very intricate, ſo that
the wifeſt Men can't unfold them; and thereupon, in Matters of Fact, when Ignorance is groſs, it can't be alledged as a Reaſon
available. Ibid. Leg. 2. do 6.6 9. S. 5. ſee Cujus Obſerv. V.39.
directs

32
Of the Underſtanding of Man, BOOK I.
.
mer kich
directs us to interpret (1) the former to the Man's ſome Actions, thinking thoſe ought to be omitted
prejudice, and the latter not.
which ſhould have been perform'd, or vice verſa ;
XI. When not only a Knowledge of the Truth or whether ſome Error occurs in the very Exerciſe
is wanting in the Underſtanding, but a falſe Per- of an Action by means of which the Action is not
ſwaſion has intruded into its room, which paſſes applied ſo rightly as it ought to have been. The
itſelf for Truth, then we ſay a Man has an Erro- former kind of Errors do nor, in our Judgment,
neous Conſcience, or that his Mind is pofſeft by an at all hinder the Imputation of an Action to the
Error. This Érror is (like Ignorance) either Vin- Agent, according as it ſhall appear to agree or
cible or Invincible : The former is that which a diſagree with the Rules preſcrib'd him ; becauſe
Man could and ought to have overcome, by ap- they muſt upon all accounts be eſteem'd ſuperable!
plying ſuch Diligence as is (2) morally pollible, For he that would reftrain the Actions of another
or as the common Condition of Humanity admits by a Rule, ought at the fame time to make a fuffi-
and allows : The latter is ſuch as a Man could cient declaration of his Will, that it may be clearly
not vanquiſh by all Diligence morally poſſible. known by the Perſon whom he is to oblige. For
Where it muſt be obſerv'd, that ſhould we approve otherwiſe 'tis the moſt unjuſt thing in the World
of that Saying of the Emperor Antoninus, Book IX. to require obedience to a Law, when either the
Chap. 43. Whoſoever fins, does in that decline from his Law is unknown, or the diſcovery of its ſenſe ex-
propos'd end, and is certainly deceiv’d (a); yet if the ceeds the Capacities of thoſe whom it affects.
Error were not inſuperable, the ill Acions pro- Therefore, if a Man errs in Theory; that is, if he
ceeding from it cannot be exempted from the fancy a thing to be commanded which is really
number of Sins properly ſo call’d, nor ought to be forbidden, or vice verſa, he is ſuppos’d not to
pardon'd in groſs by a promiſcuous Indulgence (3). have apply'd fufficiene diligence, and therefore
XII. But it ought eſpecially to be remark'd, that he cannot refuſe to bear the Imputation of Faults
Error has different Effects in Adions, which a committed upon ſuch an Error. This Doctrine is
Man may undertake or omit as he pleafes, or the by ſome Caluiſts thus explain’d in other words.
Exerciſe of which is left to his Free-will; and in. If the Conſcience entertain a vincible Error about
fucli Adions as are enjoin'd or forbidden him by the an Evil Thing, the Man fins, as well if he acts
cept our Conſent : And therefore thoſe Conſe- which was indeed forbidden, or that an Action
quences do not flow from it, which are otherwiſe was forbidden, which was indeed commanded, he
apt to follow on ſuch an Action as we have thus ſins by performing the former, and by the forbear-
conſented to; eſpecially if the Error did not ſtealing the latter ; becauſe ſuch a Performance and
on us thro' ſupine Careleſneſs and Neglect. And ſuch a Forbearance are repugnant to the Law, but
therefore in Bargains an Error about a Thing, or the Agent might and ought to have known the
about its Quality, upon proſpect of which a Man Law, according to its true import and ſignificati-
was induc'd to come to ſuch an Agreement, ren on. And yet (4) the ſame Man has ſinn'd no leſs,
ders the Bargain void. For in this caſe the Man if he has forborn an Action which was indeed for-
is not conceiv'd to have agreed abſolutely, but bidden, but by him believ'd to be commanded; or
upon ſuppoſal of the preſence of ſuch a Thing or if he has perform'd an Action really commanded,
Quality, on which, as on a neceſſary Condition, yet ſuch as he imagin’d to be forbidden. For tho
his Conſent was founded : and therefore the Thing. in theſe Caſes there be no external Acts regug-
or Quality not appearing, the Confent is under nant to the Law, yet becauſe the Man thinks his
ſtood to be null and ineffectual. Which Point falſe Notion and Conſtruction of the Law to be
ſhall be diſcuſs’d more fully in its proper place. right, therefore the contrary Intention ſhall be
XIII. But the Caſe ſeems to be very different in imputed to him as Sin: For the Evil Intention of
Neceſſary Actions, or in ſuch as are commanded the Agent makes the Action appear Evil, at leaſt
or forbidden by a Superior. Where we muſt firſt with reſpect to the Agent himſelf. From all
enquire, whether the Error ariſes in the Theory, which it appears, that from an Erroneous Judg-
or in the Practice; that is, whether a Man enter ment no Action can proceed which may be im-
tains a falſe Opinion concerning the Neceſſity of puted as good and right to the Actor, and that

(a) Add. Arrian Epictet. l. 1. cap. 28. do chap. v. 9. 13.
Mr. Barb. NOTES.
(1) For 'cis a Rule of the Law, That Ignorance of the Law hurts any Man, but of the Fact not. Digeſt. ibid.
(2) See Chap. 7. §. 16. The Queſtions about invincible Ignorance and Error, have been much debated in France, in order to
maintain the Rights of Conſcience in Matters of Religion, againſt the Attempts of luch Teachers as are againſt a Toleration,
and are for profecuting all that differ from them, for which'tis convenient that the Curious conſult the Books.
(3). It is certain, that when Men are arrived at the Heighth of Wickedneſs, they fin not for ſinning's Sake, but are ordinarily
ſeduced by their Paſſions, which on a ſudden diverc the Mind from the Thoughts of their Ducy; but tho’a Man conſiders not
the Sin formally in the Inſtant of Sinning, he is not leſs to be blamed, becauſe his Ignorance reſpects Things which he might
and ought to know; and to the Maxim of M. Antonine, if underſtood with the Reſtriction beforementioned, will rectify the
Error of the Philoſophical Sin of the Jeſuits. About which, fee Biblioth. Univerſ. Tom. 15. In fine, Since we never reſolve up-
on an Action, but upon the Account of ſome poſitive Knowledge, and a fimple Defect of Light rarely carries us to any Action,
"Ignorance and Error are ofren confounded in Morality, and what is ſaid of the one, may be applied to the other.
(4) Moreover a Man likewiſe fins as much in doing a good Action contrary to his Conſcience, as by doing a thing evil in ir-
felf, in following the Motions of an Erroneous Conſcience. The Reaſon is, becauſe in the firſt Caſe he directly and deliberately
diſobeys God, which is the moſt aggravating Circumſtance of Sin; and beſides, all the good that can be in the Action can't be
impured to the Agent, who could not but be ſenſible that he had no deſign to do it. Whereas in the other Caſe, there is no
formal Contempt of the Authority of the Lawgiver ; nay, on the contrary, there is a Deſign to obey him : which ſhews that the
Action contains in it ſome moral Goodneſs, altho' in ſome reſpects it may be accounted Evil, if the Error appears not unconque.
rable, See the Philoſophick Comment. &c. Tom. II. 6. 8.
when

CHAP. III. as it concurs to Moral Actions.
33
when a Man is fally perſwaded that ſuch a thing neſt Intention, tho' with an inconſiderate Libera-
is unjuft (1), the thing is unlawful for him to do, lity, conferr'd a Kindneſs on a wicked Perſon, who
ſo long as his Perſwafion ſhall continue uncor will abuſe it toward the maintaining of his Diſor-
rected. Add. l. 46. § 8. D. of Thefts.
ders; he cannot at all boaſt of having done a good
XIV. But if a Speculative Error be entertain'd A&tion, yet he fliall be excus’d from any Share in
concerning a thing Indifferent, that is, if a Man the conſequent Wickedneſſes, and not be reckon'd
ſhould be perſwaded that he ought to do, or to to have contributed any thing toward their Com-
omit ſomewhat, which was indeed left free on miſſion. But when a Man has been particularly
both ſides, he will only ſin if he acts contrary to commanded, to diſcover and obſerve preciſely the
what this falſe Opinion ſuggeſts, upon the ac- Object, the Place or Time of acting, it will be a
count of the Pravity of his Intention, but will hard matter for him to eſcape the Imputation
not fin if he aĉts according to the Direĉtions of of thoſe EffeEts which ſhall proceed from the ill
his Error. For Indifferent Things are plac'd with- applied A&tion, unleſs he can demonſtrate his Er-
out the Bounds of the Law; which cannot be
which cannot be ror to have been inorally inſuperable and unavoi-
tranſgreſs'd by their Performance or Omiſſion: dable. Thus if you give your Servant a ſtrict
And that Error appears very harmleſs which does Charge to wake you at ſuch a certain Hour of the
not give occaſion to Sin. Yet it is plain, the Night, it will not ſerve him for an Excuſe of his
Actions undertaken upon the Motions of ſuch an Default to ſay, that he miftook in telling the
Error, cannot obtain thoſe good Effects which Clock; yet if by any Caſualty the Clock went
otherwiſe follow the like Inſtances of Obedience wrong, or was out of order, the Servant ſhall be
to the Laws: Thus, if a Legiſlator had conſtituted free from all Offence and Blame.
ſuch a Reward to thoſe who comply'd with his
Injunctions, this Reward could not be challeng’d XVI. It frequently happens too, than an Error
by one, who through Error and Miſtake, ſhould intervenes in the Exerciſe of a bad Action, while
have obſerv'd ſome indifferent things, fancying the Actor miſſes the Object at which he aim'd.
them to be poſitively determin'd, and legally In which Cafe, the Malice of the Actor ſhall con-
enacted.
tinue the ſame as if he had not miſtaken, but the
XV. But 'tis much more uſual that an Error Action itſelf ſhall be eſteem'd more or leſs Hei-
Thould intervene in the Practice and Exerciſe of nous, according as the Object is on which it caſu-
Actions commanded by the Laws: As ſuppoſe the ally lighted. Thus a Perſon who intending
true object of the Action ſhould be remov'd, and kill his Enemy, accidentally kills another Man,
another ſubſtituted in its place; or if we ſhould ſhall be nevertheleſs guilty of Murther. See l. 18,
miſtake the Time or Place of the Execution en- $. 3. D. of injuries, & l. 14. D. L. Corneliam de Sicariis,
join'd. Such Actions, as they are not follow'd by & Grot. in Sparſ. Florum ad h. I. Yet the Murther
thoſe Effects which are otherwiſe due to Actions ſhall receive more or leſs Aggravation, according
rightly apply'd ; ſo neither are they attended with to the Dignity or Meanneſs of the Man, who has
the Effets proper to bad A&tions, becauſe the Er- been ſo unfortunately ſlain. Hitherto muſt be re-
ror was not contracted by any Culpable Negli- ferr'd the Caſe of a Man's killing another out-
gence. Which ſome Authors thus expreſs in other right, whom he intended only to wound, or to
Words, An Intervening Error hinders the Action hurt in a leſs degree: for here the Fact itſelf muſt
from being imputed on either ſide, making it nei- be the Rule to go by in Judgment; But when in
ther Good nor Evil
. Whoever (ſays Seneca Herc. fur.) the Exerciſe of a faulty Action a Man by Miſtake
gave Error the Name of Wickedneſs. Thus, tho' lights on a lawful Object, ſuch an AEtion will be
otherwiſe you would be freed from your Obliga- no farther Evil, than as it flows from an ill Inten-
tion by paying a Man what you owe him, yet tion in the Actor; ſo that this Error ſhall hinder
ſhould you pay him Undeſignedly, and by pure the Fa£t from coming under the Name of the Vice
Miſtake, you will not indeed have committed a deſign’d to be committed. And therefore that
Sin, but you will by no means have cancell’d the Saying of Seneca, of the Conſtancy of a Wiſe-Man, c.7.
Obligation. Thus, when a Man has, with an ho- will not hold, at leaſt (2) in Human Courts and


to

Mr. Barb. NOTES.
(1) 'Tis on this account that the Roman Law has decreed, that he that takes away any thing from another, thinking that he
does it without the Conſent of the Owner, commits a Robbery, cho' afterward he find that the Proprietor was willing he ſhould
take it and have it for his own; but he that has as much as in him lies committed the Robbery can't be proſecuted in Law as a
Thief. The Law is this; If I againſt the Will and Conſent of the Owner, as I believe, do meddle with his Goods, tho' the
Owner is willing I ſhould'
, whether am I guilty of Theft? And Pomponius fays, I am a Thief: yet it is crue, that if I am willing
he ſhould have the uſe of them, tho' he know it not, he can't be impleaded as guilty of Theft. Digeſt. lib. 47. Tit. II. Of
Thefts, Leg. 46. S. 8.
(2) Indeed before God it is real Adultery; for, as the Author has obſerved more than once before, and as he hereafter ſpeaks,
Chap. vii. S. 4. An Evil Intention renders the Action Evil, which otherwiſe is Good and Innocent, as to the Matter, and in itſelf;
tho’a Good Intention is not ſufficient to render an Action, materially Evil
, Good. Whereas, on the contrary, if a Man deſigns
to do a Good Action, and happens (thro’Miſtake) to do an Ill One, there is no doubt but God will accept of that Intention, as
if he had effected the Good, that he propounded to himſelf to do; and altho'it gives place, by accident, to fome Sin of another
nature, 'tis no leſs commendable for the Good which he would have done, unleſs the Execution of a Pious Deſign, either become
un profitable, or be hindred by the change of certain Circumſtances. So that the Maxim which our Author has laid down in the
laft Section, I mean, That every A&tion, in doing of which we may fall into an Error, can neither be imputed to us as Good, nor Evil :
This Maxim, I ſay, had need be underſtood with ſome Reſtrictions. Nor is it generally more true, that theſe ſort of Actions muſt
always want, before Humane Judicatures, thoſe Effects which they would have, if they were well applied. As for Inſtance, If a
Man, not knowing it, marries a Woman who hath a Husband already, or is a Relation within rhe Degrees forbidden, as he is no
Adulterer or Inceſtuous Perſon, fuppofing that it be a real Error; ſo their Children cannor be repuced Baſtards, provided that
both the Father and the Mother be under an invincible Ignorance in that Reſpect. This is the very Example that Mr. Hirtius
alledges here, and we may alſo conſule his Diſcourſe of a Suppoſed Marriage, Tom. I. of his Commentaries and ſmall Works,
Briuted in 1700i
É
Con-
34
Of the Will of Man,
Book I.
Adminiſtration of two (1) Faculties, by one of has more largely obſerv’d, Ethic. ad Nicom. I. 3.C.4.
Conſideration (1), That if a Man lies with his own of Benefits, l. 2. c. 19. & l. 5. c. 13. in the End.
Wifi, fancying her to be another's, the Man ſhall be an And compare Libonius Declam. 35. p.780. of Morel-
Adulterer, phó the Woman be no Adulterefs. Add.Sen. lus's Edition.
(1) Conſult alſo the New-Letters of Mr. Bayle, written upon the Occaſion of his General Criticiſing upon Mr. Maimbourg's
Hiſtory of Calviniſm, Letc. IX. S. 12.
CH A P.
IV.
Of the Will of Man, as it concurs in or conſents to MORAL ACTIONS.
The CONTENTS of every Section of the fourth Chapter.
I. Of the Asts of the Will.
V. Certain Diſpoſitions of the Body ſtir up the Will.
II. Of the Liberty of the Will.
VI. As alſo some Habits.
III. That the Will must of neceſſity be indifferent, VII. And Pulſions.
i. e, not forced to chuſe Good or Evil.
VIII. Alſo Intemperance.
IV. How the Will is inclined to good Things, and to IX. A&tions of a Mixt Nature.
Goodneſs in general.
X. Involuntary, and forced Actions.
T
HE moſt Wiſe Creator being pleas’d to make wards the producing or obtaining of it. Intention
Man an Animal governable by Laws, for (or Proærefis) is a Deſire Efficacious toward the obtain-
this Purpoſe implanted a Will in his Soul, as an ing of an End; or it is an Ae of Will, by which it
Internal Directreſs of his Actions ; that the Ob- effečtually tends toward an abſent End, and en-
je&s being propos’d and known, this Power might, deavours Aqually to produce or to acquire it:
by an Intrinſick Principle, and without any Phy- This Act being join’d with the Hopes and the At-
fical Neceflity, move itſelf towards them, and tempts of procuring an End, we may eaſily con-
înight chuſeth at which ſeem'd moſt Agreeable ceive what ſort of Things it is employ'd about :
and Convenient, and reject that which appear- and they, to be ſure, muſt be Thirgs Poſſible in
ed Unſuitable and incommodious. The Will themſelves, and Things in our Power; as Ariſtotle
to
Actions by , . .
Election (4) is concern’d about are
which it is ſaid to act ſpontaneouſly, and by the other in our Power
. Every Man purpoſeth to do that alone which
(2) freely. To Spontaniety, if we may ſo ſpeak, are be imagines (s) bimſelf able to compaß. Again, L:6.
attributed certain Aas and Motions, of which C. 2. What is already done, cannot be the object of our
ſome are Interior, commonly call’d' (3) Eliciti, Choice and Purſuit ; for no Man conſults of what is part,
others Exterior, generally term’d Imperati
. The but of what is to come, and is Changeable and Contingent.
former are ſuch Acts as are immediately produc'd Whereas what is already done cannot be alter'd or recalld.
by the Will, and terminated in the fame Power. And therefore Agatho well ſays, This alone is beyond
Some of theſe are employ'd about the End, as the Power of God himſelf, to make that never to have
Volition, Intention, Fruition ; others about the been done, which bath really been done.
For it enters
Means, as Conſent, Ele&ion, and Uſe. Volition is into the very Definition of Intention or lleguípears
that Act of the Will by which it is ſimply carried that it be made with Reaſon and with Thought.
toward ſome End, without regard had whether Tho' there be many Degrees of Intention, with re-
the End be preſent or abſent; or that Ad by ference to its different Height and Force; yet, as
which the End is barely approv'd of. Others call far as concerns the Occaſions and Purpoſes of
this the Will of Simple Approbation, by which a Civil Life, 'tis ſufficient to divide it into Plenary
Thing is underſtood to agree with the Nature and and Semi-plenary. The former is, that by which
Inclinations of ſome Perſon, though he has not the Will determines on any thing after a full Ex-
yet Actually and Effectually mov'd himſelf to-


Mr. Barb. NOTES
(1) See what is ſaid about this unprofitable and ill-deſigned niultiplying of Faculties in the ſecond Nore of the firſt Chapter
foregoing.
(2) Mr. Locke ſeems to have reaſon to believe, That Liberty is nothing elſe but a Power properly appertaining to Agents, and
not an Attribute or Modification of the Will, which is itſelf nothing but a Power. See his Philoſophical Eſay about the Under-
ſtanding, Lib. 2. c. 21. where this whole Matter about the Will, and Liberty in general, is treated on at large. Mr. Le Clerc in
his Latin Treatiſe about Spirits, Se&t. 1. Ch. 3. is of the ſame Opinion with Mr. Locke, as to the Seat of the Will (as I may ſpeak;)
but he elſewhere enters upon a more particular Examination of the Hypotheſes of that Great Philoſopher, and ſhews, that his
Notions are neither exact nor clear. See his Choiſie Biblioth. Tom. xii. Art. 3. p. 83, doc. and Tom. xvii. Art. 6. p. 236, 237.
(3) The Author makes uſe of the School diſtinction here of, Altus Eliciti, i. e. Acts ſpringing ap (as we may fay) from the
very bottom of the Will; which being Terms not uſed in the French Tongue, they are better expreſſed by, The immediate Acts
of the Will.
(4) Our Author in all this Quotation follows very unfitly fome Latin Tranſlation, which had rendred the Greek, woodepenis,
Election, inſtead of Deliberation, Conſultation, or Counſel.
(5) This Writer being deceiv'd by the Latin Interpreter, tranſlates, cox ole tull äv zavé goue di aerê, qua ex ſeſe fieri poſſe exiſti-
maverit, i. e. which he thinks may be done of themſelves, which being a Miſtake, the Engliſh Tranſator has truly avoided it, as I
have done, by rendring it, which he believes himſelf able to execute.
amination
CHAP. IV. as it concerns Moral Actions.
35

the one than toward the other. Another Thing unalterable way of AEting; and which cannot be
amination of the Matter, and without being dri- fuch a Place, and at ſuch a Time. We muſt add
ven to it by the Violence of the Paſſions. The farther, That tho' the Reaſon, which makes à
latter, when due Deliberation has not been taken, thing deſired or avoided, does not depend upon
or when the Hurry of the Affections has created the Will, but upon the condition of the Object,
a Confuſion and Diſorder in the Reaſon. Fru- according as it bears the Face of Good or Evil;
ition (1) is the Reft, or the Delight of the Will in yet that Appetite and that Averſion, which thus
the End now obtain'd and preſent to it. To which follow the Appearance of the Object, are not of
is oppos’d Repentance, or an Averſion (common- ſo much Force and Sway, but that there ſtill re
ly join’d with Shame or Grief), to ſomewhat mains in the Will a Liberty, whether or no it
which we have before deſigned or affected. Con- ſhall determine itſelf to any external A&t about
Sent is our fimple Approbation of Means, as we ſuch an Obje&t : eſpecially fince ſuch an Evil
judge them proper for our Work : and theſe Means thing may bear the Countenance of Good, and
when they are plac'd within our Reach and Power, conſequently be Deſirable, as long as it ſhall be
employ the two remaining Acts mentioned in our ſet in Oppoſition to a greater Evil. And there-
first Diviſion; for Election determines, and Uſe ap- fore to refute that Notion of Hobbs's de Homine,
plies them to the compaſſing of the End propos’d. Cap. xi. §. 2. that Appetite and Averſion neceſſarily
Thoſe Acts are callà Imperati or enjoin'd, which follow our Pre-conception of ſome Pleaſure, or
are perform'd by other Human Faculties upon the of ſome Uneaſineſs likely to proceed from the
Motion and Appointment of the Will.
Object, no room being thus left for Free-will;
II. Liberty is a Faculty of the Will, by which, we muſt carefully diſtinguiſh the Volition of fim-
all Requiſites of Asting being given, it may out of ple Approbation, from effe&tual Intention or
many propos'd Objects chuſe one or more, and legcipeos, (4) of which the latter does not ſo ne-
reject the reſt; or if one only Object be propos’d, ceffarily depend on particular Objects. In the
may admit that, or not admit it, may do or not Words following this Aſſertion, he applies a very
do it. What we call the Requiſites of Aging, Idle piece of Nicety, while he obferves, That
fome expreſs by the fingle Term Occaſion (2); now when we ſay a Man has free Will of doing this or that,
from theſe the laſt Determination of the Agent is we ought always to underſtand it with this Condition,
conceiv'd as a diſtinct thing, which being added if be pleaſes; for 'tis abſurd to ſay that a Man has free
to the other Requiſites, we immediately proceed Will of doing this, or that, whether he will or no.
to Action; and therefore thoſe Requiſites menti no Body is ſo Stupid as not to apprehend this
on'd in the Definition of Liberty, do not include Contradiction: and 'tis extream Fooliſh to add
that Share which the Man himſelf bears in the the very ſame thing which the Propoſition aſſerted
Action, but are contra-diſtinguiſh'd to it. But as a Condition to it. To ſay that a Man may
more particularly, we call (3) the Faculty of chu- freely will the doing of a thing, if he will, is the
ſing one or more out of many Objets, Liberty of fame thing as to ſay, Peter runs if he runs: and
Specification, or of Contrariety, and the Faculty con- who would ever give this Clauſe the Name of a
cern'd in the Admiſſion or Rejection of one only Condition? From what has been ſaid it likewiſe
Object, Liberty of Contradiétion, or Liberty of Ex- appears, how we are to judge of thoſe Notions
erciſe. évi
laid down by Monſieur Le Grand in his Inſtitutions
Now Liberty is ſuppos'd to ſuperadd to Sponta- of Philoſophy, Part 7. Artic. 5. as if it were impof-
neouſneſs, firſt an Indifference of Acts as to their fible for a Man not to defire what he clearly and
Exerciſe ; ſo that the Will is not oblig'd neceffa- diſtinctly perceives to be Good; and as if a Man
rily to exert one of its A&s, as to defire or refufe : finn'd only upon this account, in not having a
for tho' in general it is impoſible but it ſhould clear and diſtinct Perception of Evil (s).
affe&t Good, and refuſe Evil as ſuch, yet in refe * III. But the chief Affection of the Will, and
rence to any particular Object propos’d, it may what ſeems immediately to flow from its Nature,
determine on which Side it pleaſes, tho' perhaps it is an Intrinſecal Indifference
, upon the account of
may ſeem to have a greater Propenſion toward which it is not reſtrain’d to any certain, fix’d, and
that Liberty ſuperadds to the Notion of Spontaneout entirely extirpated by the Force of any external
neß, is the Freedom of Determination, ſo that the Will Means. And this Indifference we are the more
may upon an internal Impulſe and Motion, exert firmly to aſſert and maintain, becauſe upon the
either of its Acts of wiſhing or loathing, juſt in Removal of it, all the Moralicy (6) of Human
Foc

gb 19. otot Mr. Barb. NOTES.
(1) This Term (Fruition or Enjoyment) is very improper (as any Man "may obſerve ) becauſe the Notion of it, which he here
lays down, is the Effect of Fruition, and not fruition itſelf. It is true that the Latin word Fruitio comes ſomething near it, but
it is very hard to find a Word in French (or any other modern Language) fit to expreſs the Moraliſts Notion upon which theſe
Diviſions are built.
(2) See Chap. V. § 5. following.
(3) This diſtinction does not appear to be very neceſſary. The Liberty of Contrariery implies no more than a double Act of
the Liberty of Contradiction. As for Example, If a Man'is to chufe whether he ſhall read Greek, or Hebrew, he conſults with
himſelf, 1. Whether he ſhall read Greek orno, and reſolves in the Negative. Then, 2. Whether he ſhall read Hebrew or no,
and chooſes the firſt. This Inſtance is taken out of Mr. Le Clerc's Latin Diſcourſe of Spirits, Sect. I. Chap. IIT. 9. 12.
(4). That is to ſay, Altho' we can't bur be ſenſible of ſuch Impreſſions as particular Objects make upon us, yet we are not ne-
ceftarily carried to ſearch for them, or avoid them ; but a Man may by Reafon deny himſelf the Pleaſure which the Apprehenſion
of it may flatter us with, and, on the contrary, expoſe himſelf to that Grief and Uneaſineſs, from which he might be exempted
without thoſe Confiderations, which have induced him to undergo them. See Mote 5. upon Chap. V. §. 13. following.
(5) See the former Chapter, Pag. 32. Note 4. and Chap. V. S. 13. following.
(6) We may add to theſe Quotations another Saying of the ſanie Epiętetus; Ansis apodepérews 8 zí vetus, tiegvro zivetub,
No Man is a Thief or a Tyrant of his own Will. See Gataker's Notes upon Marc. Antoninus, Lib. xi. §. 36. where the Emperor
quotes the Words of the ſame Philoſopher.
Actions
F 2
36
BOOKI.
Of the Will of Man,
Actions is inevitably overthrown. So Arriani on For thus Proclus (ad Timæum) divides Atheiſts into
Epictetus, l. 1. C. 17. What can overcome an Appetite? three Ranks and Orders; two of which he makes
Another Appetite. What can conquer a Defire or an A. thoſe who deny GOD the Care of Human Aktions and
verſion? Another Deſire, or another Averfion. You will Affairs; and thoſe who attribute ſuch a Care to GOD,
Say, He that threatens me with Death compels me. I as impoſeth an abſolute Neceſſity on all Events, utterly
deny it ; 'tis not the terrible Propoſal which lays the depriving Men of their Freedom and Choice. So allo
Force upon you, but 'tis your own Choice which inclines Saluſt the Philoſopher ſpeaks in his Book de Diis &
you rather to the Commiſſion of ſuch a Deed, than to the Mundo : To attribute Injuſtice, or Lust and Wantonneſ
Deſire of Death. In this caſe therefore, as well as in all to the over-ruling Influence of Fate, is to make ourſelves
others, nothing compelld you but your own Opinion; Good, and the Divine Natures Wicked.
Again, In
that is
, nothing overcame your Will
, but your Will. Plautus (Aulular.) when one ſays, I believe this was
Idem 1. 1. c. 29. The Will is not conquerable by any the Will of the Gods, for otherwiſe I am certain it could
thing but by itſelf
. Add. Simplic. ad Epictet
. C. 1. p.22. never have come to paß. Another anſwers him mer-
Of which wicked Deſign thoſe Men are in a great rily, And I, for my part, believe
, 'tis the will of the
meaſure guilty, who fancy fome ſtrange kind of Gods, that I ſhould take you and hang you up for a Rasa
Phyſical Predetermination in Human Deeds, by cal.
which the Motion in itſelf, and as it is a Natural IV. For the right underſtanding of this Indiffe-
Being, is fo determin'd by the firſt Cauſe, that it rence of the Will, ſomewhat ought to be premis'd
cannot be done in any other manner; tho' it after- concerning the Nature of Good in general: Now
wards receive its Morality from the ſecond Cauſe. tho' Good by many (2) of the Philoſophers is con-
Nor are they in a leſs Fault, who from the Divine fider'd abſolutely, ſo that every Being really ex-
Preſcience would derive an abſolute Neceflity on all iſtent may be pronounc'd Good; yet we, without
our Proceedings. For tho' this Attribute of God regarding this Signification, which we judge to
cannot be deceiv’d, yet that it does not take away be very uſeleſs, will only conſider Good, as it de-
the Indifference of the Will, may be eaſily under- notes Reſpect to others, and as it is ſaid to be
ftood, if we either clear the Word Preſcience, from Good to one, or for one. According to which
the Imperfection which it ſeems to imply, as do all Senſe the Nature of Good (3) ſeems to confift, in
other Terms taken from Human Things, and ap- thar Aptitude by which one thing is diſpos's to
plied to the Divine Nature ; (ſince in God there benefit, preſerve, or compleat another ; becauſe
can be no Succeſſion of Time ;) or if we ſay, this Aptitude depends either upon the Nature of
that the Divine Concurrence does in ſuch a man the thing itſelf, or ſuch Properties as they have
ner accompany Second Cauſes, as ſtill to leave naturally, or by virtue of Human Induſtry; and
them the Power of acting in the way originally therefore this Good, to which we may give the
allign'd them by their Creator, not debafing them Name of Natural, is firm and uniform, and has
with reference to Moral Adions from Principal no Dependance on the erroneous and various
into meerly Inſtrumental Cauſes. Add. Lucian, Opinions of Men. But becauſe Good does not ex-
Minoe, & Jupit
. Confut. Anton. le Grand Inft. Philoſoph. cite the voluntary Appetite of Man unleſs it be
Cart. p. 8. c. 17, 18. How Prejudicial ſuch Noti- known, at leaſt under a confus’d Notion; and be
ons are to a State or Kingdom, Grotius is well cauſe Knowledge ariſing from Senſe, gives but a
aware when he obſerves, Obferv. de Dogmat. Reip. groſs Reprefentation of the genuine Natures and
Nox. That thoſe who utterly diſcard the Doctrine of Conſequence of Things, ſo that the Underſtand-
Free-will
, can hardly avoid making God the Author
. ing is often clouded with Error, and
diſorder'd by
of all Wickedneß ; an Attempt which (1) Plato bimſelf the violent Noiſes of Senſe and Paſſion; hence it
declar'd ought not to be born with in a Commonwealth; comes to paſs, that many Men inveſt things fallly
de Repub. L. II. Tão sexõvăra’äffa Sulav tå dind, with the Name and Notion of Good, and this is
ána tòp Soov. We ought to affix any other Cauſe of Evil, what we call Imaginary Good. And farther, every
but never to refer it to GOD. To the ſame purpoſe particular Perſon, as he underſtands a Thing to
Suetonius ſpeaks well when he makes Tiberius (1.69.) make for his Profit, his Preſervation, or his Per-
a Contemner of all Religion, fay, Quod omnia fato fe&tion, loves and deſires it ; and, on the contrary,
agi crederet, for believing the World.to be guided by Fate. what he conceives to be Evil for him, he hates aná




Mr. Barb. NOTES.
(1) The whole Sentence of Plato, of which our Author cites only
the laſt part, is very Emphatical; God, becauſe He is good,
can't be the Cauſe of all Things, as some affert, but is only the Cauſe of some fer Things among men, and no Cauſe of many; for good
Things are much fewer than evil among us, and none can be the Cauſe of good Things but God, but we must ſeek out ſome other Cauſe of
Evils than Him. Theſe Words are but a little before the place where that Philoſopher delivers the Words which Grotius refers
to, reexão di utlov, &c. We must with all Zeal oppoſe
them who affert, That God, who is good, is the Cauſe of any Evil : Nor must it
be endured in any well-governed City, that any Man whatſoever, either Young or old, no not ſo much as a Poet by way of Fi&tion, should
but lightly, much leſ plainly, either ſpeak, or hear any ſuch things, as are neither pious, convenient, nor conſonant in themſelves to be men-
tioned, when ſpoken.
(2) All the Metaphyſicians.
3) According to the Definition which Mr. Locke gives of Good (in his Philoſophical Esſay upon the Humane Underſtanding,
Lib. 11. Chap. XX. S. 2.) every Thing is ſo called, which is proper to produce and increaſe Pleaſure in us, or to leſſen and ſhorten
any Grief; or is able to procure or preſerve us in the Poffeffion of any other Good, or a Freedom from any Evil
. And, on the
contrary, every Thing is accounted Evil which is proper to produce or encreaſe Grief in us, or leſſen any Pleaſure, or is able to
cauſe any Evil to us, or deprive us of any Good. This Definicion which reſpects the Effect chiefly, that Things good or evil
work upon our Spirits, is conſequently more natural than that of our Author, which refers to the Diſpoſitions and Qualities of
the objects, as to the Effect which they produce, with relation to the Conſtitution of our Nature in general, not diſtinctly ex-
preſſing the ſenſe of Pleaſure or Pain, which in all Languages, and in the Opinion of all Men, are comprehended under the No-
tion of Good and Evil. In fine, Tho' the Phlloſophers diſtinguiſh ſometimes between Agreeable and Profitable, and in ſome
Caſes theſe two things may be oppoſed one to the other, yet ’tis certain that every real Good is both Agreeable and Profitable,
as every real Evil is Diſagreeable and Diſadvantagious, if not at preſent, yet at leaſt in the conſequents, and at the end of a
certain Time. See Note 5. of the following Page.
avoids.

CHAP. IV. as it concerns Moral Actions.
37
Ure;
· to
avoids. But as it is not requiſite to the Nature of ments, from thoſe which are (s) only painted and
Good, and to its Power of moving the Appetite, tranſitory; we ſhall ſee how there muſt needs
that it ſhould be conſider'd preciſely as Good only ariſe hence an infinite Variery in the Wills and
for the Perſon deſiring, and abftracting from the Inclinations of Men ; and how all purſue what
Advantage of others; eſpecially ſince upon ac- they think their own Good, but in different Paths
count of the Society and Conjunction of Men, the and by different Means. Beſides, many Men do
Good of others may redound to our Benefit and not know what Things are good for them, and
ſo amongſt Mankind there is ſo fair an A. therefore do not deſire them; many more prefer
greement about the general Nature of Good, and the fair Face and Semblance of Evil to Real and
its chief Parts and Species's, that barely on the Subſtantial Good, and ſo reject what they ought
ſcore of their being divided about ſome Particu- to deſire, and deſire what they ought to reject.
lars, there's no manner of Reaſon either why we To which purpoſe Ariſtotle well obſerves, Ethic. ad
ſhould deny the Univerſal, and Unſhaken, and Nicom. l. 3. c. 6. That to be deſirable by the Will, fim-
Uniform Notions of Good, or why, in a State of ply and properly ſpeaking; which is truly good, but that
Natural Liberty, we ſhould make it depend on to be deſirable by every particular Man which he ima-
the bare Opinion of every private Man, in a ſtate gines ſó. What Gunther writes to Ligurinus may be
of Government on the ſole Judgment of the Su- here applied,
preme Magiſtrate, as the only proper Meaſures
Tantum falfa loquendo
and Rules for its Determination. Add. D. Cumber-
Fallere nemo potest : veri ſub imagine falfum
land, de L. N. 3. where he refutes Hobb's Notions
of Good, etc. 1. f.20. As for the Moral Good
Influit, do furtim deceptas occupat aures.
which appears in Human Actions, it ſhall be dif When Falſhood bare and undiſguis'd appears,
cuſs’d by and by in its proper place.
It never can deceive : but when it wears
From the foregoing Obſervations this manifeſtly
The Garb of Truth, it cheats the heedleſs Ears.
appears to be the Nature of the Will, that it is al-
ways deſirous (1) of Good in general, and always Thus then in almoſt every Thing and every
averſe to Evil in general. For it implies an open Action many Species of Good and Evil, both Real
Contradiction, (2) not to incline towards that and Apparent, croud themſelves into our Thoughts,
which ſeems agreeable, and to incline to that and when theſe have for ſome time variouſly agi-
which ſeems diſagreeable to us. And therefore in tated the Mind, and driven it one while to favour
this general Inclination of the Will there can be one, and one while another, at laſt the Will by an
no Indifference admitted, as if it could (with the intrinſical Force determines itſelf to the embracing
Appetite of fimple Approbation) ſometimes deſire of one Object, and diſcarding the reſt. And an
Good and ſometimes Evil. But they are the par- Action perform'd in this manner, is call'd Spons
ticular Goods and (3) Evils, which give room for taneous or Voluntary, which Ariſtotle thus defines,
the Indifference of the Wills of particular Men, Ethic. ad Nicom. l. 3. c. 3. Tò èxśmroy Sady šo divut
who at different Times, and upon different Occa- japged in our 648871 tai red Q & kete sa cv @cs i regiães. That is to
fions, are very various in their Scents and Purſuits. be eſteemed Spontaneous the Principle of which is in the
And there is this evident reaſon why it ſhould be Perſon acting, who likewiſe underſtands the Particulars
ſo, becauſe there are ſcarce any Goods or Evils in which the Action conſiſts
. Euſtrathius comments
which appear to a Man in their native Colours, on this place to this purpoſe : Both theſe Conditions
and without ſuffering any Mixtures, but common are neceſſary to the conſtituting a Spontaneous Action,
ly they are blended and ſhuffled together; Good is that the Principle be in the Actor, and that the Actor
adulterated with Evil, and Evil is ſweetned with know the Particulars. For be that a&t's out of Ignorance
(4) Good; to which if we add the ſtrange Incli- has the Principle of acting in himſelf, and he that knows
nation which we find to fome Good Things in the Particulars, may yet aɛt by the Compulſion of others.
particular Perſons, and how all Men have not the And therefore neither of theſe Conditions by itſelf
Ability to diſtinguiſh ſolid and durable Enjoy- can make a Thing properly Voluntary,
Mr. Barbeyrac's NOTES.
(1) This is what is implied by that common Maxim, That all Men naturally and unmovably deſire their own Happineſs; for true
Happineſs conſiſts not only in the Enjoyment of all good Things, of which they are capable, but in a Freedom from all Evil;
the leaft Pain being ſufficient to marr our greateſt Pleaſure.
(2) The Quotations which are annexed by the Author a little lower (viz. at the end of the Paragraph in the Englich Tranſla-
tion, and are nored by a, b, c ) are more properly to be put in here, and eſpecially the laſt of them. I ſhall add, upon this Oc.
cafion, a Paſſage our of the Emperor Marco Antoninus, Ti@s óx acòv 82, &c. Is it not a cruel thing to hinder Men from purſuing
things, which they believe to be uſeful and agreeable to them. Lib. VI. S. 27. See Gataker's Notes upon the Place, where he has gas
thered ſeveral Sentences out of ancient Writers to the ſame purpoſe.
(3) Such are all thoſe that concern this Life.
(4) Every Object (ſays this Author in his Abridgment of the Duties of a Man, and Citizen, Lib. I. Ch. 1. S. 11.) makes different
the great Value he has for himſelf. Others affect the Senſes with Pleaſure, and others move him by Self-Love, which engages
him upon Self-preſervation. He looks upon the firſt as Honeſt and Convenient; the ſecond, as ſuitable; and the latt, as profis
table. Every one of theſe Goods in particular draws him with more or leſs violence, according as the Impreſſions, which it makes
upon the Heart, are more or leſs ſtrong See Note 3. of the foregoing Page.
(5) Mr. Locke in his Phil. Eſ ay of Humane Underſtanding, Lib. II. Ch. XXI. S. 58. ſpeaks well to this purpoſe: The preſent
Judgment of Good or Evil, which we make, is always right.' Indeed, things conſidered, as we a&tually enjoy them, are what they ſeem
to be, ſo that in this caſe Good apparent and real are the same thing; for Grief and Pleaſure being eſteemed ſo as we feel them, and no
more; the Good or Evil preſent is really no greater than it appears : and, by conſequent, 'if every one of our Actions be reſpected in itſelf,
without any regard to its Conſequences, we can never miſtake in our Choice of Good, but must always infallibly adhere to the Better Part.
Compare theſe words with what goes before and follows, where that Great Philofopher clears this Matter with much Solidity and
Exactneſs.



V. Buc
38
Book I.
Of the Will of Man,
V. But it does not always fall out that the Mind ference of Conftitutions, the Will ſometimes ſeems
ſhall maintain a kind of Aquilibrium, and apply unable to hinder their Exiſtence, or their break-
itſelf to ating or not acting, without any confi- ing out into Action, yet it may provide fo far, as
derable Advantage on one ſide more than on the to ſee they ſhall not break out into Sin. Thus, if
other. But for different Reaſons, and by different a Man be ſo far vanquiſh'd by the warm Motions
Cauſes, it frequently bends with great Violence of Love, as to raiſe his Paſſion above Reſtraint, a
one way; and ſometimes External Violence bears Power is ſtill left him of ſatisfying his Defires, in
ſo hard upon it, as to take away its Strength and an innocent and lawful manner. See I Cor. vii. 2.
to diſable its Powers. As the Mariner does not
As the Mariner does not And thus Plato diſputes well, De leg. l. 12." That
always cut the Sea with an even and proſperous however the moſt Unnatural of Luſts had pre-
Gale, but ſometimes oppos’d by furious Winds, he
vail'd in a Grecian State, that they might yet be
hardly holds the Helm, and ſometimes being vio “ ſuppreft, by the Laws, if rightly fram'd and
lently ſhaken out of his Seat and his Command, "apply'd.
apply'd.” By the ſame Rule we muſt judge of
he is oblig'd to commit his Veſſel to the Rage of what Horace de arte Poet. and Others have deliver'd
the Tempeft.
concerning the different Manners and Inclinati-
Among the Things then which are forcible in ons of the ſeveral Ages of Life: Thus, for Ex-
drawing the Will to one ſide, are the peculiar ample, if old Men are violently inclin'd to Co-
Genius's and Diſpoſitions of Men, by which many verouſneſs, yet 'tis in their Power to ſeek Wealth
Perſons are render'd extreamly Inclinable to ſome without injuring others, and without uſurping the
kind of Actions. Theſe Diſpoſitions ariſe in a proper Goods and Poſſeſſions of their Neighbours.
great meaſure from the Nature of the Climate and Add. Huart. Scrutin. Ingen. c.5.
of the Soil, (as Lucan. I. 8. ſpeaks,
VI. Another Thing that inclipes the Will vehe-
mently to ſome particular Actions, is the frequent
- Emollit gentes clementia Cæli.
Libor
Repetition and Cuſtom of thoſe Aations, whence it
The Heavens ſweet Clemency
comes to paſs that they are undertaken very Freely
V 19 Softens the Tempers of the Men.
and with great Diſpatch, and that when the de-
fired Object preſents itſelf, the Mind ſeems by a
And Herodot. Calliop. It is the ſettled Appointment of kind of Magnetiſm to be drawn towards it (4).
Nature, that fuft Soils ſhould breed ſoft Men ; and that And theſe inclinations being join'd with an ex-
the fame Lind ſhould never be famous for the Excellency ceeding Deſire and Dexterity of acting, paſs com-
of the Fruits, and for the Vigour of the Inhabitants. monly under the Name of Habits, which as they
To which add, Charon de la Sagelle
, 1. 1. C. 42.) are concern'd about Moral Astions, either Good or
from the Temperature of Humours in Mens Bo- Evil, are call'd either Virtues or Vices. There's
dies, (occalion'd by the Food, the Age, the Diet, no reaſon why we ſhould tire ourſelves to reckon
the Health, the Studies and Purſuits of particular up theſe according to their full Tale and Number,
Perſons) from the Conformation of thoſe Organs, ſince moſt Authors who have hitherto profeſſedly
which the Soul imploys in performing its Duties, treated of Moral Philoſophy, have fancied the
and from the like Cauſes (a). Concerning all main part of their Buſineſs and of their Science
which it muſt be in general aſſerted, That none diſcharg’d, by explaining only the Eleven Words
of them, as they belong to the Production of a that ſtand for ſo many Virtues.
It will fuffice to
Moral Ađion, are of fo great Force and Vehe- obſerve in general, that thoſe Diſpoſitions of the
mence, as to render it impoſſible for the Will to Mind are Virtues, by which a Man is inclin'd to
take (1) the contrary Side (b). And tho' (2) as to Actions making for the Preſervation of himſelf,
ſome particular Impulſes (3) ariſing from the dif- and of Human Society; and that thoſe on the



(a) Add. Hobbs de Homine, c. 13. & Bacon de Augment. Scient. l. 4. c. 1.
(b) Horat. L. 1. Epift. 1.
Nemo adeo ferus est, ut non miteſcere poſſit, The fierceſt Soul to Temper may be brought,
Si modo cultura patientem commodet aurem. If calm to Rules and patienç to be taught.
It is my Opinion (ſays Socrates in Xenoph. Apomnien, 1.) that whatever is Good and Honest, Men by Exerciſe and Application may
attain.
Mr. Barb. NOTES.
(1) A little Care and Diligence (adds this Author elſewhere) feldom fails of taming, and conſiderably amending theſe Natural
Diſpoſitions. Bne if ſometimes it doch not perfectly ſucceed, it at leaſt prevents the Commiſſion of ſuch outward Ads as are puş
niſhable in the Civil Judicatory, and the Difficulty which we find in conquering theſe kind of Inclinations, is abundantly reconi-
penced by the Honour conſequent upon ſuch a Victory. The Duty of a Man and Citizen, Lib. I. Chap. I. 5. 12.
(2) Socrates's Words ſignify no more than this, as Charpentier has very well tranſlated them ; It is my opinion, that all Virtue
depena's upon Exerciſe and Ule; that is to ſay, To preſerve them we must praffice them, and the Series of the Diſcourſe will not suffer us
to doubt that this is Socrates's meaning: So that theſe words are nothing to the purpoſe of our
Author, who being deceived by
the Latin Tranſlation, thought they ſignified, It is my Opinion that all Virtues may be acquired by Exerciſe.
(3) See Chap. XIII
. of Tome I. of Mr. Bayle's Anſwer to the Queſtions of a Provincial, where you'll find ſome curious Paffages
about the Power of the Conſtitution. But if we reflect ſeriouſly upon this Marter, we muſt acknowledge, that thoſe over whom
Nature has ſuch an abſolute Command, are commonly fuch Men as will take little or no Pains to conquer their Inclinations, or
have taken no proper Methods tu do it. Theſe depraved Inclinations are a kind of Natural Diftemper, yer nor alcogether Incu-
rable ; as Cicero very well obſerves, who alledges a notable Example to this purpoſe, viz. that of Socrates, who freely confeſſed,
that he was naturally inclined to thoſe Vices which a Phyſiognomift charged him as guilty of, but that he conquered them by the
aſſiſtance of Reaſon : Cicero's Words are, Qui autem naturâ dicuntur Iracundi, &c. Such Perſons as are ſaid to be by Nature paſionate,
Merciful, Envious, or the like, are ſo made by some evil Diſpoſitions of the Mind, but are curable, as Socrates is ſaid, wheu Zopyrus,
who proféſed himſelf to know every Man's Nature by tbe Figure of his Face, had in a great Aſembly loaded him with many Vices, for
which he was laugbed at by all the rest; but Socrates cleared him of any miſtake, by ſaying that he had ſuch Inclinations, but he had
maſtered them perfe&tly by his Reaſon. Tufc. Quæſt
. Lib. IV. Ch. 37. See alſo the Author concerning Fate, Chap. V.
(4) We may
add, Or if it be abſent it hopes for it with very great Expe&tation ; as our Author ſpeaks in his Abridgment of the
Duties of a Man and Citizen, &c. Lib. I. Chap. I. §. 5. 13.

con-
CHAP. IV. as it concurs to Moral Actions.
39
and Uncleanneſ, in
contrary are Vices, which addict us to Actions been often repeated, or if a Man were to be
deſtructive of ourſelves, and of the Community eſteem'd leſs a Sinner, becauſe he had frequently
to which we belong. And here Mr. Hobbs muſt finn'd. Eſpecially, ſince every Man is the
fall under Cenſure for that Aſſertion in his Book Cauſe of his own obtaining a Habit, or of his
De Homine, Ch. XIII. C. 9. where he declares, acting ſo ſuddenly and expeditiouſly. Ariſtotle has
That, except in Civil Life, there can be no common an Obſervation very cloſe to this purpoſe in his
Meaſure found out applicable to Virtues and Vices, and Ethicks to Nicom. Lib. III. cap. 8. 'oux oubles des de
that, conſequently, in a State of Nature there can be mpdects éx6001 cian, xj ai feeis. Tõv'uev gS megetwv in' dpañas
no fúch Meaſure eſtabliſh’d, by which, as by a Standard, mézee ménes xúcou touer, sidómas sei vel free ce
thoſe Things which we call Virtues and Vices may be reprõis
, reto?'énet.sae A s medecis ě záelv.G, 650$ 7?
Settled and determined. For the Definition which powstão ena’ ón im spir-lo stesso n pest é zero zahogadu, ora
we but now ſet down, will reach even to a Natu- rã TO Ĉnxcor. Actions and Habits are not spontane-
ral State : and whatever things are enjoin'd as ous in the ſame manner ;. for as to our Ačtions we
Virtues in Civil Communities, ought to agree to are. Maſters of them from the beginning to the end,
that Definition; and if any Things ſhould
be or- becauſe we underſt and all the Circumſtances that belong
dain'd contrary to it, they ought to be reckon’d to them: but of Habits the beginning only is properly in
Abſurd and Unreaſonable Commands.
our power, continual additions being beyond our know-
The Diverſity which appears in the Laws of fe- ledge or prevention, just as it happens in the increaſe of
veral different Communities (1), does not hinder, Diſtempers
. But becauſe we had originally the Power of
but that there may be ſome Univerſal and Uni- doing ſo or otherwiſe, therefore the Habits likewiſe are to
form Definition of the Vertues. For this Diverſity be conſtrued as ſpontançous, upon account of the Principle
either is concern'd about ſuch things as are plac'd whence they ſpring On which Place Euſtrathius
without the Sphere of Natural Laws, or it ariſes thus deſcants; We have a command only over the Be-
from hence, that what is really a Precept of the ginnings of Habits, not over their Encreaſe or their End.
Law of Nature, is in one place inveſted with the For the Progreſs and Improvement of them is unperceiv’d
farther Force of a Civil Law, and in other places and unregarded, while they riſe and advance by ſilent
not; or laſtly, it is an Evidence that fome Le- degrees;
whence it happens, that ſome Men run deeper
giſlators, in framing their Edicts, were not be now and then into Wickedneſs and Vice than they inten-
friended by good Reaſon. Of which we ſhall ded (3). This may be ſeen particularly in Drunkenneſ
have more to ſay by and by (2).
Farther, tho’ Vices and Ill-Manners confirm'd freely and beedlefly, as if it were left to our pleaſure
by long Uſe and Habit, ſeem to paſs into a kind whether we ſhould get a Habit or no, by a continuance
of ſecond Nature, ſo as not to be without great of bad Practice, contract a Habit before tbey are aware.
Difficulty reſiſted, as Calpurnius Flaccus fpeaks, De- Nor is it in Vices only that the Additions and Augmenta-
clam. 2. When Modeſty bath once lost its Influence, no tions are undiſcover'd, but in Vertues likewiſe the Ad-
Ruine, no Horror appears deform’d to Minds bent upon vances are made by ſuch ſecret ſteps, that a Man may
Wickedneſs; and Lucian againſt an Unlearned Man, ſooner obſerve his own Proficiency, than he can know
A Dog that is accuſtomed to eat Tripes can hardly be bow he came by it (4).
brought off from it, (Add. Bacon's Elays, c. 37.) yet VII. Thoſe Motions of the Mind which they
Actions proceeding from them ought nevertheleſs call Paſſions or Affections, chiefly excited by the
to be reputed Voluntary, And altho' Actions Appearances of Good and Evil, have likewiſe a
which precede any Habit, and by which it is in- great force in driving the Will violently to ſome
troduc’d, are undertaken with a fuller Intention, certain Adions, beſides their ill Influence on the
and with a more urgent Endeavour, than thoſe Judgment, which they frequently cloud and ob-
which are perform'd after the Habit has been con- ſcure (a).' How many theſe are, by what Means
tracted, when as it were without ſtaying for the they are either rais'd or allay'd, and what Uſe
Command of the Will, the other Faculties ruſh and Service they have in Life, is moſt excellently
ſwiftly upon the Object: yet neither the Goodneſs ſhown by Des Cartes (b) and his Follower Le
nor Pravity of the Actions ſeem upon this account Grand (c); to whom may be added Mr. Hobbs (d).
to be at all diminiſh'd. For 'twould be a thing It is enough to our Deſign, if we only remark,
of very ill conſequence, if a Good Axion were that however violent the Affections may prove,
therefore to be reckon'd leſs Good, becauſe it has they can never quite extinguiſh the force of our Will.

(a) Pindar in his Olymp. Od. 7. ſays, is de ogey@y, &c. A troubled Mind betrays into Miſtake the wiſeſt Heads,
(b) Cartes de Paſion.
(c) Le Grand Inft. Phil. Cartes, p. 7. C. 9.
(d) Leviath. c. 6. & de Homine, c. 12.
Mr. Barb. NOTES.
(1) See what I have ſaid in my Preface, S. 3:
(2) See Book VIII. Chap. I.
(3) The natural Conſequence of this is, that we muſt ever omit, and avoid, whatever has the leaſt tendency in the World to
engage us in an ill Cuſtom. See what I have ſaid in my Treatiſe of Games, Lib. II. Chap. III. $. 2.
(4). See the Author's Abridgments of the Duties of a Man and Citizen, Lib. I. Chap. I. $.13, and what he ſays in the follow,
ing Chapter S. 13.
But
40
Of the Will of Man, ,
Book I.
But that Men of the weakest Souls may obtain (1) an ert their force; and unleſs theſe are diligently
abſolute Command over their (2) Paſſions, if they uſe a kept under, the ou Sucillators or Conſent certainly
Sufficient diligence in managing and directing them, as follows, when the Power of the Soul, which was
Des Cartes has prov'd (3). Ovid's Medea put a
conſtituted for the governing and reſtraining of
Cheat upon herſelf when ſhe ſaid,
the Affections, idly lets go the Reins, and permits
itſelf to be dragg'd by thoſe it ought to guide.
Sed trahit invitam (4) nova vis.
This ou lugell geois then, or Conſent, he declares to
eſpecially ſince ſhe acknowledges that the Judg- be Voluntary, and to be perform’d at the free
ment of Reaſon oppos'd her Paſſion.
Pleaſure of Man: But he tells us farther, that
from diligent Attention and Exerciſe, but more
aliudque cupido,
eſpecially from the Holy Spirit of God, fufficient
Mens aliud ſuadet, video meliora proboque
Deteriora fequor.
Metam. VII. 19, &c. firſt Motions (which the Philoſophers compare to
may be obtain'd, even againſt theſe
The Obſervation of Grotius on Matthew V. v. 22. the twinkling of the Eyes,) ſo as to hinder them
is very applicable to our preſent purpoſe: He con from any long continuance, or any forcible (a)
ſiders three diſtinct Things in Anger, the nao way.
or Affection, the 'Osuuri or Impetus, aud the ousre le Beſides, that Man is arm’d by Nature with
fois or Confent. The ndio or Faculty, ena- ſome peculiar Inſtruments for moderating the
bling us to be angry, being implanted in us by Paſſions, and that he is engag’d by a ſtricter Ne-
Nature, cannot be extirpated ; but it ſhould be ceflity to reſtrain them, in as much as he incurs a
rank'd among thoſe indifferent Things which we far greater harm to his Health and Life from their
may make either a good or a bad uſe of (s). But Violence and Rebellion, has been fully made out
becauſe that part of the Mind where the tid. In or by Dr. Cumberland (b). To conclude this Point,
Paſſions are feated, is in itſelf irrational, hence ſince ſome of the Paſſions are excited by the ap-
it comes to paſs, that without expecting the Judg- pearance of Good, others by the appearance of
ment of Reaſon, the 'Opuci or ſudden Sallies, ex- Evil, and accordingly ſpur us on toward the pro-
1

(a) Senec. de Ira. II. 4. (6) De L. N. c. 2. 1. 26, 27.
Mr. Barb. NOTES.
(1) This wholly depends upon our Endeavours cimely to conquer theſe dangerous Enemies. 'Tis a known Speech of Ovid's,
Remed. Amor. v. 91, 92.
Principiis obſta : Sero Medicina paratur, Oppoſe beginnings: Med'cine comes too late,
Cum mala per longas invaluere mords. When long delays have haftend on our Fate.
Indeed, as Mr. Montagne ſays (Esays Lib. III. Chaps xiii.) if a Man looks cloſely into the Motions and circumſtances of his
Paſſions, which prevail uſually upon him, he may obſerve how they come, and abate a little of their Furiouſneſs and Courſe.
They don't fall upon him all of a ſudden, and, as I may ſay, take him by the Throat, but they threaten, as it were, and creep on
him by degrees. Seneca has ſome fine Reflections of this Nature, which I can't paſs over without notice, (Epiſt. 116. at the end,
and De Irå Lib. II. Chap. xii, xiii. which deſerve alſo our peruſal); Scis quare non posſumus iſta? Quia nos poffe non credimus, &c.
Do you know why we can't command our Paſions ? 'Tis becaule we don't believe we can. There's more in't. We love our Vices heartily
and therefore we become the Defenders of them, and inſtead of baniſhing them, we do all we can to excuſe them. Nature has made us
able enough to refist them, and to free ourſelves from their Dominion, if we would make uſe of our forces, if we would rally them, and
employ them wholly in our oron Cauſe, or at least would not turn them against ourſelves. Our only hindrance is, we will not, and the
Inability that we plead is a vain Pretence. There is nothing so hard but the Mind of Man may compaß and accuſtom itſelf to it, by fre-
quent and daily Meditations. There is no Paſſion so fierce and cornmanding, but Education and Care can tame. The Soul can govern
itſelf as it pleaſes. Some have found out a way to reſtrain Laughter altogether, others have forborn Wine, Venery, and all sorts of
Drinks; others have accuſtomed themſelves to long and almoſt perpetual Watching, unleß with Slumbers for a ſmall Moment, other's
have learned to dance upon a Rope, to carry vaſt Burdens, which bave ſeemed to be above all human Abilities, and to dive very deep into
the Sea, and ſtay a long time without Breathing. See what ſhall be ſaid on Chap. V. S.13. Nore 6. & Heſiod de Oper. & Dieb.
V. 290, &c. Edit. Cleric:
(2) That is to ſay (as our Author ſpeaks in his Apology, S. 22.) at leaſt, that they do not produce any Action that is puniſh-
able in Humane Judicatures. Indeed if we examine all the Laws of the World, we ſhall find none that wholly excuſe Offences
committed in a violent Paffion; an Evidence, that all Legiſlators ſuppoſe, that it is in the Power of a Man to reſtrain his Paffi-
ons. Ariſtotle has obſerved the ſame thing in theſe Words, Tosmos 'šorre, &c. To theſe things agree not only what's done privately
by every one, but what's done by Lawgivers themſelves, who puniſh and corre&t all sorts of Offences, except ſuch as are done through Force
or Ignorance, of which they are not the Cauſe. Ethic, ad Nicom. lib.
3,
ch. 7.
(3) Dict. loc. Art. 5. & Cicero Tufc. Queſt. 1.3. ſpeaks, All Diſeaſes and Diſturbances of Mind ariſe from the ſcorn and the negle&
of Reaſon.
(4) There is a place in Xenophon's Cyropédia, i.e. Book of Cyrus's Education, which contains ſome notable Reflections to this.
purpoſe : “A Mede named Araſpes maintains there, That Beauty has no force naturally to incline a Man to depart from his
Duty, whether he will or no; for if it were ſo (adás he) it would have the ſame effect upon all Men, as Fire burns every one
" that comes near it. But we ſee that ſome are affected with Beauty and ſome not, One loves one Beauty, and another, another.
"In a word, 'Tis a Voluntary Thing, and every one loves whom he pleaſes. A Father does not fall in Love with his Daughter,
nor a Brother with his Sifter: Fear and Law reſtrain us from entertaining a deſire of ſuch Perſons as others love.
" were there a Law ſtrictly forbidding Men not to be Hungry, becauſe they have nothing to eat ; or not to be thirſty, becauſe they
“ have nothing to drink; nor to feel cold in Winter and Hear in Summer, no Man would obey ſuch a Law, becauſe 'cis above
“ their power to do it. But Cyrus objected to this Affertion, If it be in our Power to love of not, why can we not ceaſe to love
“ as we pleaſe? How comes it to paſs that Love tyrannizes over ſo many Men, who facrifice all to that Paffion, and put them-
“ ſelves upon a thouſand mean Actions to pleaſe the Object loved? What is it that makes their Chains ſo ſtrong, and makes them
“ avoid all means that may free them from their Slavery? Araſpes anſwers, They are Men of vicious and looſe Tempers, lazy
“ Souls, and Slaves to their Appetites, who tho'they wiſh a thouſand times, that Death might deliver them from their Torments,
yet they have not Courage to undertake it themſelves, tho' nothing were more eaſy, if they deſired it. Men of this ſort ſcruple
“ nor to thieve to ſatisfy themſelves, and as they are in the Judgment of all the World puniſhable, becauſe nothing could force
“them to rob another, ſo we may ſay, that the faireſt Countenance does not force a Man to love it, or ſeek that which he ought to
« abſtain from. So that a Man who gives himſelf up to his Lufts, without referve, abſurdly accuſes Love of conſtraining them,
“ when as indeed 'cis nothing but his own Weakneſs. Such as ſtand upon their own Honour and Integrity are ſubject to theſe Af-
"fections, as well as others, they love Money, fine Horſes, and handſome Women, but they eaſily paſs them by when they can't
« be attained without a Crime. This is the Subſtance of Xenophon's words, Kai o reavíox O- 'Agouns, &c. Xen. de Inſtit. Cyr.
Lib. V. Chap. 1. §. 5, 6, 7. Edit. Oxon. See alſo Chap. II. S. 6. Pag. 19. Note 2,
(5) See Seneca of Anger, Lib. II. ch. 3, 4.
curing


Whereas
CHAP. IV. as it concurs to Moral Actions.
41
curing the one, and avoiding the other: this dif- Motion, and by theſe Means renders Men ex-
ference is obſervable between them; that the for- treamly prone to Luft in the firſt place; Propert.
mer kind afford little or no excuſe, if any thing 1. 4.
be done otherwiſe than it ought to be, by their
Inſtigation ; but the latter deſerve the greater de-
-Potæ non fatis unus erit.
gree of Favour and Pardon, according as the
Her Sparks ſhe doubles in her Drink.
threatning Evil which excited them was more un-
grateful to Human Nature. For 'cis much eaſier to and not much leſs to Anger and Raſhneſs: Upon
want a Good, not neceſſary to the preſervation of which Account Lycurgus us’d to call Wine, an evil
Natüre, than to admit an Evil tending to the deſtru- Potion, (or a Magick Draught) becauſe it chang'd
ction of our Nature: whatever Ariſtotle (a) has af, and turn'd Mens Minds. Hygin. Fab. 132. Iſocrat.
firm'd to the contrary in that Maxim of his, Xdaemreó- ad Demonic. The Mind, when debauch'd with Liquor,
Dzegu videñ pé ze stal. W ou pemano (1) It's harder to reſist Plea- is in the ſame Condition as a Chariot that has loſt it's
ſure than Anger. When a Man has done an ill Action Driver : The latter is not more fatally hurried into Dan-
out of obedience to an itching Luſt, he is ſuppos'd ger, than the former into Sin. And for the ſame Rea-
for the ſake of the preſent Pleaſure, voluntarily Ton the Cretians, receiv'd this among other Laws,
to run the hazard of bearing whatſoever Evil of their famous Minos, Mù ovpaívesy amúnors eis uigny
may thence enſue: and therefore when he has al. (b), Not to Drink with one another ſo far as to Diſor-
ready had the Enjoyment, which he thought equi- der and Exceſs. Among the Indians Drunkenneſs
valent to the Evil that might ariſe from it, he can- lies under the heavieſt Cenfure, being rank'd in
not upon any pretence plead for the Mitigation the Number of their five moſt heinous Sins, which
of that Evil. But he that has done amiſs upon are ſaid to he theſe ; To lie with one's Mother, which
the fear of an impending Evil, has all the Infir- takes in both a Mother-in-Law, and the Wife of
mity of Human Nature apologizing and interce a Maſter or Teacher. 2. To kill a Brachman. 3. To
ding in his behalf, ſince the only Cauſe of his ſteal Gold.
4. To be Drunk.
5. To Converſe and
Miſcarriage was his being willing to admit what keep Company with Perſons guilty of any of theſe Crimes
he imagin'd to be the leaſt of the Evils likely to (c) Mabomet too, under the Notion of Religi-
befal him. But of thoſe Caſes we ſhall hereafter on, found Means to prohibic his People the Uſe
have a larger field to conſider and determine, viz. of Wine, tho' they were naturally more addicted
in Lib. VIII. Chap. III. J. 19.21.
to it than moſt other Nations (3).
VIII. Laſtly, The Vice (2) of Drunkenneſ is a great Whoſoever is voluntarily guilty of this Vice,
Inciter of the Will to ſome particular kinds of ſince he knew, or at leaſt might preſume what
Actions; and this is procur'd either by Drink, or Effects would follow it, can with no more Rea-
by ſome other ſorts of Fumes, or by Opium, a fon deſire to be freed from the Imputation of
thing of ſo univerſal uſe in the Eaſtern World, Faults committed under its Guidance, than he
the effect of which is, that it diſturbs and drives can with a good Grace complain of a Shower of
along the Spirits of the Blood with a moſt violent Rain falling into his Houſe, when he himſelf,
Libendeavours to
(a) Ethic. Nicom. I. 2. ch. 2. (b) Plato, Minoe. Add. Plin. l. 14.c. 22. Ariſtoph. Veſp. Drunkenneſs is all Mischief and all Ter-
yor: It tears down Gates and Doors, and defies Oppoſition. And then you pay for it doubly the next morning, in your Pocket and in your
Head.
(c) Manil. Aftron. I. 5. Ardeſcit vitio vitium, vireſque miniſtrat
Bacchus, do in flainma Sevas exſuſcitat iras.
One Vice adds Fewel to another's Fire,
muloyment
And Bacchus makes their Fury blaze the higher. bola ob llI 70
Mr. Creech.
Mr. Barb. NOTES.
coniggande
(1) Our Author might have obſerved, thar Ariſtotle contradicts himſelf
, for elſewhere he thus ſpeaks, greenE TÁTELYV 2$, &c.
'It is harder to bear Grief, than to abſtain from Pleaſure, Lib. 3. ch. 12. See alſo the beginning of Chap. xv. aid
vii.
where he maintains, that Intemperance is more Voluntary and Shameful than the Tranſports of Anger. Muretus
prove the firſt of theſe Propoſitions to be contradictory in his Poſthumous Comments Printed at Ingolſtadt 1602, but his Reafors
are very weak; and I don'c obſerve that he ſpeaks any thing about thoſe Places that I ſhall quote prelently, to reconcile them
with that he was treating of. He had a good opportunity, and I doube nor but he might have prevented fo palpable a Contra.
diction. All that can be ſaid for Ariſtotle is, that after he had advanced ſuch a Paradox, he thought fit neceſſary to maintain
his Propoſition, unu curgarting himſelf reaſon'd at length from the Light of common Senſe and Experience; for the Philoſo-
phers hold this as a conſtant Maxim, That he that yeilds to Pleaſure is more to blame than he that is overcome with Grief, becauſe
tis eaſier to conquer the firſt than the last. Ariſtotle does but repeat what his Maſter Plato aſſerted before him. A. Nûr šo
molées, &c. Ath. Shall we ſay that he is worſt who is conquered by Grief or Pleaſure? Cl. He ſeems to me worſt who is conquered by
Pleaſure, for we all agree, that he who is conquered by Pleaſure is shamefully baffled by himſelf, but the former is vanquiſhed by Grief.
To this we may add the Authority of the Imperial Philoſopher Marcus Antoninus, lib. 2. ch. 1o. where he thus ſpeaks, Theo-
phraftus, in his Compariſon of Crimes, following the common opinion, determines as a great Philoſopher, Thar thoſe which come from
Luft, are greater than thoſe that proceed from Anger; for thoſe that are moved by Anger ſeem to act againft Reafon, contrary
to their Purpoſe, and with a ſecret Remorſe; but they that follow their Luſts, and are conquered by their Pleaſure, appear more
intemperate, and effeminate in their Faults. So that it is with great Reaſon and Truth, which is an Honour to Philoſophy, chat
he adds, The Crime that is done with Pleaſure, is greater and more puniſhable, than that which is committed with Sorrow and Grief.
Indeed he that is angry reſembles a Man, who having received an Offence, is provoked by Grief to revenge himſelf, whereas the
voluptuary is moved by his own Paſſion to do an Injuſtice for his own Satisfaction. See further what is ſaid on Chapter 6. S. 14.
(2) This Author elſewhere joins thoſe ſort of Vices, which deprive us of the Uſe of our Reaſon, either for a Time, or for
the reſt of our Life. But, to ſpeak truly, the Effect of thoſe Vices, as well as Drunkenneſs, is not ſo much to incline the will to
certain Things, as entirely to deſtroy the Principle of human actions, becauſe in that a Man knows not whac he does. Titius
Obf. 37. upon Pufendorf of the Duty of a Man and Citizen, chap. I. §. 15.
(3) See what is related in the Univerſal Library, concerning the Inhabitants of Siam, Tom. 10. p. 529,
G



Note 4
Out
42
Of the Will of Man,
Booki
out of a perulant Humour, has been pulling off is ſtrongly confirm'd by the harſhneſs of the Edia,
the Roof. Plautus (c) has a merry Jeſt to this pur- and by the Care and Trouble of Obedience :) and
poſe;
Wine (ſays he) would be too cheap at the Price partly to the Hatred and Obſtinacy which we
it now brings, if a drunken Man might do whatever be bear towards the Forbidder, whence we diſdain
pleas’d, without being call’d to an Account.
that our Liberty ſhould be abridg’d by a Perſon
Yet in indifferent Actions, which are left to eve- who looks ſo ill in our Eſteem ; whereas, on the
ry Man's Pleaſure to perform or omit, Drunken- contrary, it's the Nature of Love to make us wil-
neſs is allow'd this Favour, that the Effect which ling to comply with the Commands and Deſires
would have follow'd any ſuch Action, had it been of the Parry we affe&t.
(1) deliberately perform’d, ſhall now be utterly IX. It is farther obſervable, That ſometimes
invalid, ſince the overtaken Perſon acted with upon the Approach of extraordinary Dangers,
much Diſadvantage.
and ſuch as are ſuppos'd to exceed the common
And, thoſe Cauſes which we have hitherto Strength and Firmneſs of Human Minds, the
réckon'd up, are the moſt conſiderable among ſuch Will is fo vehemently urg'd and preſs’d, that it
as impofe a kind of Phyſical Biaſs and Tendency gives Conſent to ſomewhat, which had ic been
on the Will. That which morally inclines it moſt
, free from that Neceſſity, it would have utterly ab-
or at leaſt
, ought to incline it, is Obligation: And hor’d. Adions of this kind have the Name of
yet this, how great ſoever, neither takes away Mixt, being partly voluntary, and partly invo-
che Will's intrinſick Liberty, nor renders the Acti- luntary. Thus far they are to be eſteem'a'Volun-
on voluntary, tho' the Lufts and Paſſions may tary, in as much as their Principle is in the Agent,
ſtrive vehemently to oppoſe it. Hither may be who is acquainted with the Nature and Circuma
refer'd that Sentence of Ariſtotle, To 70te dnéosa qué ftances of the Thing he is going about : And in
var av dei égéveats, 'Tis abſurd to call thoſe Things Invo- as much as the Will for the preſent Time and Ne-
luntary, which we ought to defire and to purſue, Ethic. ceſfity, inclines toward them as toward a leffer
Nicom. I. 3. C. 3:
Evil, or toward one part of an Evil, when other-
We ſay, Obligations ought to incline the Will; wiſe a greater or an entire Evil muſt be under-
for ſuch is the perverſe Diſpoſition of Human gone: And this leſſer or partial Evil turns into a
Minds, that frequently the very forbidding of a kind of Good, when both it and the Evil com-
Thing, raiſes a Deſire of doing or of enjoying it par'd with it, cannot be both avoided together.
(2), as Ovid Amor. III. 4. ſpeaks,
Ariftotle Ethic. ad Nicom. 1. 5. c. 7. ſays, A leſer E-
vil, if it be compar'd with a greater, may be eft eem'd
Nitimur in vetitum ſemper, cupimuſque negatum. a kind of Good. So Quinctil. Inftit. VII. C. 4. In
Quicquid ſeruatur, cupimus magis; ipſaque furem comparing Evils, that
which appears lightest, must paſ
Cura vocat.
for Good. Ariſtot. Ethic. III. 1. Simply and abfo-
Fuvat inconceſ a voluptas.
lutely ſpeaking, no Man in bis Wits willingly throws
Cui peccare licet peccat minus: Ipfa poteſtas
away his own Goods, but for the Security or Preſervati-
Semina nequitiæ languidiora facit.
on of himſelf and others. Such Actions then are to be
accounted Mixt, tho they approach nearer to Voluntary
We court the more what Men the leſs will grant; than to Involuntary.
Warm when Deni'd, and fiercer by Reſtraint. But the ſame Aaions are likewiſe in ſome De-
What's cloſely kept improves in our Belief; gree Involuntary, becauſe the Will ſeems to be
To hoard the Gold is to invite the Thief.
driven on them contrary to its Inclinations, and
Forbidden Pleaſures have a quicker Taſte. would never undertake them, if the impending
They that have Freedom uſe it leaſt ; and ſo Evil were by any other Means poſſibly to be em
The Power of Ill doth the Deſign o'erthrow. ſcap’d. For which Reaſon they have this Quali-
Sir Charles Sidley. ty in common with Involuntary A&tions, that the
moral Effects and Conſequences attending A&ions
Which Unhappineſs, if we conſider its clofer and meerly Voluntary, do in theſe, in a great mea-
"nearer Cauſes, may be refer’d, partly to the vici- fure, if not totally, fail (3). For tho Tometimes
ous Curioſity of Mortals, who admire every a Man may have ſo ftrait an Obligation laid up-
thing that they are Strangers to, (which Opinion on him, that even upon the Threats and Appre-
(6) Aulular.
Mr. Barb. NOTES.
(1) If we will make a more curious and exact Difinction of the Effects of Drunkenneſs, we muſt obſerve how a Thing may be
imputed to a Man which is done in his Wine, according to the ſeveral Degrees of Drunkennefs, viz. The One moderate, which
does not hinder a Man's acting freely, and with Deliberation, the
other ſtrips him eacirely of the Uſe of his Reaſon. This laft
fort, if it be alſo involuntary in the Original, that is to ſay, if a Man falls not into it by his own Fault, brings forth Actions al.
together involuntary, and conſequently furniſhes him with a ſufficient Excuſe ; but if Drunkenneſs be voluntary in its Principle,
then we muſt diſtinguiſh Actions indifferent from Actions unlawful. As to the firſt, if a Man, for Example, make a Contract
that hinders the Effects of an Imputation, becauſe thoſe fort of Actions require a particular Knowledge of what is done, and the
Fault which went before them, and from which they derive their Original, is not ſufficient to make it of Force. See lib. 2. ch.6.
S. S. But it is not the ſame in unlawful Actions, for if a Man be in an Eſtate, from whence 'cis his Fault if he fall, becauſe he
might and ought to hinder it, his perfect Drunkenneſs will not excuſe him from the Crimes which he has committed thro' Excels
of wine. And if he purs himſelf into that Condition on purpoſe to execute ſome ill Deſign, he deſerves a double Puniſhment.
Titius Obſeru. 38.
(2) See Montagne's Eſay, lib. 2. ch. 15. p. 451, &c. Edit. Fol. at Paris, 1657.
(3) The Author ſpeaks nothing here of good Aations, or indifferent, but contents himſelf to ſpeak of ill ones only. Mixt good
Actions are accounted for nothing, and every one may ſee the Reaſon. Indifferent Actions, done in the ſame Manner, can no
more be imputed to the Agent, for tho' there is a kind of Will, it is nor fufficient to produce an Obligation. The Injuſtice of
the Author of Violence, rendring him incapable of acquiring any Right by that Action, which is not fully voluntary, and conſe:
quently laying no obligation upon him, who never conſented, but with Regret. Titius Obſerv. 40. See lib. 3. ch. 6. S. 10.
henſions


CHAP. IV. as it concerns Moral Actions.
43
henſions of Death, the moſt terrible of Natural ſtotle ſpeaks, Ethic. ad Nicom. III. 1, 2. Thoſe Thing's
Evils, (1) he ought not to recede from it; yet ſeem to be involuntary, which are done either
upon Force,
where this does not expreſly appear, it is not eaſi or upon Ignorance. An A&tion cannot be ſaid to have
ly preſum'd and ſuppos’d, as being too ſharp and been perform'd involuntarily out of Ignorance, unleſs it be
rigorous for the Condition of Humanity: And followed with Sorrow and Repentance.(8) Now a Man
where there is no ſuch ſevere Obligation impos'd, is properly ſaid to be compelld, when by the Force
it would be downright Folly not to come off as of a ſtronger extrinſical Power, he is brought to
cheaply as we can, and not to ſuffer as ſmall a apply his Limbs otherwiſe than he would, ſo as to
ſhare of Evil as we may compound for. And expreſs his Averſation and Diffent by manifeſt
therefore many things, which (2) would have de- Signs, and eſpecially by Corporal Reſiſtance and
ſerv'd Reprehenſion, had they been undertaken Reluctancy. As if (to uſe Ariſtotle's Examples)
without ſuch a Neceſſity, when they are done the Wind, or Men Superior to us in Power, ſhould vio-
under the Urgency of ſo hard a Caſe, are com- lently carry us any where against our Conſent. Tully in
mended by all fair and equitable Judges ; (3) other his Second Book of Invention, l. 2. c. 32. gives
things deſerve Pity rather than Revenge. Otheran Inſtance after this manner; The Rhodians had
things are for the ſame Reaſon, either entirely, or a Law, that whatever beak'd Veſſel ſhould at any
for the moſt part (4) excus'd, and in others the time be found in their Harbour, it ſhould be con-
Odium and Fault of the Action is devolv'd upon demn'd as Prize, and expos'd publickly to Sale ;
the Perſon (5) who reduced him to that unhappy Now the Queſtion is, Whether a Veffel of this
Extremity (6), the Man who perform’d the Deed kind, being driven into their Ports by a Tempeſt,
being declar'd innocent. Ariſtotle diſcourſes well ought nevertheleſs to ſuffer the common Penalty ?
on this point(7), Ethic. ad Nicom.l.1. For theſe kind 'Twas upon this Topick, that the Friends of the
of Aktions, ſays he, Men are ſometimes commended, raviſh'd Lucretia (a) comforted her under her deep
when for the ſake of great and honest Things, they have AMiction, by turning all the Guilt on the vile
Suſtaind ſome Indecency or. Hardſhip. To ſome things, Author of the Crime, telling her, That the Mind
ibo we allow no Praiſe, yet we grant a Pardon, when only properly ſinn'd and not the Body; and that there
a Man bas done what be ought not, upon the fear of E- could be no Fault where there was no Deliberation or De-
vils exceeding Human Nature, and not tolerable by fign. 1
Mortal Strength. And there are ſome things perhaps, This Reluctancy in Civil Courts is preſum'd to
which no Man can be forc'd or compelld to commit, but have been us’d in ſuch Actions or Paſſions, as are
ought rather to endure the utmost Extremities, and not vulgarly thought to be willingly perform’d or
Death itſelf. Add. Euſtrath. ad. loc. But I queſtion undergone, and where all Signs of an Adual
whether it were proper, (eſpecially for a Chriſtian Conſent are wanting ; whence aroſe the Term of
Biſhop) to give this Example of a mixt Action, Interpretative Reluctancy.
Familiarity with another Man's Wife, though in itſelf Thus whereas by the Jewiſh Law a Virgin is fupa
foul and ſinful, yet ceaſetb to be ſo, if undertaken on pos’d to have ſuffer'd Raviſhment, if ſhe loſt her
the Account of killing a Tyrant.
Honour in the field, without Witneſſes; yet Philo
X. Laſtly, ſince to make an Action Voluntary, the Jew (6) denies the Favour of this Law to reach
there is requir'd not only that the Principle of a Maid, who admitted a Debauch willingly, tho?
Motion be in the Agent, or that the Agent ad- in a Solitude: as neither can the ſame Law hurt a
dreſs himſelf to work by the Impulſe of his own Maid in the City, who in the like Danger either
Will, but likewiſe that he knows what he is doing, could not cry out or cried to no purpofe, and with-
upon the want of both, or of either of theſe Con- out Relief.
ditions, the Action is rendred Involuntary, as Ari A fore’d Thing may be ſo either in it ſelf, and



(a) Liv. lib. 1. c. $8. (b) De Legib. Special.
Mr. Barb. NOTES.
(1) See lib. 2. chap. 6. §. 2. following:
(2) As for Example, when a Woman, or Maid, ſays the Man that makes an Attempt upon her Chaſtity. See lib. 2. ch. s.
S. 11. following.
(3) Such is the Caſe of a Woman, who, in a Famine, is forced to eat her own Child, as it happened in the Siege of Jeruſalem,
as Joſephus tells, lib. 7. de Bell. Fud. c. 8. and as it befell the 7 Engliſh Men, of which cur Author ſpeaks, lib. 2. ch. 6. 9. 3.
(4) As when a Woman, or Maid, Nays herſelf to avoid the Loſs of her Chaſtiry, with which ſhe is threatned by an extravagang
Man, who will ſatisfy his Lufts at any Rate. See lib. 2. ch. 4. S. 19. following, where Mr. Hirtius refers us to what the Author
Ipeaks, lib. 2. c. 5. s. 15. of an Husband who ſlew his Wife's Gallant, or his Wife, when he took them in the Heat of their Luſt.
but this is the Effect of a furious Anger, and Deſire of Revenge, which ought to be referred to $. 7. above, and not to mixe Acti-
ons, ſuch as our Author calls them. I ſay the ſame of an Example which Mr. Hirtius gives of a Woman, that poiſoned her Hus-
band and Son, becauſe they had killed a Son of hers by a former Husband. See Valer. Max. l. 8. ch. 1. in the End, and Aul. Gell.
lib. 12. ch. 7,
(5) See the following Chap. 9.9. Mr. Hirtius makes an Application, not very proper here, out of Juſtin, of the Phoceans, who
ſeeing themſelves deprived of their Lands, Wives, and Children, went and robbed the Temple of Delphos, for the Hiſtorian re-
flects upon it as a thing not to be excuſed altogether ; though they that committed it were leſs worthy of Blame, than thoſe who
had brought them to this caſe of Deſpair. For ſo he ſpeaks, The Fat of the Phoceans, though all men abominated it upon the Ac-
count of the Sacriledge, yet the Thebans, by whom they were compelled to this Neceſſity, were more deteſted than they. Lib. 8.ch. I.
(5) Mr. Pufendorf might have joined with Euftrathius, another Biſhop more famous, who fell upon a looſe Thought about a
Subject fomething near it, but
of more Difficulty. Read Mr. Bayle's
Dictionary, under the Head Acyndinus. See further concern-
ing theſe ſort of mixt Actions, upon the account of which ſome Evil in itſelf' is committed, what is ſaid upon the following
Chap. $. 9. Note 2.
(7) See Chap. 3. S. 10. Pag. 30. aforeoging, about the beginning Note 5.
(8) In fine, Sextus did not uſe an immediate Force upon Lucretia, as when a woman defends herſelf, as much as ſhe
her Hands, Feet and Teeth. She was not forced, any otherwiſe than ſuch are, who refolve to caſt their Goods into the Sea for
fear of Periſhing, She refifted his Threatnings of Death; but when Sextus threatned to expoſe her Reputation to eternal Dif-
grace, ſhe did what he wiſhed and flew herfelf. So that this Example does not well agree to this Place, where he is trearing of
mixt Actions. See Mr. Bayle's Dictionary.

can, with
G2
nor
44
Of Moral Actions in General, &c. BOOKI.
not in its Cauſes, or elſe both in it Self and in its which now occaſion the Compulſion of him to a-
Cauſe. The firſt is, When a Perſon remains in ny Fact. By the not being his own Fault, we
ſuch a State at preſent, as to be unable to repel the mean, if he has done nothing but according to
offer'd Violence, and yet was in a Fault for get- the Laws of Prudence and of his Duty. For if a
ting into ſuch a State. Of this kind was the Rape Man performs the Office enjoin'd him, or uſes his
of Dinah, Jacob's Daughter (a); for the Virgin Right any other way, and acts not raſhly or in-
ought not to have wander'd among Strangers
. confiderately, whatever Violence over-powers
The latter is, When the Perſon has, not by his him, he will have no Guilt imputed to him, and
own Fault, been brought into thoſe Streights, no Sin to anſwer for.us
(a) Geneſis XXXIV.
CHA P. V.
ons de
Of MORAL ACTIONs in General, and of their Application to the Agent, or their
Aptneſs to be Imputed.
Baloob
Do leid
The CONTENTS of every Section of the fifth Chapter.
i. What a Moral Action is.
VII, The Operations of our Vegetable Faculties. eia
9 II. Its Matter.
VIII. Things impoſſible.
- III. Its Form, where we treat of a Moral Cauſe.. IX. Things compelled, where meer Execution is treated of.
IV. A Moral Action conſider'd in it ſelf is a poſitive X. Things done through ignorance.
Entity.
XI. Things done, or ſeen in a Dream.
V. The Cauſe or Ground why a thing may be imputed XII. Evils to come to paſs.
XIII. But evil Actions proceeding from an Habit must
V1. Things not to be imputed to a Man are Things Di certainly be imputed.
neceſſary.
nici XIV. How other Mens Actions may be imputed to us.
or not.
HAY
Aving in Purſuance of our Deſign examined a Power exiſting by Nature, or its Exerciſe con-
and explained the Will and the Underſtand. fider'd barely by it ſelf; the other is the Depen-
ing, as the Principles whence Human Adions ob- dance of that Motion or Exerciſe on the Deter-
tain the Priviledge of being ranked in a different mination of the Will, as on a Cauſe that is truly
Claſs from the Operations of Brutes, the next Free and acts by its own Reſolution. The Exer-
thing which we are concerned for, is the general ciſe conſider'd feparately and by it felf, is, for
Diſquiſition of Moral A&tions, ſince in diſcover- Diſtinction's fake, rather callid, an Aktion of the
ing their Rectitude, or Pravity, the Science we Will, or of the Willing Power in a Man, than a
are now engaged in is chiefly employ’d. Moral voluntary A&tion. LETS
Actions then, are the voluntary Deeds of Men con We may farther conſider the Action (2) of the
fider'd in common Life, as they include the Imputation of Will
, either in it ſelf and abſolutely, as it is a Phy-
their Conſequences and Effects. We call thoſe volun- fical Motion, undertaken upon the previous In-
tary Deeds, which in ſuch a Manner depend on junction of the Will, or elſe reflexively, as the Ef-
human Will as on a free Cauſe, that without its fects of it may be imputed to the Actor. Now
Determination, (proceeding from its (1) internal Voluntary Actions, as they comprehend this Reflexi-
Acts drawn forth by the previous Knowledge of on, are, by a ſpecial Approbation of the Word,
the Underſtanding) they would never have been call’d Human Actions. And becauſe from theſe
perform’d; and which therefore, as to their being Adions as they are performed well or ill, as they
done or not done, muſt be refer'd to the Power of are agreeable or repugnant to their Rule, the
Man. And theſe Actions are here conſider’d, not Law, one is ſaid to be a good or an ill Moral Man,
as they are bare Motions produc'd by ſome Power (the Inclinations of the Mind reſulting from fre-
according to the natural Conſtitution of Things, quency of ading, being likewiſe term’d Morals ;)
but as they_proceed from the Determination of hence it comes to paſs that Moral Actions ſeem only
the Will; a Faculty diſpos’d to embrace either part another Name for Human.
of two contradictory Choices. "For a voluntary II. The Eſſence of Moral Actions, (1) accord-
Action contains ſomething Material and ſomething ing to the laſt way of conſidering them, may be
Formal; the firſt is nothing elſe but the Motion of divided into two Parts or Notions, a Material


Mr. Barb. NOTES on s. 1.
(1) The Original is, Altibus Elicitis, which is better rendred, Immediate Afts. See $. 1. of the preceeding Chapter.
(2) The Original is, A&tio Voluntatis, which Expreſſion, tho''cis uſed in all the Editions, and his Elements of the Univerſal
Civil Law, yer 'cis a plain Miſtake of the Author, contrary both to his own Diſtinction, and the following part of his Diſcourſe,
for he ſays poſitively, When Moral A&tions include in, &c. The Engliſh Tranſlator was not aware of this.
On S. 2.
(1) That is to ſay, As they are voluntary Actions, whoſe Effects may be imputed unto Men.
and
CHAP. V. Of Moral Adions in General, &c.
45

and a Formal. The Material Part, or the Matter himſelf down a Precipice, the Piper is accus'd as the
of a Moral Action, is of a very wide Extent: Such Perſon who bad caui'd his Death. A Club of young
may be firſt any Phyſical Motion, whether it be Perſons, who had frequent Meetings and Entertain-
of the Locomotive Faculty, or of the Senſitive ments, one day made an Agreement to Sup together by
Appetite, or of the External, or of the Internal the Sea-fide; one of the Society being abſent, the other's
Senſes, or of the Underſtanding, ſo far as con wrote his Name upon the Stone Table which they had
cerns the Exerciſe of Apprehenfion. For the Act reared : The young Men's Father at his Return from a
of Judgment depends fo much on the Quality long Voyage, landing in this place, and reading ihe In-
which appears in the Obje&, that it is not capa- ſcription on the Stone, took it for his Son's Monument,
ble of the Direction of the Will, tho’in forming and bang’d himſelf for Grief. "The Company is hereupon
of that Judgment, our Free-will and our Induſtry impeach'd as acceſſory to his Death. Laſtly, the Ad-
(2) are allow'd ſome Influence and Power: The miſſions or Receptions of another Man's Deeds,
Act of the Will it felf may likewiſe be the Matter as far as my Defaulo contributed to their Producti-
of a Moral Deed, if we conſider it in its Natural on, may be the Matter of my own Moral Actions.
Condition, or as it is preciſely taken, for an Effe&t Thus a Rape is partly imputed to the Woman, if
produc'd by a Phyſical Power, as ſuch. So like- it appear that ſhe rafhly ventur'd into ſuch a place,
wiſe may be the Privation of any Phyſical Motion, where ſhe might have expe&ted to meet with ſuch
which a Man might have produc'd either in it felf, violent Treatmento foichè noqo oituce o bo
or in its Cauſe: For a Man may render himſelf 9 III. The Formality of a Moral Action conſiſts
obnoxious to Puniſhment, as well by Omiſſions as in the Imputativeneſs of it, if we may fo ſpeak, by
by Commiſſions. As alſo the Inclinations of the which the Effe&t of a voluntary Action may be
Natural Powers toward certain Objects (acquir'd imputed to the Agent, or
by the Voluntary Actions that have already pafs’d) properly belonging to him, whether he himſelf
at leaſt fo far as they are Spurrs and Incentives to Phyſically produc'd that Effect, or whether he
Afing. Nor lare my own Motions and Habits, cauſed it to be produc'd by others. And from this
or the Privations of either, alone the Material Formality of the Action, the Agent likewiſe has
Parts of my Moral Actions, but the fame Moti- a Share in the Denomination of Morality, being
ons and Habits or Privations proceeding immedi- call'd a Moral Cauſe. br Whence we may eaſily
diately from others (3), provided they could or underſtand, that the ratio formalis of a Moral
ought to have been direčted by my Will. Thus Cauſe, in Stri&tneſs and Propriety of Speech, con-
the Spartan Inamorato's were to (4) ſuffer for the fiſts in Imputation, conſider'd with Reference to
Faults committed by their Minions (a). Nay, the Perſon in whom it terminates, and that there-
the Operations of Brutes, of Vegetables, and of fore ſuch a Cauſe can be nothing elſe but a Volun-
Inanimate Things, may furniſh out the matter of tary Agent, to whom the Effect is
, or muſt be
my Moral Actions, when my Will ſhould have imputed, upon account of his being either whol-
guided their Proceedings. Thus even in the Law ly or partly the Author of it; and that therefore,
of God, a Miſchief done by a Goring Ox is im- whether it be good or evil, both are to be reckond
puted to the Owner, in caſe he knew before-hand as owing to him, and he is liable to give an Ac-
that the Beaſt was faulty this way (b). Thus a count for both. Thus one Man is the Moral
Vine-dreſſer is reſponſible, if, through his Negli- Cauſe of Hurt in another Man, whether he has
gence, the Vine has ſpent all its fruitful Strength made his Head ſwell by Blows of the Fift, or whe-
and Vigour in ſending out numerous and unnecef-ther he has broke it with a Club, or whether he
ſary Suckers. Thus the Damages by Fire are Re- has ſet Dogs or Murderers upon him. Thus Anah
pairable by the Perſons who occafion'd it; and was the Moral Cauſe (1) of Mules, he being res
Waftes cauſed by the breaking in of the Sea, or corded in Geneſis 36. v. 24. to have firſt found them
of Rivers, are to be made good by him who has out, or to have join'd the Mares and the Aſſes toge-
either broke down, or negle&ed to keep up the ther for their Production. So Facob was the Moral
Banks. Quinctilian (c) has propos’d two Decla- Cauſe of the different colours in Laban's Sheep,
mation Lemma's much to our preſent Purpoſe. Chap. 30. ver. 37. And thus Lyfius ( Orat. contra
A Piper bad play'd a Phrygian Ayre to a Man who was Ayorat) pleading againſt an Informer, upon whoſe
offering Sacrifice, the Man running Mad, and throwing Accuſations many Perſons had been executed, calls
Ch.1003 01
Olt C300
- (a) Ælian. V. H. l. 3. C. 10. (b) Add. l. 1. %. 1, 2, 3. D. fi quadrup. do 11. f. 5. D. ad L. Aquil. Lex. Wiſogoth. 1. 8. tit. 4.
c.16.V. Exod, xxi. 29. () Inſt. Orat. l. 1. c. 10. and 1. 7.c. 3.
Utstib toit on buch biggb
Mr. Barb. NOTES on 5.2.
V preno
(2) If we will find the Author's Meaning, we muſt remember what he has ſaid, Chap: 3. §. 2.
(3) That is, when one may or ought to engage others to do a certain Thing, or hinder him from it, or contribute towards the
begetting a certain Habit, or prevent it, he is properly reſponſible for that which he did not properly do, and in which he was
guilty of nothing but pure Negligence or want of Aging, which is yet looked upon as a real Action in reſpect to the Moral Effect.
This reſpects all them who are charged with the Management of others. See S. 14, following.
(4) See Ælian’s Various Hiſtory, lib. 3. ch. 10. and Mr. Perizonius's Comment on it. But that Example feems to be ill chofen,
| fince there are many other which are commonly to be had. It is poſſible that this being ſo unlike our Opinions and Ceftoms,
made this Author think fit to inſtance it in. For they pretended, that this Love, ſo dear and conſtant, had nothing but what
was honeſt in it, and ſerved to inflame thoſe young men who were the Objects of it with the Love of Virtue, cho' in Time it de.
generated into an infamous Converſation, chiefly among the Greeks. See Potter's Antiquities of Greece. Theſe Inamorato's be-
ing then, as Ælian ſpeaks, the continual Guardians of thoſe they loved, 'tis no wonder that they were to anſwer for their Be-
haviour.
(1) But Moſes does not ſay in that place, that that Idumean was the firſt that cauſed Aſſes and Horſes to couple together,
and ſo was, morally ſpeaking, the Original of Mules. Op is the Name of a People, and ſo ought to be tranſlated, not,
He produced Mules, but, He fought againſt the Jemians, as Mr. Bochart has fully proved in his Herozoicon, Part I. Lib. 2.Ch.21.
However, had the Thing in itſelf been true, this Author might better have paffed over chic Example:
olis
him
On 5. 3.
46
Of Moral Actions in General, &c. Book I.
him the manifest Cauſe of their Death. So alſo Ovid. ſtice, but againſt thoſe of Prudence and Fore-fight,
Heroid. Epift. 12.
and that therefore he ſhall not be reckon'd to have
acted wickedly, but only rafhly or unadviſedly. It
Phyllida Demophoon leto dedit, hospes amantem ; will not be amiſs to examine more cloſely what
Ille necis cauſam præbuit, ipfa manum.
the above-mentioned Author lays down in the ſame
Poor Phyllis dy'd by him ſhe lov'd oppreſs’d; place. Firſt, therefore, he eſtabliſhes this as a Max-
The trueſt Miſtreſs by the falſeft Gueſt. im, Whatever is Evil in its own Nature, ſo that it can
He was the cruel Cauſe of all her Woe; never be chang’d into Good, yet may by Accident follow
But her own Hand perform’d the fatal Blow. upon the Exerciſe, or upon the Defence of my Right, with-
Mr. Poley. out my incurring the Guilt of Sin, and therefore I am not
oblig'd to decline the Uſe of my juft Right in ſuch caſes.
Yet it does not always happen, that a Man who Grotius likewiſe (6) propoſes a Rule much to the
has barely given Occaſion to the Fact of another fame purpoſe, in his Third Book (b), but judici-
Man, ſhould be (4) reputed the Moral Cauſe of ouſly tempers it with (7) a good Reſtriction. But
that Fa£t : and therefore the Sentence pronounc'd our Author proceeds: A Sin is ſaid to follow by Acci-
by Piſo, which Seneca ſpeaks of, was extream fool- dent upon another free Act, when upon the Uſe of a thing,
iſh as well as cruel, when ordering a Soldier to be to which I have a Right, fome Effect follows, which i
led to Execution, upon Suſpicion of whoſe Mur- have otherwiſe no Right to produce. For an Inftance
der another Soldier had before ſuffer'd Death, he in this caſe may be alledg’d what Divines call
gave his Reaſon in theſe Words (5), I order you to bė Scandal or Offence taken; concerning which they
executed for being the Cauſe of the Condemnation of your tell us, That a Man ought not to omit an honest,
Fellow Soldier. There ſeems no great Neceſſity that a pious, or a due Act, though a wicked Perſon
we ſhould here, with the Author of the Treatiſe ſhould take never ſo much Offence at it; and this
De Principiis Fuſti & Decori (a), diſtinguiſh between Rule they confirm by the Authority of our Savi-
a Moral Caufe by it ſelf, and a Moral Cauſe by our. But now this very Example might have
Accident. For a Cauſe by Accident is a Term of taught our Author to lay aſide his Term of Caula
vaft Obſcurity, and very likely to create and en- per Accidens; ſince even in that reſtrain'd Senfe it
courage vain Diſputes: And beſides, if we cannot would be little leſs than Impiery to call Him the
rightly impute the Effeet of an Action to a Man, Cauſe of Evil who is the Spring and Fountain of
we cannot upon any Account, call him a Moral all Good. We ought rather to ſay, That a Man
Cauſe by Accident, tho' he contributed never fo who exerts a good and neceſſary Action, is by
much to the material part of the Action. Yet no means the Cauſe of Sin in another Man, who
thus far we muſt plainly acknowledge, that in ſhall thence take Occaſion of offending. Thus we
weighing and rating the Greatneſs of the Imputa- commonly ſay, He who uſes his own Right, does
tion, it is a very important Query, whether the no body any Wrong.
no body any Wrong. But he further adds, Since en
Action proceeded from ſuch a Perſon as the Prin- very Man has a Right of preſerving his Health, it is
cipal, or as the Acceſſory : as likewiſe whether lawful for the Recovery of Health to make uſe of a Me-
the Agent directly intended ſuch an Effect, or dicinal Potion, thỏ upon the taking of this Potion ſhould
whether it proceeded from his Inadvertency, or follow Diſtraction ( for ſome little time) or Drunkenneſs,
any other Concomitant Reaſon. For if the laſt or (Voluntary) Pollution, or Abortion (8), (in caſe both
of theſe Cafes appear true, the Conſequence will the Mother and the Fætus muſt otherwiſe infallibly
be, that the Action ſhall not be imputed to the periſh) and that therefore the Perſon who takes
Perſon, as if committed againſt the Laws of Ju- the Medicine is only the Cauſe of ſuch EffcEts by





(a) Velthuyſen, p. 161, (6) C. I. f. 4. and c. II. 8. 9.
Mr. Barb. NOTES.
(4) He muſt (as our Author ſpeaks in his Elements of the Univerſal Civil Law,) either do, or neglect to do ſomething that he
was obliged to, otherwiſe another Man's Action has ſo neceſiary a Connexion with what he himſelf does or neglects, that it can-
not otherwiſe happen. Further, we muſt conſider how far he, that gave the Occaſion, might know the Effect that would follow
upon it, and that it is not neceſſary that he ſhould certainly know it, 'tis ſufficient that there was ſome Probability. I will
explain this by an Example, if I leave a Piſtol charged, or ſome other dangerous Weapon, upon a Table, in a Room where every
body has Liberty to come, I am not ſure that a Child, or any other Perſon will come, who, not knowing the Danger of the
Weapon, will run the Hazard of killing or hurting himſelf, by meddling with it out of Curioſity; nevertheleſs, becauſe the
Thing is poſſible, and I might fear ſuch a Thing might happen, I am cerrainly to anſwer for it. The ſame may be ſaid concern-
ing the Good of which we have given Occafion. As it can't be attributed to us, if we were the Cauſe of it without our Know-
ledge, and had no ſuch direct Deſign, ſo on the other ſide, 'is not neceſſary that we be ſure of the Succeſs of what we under.
take for another's Advantage ; 'cis fufficient, that we had Reaſon to believe it; for cho'che Effect was not obtain'd, the Intention
is very comendable at all times ; as, on the contrary, the Neglect is not altogether excuſable, although it luckily had no ill Con-
y ſequence.
(5) Seneca's Words are, ( De Ira. lib. 1. c. 16.) Te duci fubeo, quia cauſa damnationis commilitoni fuiſti.
(5) This Rule (according to Grotius) takes place in the juſt Defence of a Man's ſelf, which this Author explains in another
place. And ſo it does alſo when we labour after the Recovery of what belongs to us; for if we can recover the full Value, we
have a Right to take it, nevertheleſs upon Condition that we return the Over-plus, if any be. So alſo we may Cannonade a Ship
full of Pirates, or an Houſe full of Thieves, altho' we know there are ſome Children, Women, or other innocent Perſons in it,
who are in Danger of being involved in the Ruin of thoſe that deſerve ir, Lib. 3. c. 1. §. 4. num. I.
(7) He further adds, in the ſame place, Nurnb. 2. Thac thoſe things that a Man hach an indiſputable Right to do, are not to
be allowed him to do in all Reſpects. Love to our Neighbour often hinders us from uſing that Right, and obliges us likewiſe to
avoid thoſe Things which do, or may happen, contrary to our Intention, at leaft, if the Advantage we aim at be noc greater
than the Damage which may juſtly be feared, or if there be an equal Probability of Benefic and Damage, the Hope of the Benefit
be not better grounded than the Fear of Damage, but this muſt be left to every Man's Judgment and Prudence. But this ought
only to be obſerved, That where there is a Doubt, we ought to incline to that fide, that is more favourable to another than to
ourſelves, as the fureſt part. See what follows, and Ch.11. $. 8. of the ſame Book. See alſo what has been ſaid above, Ch.3.5.7.
(8) See Book 6. Cbap. 2. 5. 6. following.
76
Accident.


CHAP. V. Of Moral Adions in General, &c.
47
true Affections of the ſame kind; ſince as a Non Paſſions. Art. 144, 145, 146.
.
Accident. On which Doctrine we only obſerve that whatever neither in itſelf, nor in its Cauſe,
that it had been much plainer to have ſaid, that was in a Man's Power and Diſpoſal, cannot be
thoſe Effects are not to be accounted Sins in the rightly imputed to him (1). Nor is it any Breach
Caſes here mentioned. Neither do all the Exam- of this Rule, that ſometimes a Man is oblig'd to
ples brought by the fame Author to illuſtrate the perform a Buſineſs depending on Chance, and
Moral Cauſa per ſe, or that which is truly and pro- conſequently not in his Power. For this Caſe can
perly ſuch, rightly hold. For a Criminal, as he ſpeaks, never happen, unleſs the Man voluntarily takes on
who is to ſuffer, tho' be go on to the Place of Execution, himſelf ſuch an Obligation (2). Thus much
and aſcend the Ladder, cannot meerly upon this ac- therefore is in the Man's Power, to bind himſelf
count be call’d the Moral Cauſe of his own Death, to repair a Damage, proceeding from Cauſes not
becauſe if he had refus’d to go willingly, he had capable of Human Direction. To conclude then,
been dragg’d along by the publick Officers. And that an Action or Fact ſhould be imputed, it is
yet there is no reaſon why one Man who drinks ſufficient that it was not Involuntary, according
Ímmoderately, or another who waſtes his Strength to our Diſcourſe in the preceding Chapter, Sect.1o.
in honeſt and neceſſary Labours, may not be re- and that it was ſubject to the guidance of our Will.
puted the Moral Cauſe of their own untimely But to make an Omiſſion truly Imputable
, 'tis re-
Deaths; tho' the former Perſon ſins and the latter quiſite that there have been both Power and Op-
not; and tho' neither, properly ſpeaking, can be portunity for Performance, which Conditions of
calld a Murtherer. But ſuch a one we ſhould Power and Opportunity ſeem to include theſe
rightly call the Moral Cauſe of his own Death, who Four Things, First, That the Object be ready at
is therefore condemn'd, becauſe he would not de hand. Secondly, That we have a commodious
clare fuch Matters as might demonſtrate his own Place, where we may neither be hindred by 0-
Innocency.
thers, nor ſuffer any Evil from them upon our
IV. It inuft be farther obſerv’d, that this Impu- Acing. Thirdly, That we have a convenient
tativeneſs which we have made the formale of a Time, in which we are not call’d to the Diſcharge
Moral Action, bears the Nature of a poſitive Form, of more neceſſary Duties, and which is equally
from which, as from a Spring and Root, all the Seaſonable for thoſe who are to concur with us
Affections, Properties and Conſequences of ſuch in the Action. And, Laftly, that our Natural
an Action reſult. And therefore a Moral A&tion Powers adminifter fufficient Strength for the Buſi-
may be call’d a Poſitive Being, (at
leaſt in the Order neſs
. When any one of theſe Conditions is want.
of Morals, if not always in the Order of Naturals) ing without the Fault of the Man, it would be
whether the Matter of it be a Phyſical Motion, or the moſt abſurd and unjuſt to lay the Omiſſion of any
Privation of a Phyſical Motion. For to conſtitute thing to his Charge. Cicero de Invent. l. 1. Occaſion
a Poſitive Being in Morality, 'tis ſufficient that we or Opportunity is a part of Time implying a Convenience
conceive ſomething in it, from which there ariſe of doing a Thing, or not doing it. See Cartes of the
Ens can have no Affections, ſo whatever has cer VI. Thus much being premis'd in general, it
tain and poſitive Affections cannot upon any ac-
will be worth our while to conſider more diſtinct-
count be ſtil'd a meer Non Ens.
ly and in particular, what Things may be imputed
V. Now that a Moral Action ſhould belong, or to a Man, which proceed from a Phyfical Necef-
ſhould be imputed to any Man, (in which we have fity, or from any Cauſe placed beyond the Di-
aſſerted the ratio formalis of it to conſiſt,) there can rection of Men. And therefore 'tis a ſimple (1)
be no other Reaſon or Cauſe, but that the Man Practice they tell of the Kings of Mexico, that at
had Power and Ability to do it, or not to do it; the Commencement of their Reign they us'd to
to perform or omit it. And this is ſo manifeſt á promiſe their Subjects, that they'd take care the
Truth, that the moſt ignorant and unskilful Mor. Sun ſhould rife and ſet at due times; that Rain
tals, when they are accus'd of any Omiſſion, or Thould fall as often as there was occaſion; and
of any Fact, think they cannot bring a fairer Ex- that the Land ſhould bring forth Fruit. Neither
cuſe, than to ſay in the firſt Caſe, that they could can it be imputed to Man, that Natural Caufes
not do it, and in the other, that they could not help it. produce this and no other Effect, or that they
So that it is to be eſtabliſh'd as a prime Maxim in produce it in this and no other way; as for In-
Morals
, That a Man is accountable for thoſe A&i- ſtance, that the Fire warms and not cools us.
ons, the Performance or the Forbearance of which Yet thus indeed the Effects of Natural Cauſes fur-
were both in his Power : Or (what comes to the niſh large Matter for Imputation, as their active
Tame thing) that every Action dirigible by a Mo- Force is drawn out, or confirm'd by Man, ap-
ral Rule, which a Man is able to do, or not to do, plying Actives to Paſſives, or exciting their
may be imputed to him: And, on the contrary, internal Strength by proper Means. On which
Mr. Barb. Notes on Chap. V. S. 5.
(1) Culpam autem nullam esse, cum id, quod ab homine preſtari non potuerit, evenerit. Cicer. Tuſcul. Quæſt. 1. 3. c. 15;
(2) See what is ſaid Lib. 5. Ch. 9. following. Sometimes alſo we muſt anſwer for an accidental Miſchance without engaging
in it, becauſe we have neglected to do a thing to which we were obliged, althoº the neglect itſelf did not contribute at all to
the unforeſeen Accident. See Lib. 3. c. I. 5. 6. Note z. and Lib. 5. c. 5. §. 3. following.
Notes on Chap. V. S. 6.
() This Author ought to have mention’d the Hiſtorian who relates this Fact. Mr. Titius (Obſerv. 47.) relates a favourable
According to him it is the effect of great Wiſdom, and theſe good Kings would have
Men underſtand no more by ir than this:
That a Prince by his good Laws, and by the Prudence and Juſtice of his Government, can in ſome meaſure sa order the Stars and Ele.
ments, that they ſhaŭt promote the good of his Subje&ts. Upon this foot cheir Affertion, as abſurd as it may ſeem at firſt fight, is
not altogether withoue Ground, and proves, that even the American Princes are leſs Barbarous than many European.
account




48
Of Moral Adions in general, &c. Book I.
account a Plenty of Fruit is imputed to the Huf- Plutarch de Audiend. Poet. ſpeaks to the ſame pur-
bandman, in as much as his diligent Culture obe poſe: Ulyſſes doth not upbraid (2) Therſites with his
tain’d it from the Earth: Thus the Damage of Lameneſ, bis Baldneſ; or his Crook-back, but with his
Fire is imputed to him that kindled it; and thus Scurrility and Impudence
. Thus the wiſe Poet ſilent-
the varied Colour of Laban's Lambs may be im- ly derides thoſe who are alham’d of Lameneſs,
puted to the Subtlety of his Shepherd Facob (a). A Blindneſs, or the like Defects; it being his Judg-
Natural Effect may be farther imputed to a Man ment, that nothing can be Blameworthy which is
as he has mov'd the ſupream Cauſe and Director of not Vicious, and nothing Vicious the Cauſe of
all Things to determine (2) ſuch an Effect. Thus which is in Fortune, not in ourſelves. As thoſe
the Three Years Drought might be imputed to Elias who bruſh or ſtrike our Cloaths touch not the Body, ſo
(b). As in fabulous Story a long Drought is ſaid thoſe who cenſure others for their Imperfections of Birth
to have ceas'd on the Prayers of Æacus (c). Thus or of Fortune, vainly and fooliſhly ſtrike the outward
too, the Death of the Men who fell in the Peſti- Parts, but never reach the Soul, nor thoſe Blemiſhes
lence (d), might in ſome meaſure be imputed to which really deſerve Reprehenſion and Correction. Ibid.
David, tho'not to the Degree of Murther. Add. Sympoſ. I. 2. qu. 1.
Yet it was not without
VII. Neither may we impute to a Man the Reaſon, that among the ancient Gauls, as Strabo
Actions and the Effects of Vegetative Faculties relates, Lib. 4. The Young Men were Fin'd for exceed-
which appear in his Body, as they ariſe from his ing the Meaſure of their Girdle : Becauſe they took it
Birth, or from other Cauſes beyond his Diſpoſal. for granted, that ſuch a large Paunch, at ſuch
a Man's Power, to ſupply early Years, could proceed from nothing elſe but
thoſe Faculties with convenient or with unſuitable Lazineſs and Gormandizing. So ſays Nichol. Da-
Objects, which may either maintain and cheriſh, maſcen. de Mor. Gent. The Iberians uſe a Girdle of a
or weaken and extinguiſh their Force; as alſo to certain Meaſure, and whoever ſuffers himſelf to grow
diſtort and abuſe their proper Organs. Thus he beyond thoſe Bounds, is look'd upon as highly Infamous.
to whom Nature has given a large, a found, and The ſame may be faid of the other Faculties
an able Body, is liable to no Imputation of Merit which Nature, and not our own free Pleaſure,
on that ſcore. But to correct a weak Conſtitution has implanted in us, as that a Man has ſharp or
by Induſtry and Exerciſe, and to encreaſe the Na- heavy Parts, quick or dull Senſes, a firm or a de-
tural Powers, gives juft occaſion for Commenda- ceitful Memory; unleſs theſe Natural Abilities
tion; and, on the contrary, to break or deſtroy have been improv'd or impair'd by the Man him-
the ſame Powers by Idleneſs and Petulancy, turns ſelf. Hither muſt be referr'd that Obſervation of
to a juſt Shame and Reproach.
Ariſtotle in his Ethicks (e), Many Things according to
Hence no Man can be fairly reprehended for our Nature we do and ſuffer, which we are truly con-
a weak, or a tender, or a diminutive Body; for ſcious of, and yet which cannot be call'd Volunterý or In-
diſtorted, or for maim'd Limbs, or for want of voluntary': as to grow old and to die.
Theſe things
Strength, provided that none of thoſe Infirmities therefore are not proper Matter of Imputation.
were contracted by his Default. (1) Ariſtotle talks Neither can the getting of wicked Children be
very pertinently to this purpoſe, Ethic. ad Nicom. imputed to Parents, provided they have not en-
1. 3. C. 7. Ou jóvóv de die fugas ngxici, &c. Not only courag’d them in their Vices by ill Education.
* Faults of the Mind (ſays he) are Voluntary, but Whence the witty turn of Vindex will not hold in
thoſe of the Body too in ſome Perſons, whom ftriệt Truth, when he ſaid, That Nero's Mother was
we therefore diſcommend. For we do not blame juſtly put to Death by her son, for bringing ſuch a Mona
thoſe that are naturally deform'd, but thoſe who ſter into the World (f).
are grown fo by negle&t of Exerciſe, and by a VIII. It's evident likewiſe, That thoſe Things
Careleſs way of Life. And the Caſe is the fame cannot be imputed, which exceed our Strength,
as to any Meannefs or Unfightlineſs ariſing from either as to the Hindrance or the Performance of
Diſtempers, or from the maiming of any part of them: provided that this Inability has not been of
the Body. For Men will not reproach, but ra our own finful (1) Procurement. On which
other pity his Blindneſs who had it from Nature, Foundation are built thofe common Maxims,
or from a Diſtemper, or from an honourable That Impoffibilities are incapable of Obligation(2);
Wound : But he will juſtly fall under univerſal That no Man can be conceivid to have enjoina
Scorn or Cenſure who has loſt his Eyes by Drun- Impoſſible Duties in a Law; And that therefore
kenneſs, or by any other kind of Intemperance. if any (3) ſuch thing occurr in a Statute, or a Coa

s
6
(a) Gen. XXX. 37. (b) Kings xvii. 1. James v. 17.
(c) Apollodor. 1. 3
cerea
(d) 2 Sam. xxiv. 13, 17.
(e) Lib. 5. c. 10.) (f) Philaſt. Apollon. 1. 5.
(2) We muſt explain the words of our Author, who ſays only, Ad eum effe£tum determinandum, i. e. To determine that
Effect; for it appears by the following Examples, and by the Nature of the Thing, that he treats here not only of the Exi.
ſtence of the Effect, but alſo of its Non-exiſtence and Diſcontinuance.
Notes on S. 7.
(1) Vindex in Philoftr. in Vitâ Apollon. Thyan. l. 5. 6. 10. is ſaid to have ſlain his mother, becauſe ſhe brought him forth ſuch
a deformed Creature.
(2) Plutarch's Greek is, 'o egoitus ito sa 'Okyarkass, & zoo & percenço, i woto, ina’dxectÓWIG nodopera
Ούτως "Όμηρή καθαγειλα τ αιωμένων οπι χωλότησιν, ή τυφλότησιν έτε ψέκτον ηγέμενα το μοι αισρόν έτε αιχejν το
ήμας αλλά από τύχες γενόμενον, Καθάπερ, δει τα μαλια μας γενιες, εκ άποναι το σώμα, έτως οι δυςυχίας τίνα, ή
δυσγενείας ονειδίζονες, εις τα έκα- εντείνονται κενωϊ. και ανοήτων, σ ψυχής δε και θιγγανεσιν, έδε τ αληθώς επανορθώσεως δεομέ-
WWW, rj Meews. Plur.
Notes on 8.8.
(1) In this laſt Caſe we may lawfully be treated in the ſame manner as if we were in a ſtate of acting. Otherwiſe, as ſoon as
any Obligation we are under becomes in the leaſt puniſhable or incommodious, we ſhall find a way to avoid it, by putting our-
ſelves on purpoſe into a condition unable to fulnil it.
(2) Impoflibilium nulla obligatio est. Digeſt. I. 50. (3) See Lib. III. Chap, 7. . 2, &c. following.

им
venant
CHAP. V. Of Moral Actions in General, &c.
49

venant, or a Will, it is either to be eſteem'd as the fulfilling of the Law is impoſible, and yet that that
Null, or elſe a more commodious Interpretation Impoſſibility does not injure the Liberty of the Will. For
of it is to be found out (a). To this purpoſe we 'tis equally impoſſible for a particular Man to obey GOD's
meer with a pleaſing Paſſage in Herodotus (b); He Command in all Things, and for a Multitude to abſtain
tells us that when Themiſtocles deſir'd a Supply of from all manner of Lying. And he is as
Money from the Inhabitants of Andros, ſupported himſelf from each particular Act of Sin, as the particu-
by the two ſtrong Goddeſſes Perſwafion and Neceſ- lar Citizens are to keep themfeltes pure from Lies; and
fity, the Andrians oppos’d him with two ſtronger yet this is never likely to happen in the World
. Which
Goddeſſes, Poverty and Impoſſibility. But here it Doctrine, as it is applied to Theological Points,
muſt be carefully obſerv'd, that it is one thing to we leave to be diſcuſs'd by the proper Profeſſors.
be Phyſically, and another thing to be Morally, Im- But if it keep within the Bounds of Human
poſſible. The former Impoſſibility lays an Obſtacle, Courts, it does not appear why this ſhould not
which binds up the Will in fuch a Manner, that rather be admitted than that affertion
of Grotius
. Sins
that it ſhall loſe all its Labours and Endeavours. call Sins of daily Incurſion, he ſays, It may well be
But a Moral Impoſſibility lays no Impediment doubted whether ſuch as theſe may rightly and properly be
furpaſſing the Active Power which inheres in the call'd Sins, becauſe, though we are at Liberty' as to the
Will, but on the contrary ariſes wholly from the doing each Particular, yet we ſeem to loſe that Liberty,
Will itſelf. And in this Manner, we ſay, 'cis im- ivhen we conſider them in general
. For how can theſe
poffible that all Men ſhould conſpire together in Failures, taken Collectively, eſcape the Nature of
delivering down a Lie to Poſterity, without any Sin, when at the ſame time each Particular of
Profpe&t of Advantage : Or that any Man ſhould them is acknowledg’d to be ſinful? Tho' indeed
léad a Life of fuch exa& Holineſs and Circum- ſuch ſmall Slips are in human Cognizance ſcarce
fpe&ion (4), as not to offend (at leaſt through the look'd upon as puniſhable.
precipitancy of his Paſſions) in ſome ſmaller In IX. Neither can thoſe Things be imputed
ftance of Duty. Hence the Author of the Trea- which a Man does or ſuffers (1) upon Compulſi-
tiſe De Principiis Jufti & Decori (c) infers, That a on: For they will belorg, in Moral Eftimation, to
Legiſlator cannot indeed enjoyn what is Phyſically Impol- him who offers the Force, and he that receiv'd
fible
, but he may exact Obedience to Things which include executed them is look'd upon only as an Obje& or
a Moral Impoſſibility
. Becauſe in this he commands no an Inſtrument. "'Tis a Rule with Dionyſius Halicar-
thing contrary to the Liberty of the Will, ſince all the noſſeus (e), That every thing which is
Difficulty of obeying ariſes from the Will it felf
. Thus ferves Excuſe. And Cicero (f ) argues with good
Pris not impoſſible for any Man to frame a Lie gratis ; Reaſon, when he ſays, if we are oblig'd to pardon thoſe
and if not for any Man, then not for the whole Multi- who hurt us out of ignorance, we are not bound to thank
tude; and get ʼtis certain that the whole Multitude will thoſe who benefit us out of Neceſſity. Now Compul-
hot do ſo. In the ſame manner every Man has the fion is ſupposid to be apply'd, not only when the
Power of ſpeaking Truth, and conſequently a whole So- Principle of Motion is in another Man, who by
ciety or Community ; and yet 'tis most certain, that a Force bends the Members of a Perſon, to ſome
Commonwealth will never be ſo happy, as to have all its Adion or Suffering, of which the Perſon, by
Members abſtain from falſe Speeches: get this Impoſſibi- ſtruggling and reſiſting, expreſſes his Abhorrence ;
lity does not take away the Liberty of particular Men, but likewiſe, when a Man, by the Peril of Death
or excuſe them from Jinning. Thus too we ſay, that or of any (2) other extream Evil, is put upon the
or
(a) Ovid. de Pont. I, 1, El. 8. ?
Nulla potentia vires.
529 Præftandi ne quid peccet amicus habet.
So far can no Degrees of Power extend
all Frailty from a Mortal Friend. MUOD
To purge
Quin&tilian: İnſt.1.6.c.3. We uſually reckon it inhuman to upbraid a Man with his ill Fortune; either becauſe it comes without his Fault,
or becauſe it may be the Cenſurors Turn to ſuffer next. (b) Vran.
(c) Velthuyſen, p. 174. (d) L. 2. C, 20. f. 19.
(1) L. 1.
(f) De Invent. l. 1.
Mr. Barb. NOTES on S. 8.
(4) Mr. Hirtius alledges here the Encomium which Valerius Paterculus gives Scipio Æmilianus; viz. That in all his Life he never
did ſpeak or think any thing, but what was commendable, Lib. 1. Ch. 12.

Notes on S. 9. 1
(1) Our Author here ſpeaks of the Extremity that one is reduced to by the immediate Violence of a Perſon, who will force
us to fuffer, or do ſome thing. But he ought alſo to have ſet down what a Man is conſtrained to do by other Circumſtances,
which are not leſs preffing, and no leſs exclude all Imputation. In a word, we ought to reduce to this Head all the Effects of
Neceſſity in general, of which we ſhall elſewhere ſee the Benefit, Lib. 2. Chap. 6. where the Paffages in the Margin may refer to
the Caſes of Neceſſity, which are omitted.
(2) Which he may ſuffer in that very Inſtant, as this Author adds, in fiis Abridgment of the Duties of a Man and Citizen, lib. r
chap. I. $. 24.
tomia TORO DADO
H
Execution
50
Of Moral Actions in General, &c. BOOKI.

6
lingly a ,
he ought not rigorouſly to be puniſhed for the like Action, he can't attempt it without Hure to his own Conſcience. Here alſo
De 4. and Mr. Tho.
Execution of (3) fome Enormity to which he is own Mother, which Fact, in Oedipus, tho' com-
otherwiſe exceedingly averſe; yet ſo that he ſhall mitted out of invincible Ignorance, yet tormented
not be the Author of the Deed, but the other Per- him ſo, as to make him tear out his own Eyes.
ſon who compelld him to it. Examples of the But when Ariſtotle, Ethic. Nicom. lib. 3. C. I. al-
former kind are, when a Man by Superiority of ledges for an Inſtance of a forced Action, the doing
Strength violently thuſts another upon a third Per a baſe thing, upon the Command of a (5) Tyrant
fon, or ſtrikes him with a forcible Bend of the o who has our Parents or Children in his Hands,
ther Man's Hand: Or when any one commits a and will ſave or kill them, according to our Obe-
violent Rape upon a Woman that did not provoke dience or Diſobedience; what he then calls aio xeir 7,
his Lewdneſs by her own Fault. Her Body in- or a baſe thing, (6) muſt be underſtood in a limited
deed, in this Caſe ſuffers Diſhonour, but the Ble- Sence, ſo as not to reach thoſe more odious Vil-
miſh doth not reach her Soul. The Body is ſtain’d, lanies we are now ſpeaking of.
but the Mind is pure, ſays Lucretia in Livy, l. 1. c. 58. X. Ignorance likewiſe takes of all Imputation,
See Hen. Stephens's elegant Diſcourſe on that Story ſo far as it renders che Action Involuntary (a).
in his Apolog. for Herodot
. c. 15. But a Nymph will This Point may be illuſtrated from ſeveral Paliages
not have the Benefit of this Interpretation, when of Ariſtotle's Morals; Magn. Moral. lib. 1. c. 34. "Oray
with a faint Reſiſtance ſhe lets her Ring be ſtoll'n fefe is ni dovold winie n ng apă Ede 71, én éxav Tšto megfe, &c.
off from her (4) digitus male pertinax, as Horace calls Whenfoever (ſays he) Ignorance has been the oc-
it. An Inſtance of the latter Compulſion may be caſion of doing a thing, that thing is not done wil-
when a Sergeant, or a Guards-man is commanded
to kill a Man whom he knows innocent, under . But when a Man is himſelf the Cauſe of his own
pain of being immediately kill'd himſelf upon Re Ignorance, and out of that Ignorance commits
fuſal : For he can by no Means lie under an Impu- a Deed, he plainly offers an Injury, and may in
tation in this Cafe, ſince nothing is enjoin’d him Juſtice be accountable for the Crime. This is
but the bare Execution, which in it ſelf is agree the Caſe of drunken Men, who if they commit
able enough to his Perſon and Character, and any Diſorder under that Condition, without
ought not to be refus’d upon the Hazard of loſing Diſpute do a real Injury, ſince they themſelves
his Life: Eſpecially ſince tho'he threw away him- have been the Cauſes of their Ignorance. For
ſelf, he could not by that Means fave the other 'twas in their Power, whether or no they would
innocent Party. Yet it muſt be confeſt, that the tipple themſelves ſo far out of their Senſes, as to
bare Execution of ſome Acts is ſo very foul and 'make them (for Example) beat their own Father.
deteſtable, that it is a generous Bravery for a Man the fame Rule will hold in all other Inſtances of
rather to die, than to apply his Body to ſuch O- Ignorance, the Cauſe of which is in the Agent,
perations, tho', if committed, the Fault of them ſo that he who injures another upon the Strength
would not light on himſelf, but on others. To of thoſe Pleas, is nevertheleſs properly unjuſt.
which Caſe the Paſſage of Ariſtotle relates, above . But thoſe Perſons cannot by any means be called
cited: An Inſtance of it may be, Suppoſe a Man unjust, who offend out of Ignorance not of their
ſhould be commanded to commit a Rape on his own procuring. For ſuch Ignorance is to be
(a) Xenophon. Cyropæd.l.3. I take all thoſe things which Mén commit thro' Miſtake; to be done againſt their Inclination and Deſign.
Euripid. Hippol. Coronae. Your Ignorance and Error cleanſe the Deed from ſinful ſtain.
Mr. Barbeyrac's NOTES.
(3) Our Author then believes, that this laſt fort of Compulſion, as well as the firſt, excludes all ſorts of Imputation. He ex-
plains himſelf bercer upon this Head, in his Abridgment of the Duties of a Man and Citizen, lib. 1. ch. 1. S. 24. where he maintains,
That we can have no more Ground to impute the Actions committed in the like Circumſtances, than to the Spear, or AX, that is
uſed to kill an Enemy with ; At least, ſays he, whoever is reduced to that Neceſity, is not under any Obligation to ſacrifice himſelf for
the Perſon to whom he ſees himſelf conſtrain'd, upon Peril of Life, to do ſome great miſchief. I own that this ſort of Compulſion much
Jeffens a Sin, but yet it doth not ſeem to me (as Mr. Titius remarks, Oberv. 40. and 48.) ro free it from all Imputation at the Judg-
ment-Sear of GOD. For indeed the Inſtance of the Spear and Ax is not well apply'd, for they are Inſtruments purely paſſive;
whereas a Perſon forced by the Threatnings of ſome great Evil, without any phyſical and irreſiſtible Violence, acts with a kind
of Will, and conſents in fome Manner to the Action, viſibly evil, which he performs. So that tho' before a Civil Judicature
we may apply thoſe Principles which we fhall lay down, Lib. 2. Ch. 17. 5. 2, 3. following, for in the Example which our Author
there alledges, of an Officer, who was commanded, under Pain of being put to Death himſelf, to put a Perſon to Death, for a
Crime of which lie knew him innocent, the Evil he does to ſuch an one, is as great as if he would warrant it himſelf, otherwiſe
this Execution were an uncertain Means, becauſe it depends entirely on him who laid the Obligation on him. And who is there
that can affure himſelf, that the Perſon who forces a Man to do ſuch things, ſhall have a greater Reſpect for him that executes
his Orders, chan for him againſt whom he has uſed this Force. This laſt Reaſon has yet a great Strength, as any one may fee,
when a Son is forced to lie with his Mother: An Action which our Author ſeems to take ſome Pains to excuſe, when he is treat-
mafius's Divine Civil Law, Lib. 2. Chap. 2. §. 149, and 161, doc. as alſo Wherner's Elements of the Law of Nature and Nations,
Chap. 2. S. 9, Io.
(4) The Author refers to theſe Words of Horace, Lib. 1.0d.9. Pignuſque direptum Lacertis, aut Digito male pertinaci. See alſo
to the ſame purpoſe, Lib. 2. Od. 12.
Aut facili Sævitia negat
Quæ poſcente magis gaudeat eripi.
(5) Mr. Pufendorf unwarily following a bad Latin Tranſlator, who has rendred theſe Words ill, though plain enough in them.
ſelves. They that do it, ſhall eſcape, and, they that will not do it, ſhall periſh, as if the Greek had been, pačatles, whereas ic
is, apežano, He that does it. The Engliſh Tranſlator has amended this Fault,
(6) But why muſt this Caſe be excepted, if our Author's Principles be found? Or what Rule doth he give us, to diſtinguiſh
theſe ſort of Things, where Force excludes not Imputation? The Truth is, we muſt either excuſe every A&t of Compulſion, how
infamous foever it be in itſelf, or account every thing vicious, which we cannot do innocently of ourſelves, and in our own Name,
let the Threarnings of him that would conſtrain us, be never ſo terrible. See Note 3. of this Paragraph. The Change of our
Author, and the ſmall Connexion there is between his Notions in this Matter, ſhew that he has not conſidered it with ſufficient
Attention,
eſteem'd
6

ز
1

CHAP. V. Of Moral Actions in General, &c.
51

c
Caken the Potion, died of it, he was condemned to Death without Mercy, Digeſt.
eſteem'd Natural; as when little Children ſtrike who plead Ignorance of the Isaws, when the Points arere
their Parents, their Natural Ignorance, which is eaſy, and ſuch as ought to have been known. The Caſe
the Cauſe of the Fact, hinders. it from being is the ſame with all that are ignorant by their cun Nega
I ftild Unjust; the Ignorance not at all depending lečtz Ithey being Maſters of their own (Powers, and scaper
on their own Power '. 3. So alſo Seneca Phæniſ. ble of Diligence and Application. Ignorance of Uni-
do Thebaid. besbri digaolod y porq slus verfals, and that which we were obligʻd to know
boss
par to ugesche vogels bruids does not take off Imputation, but only Ignorance
20-Aliquis intra vifcera 91090m lladt of Particulars, and of what concerns the preſenc
Materna letum præcocis fati tulit; vhodi omo o Faab ss Ariftot. Ethic: l. 3.c. 2. He that is ignorant of
Sed nunquid á peccavit ? am van sonil on his Duty, or Intereft, ought not to be ſaid to act againit
else bis Will; for Ignorance upon Choice doth not produce an.
An Infant with untimely Fate, involuntary, but a wicked Actionisa AndIgnorance of
Dies in the Womb before the Gift of Light ; c Univerſals renders Men liable to Reprehenfionbut on Tg-
And has it therefore finn'd?
nombre norance of Particulars, or of the Circumſtances of the
dea
ang arroin Action, deſerves Pity and Pardon, in as much as the
But this muſt be extended no farther than human Perſon thus offending doth truby proceed involuntarily.
Confideration. Om
smo An Example of this Ignorance is thus given by
But in reference to Infants it is farther obſerva- Tully, de Invent. 1.2.c.31(5) There was a Law in fame
ble, that we chide and beat them for fome Acti- certain Place, forbidding to Sacrificel a Calf to Diana ;
ons, not becauſe in Human Judgment they be now a Company of Mariners being in Diſtreſs at Sea,
ftrictly Crimes, but meérly for the ſake of Amenda made a Vow that if they gain'd the Port which was
ment, that they may not prove troubleſome to now in ſight, they'd offer a Calf to the Deity who prea
others by ſuch Tricks, or may not get an ill Ha- fided there. It happened that in that a very Port there
bit, when they are little, and ſo keep it when they stood a Temple of Diana, to whom no Calf was to ber of:
are grown up. And the ſame muſt be ſaid of De fer'd by
: the Laws; but the Mariners not being acquainted
lirious Perſons, provided their Diſeafe was not oc- with i beſe Laws, offer'd the Calf which they promisdi
caſioned by their own Fault. For the Blows given and upon this Fact they are accus'da domic
to one in this Condition, have no more the pro If an Action be done without any malicious
per Nature of a Puniſhment anſwering to a Fault, Deſign, and not with Ignorance voluntarily con-
than thoſe we give to a kicking Horſe; to break traced, but ſuch only as crept in by Inconſidera-
him of that Cuſtom. Vid. Anth. Matthæ de Crimin. tion and Inadvertency (a), the Imputation is not
Proleg.c. 2. 8:5, 6, 7, 8. od
altogether taken away, yet it is conſiderablýi di-
But he who is the Cauſe of his own Ignorance, miniſhed. And thus far only may we allow the
and who has wittingly and willingly hindred him- Saying of Quinctilian, Inft. (1. 1. c. 61) Even an Er-
ſelf from the Knowledge of thoſe things, which ror is commendable in thoſe who follow Great and Noble
he might and ſhould have known, is in the famé Guides. Vide Ariſtot. Ethic. l. 5. c. 1o. Hither we
Caſe as if he had offended upon Knowledge and may refer the Caſe propos’d by Ariſtotle (b), of a
Deliberation. Ariſtot. Magn. Moral
. l. 1.c.9. We then Woman that gave a Love-Potion to her Gallant,
blame diſeas’d or deform’d Perſons when we judge them of which he died. Now the Athenian Judges ab-
to have been the Author of their own Diftemper or Dif- folved the Woman from this Indictment, becauſe
figurement; becauſe it was in their Power 10 have.. kept ſhe did the Fact undeſignedly, and only miſs'd the
ſound and perfet.
Effect of her Potion, and procur'd his Death in-
And more fully, Ethic. l. 3. c. 7. Legiſlators correct ſtead of his Love, which was her only Aim. But
and puniſh thoſe who commit Evil, provided they did to make this Sentence equitable, it muſt have
it neither upon Violence and Compulſion: nor out of been ſuppos’d as a Principle, that the Woman
Such Ignorance as they did not themſelves occaſion. For never ſo much as thought the Potion ſhe admi-
otherwiſe, Ignorance it ſelf is puniſhable, when contra- niſtred was any way hurtful. For otherwiſe it
Eted by the Perſon's own Fault. Hence there is a (4) were more rational to proceed according to (3)
double Puniſhment ordain'd againſt Drunkards, becauſe the Law of the Roman Lawyers. Add. Anth. Matth.
the Spring of that Vice is in a Man's Self, he having de Crimin. ad l. 48. D. tit. S. c.5. fa 6:.
the Power of avoiding it ; and therefore what he doth XI. Farther, Since thé Images form'd by the
through Ignorance in that Condition, is nevertheleſs to be Fancy in ſleep are not in our Power, nothing can
charged upon him. In like manner they puniſh thoſe be imputed to us which we ſeem to do in a Dream,
(4) Theſe are properly the emegtámaila of Ariſtotle. (b) Magn. Moral. 1. 1. C. 17. ili o riguard
wegian
Mr. Barb. NOTES.
(4) The one for being drunk, and the other for having done wickedly in their Drunkenneſs
, for he treats not of all ſorts of
Drunkenneſs, but only of ſuch as do ſome Injury in their
wine. Ariſtotle alludes to a Law of Pittacus, of which he ſpeaks,
Polit. Lib. 2. Chap. 12. Our Author quotes it, Lib. 8. Chap
. 3. S. 21. where we ſhall ſee upon what it is grounded.ale ani
(s) Apud quoſdam Lex erat, ne quis Diana vitulum immolaret. Naut& quidam, cum adverſå tempeftate in alto j4&tarentur, var
potiti effent ſe vitulum immolaturos, caſu erat in eo portu fanum Diana, loc.
(3) The Roman Law is this, That when one gives a Potion to cauſe a Miſcarriage, or to cauſe Love, although the Party vho
gives it has no Deſign to do Evil, nevertheleſs" by Reaſon of its Conſequences, he was condemned, beſides fome part of his
Goods Confiſcated, either
to the Quarries, if he were of a mean Condition, or to Baniſhinene into ſome Ille
, if he were of a good
,
Lib
: 48. Tit. 19. de Penis Leg. 38. S. 5. In fine, that we may have a juft Idea of invincible Ignorance, as to Imputation, les
that be remembred which we have obſerved Chap. 3. $, 10. Note 5. For Ignorance purely concomitant, in the Manner we have
explained it
, be it vincible or invincible, doth not hinder Imputation, and to know whether it be inyincible or no, we muſt judge
according to common Eſtimation, Titius Obſerv. 45. See Chap. 7. §. 16. following start
only

uerunt ſi portu
H 2
52
Of Moral Actions in General, &c. . BookI.

only as far as by thinking on ſuch things (1) in Antedated, or that it ſhould affect as backwards :
the Day-time with Delight, we have fix'd the unleſs perhaps the future Crime ſhould depend on
Idea's deeply in our Minds (a). Hence the Man fome (1) paſt or preſent Act of ours, as a necef-
whom Tacitus (6) ſpeaks of, and reports to have fary Effect does on its Caufe : For it is a common
ſeen the Emperor Claudius in his Sleep, cover'd thing to impute the Effect to him to whom the
with a Crown made of Ears of Corn, was not guil- Cauſe properly belong’d. Indeed it is not at all
ty of any Crime. And the Fiſherman in Theocri abſurd, that by Imputation of Favour a future Deed
tus ( - ) entertain'd a very vain Scruple, when he ſhall procure ſome good Thing to the Agent, or
appear'd concern'd for an Oath he had made in to fome Body elſe, long before it is perform'd.
his Sleep never to venture out again to Sea (d). For ſince any Man may (if he pleaſes) do a Kind-
Neither was Julius Cæfar. guilty of Inceſt, upon neſs gratis, it is certainly in the Power of a Bene-
account of his ftrange Dream, recorded by Sueton. factor, who knows what will afterward happen,
fe). Yet Byblis was not altogether innocent, when, to confer la preſent Favour under fome Term and
as Ovid tells the Story,
Condition hereupon to be fulfilled. But ſince ill
Salobi dobili Adions cannot be imputed, but by way of Debt
Sæpe videt, &c.
2017 or Guile, it would be the higheſt Abſurdity, to rec-
kon ſo far backwards, as to lay Imputation on Per-
In Sleep ſhe oft does the lov'd Shadow ſeem fons who neither had any Knowledge of Futurity,
To graſp, and joys, yet bluſhes in her Dream. nor any Obligation or Power to hinder the Thing
Mr. Oldham. from being done ; nor, laſtly, any Communi-
cation of Action with the Author of the Fact
Nor is Plutarch (f) much out of the way, when he (g)(2).
maintains, that a fair Argument may be drawn XIII. Beyond theſe Exceptions no Human Acti-
from a Man's Dreams, as to the Temper and Com- on ought to be reckon'd involuntary or incapable
poſure of his Mind: and therefore 'twas a good of Imputation, tho? to undertake it be never fo
Saying of Epicurus, That a wife Man will be like contrary to right Reaſon, or tho'any Diſorder of
himſelf, even in bis Sleep(2). Diog. Laert. l. 10. Some Mind violently hurry us into the Commiſſion.
apply to this purpoſe Pſal. xvii. 3. Vid. Claudian Indeed Plato (5) lays it down for a Rule, Tharin
Præfat. ad. l. 3. de Raptu Proſerp. Theocrit. Idyll. 22. thoſe Injuries which 'tis impoſſible to repair, no
Man is voluntarily injurious, becauſe no Man is
-Και δεν υπνοις
willing to admit the greateſt of Evils into
any
Πάσα κύων άρτων μανεύέlαι
his Concerns, and much leſs into thoſe Things
' which are moſt dear to him, and moſt excellent
The hungry Dog preſages in his Dream ' in themſelves ;' ſuch as is his Soul(i). To the
A mighty Spoil of Crufts.
fame Purpoſe Ariſtippus ſays in Diogenes Laertius,
That all Miſtakes (by which he means all ſmaller
XII. Laſtly, It is againſt Reaſon, that the im- Offences) deſerve Pardon, becauſe no Perſon is
putation of any future Crime ſhould be as it were miſtaken willingly, but as he is compellid by
C
C
of
(a) Nonn. Dionys. 1. 4.
L'ANTUTION 28
*Ερων όποις τελέα της εν ήμαι νυκή σοκά'et.
-Fancy's idle Play
Mimicks by Night the Labours of the Day.
(6) Ann. 11. See Ammian. Marcellin. l. 15. c. 2. (c) Idyl. 22. (d) See Evagrius's Oath made in a Dream, in Sozomen, Hiſt.
Eccl. b. 6. c. 30. (e) Cæſ. c. 7. Nam viſus erat per quietem matri ſtuprum intuliffe. (f) De Profet. Virtut. Sent. (8) Cicero
de Invent. l. 1. A Remote Argument is ſuch as depends on a Cause and Principle too far diftant. For inſtance, If P. Scipio had not
married his Daughter to Tiberius Gracchus, by whom ſhe brought forth the young Gracchi, the Seditions had been prevented which thoſe
Brothers raisºd in the State : And therefore all those Diſturbances are chargeable on P. Scipio. (b) De Leg. l. s. (i) Vid. Tie
meum p. 1085. do Marfil. Ficin. Præfat. ad Plato, 1.9. de LL. do Apolei. de Philoſophia.
Mr. Barbeyrac's NOTES on S. II.
(1) See what Mr: Bayle ſays, concerning ſuch as have dreamed that they were preſent at the Meetings of Magicians and Sorces
rers, in his Anſwer to the Queſt. of a Provinc. Tom. 1. P: 304, 305.
(2) Some of theſe Quotations of our Author are not much to the Purpoſe. He puts the Third Book of Claudian de Raptu
Proferp. for the Second, and one Work for another ; for his Quotation is taken out of his Preface to his poem in VI. Conſul. Honori.
Omnia que ſenſue voluntur Vota diurno, Pe&tore ſopito reddit amica quies. See Lucretius l. 4. p. 959, &c. and Cicero's Somn. Scrip.
Chap. 1. Here he ought to have ſpoken of the A&tions of ſuch as walk in their Sleep, who have beaten, wounded, and killed
others, while they were in that State. The Canon Law in the Clementines propounds ſuch a Suppofition, and determines, that
their Actions are involuntary, and conſequently not puniſhable, Si furioſus, aut infans, ſeu dormiens bominem mutilet, vel occidat,
nullam ex hoc irregularitatem incurrit, Leg. de Homicid. Vol. de caſ. lib. 5. tit. 4. But Mr. Hirtius adds, with Reaſon, (in his Trea-
tiſe De Parem. Fur. Germanic, Lib. 3. Parem. 1. $. 4.) That if a Perſon that walks in his Sleep, being advertiſed of what he does
in his Sleep, does not ſecure his Arms, and take other neceflary Precautions to hinder him from doing any Miſchief whatſoever,
he is not excuſable. See Tiraquel. de Pæn. temper. Caul. s. Mr. Thomafius has publiſhed a Treatiſe of the Laws about Sleep and
Dreams, which is the XI. of his Diſputations held at Leipſich, and are collected into one Volume, Printed 1695.
NOTES on S. 12.
(1) 'Tis in the Original, Preſent or Future, which is a plain Miſtake, and ought to be corrected thus, Preſent or Paft, for thay
a fùcure Crime be impured by way of Retroſpection, upon the account of ſome Action, which it is neceffarily confequent upon,
that Action muſt neceſſarily be produced. This is ſo true, that the Author himſelf, in his Elements of Univerſal Civil Law, p. 368.
from whence theſe words are copied, expreſſes himſelf exa&tly fo. Neither the Engliſh Tranſlator nor Mr. Hirtius were aware of
this Miſtake, which quite ſpoils the Senſe.
(2) Remotum eſt, quod ultra quam fatis eft, petitur hoc modo. Quod fi Cornelius Scipio Corneliam filiam Tiberio Graccho non collocaffet,
atque ex eâ duos Gracchos procreasſet, tant & feditiones nate non esſent, quare hoc incommodum Scipioni afcribendum videtur. Cicero de
lavent. l. 1. C. 49. See alſo the Thought of Vindex above, $. 7.
cfome


53
6
(a). But Ariſtotle hath in many places refuted corrupted by frequency of ſinning (4). If (lays
,
CHAP. V. Of Moral Adions in General, &c.
• fome perturbation of Mind. And the Emperor our own Fault doth not render an Adion invo -
Antoninus frequently advancech the like Dočtrineluntary, fo neither can an ill Habit, or a Mind
this Opinion. As when (b) he recites the follow- he) a Man, not out of Ignorance, does things
ing Argument of Socrates (1), defign’d to prove, which may denominate him Unjuft, he is vo-
that it was not in our Power whether we would be Good luntarily Únjuft; but he cannot, at his Will and
or Bad: 'Becauſe fuppofing we fhould ask any Pleaſure, turn from Unjuſt to Juſt again; (but
one, whether he had rather be Juft or Unjuſt, this we are to underſtand' (s), either in a com-
no Man would chuſe Injuſtice; whence it ſhould pound Senſe, i e. that he cannot be Juſt and Un-
( appear, that if ſome Men are wicked, they are juſt at the ſame time ; or elſe in this Meaning,
not Wicked of their own Accord, and confe- that the bare Will cannot preſently aboliſh a con-
quently none are of their own Accord Good. firm'd Diftemper of the Mind; tho’by long and ear-
In Confutation of which Ariſtotle hath us’d theſe neſt Endeavour it may be overcome :) no more
Reaſons ; That it would be abſurd for a (2) than a fick Man can be found again when he
* Lawgiver to enjoin good Actions, and to forbid pleaſeth, tho' his Sickneſs, perhaps, was volun-
' and to puniſh Evil, unleſs both were éq' muiv, in ' tary, occaſion'd either by his intemperate Way
our Power : And that otherwiſe there would be of Life, or by his Diſobedience to the Orders
no manner of Cauſe why Virtue ſhould meet of his Phyſician : Such a Perſon at firſt had it
with Praiſe, or Vice with Diſgrace and Re- indeed in his Power not to be fick ; but when
proach.' In another Work (c) he handles the he hath once neglected his Health, it is not in
Point more at large, and with good Reaſon (3) his Power to reſtore it: In the ſame manner as
rejects that common Argument of the Stoicks, All one, who hath thrown a Stone out of his Hand,
deſire and follow what appears Good to them; but now cannot recover it again, though at firſt he had
no Man is Maſter of his own Fancy, but the Ends be che Power of throwing or not throwing it.
purſues appear to him Juft, according as he is inclin d Thus the Unjuſt and the Intemperate, at firſt
and diſpos'd. For in ſpight of this Objection, the might have been otherwiſe, and therefore were
Underſtanding of what is Juſt, and what Unjuft, voluntarily ſuch, but being once under thoſe
muſt be acknowledg’d both to be in the Power of Conditions, they are not it Liberty to be with-
Man, and to be attainable without much Difficul- out them that is, before they have reform'd
ty, or Labour (d). In the ſame place Ariſtotle and
and correćted themſelves (6).'
well obſerves, that as Ignorance contracted by It may not be amiſs to caſt an Eye upon what
the
(a) Lib. 4: 1:3. Lib. 7. f. 22, 63. Lib. 8. S. 14. Lib. II. S. 18. (6) Magn. Moral. l. 1. c. 9. (c) Ethic. l. 3. 6. 7
(d) Vid. Euſtath. ad loc.
Mr. Barb. NOTES on S. 13.
(1) Σωκράτης έφη, έκ έφ' ημίν ένεθαι το σσεσαίες &ναι ή φαύλες, ει 8 ης φησίν, ερωτήσεωντινα ξν, πότερον αν βέλoιτο
δίκαιο ναι, άδικα, εθές αν λέγοιτο ή αδικίαν·--.... δήλον ως α φάυλοι ήνες ισιν, εκ αν εκόνες άησαν φάυλοι, ώςε
Sõrov od ide ourf colMagn. Moral. lib. 1. ch. %. We may obſerve, that there is ſomething of Truth in this Norion, viz.
That ordinarily Men do not fin for nothing, nor do any ill thing purely and ſimply for Evil-doing. 'Tis a common Maxim uſed
by Saluſt, Men are wicked for Rewards, take away them and ſcarce any Man wil da Evil. Orat. 2. de Repub. Ordinan. See lib. 3.
chap. 1. S. 1. not. s. following, and lib. 8. chap. 3. S. 19. note 1, 2. The Uſe of this Principle is to make us merciful to our
Neighbours Faults, a Conſequence which the Emperor Antoninus draws from moſt of the foregoing Places, but when we deal
with our ſelves, as we never are ſevere to our own Faulcs, let us turn the Ballance, and always ſay, as Max. Tyrius, though a
Platonift, expreſſes himſelf pithily and in a few Words. Emériov i Loox Onelo MuchTou te casola. Difert. 41. p.426.
Edit. Davis.
(2) The Greek of Ariſtotle runs thus, o no toift nóg éx o dangas. de zi 38 8 vomogétus čx tą Tà paura mediev, til
Τα καλά και σταδιαία κελέυει. και οι μεν τοίς φάυλοις ζημίαν τέλει αν πρέλη, όπ δη τους καλούς αν μη ωeάλη και του ατοπαν
είη ταυτοι νομοθέτων εφ' ημών οι ωράφειν, αλλ' (ώς έoικεν) εφ' ημίν τεσσεσαίοίς άναι, και τα φαύλοις, έτι και μαρτυρύσιν οι τ'
έπαινοι, και ψόγοι γενόμενοι, μ' δ τη αρετή Έπαιν, όπ ' κακία ψόγΘ, έπαινα- δε και ψόγΘ έκ οι τοίς ακεσίοις. Αrift.
Mag. Mor. ch. 9.
(3) The Greek is, Ει δέ τις λίγοι ότι πάντες έφιέναι το φαινομένα αγαθ. δε φαντασίας και Κύριοι, αλλ' οποία ποθ' έκασG-
OF1
, TOLETO X To 731 paveroue ourã. Ethic. ad Nicom. I. 3.c.7. He anſwers to this, That as every one is himſelf the Cauſe of
that Diſpoſition which cauſes Things to appear to us after a certain Manner, ſo he is in ſome Senſe the Cauſe of that Appearance,
Conhole or discipport, oi uefur av fras@laurie of lEsais ont très détı@ ise.gaulaojas 831. trãs duro dítio. Scc Euftrathiu's
(4) The Greek is, Ei
, nè un ayvom tis medier og o Esoy SiruG fxwv äting av to, é une édum féACICA; & NxG Á Áuostad
ξέτα δικαιώ, ε 8ο νοσών υμής, και ει έτος έτυχαν, εκών νοσά, άκρατος βιοτίνων και απειών τους
ιατρούς
, τότε μ' έν εις
αυτώ μη νοσών περιμένω δε
, έκ έτι. ώσπερ εδ' αρίθι λίθον, ότι αυτόν διωκτών αναλαβών, αλλ' όμως επ' αυτώ το βαλείν, και είναι:
και ο αρχει επ' αυτά, έτω δε και το αδίκη, και το άκολάσω" εξ αρχύς μην ξύ τοιέτοις μη γενέθαι, διοξέκονες εισι, γενομένοις δε
žreti bes un Srol. Ethic. Nicom. Lib. 3.c.7.
(3) That 'is to ſay, that Sinners, as ſuch, can't deſire to be good Men. See the Art of Thinking, Part 3. Ch. 18. §. 6.
Now that a Man may hinder himſelf from yielding to a Paſſion, and may reform an ill Habit at length, if he pleaſes to
take the pains, appears not only from the ſecret Checks which he finds in himfelf when he fins, and the inward Senſe he has of
the Freedom of Will by which he acts, but alſo by Experience. It often happens, that in the very Moment when a Man offends,
the Preſence of ſome conſiderable Perſon, or of a Magiſtrate, who has Power to puniſh the Action, is of Force to prevent the
Thing is able to make us refift a Temptation. Suppoſe, for Example, a Drunkard by Profeffion, being in perfect Health, and free
from all Cares, comes thirſty into
a favern, where he finds his Companions with Glaſs in hand, whº doubes, buc chat, upon a
Wager, he could, and would refift all Allurements of the Objects which might tempt him, and the moſt carneſt Entreaties of
his Comrades? Since then the Hopes of a ſmall Gain, or a little Vainglory, is able to oblige him to abſtain from a Thing he
loves ſo well, why may he not be able, by little and little, wholly to abſtain from it, being moved with better Arguments and
a Principle of Virtue. It is certain, at leaſt, that if a Prince reſolves to make ſevere Laws againſt Drunkenneſs, and ſees them
well execuced, he'll ſoon put
a ſtop to that Vice. 'Twas by this means that the Madneſs of Duelling, nor long ſince ſo very com-
mon in France
, Brandenburg, Saxony, &c. is almoſt quite laid aſide, becauſe of the ſevere Prohibitions of that pernicious
Cuſtom;
and we ſhould lec fewer Examples of it, if the Laws againſt it were not cluded by making a Duel paſs for a fingle Rencounter.


can
See
54
Of Moral Actions in General, &c. Book I.

carriage Ill Step; the Moral Cauſe of that Mif- But this was indeed to cenſure and reproach Nature for
got them by ill Actions, and partly becaufe they mand
4.
the Author of the Treatiſe De Principiis Fuſti a o XIV. A Man is not only liable to have his own
Decori, p. 165, &c. hach advanced on the Subject Actions imputed to him, bue likewiſe the Adions
of Moral Habits
. ar Thoſe Moral Habits which of other Men. Y Yet this cannot rightly be, unleſs
we commonly call Evily are not (ſays he) really he has ſome way or other efficaciouſly concur'd in
(7) Sins, nor worthy of Puniſhment, if confi- their Production. For otherwiſe Reaſon will ne-
der'd in chemſelves becauſe they do not touch ver ſuffer that the Effect of a Moral A&tion ſhould
the Effect with any Moral Cauſality, ſo long as be transferr'd from Oneco Another, unleſs this
they continue H, bits, but only as they break out other Perſon had fome Influence on the Axion,
into Aits. And if they prove a Hindrance to by ſome Performance or fome Omiſſion of his
Virtue, this is done by an elicit Act of Men's own. Arrian. Epift. l. 1. 6. 28. (1)No Man ſuffers for
Will, which will is then the Cauſe of the Moral the Fact of another
. Marco Antonin. 1.8. 1. 53. Una
Vice. But to eſtabliſh a Moral Cauſe ſuperior to to my Free-will my
my Neighbour's Free-will (as his Life,
the Will, is to take away the Nature of that Fa or his Body) is altogether indifferent. For although we
culty, it is to turn one elicite into an enjoin'd Act, are all made one for another, yet i have four Minds and
and to attribute to Habits an actual Efficacy of Underſtandings each of them their own proper and limit-
operating without any Operation. For we ope; ed Juriſdiction. Elle another Man's Wickedneß might
rate only by the Will, and anothing truly Moral be my Evil; which GOD would not bave, that it might
can work before the elicite Ad of that Power not be in another Man's Power to muke me Unhappy.
from which alone proceeds the Morality of any Thus when a sound arrives at our Ears againſt
Performance. For an ill Habit before the Aět our Conſent, the bare bearing can be no Crime,
of the Will, is only a Phyſical Thing, or a Mode if we proceed no further; unleſs, as (2) Lucian de
of the Soul; but when the Soul works ſinfully Imagin. ſpeaks, You fancy any Crime in the bare Act of
by the Will, then the Habit ceaſeth, and-is fuper- Hearing. Though ſometimes indeed a quiet and
feded. The Efficacy by which ill Habits diſpoſe filent Hearing is conſtrued as a Token of Conſent.
the Mind to ill Actions, is different from that And 'twas on this Account that the brave Germa-
(for Inſtance) by which lewd Diſcourſe inftils nicus, when on the News of Auguſtus's Death, his
Wantonneſs into the Minds of the Hearers: Be- feditious Soldiers offer'd him the Empire, ſtarted
cauſe that Diſcourſe may be properly ſaid to work immediately in Confufion from his seat of Com-
antecedently to the Will of him to whom it is ap- mand, as if he had been already tainted with Rebellion,
plied, though the Effect doth not always follow.' Tacit. Anal. l. 1. c. 35. So alfo (3) Themift. Orat. 5:
Which abſtruſe Doctrine may firly enough be ex- Heretofore, in Crimes of this ſort, no Diſtinction was
plained by this Similitude: Splayneſs of Foot in made between Misfortune and Guilt : it being judg'd as
it ſelf, and as long as the Foot reſts, is not a Fault heinous to hear a villanous Propoſal, though againſt one's
againſt the Rules of Dancing, but when the Spark Will, as to contrive the Plot, or to attempt the Execution.
not the of Toes , not
ſider'd in itfelf, but the Will of him that hath ſo in our power to cloſe and contract them, as we do our
awkwardly mou'd them.
Eyes or our Mouth : Since theſe alone, of all our Inftru-
The fame Author adds, That the Reaſon why ments of Senſe, are plac'd beyond our Will and Com
we hate ill Habits, is partly becauſe the Perſons mand, lying ready to receive of Neceſſity every thing that
are more
prone to ill Actions on the account of at length, have reſtord our Faculty of Hearing to its juſt
them: And that tbo' they are Diſeaſes of the Mind, Character of Innocence.
get they do not deſerve Puniſhment in themſelves, but be- Sometimes, then, it happens that an Action is
"cauſe they were voluntarily contracted. As if we fhould not imputed to the immediate Performer of it, but
ſay, when we beat an unlucky Boy that puts out his to him who commanded it to be done. As when
Ankle by a wanton and negligent Leap, the rea a Superior, under the Penalty of the ſevereſt E-
ſon why we beat him, is not the putting out his vils, and ſuch as he is really able to inflia, enjoins
Ankle (in itſelf,) but the idle Leap that caus'd it. a Subject the bare Execution of ſome Deed. Thus,
Mr. Barb. NOTES.
See Chap. 4. 6. 7. Note 2. foregoing, and Mr. Clerc's Ontology, Chap. 13. §. 4. In a word, we may ſay, with an ancient Greek
Poet, That it is, in truth, hard to reform an ill. Habit, tha
that is become almoſt natural, but not impoſſible, ſince we have ſeen fe-
veral Perſons reform their Manners by good Advice given them by others, as his Words ſhew,
Το 8 απoς ώαι χαλεποντ, ο Ξιωόντες γνώμαις ετερων
Júlews, Weget ris, a'm 1: Μεταβαλλόντες τες τρύπες,
Και οι πολλοι ταύτ' έπαθον
Ariſtoph. Veſp. p. 504.
12
(7) Very well, but they are anſwerable for their evil Diſpoſitions, becauſe they have brought them on themſelves, by their
own Fault. In ſhort, all theſe Reaſonings contain nothing in them but the idle Speculations of ſubtle Philoſophy.
Out Notes on S.
• (1) The Greek of Arrian runs thus, Ai draózesov prov zahti eftis, &c. Antoninus's thus, Toquã apadigstix To TË Tan-
στον προαιρετικών εισης αδιαφόρον έσιν ως και το πνευματιών από και το σακίδιον και δε ότι μάλισα αλλήλων ένεκα κγόναμεν, όμως
τα ηγεμόνικα η μ έκασον ή διαν κυρίαν έχε έπει οι έμελλεν και το πλησίον κακια εμέ κακόν άναι, όπερ εκ έδοξοτώ Θεώ, ίνα μη
Ir lang ito sus ei tu fr. Marc. Antonin. Lib. 8. 9.50
(2) Lucian's Greek is this, "Exlos biul Tue voluilas drog.oeos &Omílw diversoApolog, in fine.
3) Themiſtins's Words (Orat. 19. de humanitate Ìheodofii.) are, Kal ránce refer s diexixeito ey TubM łyxańcuda didengar orsuxń.
μας αλλ' εν καθεισήκει το ζαλάσαι τι η αθέσμων, και το ποιος το αρσελομενον, και τι τ φύσεως έγκλημα ήν σάτο και το ανθρώπε,
όπ ή ακoίω εποιησεν αναπεπταμένω, και εκ ωσπερ τα βλέφαρα. και το σόμα εφ' ημιν κλίαν, και ανοιγνύαι, έτω και τα ώτα, αλλά
άυτη μόνη σχεδόν ή αίθησις εκπεφυγε και εφ' ημών εξεσίαν, και έχει ανάγκη πάν το «εισοίον αυτή ωσπερ οικημα αθυ esh, και άνεων
μένον. Συ δε * μεν ακούω' εξάλι παντάπασι τ εγκλημάτων.
is
6
6
6

CHAP. V. Of Moral Actions in General, &c.
55.

as (4) Procopius Hif. Goth. l. 1. well obſerves, “ An Caſe of Piſo in (6) Tacitus, whom Tiberius himſelf
* Ambaſſador, at the Command of him whom he excuſed from having any Guilt in the Civil War, ſunce as
repreſents, ſpeaks ſuch and ſuch Words; in which he was a Son be could not decline his Father's Onder's
“ if there appear any Fault or Offence, it ought (d). But now his Father, by his Paternal Right
not to be charged on him, but on his Maſter, and Power, could not have oblig'd him to engage
whoſe Orders and Inſtructions he is under a Ne- in ſuch a Crime, and therefore he was mov'd only
ceflity of obeying. When the Roman Senate de- by his Authority.
clar'd the League with the Samnites to be Baſe and Secondly, He who gives a Conſent neceſſarily
Inglorious, and voted the delivering up the Ge- requifite to the Performance, and without which
neral, the Author of it, to the Enemy, it was a the Agent had not proceeded. Comp. Valer. Max.
very ſenſleſs Propoſal mov'd by one of the Grave l. 2. f. 8. f. 2. (7) Liban. Progymn. He is to ſuffer for
Fathers, that the ſame Puniſhment ſhould be in- the Fault, without whoſe Leave it had not been com-
inflięted on the Perſon who held the Swine during mitted. Id. ibid. They are not ſo properly to be ac-
the Ceremony of making the Agreement (a) (b). counted the Authors of Crimes, whoſe Hands commit
When Mithridates put to Death Attilius and other them, as
them, as they who gave the Power and Authority of
Conſpirators againſt his Life, he pardon’d Attili- committing them.
us's Freed-men, who were of the Company, Thirdly, He who ought to have forbidden an
Òs do Torn S10 OVNO Rreferos (c), as Perſons that only obey'd ill Action, and did not; provided he had a full
their lawful Maſter.
Obligation thus to prohibit it, and that upon the
But it's more uſual that the Action ſhall be im- account of that Obligation other Men had a Right
puted both to the Performer and to the Com- of exacting ſuch a Prohibition from him. Vide
mander of it. And this is chiefly done in theſe 1.45. D. ad L. Aquil
. l. 2. de Noet al. a&t. l. 1. f. 1. D.
three ways: Either, that the Commander ſhall be famil. furt. fec. Seneca Troad. Qui non vetat pec-
the Principal Cauſe of the Action, and the Per care cum poſſit, jubet. Nor to forbid a Sin, when in
former the Inferior and Acceſſory Cauſe, or that our Power, is to command it. Sophocl
. Philoétet. (8)
both ſhall be deem'd equally guilty, or that the Men are influenc'd into Vice by bad Inſtructors.
Commander ſhall be the Inferior Cauſe, and the On this Score Diogenes beat a Schoolmaſter, whoſe
Performer the Principal. And in all Caſes the Boys were too much given to their Bellies, Not
Concurrence to another Man's AErion is made ei- imputing the Fault (as (9) Plutarch ſays) to them for
ther poſitively or privatively, by ſome Commifli- not learning better things, but to him for not teaching
on or Omiſlion.
them. Libro, virtutem doceri polle. Vide Ælian. 1. 3.
Firſt then, He is eſteem'd the Principal Cauſe C. 19. Juvenal. Sat. 14.
of an Action conmitted immediately by another
Nemo Satis credit tantum delinquere quantum
Man, who commands ſomething to be done by
one under his Power and Sway, or who by his bare
Permittas ; adeo indulgent ſibi latius ipſi
.
(s) Authority, not eaſily to be reſiſted, moves a
All think too ſtrait th' Indulgence they receive;
Man to the Performance of ſome Deed, which
And to themſelves a kinder Licenſe give.
he could not have enjoin'd, by Command or Add. l. 4. 5.2. D. de Offic. Proconf. Thus Meſjalinus
Power properly ſo call’d. And this laſt was the in Tacitus, An. 4. (10) adviſed, that a Decree of


(a) This Cuſtoin of uſing Swine at Times of Pacification, is accounted for, Livy, lib. 1. c. 24. Si populus Rom. prior defecerit publico
Confilio, dolo malo; Tu illo die, Jupiter, P. Rom. Sic ferito ut ego hunc Porcum hodie feriam : tantoque magis ferito quanto magis potes
polleſque. ld ubi dixit Porcum Šilice percuſſit. To this Purpoſe, Virg. Æn. 8. 641. -C&Ja jungebant fædera Porca. See Mr. Ken.
net's Rom. Antiquities, Part 2. chap. 17. (6) Cicero de Invent. 1. 2. Mamerlin. Paneg. 1. Whatever is tranſa&ted by his Commiſ--
Kon is properly the Deed of the Emperor. Seneca Troad. Ad authores redit fceleris coacti culpa. The Guilt of Miſchief atted upon Force
turns on the Authors
(c) Appian. Mithridates. (d) Ada. l. 37. Princ. D. ad L. Aquil. 1.11. S. 3, &c. D. de Injuriis ;
Ant. Matth. de Crimin. Proleg.c. 1. f. 13,
Mr. Barb. NOTES on s. 14.
(4) The Greek is this, Λόγες σε όσες αν έκ πέμψαν 10 ακηκοως άπη, εκ αυτος εντευθεν αιτίαν ήν γε και κάγαθοι τύχωσιν όντες,
εικότως αν λάβοι αλλ' ο μη κελέυσας φέρσιτο αν δικαίως το έγκλημα τέτο, τω δε πρεσβατή ο Φίσεργίαν εκτελέσαι ωείεςι μονον.
Procop. Hift. Goth. 1. I. Among the Greeks, where a Maſter had an abſolute Authority over his Slaves, theſe were looked upon
as meer Tools, whatever they did, whether Good or Evil, employed by their Maſter. See Baron Spanhemius upon Callimachus
Hymn. in Cerer. Yet we ought to obſerve, that an Action perform’d at the Command of a Superior, is not altogether excuſable
at the Judgment-Seat of GOD, eſpecially if he doth any thing which he knows clearly to be Evil in it felf. See S. 2. Note 9.
So that we muſt by no means approve the opinion of the Ancients, That it is a ſort of Virtue to commit a Fault in Obedience to
a Maſter, as the Poet fpeaks, Pro Dominis peccare, etiam virtutis loco est. Publ. Syr. v. 567.
(5) Authority here, fignifies nor, a Power, or Command, which one has over another, but the particular Reſpect which a Per-
ſon bears in his Mind to another, either upon the Account of his Merit, or Superiority, or ſome other Reaſon, which engages
him to pay a great Deference to his Will and Pleaſure, (for which Reaſon the French Tranſlation renders it, La Conſideration, Re-
ſpect, or Regard) according to Livy's Diſtinction, ſpeaking of K. Evander, Authoritate magis quàm imperio regebat ea Loca, Lib. 1.
c. 7. He Ruled more by his Authority than Command. And, on the contrary, of a King of Numidia, named Capuſa, Quum magis
jure gentis quàm Authoritate inter ſuos, aut viribus obtineret Regnum. Lib. 29. C. 29. He obtained the Kingdom more by Law of
the Nation, than by any Authority he had with his people, or Power to oblige them. Tacitus alſo ſpeaks of the ancient German
Kings, Mox Rex, vel Princeps, prout et ds cuique, prout nobilitas, prout decus bellorum, audiuntur, authoritate ſuadendi, magis quàm
Jubendi poteftate, Ch. 11. Then the King, or Prince, as every one was more Aged, Noble, or Warlike, was liſtened to more for
(6) Tacitus's Words are, Poft qua Tiberius Adoleſcentem ( Piſonem] crimine civilis Beli purgavit, Patris quippe Jusſa nec potuiſſe
filium detre&tare. Tacit. Annal. lib. 3. c. 17. num. 1.
(7) The Greek runs thus, oſ pelo più que, por púcarl G en dv 70 73 iné meginto fotov speito dirlw i meg xHv!ww opolder--- Avize
αδικημάθα νομίζαν και ήταϊς χερσίν εργαζομένων δαλλον. ή 7 το δυνηθίώαι δεδωκότων. 'Liban. in Progymn. p. 12. D.
(8) The Greek is, οι διακοσμενες προ των διδασκάλων λόγοισι γίγνονlαι κακοί.
(2) His Words are, ΠαιδG οψοφαγάνα ο Διογενής τω Παθογωγό δακτυλον έδωκεν, Ορθώς και τα μη μανθάνον, αλλά και μη
Earlo ti dusoluua mohous. In Libro, Virtutém doceri posſe.
(10) Tacitus's Words are, Majalinus Cottacenſuit cavendum esse Senat în s conſulto, ut quanquam Inſontes Magiſtratus, do
culpa aliena neſcii, provincialibus Vxorum criminibus, perinde quàm ſuis plecterentur. Tacit. Annal. 1. 4. C. 20. rum, 5,
Senate
56
Of Moral Actions in general, &c. Book I.

Senate ſhould pafs to puniſh the Magiftrates for the Road ſaw another Killd, or ſuffering any Vio-
Crimes committed by their Wives, in Relation to lence, and did not reſcue him though he was able,
the Government of the Provinces, whether they he was obnoxious to Capital Puniſhments. And
themſelves were concern'd or unconcern'd in the if the Man was too weak to give Alliſtance and
Fa&t. And thus too, by the Engliſh Laws, the Deliverance, he was oblig'd to diſcover and pro-
Husband is oblig'd to Anſwer and to make Satisfa- fecute the Actors: Upon Default thereof, he re-
&tion for the Wrong his Wife doth to another, ei- ceived a ſer Number of Blows, or was enjoin'd a
ther by Word or Deed; becauſe he neglected to uſe three Days Abſtinence from Vi&tuals (e). And thus
his Power of reſtraining her. Nay, if the Husband Abas King of Perſia, to clear his Country of Thieves,
and Wife commit Felony together, the Wife is ac- publiſh'd an Order, that whenever any perſon was
counted neither a Principal nor an Acceſſary in kill'd, or plunder'd the Inhabitants of the nextTown
the Crime, becauſe ſhe is ſuppoſed to have acted ſhall be accountable for the Fact(f). So with the(13)
upon Neceſſity, by vertue of the Obedience ſhe Spartans, he that did not reprove a Perſon who of-
owed her Husband (a).
fended in his Preſence, was punilhi'd as a Partner
Fourthly, He who commands, or hires a Per- in the Crime. So (14) Cato exhorting the Magi-
ſon to perform a Villany (b).
ſtrates to put the Laws in Execution againſt Offen-
Fifthly, He who afliſts; as he who brings and ders, told them, 'That thoſe who were able to re-
holds the Ladder, while a Thief gets into a Win ſtrain wicked Doers, and yet neglected this Power,
dow : He who ſtrikes the Money out of a Man's did plainly affent and contribute to their Enormi-
Purſe, that another Rogue may pick it up: He 'ties (g). As for the Silence and the Diffimulati-
that drives away a Man's Cattle, that his Comrade on of Magiſtrates, Plato (5) has given thoſe Crimes
may ſeize them, and carry them off (o).
their due Cenſure: The ſecond Enemy to a State (ſays
Sixchly, He that conceals or receives ſtollen he) is the Man, who, thó' be be not ftrictly a Partner in
Goods. Phocylid. Aupóteer. xam MS, Vj xre-bot pulu o this Villany (he means Treaſon,) yet while be enjoys
og ó repur foes. They that receive are arrant Thieves no leß
Leſ the higheſt Offices in the Comimonwealth, does not obſerve ,
than they that ſteal. Plato de LL. 1. 12. He that the Conſpiracy; and if he does obſerve it, but of a time-
knowingly takes into his Keeping ſtoln Goods, Shaill be e rous Beſeneſs neglects to ſučcorr and to deliver his Coun-
ſteem'd equal in Guilt to the Thief himſelf. L. 1. Princ. try. The Story of Scedofins's Daughters in Plutarch,
D. de fugitivis
. Add. c. 1. D. de receptatoribus, Amator. Narration. Grotiùs ad Prov. xxix. 24. He that
& Edia. Reg. Theodoric. c. 116. Concerning the knows the Thief, and doth not, when requir' d upon Oath
Alliftants or Abettors in Adultery, ſee. l. 8. 1. 9. D. ad before a Magiſtrate, diſcover him, is in Guilt equal to
L. Julian de adulter. (11) Periander the Tyrant of him, Vide Levit. v. 1. (15)
Corinth threw all the Bawds into the Sea, Heraclid. For the fame Reaſon, if a Keeper, who has un-
de Polit. Add. Anth. Matth: de Crimin. Proleg. derraken the Care of a Madman, prove negligent,
C. 1. f. 11. & ad 1. 47. D. tit. 10. C 1. & 2.
and the Madman happen to do any Hurt, the
Seventhly, He who did not affift the fuffering Keeper ſhall be anſwerable for the Fae, tho’ the
Party, tho' he was oblig'd to do ſo. (12) Cicero Madman be not capable of Imputation. Vide l. 14.
Off. 1. He that doth not, when he is able, guard and D. de Offic. præſid.
protect an injur'd Perſon, is as much in Fault as if be Thoſe Perſons are reckon'd the Inferior, or leſs
Should deſert bis Parents, his Country, or his Friends
. principal Cauſes of other Men's Adions, who have
Add. Anth. Matth. de 'Crimin. Proleg. c. 1. f. 15. advis’d, commended, or cajold them before the
Thus Soldiers, who are hired for a Guard in a Facts, in ſuch a Manner, as that their Counſel, of
Journey, if, on the Approach of a Number of Praiſe, or Flattery, has had any weight in promo-
Villains, whom they are able to grapple with, ting their Undertakings. For otherwiſe, à Man
they refuſe to fight, they are to be reckon'd them who barely commends a Crime, and yet by his
ſelves among the Villains. Thus a Fire ſhall be Commendation contributes nothing to it, ought
rightly imputed to the Watchman, who ſaw it not to be puniſht for the Crime it ſelf, but ſhould
kindling, yet neglected to ſtop it, or call for help ſuffer for his ill Thoughts and Deſigns (i). It will
(d). Thus åmong the Egyptians, if a Man on the not be very unjuſt to reckon thoſe in the ſame Claſs,
(a) Chamberlain's Preſent State of England, p. 1. c. 16. (b) Vide Anth. Matth. d.l. f. 12. do ad l. 48. D. tit. 6. 3. S. 16:
(c) Add. I. 54.5.4. 1. 66. /. 2. D. de furtis. (d) Add. Ezech. xxxiii. v. 6. (e) Diodor. Sic. l. 1. c. 77. Add. l. 3. D. Naute
caup. Stab. I. 2. 1. 6. D. ad L. Pompeiam de Paricid. l. 7. d. c. l. 9. f. 1. D. ad D. Cornel. de fall. 1.6. S. 8. D. de re militari.
(f) Vide
Pet. de Valle Itinerar. P. 2. Epift. 1. (8) Vide l. 2. D. de noxal. a&t. l. 7. L. qui fine manumiſſione, t. 1. D. de Magiſtratibus contes
(b) De LL. l. 9.
(i) Ovid. Triſt. 1. 5. El. ult.
Qui monet ut facias quod jam facis, ille monendo Who prompts you to go on, approves the Ways
Laudat, do hortatu comprobat a&ta ſuo. You took before ; and his Advice is Praiſe.
So in the Conſtitutions of the Lombards, l. 1. tit. 7. 1. 25. He that ſtands by and encourageth the Commiſion of any Villany, is himſelf
adjudg’d an A&tor in it. Add. Rom. I. 5. ult. Quinctil
. Declam. 255. To commit a Villany, and to approve of it, are A&tions naturally
reſembling each other, Anth. Matth. de Crimin, Proleg. c. 1. 1.9, 10, & 14.
(11) The Greek is, Tas neodywy os tão as yo te móvos. As to thoſe who are Procurers for Adulterers, fee Digeſt. Lib. 48.
Tit. 5. ad Legem. Julian de Adulteriis, Leg. 8,6 9.
(12) Cicero's Words are, Qui autem non defendit, nec obfiſtit, si poteſt, injurie, tam eſt in vitio quàm fi parentes, aut amicos, aut pas
triam deferat. De Offic. l. 1. C. 7. Mr. Hirtius cites alſo Ariſtotle de Mirab. auſcult, where he ſpeaks of a certain Road of Italy,
between France and Spain, in which the Inhabitants neareſt the Place were obliged to indemnify Travellers, if they had had any
thing taken froin them, or received any Wrong or Injury.
(13) Plutarch's Words (Inſtit. Lacon.) are there, 'Oré law ornádws me vo wrice pup vorld, 'evox the low omniuów,
was se rj 8 euaplaya
(14) Plutarch's Words are, Ilægopuestas de toca esgerlas emtidão Tois cenasteveciv, éneze mou swauéves Xwaven og's yeuxãos mere
vlasy av so absoi, xaTaxendav. Plut. Apophthegm.
(15) The Author himſelf a little lower ſays, Nothing is to be imputed to the Madman; whereuron it would have been hecter to
have put this Example among thoſe Actions for which a Man is as much reſponſible as if they had been actually done by him.
See Dig. Lib. 1. Tit. 18. De Offic. Praſid. Leg. 14.
who
niend is.
Mr. Barb. NOTES.

CHAP. V. Of Moral Actions in General, &c.
49
bound
and ſuch , ; That can
. . l. .
கோணல்
* Tð
who by their Recommendation have preferr'd a gives Counſel to his Sovereign (whether a Monarch, er
Man to the Care and Management of any Buſineſs, an Aſſembly) when he asks it, let it pleaſe o difpleaſe
,
ſince 'tis decent they ſhould bluſh for his Faults and cannot be puniſli’d, becauſe he gave it to ſuch as were
Miſcarriages (a).
willing to hear it, whatſoever it should be. But he
But as to the Marter of Counſel, it's worth while here ſhould have added, if the Counſellor gives his
to run over the Diſputes of the (16)
Civilians
, Opinion bona fide, and has a perfe&t Knowledge of the
where they are arguing whether the Words Ope Matter in Debate. • For it is a piece of Wickedneſs
and Confilio, by Help and by Counſel, are to be un to pretend to give a Judgment about a Thing
derſtood in a Conjunctive or in a divided Senſe. which we are unacquainted with. He preſently
For if Counſel imports the ſame as Intention or De- ſubjoins; But if one Subject gives Counſel to another to
lign, he only will be guilty of another Man's do any thing contrary to the Laws, avhether that Coun-
Theft, who aſlifted him in it, not out of Impru- ſel proceed from evil Intentions
, or from Ignorance cnly,
dency, but with premeditated Wickedneſs (b). it is puniſhable by the Commonwealth, becauſe Ignorance
If Counſel has been given without Help, it will of the Laws is no good Excuſe, where every one is
be requiſite to enquire, whether it were General to take notice of the Laws to which he is ſubject.
or Special. The former kind is, for
for Example, Hence that Maxim in England, commended ſo
when a Man, hearing another complain of Pover- highly by Dr. Bates (f), cannot be receiv'd with-
never mi-
a Counſellor will not in human Cogni- ſtake, nor do any Man an Injury, becauſe all the Fault
fance, paſs himſelf for a Thief. But if a Man has and Puniflıment is deriv'd, as it ought to be (19), on bis
given ſpecial Counſel to another, as, if he has Miniſters and Counſellors
, whoſe Duty is to Admoniſla the
fhown him what way to break into a Houſe, told Prince, to deny him their Aſſiſtance, whin be enters on
on ill
him the fitteſt Time, and where the Things be Deſigns, and rather to quit their Places, than to obey him
that may be moſt conveniently carried off, or when he commands the doing of any thing contrary to the
how he may hide himſelf after the Fact, ſuch an Laws. Add. Gell. 1. 1. c. 3: Where he
one will have a very ſtrong Twang of the Thief Chilon, that he was troubled with Remorſe of
(c). It is farther obſervable, in reference to Conſcience, upon his having perſuaded the Judges
Counſel, and other like Influences on other Men's to (20) abſolve a Friend of his manifeſtly guilty,
Actions, that by them the Guilt is only commu and whom he himſelf had in private condemn'd.
nicated; but not wholly devolv’d from the Actor 'Tis a remarkable Story which we find in the fame
to the Exhorter, unleſs the former were under an Author, l. 11. c. 18. of a Perſon's being convicted
(17) Obligation to put his Advice in Practice. as a Man-ſtealer, for hiding, with a Caſt of his
Hence Diodotus in Thucidides (d) complains with Gown, a Runnagate Slave, who was paſſing with-
good Reaſon, That the Orators in a State ſhould in ſight of his Maſter.
be accountable for their Advice, and the People It is doubtful, whether we ſhould rank under
not at all accountable for hearkening to them.' this, or under the former Claſs thoſe, who by their
He adds (18), If he that believ'd, as well as he that. Example excite others to ſuch Sins, as they would
perſwaded a Buſineß, were liable to be puniſhd, you have otherwiſe declined. Matth. xviii. v. 6. Ju-
would proceed much more wiſely in jour Judgments. venal. Sat. 1.
when you fall into Paſſions on any Diſappoint-
Greg tot us in agris
ment of your Hopes, you only puniſh bim who gave the Unius ſcabie cadit, & porrigine porci;
Advice, and not your ſelves
, who have always born Uvaque conſpecta livorem ducit ab'uva.
So great a Share in the Miſtake or Miſcarriage. Hence
)
From one infected Beaſt the Murrain reigns
incident to the Nature of Counſel
, that whatſoever it be, O'er all the Drove, and ſpreads them on the Plains:
he that asks it cannot in Equity accuſe or puniſh it. For And one corruptedGrape its purpleNeighbour ſtains
to ask Counſel of another, is to permit bim to give ſuch Add. Grot. l. 2. c. 17. f. 6. &c, and c. 21. . 2. &c.
Counſel, as he fhall think best ; and conſequently he that Ant. Matth. de Crimin. Proleg.c. 1. 5. 6. &c.
(6) L. 52. . 13. D. de furt is. (c) Vide Ant. Matth. de Crimin. Proleg.
c. 1. f: 7: (d) L. 3.6.43.
(e) Leviath. c. 25. i) Elench. Mot. p. 1. und 301010001 has
Mr. Barb. NOTES on 5. 2. *MTE YOW!, douw dw 3*
(16) The Words of the Roman Law are, Interdum quoque furti tenetur; qui ipſe furtum non fecit, qualis est is, cujus ope confilio
fie factum est
. Inftit. Lib
. 12. Tit: L. De Obligationibus, que ex delito naſcuntur (and not De furtis
, as this Author and Grotius
cite it, for that's no Title in the Inſtitutions.) See allo Digeſt. lib. 50. tit. 16. De verbórum ſignif. Leg. 53. S. 2.
de furtis Leg. 36. S. 1.
(17) Which does not commonly happen ; but, on the contrary, he is reſponſible for his Fidelity orily, as cicero ſpeaks very
well, Deinde, etiamſi te au&tore, quid debet, qui confilium dat; præter fidem, i. e. If we adviſe others for the beſt, we are not an-
ſwerable for the Evene. Lib. 16. ad Attic. Epiſt
. 7. See MF. Hirtius's Notes upon $. 12. of this Chop.
:,() , 'E, 75 , rj S @ . . , wens
i , .
c
Io
(19) In England it is common to lay all the Faults of the Prince upon his Miniſters, who are indeed very often moſt guilty
of them, but the Fault of the Miniſters does not always excuſe the Fault of the Sovereign; for they have their Reaſon
and
Judgment, and may over-rule them, ſo that if they ſuffer themſelves to be governd by thoſe that are about them, 'tis their
Fault. In moſt Affairs they ought to fee with their own Eyes, and not leave themſelves to be biaffed by a vicious and corrupe
Miniſtry. But if they are not able to ſearch into the bottom of Things themſelves, and diſtinguiſh between Good and Evil
, they
ought to leave the Governing the People to ſuch as are able, for I do not ſee but the Saying of Charles Barromaus, which he
ſuch an Employ, why are they so ambitious as to ſeek it ? 'If they are capable, why so negligent? Mr. Bernard in his Nov. Rep. of Let-
ters, ſpeaks the ſame rhing in plain Terms, which 'twere to be wiſhed Princes would conſider on as ferioully as they are judiciouſly
(20) See the Reflections which Mr. De Sacy makes upon it, in his Treatiſe of Friendship, Lib. 2:

But now,

Thucid. lib. 3. C. 43.
made.
I
From

50
Воок І.
Of Law in general.
From all theſe Obſervations it is eaſy to perceive his Permiſſion of Sins. For he is not oblig'd to
the Reaſon and the Limitation of thoſe common reſtrain them in ſuch a Manner, as to make them
Axionis ; What a Man does by another, of that he him- impoſſible to be committed: that is, by withdraw.
Self is reckon'd the Author : We make thoſe things our ing our natural Strength, or extinguiſhing the Li-
own, to which we grant our Conſent (a),
(a), That which, berty of our Will: ſince upon the Removal of
in Matters relating to 95, is done by others upon our Com- cheſe, no ſort of Moral Adions could be performa
mand, obliges us our ſelves : That is eſteem d our Action by Man (b).
the Execution of which we have impos'd on another; and Thai Permiſſion then of another Man's Action,
the like. As for that Communication of Actions, is, void of - Il Moral Effect, which we give when to
which reſults from the Union of a Moral Bodý, hinder the Action is beyond our Ducy, or above
it will be hereafter explain'd in its proper place. our Strength; unleſs this Weakneſs and Inability
When
one is ſaid to partake of another's Action, is procur'd by our Fault, and unleſs the Ignorance
upon account of his own Permillion, or becauſe aroſe thro' ſupine Negligence, and within that
he did not hinder, the A&tion, in this caſe it is rés Degree of Diligence which we are oblig'd to ob-
quiſite not only that he ſhould have been able by ſerve.
his natural Strength to have hindred it, but like Laſtly, Nothing can be imputed upon the ac-
wife that he ſhould have had an Obligation in- count of permitting a good Action, which we
cumbent on him to hinder it.. When either of might indeed, but ought not to have hinder’d.
theſe Two Conditions fails, nothing can be im. Thus he can impute nothing to me (or I owe him
puted to him, who gives another leave to act at nothing) who has given me Permiſſion, or has not
Pleaſure. And therefore GOD ALMIGHTY is forbidden me to uſe my Right; that is, has done
capable of no Imputation, upon the account of me no Injury.
(a) L.I.S. 1. D. do co per quem fa&tum erit. (b) 'Tis a notable Saying of Lucian, de Merced. Conduct. GOD is not in
the Fault, but the Man that makes it. And thus we intend no inere than a Jest, when we say on Some Occaſions, Now I'll give it leave
to rain, or the like.
Thiw beloon on 160
ogbulodda borusquiver goqi COND
bao ng sibat umido cos w
oo guide toot
CH A P. VI.
in grote of the Rule of MORAL Actions, or of Law in Generdi.
Blow boncin The CONTENTS of every Seation of the fifth Chapter.

1. A Lavy differs from Counſeli,
X. It can't be done by meer Förce.
II. From a Bargain or Covenant,
XI. Nor by any Excellency of Nature alone,
III. And from Right. Sin sieme a XII. What gives greater Force to an Obligation.
IV. What a Law is.
XIII. The Lawgiver and Law ought to be known.
V. What an Obligation.
XIV. What are the Eſſential Paris of a Law?
VI. How it comes to paß that a Man is obliged. XV. What is the permiſſion of a Law?
VII. No Man is obliged to himſelf
. XVI. The Matter of Laws.
VIII. He that is to be obliged must have a Superior. XVII. Who is obliged by a Laru?
IX. How a Man may lay an Obligation on another. XVIII. The Diviſion of a Law.
E come now to conſider of that Moral Rule, miffion, over which Perſon, at leaſt as to the pre-
or Law (a), by which Moral Actions are ſent Buſineſs, he has no proper Power, fo as chat
to be ſquar'd, and according to their Agreement he can lay any direct Obligation on him, but muſt
or Diſagreement with which they acquire peculiar leave it to his Pleaſure and Choice, whether he
Qualities (1) And here we muſt take Care in the will follow the Counſel, or not (2). Yet Coun-
firſt place, accurately to diſtinguiſh Law from fel indeed may adminifter occafion to an Obliga-
fome other things which ſeem to bear ſome Rela- tion, in as much as it furniſhes a Man with ſome
tion to it, and which for that Reafonare frequent- Knowledge, by which an Obligation may be pro-
ly-confounded with it : And theſe are Counſel
, Co- duc'd or increas'd. Thus, a Phyſician cannot by
venant, and Right. Now Law differs from Counſel Vertue of any Power or Command, order his Pa-
in this, that by the latter a Man endeavours, with tient to take ſuch things, and to abſtain from o-
Reaſons taken from the Nature of the Thing, to in thers; but while he ſhews one thing to be condu-
duce another Perſon to ſome Performance or 0. cive, and another pernicious to Health, the Pa-
W
(a) See Book 2. C. I.
Mr. Barb. NOTES. EN
(1) Our Author ought to have treated in the beginning of this Chapter, of the Neceffity of a Law ia general, i. e. Pew thar
it is not agreeable to the Nature of Man to live without ſome Law, which natural Order he follows himſelf, in his Abridgment of
the Duties of a Man and Citizen, lib. 1. ch. 2. §. I.. See alſo what he ſays, lib. 2. §. 6.
(2) So the Civil Law teaches, Nemo ex confilio obligatur; etiamfi expediat ei, cui dabatur, quia liberum est cuique apud !e Explorare,
an expediat fibi Conſilium. Digeft. lib. 17, cit. 1. Mandati.
tient

CHAP. VI.
Of Law in general.
59
thou ſo,
the Phyſician holds over him, but by the Law of People, and so were, in the Way of Bargain
unwilling. Laſtly, The Right of a Com redres III. As for the Term of Right, as it imports a
Right of a Lawgiver cannot be taken se
tient is bound to embrace the former, and to avoid were made upon the Propoſal of the Magiſtrate,
the latter; not of any which with the
, and by the the
, as it
Nature, which commands every Man to take care or Stipulation, they gave them the Name of Cove-
of his own Life and Health. But Law, though it nants and Agreements
, before-mention'd. Tho' in-
ought not to want its Reaſons, yet theſe Reaſons deed, neither upon account of the Major Part of
are not the Caufe why Obedience is paid to it, the Peoples conſenting or agreeing to them, can
but the Power of the Exactor, who when he has Democràtical Laws be properly ftilla Covenants
.
ſignify'd his Pleaſure, lays an Obligation on the For this Agreement is only the Manner by which
Subject to act in Conformity to his Decree, tho' the Supream Power, lodgʻd in a General Aſſembly,
perhaps they do not ſo well apprehend the Rea- exerts irs Force; that being taken for the Will and
fons of the Injunction. To which Purpoſe Mr. the Decree of All, to which the Greater Number
Hobbs (a) thus expreſſeth himſelf; Counſel (ſays he) gives Conſent
..
Precept,
So
from the Thing preſcribed : But Law, or proper Com- cil by any Member about framing & Decree, is ve-
mand, is a Precept, in which the Reaſon of our Obedience ry different from the Conſent which a Man de-
is taken from the Will of the Preſcriber.1 For no Man clares at his Entrance on a Covenant : For in this
can fay, Sic Volo, Sic fubeo, fo I will, and ſo I com- laft Cafe, a Perſon that diffents is not bound, and
mand; unleſs
ang such asri banals used the Party cannot proceed withouc him: whereas
of uigved versuri bos in the former Caſe, even the difſenting Party is
Stet pro ratione voluntas.
gerigile tied and obliged by the Plurality of Votes.
his Will is his Reaſon. cunodw.brain do The remaining Points of Diſtinction between
We obey Laws therefore, not Principally up- a Compact or Covenant, and a Law, are obvious.
on Account of the Matter of them, but upon For a Compact is a Promiſe, but a Law is a Command.
Account of the Legiſlator's Will. And thus, Law In Compacts the Form of Speaking is, I will do ſo
is the Injunction of him, who has a Power over thoſe to and for, but in Laws the
Form runs,
whom be preſcribes ; but Counſely of him, who basiino after an Imperative
manner. In Compacts
, ſince
ſuch Power. To do the Things enjoin'd by Law, is Mat- they depend, as to their Original, on our Will,
ter of Duty; to do thoſe appointed by Counſel, is Matter we firſt determine what is to be done before we
of free Pleaſure
. The End of Counſel is dire&ted toward are oblig'd to do it But in Laws, which ſuppoſe
him who receives it: And this End he is at Liberty the Power of others lover us, we are in the firſt
to weigh and to approve. But tho Law too has place obligʻd to ack, and afterwards the manner
commonly ſome End directed toward thoſe who of acting is determin’d. And therefore he is not
preceive it, yet it does not leave them the Right of bound a Compact, who did not freely tie himſelf
exanining and reje&ting this End, but actually de- by giving his Conſent ;
by giving his Conſent ; but we are for this reaſon
termines it by enjoining it. - Counſel is only given to oblig'd by a
because we owd antecedent
thoſe are willing to have it, but Law reaches the ().
at the Pleaſure of him who receives the Counſel ; but the Power of acting granted, or left free by the Laws,
fure of thoſe on whom he impoſes the Law (b). U ng thing as the Law itſelf
. That is, When we are
II. Neither were thoſe Ancients accurate e- ſaid to have a Right by the Divine Law, of doing
nough in their Expreſſions, who frequently apply fuch or
fuch or ſuch a thing,
g we muſt not imagine that
to Laws the Name of (1) Common Agreements (c). the ſame thing is enjoin'd and commanded by the
For beſides that,oneither the Divine Poſitive Laws, Divine Law, and that therefore we may fairly do
nor the Laws of Nature, had their Riſe from the it, tho' it ſhould be forbidden by the Laws of Men.
Agreement of Men, and therefore chat Title can For,
For, lince a Man hath a Power of doing all ſuch
only be attributed to Civil Laws ; even (2) theſe things as can proceed from his Natural Abilities,
are not properly Covenants and Agreements, tho? except thoſe which are forbidden by-fome Law,
there was indeed ſome Intervention of Compact hence,, by common Cuſtom of Speech, the
thoſe
at the Original of Civil Power. It's plain that Things which are not prohibited by ſuch or ſuch
the Grecians, as in their other Politick Speeches, ſo a Law, we are ſaid to have a Right of doing (1)
in this too, had an Eye to their own Democrati-sis by that, Law. Right therefore, in this ſenfe, de-
cal Governments ; in which, becauſe the Laws notes a Liberty, but Lan 'includes fome Bond
www abowibilomino zaidi oriz 10 sausius
T
(a) De Cive, c. 146: foto ime (b) Add Dig. B. 17. Titiv. De Mandato: 1 bag (6) Ew.hxin tūstersws: Sa Ariffotle Rhetor.
(d) Vide Hobbs Loc. cit. . 2. Add. Grot. Annot. in Matth. Inſcript. vocab. n reutvà guxu.
se 233sid:? Mr. Barb. Notes on Chap. VI. S. 2: and 3.
(1) Kisvas ouathras, agius aonics, as the Greeks aimoſt every where in their Writings do: "So Ariſtotle defines a Law, Aóza
asesopiv@ xed' oựconozí as noivin módows. 1 A Law is an Order decreed by the Cortimon Agreement of a City, Rhet. ad Alexandr.
obat: a. See alfo Chap: 2,6 3. So Iſocrates calls an A# of Oblivion and indemdſty, owsien conces, the Covenant of a City:
City, Lib. 10. cho ty See alſo the Digeft.Lib. 1. tit. 3. de Legib
. Senatuſque
Conſult. & Longa conſuet, Leg. 1, & 2.
(2) Indeed the End of Civil Laws is to engage Men to the Obfervation of certain Things, by a Mocive more prevalent than a
ny natural Obligation, i.e. by the Fear of Puniſhment, which the Breaker of them muft expect from certain Perſons inveſted
with an Authority over them. But fuppoſe a Number of Men Thould feparare themſelves from any Civil Society,
and agree toge
ther to
obſerve cercain Rules to at by, yet having no Sovereign Power provided with ſufficient Abilities to puniſh Tranfgreffors,
this Engagement could have no other Efect, than fuch Agreements as are made by natural Right have, and by conſequence
could not oblige as a Law. Element. Juriſprud. Univerſ:
(1) This Ulage is not ill-grounded, for the Liberty which the Laws leave us, to do, or nor do contain Things, includes fome-
thing more than a Negative Permiffion. See Note 2, on Paragraph 15.
wola
26 item, 3011 1
BU115 con
ad Alex. c. 1, 2, 3.
TO WE'9751"
1
I 2
and

60
Of Law in general.
Воок. .
7° that it is the Will
4
and Engagement, by which our Natural Liberty to exhibit ſuch and ſuch. Things to others; buc
is reftrain'd (2),
thoſe too which are concern'd about the other
IV. In general, a Law, may conveniently enough Vertues, and which extend no farther
than the
be defin'd, a Decree by which a Sovereign obligeth a Sub- Agent's own Perſon. For which Reafon Laws
ject to conform bis A&tions. to what he preſcribes (may, and frequently are, made againſt Drunken-
We call it a Decree, not as it remains in the Mind peſs (c), and other kinds of Intemperance, which
and Will of the Party decreeing, but as it is com Vices are ſo very prejudicial co the Parties com-
municated to the Subject in ſuch a manner, as to mitting them (4). The ſame muſt be held as to
let him underſtand the Neceſſity of his conforming (s) Sumptuary Laws, which preſcribe the Meaſure
to it: and therefore the Term Decree is here equi- of Expences in Victuals, Cloaths, Building; and
valent to Command. And we think it an, indiffe- other Furniture or Proviſions. In which Particu-
rent matter, whether one ſhould call a Law a De Jars if any Man offends, he doth no one an Injury,
cree or a Speech, provided it be not eſteem'd necef- provided he defray the Charges out of his own
ſary to it, that it be promulgated either vivå voce, Stock: And yet there's no Queſtion to be made,
or in Writing ; ſince it is ſufficient that the Will of. but that a Subje&t may by Laws be obliged to
the Legiſlator be any way made known to the Sub- Frugality, which conduceth ſo highly to every
jest, tho' it ſhould only be by the internal Sug- Man's Intereſt and Advantage...
geſtion of Nagural Light. Therefore we take it V. But ſince in the Definition of Laws it hath
to be an uſelęis piece of Subtlety and Niceneſs in been aſſerted, that they proceed from a Superior,
Mr. Hobbs (a), when he maintains, that the Laws and that they have in themſelves the Power (1) of
of Nature have no farther the Force of Laws, than Obliging, it ſeems neceſſáry that we here ſhew what
as they are promulgated in Holy Scriptures by the Word Obligation is, and whence it ariſeth; as alſo who is
of God; and not as they are certain Concluſions appre capable of receiving an Obligation, and how one
bended by Renfon, concerning the dying or the omitting Man can Oblige another, or, which is the ſame
of Things. For from the barę Dietates of Reaſon, thing, how it comes to paſs that one Man may,
we do not only underſtand that the Obſervance of by Virtue of his Authority and Command, enjoin
Nature's Laws is good and profitable to Mankind, another ſuch and ſuch Duties.
Obligation, then, we have already defin'd; Ch I.
of God, that Men ſhould govern their Aétions ? 21. a Moral Operative Quality, by which a Man
by thoſe Rules;
which is ſufficient to the Effence of is bound to perform fomewhat, or to ſuffer fome-
a Law, Tho' ſtill indeed this Reply may be made, what. In thus defining Obligation we conſider it as
that Natural Laws, even as they are the Dictates it inheres in the Perſon obliged. Biſhop Cumber-
of Reafon, cannot be conceiv'd any otherwiſe land, Ch. V. f. 27. in his Definition proceeds ano-
than in the manner of Speeches, Propoſitions, or ther way, conſidering Obligation as it is an Ad of
Sentences (2).
the Legiſlator, by which he ſhews or declares,
As to Grotine's
Définition (b), where he fays the chas Axions
conformable to his Laws are neceffarý
Law obligeth to that wbich is Right, we muſt ob to be done by the Perſons for whom the Laws are
ſerve, that he ſuppoſeth ſomewhat to be Juſt and ordain’d. The Roman Lawyers call it (2) Bond of the
Right before any Rule or Law; whence it muft Law, by which we are neceſſarily tied to this or
follow, that the Law of Nature doth not make that. For by means of it a kind of Moral Bridle
what we call Right, but only denotes or points is put upon our Freedom of Adion, ſo that we
it out as a thing already Exiſtent. Concerning cannot rightly take any other way than what we
which
h Hypotheſis we have already declar'd oor are thus guided to. Not that it can fo far reftrain
Mind, Chap. II. 5. 6.
Mens Wills as to render them unable to ſteer a
To conclude this Head, It is evident that under ďifferent Courſe, tho' at their own Peril : for in
the Name of Laws, not only thoſe are compre- this fenſe Arrian's (c) Affertion will ever hold true,
hended which belong to Juſtice ftri&ly ſo called, llegasgéoewe drzorgias ideia xúco, No Man is Mafter
directing us, upon a full and perfe& Obligation (3), of another's Will.
Tavo vinaoong 2003
(a) De Cive, 1. 3. 1. ule.
110rb) B. T. . t. 1. 9
Todore o Tips Mr. Barb. Notes on S. IV, V.
(), In Epi&et. l. 4. C. 12.
(2) This fully includes the general Notion of a Law. See the ſame Note.
isilo 7911to zied ni an
This Definition agrees only ro Obligatory Laws, i. .i which oblige us pofitively to act or not. But we ſhall thew in our
fecond Note ôn . Is. that the General Noțion of a law taken in the full extent of it, as ’çis my deſign to explain it there, com-
prehends beſides that a Permiſſion to act, or not act, in certain Caſes, as we judge convenient.
(2) To make the Arguings of the Author compleats theſe words ought to be added,- But this is no foundation for Mr. Hobbs's
Hypotheſis.
(3) To underſtand this Diſtinction of perfe&t and Imperfe&t Obligation fee Chap. VII. of this Book, f. 7. and Book III. Chap. IV.
1.3, &c. See alſo what has been ſaid before, Chap. I $. 19. concerning Power...001
(4) To this we may referr a Law of Seleucius, commanding, That whoſoever of his Subje&ts happening to be Indiſpos’d, Mould drink
pure Wine, unleſs upon the
Advice of e Phyſician, if he recoverid, sauld ſuffer Death, for exceeding the Bounds of temperance without
is of Opinion, that all the Laws which paſs
under the Name of Seleucus, and of which we find divers
Fragments in Authors, are
all forged. See his Engliſh Diſcourſe on Phalaris, p. 339. and Novell. de Repub. des Lette by Mr. Bernard, June 1699. Art. v.
(6) The Author will treat of them Lib. VIII. Chap. V. 8.3: There is a curious Academick Diſcourſe upon this Súbjęłt, among
his more choice Academick Differtations (which I ſhall ſometimes quotė) printed ar Lunden in Sweden, Anno 1675. and reprinted
at Amſterdam, under the Title of Anale&ta Politica, i.c. Politick Fragments, fome Years ſince, if I miſtake not.
(1) This is the effect of all Laivs Obligatory, for as for the Laws of ſimple Permiffion, of which we ſhall ſpeak Note 2. §. 15.
the Effect is to give a Moral Right, or Power, to have certain Things certainly and lawfully, or to do and require certain Actions
of another, if we judge ir convenient. See Chap. I. §. 19, 20. aforegoing.
(2) This Author gives the general Definition of the Inſtitutes, which properly reſpects Payments, or all other Engagements
which Men enter into of their own accord, with relation to another; for chus it runs, Obligatia est Juris vinculum, quo neceffitate
wſtringimur alicujus Rei folvendă ſecundum noftra civitatö fura. Inſtitut. Lib. 3. Tit. 14. princ.
Now
اما..
21
2
1903
a
SO
CHA P. VI. Of Law in general.
61

other Obligation, and if there be any other, he believes that If it be looked into with care, it would be found to end in that.
• Now, altho' there are many other things which poſe, may put himfelf under ſuch a Condition as
have an Influence on the Will, in bending towards that it ſhall be unlawful for him afterwards to re-
one fide rather than the contrary, yet Obligation cede.
650D
hath this peculiar Force beyond them all, that Now a Man is ſuppos'd to have chang’d his
whereas they only preſs the Will with a kind of Will, not only when he exprefly declates his pre-
natural Weight or Load, on the Removal of which fent Difike of his former Choice, but likewiſe
it returns of its own accord to its former Indiffe- when he hath done any thing inconſiſtent with
rence; Obligation affects the Will in a Moral Way, his preceding Reſolution. And from this Princi-
and inſpires it inwardly with ſuch a particular ple may be deduc'd the greateſt part of what the
fenſe, as compels it to paſs Cenſure itſelf on its Civilians deliver concerning Repentance, or the al-
own Actions, and to judge itſelf worthy of ſuffer- tering of a Purpoſe. For if we enquire after the
ing Evil, if it proceed not according to the Rule general and ultimate Cauſe, why to repent of a
preſcrib'd. And hence alone we may underſtand Deſign ſhould in ſome Aas be lawful, in others
how ſufficient the ſtrength of the Obligation is to not, we ſhall find it to be no other but this, that
the bending and inclining the Will; ſince
there's ſome Ads are attended with an external Bond,
nothing but the Thoughts of that Good
or Evil (4) which forbids any Change of a Purpoſe once de-
which our A&tions may bring on ourſelves or 0- clar'd; whereas in the reft, the Will is left to the
thers, that can lay any Neceflity of ſuch a Perfor- Exerciſe of its intrinſick Liberty. The former
mance, or of ſuch an Omiſſion, upon the Mind of Cafe uſually happens, when upon Suppoſition of a
Man whilft in debate about future Concerns; ſup- Change in one Man's Reſolution ſome other Man
poſing that the Will is allow'd its proper Liberty, would be highly injur'd and (1) prejudic'd, and ſo
and that fuch Adions are to be exerted, as may be Occaſion would be adminiſtred to the breaking off
properly imputed to the Agent. And in this re- of all Society and Commerce amongſt Men. And
fpe& chiefly, Obligation differs from downright therefore from a Signification of the Will, this o-
Compulſion, that altho' both do ultimately repre- ther Man is ſaid to obtain a Right, by means of
fent fome Object of Fear, yet Compulſion only which heis now impower'd to make the promiſing
fhakes the Will with an external Force, and drives Party ſtand to his word, and upon Default may
it on to the choice of an ungrateful Thing by the proſecute himn by Force, either ſuch as he himſelf
bare ſenſe of approaching an imminent Danger: can exert, or ſuch as proceeds from the Supream
whereas Obligation doth farther engage the Per- Ruler, according as the Perſons live, either in a
fon to acknowledge, that the Evil denounc'd a- State of Nature or of Civil Society. Therefore,
gainſt the Tranſgreſſion of fuch or ſuch a Rule, when upon Declaration made of my Will, anothier
doth not undeſervedly fall upon him, ſince by Man doth not obtain a Right over me, I am then
obſerving the Rule he might have declin’d and at Liberty to repent of what I have done. And
eſcap'd it.
ſuch a' Right over us is then not obtain'd, when
VI. As to Man's being capable of receiving the Sovereign under whoſe Power we live, hath
Obligation, one Reaſon how he comes to be fo is, not given another Man Authority to require
becauſe he indu'd with Will, which can turn to and exact that from us, which we have ſigni-
either Side, and ſo guide itſelf by a Moral Rule; fy'd as our Intention (2). And hence it apo
unlike thoſe other Beings which by ſome intrinſió pears why Poſitive Laws may be repeald by him
cal Conſtraint are determin’d to one and the ſame that enacted them becauſe they do not convey
way of acting. . Whence it follows, that fo far as to the Subjects any ſuch Right upon the Legilla-
no Neceſſity is interpos'd by any external Princi- tor, by Vertue of which they may demand and
ple, Man muſt be conceiv'd to be perfectly free, require their Continuance. Tho' fome Common-
and to have a Power of doing all thoſe Things wealths have endeavour'd to preſerve the Perpecu-
which fall within the Sphere of his Naturality of their Laws, by obliging the Members to de
Strength and Ability. Nay, when he hath once clare upon Oath, that they will not conſent to
determin'd and reſolv'd with himſelf, or when he their Alteration. Nay, tho' at the end of the Sta-
hath once made any Choice, yet in the Determi- tute or Ordinance a Clauſe ſhould be affix'd, pro-
nation, Reſolution, or Choice, conſider'd purely nouncing all Decrees that may hereafter be made
as they proceed from the Will
, there is no fuch contrary to this, to be null and void, yet ſuch a
Force, but that he may, at his Pleaſure, rightly Clauſe cannot hinder the altering or reverſing of
change or relinquiſh them: unleſs there intervene a Law by which no Man has obtain'd a Right.
ſome ourward Reſtraint, forbidding any Alterati- For 'tis abſur'd that a former Decree ſhould dif-
on of the Will, when once feteld 4 and declar'dannul a latter ; ſince abſolute Power cannot bind
for a Man upon once ſignifying his Will and Pur- and reſtrain it ſelf; and ſince that which is in its
donio 9 ons bund sich Ca NOS bol v ewol slodw920 296
Mr. Barb. Notes on 9. V. inilabas 10:38
(This is the opinion of Biſhop Cumberland, whoſe Words our Author tranſcribes,-i Another Engliſhman, in a Work which
we hoped would have been turned into French, embraces he ſame Notion. According to him, the Ducy or Obligation of a Man
can be nothing elſe but a Reaſon and Motive propounde; after an agreeable manner, and neceſſarily determining him to chuſe
and prefer one manner of acting before another; and at Reafon or Motive can be no other than a great degree of Miſery ta
! be avoided, and Happineſs to be attained; which can't be avoided or gained by Ading after any other manner. He owns no
Mr. Bernard exprefies Dr. Gaſtrel's ſenſe after this manner in his Nov. de la Rep. des Lettres, April 1700. el
Mr. Barb. Notes on S. VI.
It is a Rule of the Roman Laivyers, Nemo poteft mutare conſilium ſuum in alterius injuriam, i. c. No Man can change bis Pura
poſe to another's Prejudice. Digeſt. Lib. I. Tit. xvii
. De diverſis Reg. Jurts. Leg. LXXV.
(2). We fall hereafter treat of ſeveral Cafes in which 'cis lawful for a man to change his Deſigns and latentions. See
chiefly Lib. III. Chap. 6, 7.
vd
OW

62
Of Law in general.
"BOOKI
face VIII, when out of Hatred to Philip the Fair, ver ſo much reſolve to oblige bola are
own Nature ſubject to change (3) cannot be felves, or (7) by their Sueceſſors. For upon theſe
made fix'd and irrevocable (a). The Athenians in Aets a Right is obtain'd by other Men, which
Thucydides (b), laid up a thouſand Talents in the ought not to be taken from them againſt their
Citadel, denouncing a Capital Penalty againſt Conſent. Hence it appears, that when a Man rei
him who ſhould either Decree or Perſwade the nounceth his Right, it is not neceſſary to add essa
employing that Money to any uſe, except in Cafe preſly, that neither he nor his Heirs will do here:
the City were attack'd by a Hoſtile Fleet And after any thing contrary to that Renunciation;
yet upon cher Revolt of the Inhabitants of Chios; and that if they do attempt any ſuch Matter it
their Fears engag di chem to repeal that Decree (s). Thall be eſteem divoida For, fince in Deeds of
When Princes (4) add exprefly in ſome of their this Natúre a Man plainly declares his receding
Conftitutionsp that altho they ſhould hereafter from this Right to any thing, and profeffethro
order any thing to the contrary in a particular tranſlate it on another Perſon, it would be evi:
Edict, yet the Magiſtrates and Judges ſhall not dent, without that additional Claule, that he can
obey or regard any ſuch Command; this Addition noti(with any Force for Effect) afterwards difpoſe
doth by no means amount ſo high, as to prove of that Thing, having no longer any Righteor
they may not abrogare ſuch Conſtitutions, but Title to it. And for the ſame reaſon, becauſe
råther fhews, that the latter Orders are not ferious, whilſt the Teftator livés, no Man hath abtain dra
or that they dropt from them unawares. iAnd Right by vertue of his Teſtament, he máy fairly
fometimes by this ſubtle Artifice they cut off and alter it, even tho’rhe had ſtrengthen'd it with a
prevent the Importunities of fawcy Petitioners, Clauſe, declaring all Wills that ſhould hereafter
whom perhaps it would not be ſafe for them abſo- be made to be invalido! For this indeed carries
lutely co deny (d). balinimbes et bipow noi sooo Grounds enough to make us prefume, the later
But there's need of diſtinguiſhing very nicely Will did not proceed from his ſerious Intentions:
between the poſitive Law itſelf, and that Right yet if that very Clauſe be revok'd in that lacrer
which it occaſions to be obtain'd. The Law
itſelf Will, the former will be of no Vercueror Efficacy.
may be diſannul'd by the Author, but the Right And ſo in Deeds and Inſtruments of Conveyances
acquir’d by vertue of that Law, whilft in Force, and other Contracts, if a Diſpute arife about any
muft ſtill remain : For, together with a Law, to Point, (8) that which bears the latter Date ſhall
take away all its precedent Effe&s, would be a take place of that which was made firſt.
high piece of Injuſtice : For example, (5) Sup VII. From what has been ſaid, we may like-
poſe it were a Law in any State, that as a (6) Man wiſe
' gather the reaſon why a Mañ cannot be
difposd of bis Poffeffions by Will
, ſo the Right to them oblig?d to himſelf, or why he cannot enter inte
Mould ftando
, it would be very fair, in this caſe, any Agreement or Promiſe purely directed to his
for the Sovereign to retrench this Liberty of Te+ own Perfon, no other Party being concern’d with
ftaments, and to order that for the future all theſe him. For he who obrains a Right by any Obliga-
Inheritances Shall pafs to the Heirs at Law.voc Yet tion, may fairly wave that Right, when by ſo do
it would be unreaſonable to take away from Per+ ing he injures not a third Man. But now in this
ſons what fell to them by Will, whilft the former Caſe the obliged and the obliging Party, or he
Law was in Ufe and Vigouf. ir And by the ſame that owes the Right, and he that obtains
Rule we may judge of that Action of Pope Bonie one and the ſame. Therefore ſhould a
King of France, he recall?d all the Indulgences Obligation would be in vain, fince he could ex
which his Predeceffors had granted to the French cuſe himſelf from Performance at ihis: TPleaſure:
Nation ; which Harry Stephens hath ſo juſtly ridi- And he that can diſpence with himſelf in this
cul'd in his pleaſant Apology for Herodotus (e). manner is actually Free. Beſides, ſuch an Obli-
We muſt take care likewiſer to diſtinguiſh the gation could be of no manner of uſe; becauſe
other Ads of Sovereigns from their Laws, leſt any when a Man gives or dénies any thing to himſelf
,
ſhould imagine that all their juft Donations, Alie, he neither gets byrthe Performance, mor cloſeth
nacions, or Compacts, may be retracted by them, by the Omiffion (f 1.910d me abbm sono di
bson ad catcored 1 259199ls anioncon View 5 theo siod 10 homlolo noiset
2. (a) Vide Cicero-ad Attic. 1. 3. Ep: 23. in corso (B) L. 2. Ed. dxohl p: 38.1 aid. c) Ibid! 1. 8. D:4762d 99707
(d) Vid. Codi l. s. cit, 8e fi ex reſcripto nupti, petantus. Wsi fe) Cap.140.j ni stor (f) Ada Senec. de Benef.i5.0.7, &c. vis
Jib bin 1990 19703 Susus
Mt. Barbeyrac's Notes on $.&as goibbidiol plate bewocinot
If Kings were Infallible, as they would in the Cafd before us always take proper Meaſures
, and
$and Command nothing but what
is for the great Advantage of the Stare, we might believe
that whatever Laws and orders they make ought
never to be altered
but ſince the contrary is evident by Experience, it is as abſurd, as prejudiciat to a Society, to affirm, That what is once reſolved
and eſtabliſhed, in what manner ſoever it is done, ſhould always coneinue-in Force, whatever Inconveniences may arite from it.
The ancient
Kings of Perſia; whoſe Laws were looked upon as unalterable, found themſelves often obliged to hinder their Effect by
cafliy obferve the band Confequences of it, auf they were careful to do their Dúty, unfels "hey were nok place congelma opel
nion of themſelves, and puffed up with a falſo Notion of Grandour.ark onda
(4) See Mr. Hitius's Diſcourse, entitled, De Lege, Clauſulâ, ut nè abrogari
unquam poffit, menita; i. c. 05 #Law ftrengthened will
a Clauſe, that it shall not be repealed, which is the firſt Tome, third of his ſmall Tracts and Comments.
(5) So in the Civil Law, new Laws and new Conſtitutions have no force bur for the future, they meddle
what's paſt
as theſe words import,- Leges de Conſtitutiones futuris-certum eſt dare formam negotiis, non ad fakta Præterita revocari. Cod. Lib, T.
Tit. xiv. De Legib. do Conftitut. Principum, Leg. 7. Sec Mr Daumat's Civil Laws according to the Order of Nature, Tit. I. Sext. i.
S. 13, doc. of the Preliminaries.
.IV No 29111081
inftitut Lista Law of the
of the XII, Tables, Ut quiſque Legaffet sue Rei, ita jus efto, i e. As every Man bequeaths-bis Goods lef Right be.
Lib. II
. Tit. 22. De Lege Falcid. in the beginning See allo Digeft. 1. Tit. 16. De verbor. Significat. Leg. 120,ona estet
(7) See Lib. VIII. Chap.10, following me to laria Montes
See Lib. V. Chap. 12. $. 6.
yol ?
ord licht 9W ($)
II. kena
But
nez
outi Dorus 11300 SVDI DUOT!
not wich
2osa
CHA P. VI. Of Law in general.
55

to,
But whereas it is fometimes ſaid, that a Man is cede froin it. And that ſuch is the Nature of
obliged to preſerve himſelf (1), the meaning of Man, every one's Obſervation may inform him.
this is no more but that the Exerciſe of that Ob-
IX. Obligations are laid on human Minds pro-
ligation, inherent in every Man, is terminated perly by a Superior, that is, by ſuch an One as not
in a Man's own Perſon, but it bath likewiſe a re- only hath ſufficient Strength to denounce ſome
ference to God the Author of Natural Law, as to Evil againſt us upon Non-compliance, but hath
him who hath a Right of requiring the Perfor- likewiſe juſt Reaſon, to require the retrenching of
mance of that Obligation, and of puniſhing its our Free-wills by his own Pleaſure. For when a-
Neglet : And therefore a Man is ſo far bound ny one is endued with theſe Qualifications, ſo
to confult his own Preſervation, as he is a Servant ſoon as he ſhall command any thing, and ſhall
a-
felf a uſeful Member. In the lame manner as a riſe in the Rational Faculty a Fear mix'd with
Maſter may rightly puniſh his Servant, and a So- Reverence, the former proceeding from his Power,
vereign his Subject, who hath render'd himſelf the latter from the Confideration of ſuch other
unfit to diſcharge his proper Labours and Em- Reaſons, as without that Motive of Fear, and
ployments
. Neither is this Maxim, that a Perſon barely by way of Counſel, ought to prevail on
cannot oblige himſelf, confin'd to ſingle Men, but us to embrace the Command. Hence we con-
extends to whole Bodies and Societies (2). As for ceive, that the Right of impoling Obligations on
that which fome Authors urge about a Man's another, or, which comes to the fame Thing, the
ſwearing to himſelf, That he will, for inſtance, Right of commanding another, and of preſcribing
refrain from this or that Enormity to which his Laws doch not ariſe barely from Strength, or from
Evil Appetites incline him, this Obligation bears the Superior Excellency of Nature (1). Strength
the Nature of a Vow, the exacting of which ap- indeed, may of it felf ſo far bend me contrary to
pertains to Almighty God(a).
my Inclinations, as to make me chuſe rather, for
VIII. Another Reaſon why, ſince the Will of a while, to obey another's Will, than to venture
Man is capable of conforming to a Rule, ſuch a the Experience of his Force: But this Inducement
Rule may be preſcrib'd to it, and an Obligacion ceafeth, when once the Fear is over, and I ſhall
laid on it thus to conform, is, becauſe he ſtands then have no Reaſon why I ſhould not act rather
under the Command of a ſuperior Power. Theſe according to my own Pleaſure, than according to
two Conditions put together, render Men liable his. And where a Man can bring no other Argu-
to Obligations, proceeding from Eternal Princi- ment for my Compliance to his Orders, but Force
ples. For when the Powers of any Agent are ſo and Violence, nothing hinders, but that if I judge
tied up by Nature to an uniform way of acting, it expedient for my Affairs, I may try all Means
as that it cannot by its inward Motion ſteer a dif to repel the Violence, and to aſſert and vindicate
ferent Courſe, the Adion thus produc'd is rather my own Liberty (2).
Phyſical than Moral, and ariſeth rather from Ne X. It may not be improper here, to examine
cellity than from Obligation. And, on the other that Aſſertion of Mr, Hobbs, which he hath laid
hand, where a Perfon acknowledgech no Superior, down in his Book, De Cive (b), and which runs
there can be no effential Principle apt to reſtrain thus, in the Engliflo Improvement of his Leviathan
his Inward Liberty. And, altho' ſuch an one (c). The Right of Nature, whereby GOD reigneth o-
Thould never ſo. exactly obſerve à certain Method ver Men, and puniſheth thoſe who break his Laws, is
of proceeding, and conſtantly refrain from fome to be deriv'd not from his Creating them, as if he re-
kinds of Adions, yet this would not be taken for guir’d Obedience as of Gratitude for bis Benefits, but
the Effect of any Obligation, but of his own free from his irreſiſtible Power. The Argument with
Pleaſure. It follows then, that he alone is capa- which he defends this Notion is carried on to this
ble of Obligation, who (1) can have Knowledge Purpoſe. All Right over others being either by
of a Rule preſcrib'd him, and háth a Will intrin Nature, or by Compact, that Right may be faid
fically free, able to ſteer contrary ways; which to be granted by Nature, which Naturé doth
Will muſt, however, when a Rule is injoin'd it
Now ſeeing all Men, by Nature,
by a Superior, be ſenſible that it ought not to re- had a Right to all Things, they had a Right every one
6
o not take away.

1x.
(a) Com. Felden ad Grot. I. 2. c. 13. 1. I. (6) C. 15. f. s. 10 (c) P. 187.
Mr. Barb. Notes on S. VII, VIII, and IX.
(1) That is to ſay, That Man is the object of the Duties that refpe& himſelf, but not the Foundation of them; and if he
is obliged to preſerve himſelf, (for Example) or improve himſelf, he is not the Cauſe of it himſelf altogether, as if he could
lay an Obligation upon himſelf
, but becauſe GOD will have him do ſo. See Lib. II. Chap. 4. S. 16.
(2) This is, becauſe theſe Bodies are looked upon as a ſingle Moral Perſon. See what is ſaid above, Chap. I. $: 13.
(!) Theſe Words ought to be added, acknowledgeth a Superior, can-
and the Author himſelf has not omitted them in his
Abridgment of the Duties of a Man and Citizen, Lib. I. Ch. 2. §. 4. where the reſt of this Sentence is found word for word.
(1), all the Power of obliging an intelligent Creature, as Man, is founded upon the Ability and will which he hath to make
himſelf Happy, or leſs Miſerable, than he would be if he diſobeyed. If Man were ſuch a Creature, that he muſt neceſſarily be
Unhappy, or that it were impoſſible that his Miſery could be increaſed or diminiſhed, GOD might force him indeed to act af-
ter ſuch or ſuch a Manner, but he could not properly oblige him to it (Gaſtrill in his Extract of the New Rep. of Letters.) It
were alſo in vain for an intelligent Being to pretend to ſubject another's Actions to a certain Rule, if it be not in his power to re-
ward his Obedience, and puniſh his Diſobedience, and that by, ſome Good or Evil, which is not the natural Effect or Produce of
the Action itſelf, for that which is naturally profitable or unprofitable, works of itſelf without the Help of any Law. Mr. Lock's
Philoſ. Elay, p. 428.
(2) Terent. Adelph. Malo codetus qui fuum officium facit, &c. He that doth his Ducy out of Fear of Puniſhmere, will be ſure
to take care whilſt he is under Apprehenfion of being diſcoverd: but upon the Hopes of Privacy and Security, he never fails
to give a Looſe to his old Inclinacioss.
of
56
Of Law in General.
BOOK I.

cf. them to reign over all the rest. But becauſe this Right to Extrinſical (3). So that, on the whole Matter,
could not be obtain'd by Force, it concern’d the Safety of by bare Force, not the Right of Reſiſtance, but
every one, laying aſide that Right, to ſet up Men with only the Exerciſe of it, is extinguiſh'd. We may
Sovereign Authority, by common Conſent to rule and de explain the Point by the Caſe of Brutes, with
fend them: Whereas if there had been any Man of Power which we Men live in a lawleſs State: Now thoſe
irreſiſtible, there had been no Reaſon why he ſhould not
of them which we can inafter by our Strength,
by that Power
, have ruld and defended both bimſelf and we lay hold on, and employ in our Service ; but
them, according to his own Diſcretion. To thoſe there if any of them eſcape our Power, we are not apt
fore, whoſe Power is irreſiſtible, the Dorninion of all Men to complain of any Injury receiv'd from them.
adhereth naturally by their Excellence of Power; and Nor can it here be replied, that Brutes are not ca-
conſequently it is from that Power, that the Kingdom - pable of Obligati n; and that therefore they can-
ver Men, and the Right of afflicting them at bis Pleas not be tied and engag'd any other way, than by
Sure, belongs naturally to Almighty GOD, not as Crea- Strength : For Mr. Hubbs himſelf acknowledgechi,
tor and Gracious, but as Omnipotent. Now in this (b), That a Captive of War, although capable of
Diſcourſe, there are ſeveral Things that deſerve to Obligation, yet is under none, whilſt he is re-
be cenſur'd. For, in the firſt place, it may be ſtrain'd only by Natural Bonds, and before the In-
queſtion'd, whether or no thoſe two Expreſſions, terpoſition of any Faith or Compact ; and that
A Rigbt of Sovereignty (upon account of Strength) therefore, ſuch an one may give his Conqueror
is granted by Nature, and, A Right of, &c. is not ta the ſlip, or may aſſault him violently, ſo fuon as
ken
away by Nature, hang very well together. Be- he finds Opportunity. Seneca de Ira. 1. 2. c. 1 1.
cauſe in moſt Caſes, my not taking away a thing Nature hath fo order’d Things, that he whoſe Greatneſ
is by no means an Argument, thar I therefore depends on the Fear of otbers, is not without Fear, him.
grant it. And ſince, not to be taken away, and to be felf. Were we diſpos’d to be tedious, we might
granted, are different Things; ſuch a Righit may farther ſhew, that this Maxim of Mr. Hobbs is
ſeem to be granted by ſome other Principle than meer Abſurdity and Nonfence, if applied to GOD
Nature, tho’ Nature doth not take it away. : Be- Almighty. For how can Nature be ſaid to have
fides, that Maxim, All Men by Nature had a Right granted any thing to GOD: Since Nature is either
to all things(1), ought to be interpreted with great God himſelf, or, at leaſt, the work of Goo?
Caution. By Right (b), he means the Liberty For theſe Reaſons therefore, and becauſe it ſeems
which every Man hath of uſing his natural Fa- unworthy of the Divine Goodneſs, we conclude,
culties according to Reaſon. Therefore his Prin- that the Right of Commanding, or the Sovereign-
ciple, in a ſound Senſe, will amount to no more ty of God, as it denotes the Virtue of imprinting
than this ; By Nature, that is, upon the Removal Obligations on Mens Minds, is not to be deriv'd
of all Law, every Man may fairly uſe his Natural from the bare Conſideration of his Omnipotence.
Strength againſt thoſe whom his Reaſon inſtructs Neither do tlioſe Arguments, brought by Mr.
him thus to deal with, for the ſake of his own Pre- Hobbs from Scripture, prove the Truth of his Po-
fervation. But it doth not hence follow, that fition. When God ſeems to have Recourſe to his
barely by y natural Strength an Obligation, properly. Abſolute
Power
, about the Calamities fent on Foto,
ly ſo call'd, may be laid on another: For to com we cannot hence infer, that he hath no Right o-
pel and to oblige, are very different Matters; and ver his Creatures, but what ariſeth from thac
tho’ Natural Strength be ſufficient for the former, Power only. Job himſelf, at the beginning of his
yet the latter cannot be perform'd by that Superi- Sufferings, made a true Declaration, by what
ority alone. For, even according to Mr. Hobbs's Right God had depriv'd hini of his Goods, ana
own Notion, as one Man hath a Right of compelling of his Children: The Lord gave (fays he) and the
others, ſo thoſe others have a Right of reſiſting bim. Lord hath taken away : That is, why may not be recall
But now Obligation cannot ſtand with a Right of at his Pleaſure, thoſe Things which he
gave upon the ſame
reſiſting; becauſe it preſuppoſeth ſuch Reaſons as free Account (c)? But when his Grief had ſo far
pre-
inwardly affecting Men's Conſciences, make them vaild on his Reaſon, as to make him enter into
conclude, by the Judgment of their own Mind, Expoſtulation with Heaven, then God, to repreſs
that they cannot boneſtly, and therefore rightly re the Inſolence of the Complaint, alledg’d his Power,
fift. And though it be irrational, to contend vio- ſince the Sufferer had now neglected to conſider
lently againſt a ſuperior Strength, and by that the other Reaſons of the Divine Sovereignty and
means to draw upon ourſelves (2) greater Mif- Command. And thus we commonly deal with
chiefs; yet there remains in us a Right of trying obſtinate and refractory Subjects; when they re-
all Ways, either to drive off the Force, by the fuſe to hear our Reaſons, we ſhew them our Strength,
dexterous Application of other
Force, or to elude to make them underſtand not only their Sin, bue
it by Subterfuge and Eſcape : But neither can this their Folly too in oppoſing our Dominion. In the
Right conſiſt with that Obligation which is preciſely fame Manner, if a Perſon complains of the Mif-
ſo term’d, and which Grotius commonly oppoſeth fortunes of Good Men, and the Proſperity of the

.
(a) Vide de Cive, c. 1. f. 7.
Et (b) De Cive, c. 8. 8. 2.
fc) Add. Senec. ad Polyb. c.29.
Mr. Barb. NOTES on S. 10.
(1) See Book 2. Chap. 2. §. 3.
(2) Pindar. Pyth. Od. 2. Toti xév TEON de, &ić. To kick againſt the Goad is a very dangerous Artempt.
(3) But this External Obligation impoſes alſo, according to Grotius, a Neceſſity of not reſiſting. All the Difference is this, That
the Internal Obligation has Reſpect to Righit, properly ſo called, by Virtue of which we act according to Reaſon, and agreeable
to the Light of Conſcience, wfiereas an external Right, which produces an external Obligation, imports no more than Impunity
to him that uſes this Right, and hinders not but that he may do Evil in the Ufe of it, altho' in this laſt Cafe he can't refft law-
fully. Grrtius, among other Inſtances, gives an Example of the ill Treatment which a Priſoner of War receives from a Conque-
ror, and a Subject from his Prince. See De Fur. Belloc l'acis Prolegom. $. 41. and Lib. 1. ch. 4. $. 3. and Lib. 3. ch. 7. G. 6,7:
Wicked,
CHAP.VI.
Of Law in general.
65
Wicked, when he perſiſts deaf to the genuine fions of Cowards ; derived from GOD himſelf, and
Cauſes of that Proceeding, in the laſt place, we reaching even to Brute Creatures; for even amongst theſe,
confound him with the Divine Omnipotence : As Nature gives larger Privileges eind Portions to the Strong
if we ſhould ſay, You that fancy your ſelf injur’d, go than to the Weak. Livy hath expreſs’d the Notion
and try your Strength againjt GOD for Satisfaction. more conciſely, Omnia fortium efle, that the World
Nor is it a better Inference of Mr. Hobbes, when was made for the Bold and the Strong. Callicles (in
he ſays, that the Obligation of paying Obedience Plato's Gorgias) purſues the fame Argument: In
to God is incumbent on Men, upon account of the firſt place, he lays down this Suppofition, that
their Weakneſs. For this could only make it a Nature and Law are many times contrary to each
piece of Folly in us, not to redeem ourſelves by other: He inſtanceth in the Caſe of Injury; to re-
obeying, from ſome greater Evil: But it doth not ceive which is by Nature the moſt baſe and vile,
at all take away our Right of defiring, and of en- (7) as the Treatment of a Slave, not of a free Subject';
deavouring, by all means, to eſcape the Superior yet to do an Injury is much worſe in the Conſtru-
Strength which thus oppreſſeth us. But ſuch a ation of the Law. He obſerves it to have been
Right is utterly excluded by every true Obligation. the Policy of Law-givers to encourage this latter
Nor is this Conſequence good, Of Two Omnipo- Notion, ſo to order the uſeful Engines of Praiſe
tents, neither can oblige the other, therefore Men are o- and Diſpraiſe, as to hinder others from growing too
blig’d to GOD, only becauſe they are not Omnipotent ; powerful for them; well knowing, that they were
were the Antecedent never ſo unqueſtion’d. Not otherwiſe (8) an unequal March for the Multitude.
to ſay, that the Fancy of Two Omnipotent Ben (9) Now Nature her ſelf (ſays he) as I imagine, Shew's
ings is (4) an impoſſible Suppoſition. Neither did it to be just and right, that the Good and the Strong
our Saviour intend to aſſert his Right againſt Saul ſhould have, in every thing, a larger Share than the Bad
by that Argument, It is hard for thee to kick againſt and the Weak. And therefore, whereas Xerxes and
the Pricks; but rather to reprove the Boldneſs and Darius had both made uſe of this Pretence, the for-
Vanity of Saul's Deſign. Nor was that mighty mer againſt the Grecians, the latter againſt the Scy-
Convert afterwards invited by Ananias into the thians ; he ſays they did all this according to the Law
Chriſtian Faith, barely by being inform'd how of Nature. He complains, that the rigid Doctrine
much above his Strength it was, to deſtroy that of Juſtice damps and oppreffeth the generous Spi-
Profeſſion. We have applied ſo much the more rits of young Men; or that, on the contrary,
Diligence to the confuting of this Opinion, the when any one breaks thro' thoſe formal Reſtraints,
more Danger we apprehend of its being abus'd by he ſeems to ſhake off his Ruft, and to ſhine in all the
violent and head-ſtrong Men. In Thucydides (s.) Splendor of Natural Right. On this Principle, he ſays,
the Athenian Ambaſſador ſpeaks to this purpoſe, Hercules drove off Geryon's Oxen, who neither fold
We follow the common Nature and Genius of Mankind, nor gave them him; the Hero having a natural Right
which appoints thoſe to be Maſters who are ſuperior in to the Oxen, and all the other Goods and Pofeſſions of In-
Strength. This Law is not of our making, nor are we ferior Puny Mortals. And this is indeed the Maxim
the first who have uſed it; but we received it as it came which the great Bullies of Mankind would have
down to us, and we ſhall leave it to guide the Practice of prevail in the World: Hoc Ithacus velit, & magno
all Pofterity. Dionyf. Halicarn. I. 1. It is a Law of mercentur Atridæ. Plutarch's Opinion is much more
Nature common to all Men, and which no Time hall dif- moderate, and might be admitted with leſs Ex-
annul or deſtroy, that thoſe who have more Strength and ception, (10) It is the first and principal Law of Na-
Excellence, shall bear Rule over thoſe that have leſs
. ture (ſays he) that he whoſe Circumſtances require Pro-
(6) Brennus (in Plutarch's Camillus) calls it a most te&tion and Deliverance, ſhould admit him for his Ruler
ancient Law, that which gives to the Valiant the Pollefwho is able to reſcue and to defend him.






Mr. Barb. NOTES on S. IO.
(4) See how Mr. Locke proves this, in one of his Letters written in French, becauſe it was to be ſhewed to a Perſon of Quality,
who did nor underſtand Latin. Two Omnipotent Beings are altogether inconſiſtent, becauſe we muſt neceſſarily ſuppoſe, that
the one muſt always will what the other does; and in this caſe, he, whoſe Will is neceſſarily determined by the other, conſe-
quently has not that Perfection; for 'cis better to be free, than to be ſubject to the Determination of another's
Will. But if they
are not both reduced to the Neceſſity of willing the ſame Thing always, then the one may deſire to have that done which the
other would not, in which Caſe the Will of the one muſt prevail over the Will of the other, and ſo he, of the Two, whoſe
Power can't bring about what he would, can't be Omnipotent, becauſe he can't do ſo mụch as the other. So that there can't be
Two Omnipotenc Beings, and conſequently nor Two Gods, p. 413. See allo Mr. Clerc's Ontology, Se&. 3. ch. 10. S. 3.
(5) Ηγέμεθε 8 το, το θείον δέξη το ανθρώπειόν τε σαφώς διά πανό τσό φύσεως αναγκαίας, και αν κρατή αρχαν, και ημάς άτε θέν-
7ος ή νόμον, έτε κειμένω είοι χρησάμενοι όνία δε παραλάβοντες, και εσόμενον ο αει κατιλήψαντες χρώμεθα αυτώ. Τhucyd. lib. 5.
ch.ios. See alſo Dionyſ. Halicarn. lib. i. ch. 5.
(6) Brennus's Words, in Plutaroh's Camillus, are theſe, ou Niš uuchs ge devido ide å dikov stoffves, and Tớ tregutáto **
νόμων ακολεθένες, ος το κρείθονι τα 8 πόνων δίδωσιν αρχώμενα από τα Θεϊ, και τελάτών εις τα θηeία. Στότοις εκ φύσεως
ένεσιν ο ζητείν πλέον έχειν τα κρείττονα υποτυποδιεςέρων.
(7) Plato's Words are, 'Oude 38 dydgós rôtó y'a tenue to de dixer ta, can' disparód's tivo, &c.
(8) It appears plainly by this place, as it is printed in all the Editions of the Original, that this Writer did not conſult the Greek
Authors, which he quotes, nor, thro’ Inadvertence, did he ſometimes throughly underſtand the Latin Tranſlation. Callicles ir
Plato fays, οι τιθέμενοι της νόμες, οι ασθενείς άνθρωποι εισί και πολλοι. νVords both very clear and coherent with the former
Diſcourſe, but Marfilius Ficinus having tranſlated them in an ambiguous Manner, unleſs one conſiders them throughly, thus, Qui
Leges condunt, imbecilliores ſunt ac multitudo ipſa est; Mr. Pufendorf' thought that he had faid, Lawgivers are weaker than the People,
as if the Latin had been, imbecilliores multitudine ipsâ, or in the Greek, der SSE POI * romây, whereas the senſe of Callicles is,
That Laws were firſt eſtabliſhed by the People, who thought themſelves not ſtrong enough to defend themſelves againſt the In-
ſults of others, and chiefly by thoſe people, which ſuppoſed the Grear ones to oppreſs them, and ſo I have render'd it, tho' the
Engliſh Tranſlator did not mind it.
(9) Η δέ γε (διμαι) φύσις αυτή αποφάιναι αν, ότι δίκαιόν όξι και αμείνω τα χείρον πλέον έχειν, και η δικα]ώτερον θα αδυνατώθέρα.
Ibid,
(1ο) Ο 8 πρώτG- (ως έoικεν) και κυρώτας νόμG τώ σώζεθαι δεομένω, ή σώζων δικιάμενον, άρχνία κατά φύσιν αποδίδωσι.
Plutarch in Pelop.p. 290.
K
XI. Othe
66
Of Law in general.
Book I.

XI. Others there are who derive the Origine of in himſelf a Principle of guiding his own A&ti-
Sovereignty, or of the Power of impoſing Obli- ons, which he may judge fufficient for his Turn ;
gations on another, from Eminency or ſuperior there appears no Reaſon why he ſhould ſtand pre-
· Excellency of Nature, which they pretend is of ſently convicted in his own Conſcience, if he acts
it ſelf ſufficient for that great Purpoſe. They rather by his own Pleaſure, than at the Will of an-
draw a main Argument from the Nature of Man, other, who in Nature excels him. And therefore
in whoſe Mind, as in the moſt excellent Part, is tho' that Notion of the Epicureans, was moſt fenſe-
feated the ci ha uovendo, the Directive Power. To leſs and impious, in which they deſcrib'd the Gods,
illuſtrate which, they alledge the Authority of as enjoying their own Happineſs with the higheſt
Cicero (1), when he commends the Latin Phraſe Peace and Tranquillity, far remov'd from the
exire de poteftate, as applied to thoſe, who are car- troubleſome Care of human Buſineſs; and neither
ried away from Rational acting, by the Fury of ſmiling at the good, nor frowning at the wicked
their Paſſions and Luſts; ſuch Men being truly Deeds of Men; yet they rightly enough inferr'd,
gone out of the Power or Command of their Minds. that upon this Suppoſition, all Religion, and all
(2) Ariſtotle likewiſe, is brought in to ſtrengthen Fear of Divine Powers, was vain and uſeleſs. For
their Party, becauſe he hath ſomewhere declar'd, who will Worſhip another, that is neither willing
that if a Man can be found excelling in all Vir- to aſlift, nor able to injure him (3)? The Contem-
tues, ſuch an one hath a fair Title to be King. plation of ſo Noble a Being as this, may indeed
Thus the moſt ſuperlative Pre-eminence of GOD, excite Wonder in us, but it can never produce O-
would, they ſay, deſerve Veneration, though he bligation. Beſides, we Chriſtians confeſs, that
had never created the World. Farther, to this Pre- there are created Spirits indued with a Nature far
eminence of Nature they add Non-accountableneſ; ſurpaſſing our own; and yet we acknowledge no
and affirm, That for chis Reaſon only, if Man u. Sovereignty that they bear over us, immediately
ſeth Brute Creatures (whom he ſo far excels) any on their own Account. Apocalypſ. XXII. 9. Mar.
otherwiſe than with Decency and Moderation, he Antonin. I. 6. c. 44. If the Gods do not at all regard or
may do it fairly and ſecurely, and they have no order Human Affairs (which yet it is the highest Impiety
Right to complain of their hard Treatments: Be to imagine) to what Purpoſe are our Sacrifices, our Sup-
cauſe when one contends with another about Mat- plications, and our Oaths, and our other A&ts of Wor-
ters of Right, he doth, as it were, compare him- ship
, by which we suppoſe the Divine Powers to be ever
ſelf with him, and is willing that both ſhould be preſent and converſant amongst us? Cicero de Natur.
judg'd by the fame Law; but this cannot be ad- Deor. l. 1. c. 2. There have been Men in the World,
mitted in Two Natures ſo vaſtly different, that who thought the Gods not in the leaſt concern'd about
one may be ſaid to have been made for the ſake of Human Affairs. Were this Opinion admitted for true,
the other. And therefore they pretend, that God there could be no ſuch thing as Piety, Holineſs or Religi-
declar'd Mens Right over Brutes, purely on ac on amongst Men: For to pay theſe Regards to the Divine
count of their ſuperior Nature. Whence, they Natures, is moſt agreeable to Goodneſ and to Purity, pro-
tell if a Man, for abuſing his Cattle happen vided they take notice of our Actions, and are the Au-
to be puniſh'd by the Magiſtrate, this is not done thors of any Benefits and Advantages in our Lives. But
in Favour of the Beaſts, but for the ſake of the o- if the Gods are neither able nor willing to help us, nor at
ther Subjects, whoſe Intereſt it frequently is, that all beſtow their Care and Obſervation on our Proceedings,
every one ſhould uſe well what he pofleffeth. On and ſo derive no Bleſſings, no Favours upon Mankind, to
the ſame Score, they ſay, the Body ought not to what End is our Worſhip, our Honours, and our Prayers,
complain, though it ſhould, by the Command of the Tribute which we now pay to the Immortal Being ?
the Soul, be waſted and worn out in Labours; ſince As no Virtue can ſubſiſt in Hypocriſy and Shew, so efpe-
it is in ſo high a Degree ſurpaſs’d by that Nobler cially Piety would be ſoon lost in that Diſguiſe; and then
Part.
farewel to all Holineſ, and all Religion ; which being
But, to deliver our own Judgment, we cannot önce baniſh'd the World, what could follow but the Mi-
yet be perſuaded, that from a bare Tranſcendency Sery of utter Diſorder, of Univerſal Confufion? And
of Nature, can ſpring a Right of impoſing Obli- again, What Piety can you owe to him from whom you
on others, who have in themſelves a Power have receiv'd no Benefit? Or how can be claim ang
of being their own Governors and Directors. For thing as his Due, who hath no Merit to plead in his Be-
neither doth a Superior Nature always imply a half? Idem de Nat. Deor. I. 2. The common Ti-
Fitneſs to Rule an Inferior; nor do the different tle which our Anceſtors gave Jupiter was, Opti-
Degrees of Perfection, in natural Subſtances, im- mus Maximus, moſt eminent in Goodneſs and in Great-
mediately denote a Subordination, and a Dépen- neß. In which we find Goodneſs, or Beneficence,
dance of one upon the other. But rather, lince preferr’d to Greatneſs; it being a more noble, and
the Perſon who is to receive the Obligation, hath more excellent, as well as the moſt acceptable

us,
gation
Mr. Barb. NOTES on S. II.
(1) Tully's V Vords are, Itaque nihil melius, quam quod' est in conſuetudine Sermonis Latini, cum exiffe ex poteſtate dicimus eos, qui
effrænati feruntur, aut libidine, aut Iracundia, Tuſc. quæſt. lib. 3. ch. 5. To which VVords it may be convenient to add another
Taffage of Cicero's, which will ſhew that the former is very well apply'd, Qui igitur exiſſe ex poteftate dicuntur, idcirco dicuntur,
quia non ſunt in Poteftate mentis, cui regnum totius Animi à Naturâ tributum est. They therefore who are ſaid to go beyond their
Power, are ſo termed, becauſe they are not under the Command of their Underſianding, to which Nature has given ſupreme Go-
vernment of the Soul.
(2) See this Author's Treatiſe De Republica, lib.3. ch. 17.
(3) The Greek of Antonine is, 'El Nicat miei undevo-Bexiguor Tou Coi gedi) TRASEUHL refe&xonov, ñ um guclu, unde euxáus-
θα, μηδέ ομνύωμεν, μηδε τα άλλα ωρασσόμεν, από έκατι ωι προς παρόνας, και συμβιενας τας τες πράσσόμεν. "And
Tully's Latinis, Sin autem Dii neque posſunt nos juvare, neque volunt, nec omnino curant, nec quid Agamus animadvertunt, nec eſt quod
ab his ad hominuin vitam permanare poßit, quid est quod ullos Diis Immortalibus Cultus, honores, aut preces adhibeamus. See alſo
Tully de Nat. Deorum, lib. 2, ch, 25.
Prero.
CHAP. VÌ. Of Law in general.
67
Prerogative to be Good, than to pofſeſs the high- mit another for his Sovereign, declares, by this his
eft Degrees of Majeſty and Strength. Ovid. de own proper Ad, that he will conform to his Sove-
Pont. I. 2. El. 9.
reign's Pleaſure. Though indeed to make a Law-
ful Sovereignty ariſe from Conſent, it is farther ne-
Nunquid crit quare folito dignamur honore
ceſſary, that by this new Subjection, no prejudice
Numina, fi demas velle juvare Deos?
be offer'd to the well-grounded Right of a third
What Vows would to regardleſs Powers be paid ? Perſon, and that the one Party nay juftly have
They loſe their Altars, if we loſe their Aid. ſuch Subiects, and the other Party as juſtly ſuch a
Governour. From theſe two Springs we conceive
The Inſtance about Bruces is nothing to the pur- all thoſe Obligations to flow, which do, as it were,
pofe ; for they are not held by Obligation, but caft an inward Tie and Reſtraint upon the Liberty
only by Force, or by the Enticement of Food : of our Wills. But becauſe 'tis beyond the Power
Neither would they act contrary to their Natures, of any Moral Bonds, utterly to ſuppreſs our Na-
Thould they endeavour to throw off the Yoke and tural Freedom of acting; and becauſe ſuch is ei-
the Authority of Men. As to the Argument a ther the Lightneſs or the Wickedneſs of moſt Mens
bout the Soul,when that is ſaid to bear a Sovereign- Minds, that they deſpiſe theſe Grounds of Domi-
ty over the Body, the Speech is Figurative : For nion, as feeble Reaſons for Obedience; hence
Sovereignty, or Command, is not properly under- there ariſeth a Neceſſity of adding ſome further
ſtood but between two Perſons, or two compleat Motive, which may work on our diſorderly Lufts
Natures ; and the Body is ſubject to the Soul, by with a ſtronger Effect than the bare Senſe of De-
virtue of the Phyſical Combination, not of any cency and Honour. And this Addition is the more
Moral Tie. Laſtly, the Citation from Ariſtotle, requiſite, in as much as, generally ſpeaking, the
if a King were to be conſtituted by free Election, Wickedneſs of one Man tends to the Damage of
the Crown ought to be given to the moſt defer- another : Whereas we ſhould be more willing to
ving Perſon (4) (a); yer would not he bear the leave a Man to his own Guidance, provided his
Sovereignty by a Right deriv'd purely from his Sins would incommode no Body but himſelf. Now
ſuperior Gifts and Excellencies, but by virtue of there is nothing which could have ſuch an Effe &
the Donation made him by the Conſent of the as this, but the Fear of ſome Evil to be inflicted
Electors.
upon our violating an Obligation, by ſome ſtron-
XII. It muſt be acknowledg'd therefore as a cer: ger Power, whoſe Intereſt it was, that we ſhould
tain Truth, That neither Strength, nor any o not have thus offended. So that Obligations re-
ther NaturalPre-eminence, is alone ſufficient to de- ceive their final Strength and Authority from
rive an Obligation on me from another's Will; but Force, and from a Snppoſition that he, whoſe Bu-
that it is farther requiſite, I ſhould either have re ſineſs it is to ſee them obſerv’d, is furniſh'd with
ceiv'd ſome extraordinary Good from him, or ſhould ſo much Power, either originally inherent in him-
voluntarily have agreed to ſubmit my ſelf to his Di- ſelf, or conferr'd upon him
by others, as to be able
rection. Plin. Paneg. Chap. 38. (1)Nature doth not or- to bring ſome conſiderable Evil on the Diſobedi-
dain amongſt Men as ſhe doth amongſt Beaſts, that the ent. For amongſt wicked Subjects, He muſt needs
Power and the Sovereignty ſhall paſs to the ſtrongeſt. For, be a very precarious Ruler, whom they can deſpiſe
as we naturally yield and give up our ſelves to fome without Danger. On the contrary, His Domini-
fingular Benefactor, (2) ſo if it appears that this on is ſettled on a firm Bottom, who, in the firſt
Benefactor both intends my Good, and can con- place, bears a juſt Title to it, and, beſides this,
fult it better than I my ſelf am able, and, farther, hath ſo much Force always at his Command, as is
doth actually claim the guidance of me, I have no ſufficient to reduce the Seditious, and to reſtrain
Teaſon in the World to decline his Government and the Tranſgreſſors. (3) Sophocl. Ajác. Flagellif. p. 61.
Sway. Especially if it ſo happen, that I am behol- Ed. H. Steph.
den to him for my very Being, Acts xvii. 24, &c.
For he who firſt confer'd on Man the Benefit of Nor Laws, nor Governments could ſtand ſecure,
Free Ading, why may not he, by his own Right, Without the Guard of Fear; nor Mighty Chiefs
retrench that Freedom in fome Particulars? And Secure the Faith of Armies, but ſuſtain'd
then, as for the other Cafe, he that conſents to ad By aweful Dread, and Shame of doing ill.


Ed. H. Steph.
(a). So far the Saying of Cyrus will be true, That no one ought to be a Governor, who is not better than his Subjects. Plus
tarch in Apophthegm. And in the jame Senſe we must take what Socrates urgeth in Xenophon. De Rebus Memorab.l. 3. p. 453, 454.
Mr. Barb. NOTES.
(4) Plutarch's Words are, “Asxey de pun devi negrix av, os & xpcéflwy ési epxxuévay,
(9) Pliny's Latin is, Nec uti inter Pecudes, fic inter homines [Lex Nature) poteſtatem do Imperium valentioribus dedit.
(2) This and the following Reaſons ſerve racher to make an obligation ſtronger and more reaſonable, than to eſtabliſh it upon
a lure and proper Foundation ; for, in my Judgmenr, there is properly but one general Foundation of an Obligation, to which
all others may be reduced, and that is, Our Natural Dependance upon the Supream Authority of GOD, who has given us a Be.
ing, and being Almighty, can puniſh thoſe that diſobey him; and, on the contrary, reward thoſe that obey him. From hence
siſeth all lawful Authority, upon the account of which, one Man commandeth another; for that is lawful only when it is confor-
mable to the Will of GOD, known to us, either by Revelation, or the mere Light of Nature. But if amongſt Men, che imme,
diate Reaſon why they ought to be ſubject to the Command of another is ordinarily this, that they have voluntarily conſented
to it, that Conſent, and all other Engagements whatſoever, which they enter into, are obligatory upon the Account only of thac
Maxim of Natural Right, which tells us, That every one ought to obſerve what he has engaged himſelf to.
See Lib. 2. ch. 3.
9.20. following
(3) The Greek of Sophocles is, où 28 abt'st' även vó Mos rodas
Φερέιν' αν ένθα μα καθεσήκοι δέος.
Ουκ άν εργτ ε σωφρόνως άρχιτ' έτι
Mudlen póßt weh Banguee pinnoiss'égov.

K 2
68
BookI.
Of Law in general
.
Arrian (4) Epift. l. 1.6. 29. p. 164. Ed. Cantab. 'Tis Puniſhers, as contemn the Authority and Re-
suot Man who is the Lord of another Man, but Life and ſtraints of other Men. Juvenal. Sat.13.V.193.&feqq.
Death, Pleaſure and Pain, are the proper Sovereigns
whom we obey: Take away theſe, and bring me before
Cur tamen hos tu
Cæſar, and ſee how little Majeſty without Terror can Evafiſe putes, quos diri conſcia fati
prevail upon a Man's Reſolution.
Mens habet attonitos do ſurdo verbere cædit,
From our Diſquiſitions on this Head, ſome Occultum quatiente animo tortore flagellum?
Temper may be found and applied to that Maxim, Pæna autem vehemens, & multo Sævior illis
which ſome have more crudely utter'd, that Right Quas aut Cæditius gravis invenit, aut Rhadamanthus,
and Law is nothing elſe but what pleaſeth the ſtronger Nocte dieque fuum geftare in pectore teſtem.
Party: For indeed Laws can hardly obtain their
outward End and Effect, unleſs they are ſupported But why muſt thoſe be thought to 'ſcape that feel
and arm’d with Strength, ſo as to be able, up- Thoſe Rods of Scorpions and thoſe Whips of Steel,
on Occaſion, violently to force a Compliance. Which Conſcience ſhakes, when ſhe with Rage con-
Solon, as he us’d to ſay of himſelf, atchiev'd the
(trouls,
greateſt Things, ovi líny Te xj Siung ouvegućous, by cou And ſpreads amazing Terrors thro' their Souls?
pling together Fuſtice and Strength, Plutarch Solon, Not ſharp Revenge, nor Hell itſelf can find
p. 86. Ed. Wechel. And there is no Argument of A fiercer Torment than a guilty Mind;
greater Efficacy in Human Affairs, than that which Which Day and Night doth dreadfully accuſe,
Scylla in Ovid (Metam. l. 8. v.59.) uſeth concerning Condemns the Wretch, and ſtill the charge renews.
Minos,
Mr. Creech.
In caufag; valet, caufamq; juvantibus armis. And indeed it highly concerns the common Good
With a good Cauſe, he brings as good a Sword of Mankind, that all Men believe and confeſs the
to ſecond it. -
Certainty of a Divine Tribunal, incapable of the
leaſt Corruption, where Judgment is to be paſs’d
Even all that Pleaſure, and Joy of Conſcience, on thoſe, who, by means of Cunning, Colluſion,
upon Performance of our Duty, and thoſe Hor or Strength, have declin’d the juſt Performance of
rors and Tortures of Mind, which are the con their Ducy. Hither may be refer'd that of Plutarch
ftant Attendants of Sin, both which we are in (adverf. Colot.) 'Tis eaſier to build a City without Ground
Piety oblig’d to admit and acknowledge, proceed to hold and ſupport it, than to make a Commonwealth
from the Strength and Power of Almighty God, either unite or ſubfift, without the Acknowledgment of a
who can eaſily make ſuch Wretches their own GOD and a Providence. (5)
They,




Mr. Barbeyrac's NOTES.
(4) The Greek of Arrian is, "Av9pwr G SVIguay xúero suest' annce Sévaloj Iwn, xj vdova rj móvo, é mei zweis 76 Tall
äzuje wol Kairu
ega, rj fet, nãu'eu Two
(5) Ρlutarch's Words are, 'Αλλα πόλις άν μοι δοκεί μάλλον έδαφος χωρίς, ή πολιτεία η τει 9τών δόξης αναιρεθείσης παντα πασι
cu sarev na Belv, nadbira tugoon. But our Author treats more largely elſewhere, of the Uſe of Religion
in the Life
of Man,
and ſhews us, how it is the principal and moſt ſtrong Bond of Society. In the independant State of Nature, if there were no
Fear of a Deity, ſo far as every one found himſelf able to oppreſs another with Impunity, they would attempt any thing as
they pleaſed : Honeſty, Modeſty, and Fidelity would be eſteem'd meer Chimera's and empty Names; no Man would take himſelf
obliged to do any Good but upon the Account of his own Impotency. Further, without Religion no Civil Society can be main-
tained; the Fears of Temporal Puniſhments, the moſt folemn oaths and Engagements, to be faithful Subjects, the Reputation of
keeping our Engagements inviolably, and the Knowledge of the Cares of our Kings and Governors, to ſecure us from the Incon-
veniencies of our natural State, are not of themſelves ſufficient to keep Subjects to their Duty; for Death being the only Thing in
the World which is moſt feared by them who believe no GOD, we can't but acknowledge the Truth of that Maxim, He that
knows to die, knows not to be forced. He that has Reſolution enough to die bravely, is capable of attempting any thing againſt
his Sovereign, and he can't want ſome ſpecious Motives or Pretences to entertain ſuch a Deſign; as for Example, The Defire he
hath to avoid the Evils which he apprehends from the preſent Government, an Endeavour to procure himſelf the Supream
Power, but, above all the Juſtice which he may fancy himſelf to do by ſuch an Attempt, either becauſe his King may ſeem to
him not to diſcharge his Duty, or becauſe he flatters himſelf, that if he were in his place he could do much better. Such Pre-
tences as theſe readily preſent themſelves, when Men have a mind to put ſuch Projects in Execution, and they may effect their
Deſigns, if the Prince neglects in the leaſt to ſecure himſelf againſt the Attempts of Affaffins (in ſuch Caſes, who can anſwer for
his Guards themſelves?) or ſeveral Perfons conſpire together againſt him, or in a foreign War, his Subjects revolt to the Enemy.
Beſides, Subjects themſelves would đo many Tujuries one to another, for as in Civil Judicatures Sentence muſt be given according to the
Acts and Proofs that are evident, all the Crimes, from which ſome Profit may be acquir’d, may paſs for good Management, which
every Man applauds himſelf for, as often as he is ſo lucky as to commit them without Wirneſs
. No Man would exerciſe any Acts
of Charity, or do any friendly Offices, were it not for the certain Hope of ſome Glory or Advantage, which would redound
to him by it. If the Senſe of all Chaſtiſement from Heaven were baniſhed no Man could depend upon another's Fidelity, every
one would live in perpetual Diſquiet chro' fear and ſuſpicion of fome Deceit, or baſe Uſage from their Equals. Nor would so-
vereigns themſelves be better diſpos'd than their Subjects to good Actions. For having no Principle of Conſcience to keep them
in, they'd fell all offices, yea, Juſtice it ſelf ; they'd aim at nothing but their own Intereſt, to which they'd ſacrifice the Hap-
pineſs of their Subjects. And if they apprehended their Subjects to revolt, they'd endeavour to weaken them as much as poſſible,
as the only way to maintain their Authority againſt Attempts of the Oppreffors. The Subjects, on the other fide, for fear of Op-
preffion, would ſeek all Occaſions to ſhake off the Yoke, and in the mean time live in Diſtruſt one of another. The Husband and
Wife, at the Diſagreement that happens between them, would lay hold on the Sword or Poiſon to deſtroy each other, and live in
Fear of their Children, Servants, and the reſt of their family. For fiuce without Religion there is no Conſcience, it will be
hard to diſcover theſe fort of Crimes, which are uſually committed in ſecret, and are feldom diſcovered, but by ſuch Means
as ariſe from a guilty Conſcience. The Duties of a Man and Citizen, lib. 1. ch. 4. S. 9. Thus our Author explains this Point,
and Experience verifies his Affertion. We may add to this, two Examples, which the excellent Author of Parrhaſiana makes
ufe of to prove the ſame thing. The Hiſtory of China (ſays he ) tells us, that the Great Men among the Chineſe believe neither the Be-
ing of a GOD, who governs all Things, nor the Immortality of the Soul, and so we ſay that the Virtue of the Chineſe conſiſts in nothing
but a profound Diſimulation of their Vices, Mem. de Le Chine Tom. 1. Lib. 5. and Tom. 2. Lib. 1. Among the Jews, the Sadducees
wlto denied the Immortality of the Soul, tho' they believed a GOD, and tho' they rejected a Providence, made it appear by their
Converſation, that they could not be of that Opinion, but they muſt be Enemies to Society. For Joſephus fays of them, de Bel.
Judo

CHAP. VI.
69
Of Law in general
.
They therefore who would preſcribe Laws to nothing derogatory to the Sovereign's Power.
others with any Effect and Validity, muſt build For it is not to be ſuppos’d that a Miniſter ſhould
their Power on the Foundations which we have vent that for a durable Decree of his Prince,which
here eſtabliſhed.
is not ſo, or that he ſhould impudently uſurp ſo
XIII. But that a Law may be able to exerciſe extravagant a Power; ſince in an Enterprize of
its directive Force, there is requir'd in the Perſon this Nature, there could be no hopes of Conceal-
for whom 'tis made, a Knowledge both of the ment, or of eſcaping due Puniſhment for ſo info-
Law-giver and of the Law. For how can any lent an Offence. As to the other neceſſary Point,
Man pay Obedience, who neither apprehends to that the Senſe of a Law may be clearly appre-
whom it ſhould be paid, nor to what Duties his hended, it is incumbent on the Promulgators, to
Obligation binds him? And here it will be ſuffici- uſe the greateſt Plainneſs that the Thing is capable
ent, that a Man hath once been Maſter of ſuch a of: Contrary to that Management of Caligula,
Knowledge: For he that forgets what he once who wrote his Laws in ſmall Letters, and fix'd them
knew, is not at all loos’d from his Obligation, in a high Place, in this Manner only ſhewing them
ſince he might well have ſecur'd his Remembrance, to the People. (a)
bad he taken up, as he ought to have done, a real If any thing in the Laws ſeems obſcure, the
Defire and Reſolution of obeying. Now to the Explication of it is to be ſought, either from the
Knowledge of the Legiſlator, 'tis hardly poſſible Legiſlator, or from thoſe Perſons who are by him
any Man ſhould be a Stranger. For, as to natural appointed to judge according to the Laws. For it
Laws, that they have the ſame Author with the U- is their Buſineſs, obſerving a right Interpretation,
niverſal Frame of Things, none can be ignorant, to apply the Laws to particular Caſes, or upon the
that will but make Uſe of their ordinary Reaſon. Propoſal of ſuch or ſuch a Fact, to declare the
Much leſs can the Author of Civil Laws be hid Sovereign's Pleaſure concerning it. (6)
from the Apprehenſion and Notice of his Subječts: We cannot here but obſerve, that the Notion
Since he is conſtituted, either (1) by the expreſs maintain'd by ſome Authors, That the Conſent of
and open Conſent of thoſe Subjects, or elſe (2) by the People is requiſite to make Laws oblige the Subject in
their tacit Agreement, whilſt they any way ſub- Conſcience, is neither true in the Laws of Nature,
mit to his Command. How we arrive at a Senſe nor in the Civil Laws of Monarchical or Ariſtocra-
of Natural Laws, by the Contemplation of human tical Rulers ; nor indeed at all, unleſs it be under-
Condition, we ſhall hereafter have occaſion to ex- ftood of implicite Conſent, as a Man by agreeing
plain. Civil Laws are convey'd to the Subjects to the Sovereignty of another, is at the ſame time
Knowledge, by a Promulgation, publickly and ſuppos’d to have agreed to all the future Acts of
(3) perſpicuouſly made. In which there are t'vo that Sovereignty. Though it would really be ve-
Conditions which ought to be clear and certain, ry uſeful, and contribute much to engaging the
firſt, that the Laws proceed from him who hath Subjects in a voluntary Obedience, if the Laws
the chief Command in the State ; and, fecondly, could be made with their conſentand Approbation;
that the Meaning of the Laws is ſuch, and no o- eſpecially ſuch as are to paſs into their Lives and
ther. The former Condition is then known, when Manners. Agreeable to this is Pericles's Saying in
the Sovereign promulgates a Law either by his Xenophon. Apom. l. 1. p. 418. Ed. Steph. Whoever, ei-
own Voice, or by Perſons of his Deputation. ther by written or unwritten Commands enjoins another to
That theſe Perſons publiſh Laws by the Command do a thing, without perſwading him that he ought to do
and Authority of the Sovereign, there is no Que- it, ſeems to me, not to uſe Law büt Violence. Comp.
ftion to be made, if it appear that they have been Sanderſon de Oblig. Conſcient. Præle&t. 7. ſ. 22.
(4 employ'd uſually by the Sovereign in declaring (5)
his Will; if the Laws are brought into Uſe at ju XIV. As in the Sovereign, or in him who is to
dicial Proceedings, and if they contain in them govern another by Laws, two things are requiſite ,




(a) Dio. Caf. in Excerpt. Piereſc. I. 59. (6) Comp. Hobbes de Cive, c. 14. J. 11, &c. and Leviath. c. 26.
Mr. Barb. NOTES on S. 12, 13.
Jud. lib. 2. ch. 12. The Sadducees are rude and inhuman one to another, and as cruel to their own Countrymen the Jews, as to Strangers.
In fine, that Religion may produce all the good Effects to Society which naturally reſult from it, it is neceffary that we have righe
Apprehenſions of the Deity, otherwiſe, if we form to ourſelves a Deity too merciful, or ſuch an one as favours our Sins, either
by his Example or any other way, Religion will be ſo far from firmly upholding Society, that it will utterly deſtroy it. So that
according to the Principles of the Heathens, every one may reaſon as he in the Poet does, As miſerable a Mortal as I am, Mall
not I be wiſer than the greateſt of the Gods ? Teren. Eunuch. A&. 3. Scen. 5. Wherefore we muſt think that the virtuous Heathen
either did not believe what was commonly reported among them, about the Vices of their Gods, or were not aware of the Con-
ſequences that naturally followed from the Principles of a Religion fo monſtrous. See what ſhall be ſpoken, Chap. 3. Lib. 2. §. 19.
Note 2. and Chap. 4. S. 3. Note 4.
(1) This is done either when a Multitude of Men joyns together to make up a Civil Society, or when a Society, already formed
takes an Oath of Fidelity to their Sovereign. We ſhall treat more at large of this Subject, Lib. 7.
(2) This hath place always when we enjoy the Protection of a Srate, and of the Laws eſtabliſhed ; for we muſt be ſuppoſed to
conſent tacitly to ſubmit ourſelves to the Laws, tho' we have nor formally engaged to do it, as Plato obſerves in the Caſe of the
Citizens of Athens, who had Liberty to go whither they would, unleſs they ſubmit to the Government of that famous Common-
vealth, ος δ' αν υμών οραμάνη, ορών όν τρόπον ημείς οι Νόμοι] τας δε δίκας δικάζουν, και τ' άλλα ή πόλιν διοικεύω, ήδη φα-
rufe To TOO OMOAOTH KENAI 'EPT.2, suv, å av muss xensuó es trois TAUTA. În Criton, and in the next Page, the Greek is,
έργω αλλ' και λόγω.
(3) In the ancient Times, before the Invention of writing, Laws were compoſed in Verſe, which were frequently ſung in pub,
lick, that Men might remember them, Ariſtot. Problem. Se&t. 19. Problem. 28. Horace de Arte Poet.
(4) This Author, in his Abridgment of the Duties of a Man and Citizen, lib. I. ch. 2. S. 6. ſays, That it is the Buſineſs of their
Employ; a Circumſtance worth our Obſervation. For we may doubt of the Validity of the Action of any Miniſter, or Magiſtrare,
which belongs not to his office, unleſs it plainly appears that the Supream Governor hath given him a Commiſfion extraordinary.
(5) The Greek of Xenophon runs thus, návle obrezi cévor i Ilseiraća o od tis un citas dveyndje tive Trolling o'rt you can ofte
μο, βία μάλλον, ή νόμος είναι.
that

70
Of Law in general.
BOOKI.
6
Ć
exture Evil; and that good things are deſir'd up- fity (3) of Performance, unleſs it be ſtrengthned
that he underſtand what is fit to be preſcrib'd, and from their End (2) the Publick Good, a part of
that he have ſufficient Strength to denounce and which is communicated to every honeſt Subject,
to execute fome Evil on thoſe who ſhall not con than from the Penalties they threaten, the Fear
form to his Rules: (for we ſuppoſe the Perſons for of which can prevail only on a few Men, and
whom the Laws were made, to have both Power thoſe the moſt wicked in the Commonwealth.”
and Inclination to diſobey them) So.every Law To this purpoſe Bp. Cumberland diſcourſeth. On
conſiſts of two: Parts; in one is defin'd and declar'd whoſe Opinion we may firſt obſerve, that if we
what is to be perform’d, or omitted; in the other would comprehend under the Term of Sanction
is fignify'd, what Evil ſhall be in-curd by thoſe even the good Things and the Rewards following
who tranſgreſs in either reſpect; and this latter the Obſervation of Laws: it is requiſite, that thoſe
part is uſually term’d the Sanètion of a Law; About good Things ſhould really proceed from our Obe-
which Biſhop Cumberland (a) hath open'd a wide dience, and be, as it were, bought and purchas’d
Field of Enquiry, whilſt contrary to the General by it. But now 'tis apparent, that all the good
Opinion of the Lawyers, "He maintains that the Things we poſſeſs, we do not obtain by conform-
Sanction of Laws is made, not only by Puniſh- ing to Laws; and therefore thoſe which we any o-
ments, buc by Rewards too, and more princi- ther way acquire, do not come under the Notion
pally by the latter than by the former. That as of Rewards. Thus, our Selves, our Lives, and
to the Sanctions of the Laws of Nature, it is im- all the natural Benefits we enjoy are not paid to
poſſible by any natural Signs more openly and us as the Rewards of fulfilling any Law, but the
more forcibly to perſwade Men to do a Thing Divine Goodneſs freely conferr'd them on us, be-
(1), or to judge with good Authority, that ſuch fore we could ſo much as think of any Law to be
a Duty is commanded by the Governor of the fulfill'd. Neither is the Continuance of theſe good
World, than if ſuch Acts are grac'd by him with Things, (ſince it proceeds from the inward Force
natural Rewards. That, altho' in the Sanction of natural Subſtance) deriv’d from any Performan-
of Laws by Men, uſe is made of negative Con- ces of ours, but is the Gift of our Great Creator,
ceptions, and of Words properly expreſſing them, who (b) makes his Sun to ſhine on the Evil and the
yet in the Nature of Things, that which drives Good, and ſendeth Rain on the Fuft and on the Unjuft.
us on to Action, is ſome poſitive Good, which Thus likewiſe, what a Man gets by his proper
we hope to preſerve, or to acquire upon keeping Labour and Induſtry, he doth not directly and
off thoſe things that would have a contrary Ef- principally aſcribe to his own Obedience, but to
feet. That Privations and Negations do not his Creator, who gave him the Strength, and to
move the Will of Man, and that the avoiding of himſelf, who rightly employ'd it. Yet this Effect
Evil is by no means its Object, any farther than indeed, we may obtain by Laws, both the Preſer-
as it denotes the Preſervation of ſome Good. vation of thofe good Things which either the free
That, whatever Strength is uſually aſcribed to Bounty of Heaven, or our own Diligence hath
natural Puniſhments and Evils, in engaging Men procur'd us, from the Incurſions and Aſſaults of o-
to ſhun and decline them, is all to be reſolv'd in- cher Creatures, that might otherwiſe hurt or de-
to the atcrađive and impulſive Force of thoſe ſtroy them; and likewiſe the Encreaſe of the ſame
Goods which the Puniſhments or Evils would de- Enjoyments by various Methods and Means: And
prive them of. That, thus all thoſe Things which therefore theſe Advantages only, in as much as 'tis
are commonly ſaid to be done for the ſake of e- in the Power of the Legiſlator to make them good,
ſcaping Death or Want, might be more properly are properly to be efteem'd Rewards. And that
affirm'd to proceed from the Love of Life, or of theſe may have a perfect Force, in diſpoſing Men
Riches. That, unleſs Life went before it, Death to Obedience, the Legiſlator is to ſignify, that
would fignifie nothing, and that the former ſuch Effe&ts will moſt certainly follow ſuch a
would never be fear'd, if the latter were not firft Cauſe.
deſir’d. That, the Nature of Things moves our We may obſerve farther, That altho' the Will
* Affections more ſtrongly with the Love of a may be incited to an Action, by the Propoſal of
preſent Good, or the Hope of a future, than ſome Good, likely to proceed from thae Action,
with the Hatred of a preſent, or the Fear of a this Conſideration doth not impoſe any Necef-
on account, not of the oppoſite Privation, but with the Commination of ſome Puniſhment, to be
of their inward Agreeableneſs to our Natures. incurr’d upon Non-Compliance.
And therefore,
That, Civil Laws receive a firmer Eſtabliſhment that any good Effect proceeds by natural Conſe

on
C
yet

(a) De Leg. Nat. Prolegom. ſ. 14. &c. 5. 5.40.
(6) Matth.v.45.
Mr. Barb. NOTES on s. XIV.
(I) Theſe Words, ut quicquam agant, i. e. that they may do any thing, which are omitted in all the Editions of this work, ei-
ther by the Neglect of the Author, or careleſneſs of the Printers
, quite ſpoil
the Senſe. The fingliſh Tranſlator has not taken the
pains
to confule the original, where theſe words are expreſſed diſtinctly, chap. 5. S. 42. He hath alſo careleſly copied out a
Fault in the Impreſſion, in theſe Words, aut cum Authoritate judicare, for indicare, i. e. to judge, for to thew with
Authcrity,
which makes the Senſe diſagreeable.
(2) Theſe Words, which wiſe Legiſlators and good Citizens have propounded with a Deſire of, ought to be added to render the
Senſe of Biſhop Cumberland more clear, tho’ they be not in the Original.
(3) Mr. Lock proves in a moſt ſolid Manner, " That it is not the moſt poſitive Good, but Uneaſineſs, (as he calls it ) that uſually
« determines the Will. That is to ſay, that Good, nay the greateſt Good, tho’ sve judge it ſuch, does not determine the Will
,
6 at leaſt, to deſire it with an Earneſtneſs proportionable to its Excellence, yet this Defire makes us uneaſy, becauſe we are de
« prived of it. As for Example, perſwade a Man, as long as you pleaſe, that Wealth is more advantagious than Poverty ; make
s him
to ſee and confefs, that ſuitable Conveniencies of Life, are to be preferred before a ſordid Indigency, if yet he be con-
ss cented in this latter Eſtate, and finds no Inconveniency in it, he'll perſiſt in it contrary to your Advice, his Will is not inclined to
any
Adion whereby he will renounce it. Esay of Hum. Underſtand. lib. 2. ch. 21. $. 35. See the following part of the Chapter.
quence

CHA P. VI.
71
Of Law in
in general.

quence from any Action, is indeed a Token of the no doubt, but that the Action is really and di
Superlative Bounty of our Creator, who is ſo wil- rectly enjoin'd. To which we may add, that the
ling to confer that Good on us, and ſo kindly Minds of Men (4) are mov'd more forcibly by the
invites and perſwades us to embrace it. Yet this Infli&tion of Evil, than by the Poffeffion of Good.
muſt not preſently be thought a neceſſary Argu- It muſt be confeſs’d, that the Acquiſition of Good
ment, that He at the ſame time commands us, by hath very powerful Charms: eſpecially when it
performing the A&ion, to acquire ſuch a Good. is freſh, and join'd with the Deliverance from
He might perhaps judge it fufficient to have of- fome preſent Evil. But the Senſe of this Pleaſant-
fer'd us fa fair an Occaſion of receiving his Mu- neſs wears off in a long Courſe of Poffeffion; and
nificence. But if ſome Evil be farther pronounc'd when once that Motion of Mind ceaſeth, which
againſt us upon Omiſſion, then there can remain either the Abſence of the Good, or the freſh En-

(4). The famous Mr. Bayle maintains the contrary Opinion in his Treatiſe upon a Comer, ſaying, That a Man has more Love for
Joy, than Hatred to Sorrow; which l'aradox he precends to prove thus, No Man (ſays he) ſcruples to put himſelf into an uneaſy and
forrowful Condition, provided it carries a phew of Mirth and Pleaſure This appears from the Examples. of so many young Maids, who
being tranſported with the Expe&tations of ſome preſent Pleaſure, suffer themſelves to be led into fuch Actions, as they are ſenſible will
produce a long train of Miſeries : ds alſo by the Exemple of great Numbers of Men, who have found a thouſand times, that the eating of
certain Meats, and their drinking too much, has cauſed terrible Pains in them, who yet will not reſtrair their Appetites from them,
when they have occaſion. But 'cis my Opinion, that theſe young Maids and Drunkards do not uſually think of the bad tendency
of their Actions, ſo far are they from determining, after they have exadly compared the preſent Pleaſure with the Miſery that
will follow, Tis not then a time of Reflection; we might do it when we are ſerious, and the Object and Occaſion being at a
diſtance, our favourite Paffion is filent; but when the Heart is briskly attacked in a ſenſible place, all theſe good Reflections
vaniſh, we dream of nothing but the greateſt Satisfaction, and never trouble ourſelves with what may happen. The preſent Plea-
Sure, unleſs it be very ſmall and next to nothing, fills the narrow Capacity of our Soul, and ſo engroſſes the whole Mind, fo that it troubles
not itſelf to think at all of things abfent, (as Mr. Locke ſpeaks, Eſay of Hum. Vnderſt. p. 326.) The Orator Eſchines ſpeaking of
thofe who engage themſelves in ſome great Wickedneſs, ſays, That they neither conſider on the Diſgrace or Puniſhment, which they
bring on themſelves, but are wholly employed with the thoughts of that Pleaſure they ſhall obtain, if they compaß their deſign; 'Oups
η αιγώ», έσ' απείσονται κηφθένες λογίζονται, άλλ' έφ' δις καιωρθώσαντες ευφρανθήσονται, έτοις κεκαλώ ται. . Timarche
p. 197. But if, rotwithſtanding the Earneſtneſs of the Deſire which the Preſence of the Object excites, there are ſome
which invite them to conſider the Conſequence of the Action, they always have a great Inclination to farter themſelves. They
think, that tho' the Conſequence is important, nevertheleſ 'tis not ſo certain, but that it may happen otherwiſe, or at least that it may be
avoided by ſome means or other, as by Induſtry, Courtſhip, change of Behaviour, &c. (Mr. Locke of Hum. Under ft. p. 328.). Further
inore, the prevailing Power of preſent Pleaſure, by which they are hurried, is, properly ſpeaking, a real Sorrow, for in the fic
of a violent Paſſion, the earneſt Deſire, which is inflamed by the nearneſs and allurements of the object, cauſes ſuch an Uneaſi-
neſs, as affects us in the ſame manner, as what we ordinarily call Grief, and the Uneaſineſs preſent being greater, determines the
Will, as Mr. Locke has very well proved, altho' the future Sorrows, to which Men expoſe themſelves by ſuffering themſelves to be
carried away by the prevailing Power of preſent Pleaſure, may be ſeen at a diſtance, and as a greater Evil in its own Nature than
what they feel themſelves actually preffed with, the Deluſion cauſed by a ſmall difference of Time, inclines the Mind to chooſe
the worſt part. Most of our Pleaſures (ſays Montagne, according to the Opinion of the Heathen Wiſemen, viz. Seneca, Ep.51,&c.)
tickle and embrace us, to ſtrangle us, as the Thieves which the Egyptians called Phileras, did ; and if the Head-ach ſeize us before
Drunkenneſ we abſtain from over-much drinking, but the Pleaſure going before, deceives us, and ſo conceals the conſéquence from us.
See the ſame Thought in two Comick Poets quoted by Atheneus in his Deipnoſophiſts, Lib. I. & XV. whoſe Words Gataker recites
in his Preface to Marcus Antoninus. If at the ſame Moment (ſays Mr. Locke) that a Man takes the Glaß in his hand, the pleaſure.
that he finds in drinking were accompanied with that Pain in the Head, and qualms of Stomach which never fail to ſeize fome Men
Some few Hours after they have drunk to exceſ, I do not believe that any Man would, upon theſe Conditions, put the Cup to his Lips,
whatever pleaſure he might have by drinking. So that in the Examples alledged by Mr. Bayle, and in other like Caſes, none can
propound to himſelf to undergo any Uneaſineſs or Sorrow, provided it paſſes with us for Pleaſure, but he ajms to free himſelf
from fome Uneaſineſs, or Grief that lies upon him, which his Paffion, or erroneous Judgment hinders him from coinparing fully
with the degree or certainty of Sorrow at a diſtance. The other Reaſon of Mr. Bayle is, That Men ſtick not to paſs thro '
many Sorrows and Uneaſineſſes, provided at length they can arrive at Pleaſure. The Corfars (1ays he) having received an Affront,
will hide themſelves five days together in the Buſhes to wait for their Enemy, being well contented to feed on the Roots of Graß all th
while, on condition, that they may have the ſatisfa&tion of ſeeing their Ambuſh ſucceſful. But we may rather ſay, that the Uneafinels
or Grief which theſe Men have conceived at the Affront given them by their Enemy, who has provoked, and the eager deſire
of Revenge with which they are poffeſſed, renders them inſenſible of thoſe leffer Diſturbances which are cauſed by the Coldneſs
.
of the weather, or an hungry Appetite. We can obſerve very few Men, who will willingly undergo any great Pain or Trouble,
to arrive at the Enjoyment of thoſe Pleaſures of which they are moſt ſenſible, but when indeed only ſome ſmall inconvenience,
or little Uneaſineſs, which they think can eaſily be born, attends, there needs no great Reſolution to open a way to the pofleffion
of that Object which has made to great Impreſſions upon our Heart. But the profpect of ſome great Evil abates the Eagerneſs
of the ſtrongeſt Paſſions, and fills pliable Minds with ſuch a Fear, as keeps them from ſwallowing the Bairs of Pleaſure : But if
Sometimes to ſatisfy thefe Deſires Men run themſelves chearfully into great Troubles and ſharp Sorrow, we muſt think, that as
ſoon as they are ſenſible of what they have done, they'll immediately repent of their Raſhneſs and Imprudence; the Pleaſures,
whoſe ſweet Morſels have drawn us away, will then appear to have been bought too dear, and we thall renounce, with all our
Hearts, the hopes of all we once accounced delightful, to be delivered from the Evil we endure, a Proof ſufficient that we have
not well conſulted our own Good, or that the violence of our Paffions ſo blinded us, char we did nor perceive all the Bitcerneſs
of the Sorrow, into which we have blindly thrown ourſelves. To come then to the Subject our Author is on, Suppoſe that two
Lawgivers, willing to ſettle the ſame Law, ſhould pr opound, the One great Rewards to ſuch as obferve it, and the other fevere
Punilhments to ſuch as break it, Do we think that the firſt would more effectually engage Men to Obedience, than the other?
no Body, I believe, will ventyre upon the Affirmative; for there may be many Men who will not much regard the greateſt Re-
wards that can be given, and being contented with their preſent Condition, aſpire nor to any higher degree of Happineſs : Buc
how few are there who will not be affrighted at the proſpect of a great Puniſhment, tho' they do not attentively conſider it.
For one Man who will yield to a Temptation in ſpite of ſuch Threarnings, we ſhall find a thouſand who will not in the leaſt be
affected with the hopes of the greateſt Rewards, eſpecially if to deſerve them they muſt offer force to any ſtrong Inclination?
I Thall add one Remark more, which is this, If a Man were more ſenſible of Good than Evil, thoſe Sins into which Men fall for
fear of Trouble, ought to be puniſhed with greater Severity, than thoſe which we are drawn into by the love of Pleaſure. Now
this Conſequence which naturally flows from the Principle of Mr. Bayle, is contrary to the Judgment of all the wiſeſt Legiſlators
and moſt able Philoſophers, as well as the conſtant practice of all the Judicatures of the moſt Civilized Nations; and I am apo
to think, that Mr. Bayle himſelf would nor approve of a more gentle Trearment towards that young Maid who (as he inſtances)
ſuffered herſelf to be carried away with the prevalency of a preſent Pleaſure, than of her who yields to the Threarnings of a
furious Spark. See Chap. IV. §. 7. Notes there, and what the Author farther ſays, Lib. VIII. Chap. III. $. 19. as alſo Grotius,
Lib. II. Chap. XX. S. 29. N. 2. with the Nores. I am aware alſo that in the fame Book in which this Maxim, which has occa-
fioned this large Note, is contained, theſe words, which will confirm my laft Reflection, are found, I much doubt (ſays Mr. Bayle)
whether the Prevalency of that Pleaſure which hurrieth us, will be able to diminiſh the Crime, p. 345.
joyment
72
Of Law in general.
BOOK I.
joyment of it rais'd, there remains ſcarce any perfect, viz. ſuch as have no Puniſhment enacted
thing but a dull Acquieſcence and Contentment. for Offenders, as Macrobius ſpeaks, (7) or which
Whence it comes to paſs that many Perſons, then wanted this Penal Sanétion.
Such a one they
only begin to value their good things, when they reckon the Lex Cincia, (8) which had no other
either have loft, or are in danger of loſing them. Clauſe added at the end to enforce it, (9) but this,
But Grief, into which all Evils and all Privations He that doth otherwiſe ſhall be accounted to have done
of Good are at laſt reſolv'd, is not itſelf a bare wickedly. But I ſhould conje&ture, that in that
Privation, but a Thing of a moſt poſitive Nature, Law either the Infamy alone was thought a ſuffi-
anå of ſuch prodigious Strength, as to be able ſocient Puniſhment, or it was left to the Power of
far to extinguiſh all (5) Senſe and Value of Hap- the Cenſors to fix ſome further Mark of Diſgrace
pineſs, as ſometimes to make us deſire ſo ſevere a on the Delinquents in this point. That ſuch Per-
Remedy as Death, for its Cure.
fons were not altogether unpunilh'd we may fairly
Hence, we think, Civil Legiſlators have ſuffi- conclude from Tacitus (10)." Cicero de Legibus, l. 2.
cient Grounds and Reaſons for chuſing to make C. 9. (11) The Puniſhmeut of Perjury is from Men Dif-
the Sanction of their Laws conſiſt racher in Puniſh- grace, and from Heaven Deſtruction. Livy, L. 10. c.9.
ments than in Rewards. The Obſervance of Hu: gives us an Inſtance of another Law feemingly Im-
man Laws is indeed advantagious enough in ge- perfect. (12) The Valerian Law, ſays he, when it had
neral, as it ſecures the Poſſeſſion and Enjoyment forbidden the Scourging, or the Beheading of a Man, who
of thoſe bleſſings which attend a Civil Life : But ſhould make an Appeal, only added, that whoever acted
were the Exerciſe of common Virtues enforc'd by thus, a&ted wickedly. This I suppoſe (so great was the
the propoſal of particular Rewards, 'twere impoſ- Modeſty of Men in thoſe Days) might be thought a fuffi-
fible to furniſh Stock enough for ſo profuſe a cient T'ie for a Law : But in our Times ſuch a Simplicity
Bounty. On the other hand, (6) the denouncing of Expreſſion would be us’d in no Threats, but thoſe
of Puniſhments was the ſureſt way to make Men which were deſign'd for Feſts. In the fame Rank we
ſhake off that heavy Drowſineſs with which moſt may place the Law of (13) Zalcuchus mention'd
of them are beſotted and benumm’d: And becauſe by Diodorus Siculus, L. 12. c. 20. Let no Citizen proſe-
generally the Tranſgreſſion of the Laws is join'd cute bis Enemy with implacable Hatred, but let him so
with the Hurt of others, and with ſome imaginary maintain Enmity with him, as if he were ſhortly to re-
Good of the Offender, therefore it ſeem'd moſt turn into Favour and Friendſhip. He that doth other-
expedient to repreſs the enticing Allurements of wiſe, let him be reputed a Man of a Fierce and Barba-
Sin, by repreſenting the frightful Image of that rous Diſpoſition. Unleſs you'll ſay, that in this Cafe,
Pain and Grief which was unavoidably to follow
as well as the former, the Infamy may well be in-
it. Thus we find that Civil Laws do always come terpreted as a Puniſhment. And ſo likewiſe in
enforc'd with a Penalty denounc'd againſt Tranſ-
thoſe other Laws recited immediately after by the
greffors, either expreſly defining the kind of Mulct fame Author, L. 12. c. 21. Let not a Free Woman,
or Puniſhment: or elſe intimating that it is left unleſ ſhe be drunk, go attended with above one Maid.
undetermin'd to be ſettled by the Diſcretion of Let her not ftir out of the City in the Night-time, unleß
the Judges, and of thoſe who are to take care of when she goes to proſtitute herſelf to her Gallant.
putting the Laws in Execution. Indeed the Ro- her not wear Golden Ornaments, nor Garments intera
man Lawyers tell us of ſome Laws which were im woven with Gold, unleſs jhe deſigns to ałt the Courteſan,


Let

(5) One ſmall Pain is ſufficient to ſpoil all the Pleaſures we enjoy. The Reaſon of it is, becauſe ſo long as we are troubled
with any Uneaſineſs we can't think ourſelves happy, or in the way of Happineſs, becauſe every one looks upon Grief and Un-
eaſineſs as things inconſiſtent with Happineſs. Mr. Locke of Hum. Underſt. p. 299.
(6) The Original being ſo confuſed in this place, that the Author's Reaſonings quite loſe their force thereby, I have thoughe
fit to remedy it, by tranſplanting two fmall Sentences, and changing the Connection, vix. after De leur Loix, put, Car il falloit,
&c. thus in the Engliſh Tranſlation, after Rewards, 1. 9. put, The denouncing of Puniſhments, 1. 17. and reading ro, follow it, rea
turn to, The Obſervance, &c. I. 5. and ſo go on at 1. 17. becauſe to put the firſt Periods into a Parentheſis, as the Author does,
makes an harſh Confuſion.
(7) Inter Leges quoque illa imperfe&a eſſe dicitur, in qua nulla deviantibus puena ſancitur. Macrob. in Somn. Scip. I. II. C. 17.
(8) The Cincian Law is fo called from M. Cincius the Tribune, who propoſed it, A. V. C. 549. It forbad all Advocates and
Pleaders to take any Money or Preſents, from whence Plautus calls ir Muneralis. See Tacit.l.11. c. 5.
(9) The Latin is this : Qui ſecus fecerit, improbé feciſſe videbitur. It is not known whence our Author took theſe words : but
theſe ſort of Laws do nor make void what was done againſt their Prohibition. Imperfe&ta Lex est, veluti Cincia, qua fupra certum
modum donari prohibet, exceptis quibuſdam cognatis, do li plus donatum fit, non reſcindit, i. e. Cincias's Law is an imperfect one, be-
cauſe tho'ir forbids all moderate Fees and Gifts, unleſs to ſome Kindred, yer if more be given it makes them nor void.
Ulp.
Inſtit. Tit. I. §. 1. See Lib. III. Chap. VII. §. 6. following.
(10) Who ſays, Annal. 13. S. 42. Suillii opprimendi gratiâ repetitum videbatur Senatus conſultum, Penaque Cincie Legis adverſus
eos qui pretio cauſas or aſſent, i. e. The Cincian Law was made to ruin Suillius. Cicero de Legibus, l. 2. c. 9.
(11) Perjurii Pæna divina exitium, humana dedecus.
(12) The Latin is, Valeria Lex, quum eum qui provocaſſet, virgis cadi, Securique necari vetuiffet, quis adverſus ea feciſſet, nihil
ultrà, quam improbè faftum, adicit. id, (qui tum pudor hominum erat) viſum, credo, vinculum Jatis validum Logis. Nunc vix ſerio
ita minetur quiſquam. But here, by the Bye, we may obſerve, that the laſt words of this Pafíage are much varied in the Manu-
fcripts, where they are greatly corrupted. Gronovius the Father faintly conjectures, that they ſhould be read thus, Nunc vix llo
ſummas pænas minetur quiſquam ; and he builds it upon two of the beſt Manuſcripts, which read thus, Nunc vix fi ſummo ſerio
metur, &c. Others add, Ita, & ſervata, which being joined with the former Readings, and keeping to the ſenſe, we may ga-
ther the true Reading to be, Nunc vix ſi ſuinmis cruciatus minetur quiſquam, i. e. Men at this day can hardly be kept to their Duty
by the plainest Denunciation of the most severe Puniſhments.
(13) Diodorus Siculus's Greek, is, legsálflwr und'éve 7 Tomiño 'tomantenu einde daraxlov 'fzexv. å ma' stes Tày xb egy ay nadpBeh-
γειν, ώς ήξονα παλιν εις συλλυσίν, και φιλίαν. τον διά παρ αυτά ποινα διαλαμβάνεται παράλούς πολίταις ανήμερον, και άγιον
ψυχιω. ... Γωναίκι ελάθέρα μη πλείω ακολοθίν μιας θεραπύησΘ, έαν μη μεθύη, μηδέ οξιέναι νύκλο ε ε πόλεως, ή μη
μοιχόομένω: μηδε περιτίσεις κυσία, μηδε είτα παρυφασμένω, έαν μη τάραν 5 μηδε7ον άνδρα φορείς δακτύλιον ισόγευ-
σον, μηδε ιμάτιον ισομιλήσιον, εαν μη εταιρεύεται, ή μοιχευεται, διό και ραδίως (ας των τροφίμων αιοεάις υπεξαιρέσεσιν άπιστέψε
η βλαβερές υφής, και ακολασίας των επιτηδιαμαίων, έδεις και εβάλετο η αιγαν κόλασιν, ομολογήσει λαλαγκλάς, εν τοις
maitais . See Montagne's Eſſays, Lib. 1. Chap. 43. Digeſt. Lib. XL. Tit. 47. De Religioſis, Lo Sumptib. Funér. doc. Leg. xiv.
9. 14. & Lib. 47. Tit. 12. De Sepulcbr. viol. Leg. 3. $. 4.
Let
mia
CHAP.VI.
Of Law in general.
73
Let not a Man wear a Ring allied to Gold, or a Gar- Compulſive Power, or the Power of exaEting from
ment approaching near to Mileſian Richneſs, unleſſ he be the subject a Conformity to the Rule (14) pre-
guilty of Fornication or of Adultery. Thus (as the Hi- fcrib'd them by decreeing and actually inflicting
itorian proceeds to obſerve) by ſuch Scandalous Ex- Penalties, is properly in the Perſon of him who
ceptions and Conditions, he eaſily diverted his Subjects made the Laws, or of him who hath the Care of
from the purſuit of Luxury and of Intemperance. For no their Execution. Liban. Orar. V. Laws were of no
one could bear the expoſing himſelf to bis Fellows by ſo Force-without Judges to put them in Execu:ion. Bare
foul a Diſgrace (a).
Statutes have neither Ears to bear our Cauſe, nor Feet
Thus then, there are two Parts of a Law, one nor Hands to baften to us and defend 28 : But all the
Definitive, and the other Vindicative, which is the Aſſiſtance which Juſtice gives us, is convey'd by its Mi-
Penal Sanction. Theſe, we ſay, are two Parts of the niſters. Tho’’tis a common thing with Writers to
fame Law, and not two Species of Laws. For as attribute to the Laws themſelves ſuch Effects, as in
it is loſt Labour to ſay, Do this, if nothing follow a ſtrict ſenſe belong to the Supreme Power. Of
beſides ; ſo it is abſurd to ſay, You ſhall undergo ſuch which kind of Speech, that one Paſſage of Apu-
a Penalty, unleſs it have been before ſignified by leims (6) may be a ſufficient Inſtance, Quod Lex in
what means we ſhall render ourſelves obnoxious Urbe, Dux in Exercitu, hoc est in Mundo Deus. What
to this Suffering. We muſt therefore take notice, the Law is in a City, what the General is in the Army,
that the whole ſtrength and force of a Law pro- (16) ſuch is GOD in the World. When Livy ſays,
perly conſiſts in declaring what our Superior is (17). The Commands of the Laws are more powerful
pleas'd we ſhould perform or omit, and what Pe than thoſe of Men; this is ſo far true in Democra-
nalty we ſhall incurr upon Default. Whence alſo cies only, that the Magiſtrates cannot recede from
it
may
be underſtood in what ſenſe the Power of the Laws, nor over-rule their Force.
Obliging is attributed to the Law. For, properly Legiſlators, as fuch, are ſaid to compel, only
ſpeaking, the Power of obliging, or laying an in- Morally; not that by any Natural Violence they
ward Neceſſity on Perſons to act in ſuch a man- fo conftrain a Man, as to render it impoſſible for,
ner, is in him who bears the Sovereign Command. him to act otherwiſe than as they direct; bụt be-
But the Law is only the Inſtrument of Sovereignty, cauſe, by declaring and exhibiting a Penalty a-
by which the Ruler makes his Pleaſure known to gainſt Offenders, they bring it to paſs that no
his Subject, which being once diſcover'd, an Ob- Man can eaſily chuſe to tranſgreſs the Law;
ligation to Obedience is produc'd in them by Vir- fince, by reaſon of the impending Penalty, Com-
tue of his Supreme Authority. Hence too it ap- pliance is in a high degree preferable to Diſobe-
pears, that the vulgar Diſtinction of the Power of dience..
a Law, into Directive and Compulſive, was ill made; -»XV. Now by attributing thus to Laws the
unleſs by the Compulſive Power we underſtand Power of Obliging, we immediately exclude Per-
the Penal Clauſe. For the proper Efficacy of a milions from the Number of true and proper Laws:
Law conſiſts in directing, as it declares the Will of Tho' Modeſtinus (c) tells us, the (1) Virtues of Law
the Sovereign, and denounceth Threats againſt are to command, to forbid, to permit, to puniſh. For
the Subject, if he prove Diſobedient. But the (2) Permiſſion is not properly an Action of the Law
(a) Add. l. 11. C. 7. D. de Relig. Sumptibus Funeral. & l. 3. f. 4. Leg, de Sepulchro violato.
(b) De Mundo, p. 749. Ed. in uſum Delph. (c) L. 1. D. de L. L. T. 3.
(14) The Original is; ab ipfis, for, ipſis preſcriptam.
(15) This Author cites only the Latin Verſion of Libanius's Oration V. He has ſome Declamations, but I have never ſeen his
Orations.
(16) The ſenſe of this Paffage is certainly taken out of Ariſtotle, who ſpeaks exactly the ſame thing in his Book De Mundo,
Chap 17.
(17) Imperiaque Legum potentiora, quàm hominum. Tit. Liv. Lib II. Chap. 1.1
Mr. Barb. Nores on 8. XV.
(1) The words of the Digeſt are, Legis virtus Chec] est, imperare, vetare, permittere, punire, Digeſt. Lib. 1. Tit. 3. Leg. 7.
(2) This is not always true, for every one knows, that Laws ſometimes poſitively grant certain particular Privileges and Rights;
if we carefully reflect upon the nature of things Moral, we ſhall find that the general Notion of a Law, as it implies a Conſtitu.
tion by which a Superior orders the Actions of ſuch as are ſubject to him, includes not only an Obligation to do or not do cer-
tain things, but alſo a Liberty to do or nor do others. So that Liberty imports always a Conceſſion, either expreſs or tacit,
which is a poſitive thing. And indeed on what are all the Rights we have founded, but upon the poſitive Will of our Superior,
by virtue of which we may defend ourſelves, or require the Protection of the Law againſt all them who endeavour to moleſt us
in the Enjoyment of ſome Lawful Right. Farther, Right and obligation are two Relative Notions, which always go hand in
hand. And why may we not allow a Law of meer Permiſſion, as well as a Law Obligatory? Certainly, if this Law be neceſſary
to impofe upon us a neceſſity of acting, or nor acting, the other is no leſs neceſſary to put us in a ſtate of acting or not acting
with Security and Impunity, as we think fit. Grotius, who, like this Author, affirms, that Obligation is the Eſſence of all Law,
ſeems tacicly to acknowledge in the fame Chapter (Lib. I. Ch. 1. §. 17.) chat Permiſſion is comprehended in the Notion of a Law.
We muſt therefore allow, That the Law of meer Permiſſion is an Ordinance or Conſtitution by which a Superior gives to thoſe
that are ſubject to him, a Right or Moral Power to have Things ſafely and lawfully, or to do and require of another certain
Actions, if he judges convenient. See what Mr. Titius ſpeaks much to the ſame purpoſe in his Obſerv. on Pufendorf, 50, 51.
Mr. Selden has already maintained the ſame Opinion, and uſes a Compariſon very proper to make it underſtood, viz. Al the
Boundaries which divide my Field from my Neighbour's, ſet out the Extent of his Field as well as mine ; ſo the Obligatory Right, which
determines what Aktions are commanded and what forbidden, being once ſettled, there neceſſarily follows a Right of meer permiſſion,
which has for its Objet all other Aftions, about which the Lawgiver has determined nothing Authoritatively, and conſequently permit s
every Man to do, or not to do, as he pleaſes. De Jure Nat. & Genr. Lib. I. Chap. 4. Again, we muſt remember, that there is a great
difference between the Permiſſion of Human Laws and Divine, for the Permiffion of Divine Laws is always abſolute, ſo that every
one has a full Right to do all that they permit, provided the Things permitted are not forbidden by any Humane Law, to which
he ought to ſubmit, in Obedience to ſome other Divine Law; but as to Humane Laws, the Permiſſion which they give is for the
moſt part imperfect, which implies only Impunity in Humane Judicatures, as our Author explains himſelf a little lower. Never-
theleſs I am aware, that this Author forgetting his Principles feems to allow, beſides a Law of meer Permiſſion, for ſpeaking of
the Goodneſs or Evil of Actions in the following Chapter, §. 3. he ſays exprefly, By a Law I mean always here a Law which in-
diſpenſably obliges to some thing, and not a Law that only permits. Legem neceſſitantem, non permittentem. Grotius alſo ſpeaking
of the firſt Right of the Occupant, ſays, It is founded upon the Natural Right of bare Permiſion. Eft hoc jus ex jure Naturæ per-
mittente. Lib. II. Ch. 3. S. 5.
L.
but



74
Of Law in general.
Воок І.
but the Negation of an Adion. Whatſoever determin'd nothing plainly about ſuch an A&ion,
things the Law permits, thoſe it neither commands or hath declar'd it ſhall be Lawful ; or, laſtly, be-
nor forbids
, and therefore it really doth nothing cauſe Civil Ordinances frequently leave many
at all concerning them. Some maintain, that things to the Modeſty and common Honeſty of
there is nevertheleſs a kind of Obligation in Per- every particular Man (b).
miſſions ; not indeed affecting him to whom we ſay Some have more accurately obſerv'd concern-
a thing is permitted, but binding up a third Perſon ing theſe Permiſſions of Civil Laws and Civil
from giving him any hindrance in caſe he under- Courts, that they are made either by the A&tion
take what the Law thus permits. Tho' this is of the Law, or only tacitely. To the former they
by many reſtrain’d to ſuch things as are fully and refer the Omiſſion, or paſſing by of a Marter,
perfectly permitted, ſo as not to take in thoſe lef- not ſimply, and, as it were, by accident, but
ſer and imperfect Permiſſions which may be more when the Deſign and the Form of the Law run
properly ſtil'd Indulgences or Connivances. Thus, in ſuch a manner, that the Legiſlator fhews his
for Example, the Laws of ſome Countries per- Intent of making a full enumeration of Particu-
mit the killing of a Wife taken in Adultery ; yet lars : For in ſuch a Caſe he is ſuppos'd to have
they do not forbid others from uſing their utmoſt permitted whatever he hath not exprefly reckon'd
to hinder her Death. But if we would be accu- up amongſt Things prohibited; provided the Mat-
rate and exact in our way of Talking, even this ter be not repugnant to Natural Honeſty. Thoſe
Effect doth not properly reſult from the Permiſ- things are underſtood to be tacitly forbidden,
fion of the Law, but from every Man's juſt Liber- which the Civil Power lets paſs by conniving ar,
ey (3). For about thoſe things in which the Law tolerating, or diſſembling ; either for the preſent
gives me no ftop or hindrance, I have a perfect only, or for a longer time, ſo as to let them ob-
freedom of acting, the chief Effect of which is, tain the Force of Cuſtoms. Yer a Permiſſion
that no Man ought to diſturb me in the harmleſs granted by a Civil Law cannot cauſe that an Acti-
Exerciſe of it. So that for a Law exprefly to per on ſhall not be contrary to the Divine Law, or
mit thoſe Things to which we claim a ſufficient ſet it beyond the Fear of the Divine Puniſh nient.
Licence by their not being prohibited, which can We may farther remark, that when a Thing is
not well fall under Doubt or Diſpute, ſeems little ſaid to be permitted, which is not determind by
better than uſeleſs and ſuperfluous. As likewiſe, the (6) expreſs Command or Prohibition of any
it is not always neceſſary, that when any prohi- Civil Law, we are not to cavil at the Words of
biting Law is repeald, an Ad hitherto forbidden, the Law, but to conſider the Scope and Intention
ſhould by an expreſs Ordinance be declar'd per- of it. For many things are contain'd in the fenfe
mitted : Since upon removal of the former Impe- of the Laws, and are ſuppos’d to be really im-
diment, our natural Liberty doth, as it were, te- plied by them, either as they are neceffary Con-
vive and recover itſelf. There are indeed two ſequences, or upon account of their near Affinity
ſpecial Caſes, in which Civil Lawgivers are wont and Reſemblance to the determin’d Caſes. Regard
to uſe expreſs Permiſſion : Firſt, when Licence and is likewiſe always to be had to Natural Law, or to
Impunity is indulgd to ſuch an Act, within ſuch Common Honeſty, which is the perpetual Sup
a Meaſure; and, ſecondly, when the Licence or plement of Civil Decrees. Laſtly, Thoſe things
Impunity is to be purchas'd by ſome Fine or Bur- which are tolerated only for a time, or upon the
then. Of the former Caſe, ſome give an Inſtance Score of Neceflity, cannot fall under the proper
in the Laws of moſt Countries permitting Uſury, Notion of Rights. All (7) which Obſervacions
within ſuch a fix'd Degree: Of the latter, in are chiefly to be underſtood of the moſt perfect or
the Conſtitutions of ſome Places, where Women plenary Permiſſion (c).
are allow'd to proſtitute themſelves, upon Condi-
tion of paying a certain Tax (4): which whe XVI. The Matter of Laws in general, is what-
ther it be well or ill done we are not now to dif- ever can be done by thoſe Perſons for whom the
pute, (a) (5).
Laws are made, at leaſt at the time of their Pro-
Legal Permiſſion is divided into Plenary, which mulgation. For if any Man afterwards, by his
gives a Right of acting, and makes the Deed al own Fault, loſeth his Ability to fulfil the Law, the
together lawful; and leſs Plenary which either af- Force of the Law doth not thereupon ceaſe and
fords Impunity, or Freedom from Impediment, or expire; but the Legiſlator hath Power to puniſh
both. Now that ſeveral Things find an Impunity him, for rendring himſelf thus incapable of
amongſt Men, is occafion'd by ſome of theſe Rea conforming to the Rule preſcrib'd him. But, o-
fons : Either, that the Matters exceed the Reach therwiſe, to make ſuch a Law as the Subject can-
of Human Courts and Cognizance, as do the not fulfil, and yet hath not loſt his Power of ful-
Faults of Kings; or, that Human Law hath either filling by his own Fault, is not only a moſt vain,






(a) Vid. Evagr. Hiſt. Ecclel. I. 3. C. 39. Of the Tribute paid by Common Strumpets, which Anaſtaſius the Emperor took off. See
B.VIII of our Author, c. 1. 1. 3. (6) Vid. Digeſt. I. 50. cit. 17. (c) Vid. Bæcler in Grot. 1. 2. c. 1. 1.9.
Mr. Barb. Nores on S. 15.
(3) But the free uſage of this Faculty in ſuch and ſuch Cafes, is an effect of the Permiſſion of the Sovereign Legiſlator, who
has impoſed Laws upon us in giving us a Being. See Note 2. above,
(4) See Evagrius's Ecclef. Hift. Lib. III. Chap. 39. about a Tribuce called Chryſargyrus, which was levied upon the Curtezans,
and which was aboliſhed by Anaſtaſius, as our Author there obſerves.
(5) See what is ſaid Lib. VIII. Chap. 1. §. 3.
(6 in all the Editions of Pufendorf it is printed Volente do fubente ( and therefore the Engliſh Tranſlator renders chem,
the expreſ Command ) but the Author would have ſaid, Vetante aut fubente, as the Connection of the Diſcourſe requires, for
Velle do fubere fignify the ſame thing.
(7) See Lib. V. Chap. XII. §. 17. following.
but
CHAP. V1. Of Law in general.
75
ſon of the Law reacheth, and to whom (1) the call'd from Baniſhment, lay under
but a moſt unjuſt Deſign (1). As to the ſubject ſame happen to be denied to Perſons of the like
Matters which employ the particular Species of Condition, Occaſion ſhould be given to Anger
Laws, we ſhall more conveniently conſider them and Reſentment, whilft Men of equal Circum-
in their proper place.
ſtances are not admitted to equal Favours. Plus
XVII. To know who is capable of being 0 tarch hath recorded ſeveral Inſtances of very nice
blig'd by a Law, we need ſeek no further than to and ſubtle Diſpenſations. As when Agefilaus fu-
the Right of the Legiſlator; which certainly takes ſpended the Laws for one Day, with this Form,
in all thoſe who are ſubject to his Command. Let the Laws feep to Day (a) (4); to hinder thoſe
What Perſons the Legiſlator intended to oblige is Perſons who had fled in an Engagement, from ſuf-
plain enough from the Law itſelf. For in all Laws fering the uſual Diſgrace. So when Demetrius de-
it is ſignified whom they concern ; either by ex ſir'd to be admitted at once into all the Athenian
preſs Determination, made ſometimes by a gene- Myſteries, whereas it had ever been a Cuſtom to ce-
ral Sign, ſometimes by a Reſtriction to certain In- lebrate the Greater Myſteries in November, and the
dividuals ; or elſe by ſome Condition or Reaſon, Leſſer in August, Stratocles publiſh'd a Decree, that
which a Subject finding in himſelf, at the ſame the Month March, in which Demetrius viſited Athens,
time apprehends that he therefore ſtands oblig'd by ſhould be callid, firſt November, and then August
ſuch a Law. Regularly then, a Law obligeth all (b). What the ſame Author reports of Demofthenes
Perſons ſubject to the Legiſlator, whom the Rea- is more plauſible: Demofthenes, upon his being re-
a Pecuniary
Matter of it may be applied. For otherwiſe, Tu- Muld, and the Law forbidding that he ſhould be
mults and Confuſions would continually ariſe a- entirely diſcharg'd from it without Payment,
mongſt Subjects, the Prevention of which Diſor- they invented this way of eluding the Law; they
ders was a principal Reaſon why Laws were firſt had a Cuſtom of giving Money to the Man who
introduc’d. And therefore no body ſhall be e- prepar'd and adorn'd the Altar, at the Time of Sa-
ſteem'd exempted from a Law, unleſs he can ſhew crificing to Jupiter the Deliverer : This Office, and
his peculiar Privilege. Yet this indeed frequently this Money, they decreed Demofthenes ; and under
happens, that a Man may be exempted from the that Pretence allotted him fifty Talents, the Sum
Obligation of a Law, after the Time of its being in which he had been amerc'd. The Lacedemoni-
enacted, and this we call being diſpens’d with. For if ans made uſe of much fuch another Evaſion in
the Legiſlator may rightly abrogate or repeal a Law, Reference to Lyfander. It was a Law amongſt
he may as fairly ſuſpend the Effect of it in ſome them, that no Man ſhould bear the ſame Office a-
certain Perfon. Diſpenſation differs from Equity(2), bove once (5) but now reſolving to let Lyſander
with which it is generally confounded, in this Ré- have again the Chief Power in a Naval Expediti-
ſpect, that the former cannot be granted, but by on, they gave (6) Aracus the Formal Command of
one endued with Legiſlative Power; whereas an the Fleet, but join'd Lyſander with him (7) in a
inferior Miniſter of Juſtice, not only may, but private Station, with expreſs Orders, That the Ge-
ought to apply the latter ; ſo that if he follow the neral ſhould never act contrary to his Advice (c). I
ftria Letter of the Law, in a Caſe where there is know not whether the Spaniſh Cuſtom mention'd
room for an Equitable Conſtruction, he ſhall be by Naudaus (d), may not be reckon'd likewiſe a-
judg’d to act contrary to the Mind and Intention mongſt theſe nice Permiſſions : 'In Spain, he ſays,
of the Legiſlator. Diſpenſations therefore depend when they deem a Man to be guilty of Trea-
on the free Grace of the Lawgiver, but Equity on ſon, they appoint Judges to ſit on him in ſecret,
the Office and Duty of the fudge. In granting who form a Proceſs, and condemn him to ſuffer
Diſpenſations (3), great Prudence is to be usºd, 'Death, after which they ſeek by any means to
left by a promiſcuous Indulgence, the Force and put the Sentence in Execution. And this they
Authority of Law be enfeebled: or left, if the practiſe as a Salvo to their Conſciences; that


C
(a) Plutarch Aphthegmı Lacon. do Ageſil. Appian. Libye. (6) Idem Demetr. in Alexandr. p. 672, do 679. (c) Diodor. Sic.
113.6. 100. Plutarch Lyſand. Add. Valer. Max. l. 6. c. 5. S. 3. (d) Coups d'Eſtat. cap. 3. p. 193.
Mr. Barb. Nores upon S. XVI, and XVII,
(1) It is neceſſary that what is forbidden ſhould produce ſome Advantage, either to thoſe for whom the Law is made, or to
others, for 'tis not reaſonable that the natural Liberty of Subjects ſhould be reſtrain'd, and no Profit thereby redound to any body,
De Offic. Hom.do Civ. lib. 1. ch. 2. S. 8. See what is ſaid, Lib. 7.ch. 9. S. 5. Laws are made only about ſuch things as com-
monly happen, as is obſerved above, Chap. 2. S: 5. Again, as to what concerns our natural Right in particular, we ought to
take Notice, with Mr. Titius (Obſerv. 59.) 'That natural Right, which is Obligatory, has for its Object ſuch Actions as carry with
them fome Convenience, or Inconvenience, neceſſary for the human Nature, as hath been proved, Lib. 2. Ch. 3. As for all
other Actions, which we may call indifferent, the natural Right of fimple Permiſſion leaves every one at Liberty to diſpoſe of
them as he pleaſes. But moſt of theſe laſt are for the moſt part regulated in different Manners, by the poſitive Laws of GOD
and Man, as the Legiſlative Power ſees convenient.
(1) See Lib. 5. Ch. 12. 8. 10. following.
(2) Şee Lib. 5. Ch. 11. S. 21. following, as alſo his Abridgment of the Duties of a Man and Citizen, Lib. i. ch. 2, 5, 10. Farther,
to ſpeak properly, what he here calls Equity, ought to be called, An Interpretation according to Equity; as Titius ſpeaks, Obſerv.62.
See a little Treatiſe of Grotius's upon this Subject, printed in the latt:er Editions of his Book De jure Bél. do Pac. which is en-
titled, De Æquitate, indulgentia do facilitate.
(3) See Mr. Bayle, in his Divers Obſervations about a Comet, p.455. and the Second Volume of his Parrhaſana, p. 178.
(4) The Greek of Plutarch is, Και φήσας, όπ τες νόμος δεί σήμερgν εάν καθα'δειν, εκ δε σήμωegν ημέρας κυρίες και σεις το
λοιπόν.
(3) The Word, bis, being omited in all the Editions of this Author, ſpoils the Senſe quite ; and therefore as the French Tranſla-
tor adds, deux fois, ſo the Engliſh puts in, above once.
(5) Here's a great Miſtake in all the Editions of the Original, putting Aratus, the Name of a General of the Achaans, a very
different Perſon from this Admiral, for Aracus.
(7) The Latin lays, Privatus, as the Engliſh Tranſlator renders, but ſurely our Author meant, Legatus, a Deputy ; but however
that be, 'tis ſafeſt to follow Plutarch, who calls him, Emsaadis, i. e. Prafe&tus Claſis, a Counter-Admiral, at leaſt. See further
about theſe ſorts of intricate Diſpenſations, in Montagne’s Eſ ays,lib. 1. ch. 22,
L 2
they

76
Of Law in general.
Book I.

C
mind by the Pleaſure of Superiors. We may im-
they may not be accus'd of Injuſtice in puniſh Some are us’d to call Poſitive Law by the Name
ing Men capically, without a legal Knowledge of Voluntary : Not as if the Law of Nature (2) did
of their Crime.'
not proceed from the Will of God, but becauſe no
XVIII. Law may be beſt divided, with reference to Poſitive Law had ſuch an Agreeableneſs with hu-
its Original, into Divine and Human; the former ha man Nature, as to be neceſſary in gen ral for the
ving God, and the latter Man for its Author. But Preſervation of Mankind, or, as to be known and
if we conſider Law as it bears a neceſſary Agree- diſcover'd without the Help of expreſs and peculi-
ableneſs to the ſubject (1) Matter, in this Reſpect ar Promulgation. And therefore the Reaſons of
we divide it into Natural and Poſitive. The for- this Law are not to be drawn from the general
mer is that which is ſo exactly fitted to ſuit with the Condition of human Race, but from the particu-
Rational and Social Nature of Man, that human lar, and ſometimes the (3) temporary Advantage
Kind cannot maintain an honeſt and a peaceful of ſeparate Communities. So that upon the Uni-
Fellowſhip without it: or, in other words, that on of Men in Societies, they are fix'd and deter-
fulneſs ariſing from its internal Efficacy, towards prove our Notion of Poſitive Law by that Paſſage
Men in General. Though there be alſo a farther of Ariſtotle (a). (4), where he ſays, That Laws pro-
Reaſon of this Denomination; in as much as this ceeding from inſtitution and Uſefulneſs, bear some Re-
Law may be found out and known by the ordina- ſemblance to Meaſures : For the Meaſures of Wine and
ry Sagacity of Men, and from the Conſideration Corn, for inſtance, are not every where the same; but
of human Nature in Common.
A greater where the Merchants buy, and leffer where they
Poſitive Law is that which doth not by any Sell.
means flow from the general Condition of human Divine Law is again divided into Natural and
Nature, but from the ſole Pleaſure of the Law- Poſitive (b): But Human Law ſtrictly taken, is on-
giver ; tho theſe Laws ought likewiſe to have their ly Poſitive (s), of the particular species, we ſhalı
Reaſon and their Uſes; in reference to that parti- diſcourſe in their Place (6).
cular Society for which they are enacted. oldth
ni() Vide, Ethic. ad Nicom. I. 5. c. 10. Et Vid. l. 15. D. de condit. Inſtit. (b) Divine Natural Law is diſtinguiſh'd from
Poſitive, becauſe this is alterable by the Authority that made it, That is not, but is Eternal and Immutable. See what our Author
ſays in Book 2. chap. 3. §. 4.
- Como Smet
Mr. Barb. NOTES on S. XVIII. :
(1) The Text here is either corrupted or nor clear. It may be rectified partly from his Elements of Univerſal Civil Law, where
our Author thus expreſſes himſelf; Quantum autem ad Materiam, quadam cum ipſa humana Natura, quâ talis, conditione manifeſte
congruunt, & ex ea fluunt, i. e. As to the Marter (of Laws] ſome plainly agree with the human Nature, as ſuch, and others flow
from it. And partly from his Abridgment of the Duties of a Man and Citizen, Lib. 1. Chap. 2. S. 15. where he ſays, Sed ſi Lex
Sconfideretur prout neceſſariam, & univerſalem, Congruentiam cum hominibus, vel minus habet, doc. i. e. If the Law be conſidered,
as it has a neceſſary and univerſal Agreement with Men, though in the loweſt Degree, doc. The Engliſh Tranſlator is ſo far
from clearing this Paſſage that he has made it more obſcure, by taking it in a wrong Senſe, for he underſtands by the Word
Subje&tis, in the Original, the Subje&t. or Matter of the Law, whereas the Author plainly treats of the Perſons upon whom a Law
is impoſed.
(2) See what we have ſaid, Chap. I. $.4. and Chap. 2. 5. 6. with the Notes.
(3) The Author here cites Vitellius's Reflection, Morem accommodari, prout conducat, i. e. To accommodate the Cuſtom to the Inte-
reſt of State. Tacit. Annal. lib. 12. ch. 6.
(4) Αriftotle's Words are, Τα δε, κατα σωθήκίω, και το συμφέρον το δικαίων, όμοια όξιν ταϊς μέτρους, 8 παναχα ίσα τα
οιγηρα, και σιτηρά μέτρα, αλλ' ε μ ων&ναι μείζω, ε Α' πωλέσιν ελάω.
(5) This is an effential and diſtinguiſhed Character between Laws Natural and Poſitive, the firſt are immutable, ſo juft every
way, that no Authority can change or abrogate them lawfully; whereas Poſitive Laws are ſo arbitrary, that as a lawful authority
may eſtabliſh them, ſo he may change and aboliſh them as he ſees Occafion.
(6) Grotius ( Lib. 1. Chap. 1. S. 15.) affirms, That there is a Divine Voluntary Right, that obliges all Men, as ſoon as they come
Tuficiently to their knowledge; and adds, Thar chis Right hath been publiſhed upon three Occaſions, viz. I. Ar the Creation of
our firſt parents. 2. After the general Deluge. 3. By the Goſpel. This great Man did not proceed to Particulars; but, ſome
Years ſince, Mr. Thomaſius, Profeſſor at Hall in Saxony, compoſed a Syſtem of the Divine Poſitive Univerſal Laws, in his In-
ſtitutions of Divine Civil Law, printed in 1702. But this able Lawyer being none of thoſe who count it an Honour to defend
what they have once afferted, right or wrong, did, at length, own himſelf miſtaken, and pulled down his own Building, when
he found the Foundation to be weak. See his Sele&t Obſervations, made at Hall, Tom. 6. Obſervat. 27. and his Principles of the
Law of Nature and Nations, drawn from Common Senſe, printed in 1705, and again in 1708. Others affirm, That all the Laws
which relate to a Divine Poſitive Right, either oblige all Men in all Ages, Places, and Nations, or may be deduced tromi Principles
of Natural Right, which we ſhall prove true as to lome, in Lib. 6. chap. I. $. 35. note 2.
CH A P.
CHAP. VII.
77
Of the Qualities of Moral Actions.
CH A P. VII.
.
Of the Qualities of Moral ACTIONS.
The CONTENTS of every Section of the ſeventh Chapter.
1. How many are the Qualities of Moral Actions.
IX. Juſtice diſtributive.
II. A neceſſary, luwful Action.
X. Commutative.
III. The Goodneſ or Evil of Actions, in what they | XI. Grotius's Opinion about Fuſtice.
confift.
1 XII. Ariſtotle's Fudgment upon the ſame.
IV. A good A&tion must have all things requiſite, an | XIII. Hobbes's Opinion of Fuſtice and Wrong.
evil one is made fuch, by wanting one Condition. XIV. What is an unjust Action.
V. GOD can't be the Cauſe of any
Evil.
XV. What an Injury is.
VI. Juſtice is either in Perſons or Actions. XVI. An Injury is done by Deſign and Choice only,
VII. What is the Juſtice of Actions.
where the Nature of a Fault is treated on.
VIII. Univerſal and particular Juſtice.
XVII. No Wrong is done to any Man, that wills it.


0
U R next Buſineſs is to conſider the qualities Now by common Uſage of Speech, not only thoſe
of Moral Actions: Now according to theſe, Things are ſaid to be Lawful, which neither Di-
Actions are ſaid to be Neceſſary, or not Neceſſary, vine nor Human Law forbids, and which there-
Lawful or Allow'd, and Unlawful or Diſallow'd, fore may be undertaken without Sin or Blame, but
Good or Evil, Just or Unjust. So that the Quali- likewiſe thoſe things which altho' prohibited by
ties of Moral Action muſt be Neceſſity, Licenſe the Laws of Nature, yet the Laws of particular
or Allowance, and the Oppoſites of theſe, which States fo far permit, as not to impoſe a Penalty on
want proper Names; together with Goodneſs and them in human Cogniſance ; leaving them to eve-
Illneſs, Juſtice and Injuſtice (1).
ry Man's private Conſcience and Honour (3).
II. A neceſſary Action is that which by vertue of Tully's Obfervation is admirable to this purpoſe, It
the Law or the Command of a Superior, the Per- is not lawful (ſays he) for any Man to fin;
but we com-
ſon to whom the Law or the Command is given, mit an Error in Speech, whilſt we ſay that ſuch a thing
is bound abſolutely to perform. For in this con- is lawful, which is indeed tolerated or allow’d. The
fifts the Neceflity of Moral A&tions, that they former kind of Actions we may call perfectly lawful
ought not to be omitted, nor yet to be done in the latter imperfectly. So (4) Lampridius reports of the
another Manner than what is enjoin'd ; though by Emperor Severus, that he had ſome Thoughts of prohi-
our Natural Power and Strength we are able either biting the publik Profeſſors of Lewdneſs : But he feared
to omit them or to do them in another Manner, this might rather increaſe Debauchery in Private; Men
Yet it is uſual for the Lawyers to ſay abſolutely, naturally affecting what is unlawful, and purſuing with
that a thing which wants only this Moral Necefíi- Eagerneſ and Fury any Practice which hath been forbidden
ty, cannot be done (a). To a Neceſſary Action is op- them.
pos'd not only a Forbidden Action, exprefly prohi But farther than this, we ſometimes in a very
bited by the Laws or other Orders of the Superior, looſe Senſe, term even thoſe Things lawful, which
but likewiſe a Lawful or an Allow'd Action, which all Men agree and confeſs to be the moſt baſe and
the Laws neither command nor forbid, but leave vile; whenſoever the Perſon who performs them
it to every Man's Pleaſure, whether he will under- is Maſter of ſo much Strength, as to be too big for
take or decline ic (2). Cicero pro Balb. There are human Puniſhment or Reprehenſion. Senec. de
ſome things which we ought not to do, tho' we might Clement. l. 1. c. 18. Tho' we commonly say, All things
lawfully do them : But on the other hand, whatever we are lawful towards a Slave, yet there are indeed ſome
cannot lawfully do, it's very certain we ought not to do. things which common Nature forbids us to act towards

(a) Nam quæ fa&ta ladunt pietatem, Exiſtimationem, verecundiam noftram, do (ut generaliter dixerim) contra bonos mores fiunt : nec
facere nos poſſe credendum est. Dig. 1. 28. c. 7.
Mr. Barbeyrac's NOTES.
(1) The Morality of Human A&tions may be confider'd two ways, 1. In the Manner the Law diſpoſes them, in which Reſpect
they are either permiſſive or neceffary. The firſt are ſuch as the Law gives Right pofitively to do, if we will, and not, as our
Author affirms, upon the account of which the Law orders a thing to be done in ſuch a Manner, for this Definition agrees to
ſuch Actions only, as are allowed by an imperfect Permiſſion, of which he ſpeaks a little lower. 2. As they agree, or diſagree
with the Law, and fo Actions are either good, or bad, or indifferent. This Diviſion ſeems more exact than our Author's Titius
Obferv. 64, 65. See our Notes on Chap. 6. 8. 2. Note 2. and our Notes on this Chap. 9. 5. Note 5.
(1) Nam qua fa&ta, &c. For we ought to ſuppoſe thoſe things impoſſible to be done, which prejudice Piery, Reputation,
Honour, and, in general, good Manners do forbid or hinder.
(2) A 78 é mexend çaí Tis moeiv toñTQ ' N un molhv xexcóru tey i. e. What a Man is not ordered to do, that he is not hindred
from doing. Liban. Declam. 16. The Author himſelf cites this Paffage in his later Editions.
(3) There are ſome things not to be done, tho' lawful, but whatever is not lawful, that ought not to be done. Tully's Words
are, Etfi peccare nemini licet, ſed Sermonis errore labimur; 'id enim licere dicimus, quod cuique conceditur. Tuſc. Quæſt. lib. 5. c. 19.
(4) This Quotation making little to our Author's Purpoſe, and containing ſomething obſcene in it
, 'cis no Damage to omit it,
and inſtead of it put ſome of the Sayings of the Roman Lawyers, viz. Digeſt. lib. 50. tit. 17. De divers
. Reg: furiſ. Leg. 144. Every
thing is not honest that is lawful. And Leg. 198. We ought to conſider, not only what is lawful, but what is alſo honeſt. Mr. Stryck Prcom
feffor at Hall in Saxony, has publiſhed a Diſcourſe of the Law of what's lawful, but not honeſt, reprinted in 1704 in 4to, where
we may find a very particular Account of Things permitted and authorized by Cuſtom, which in themſelves are contrary to natu-
ral Honeſty, and much more co Chriſtianity, altho' the Author had but little of his Matter from any certain Places,



A Max
78
Of the Qualities of Moral Actions. BOOKI.
a Man, one of our own Species and Condition (5). or the End or the Circumſtances of the Action; an
III. We call that Aétion good Morally, (for the Action is Morally Good or Evil for one of theſe
other kind of Goodneſs, term’d Natural or Mate- Reaſons, either becauſe the Agent is ſo diſpos’d as
rial, by which a Thing or an Action tends to the the Law requires him to be, or otherwiſe ; or,
Benefit or Perfection of any one (1), is explain'd becauſe the Action is directed towards the
proper
in another place. Tho' we muſt obſerve, that in Object, with that End, and thoſe Circumſtances
the Precepts of Natural Law, and in moſt Civil which the Law preſcribes, or with the contrary.
Conſtitutions, it goes along with this Moral Good- But here it muſt be obſerved, that to make an
neſs, and amongſt rational Creatures (2), ſeems to Adion good, 'tis neceſſary, thac it not only con-
give the firſt Spring or Occaſion to it) or in Moral form to the Law in all its material Requiſites and
Eftimation, which is agreeable to the Law, and Conditions; but likewiſe, that in reſpect of its For-
that Action evil, which is diſagreeable. In as much mality, it be exercis’d, not out of Ignorance, or
as the ratio formalis
, the proper and diſtinguiſhing any other Cauſe, beſides the Intention of paying
Nature of the Goodneſs or Illneſs of Actions, con Obedience to the Law. And therefore an Action,
fifts in a Relation determining them towards a di- tho' otherwiſe on the account of the Matter of it
re&tive Rule; and this Rule is what we term a Good, may, by reaſon of the bad Intention of the
Law ; (under which Name we here mean a neces- Agent, be imputed to him as Evil. For a Man
fitating, and not a permitting Law, and if it be Hu- who deſigning an ill Thing doth a good one, hath
man we ſuppoſe it not contrary to thoſe which by no means a Title to any Reward for his service:
are Divine,) (3) for when a deſign'd Action is As he in Valerius Maximus (a) who intending to
formed according to the Rule preſcrib’d, and ex- kill Fafon, luckily broke his Impoſthume. Upon
a{tly agrees with it, it is ſaid to be Good: Where the ſame Account, he who miſpends his lawful
as if it is undertaken againſt the preſcrib'd Rule, Power in ill Service, is guilty of Sin: as a Judge,
or varies from it, it is calld Evil; and, in one ſuppoſe, who abuſeth his Authority of puniſhing
Word, Sin. Now it is plain, that any directing Offenders
, to the ſatisfying his own private Re-
Rule, for inſtance, the Mariner's Compaſs is ſaid fentments. For which Reaſon the Carthaginians
to be the Cauſe of his right Sailing, and of his com- fentenc'd their Generals to Death, if they had un-
ing to the Port, not ſo much in regard that the dertaken an Enterprize, tho' with good Succeſs,
Ship takes a Courſe falling in with its Direction, yet with ill Counſel and Deſign (1). Liv. 38.
as becauſe the Pilot guides himſelf by it in mana C. 48. Val. Max. l. 2. c. 7. 8. 1. Extern. But, on the
ging the Steerage: In like manner, a Law is ſaid other ſide, an Aäion as to the Matter of it Evil,
to be the Cauſe of Rectitude in an Action, not cannot (2) by vertue of the honeft Intention of the
when the Action, however intended, is agreeable Agent, be turn'd into Good. Whence the Reaſon
to it; but when the Action proceeds from the Di- is clear, why a Man cannot uſe his own Sins as
Ctate of the Law, and from ſome Dependance on Means for the Attainment of any virtuous End,
it; that is, from an Intention of paying Obedi- or why we muſt not do Evil that Good may come of it,
ence to its Injunctions. Whence, if a Man by Rom. iii. 8. For to render an Action Evil, it's
chance, or without thinking of any Obedience to ſufficient that it be incongruous to the Law, in
a Law, performs a thing preſcrib'd by that Law, any one Point or Condition, whether Material or
he may indeed be faid to have done rightly, or not Formal : that is, If either the Diſpoſition of the A-
ill, in a negative, rather than in a poſitive Senſe, gent, or the Object, or the End, or any one of
but he cannot be ſaid to have done morally well, the Circumſtances contradict what the Law directs.
no more than one that by diſcharging a Gun at 'Tis a moſt vain Diſtinction of ſome Men, when
venture and random hath brought down a Bird, they affirm that an Action, as to the Subſtance of
can be ſaid to have ſhot skilfully, and like a Marks- the Work, may be good, altho' the End required
by the Law be not intended by the Agent. For
IV. Farther, ſince the Law determines either the End makes a main part of the very Eſſence of
the Diſpoſition of the Agent, or elſe the Object, a Moral Action, in as much as it enters into the

man.
(a) L. I. c. 8. f. 6. Extern.
(5) The whole Chapter treating of a Maſter's Power over his Slaves, is worth peruſing.
(1) See Book 1. cbap. 4. §. 4. and Book 2. chap. 3. §. 21.
(2) Seneca's Words, Ep. 120. may ſerve as an excellent Comment upon our Author's Notion, Nobis videtur Obſervatio collegiffe,
& rerum fæpe fa&tarum inter ſe Collatio per analogiam noſtro intelle&tu do honeftum do bonum judicante --
Noveramus Corporis
Sanitatem, ex hâc Cogitamus esſe aliquam et Animi. Noveramus corporis vires, ex his Collegimus esse, & animi Robur. Aliqua benigna
falta, aliqua humana, aliqua fortia, nos obſtupefecerant, hæc cæpimus tanquam perfeita mirari, i.e.“ Our Notions of Goodneſs and
“ Honeſty are the Reſult of the Reflections and Compariſons, which the Mind makes by Analogy upon ſuch things as it often
« lees and obſerves. We know that there is ſuch a Thing as Health of the Body, and from thence we conclude, that there muſt
“ be alſo an Health of the Soul. We know that the Body hath Force and Strength, and from thence we infer char the Soul alſo
“ hath ics Force. We are wrapped with Admiration at the view of ſome eminent Acts of Goodneſs, Humanity, and Courage,
“and we begin to look upon chem as Parterns of Perfection."
(3) The two following Periods not being well placed in the Original, muſt be a little varied to make the Diſcourſe coherent,
(1) Theſe rio Paffages cited by our Author are nothing to the Purpoſe; and, tho' clear in themſelves, are miſtaken by him in
this whole Diſcourſe. The firſt is that of Livy, where Kn. Manlius, anſwering thoſe that conteſted with him about the Honour of
the Triumph, under a Prerence that he had managed the War againſt the Gallogreci, or Galatians, with ſufficient Conduct, ſays,
That he was ſure to carry his Cauſe, tho' it were not before a Roman, but Carthaginian Senate, who are ſaid to crucify their Ge-
nerals, if they acted by bad Advice, tho' they were ſucceſsful, for ſo are his Words, In quo confiderem equidem cauſé meæ, eti-
amfi non apud Romanum, ſed Carthaginenſem Senatum agerem, ubi in crucem tolli imperatores dicuntur, fi proſpero eventupravo confilio gesle-
runt. The other Paſſage is out of Val. Maximus, whoſe words are much the ſame about this Cuſtom at Carthage. Mr. Pufendorf
believes that theſe Words, pravo Confilio, fignify, with a bad Intention, whereas they plainly fignify, without taking good Meaſures;
as Montagne rightly takes them, when he ſays, The Carthaginians puniſh'd the ill Conduct of their Captains, although they made a-
mends for it by their good Succeſs. Efſays, lib. 3.ch. 8. p. 693. Fol.
(2) What is faulty, 'cis no matrer with what Intention it is done. Publ. Syr. ſee thie next Chap. 9. 2, 3.
Intention

Chap.VII. Of the Qualities of Moral A&tions.
79
Intention, which is a Principle of the greateſt Moral Things. GOD, the Author of all natural
Force in determining the Action's Quality. Hence Beings, need not, and ought not to be eſteem'd
it is finful to direct an Action, not only to an ill the Author and Cauſe of all Moral, (3) ail Noti-
End, but likewiſe to any other End, than what is onal, and all artificial Beings. Some looſe Think-
preſcrib'd by the Law, Matth. vi. 5. Juv. Sut. 8. ers muſt needs be touch'd with a ſtrange Itch of
9. 215. Caufa facit rem diffimilem. Nor is an ac- Wit, when they imagine they have given us an
compliſh'd Fact only, or ſuch as hath obrain'd its extraordinary Specinien of their Philoſophical
End, accounted Wickedneſs, but even a com- Subtlety, in numbring God among the Cauſes of
menc'd Enormity: And this latter is by Civil Laws our finning. For a Man who hath the leaſt In-
ſometimes puniſh'd with equal, or however with fight into the Conſtitution of Morality, will judge
little leſs Severity than the former ; according as nothing more abſurd, than to enquire whether or
they find it neceſſary to repreſs a Villany in its firſt no He be the Cauſe of an Action, who forbids it by
Riſe and Appearance. Senec. de Conſtant. Sapient. a Law, and puniſheth it for being done after his
6.7. All Villanies before the Accompliſhment of the Work Prohibition. As for God's concurring to the
are compleat in reſpect of the Guilt.
Phyſical part of an Agion, he can with no more
V. This Goodneſs and this Evil of Adions as Reaſon be on this Account ftill’d the Author of
they conſiſt formally in ſuch an Agreeableneſs or Sin, than one who hath furniſh'd an Artificer with
Diſagreeableneſs to the Law, as we have been Materials to work upon, can be reckon'd the Cauſe
ſpeaking of, ſo they depend entirely on him as
entirely on him as of a Deformity in his unskilful Work. Where-
their efficient Cauſe, who performs an Action fore, to uſe the Term or Name of Cauſe in a Siga
which the Law either commands or forbids. For nification fo very improper, and ſo remote from
his Determination ſo conſtitutes the A&tion in the common Senſe, is to join our Pride and Ambition
Rank of Moral Beings, that it muſt be imputed to in offering an Irreverence to the Divine Nature.
him, and to him only (1). And therefore thoſe Philo Judæus de profug. (4) What greater Inſtance of
Men have torinented themſelves with a needleſs Blaſphemy con there be, than to make GOD, and not
Fear, who, left they ſhould ſeem to make God our ſelves, the Author of Evil? Maxim. Tyr. Diſertat.
Almighty the Author of Sin, have plac'd the ratio 3. (5) Theſe dreadful Names of Furies, Fates, and
formalis of an Evil A&tion, in the Privation of Con- Deſtinies, what are they but the pecious Pleas and Ex-
formity to the Law(2). For tho' the Poſition of any cuſes of human Wickedneſs, by the Means of which we
Form neceſſarily infers the Privation or Abſence are want to charge our own Faults upon the Providence of
of the contrary Form; yet how miſtaken muſt he Heaven? When, alas! theſe, and all the other Miniſters
be in his Opinion, who would ſeek for the Eilence of Terror, and over-ruling Neceflity, which we ſo often
of a Thing in this Privation. Nor will be find him- complain of, are Monsters of our own making, and ſuch
ſelf any great Proficient in Wiſdom, who hath ar as we carry about us in our Breaſt. Idem. Differt. 25.
riv'd to know that Straightneſs is the Privation of Let the Wretch who fins upon Choice, take all
Crookedneſs, and Crookedneſs the Privation of the Guilt upon himſelf, and let God be clearly
Straightneſs. But theſe Inventions and theſe Fears juſtified (6).
of Men, both proceeded from their Ignorance of VI. We are, in the next place, to diſcourſe of
Juſtice,
(3) Seneca's Words, Omnia Scelera, etiam ante effe&tum Operis, quantum culpæ ſatis est, perfe&ta ſunt. The Scholars of Zoraſtres
ſays, We muſt baniſh every Sin from onr Hands, Tongue and Thought. In Sadder Portâ 71. They add elſewhere (Portâ 25.) as alſo
from our Eyes. See what this Author ſays afterwards, Lib. 8.c.3. S. 14
S.S. (1) That is, as the immediate Author of the action; for, as our Author himſelf (hews ar large, Chap. 5. §. 14, the Actions
of another may alſo ſometimes be imputed to a Perfon.
(2) This Notion much reſembles Ariſtotle's Opinion of the Principles of natural Bodies, an.ong which he ranks Privation. See
the Art of Thinking, Part III. Chap. 18. §. 1. where the Author ſeems to have taken the Expreſſion from Montagne's Esays, Lib. 2.
chap 12. P. 393. Fol.
(3) The Author underſtands by this the Operations of our Underſtanding.
(4) Que poteft ene blaſphemia gravior, quàm contendere, non ex nobis mala provenire, fed ex Deo.
(5) The Greek 15, Εοικε δε ταυτά τα ονόμασα έναν μοχθηρίας ανθρωπίνης, ευφη μοι Σπος ροφα, αναθεν και αυτής ή αήαν τα
Δαιμονίω, και τώς μοίραις, Εριννύσι-.-.-. 'Η δε Εριννυς, και η Αίσα, και οι Δαίμονες, και όσα άλλα διανοίας ήμαρτεμένης (for fo
it muſt be read, with 'Heinſius inſtead of oiua pukuns) ivórcles tv ev Lux ñ ve Saguévido
(6) Our Author treats here only of Actions morally good or bad, i. e. fully agreeable, or plainly contrary to ſome Law in Force.
But he ought alſo to have ſpoke ſomething of Adions morally indifferent, i.e. which every one may lawfully do or nor do, according
as he pleaſes, by vertue of a Law of ſimple Permiſſion. See 5.1. Note 1. Thar chen we may have a true Norion of this laſt fore
of Actions, we muſt obferve, that the Term Indifferent may have three Significations, which ought to be carefully diſtinguiſhºd,
for, 1. If we ſay, that an Adion may be indifferently either commanded, or forbidden, or permited by the Laiv, even in this
Senſe we muſt acknowledge all human Actions are not indifferent; as for Example, Man-Slaughter can't be commanded nor per-
mitted, becauſe it is ſo great a Prejudice to the human Nature 2. But if we conſider our Actions, as Morions purely Phyſical,
and with a Relation to any Rule, in one word, without a Regard to any Law, 'tis certain that in this Reſpect all Actions are in-
different. See Chap. 2. 5. 6. aforegoing. Laſtly, (and 'tis in this Senſe that our Author creats of it here) if we conſider an Acti-
on as freely permitted by the Law. This is an Action morally indifferent, which we may in a negative Senſe call good, becauſe
it is not evil. Now there can be no Difficulty in judging of theſe fort of Actions; for what elſe can thoſe things be, which are
neither commanded nor forbidden, by any Law, Divine or Human, and which we have Power to do, or not do, as we ſee fit?
The Schoolmen faoliſhly affirm, That Dancing (for Example) confider'd abſtractly in itſelf, is morally indifferent; but it ceaſes to
be fo in the very Moment when we look upon it as a particular Action, done by luch, or fuchi a Perſon, at ſuch, or fuch a Time,
in fuch, or ſuch a Place, with ſuch, or ſuch an Intention, for an Action thus ftripped of all its Circumſtances is a meer Chimæra
and Nothing. So that if Dancing be morally indifferent, it muſt be fo with relation to certain Circumſtances of Perfons, Times
and Places. It fignifies nothing to ſay that every particular 4 ction that is done with a good or bad Intention, ought to be good or bad,
for this Concluſion is not abſolutely true.
An Action done with a good Intention is good only in a negative Senſe, that is to ſay,
either not evil, or indifferent, fo far as ſome law has formally preſcribed it, for there are a great number of Actions done for a
are not commanded by any Law, and conſequently can't paſs for ſuch as are good poſitively. This is almoſt
all taken out of Mr. Titius's Obſerv. 65. 'Tis long ago fince that learned Englishman Thomas Gataker ſpake fomething like this a-
gainſt the vain Subtleties of the Schoolmen, about Actions indifferent. See his Treatife of the Uſe and Nature of Lors, printed
at London, 1619. Chap. 5. S. 4. where he mentions the famous Diſtinction of the Stoicks, aud cites, among others, a Paſſage of
Aulus Gellius, who has the ſame Notions, which I ſhall ſet down here, because he exprefles the fame thing well in it, Omnia, que




73

in
80
Of the Qualities of Moral Adions. BOOK I.
Fuſtice, concerning which, it ought to be our firſt ſtice, or Timerouſneſs, is not to be reckon d'in the Num-
Obſervation, that the Signification of this Term ber of bad Men, ſo neither is he who hath perform’d Some
as applied (1) to Perſons, is very different from Atts of the oppoſite Virtues, immediately to be rank'd a-
that, by which it denotes an Attribute of Actions. mongſt the Good. But the true Judgment of Perſons is
For when we uſe (2) it with regard to Perfons, to to be made, not from any ſhort period of acting, but
be fuit, imports as much as to delight in acting from the whole Courſe and Tenor of Life
. Agathias
juſtly, to ſtudy after Juſtice, or to endeavour in (1.5.) hath left a very judicious Cenſure of thoſe
every thing to do what is juſt : And to be Unjujt, People in Conſtantinople, who upon a terrible Earth-
is to neglect Juſtice, or to think it ſhould be mea- quake in the City, had contended with each other
ſur'd, not according as it is really due, but as it in the Performance of Good and Pious Works, All
ſuits with preſent Advantage. So that a Fuft Man this they did (ſays he) for a certain Time; ſo long as the
may perform ſeveral Unjuſt, Actions (3), and an Un- Impreſſion of the Fright was freſh and ſtrong upon their
juft Man ſeveral Juſt Actions. For he is to be e- Apprehenfion. But when the Calamity began to abate,
ſteem'd a Juſt Perſon, who doth Juſt Things in moft of them return’d to their former Looſeneſs of Practice.
Obedience to the Law (4), and Unjuſt Things on Now ſuch a ſudden Motion of the Mind, ſuch a Fit, as
ly thro' Infirmity; and he an Unjuſt Perſon, who it were, of Goodneſ, cannot be callid true Fuffice, or ſo-
doth Juſt Things in Fear of the Puniſhment an lid and fruitful Piety, ſuch as is wont to be form’d in
nex'd to the Law, and Unjuſt Things either out Men by right Opinions and conſtant Application;
but an
of Perverſeneſs and Pravity of Mind, or for the unnatural Diſguiſe, an ill-contriv'd Stratagem, a meer
procuring of Glory, or any other ſeeming Bene- buckſtering in Holineſs, taken up as a Preſervative d-
fir. Hobbes de Cive, c. 3.8.5. And to the fame Pur- gainſt the Common Evil. Virtue upon Neceſſity is juſt as
poſe Pliny, in his Panegyr.c.56. A Wicked Man may do long liv'd as the Fear that occafions it. Hence it ap-
many Things, in themſelves commendable : But to deſerve pears, that the Definition of (a) Juſtice ſo much
Commendation in his own Perſon, is the Prerogative of a in vogue with the Roman Lawyers, in which they
Man truly Good and Virtuous. (5) Philemon in Strabo. call it, A Conſtant and perpetual Inclination to give every
(7) one their Due, belongs to the Juſtice of Perſons, not
to that of Actions. And this we take to be very
He is not Juſt who barely acts no Wrong,
Inconvenient: In as much as the Science of Law
But he who ſpares, when fraught with Power to is chiefly employ'd about the Juſtice of Actions, and
Nor will the Conqueſt of a Puny Luft (harm: toucheth on the Juſtice of Perſons only by the bye,
Enſure his Triumph; but a Strength of Soul
and in ſome few Particulars.
Fit to ſuſtain the united Force of Sin,
VII. The Juſtice of Perſons differs from their
d And foil Temptation in its laſt Attack.
Goodneſ chiefly in this, that Goodneſ barely denotes
Solid in Worth, and generous Honeſty. a Conformity to the Law, but Juſtice farther in-
Nor bent with crooked Guile, nor brib'd with cludes a Reſpect to thoſe Perſons towards whom
- (Praiſe, the (1) A&tion is perform’d. So that we apprehend
He courts the Virtue and contemns the Fear. that Action to be Fuſt, which with full Deſign
and Intention is applied to the Perſon to whom it
Architas de Viro bono & beato (6). As he who was due. And therefore Juſtice, in this Senſe,
bath ſome time or other been guilty of Immodeſty, Inju- will be nothing elſe, but the right Application of



Serm. 9.
(a) Inſtit. I. 1. tit. 1. Dig. 1. 1. tit. 1. l. 10.
in rebus humanis fiunt, ficut Dodi cenſuerunt, aut honeſta ſunt, aut turpia ; wherein he omits the third Member of the Diviſion, as
other good Authors do, for the Reaſon which Mr. Noodt gives us, in his Book entitled Probabilia furis, i. e. The Probabilities of
the Law, lib. 1. ch. 12. Que fuâ vi re&ta aut honeſta ſunt, ut fidem colere, patriam defendere, amicos deligere, ea fieri oportet, five im-
peres Pater, five non imperet. Sed que his contraria, quaque turpia do omnino iniqua ſunt, ea nè ſi imperet quidem. Qua vero in medio
ſunt d d Græcis tûm edc ooey, tum uéou appellantur, ut in militiam ire, rus colere, bonores capeſſere, cauſas defendere, uxorem ducere,
uti juſſum proficiſci, accerfitum Venire, quoniam da hác do his fimilia per ſe ipſa neque honeſta sunt, neque turpia, ſed proinde ut å
nobis aguntur, ita ipſis a&tionibus aut probanda ſunt, aut reprehendenda, propterea in ejuſmodi omnium rerum generihus Patri parendum
eſſe cenſent, doc. Lib. 2. chap. 7. ſee allo Velthuyſen of the Principles of Juſtice and Decency, p. 19, &c.
$.6. (1) This is not only true concerning Juſtice, but alſo concerning all Morality in general, i.e. concerning every Virtue
and Vice.
(2) We muſt indiſputably treat of the Juſtice of Actions, before that of Perſons, becauſe this laſt ſuppoſes the firſt, as appears
by the Definition which our Author gives of it. The way to underſtand theſe Expreſſions, to do juſtly, to delight in Justice, is
not to be ignorant what Juſtice is.
(3) Laudabilia multa etiam mali faciunt, ipſe laudari, niſi Optimus non poteſt, Plin. Panegyr. chap. 56. Sinners themſelves do
many things commendable, but only the beſt Men deſerve Commendation.
(4) There is alſo a Caſe when we may do juftly in a negative Senſe, i. e. not unjuſtly, altho' the Thing in itſelf be nor Juft. This
happens when a Man is really in an Error, or ignorant, as it often comes to paſs, both in reſpect to Right and Fact. On this
Ground Grotius maintains, and that with good Reaſon, That War may ſometimes be juſt on both ſides. See his De Jure belli do
Pacis, lib. 2. ch. 23. $. 3. and what ſhall be ſaid Lib. 8 ch. 6. §. 4. note 2.
(5) The Greek is, ’Avsp. Di norsós cstu, sxó un diseñv *Έχειν διωά μοβ και κρατών αζημίως.
Αλλ' οςς αδικείν άμμο και βέλεται: ουδ' ός και ταύτα πάνα διατηρεί μόνον.
Ουδ' ες τα μικρά λαμβάνειν αποχετο
'Αλλ' όσες άδoλoν γνησίαν τ' έχων φύσιν
'Αλλ' ες τα μεγάλα καρτερεί μη λαμβάνων, Ειναι δίκαια, και ε δοκείν είναι θέλει.
(6) Ου τοι δε ακολασαίνονlα έν ίσι καίροις, έδε ή αδικάστανα, έδε ή αποδει λιάσανα ες των κακώς τακλέον άνδρας, έδε μεντων
τέτωντι κατορθώσανίας ές των αγαθώς --- ταν δε αληθιναν κείσιν υπόθ' ένα κάιρον αποβλέπονται, εδ' επί χρόνε τι πλάθο, αλλ'
67 novca Brov.
(7) Juſtitia eſt conſtans do perpetua volunt as jus ſuum cuique tribuendi, Inftit. lib. 1. tit. 1. de Juſtitia. & jure Digeſt. lib. 1. tit. I.
S. 10. See the Explication of this Definition, in Mr. Noodt's Probabilia Juris. lib. 3. chap. 1, 2.
S. 7. (1) There is not properly any difference between Goodneſs and Juſtice, for, as our Author himſelf ſhews us above, the
Idea of a good Action contains in it the Notion of an Object agrecable. We may better diſtinguiſh good Actions according to the
threefold Object which they may have, viz. GOD, other Men, and our Selves. Thoſe that have GOD for their Object, are com-
prized under the general Name of Piety: Thoſe chat have other Men for their Object are contained in the Term of Juſtice; and
thoſe that directly regard our Selves may be reduced to Temperance or Maderation. This Diviſion, which is the moſt common,
ſeems to be the plaineſt and moſt natural.
the

Buddaus (Elem. Phil. pra&t. Parx?
CHAP. VII. Of the Qualities of Moral Actions. 81
the Action to the Perſon. We ſhall chooſe to di- ed by more ſevere Courſes and Means; whereas
vide Juſtice chiefly with Regard to the Matrer in regard to the latter, it is meer Folly to apply a
which is owing, or which bears a Relation to an- Remedy more grievous than the Diſeaſe. Beſides,
other by way of Debt or Due.
there uſually paſſeth between Men fome Covenant
But we muſt obſerve beforehand, that ſome A- about the former, but not about the latter ; and
ctions may be call'd pure and others mixt. The conſequently, ſince they are left to every Man's
former are perform’d and finiſh'd by the Motion Conſcience and Modeſty, it would be very im-
of ſome of our Powers applied in ſuch a certain proper to extort them violently from another (5),
Manner to the Obje&t; of this kind are Honouring, unleſs in Caſes of extraordinary Neceſſity. In
Paying Duty and Reſpect, Loving, Hating, Com- Civil Communities this Difference ariſeth from the
forting, Praiſing, Diſpraiſing, &c. the Product of particular Laws and Conftitutions allowing or dif-
all which is nothing elſe but the cauſing the Ob- allowing an Action in ſuch or ſuch Cafes. Tho'
ject to be really affected, or to be thought affected moſt Commonwealths do in theſe Points follow
by the Action in a certain way, either with Com- the Tract of the Law of Nature ; except where
placency or Diſſatisfaction. But the latter, or the they have ſome particular Reaſons adviſing the
Mixt Aštions, are join’d wirh the transferring of contrary.
fome Advantage or Diſadvantage on the Perſon VIII. When then, we exhibit to another either
towards whom they are exercis'd; and therefore Actions or Things due to him only by Imperfet
their Effect conſiſts principally in ſome Operati- Right, or when we exerciſe towards another Acti-
on, either profiting or hurting another Man in his ons not coming under the Head of ftri&t Com-
Perſon or in his Goods (2). Again, there are
Again, there are merce, we are ſaid to have obſerv'd, General or U-
ſome Actions which make a great part of Com- niverſal Juſtice. As when a Man fupplies another
merce amongſt Men, and are valu'd at a certain with his Counſel, Goods, or Help, as he hath
Rate; others have no Price or Rate impos'd upon need ; or when he performs the Offices of Piery,
them: Concerning which Difference we ſhall en- Reverence, Gratitude, Humanity or Beneficence
quire farther hereafter (3). Laſtly, we muſt take towards thoſe to whom he is in Duty bound to pay
notice that ſome Things are Due to us Perfectly, o- them. This Kind of Juſtice only enjoins that the
thers Imperfectly. Thoſe Things which are due to Debt be paid, not conſidering whether the Thing
us in the former Manner, if voluntary Payment given in Payment be equal to the Reaſon why it
be not made, we may conſtrain the Debtor to dif- is due or not. Thus a Man fufficiently diſchar-
charge, if we live in a natural State, by Arms and geth the Duty of Gratitude, if he make all the Re-
main Strength; if we are Members of the ſame turn that his Abilities will allow; tho” perhaps the
Civil Society, by preferring an Action againſt him Kindneſs he hath receiv'd were in Value much
in Courts of Juſtice. But what is due to us in the greater (1.)
latter way, we ought neither to claim by Methods But when we perforin towards another Actions
of Hoftility, nor to extort by legal Proceſs
. It falling under Commerce, or ſuch as transfer any
is uſual (4) with Latin Authors, to expreſs Per- thing on another, to which he had Perfect Right,
fet Right by the help of the Word Suus, as when this is callid Particular Juſtice.
they ſay a Man claims ſuch a thing, Suo jure, By bis IX. Now this Perfect Right accrues (1) either to
own Right. Now that ſome things ſhould be thus ſingle Perſons by a Covenant (tacit or expreſs)
due to us Perfetly, and others Imperfe&tly, the Rea made with ſome Society, in order to their being
ſon amongłt thoſe who live in a State of natural admitted Members of it; or to a Society by a Co-
Liberty is, the great Diverſity of Precepts in Na venant made with fingle Perſons, in order to the
ture's Laws, of which ſome conduce to the very receiving them into the fame Community: Or,
Being, others only to the well-being of Society: laſtly, from (2) Pacts made between any Par-
And therefore; ſince there's leſs Neceſſity of per- ties concerning Things or Actions falling under
forming theſe latter than the former, Reaſon Commerce, When we pay thoſe Things which
ſhews that the former may be requir'd and execut are due upon the Pact of a Society with a Mem-
(2) For Example, a Gift, a Loan, a Theft, Murder, &c.
(3) See Book 5. Chap. I. S. 5.
(4) As for Example, when we ſay, ille ſuo Jure hoc poftulat : fee Grotius, lib. 1. ch. 1. S: 5. with Gronovius's firſt Note. And
we alſo ſay ourſelves, we muſt render to every one their own; we wrong no Man, when we require our own.
(5) We could not otherwiſe diſcern ſuch as are truly good, from ſuch as do juſtly againſt their will, if there were no Duty
to which we might be conſtrained.
S. 8. (1) It is nevertheleſs no great Virtue to own an Obligation to ſuch as have done us Good, provided that the Acknowledg-
ment does not much ſurpaſs in its Effects, che Obligation we have to our Benefactors, for, according to the Maxim of JESUS
CHRIST, If we love thoſe only, that love us, what Thauks have you? Matth. vi. 46.
8. 9. (1) This Diviſion is not complear, becauſe it contains in it the Obligation we are in to another, by vertue of ſome En-
gagement that we are entred into, or of a Society to which we are joined. Now there are Things which our Neighbour may re-
quire of us in ſtrictneſs, without any relation to a particular Society, Promiſe, or Convention ; as not to do them any Injury, to
make good a Damage done them, and to look upon them as Beings equal with ourſelves. It would pleaſe me berrer, with Mr.
into that which Equals uſe one towards another, and that which Superiors exerciſe towards their Inferiors. The firſt may be ſub-
divided into ſeveral ſorts, viz. The Duties which a Man may in ſtrictneſs exact of all other Men, and a Citizen of every
Perſon
ſubject to the ſame Government. The other contains divers Kinds, as there are divers Kinds of societies, where ſome command
and others obey, which is much the ſame as Grotius's fus Re&torium do Æquatorium, lib. 1. ch. 1. 5. 3. The Epithec of Univerſal,
given to the other general ſort of Juſtice, is alſo very improper. We had berter call it Imperfe&t Juftice.
(2) Our Author here uſes the Term Convention, but it muſt be underſtood in a large Senſe, which comprehends perfect Pro-
miſes, of which he ſpake Lib. 3. Chap. 5. 6. 7. which confer upon him, to whom the Promiſe is made, a perfect Right to require
the Accompliſhment. For in theſe ſort of Promiſes, the Acceptation of him to whom the Promiſe is made, is a kind of Engage-
mene on his part. See Lib. 3. Chap. 5. §. 1.
M
ber,






82
Of the Qualities of Moral A&ions. Воок І.
ber, or of a Member with a Society (3), upon the Goods diſtribute least to him that deſerves most, and
Accounts juſt now ſpecified, we are ſaid to exer- most to him that deſerves leaft, provided I
рау
ciſe Diſtributive Juiſtice. For whenever a Man is what I bargain'd. for ; and ufeth the Authority of
receiv'd into a Society, a Pact is either exprelly, our Saviour, in the XXth of St. Matt. ver. 13, &c.
or, at leaſt, tacitely made between the Society and to confirm his Opinion : All chis, if rightly con-
the Member now to be introduc'd, by which the ſider'd, makes nothing to the Purpoſe. For in the
Society engageth to give him a juſt Share aud Pro- place of Scripture above-cited, it is ſhewn indeed
portion of the Goods which it enjoys as a common that he doth not offend againſt Commutative Ju-
Body: and the Member promiſech, that he will ſtice (which governs the Contracts about Hire,
bear his proper and equal part of thoſe Burdens &c.) who out of his Liberality gives to fome &
which conduce to the Preſervation of the Society, larger Reward than their Service deſerves; or who,
confider'd as ſuch. The exact Determination of to the Wages due upon this Commutative Juſtice
the proper Share of Goods to be aflign’d to the adds ſomething out of free Bounty, which is com-
Member, is made according to the Rule and Va- prehended under Univerſal Juſtice. But how doth
lue of the Pains or Charges employ'd by him, to this affect our Diſtributing Juſtice, the Buſineſs of
wards preſerving the Common Society, in propor- which is nothing elſe, but to aſſign to many Per-
tion to the Pains or Charges contributed by the o- ſons their proper Shares of a Thing, to which all
ther Members. On the other hand, the Determi- of them have a Perfect, though (in regard to the
nation of the proper Share of Burthens to be laid Quantity) an Unequal Right? And then as for the
on the Member, is made according to the Value of Word Diſtributing, which occurs in the Inſtance al-
the Benefits receiv'd by him from the Society, ledg’d from Scripture, this doth not in the leaſt
conſider'd in proportion to the Advantages which make the Ad fall under Juſtice, ſtrictly call’d Di-
the reſt of the Members enjoy. Hence, ſince it ſtributive; but only hints that the Labourers were
generally happens, that one Member contributes many, to every one of whom their Wages were to
more towards the Preſervation of the Society than be paid according to commutative Juſtice (5).
another, and that one likewiſe exceeds another in To clear the Doubts rais’d on this Head by Groo
deriving Advantage from it, the Reaſon is very tius, in his firſt Book and firſt Chapter, we need
apparent, why, upon the Suppoſal of many Per- only obſerve, that his (6) Expletive Juſtice doch noc
ſons, and of this Inequality amongſt them, we exactly come up to Commutative, nor his Attributive
ought in the Exerciſe of Diſtributive Juſtice, to to Diſtributive; and that his Diviſion is not found-
obſerve a Comparative Equality : Which conſiſts in ed on the ſame Bottom as ours. For ours is chiefly
this, that what Proportion the Merits of one Per- taken from the Matter which is owing, and from
ſon bear to the Merits of another, ſuch Propor- the Cauſe of owing it; but his from the Manner and
tion ſhall his Reward bear to the other's Reward. the Degree in which a Thing is ow’d. Whence the
(4) For, as Philo Judaus de Monarchia l. 2. p. 640. Reaſon is evident why the parting of Gain in
Ed. Genev. obferves, 'tis high Inequality to give equal Contracts of Societies, is by him referr'd to Exple-
Honours to thoſe who are not equal in Merit. Arrian. tive, and by us to Diſtributive Juſtice. The obſer-
Epictet. I. 3. C. 17. This is a ſettled Law of Nature, ving of (7) Geometrical Proportion in theſe
that he who is more excellent, ſhould on that very account Caſes, is indeed only Accidental ; fince 'tis noe
have a Inrger Share of good Things, than be who is leß. neceſſary, that the Members Mould have contri-
Thus, for inſtance, if Six Things of the fame buted unequal Shares, but they might as well have
Value are to be diſtributed amongſt Caius, Seius, contributed equally, and then in parting the Gains
and Titius, upon Suppoſition, that Titias exceeds a ſimple or ſtrict Equality muſt have been follow'd.
Caius in a triple Proportion, and Seius in a double, As for that Cafe ftated by Grotius, If (8) one Man
Titius ſhall have three, Seims two, and Caius one. only be found fit for a Publick Office, his Reward shall
Nor is it requiſite to this Equality, that the Re- be aſſign'd bim according to Simple, or Arithmetical
ward fully anſwer and come up to the Merits of Proportion; it muſt be farther enquir’d, whether the
the Perſon; but 'tis ſufficient, that what Propor- Man had a Perfect, or (9) Imperfe&t Right to this
tion the Service of the one bears to the Service of Office. If the latter, the Caſe will then belong
the other, the ſame Proportion there ſhould be be to Univerſal Juſtice: If the former, we agree to Gro-
tween their Shares of the Common Benefits. tius's Remark, that the Species of Proportion calld
And the ſame Rule muſt be follow'd in diſtributing Geometrical, is, tho' generally, yet not always fol-
Burthens.
low'd in Diſtributive Juſtice. Nor have we taken
As for what Mr. Hobbes (a) alledgeth, to over- the Difference of our two kinds of Juſtice from
throw this Reffective Equality, that I may of my own their making uſe of a different Proportion. And
(a) De Cive, 3. . 6.
(3) We muſt remember this Reſtriction, for otherwiſe a Society may treat with any one of its Members, as it would treat with
another Society, or as particular Perſons treat one with another.
(4) Philo's Words are, Το γδ τοις τας αξίας ανομοίοις ομοία Σπονέμεν άνισον. Arrian's, Νόμος του φυσικΘ- ή κρείτονα τα
zeiesco naborzew ev x geliwo izi. The true Meaning of which words is, That 'tis a Law of Nature, that good Men, as ſuch,
ñould have the Advantage of Sinners, and if ſo, they are nothing to our Author's Purpoſe.
(5) Hobbes gives another Example, ſee the next Section.
6) Our Author will explain and examine more largely this Definition of Grotius, in $. 11. of this book.
(1) To underſtand what Geometrical Proportion is, the beſt way is to give an Example of it: when I ſay then, Six is co Two,
as Twelve is to Four, there is a Geometrical Proportion ; becauſe Two is as often found in the Number Six, as four is found in
the Number Twelve.
(8) This is to ſuppoſe a Thing impoſſible, (ſays Gronovius the Elder, in his Notes) viz. That all Citizens, one only excepted, ſhould
be equal, which can only happen when they can have but one Noſes Mouth, Eyes, and, in a Word, a Face exaltly alike. See Mr. Vander
Meylin in his Comment on Grotius, Tom. I. p.31.
(9) See Lib. 3. chap. 1. §. 4. following.
fo
&
CHAP. VII. Of the Qualities of Moral Actions. 83
fo, for the other Inſtances of Grotius, the aſſigning even Names and Titles are reckon'd part of our
of Legacies belongs not to Diſtributive Fuſtice, but to Patrimony, and may paſs in Payment to others.)
Univerſal : And when a City or State repays out of the So that if a Man pays me what is my Due by a
Common Stock, what ſome particular Members have ex- PerfeEt Right, he gives me no new Thing, but on-
pended on the publick Account, Commutative Juſtice is ly fills up the place of a Thing which before was
exercis'd, and not Diſtributive. Becanſe the Rea- abſent, and which in the mean time (2) was ſup-
ſon of the Debt ariſeth, not from that Pact by plied by an Action. For Example, a Man who
which the Society firſt admitted the ſaid. Members, hath borrowed a Book out of my Study, when he
but from a particular and a very different Con- reſtores it, doth not properly increaſe my Study,
tract.
but only (3) fills up a Place made empty on his
X. When we exhibit to another Things or Acti- Account. But ſuch things as I have only an Imper-
ons due (1) upon reciprocal Pact, and coming in- fe&t Right to receive, I cannot reckon my own,
to Commerce, this is calld Commutative Juſtice. nor put them into my Patrimony ; ſince they de-
And ſince Pacts of that Kind tend to this Iſſue, pend entirely on the Modeſty and common Ho-
that for a Thing or Action of my own falling un- neſty of another Man, who may not, by any vio-
der Commerce, I receive from another an equi- lent Means, be compelld to pay them.
And
valent Thing or Action, at leaſt ſuch as I eſteem therefore 'twould be ridiculous, if a Beggar, for
equivalent ; the Reaſon is hence obvious, why in Inſtance, ſhould make over to a Shoe-maker, for
this Species of Juſtice a ſimple Equality is requir'd, the Price of a pair of Shoes, an Alms which he
which we commonly call (2) Arithmetical Propor- expects to receive from ſome rich Perſon. Thus
tion, but that the ſtrict Mathematicians will allow then, he who renders to another any thing due by
it that Title we dare not engage. The Thing or Imperfect Right, doth properly attribute, give or
Action then, coming in Commerce to another, add to him ſomewhat which he could not before
For this Reaſon Grotius calls Attribu-
fame Value in Moral Eſtimation. For, the Ob- tive Juſtice che Companion of thoſe Virtues which
jection of Mr. Hobbes (a) that if we fell our own tend to the Benefit and Advantage of others, as
Goods at the higheſt Price that can be, we do no Injury to Liberality, Mercy, Humanity, and the like. For
the Buyer, who inclin’d and conſented to the Bargain, theſe Dues Men receive only by Imperfect Right.
Shall be examin’d at large hereafter (3). As for When he adds to theſe, Providentia rectrix, or
Vindicative Juſtice, which according to our Notion State-Providence, he is, in our Judgment, chiefly
conſtitutes a particular Species, it will be conſi- to be underſtood of the Diſtribution of thoſe Re-
der'd in a more convenient Place (4).
wards, to which the Subjects have only an Imper-
XI. It may be worth our while to take farther feat Right; in which, tho' a greater Liberty may
Notice of (6) Grotius's Opinion concerning Juſtice, be taken than in giving thoſe which are due upon
which he, neglecting the uſual Diſtinction of Ge- Contract, yet it would be, perhaps, moſt adviſea-
neral and Particular, divides into Expletive and At- ble to proportion every Man's Share to his Merits,
tributive. This Difference is founded on the Di- as the fureſt way to prevent Strifes and Complaints.
verſity of that Right which one Man hath to re- (4) Thus Iſocrates (Areopagit.) p. 247, 248. Ed. Pariſ
.
ceive any thing from another, which, as we have obſerves of the old Athenian Miniſters, One Thing
already obſerv'd, is either Perfect or Imperfe£t ; the which prov'd of great Advantage to them in the Ma-
latter being alſo term'd Amplitude, in Oppoſition nagement of the Commonwealth was this ; that whereas
to ftri&t Right. Therefore an Act belongs to Exple- there are two ſorts of Equality, one which gives exactly
tive Juſtice, when we render that to another which the Same Portion to each Man, and another which propor-
is due to him by a Perfe&t Right; but to Attributive tions Mens Shares to their particular Merits, they were
Juſtice, when we render that which is due to him not ignorant which of theſe two was most beneficial to a
only by an Imperfect Right. Now the Reaſon of State : But rejecting that as unjuſt, which dealt out the
theſe two Appellations of Juſtice ſeems to be this ; Same Allotment to good and bad Men without Diſtinction,
whatſoever is due to me by Perfeɛt Right, is con- they choſe the other which aſſigns Honours and Puniſhments
ceiv'd to be already in ſome meaſure my own (i), according as every Man deſerves, for the Šureſt Guide of
and conſequently ſo long as it is withheld, fome- their Proceedings.
what of my own is ſuppos’d to be wanting. (Thus Why Grotius forbore the Uſe of the cominon A-




(a) De Cive, c. 3. S. 6.
(b) L. 1. C. 1. f.8.
S. X. (!) The Engagement is not always mutual. Underſtand this in the Manner I have mention'd before, Lib. 3. ch. 1. S. 3.
(2) This Author obſerves here with Reaſon, that he uſes not the Words Arithmetical Proportion, in the Senſe of the Mathematia
cians, tho' we find that Plutarch, de amore fraterno, uſes it for an Exact Equality, but he ſpeaks of it a little lower, $. 12. proper
ly, when he relates the Opinion of Ariſtotle.
(3) Viz. Lib. 5. Chap. 3. 9. 10.
(4) Viz. Lib. 8. Chap. 3. S. 5.
S. XI. (1) Id apud fe quiſque habere videtur, de quo habet a&tionem, habetur enim quod reti poteſt, i, e. Every one ſeems to be in
poſſeſſion of that for which he may have juſt Action ; for that is poſſeſſed that may be required, Digeſt. Lib. 1. Tit. 16. De ver-
borum ſignificatione Leg. 143.
(2) The Author underſtands by this, either the Act of Engagement into which a Manis entred, or the Right a Man hath to re-
quire his Due, which Right he expreſſes by the Phrafe, To have an Action againſt another.
(3) Gronovius the Father, and Mr.Van der Meylen, in their Nores upon Grotius's Treatiſe, of the Right of War and Peace, affirm,
Thár his Diſtinction bears much the ſame Senſe, as the ordinary one of Juſtice Commutative and Diſtributive, and that, as in Latin
the Word Explere fignifies ſometimes to facisfy, Juſtice Expletive is ſo called, becauſe by the Practice of it we ſatisfy thoſe to
whom we owe any thing which they have a Right to require, by way of Return of what they have received. But all chis is of
little Importance.
(4) Μέγισον δ' αυτούς σωεβάλετο πεις το καλώς οικείν την πόλιν, όπ ολυοϊν ίσο τέτοιν νομιζομένων ή και η μη ταύτον άπασιν Σπο-
γεμίσης, σε πείς παροσήραν έκαςοις,
εκ έγνόεν τέτων την χρησιμωτέρων, αλλά την με ξ αυτών αξιώσαν τας χρησές, και πονηρές
αποδοκιμάζον ως εδικαίαν έσαν τον και κατ' αξίαν έκασον ημώσαν, και κολάζεσαν περενο. But here we muit take nδείce of a
Miſtake in our Author, who has rendred xon
d'Scrar
; præmia, for pænas attribuit, he renders Rewards for Puniſhments.
riſtotelian

M 2
84
Of the qualities of Moral Actions. Воок І.
Equa-
riſtotelian Terms, he himſelf gives this Reaſon, be- properly an Arithmetical Proportion, the third
cauſe the Word Evvenaantixò doth not come up to Number exceeding (5) the ſecond just as much as
the full Import of Expletive ; for, that he who is the ſecond exceeds the firſt (a). Theſe two kinds
poffeſs’d of my Goods ſhould reſtore them again, of Juſtice belong properly and principally to thoſe
doch not proceed from any ouvracyus or (5) Com- who bear ſome high Command in a state. For
mutative Contract, and yet it belongs to Expletive 'tis the Duty and Office of ſuch, and not of pri-
Juſtice : that is, tho' I have a perfe&t Right of re vate Perſons, to distribute the Publick Goods a-
trieving what is my own, from any Poffeffor, yet mongſt the particular Members; and to correct the
my Action is not founded upon any Contract Inequalities which ariſe either in Contracts or (6)
made between us about the Reſtitucion ; but 'tis Crimes, by reducing them to a Parity. It is the
fufficient to my Purpoſe, if I can prove myſelf to Buſineſs of the Judge to reduce thoſe things to an
be the true Maſter and Proprietor of the Thing lity, which upon account of an Inequality are unjuſt.
thus withheld. It is clear then, that there may be The third Species of Juſtice aſſign’d by Ariſtotle,
an Act of Expletive Juſtice without any ovánnay use is Reteliation, which ferves to regulare the Commu-
or Contract." Neither doth the other Term dreve- tations made between Man and Man, by compa-
Pintor) fully anſwer that of Attributive; becauſe it ring Things that are different and unequal, and
ſuppoſeth' a Neceſſity of many Perſons, amongſt reducing them to a Geometrical Proportion. To
whom the Diſtribution is to be made. But now give an Inſtance, were a pair of Shoes to be ex-
Attributive Juſtice may be exercis’d towards a ſin- chang’d for a Horſe, the Queſtion would be, how
gle Perſon, when he alone is fit to receive ſuch an many times the Price of the Horſe contains the
Honour or ſuch a Reward. OF
Price of the Shoes, which ſuppoſing to be twelve
XII Ariſtotle's Opinion concerning the Species times, the Rule of Retaliating or Compenſating is,
of Juſtice, as far as we can apprehend, ſeems to that twelve Pair of Shoes be given for one Horſe
be this
. General Juſtice, which he calls the Univer- (b). And this Species of Juſtice belongs as well
Sal (1) Exerciſe of Virtue towards others, is a Duty to Men of Private as of Publick Capacities. As
which belongs to all Men. Particular Juſtice he for our former Remark, that the other Species af-
divides into three Kinds. Firſt Diſtributive, which fign'd by Ariſtotle, concern'd principally the Magi-
(2) takes in the Partition of Honours or Money, ſtrates and Judges; this will be eaſily granted by
or other things capable of being divided amongſt any who take a cloſer View of his Moral Works ;
the Members of the fame State. Secondly, Cor. For they will find that in ranging and marſhalling
rective, which conſiſts in rectifying (3) Commuta- the Virtues, he had always in his Head the Idea of
tions : And of theſe ſome are Voluntary, others fome Grecian State; in which time all the Subjects
Involuntary. The former are made without Con- had not the ſame Duties to perform, 'tis no won-
ftraint, as Buying and Selling, Hiring and Let- der that he hath given us fome Virtues applicable
ting to Hire, in Loans, Uſury and Suretiſhip. only to Men of particular Quality and Degree.
The latter conſiſts in (4) Crimes, when Men are XIII. Mr.Hobbes (c) hath advanc'd one ſingle No-
forc'd to a Commutation againſt their Wills: For in- tion of Juſtice to comprehend every Kind; ma-
ſtance, when my Goods paſs to a Thief; for then king it nothing elſe bue a keeping of Faith, and
there ariſeth an inequality, he having more, and I fulfilling of Covenants ; which Opinion he bor-
leſs than we ought. The Correction then of this row'd from Epicurus (d). Commutative Juſtice, he
Inequality is made by taking from him what he ſays, takes place in Contracts, as in Buying and Selling,
had above his Due, and reſtoring it to me. Thus, Hiring and Letting to Hire, Lending and Borrowing,
ſuppoſe a Man, by the Fraud of the Seller, gives Exchanging, Bartering, and the like. (1) Diſtributive
Nine Shillings for a thing that is worth but Six; Juſtice (tho' improperly ſo call’d) is, he ſays, the
Three Shillings are to be taken from the Seller and Juſtice of an Arbitrator, when being truſted by them
given to the Buyer, to make an Equality. Now who make him Arbitrator, if he perform his Truff, be
between theſe three Numbers, 3, 6, 9, there is is ſaid to diſtribute to every Man his own. Nor will


(a) Vide Felden ad Grot. l. 1. c. 1. 5. 8. (b) Vid. Ariſtot. Athic. 1. 5. c. 8. & Michael Ephes. in loc. Eund. (c) De Cive, 6,3.8.6,
& Leviath. c. i5. (d) In Diog. Laert. l. 10. circ. fin.
(5) We muſt not take the Term owéanay pict, Exchange, or Contract, in the natural and ordinary Signification, but in the
Senſe that Ariſtotle uſes the VVord. See the next Paragraph, and Gronovius's Nores upon Grotius.
S. XII. (1) Theſe are Ariſtotle's VVords, I wille Siregnosuín o óans destos coa xeñois megszaacy. Ethic. Nicom. lib. 5. chap. 5:
(2) Ariſtotle further goes on and ſays, Tís de xet tad je po Dravoguins έν μέν έσιν , το εν ταϊς διανομείς ή τμής,
κευμάτων, και τ άλλων όσοι μένα τους κοινωνήσει η πολιτείας έν σε, τον τοίς σωαλλάΓαστ διωρθότικον, τότε δε μέρη δυο,
το συναλλαγμάθων τα μεν εκάσια όξιν, τα δε ακέσια, έκέσια τα τοιάδε, οίον οράσις, ωγή δανεισμό, εγγύη, εύσις, παρακα-
Talhun, ultwols---darxowv, &c. ibid.
(3) By the VVord Ewannayre, which fignifies a Contralt, Exchange or Commutarion, Ariſtotle means every Action by ver-
tue of which we are obliged to do any thing to another, whether in preſent, or for the future: In a word, every Affair in which
we may have Commerce one with another. So that we muſt not take this Term in the Senſe that it is commonly uſed in, for we
ſhall afterwards ſee that it is to be taken in a more large Signification, which would extreamly perplex us, if we ſhould follow A-
riſtotle's Notion without Examination, or it were necefíary to know his Idea's of it.
(4) By Crimes, we underſtand, all ſorts of Injury done to another.
(5) This Sentence, which was not in the firſt Edition at all, is ſo very much corrupted in all the others, (the laſt of 1705 nor
excepted) either chro' che Fault of the Printers, or Overſight of the Author, that we can make no Senſe of it his Words are,
Quia Exceſus, quo poſterior numerues priorem ſuperat, ſunt æquales. Doubtleſs he intended to have faid, Exceſſius, quo poſterior nume-
rus ſecundum ſuperat, do excesſus, quo fecundus priorem ſuperat, ſunt Æquales, as the Engliſh and myſelf have tranſlated it. In fine,
an Arithmetical Proportion is found alſo berween four Degrees of Magnitude, of which the firſt exceeds the ſecond, or is ex-
ceeded by it, in an equal Quantity, as the third exeeeds the fourth, or is exceeded by it; as for Example, five is to ren, as ſeven
is to two.
(6) So Ariſtotle ſpeaks, "25€ To Senov
rozog čvorov öv iodhledy Theği T ó sexesis: Ariſt. Ethic. ad Nicom. lib. 5. chap. 8.
§. XIII. (1) We ought to obſerve, Thac Mr. Hobbes owns no Equality to be obſerv'd as to the price of Things, which are
the Matter of Contracts. See his Leviathan, Chap. 15.
he



CHAP. VII. Of the Qualities of Moral Actions. . 85
he allow any other Equality to be obſerv'd but jury, is not only acquir’d by Covenant, but was
this, that ſince we are all equal by Nature, one given at firſt by Nature, without the Intervention
Man ought not to arrogate to himſelf more Right of any human Act: And ſo the Aſſertion, that an
than he allows another, unleſs he hath obtain'da Injury can be done to no Man unleſs we have
greater Right than ordinary, by the Intervention transfer'd (3) ſomething on him by Covenant or
of Covenants. Farther, ſince, according to his Gift, is falſe and unreaſonable.
Sentiments, an Injury, or an Unjuſt A&tion, or The other Poſition of Mr. Hobbes (c), that Ju-
Omiſſion, is nothing elſe but the Violation of a ftice as well as Property owes its Original to Civil
Covenant ; he hence infers, that we cannot offer Conſtitutions, we ſhall hereafter conſider and re-
an Injury to a Man, unleſs we have before cove- fute.
nanted with him. This Affertion is founded on Indeed ſo far is it from being rational to reſolve
his old Maxim, of the Right of every Man to all all Juſtice into Performance of Covenants, that,
Things
, which he hath ſtretch'd far beyond its juft on the contrary, before we can know whether any
Limits; ſo that he imagines, before any Covenant Covenant is to be perform’d, we ought to be cer-
is made, by which one Man might transfer his tain that it was entred upon, either by the Com-
Right to another ; every Man hath a Right of do- mand, or with the Permiſſion of the Laws of Na-
ing to others what he pleaſeth ; and thus, only ture; that is, that it was juſtly made (d)..
uſing his Right, he cannot be ſaid to commit an From what hath been here offer'd, it is farther
Injury (a). But we ſhall by and by (2) ſhew, that evident, that altho' otherwiſe Damage and Injury
this Right of every Mon to all Things can be extend are very different things, and though it be poſſible
ed to no farther Senfe than this, That Nature al- that (4) the Injury of an A&ion may redound to
lows a Man to uſe all ſuch Means as Reaſon ſhall one Man, and the Damage to another ; yet the
judge conducible to his firm and laſting Preferva- Inference which Mr. Hobbes draws from this Con-
tion: As indeed Mr. Hobbes himſelf in his Defini- fideration will not hold, that a bare Damage, and
tion of Right (b), inſerts the Uſe of Reaſon. But not an Injury is done to him, who is either hurt
now found Reaſon will never adviſe us, out of or hath ſomething taken from him, by a Man
our own Pleaſure and Humour, to put ſuch Af- with whom he had paſs’d no Covenant. Nor do
fronts on another, as cannot but provoke him to the Inſtances which he brings to countenance this
War, or to a reciprocal Deſire of hurting us. Be- Conjecture, make very much to the Purpoſe (e).
fides it implies a manifeſt Contradiction to ſay, When the Maſter
, ſays he, commands his Servant to give
that upon the Suppofal of many Men equal in Money, or to do a Kindneſs to a third Perſon; if it be o-
Rights, each of them hath a Right to all Things ; mitted, the Injury is done to the Maſter, but the Da-
ſince the Right of one Man to all Things, if it mage to the third Perſon. But indeed, if the Servant
hath any Effect, muft extinguiſh the Rights of the does not pay the Money which is due as he is or-
reft ; and if the Right hath no Effect upon the o- der’d, the Creditor ſhall ſuffer (5) no Damage ſince
thers, it is uſeleſs, abſurd, and ridiculous; For his Action remains good againſt the Maſter. Nor,
in Moral Account, not to be, and not to be effe&tual, if a Servant being commanded to do a Kindneſs to
are much the ſame. And indeed, how can we calí another Man, fails in performing it, ſhall the other
that a Right, which another may oppoſe with an Man incur any Damage: Tho' he is indeed guilty
equal Right? Who would ſay, I had the Right of Theft, or the like Crime, if he intercept and
of commanding a Man, if he, by the ſame Right, keep for his own Uſe, what he ought, on his
might deſpiſe my Orders ? Or, that I had a Maſter's Account, to have deliver'd to others. For,
Right of beating another, when he too had a beſides that from the not receiving of a Kindneſs
Right of returning my Blows, and, if he pleas’d, which is not ftrialy due, Damage properly fo
with Advantage and Increaſe ? 'Tis certain there- call'd cannot ariſe (f), the other Perſon may com-
fore, that he that doth theſe Things to another, plain to the Mafter, who will be ſure to compel
hath no Right of doing them, and conſequently the Servant to his Duty. And tho' we ſuppoſe the
is injurious. On the contrary, the other Party Servant to have been never ſo far from doing an
hath a Right that ſuch Things ſhould not be put Injury to the third Perſon, yet for all this, 'tis cer-
upon him, and is therefore injur'd. Thus we ſee, tain he did not what by Right he ought to have
that ſuch Right as being violated produceth an In- done; becauſe he affords the other Man ſufficient

(a) Vid. Gaffend. Syntagm. Epicur.par. 3. c. 26, 27. (b) De Cive, c. I. $. 7. (c) Lev, 6.15. (d) Dr. Cumberland de LL.
c. 8. 8.6. (ej De Civé, c.3. j. 4. (f) Vid. Grot. l. 2. c. 17. 1. 2.
(2) Viz. Lib. 3. Chap. 5. 5. 3.
(3) This Expreſſion of Mr. Hobbes is founded upon his great Principle, That every Man hath a Right to every Thing; for,
according to him, in every Engagemene we yield to another the Right which we had to certain Things, and to break an Agree-
ment is to require, in ſome meaſure, what we had granted.
(4) This ought to be underſtood either of one and the ſame Action, in which ſeveral have concurred, but ſo as that ſome have
acted without an evil Intention, and others with a Deſign to injure; or of an Action done by a ſingle Perſon, but in ſuch a Mad-
ner as that the Effect redounds to ſeveral others, and in Reſpect to ſome it is an Injury, but in Reſpect to others it is a ſingle Da-
mage, as if a Man, deſigning to kill another, he ſays or hurts a third Perſon, contrary to his Intention.
(3) He may receive one at leaſt for the preſent, if he had a neceſſary Occaſion for it, and becauſe he had it not in hand, he
ſuſtained ſome Lofs
, cr loft an Occaſion of getting ſome Advantage. Further, it may happen, that his Maſter might become al-
together inſolvent, or not in a Capacity of paying for a long time, when any of theſe Inconveniencies happen from this, that a
Maſter has given Money to his Servant to pay his Creditor, the creditor has a full Right to require, that the Servant pay him that
Şum, as a Thing belonging to him, tho’ he knows nothing of his Commiſſion ; for the Servant, by keeping the Money, does whar
in him lies to cauſe the creditor to loſe his Debt. We may alſo add, the Deceit of the Servant has fruſtrated the Liberality of
his Maſter, for tho' theſe works of Charity are in their own Principle nor rigorouſly due, yet from
the Moment that a Maſter de-
termines to do ſome good to the Poor, and he is actually kept oue of that Money, that ſhould enable him to give, the Servant, by
keeping it, robs the Poor of it, as much as if he had already received it ; for Men have a true Right to that which is lawfully
given, in reſpect of the Donor, inſomuch as that he can't demand it again, unleſs upon ſome extraordinary Reaſons. See Book 5.
Chap. 6. 8. 1. Note 3. following.
Grounds
86
Of the Qualities of Moral Actions. BOOKI.
Grounds of a Complaint againſt him. His other denying him any Good which he had a fair Title
Inſtance Mr. Hobbes thus propoſeth in his Levia to require. (1) For good Things are of that Na-
than; C. 15. p.75. Private Men may remit to one a ture, that they may be given to any Man without
nother their Debtsy but not Robberies, or other Violences a Reaſon, provided a Third Perſon is not defraud-
whereby they are endamag’d: Becauſe the detaining of a ed thereby : And the Evils likewiſe which a Man
Debt is an Injury only to themſelves, but Robbery and hath merited, we may without Injury withhold
Violence are Injuries to the Perſon of the Commonwealth. from him, if at the ſame time we do not enda-
Which we are willing enough to admit, provided mage others by our Forbearance. An unjuſt Adi-
he will not hence infer, that in Crimes an Injury on, therefore, either brings upon another Man
is not likewiſe done to the particular Perſon who what it ought not to bring upon him, or denies
is hurt. But as he propoſeth the ſame in his Book and withholds what it ought to give him. For the
De Cive, C. 3. f. 4. it is by no means to be endur’d. Denial or omiſſion of an Aétion, is, in Moral Ac-
He ſays, that in a State, if any one hurts another, count, itſelf an Action.
with whom he hath not Covenanted, be damageth the
Party on whom he brings the Evil, but he doth an Injury XV. But an Unjuſt A&tion, proceeding from
only to him who holds the Sovereign Power in the State. Intention, and treſpaſſing on the perfect Right of
For, if one of my Fellow-Subjects hurts me by another, is, in one Word, call’d Injury
. Which if
Violence, doth he offer an Injury to the King only we would exactly ſtate, we muſt again obſerve,
and not to me? Or ſuppoſe we ſhould grant, as that a Man may be hurt three ways; either, if he
Mr. Hobbes deſires, that when Men live in a Na- be denied what he ought to have (a), or if that
tural Liberty, each of them hath a Right to all which he now hath for his own be taken from
things, yet will this hold good amongſt the Mem- him, or if ſome Evil be put on him by another,
bers of the fame Republick, who own one com who had no juſt Right of doing it. As to the
mon Maſter? As to what he ſubjoins, that if the firſt of theſe ways, things may be ſaid to be due
Perſon who receiv'd the Damage, ſhould accuſe the other to a Man, either by the bare Law (1) of Nature,
of injuring him, he would be anſwer'd in this manner, yet ſo as that he hath no perfect Right to them;
What are you to me? Why ſhould I act according to your of which kind, are the Offices of Humanity, Bea
Pleaſure, rather than my own, ſince I don't kinder you neficence, and Gratitude: Or elſe by Covenant,
from acting by your own Will, rather than by mine? and that either ſuch as is expreſs and particular,
Tis ſo far from being true, that if no particular Co-
or ſuch as is containd under our Obligation to
venants have interven'd, this way of Speaking will not Civil Laws, by which we engage ourſelves to per-
be free from Reprehenfion, that we ſhould rather ima- form thoſe things towards others, which the Laws
gine a Man to be out of his Senſes, who ſhould command us to exhibit. If things of the latter
hope by ſuch a way of arguing to ſatisfy the Com- kind are denied a Man, an Injury is properly done;
plaints of one whom he had hurt. Yet one thing but there is no proper Injury in the Denial of
Mr. Hobbes hath well remark'd, that the Term of things which belong to the former kind; tho
Injuſtice ſignifies with reference to the Law, but the there be a Sin indeed committed againſt the Law
Term of Injury with reference both to the Law, and to of Nature. Yet neither doth the Law of Nature
the particular Perſon. For, when an Unjust thing itſelf allow of compelling another by Violence to
is done, all may call that unjust, or it is unjust to pay theſe Duties, (eſpecially if the compelling
all. But an Injury may have been done, not to me, Party have no Power and Authority over the
or to him, but to a third Perſon, and ſometimes other;) unleſs upon urgent Neceſſity : Since the
to no private Subject, but to the State only; as Nature and Property of thoſe Offices requires that
when a Man is kill'd in a Duel, for Inſtance, upon they be perform’d voluntarily, and without the
a fair Challenge. For in this Caſe, the Party who Motive of Fear. Thus far therefore, and no far-
receiy'd the Hurt cannot complain of having an ther, will the Maxim of Mr. Hobbes hold true, That
Injury done him, ſince he himſelf agreed to the an Injury cannot be done, but to a Man with whom a
Chance of the Unlawful Combat : But the Le- Covenant has been made. But when we ftudiouſly
giſlator may, however, proſecute the Survivor for and induſtriouſly bring an Evil on another Man,
tranſgreſſing his Prohibition.
unconſenting and unprovoking, either by taking
from him any Good which he poffefſeth, or by
XIV. Having arriv’d to know what Juſtice is, poſitively inflicting on him an Evil; in theſe Caſes
we may eaſily ſettle our Notions of Injuſtice, and an Injury is always done, whether a Covenant
of its ſeveral ſpecies. An Action, then, is Unjust, hath interven'd or not. For Nature hath given
either when we apply it deſignedly, to a Perſon this Right to every Man, that no Evil be offer'd
to whom we ow'd a different A&tion, or when we him from another Man, without his own preced-
deny another ſomewhat which was really his due. ing Demerit : Nor is it allowable for any Perſon,
That is, We are equally guilty of a Breach of Ju- unleſs when provok'd, to hurt another, any farther
ſtice, by doing any Evil to another which we had than the due Exerciſe of Government ſhall require.
no Right to do, and by taking from another, or We add, unleſ provok’d, becauſe to make an Ati-



(a) Marc. Anton. 1. 9. 1. 5. It often happens that there may be Injuſtice in the not doing of a thing, as well as in the doing.
S. XIV. (1) The three following Sentences ſeem ill placed in the Original, and therefore ought to be altered, and another
Expreſſion lorened, becauſe it contains a needleſs Repetition.
S. xv. (1) Ex mero Jure Nature, by which our Author underſtands what he elſewhere calls abſolute Duties, that is to ſay,
ſuch as are grounded upon the Original Conſtitution of our Nature, and which every Man is obliged to perform to another Man,
conſidered preciſely, as ſuch, in oppoſition to thoſe who ſuppoſe ſome other Eſtabliſhment, or other human Act, and which they
call Duties conditional. See Lib. II. Chap. III. S. the laſt following,
on
CHAP.VII. Of the Qualities of Moral Actions. 87

on properly Injurious, there is requir'd the zo zes or Treſpaſſes, he then makes a kind of Subdiviſion, and
Tepor, that it be done first : For Ariſtotle tells us, (2) tells us, that thoſe which are done beſide Reaſon are
that he who returns another what he first Suffer’d from Misfortunes, and thoſe which are done not beſide Reaſon
bim, cannot be ſaid to do an Injury.
are properly Tralles. Now shof Things are beſide Red-
XVI. In an Injury, properly ſo call’d, it is far- Son wbich bappen very rarely end unexpectedly; as if a
ther requir’d, that it proceed from Intention and Man by ſuddenly thruſting open a Door" frould ſtrike bis
deliberate Deſign of hurting or vexing another
. Father
, who ſtood accidentally behind it'; or if, whilst
And therefore the Harm which is done caſually in be is exerciſing himſelf at his Favelin,
place thro
Ignorance and Unwillingly, is not us’d to come which none are wont to paß, he wounds fome body who
under the Name of Injury. As ſuppoſe a Soldier happen'd to come by when the Weapon was flying. For
that is exerciſing himſelf
, in the uſual Place, at theſe, and ſuch like Accidents, fall out beyond all Thought
caſting his Javelin, ſhould ſtrike it through a Man and Expectation. But Actions done inleed ignorantly,
that paſs’d by accidentally : Or, if a Lopper of but not beſide Likelihood or Probability, are call'd Trel-
Trees ſhould let fall a Bough upon a Perſon who paſſes. For, a Man who exerciſing his Bow and Arrows
had no Right to be in that Place. So Antiphon, in a Place commonly frequented, ſtrikes any Perſon, doth
an ancient Orator, defends a Young-man who had properly treſpaſ; as a Man is then always ſaid to do,
unfortunately kill'd a Child with a Caſt of his when he himſelf was the Principle and Cauſe of the Un-
Javelin: (i) He was engagʻd, ſays he, in no forbid- luckineſ of the Action : But now the Man whom we
den Exerciſe, but in his proper and neceſſary Buſineß ; Speak of
, was no doubt the Principle and Cauſe of what
nor by himſelf, but with his Companions in Arms: Nor he did, ſince he (4) voluntarily chose ſuch a place to shoot
did he ſtrike the Youth by an unskilful Throw, at a di- in, where it was probable fome body or other would paß
ſtance from the Mark : but he guided the Weapon with by.
exact Art and Care, and was so far from doing any An 'Apágrupa, or Treſpaß of this Nature, is what
thing amiſ, that he rather ſuffer'd in having his Throw the Civilians properly term Culpa, or a Fault;
spoiled, and in being hindred from hitting what he ſo which they ſay is committed through Negligence or
well aim'd at.
Unskilfulneſ, when a Man is either careleſs or ig-
Ariſtotle (2) tells us, That the doing of a thing juſtly norant of ſuch things as he ought, and was able,
or unjuſtly, depends on its being done voluntarily or in to have known, and to have obſerv'd. Of Fault's
voluntarily. And again, That when we do a Hurt they make three Degrees, anſwerable to the De-
beſide Reaſon, it is only a Misfortune ; but when we do grees of Diligence, by the Omiſſion of which the
a Hurt which is not beſide Reaſon, and yet not out of Fault is contracted. Firſt then, there is a (5) ge-
Malice, then we commit an "Aquesturice, or Treſpaß. neral Diligence of all Men, not work'd out by
On which Place Michael of Epheſus thus comments: Labour and Wit, but deriv'd, as it were, from
Of Hurts, Some are done out of ignorance and against common Senſe. Next to this, there is a Diligence
our Wills, others with our Knowledge and Conſent. more improv'd (6) proper to every Man in his
Thoſe which are done out of Ignorance, are again divided own Affairs; and which is requir'd by Nature in
into ſuch as are done without any Likelihood, and beſide all the Management of Human Life, according to
Expectation; and ſuch as are done, tho' involuntarily, yet each perſon's Capacity and Parts. Laſtly, there
not befide all Expectation and Probability. Therefore after is a Diligence of the greateſt Exactneſs and
the Philofopher hath ſaid, that all Hurts proceeding from Accuracy, us’d only by the moſt knowing and
Ignorance fall under the general Names (3) of Errors experienc'd Men G) in their own Buſineſs and
OBEY
.
Omiſſion.
(2) O 28 dón'éma. Je, xj ri d'UTò év117010ov, & dorsi Adiraiv. Arift. Ethic. ad Nicom. Lib. V. Chap. 15. See what is ſaid, Lib. II.
Chap. v. and Lib. III. Chap. I. §. 7.
S. XVI. (1) Antiph. Orat. 7. p. 56. Edit. Hanov. Ore 18 & terenuévwr, dance meseleyjévcov Jezueréta, étt er quereloué-
νοις, αλλά εν τη τ ακονιζόντων τάξει ήκονίζεν, έτε το σκοπό αμαρών, εις τες άφεσώτα ακονίσας, το παιδG έτυχεν, αλλά
πανία ορθώς, ως οπτν δει δρών, έδρα σαν και δεν ακεσίον, έπαθε δε, διακωλυθεις το σκοπό τυχείν.
(2) 'Αδικημα δε και δικαιοπράγημα ώριςαι εκασία και Ακεσίω "Όταν μεν παραλόγως ή βλάβη γένηται, ατυχήμα,
otar no us agnów5, dvd to set xi sts, evaluuc. Éthic. ad Nicom. Lib. V. Chap. X.
(3) A little before the words which he is about to quore, are theſe, Tà pels let'égvoías, de rapth ucila ésiv. And here, to
ſpeak by the Bye, Grotim, Lib. III. Chap. XI. §. 4. num. 2. renders auastánce, Infortunium, a Misfortune thro”. Miſtake, whereas
he fays in another place, that it ſignifies, Culpa aliqua ; I am amazed thar neither Mr. Courtin, in his Tranſlation; nor Gronovius
the Father, in his Nores, did amend this Slip in their Author.
(4) We may call it, An indire&t will, becauſe he did not directly and formally intend to hurt any Man; but he did, or neg.
lected to do a thing, from whence a Damage did redound, which was occafioned (as may eaſily be preſumed ) by that Ágion or
(5) Lata culpa est nimia negligentia, i. e. non intelligere, quod omnes intelligunt. Digeſt. Lib. L. Tit. XVI. De Verborum fignif.
Leg. CCXIII. See allo Leg. CCXXIII. and Lib. 22. Tit
. 6. De Juris do fatti ignorantia, Leg. IX. § 2. It would be ( for Ex-
ample) a great Fault, if having borrowed a Robe, you leave it in your Porch, where the firſt comer may carry it away.
() Si cum diſtrahere deberet, non fecit, lata culpa, non levi, dom rebus ſuis conſueta negligentiâ, hujuſmodi Rei rationem reddet,
Digeſt
. Lib. XXXVI. Tit. I. Ad Senatûs conſultum Tribellian. Leg. XX1. S. 3. Si venditor eam diligentiam adhibuiſſet in inſula
cuſtodienda, quam debent homines frugi, de diligentes preſtare, &c. Lib. XVIII. Tit. VI. De Periculo da commodo Rei vendita Leg. XI.
Si nihil appareat Conveniſſe, talis Custodia de fideranda eſt a venditore, qualem bonus Paterfamilias fuis Rebus adhibet Lib. XVIII. Tit. I.
De contrah. empt. Leg. XXXV. 5.4. Si quis non ad eum modum, quem hominum natura deſiderat, diligens est, &c. Lib. XVI. Tit. 3.
Depoſaiti
, vel contra Leg. XXXII. It would (for Example) be a ſmall Fault, if when a Man has received a Thing to keep, he leaves
it in his Chamber and puts it not in his Trunk, or forgers to take out the Key of the Trunk where it is. In fine, the Lawyers
ordinarily call this fort of Negligence by the Name of clpa, i.e. a Fault. See, for Example, Digeſt. Lib. IX. Tit. II. Ad Leg.
Aquiliam Leg. XXXI. but ſometimes we mean by it one of the two other forts, of which we muſt judge by the ſequel of the
Diſcourſe.
(7) In lege Aquilia, & Leviſſima culpa venit, Digeſt. Lib. IX. Tit. II. Leg. XLIV. In rebus commodatis talis diligentia preſtanda
est, qualem quiſque diligentifimus Pater-familias suis Rebus adhibet, Lib. XIII. Tit
. VI. Commodaci vel contra, Leg. XVIII. A
Fault of this Nature does not excufe (for Example) him that hath borrowed any Thing for his Uſe, if the Thing lent be
loft. See Lib. V. Chap
. IV. 9. 6. following. This alſo would be a very ſmall Faule, if through heedlefneſs a Man Thuts the
Chamber where he has laid the Thing entruſted to him, but badly, and going away forgers to ſee whether he has well turned
the Key of his Door.
Con-

88
Of the Qualities of Moral A&ions.
BOOK I.
ges (9).
Concerns (8). To this laſt kind of Diligence they Unjust and Wicked. Hence Facts proceeding from An-
oppoſe their Culpa leviſſima, to the ſecond; their ger, are always interpreted as done unadviſedly; for
Culpa levis, and to the firſt
, their Culpa lata. As to the Principle and Cauſe of ſuch Miſchances, is not the
this Culpa lata, they obſerve, that it is equivalent angry Perſon, but he who provok'd him to Anger.
to Malice and Deceit, in Contracts and other Civil XVII. Laſtly, It is requiſite to the making an
Buſineſs, and in Caſes of Reparation for Dama- Action properly Injurious, that it be done to a
But that (10) in Criminal Matters it Perſon againſt his Will. For 'tis a Maxim in every
bears not ſo hard an Interpretation; where how- Man's Mouth, that volenti non fit injuria, Nothing
ever it doth not take away, but only extenuate can be an Injury when the Party is willing to receive it.
the Guilt. The Effects of the Culpa levis and Culpa Ariſtotle ſays, (1) A Man with his own free Conſent may
leviſſima they fhew at large, when they treat about be hurt, or may ſuffer things which are in themſelves
Performances of Contracts.
Unjust; but be cannot properly be injur’d, except it be
The Treſpaſies we have hitherto ſpoken of, are against his Will. See Dig. 1. 50. tit. 17. De diverſ.
ſupposid to be done without Intention. But now reg. Juris. Nemo videtur fraudare eos, qui ſciunt 6
if a Man through the violence of his Paſſions, and conſentiunt. The Reaſon of which is, that both
only with an Imperfe&t and Semiplenary Intention the Good which I take from a Man, and the Debt
is driven to hurt another, this Hurt ſhall not be which I withhold from him, with his Conſent,
exempted from the Name of Injury, altho’ the Man are, as it were, Gifts from him to me : But now,
be not immediately, for ſuch a Fac, branded with who will ſay I do an Injury, by taking what is
the Character and Style of Unjust (11). Ariſtotle's given me ? Nor can that be eſteemid Evil which
Diftin&tion is excellent in this caſe : An ill thing, a Man deſires to receive; ſince all Evil neceſſarily
ſays he, done with Knowledge, but without Deliberation, includes an Abhorrency of the Will from embra-
is unjuſtly done ; ſuch are the Effects of Anger and of cing it. But then it muſt be ſuppos'd, that the
other Natural and Neceſſary Paſſions. For Perſons who Man enjoys the full uſe of
Man enjoys the full uſe of his Reaſon, and is not
offend on ſuch accounts, commit Injuſtice indeed; yet they zranſported with the Violence of any extravagant
are not for this Reaſon accounted Unjust and Wicked Affection (2) (a). Hence Ariſtotle, Éthic. l. 5.C.15.
Men, becauſe the Hurt did not proceed from any medi- gathers, that a Man who in a Paſſion lays violent
tated Malice. But when a Man burt's another out of hands on himſelf, doth an Injury not to himſelf,
Choice and Deſign, then only be incurs the Name of but to the State, which he robs either of a Gene-
ral,
ز

(a) Add. Ant. Matth. de Crimin. Proleg. c. 3. f. 2, 3. Mr. Hobbes's Definition which he gives in his Book de Cive, c. 3. 1. 7.
is founded upon a wrong Suppofition, that Injury conſiſts in nothing bnt the Violation of a Covenant.
(8) In all things which are not capable of an exact and Mathematical Meaſure, we may always diſtinguiſh of three Degrees at
leaſt, viz. two Extreams and a Mean, which ſometimes comes neareſt the firſt, and ſometimes the laſt. If we admit of a greater
Number, we muſt determine juft to a Point, where each Degree begins and ends, without which there will be no way to diſcern
them : But Pris not neceſſary when we confine ourſelves to three. It ſufficerh then to conſider here Watchfulneſs as well as Neg-
ligence, either as being raiſed to an higher Degree, or as finking to che lower, between which is the Medium, which inclines
ſometimes to one side and ſometimes to another. Now theſe middle Degrees (as we may fay) muſt be meaſured according to
the Nature of thoſe things, which are the Objects of our Cares, as they are more or leſs confiderable, and confequently require
more or leſs Caurion. This Comment is taken out of Mr. Titius's Obſervations Ratiocin. in Comp. Jur. Obf. 397. See alſo a curious
Diſcourſe of Mr. Thomaſius, encitled, De uſu Prat. Doetr. diffic. 7 ur. Rom. &c. printed at Hal in Saxony, 1705.
(9) Magna negligentia Culpa est, magna culpa Dolus est, Digeft. Lib. L. Tit. XVI. De verbor. fignif. Leg. CCXXVI. See alſo
Lib. VI. Tit
. 3. Depoſiti vel contra, Leg. XXXII. and Mr. Noodt’s Probabilia furis, Lib. I. Chap. XIII. 9. 8, 9, 10, 11, 12.
(10) In Lege Corneliâ dolus pro fa&to accipitur, nec in hâc lege culpa Lata pro dolo accipitur, Digeft. Lib. XLVIII. Tit
. 8. Ad Leg.
Corn. de Sicariis & Veneficiis Leg. VII. There is a Cafe, or as Mr. Titius ſpeaks, a groſs Fault in unlawful Actions, which renders
them culpable, as well as Deceit, or a bad Intention, as for Example, If a Man orders another to be ſtricken with a Sword,
with a deſign only to hurt him, exprelly forbidding the Perſon commiſſioned to ſlay him, to whom he would have it done, he
Thall nevertheleſs be thought directly and maliciouſly to have murdered that Perſon, if he die of the Wound, which may and
often does happen and deſerved to be treated as a Murderer. For he indirectly willed it; and being the Effect of a formal ill De-
fign, it ought to be looked upon as a malicious Act, and not for a ſingle Fault. See a like Cafe, Digeſt. 48. Tit. 19. De Penis
Leg. XXXVIII. $. 5. So thoſe that fight a Duel, they have a Deſign often only to wound and hurt one another, yet this hinders
not but if one of them be killed, the other ſhall be counted a Murderer,
(11) The Greek is, “Όταν δε, είδως μου, μη φesβελάσας εξή βλάβη γενήθαι] αδίκημα, διον όσα π δια θυμον, και άλλα πάθη,
όσα αναγκαία, ή φύσικα συμβαίνει τους ανθρώπους, που το βλέπονίες, και αμαράνοντες, αδικίσι μεν και αδικήματα εσιν μεντοι
πω άδικοι Δια ταύτα δε πόνηροι, έδε γδ Μια μοχθηeίαν ή βλάβη, όταν δ' εκ τωροαιρέσεως, άδικο, και μοχθήρος Λιό καλώς
Td in Quum, én en megvolds upí vetus, 8 DS dgger Quio 7601āv, a'ia' ó ósgious Ethic. ad Nicom. Lib. V. Chap. x. See alſo
Cicero de Offic. Lib. I. Chap. IX. With Grevius's Notes.
00267 Hinw
Hinwht Boblbogen friw 2017
S. XVII. (1) Ethic. 1. 5. c. 11. Brámietele père en this excèy, rj te adres
. Téget, éderci de seis &scóv.
(2) Thefe Limitations are not ſufficient to prove the Maxim he is ſpeaking of true, and therefore the Philofopher Hermids with
Reaſon maintains, That no Man muſt make uſe of the Ignorance of a Seller, to his own Advantage, unleſs he will incurr the
Guilt of doing a great Wrong. A good Maxim, which every one ſhould practiſe, (Phot. Biblioth. p. 1044.) as Mr. Bayle obſerves
in his Hiſtorical Critical Di&tionary. To ſet this important Marter in a due Light, I ſhall borrow ſome Judicious Reſtrictions made
by Mr. Placette, upon this Maxim in his Treatiſe of Reſtitution, p. 74, &c. I. The Conſent of the Sufferers ought to be counted
for nothing, unleſs it be abſolutely free and voluntary. Now there are three Orders of things which may hinder that Liberty,
ſo that his Conſent is not ſo full and entire, as to authorize what he ſuffers, viz. In the firſt Rank is every Thing thac debars us of
the uſe of Reaſon, as Infancy, Folly, and Drunkenneſs; in the ſecond, Fear and Force; and in the third, Ignorance, Heedlef-
nefs, and Error. As to the firſt, there is no dificulty; as to the ſecond, we will ſuppoſe that Fear or Force proceeds directly or
indirectly from him who gives his Conſent; laſtly, as to the third, That Conſent is of no uſe, becauſe he thac gives it knows not
what he conſents.to, nor fees the Prejudice which he does himſelf by it ; for if he be ignorant in whole or in part, his Conſent
is not voluntary, and no Man can, without Injuſtice, make an advantage of his Ignorance. Indeed Ignorance renders the Actions
which ie produces more involuntary, than Fear does, for this does not render an Action involuntary, but when it is cauſed by
him that is to get by it; whereas Ignorance has always that Effect, whatever be the Cauſe of it. I own, that the Injuſtice is the
more notorious, when he that gets by the Action deſignedly leads him that gives his Confent, into the Error, but this does noc
prevent, that there is no Cauſe but he that gets by it: Thas he that buys precious Jewels at a low Price, of an ignorant Perſon
that knows nor the Value of them, does him an Injury, if knowing it himſelf he doth not advertiſe him of it.
ewo ſorts of Rights; the one we are ſo much Maſters of, that we can diſpoſe of it as we pleaſe, ſuch is that which every Man
has
II. There are
CHAP. VIII. Of the quantity of Moral Actions. 89
ral, or a Soldier, or an Artificer, or the like, ac- dictum. Tho' Ariſtotle's Reaſoning in that place,
cording as his Station was. Upon which account (the Law commands not a Man to kill bimſelf; but
it hath been a Cuſtom in moft Commonwealths, what it doth not command it forbids ;) is falſe and
to puniſh ſuch Offenders even after their Death, abſurd; unleſs we ſay, that by resíver, commands,
by affixing fome Mark of Diſgrace on their Bodies he rather means permit s.
and on their Memory. Add. Mich. Ephef. ad loc.

has of his own Goods. The other we can't renounce, becauſe a ſuperior Law forbids it, ſuch is that which every Man
has over his own Life, for we may defend ourſelves againſt an unjuſt Aggreſſor, cho' we can't deprive ourſelves of it. The Maxim
which imports, That we can't do an Injury to ſuch as conſent, has place only in Reſpect to the firſt fort; for as to the laſt, which are
in their Nature unmoveable and unalterable, a Conſent given to the Violation of them is ever Null and void. Thus when an Hur.
band lecherouſly conſents to the Debauching of his wife, thar does not hinder but that Crime is really Adultery. III. Altho'the
Conſent of him that is deprived of a thing, may be ſufficient to acquit him that deprives him, of the Injury in Reſpect of the Per-
ſon deprived, yet we ought to cake care, thar a third Perſon, who has ſome Intereſt in the Thing, be not injur’d, as for Example,
* Wife, Child or Creditors. IV. Laſtly, the Conſent of him that is deprived of any thing belonging to him, muſt be known to
him that does it, if not by a full aſſurance, yer by a probable Preſumption, grounded upon good Reaſon; for if it afterward ap.
pears that the Perſon who was thought to conſent did not, tho’the Action may be innocent when it was done, yet he ought to
make good the Injury done thereby, cho'he did not think he did any.
CH A P. VIII
.
Of the Quantity (or Eſtimation] of MORAL ACTIONS.

HA
The Contents of every Section of the ſeventh Chapter.
1. The abſolute Quantity of Moral A&tions. III. What Intention is ſufficient in human Judicatures
:
II. What
Intention is requir’d to make an A&tion good IV. What is a perfeet and compleat A&tion.
before GOD's Tribunał.
The Relative Quantity of Actions.
Aving done with the Quality, it comes next CANOPUS, and be who is only one Furlong diſ
in our Way to ſay ſomething of the Quantity tænt from the ſame City, may be ſaid both alike not to be
of Moral A&tions; or to conſider on what Account at CANOPUS; lo be that fins leſ, and he that fins
they fall under different Rates and Meaſures. Now more, are both at an equal Diſtance from doing well,
we find the voluntary Deeds of Men to be capable But becauſe this Diſtance between evil Adions and
of undergoing a double Meaſure or Valuation, eị the Law, if any one will exactly compare them
ther abſolutely in themſelves or relatively towards with other Kinds of Quantity, may have ſome
one another. As to the abſolute Eſtimate, the Likeneſs to a Right-lined Angle, whoſe Greatneſs
Caſe is very different in Good and in Evil Actions. is meaſured by the Arch of a Circle, having ſtraight
For in a good Adion, if we conſider it formally Lines drawn from the Circumference to the Cen-
and preciſely, we diſcover nothing which bears ter, therefore when I was young, and ſtudied the
any Analogy to Quantity : Since the Goodneſs of Rudiments of the Law, I compared them to a
it conſiſts only in an Agreeableneſs or Conformity Circle; but in my riper Aģe I have thought it bet-
to the Law, which doth not appear capable of ter to lay aſide ſuch Niceties, and explain them
Meaſure. Hence good Actions, conſider'd, as we more plainly.
ſaid, preciſely as to their Form, are not better one II. Farther, ſince to the Goodneſs of an A&ioni
than the other; tho' they ſurpaſs each other in Ex- it is requiſite, not only that what the Law com-
cellence as to their Matter, with Regard to the mands be fully done, but likewiſe, that it be done
Condition of the Object, and to the Intenſeneſs with ſuch Intention as is agreeable to the faid
or Stridneſs of the Obligation. But now, an evil Law; it appears hence, that to make an Action
Adion, as declining from the Legal Rule, is con- be eſteem's perfectly Good, there is a Neceflity,
ceiy'd to bear a greater or a leſs Diſtance from it; not only that the Preſcription of the Law be an-
and on that Account may, even conſider'd formally ſwer'd in all its Parts; but beſides, that the only
and in it felf, be eſteem'd greater or leß: In the thing which prevaild on the Mind of the Agent,
ſame manner as one Crooked Line may recede far- and put him on ſuch a Proceeding, was a Defire
ther from a Right line than another doth. For of paying ready Obedience to the Legiſlator. And
Zeno's Argument in Diogenes Laertius (a), is not for this Reaſon, ſince we are, in the Divine Law,
worth confuting: All Sins, fays he, are equal ; for commanded to love GOD, with all our Hearts, and with
(1) ad nothing is truer than Truth, nor faller than all our Souls, and with all our Strength, and our Neigh-
Falſity, ſo neither can Deceit be greater than Deceit, nor bour as our felves, Mark xii. 30, 31. 'tis manifeft,
Sin than Sin. As be that is an bundred Furlongs from that no Adion can be approv’d by God Almighty
(a) L. 8. See Cicer. Paradox. cig.
Mr. Barbeyr ac's NOT.ES on Chap. VIII. S. J.
(1) His Greek is this, 'Αρίσκει και αυτοίς ίσα ηγεϊώς τα αμαρλήματα Ειδάλης αληθές μάλλον έκ όξιν, έδε ψεύδος ψα-
ες, έτως σε απάτη απάτης, δέ αμάργημα αμαρτήμα. και ο εκατον αδες απέχων Κανώμε, και ο ένα, επίσης εκ έσιν & Κα-
va Bosne čas zjó mãos, o kaeftov a poplavwv,
tions xx cinn er tớ xe Top Div. Diog. Laert. in Zenon.
Lib. 7. Leg. 120.
(2). Theſe
are the Elements of the univerſal Civil Law, printed at Hay in Saxony, 1660, and reprinted at Francfors on the Mein
N
in 1680. P. 317!
go
Adions. Book I.
Of the Quantity of Moral
tutions (1) the B
do
vious to their Senſes, which are by no means the name
,
as entirely Good (1), but ſuch an one as was un- upon Knowledge and Deliberation, as it proceeds
dertaken with the fulleſt Intention, and in which from a former and fuller Deſign. And ſince an ill
the Agent propos'd nothing elſe to himſelf, but a Intention is to Mortal Judges
ſcarce niore evident
Compliance with the Pleaſure of his Creator. E. than a good one, by reaſon of their Incapacity to
ſpecially, ſince the Divine Searcher of Hearts can- ſearch into the Heart; they are us’d to ſettle this
not but diſcover the leaſt Wavering in our Reſolu- Point by the Help of various Indications and Con-
tions, and the ſmalleſt Obliquity in our Deſigns. jectures, which we ſhall elſewhere explain at large
Whoever conſiders this Point as he ought, will (3). non
find but very little Inclination to boaſt of his Up IV. With regard to the Matter of Moral Adi-
rightneſs towards GOD.
ons, that good Action is eſteem'd Perfect in its
III. But in human Account, ſo exact a Diligence Kind, which hath attain'd its utmoſt Complement,
is not requir’d. For fince our Earthly Law, or to which no part is wanting that it ought to
givers propoſe as the chief End of their Conſti- have. Thoſe which decline from this Perfection are
Benefit of their Subject, which reckon’d inferior in a greater or leſs Degree, ac-
commonly proceed from the outward Performance cording to their Diſtance from it ; whether the
and Exerciſe of the Adions, whatever the Inten- Cauſe of this Defect be, that the Adion' was de-
tion of the Actor may be ; hence they are uſually ſtitute of ſome part which Mould have made it
ſatisfied if the exterior Action be conformable to compleat, or that it was (1) only attempted, and
their Injunctions. And ſo much the rather, becauſe not actually perform’d. On the other hand, of
they are unable to dive into the Receſſes of Mens evil Actions, that is reckon'd the worſt in its kind,
at
any Agent, but by Conjectures, and by Signs ob- and every one is leſs Evil, according as it falls
ſhorter of this final
Completion.
lible Guides in diſcovering our
And here we
twofold Difference
and Purpoſes. Therefore they value good Adions in (2) the objects of Actions, as ſet down in Laws.
only as they appear to Senfe, or ſo far as the Reach For ſome admit of a Diviſion, others do not: or,
follicitous how full or ſincere the Intention of the muſt either entirely perform, or entirely omit
Agent was, provided his exterior Work deſerve them, or do what's directly contrary to them :
their Approbation (2). Yet in evil Actions, even But in others, it is poſſible to perform ſome one
amongft human Judges, more
more Regard is had to part only, and to omit the reſt ; or ſomething
the Intention. And where this fhall appear to may be done which is oppoſite to them, not di-
have been abſolutely wanting, as happens in things realy, but in an inferior Degree. We may like-
done upon invincible Ignorance or Error, the Acti- wiſe conſider Objects under a fecond Diftin&tion :
on ſhall be accounted involuntary : And fuch an For ſome of them contain things into which they
A&ion, as it is not uſually imputed to the Agent, fo may be divided, as into fo many Species. Thus
is it conceiv'd to be deſtitute of all Moral Quanti- the Affirmative Law of the (3) fixth Command-
ty. But otherwiſe, an evit Adion undertaken ment enjoining us to fuccour our Neighbour in
BE
S. II. (1) See the precedent Chapter, S. 3, 4. Waboni
S. III. (1) See Mr. Noodt's Diſcourſe about Liberty of Conſcience, tranſlated into French, and printed at Amſterdam in 1707, and
what I have ſaid in my Treatiſe of Sports, lib. 3. ch. 6. S. 19.
anyola
There is a pretty Paſſage to this purpoſe in Plutarch, which it may be pleaſant to read here. 'Ey ellen 28 tois tud osušosy képpois,
(2) When the Intention is dubious or equivocal, we ought to incline to that Side which is moſt favourable to the Agent.
και Φράγμασιν
, επαινέ μύοις αιτίαν φαύλω ποτίθησι, και καταγεται ταϊς διαβολάις εις ισοψίας ατόπες τει η εν αφανεί «εγαρέ
OEWS, med Earl o autó (which laft Words ſhould rather be read iš medžano outo) zồ Temel 7 uivov fuqavãs & Swéuero fény
ku Domov ETI 096p, rj.xxxon Teias esp Borlu šaçaois. De Herodoti malignitate. They, who like Herodotus can't deny that an
them to be evil, endeavour by their Calumnies to create Suſpicions in other Men's Minds, manifeſtly atrive at the heighth of En
is ,
vy and ill Nature. 1 obſerve (ſays Mr. Montagne very well) that the greatest Wits of our Time employ their Ingenuity to darken the
Splendor of the brave and generous Actions of the Ancients, by putting a bad Interpretation upon them, and deviſing ſome vain Cauſes and
Occaſions of them. A cunning Cheat! Left I Mould grant an A&tion to be very excellent and good, I will find out five bundred vicious
Intentions, Lib. 1. Chap 36. The famous Mr. Bayle, in his News Letters upon Mr. Maimbourg's Critical Hiſtory of Calviniſm, Let.
12. S. 12. affirms, That the Laws of Charity, which oblige us to put a favourable Conftruction upon the actions of our Neighbour
rather than a diſadvantagious, are altogether contrary to Reaſon, but I have endeavoured to invalidate his Proofs of that poſiti-
on in my Treatiſe of Sports, Lib. 1. Ch. 3.
(3) See Lib. 8. Chap. 3. S. 19, 20.
S. IV. (1) An Attempt is counted for an Action, when the Impediment of performing ariſes from an Impoſſibility coming
on it by ſome unforeſeen Accident, or invincible Hindrance, and not from any Refuſal or Diſcouragement in the Perſon acting.
Seneca has a fine Paflage to this purpoſe, of which Mr. Hirtius cites a pare ; 'tis this, Quædam ejus conditionis funt, ut effe&tum pré-
Stare debeant ; quibuſdam pro effe&tu est, omnia tentâle ut efficerent. Si omnia fecit ut fanaret; peregit Medicus ſuas partes. Etiam
damnato Reo, oratori conſtat Eloquentie officium, ſi onni Jure uſus est. Laus Imperatori etiam victor & Duci redditur, fi & pru-
durius, quod veram amicitiam experiretur. Locupleti donare non potuit, ſano ad fidere, felici ſuccurrere. Gratiam retulit, etiamfi tu bene-
ficium non recepiſti. De Benef. lib. 7. ch. 13. '• Some things are of that Nature that
they muſt produce an Effect, in other things
is 'tis the ſame with an Effect to have endeavoured. The Phyſician has done his Office, if he has done all he can to cure. The
« Pleader, if he has urged the Law well; and General, if he liath managed with Courage and Conduct, tho' a ſuitable Succeſs do
« not follow. Thanks is fufficient, where no Requital can be made.
(2) The Original expreſſes itſelf thus, Obje&ta A&tionum, i. e. The obje&ts of A&tions, but the object of Action can neither be
commanded nor forbidden, but the Perſon who does, or nor does a thing, and ſo our Author himſelf uſes it in the next Pa-
ragraph. Doubtleſs he means, the matter of Actions, and the Miſtake ariſes from hence, that in his Elements of the Univerſal
Civil Law, he had ſaid, (P. 317.) the Obje&ts of Laws, for in changing the Expreſſion, he was not aware, that Astions would noc
well fit the place of Laws.
(3) Our Author calls this the Fifth, and the nexş Commandment che Şixth, according to the Lutheran Diviſion of the De-
calogue.
all


72
CHAP. IX. Of the Imputation of Moral Actions.
91

all Neceffities and Diſtreſſes of his Body, contains ſome part of it, and keep back the relt. But when
under it in the Mannet of different Species, the I not only deny a Man his Due, but farther take
Preſervation of his Life, of his Members, of his ſomething from him, or bring any Evil upon him,
Health, the turning away of any thing that doth, this Aą will be quite of another Species, and bear
or may grieve, or moleft him, the ſupplying him no Reference or Affinity to the former.
with Food in Time of Famine, óc. And the op V. Beſides all this, ſince one may be concern'd
poſite or negative Law, in the fame Command about a more noble, another about a more ignoble
ment, forbidding us to hurt the Body of our Neigh- Obje&t; and ſince one may produce more Good or
bour, comprehends, in like manner, Murther, Evil than another; it is plain, that upon this account
Maiming, Wounds, Stripes, Threats (a), &c. likewiſe, amongſt good Actions ſome are far bet-
Thus too the Affirmative Law, in the (3) Se- ter than others, and amongſt ill Actions, ſome far
venth Commandment, enjoining Chaſtity, con- (1) worſe than others. Horace's(6) Inſtance may
tains under it, Purity of Thoughts, Modeſty of ſerve to illuſtrate this Truth;
Words and Geſtures, Abſtinence from unlawful
Love, &c. And the oppoſite Law, forbidding Nee vincet ratio hoc, tantundem ut peccet, idemq;
Unchaſtity, comprehends Adultery, Fornication, Qui teneros caules alieni fregerit borti,
obſcene Speeches and Geſtures, and impure Ima Et qui nocturnus divím ſacra legerit.
ginations. For, to give an Inſtance in this Caſe,
obſcene Words do not reſpect Adultery in the way
Reaſon will never callt an Equal Sin,
of a Part or Degree: But becauſe the Divine Law To rob an Orchard and a Sacred Shrine.
giver was pleas’d, for Brevity fake, to comprehend
many Special Ads under one General Law, hence Add. Cicero pro Muren : Where he ſmartly refutes the
it comes to paſs, that he who commits ſimple For- Stoicks Notion, that All Sins are equal. And his Pa-
nication, doth as fully and entirely ſin againſt the radoxes, Chap. 3. as alſo Montaign's Eljays, Lib. 2.
Seventh Commandment, as he that is guilty of A- Chap. 2. in the beginning, and Gaſſendus Phil. Epic.
dultery. Therefore, as to theſe Objects, when Lib.z. Yet in many Cafes Horace's Reaſoning will
what the Law commands is not perform’d, we muſt hold good, L. i. Epiſt
. 15.
of Neceſſity either quite omit, or do directly the
contrary. But other Objects of A&tions, as deter-
De mille fabæ modiis quum ſurripis unum,
min'd in Laws, are in ſuch a Manner diviſible, Damnum est non facinus pacto mihi lenius iſto.
that they ſeem to conſiſt of (4) Integral Parts. So
that here it is not neceſſary we ſhould do all, or 0 When from a Thouſand Pecks you ſteal but one,
mit all, or perform the contrary; but 'tis poſſible Leſs Lofs is felt, but no leſs Guilt is ſhown.
to perform one part, and to let the reſt alone. For
Example, the Law commands me to pay the La And this is the Relative Eſtimation of Adions,
bourer his full Hire; now I may perhaps pay him which is treated of at large, Book VIII. Chap. 3.

(a) Vid. l. 47. t. 10. D. de Injuriis.
(b) B. 1. Sat. 3. v. 115, 116, 117.
(4) We muſt underſtand them of Parts really diſtinct one from the other, and which conſequently can exiſt ſeparately.
S.V. (1) Since this Author does not expreſs himſelf either diſtinctly, or largely enough upon this important Subject here;
and in the place Lib. 8. to which he refers us, treats of Evil Actions only ; I ſhall give you an Abridgment of what he ſays in
his Elements of Vuiverſal Civil Law. The relative Quantity of Aktions may be conſider’d, 1. in reſpext to the Obje&t. For the more no-
ble the Obje£t is, the more is that good A&tion, done to that Obje&t, better than another ; and, on the contrary, an evil Altion the more
Criminal. See Lib. 8. Chap. 3. S. 18. 2. In Refpe&t to the State and Condition of the Agent. And ſo a Benefit conferr’d by an Enemy,
is more conſiderable, than that which is received from a Friend. And, on the contrary, an Injury done by a Friend is more Marp, and af-
feits more than that done by an Enemy. See the ſame place, S. 20. 3. In Refpe&t to the Ations themſelves, according as we take
more or leſ Pains to do them. A good A&tion, the more difficult it is, the more excellent and more cominendable, otherwiſe all things are
equal. On the contrary, the more eaſily an evil Action may be avoided, the more enormous it is above others of the ſame Kind. 4. In
Reſpe&t to the Effe&t and Conſequences of an Action, on which account an A&tion is better or worſe, accordingly as the good or bad Conſe-
quences are, or may be foreſeen and prevented. 5. In Refpet to the circumſtances of Time and Place. See the place already quoted:
in fine, 'Tis evident from this Compariſon of good Actions one with another, that ſome are more excellent than others, accor-
ding as the Practice of ſome ought to give Place to the Practice of others, ſince we can't diſcharge all at the ſame time. See
what is ſaid about this, Lib. s. Chap. 12. S. 23.

stessa
CHA P. IX.
100 sider of the Imputation
Of the Imputation of MORAL ACTIONS.
The CONTENTS.
1. Of aétual Imputation.
IV. What can be effe&tually imputed to another.
II. Of Imputation thro' Favour.
V. Merit, and Demerit what.
III. Of Imputation from Debt.
VI. How the Effe&ts of Moral Actions may be aboliſhed.
WH
HAT Conditions are required to make an have formerly ſhown at large: It remains, that
Action capable of being imputed, or of be we ſee how and by what means it may be actually
ing confider'd as really belonging to a Perſon, we imputed, ſo as to produce ſome Moral Effect, either
in
N2
92
Of the Imputation of Moral Aions.
Booki.
in the Agent, or in ſome other Man. And here with Honours not otherwiſe his Due. But to puniſh
we muſt firſt of all diſtinguiſh between thoſe A- the innocent for the Father's Crime, is (Atrictly
Qions which are directed by Law, and thoſe which ſpeaking ) unreaſonable (2). This indeed may
are left to every Man's free Pleaſure. A&tions of happen, that the Father's Fault ſhall be the Occa-
the former Kind are then ſaid to be imputed to the fion of not conferring on the Son, or of taking
Agent, when the Legiſlator or Sovereign declares from him, thoſe Things which he was neither to
him to be the Author of them, and at the ſame receive nor to retain, but under certain Conditi-
time decrees (1), that the ordinary Effects of ſuch ons. But a Perſon thus dealt with, cannot be
Adions ſhall redound on him, or ſhall be conceiv'd ſaid to ſuffer an Evil, which his natural State
as inherent in him. But the latter Kind of Acti- would otherwiſe have made him a Stranger to.
ons are then ſaid to be imputed, when he, who For Nature, in this Cafe, gave no Security to the
without being bound by any Neceſſity, hath exer- Children that they ſhould certainly poſſeſs the Pa-
cis'd them for the Uſe and Benefit of another rents Goods, or that they ſhould be admitted to
Man, doth fignify, that he undertook ſuch an the like Poſts of Honour: But their Right to thoſe
Action for the other Man's fake, and out of an In- Goods, or thoſe Honours, proceeded on theſe
tention to oblige him. The latter Senſe of the Conditions and Proviſo's, that the Parents ſhould
Word Imputatio is moſt frequent in Claſſick Au- deliver them down ſafe and untáinted, and ſhould
thors, and the former more in uſe with the Divines not fall under ſuch and ſuch Penalties by their
and Moraliſts. But there is between them this Crimes. Nor can he, by any means, be ſaid to
manifeſt Difference, the former tends from the be in a worſe Condition than human Nature ad-
Legiſlator or Sovereign toward the Agent, but the mits or allows, who having no Paternal Inheri-
latter proceeds from the Agent, and reſts in the tance, is forced to work out his Fortunes by his
Perſon, for whoſe Sake or Uſe the Adion was per- own Induſtry.
form’d.
It is Juſt, likewiſe, ſo far to proceed againſt in-
II. The former Kind of Imputation is ſubdivided nocent Children upon account of their Parents
into Imputation of Favour, and imputation of Debt. Demerits, as to oblige them to quit the Kingdom
Imputation of Favour is when a Man, out of pure or State. For no Man hath a Right from Nature
Benevolence, derives upon another the Effects of of living in this or that Territory, but (3) every
an Action perform’d by a third Perſon; which Ef- one attains to ſuch a Right by ſome Act of his
fects the fecond Party had no Right to, without the own, or of other Men: And it may be a Condi-
Grant of the firſt. Or, when one, out of free tion of keeping this Right, that he ſhall loſe it in
Kindneſs makes a larger Effect redound to the Per- caſe his Parents are found guilty of ſome parti-
former of a certain Action, than the Action would cular and high Offences. It is not repugnant
otherwiſe of it ſelf have produc'd. But this laft to Reaſon, that the Poffeſſion of a Right ſhould
Inſtance will hold good in Matters of Reward on- depend on contingent Terms. Though, that the
ly (1), not in Matters of Puniſhment. For, as Laws of ſome Countries are too rigorous and
ſuch is the Nature of good Things, that they may ſevere in this point, no Man can pretend to de
be given to another gratis, without any Colour or ny.
Condition; ſo, if a Man is not willing to confer III. Imputation of Debt conſiſts in this, that thoſe
a good Thing on another, by the Name of a pure Perſons, whoſe Intereſt it concerns that an Action
Gratuity, he may lawfully do it under the Notion be done or not done, do declare that the ſaid
of rewarding him for ſome imputed Action, which A&tion belongs to the Agent, and that the Effect
either did not otherwiſe belong to him, or could affign'd to that Action ſhall redound or fall upon
not have given him a Right of demanding ſuch a him. Hence, if in any Law a certain Reward
Benefit. But, on the other hand, common Rea- be decreed to ſuch or fuch a good Action, ſo ſoon
ſon will not allow me, on the ſame Pretence, to as the Sovereign, or the Guaridian of the Laws
derive on another the Effects of an evil Action, ſhall underſtand that particular A&ion to have
which he is not really guilty of, and without been perform’d by any Man, 'tis manifeft, that
the Imputation of which, theſe Effects would not the Man hath immediately a Right of demanding
follow his natural State and Condition. And the promis’d Reward. But when a Man is en-
therefore 'tis very incongruous and abſurd, that join'd to do a thing, ſolely by the Authority of
either for a Faule purely another's, I ſhould have the Commander, and without any ſuch Propoſal
thoſe things taken from me, which Nature gives of a Reward, he ought to reſt ſatisfied with the
every Man, on the very Account of his being a bare Approbation of his Superior, and to eſteem
Man; or that, under the ſame Colour, ſuch things it a very ſufficient Recompence, that he hath a-
ſhould be impos'd on me, as Nature, by an Indul- voided his Diſpleaſure, which would neceflarily
gence Univerſal to all Mankind, hath forbid- have follow'd upon Default. On the other ſide,
den us to ſuffer without Reaſon. A Prince, for when an ill Action hath been committed, ſo ſoon
Example, may impute the Father's Merits to a Son as the Author of it is diſcover'd, he hath reaſon
not illuſtrious by his own Acchievements; and to fear the Execution of the Legal Penalty.
may on the account of thoſe Merits, load him As to inferior Perſons, to whom neither the
Mr. Barbeyrac's NOTES on Chap. IX. g. 1.
(1) That is to ſay, adjudging to him the Rewards, and decreeing to him the Puniſhments inflicted by the Law, with all their
Conſequences.
§. II. (1) The Author will explain, Lib. 5. ch. 12. 9. 12. the Diſtinctions which the Civil Lawyers make in treating upon
Bargains and Laws, of Things, 1. Odious. 2. Favourable. and, 3. Mixt. But here he treats only of Things Advantagious and
Diſadvantagious.
(2) See what is ſaid, Lib. 8. Chap. 3. S. 31.
(3) See Lib. 8. Chap. 11. §. 6, 7. following.
Guardianſhip,
CHAP. IX. Of the Imputation of Moral A&ions.
93
Guardianſhip, nor the Execution of the Laws do Adultery by a Tyrant, had forc'd the Sword out
belong, if they either approve a good Action, or of his Hand and kill'd him, deſir'd a Gratification
reprehend a bad one, their Judgment can affect from the State, he is put off with this Rebuke, im-
only the Credit and Character of the Agent. Ac- putat nobis quod deprehenſus in adulterio mori noluit.
cording to that elegant Saying of Diodorus Siculus He reckons we are indebted to him, becauſe being taken
(1), Praiſe is a kind of a Reward of Virtue putting us in Adultery he had the Senſe to ſave his own life: And
to no Charges, and Diſpraiſe is a Puniſhment of Vice in- (2) Tully, in his ſecond Philippic
, denies himſelf to
flicting no real Wound.
have any Obligations to Antony upon account of
It is farther to be obſerv’d, that when the Inte- his not being murder'd by him: Where lies the Kind-
reſt of many Perſons is concern’d in the doing or neß to me (ſays he) in your keeping your ſelf from so
the not doing of an Action, if one of thoſe Per- borrid a Villany? Others maintain the Reaſonable-
ſons ſhould forgive and not impute it to the Agent, neſs of our preſent Aſſertion from this Topick,
he cannot by this Means abate any thing of the that the Omiſſions of ill Axions are purely non
Right of the others, which he hath no Power to Entia, and conſequently can have no poſitive Af-
controul. Thus, if a Man hath done me an In- fections or Properties. Tho'to ſuch an Argument
jury by an illegal Fact, I may forgive him for my it might perhaps be anſwer’d, that even theſe O-
own Part and Concern, but at the ſame Time I miſſions may, in Moral Account, paſs for Entities,
do not in the leaft derogate from the juſt Pretenſi as they are the real and actual Reſtrictions and
ons of the Publick, and of the Sovereign Autho- Confinements of our Natural Powers.
rity. And thus too the Pardon which God Al But now, if for the ſake of another Man, I do
mighty is pleas’d to vouchſafe to repenting Sinners, what I might rightly and properly have omitted,
doch not at all impair or hinder the Proceedings of or omit what I might fairly and conveniently have
human Judicature. But when all the Perſons done, it is highly reaſonable, that I ſhould impute
whom the doing or the not doing of a thing con- my Service to him; or, that I ſhould, by virtue
cerns, agrec that they will not impute it, in ſuch a of my Right, demand of him to acknowledge my
Caſe the Deed is conceiv'd to be Null and Void as Kindneſs, and his own Obligation, according to
to all Moral Effects. Now the Perſons concern'd the Quality and Condition of it. This Imputation
in a Thing's being done or not done, are either cannot rightly be laid, unleſs there was in the A-
the Objects or the Directors of the Action; that ctor a real Intention of procuring ſome Good to
is, thoſe towards whom the Action is perform'd, the other Man; and in the Receiver an expreſs,
and to whom it brings either Good or Evil, and or, at leaſt, à preſumptive Conſent to admit it.
thoſe who have a juft Power of guiding and fu- For no Man can impute or reckon to us a Service
perviſing ſuch an Action. For which reaſon, if, forc'd upon us againſt our Will: And it would be
in Caſe of an Injury, the Deed be forgiven by the a much higher Degree of Impudence, to charge
Perſon to whom it was offer’d, by the Civil Ma- ſuch a Fact to us for a Kindneſs, as was perform’d
giſtrate, and by God Almighty, in Moral Efti- either without any Regard to our Benefit, or per-
mation it ſhall be ſuppos'd undone, and conſe- haps with a Deſign to hurt us. Thus he muſt be
quently ſhall be attended with no ill Effect. extreamly fooliſh, who would deſire a Reward
IV. Very different from the Imputation of from a Man whom he (3) had reſtor’d to Health
which we have been ſpeaking, is that by which by breaking an Impofthume, otherwiſe incurable,
the Agent is ſaid to impute an Action, which he whilſt he intended to give him a Mortal Stab. Yet
might have omitted, to the Party for whoſe Sake (4) Marius Celſus, in Tacitus (b), when he was
and Uſe he perform'd it. A Man who hath ex- brought before Otbo as one of Galba’s Servants and
actly fulfild the Command of his Superior, may Confidents, immediately confeſling his Loyalty to
indeed expect the Approbation of his Performance, his old Maſter, propos'd it as an Example, how
as from all others, ſo eſpecially from him who en- faithful he would be to the New Emperor; and
join'd it. But he cannot lay claim to any farther thus reckonid he had already oblig'd Oibo by ſtick-
Reward, unleſs ſuch as is exprelly promis'd in the ing reſolutely to Galba. And thus Eudoxia when
Law (a). For the fame Reaſon, no Man can de- ſhe was married to the Emperor Theodoſius, ſent
mand that it ſhould be imputed to him, in order to for her Brothers, by whom ſhe had been formerly
the giving him any right, that he hath abſtain'd expelld her Father's Houſe; and was ſo far from
from a bad Action, forbidden by the Laws, or by reſenting their Injury, that ſhe rather paid them
any Command of his Superior; but he muſt be Thanks, as the Authors of her Promotion : Since
ſatisfied that his Obedience hath pleas'd him who unleſs ſhe had been driven from Home, ſhe had
requir’dit
. For ſince upon acting contrary to the never ſeen Conſtantinople (c).
Law, he would have juſtly incurr’d a conſiderable When the Parties concern'd and intereſted do
Evil, to eſcape ſuch a Puniſhment muſt paſs with agree in defining the Rate at which a Thing ſhall
him for a Reward. Hence in Seneca's Controverſies, be reckon'd or imputed, in this Caſe a Covenant
1. 4. Controv. 7. when a Man, who being taken in intervenes, expreſſing how far, or to what value


(a) See Luke xvii. 9, 10.
(6) Hiſt. 1. 4. (c) Zonar. Tom. 3. Add Gen. xlv. 5. 1. 20.
So III. (1) Diodorus’s Words ate, ksiv é refes Etawy 'k za 3100 åpetas e de avor, ó Set tózos 7 weic powaćTHTO divdo zahyns:
In Excerpt. Piereſc.
(2) See Lib. 8. ch. 3. $. 16. following.
§. IV. (1) This Example had been better plac'd a little lower, where the Author ſpeaks of thoſe who do ſome Service with-
out any ſuch Deſign, and by Conſequence have ſome other Motive for their Actions.
(2) Tully's Words are, Quale autem beneficium est, quod te abſtinueris nefario ſcelere, Philip. 2. ch.z.'
(3) See Tully, De Nat. Deor. lib. 3. chap. 28. and Plutarcb de Capiendâ ex Inim. Utilit.
(4) Tacitus's Words are, Celſus conſtanter fervate erga Galbam fidei crimen confeſſus, exemplum ultro imputavit. Hiſtor. lib. i. ch.7i.
the
numb. 2
94
Of the Imputation of Moral Actions. BOOK I.
3
the Immputation fhall extend, and beyond which it But notwithſtanding all this, if the Legiſlator
ſhall not reach in any Buſineſs or Tranſaction (a). do exprelly declare, that upon the Performance
For Merit (as Mr. Hobbes (b) obſerves) preſuppoſeth e of ſuch or ſuch an Action, the Agent ſhall have
Right, and implies, that the Thing deſeru'd is due by a Right of demanding ſuch a Reward; there's no
Promiſe.
doubt to be made, but he may fairly and juftly re-
V. Hence 'tis eaſy to gather what is the Force quire it. But the bare Omiſſion of forbidden A-
of Merit, or what Adions are properly Meritori. ctions is utterly unable to produce any Merit, or
ous, which ſome Men would vainly ſet to the ac any Matter for Boaſting or for Praiſe. Philoftrat. de
count of God himſelf. Now the main Spring of all Vit. Apollon. Tjan. 1.6.c.i. (4) It is not an Act of Juſtice
Merit, is the Performance of a Work which we to abſtain from Injuſtice, nor an A&t of Prudence to have
did not owe : or, which the Perſon towards whom declin'd a Fooliſe Reſolution, nor of Valour not to defert
it is exercis'd had no Right of requiring from us. One's Colours, nor of Temperance not to fall into the baſe
For he that performs a Thing which he lay under Effeminacy of the Medes ; nor will a bare Negative
a full and perfect Obligation of doing, only dif- Goodneß entitbe jou to any Commendation : When we
chargeth his neceſſary Duty, and lays no Foun- eſcape Puniſhment, but yet do nothing worthy of Honour
dation for any conſequent Merit. M. Senec. Cont. and Reward, ſuch an Indifference cannot reaſonably be
1. 1. c. 8. (1) Give me leave to perform fome Service call’d Virtue. Add Luke xviii. 11. Ammian. Marcell.
to my Country, which may properly be a Piece of Merit : 1. 30. C. 11. To forbear Plunder and Rapine, zs a falſe
What I have bitherto done in the common Courſe of Arms, Foundation for Praiſe.
is not owing to me, but to the Laws. Julius Capitoli It remains then, that the only A&tions whereby
nus, in his
Life of Antoninus Pius, reciting the Rea we can obtain Merit towards other Men, are fuch
ſon of the Emperor's obtaining that Title, from às we do not owe to them; at leaſt, not by a full
lending his Hand to ſupport his ancient Father-in- and perfe& Obligation: Whether natural Reaſon
Law, in the Preſence of the Senate adds, This Ačtin' either commands or adviſeth them in general;
on was really no great Argument of Piety: Since the Debt leaving the Application of them to particular Per-
we owe our Parents is ſuch, as rather denominates a Man fons in our Power ; or whether they are only not
impiores if he neglects. than Pious if be pays (2). Nei- enjoin'd by the Civil Laws. For whatſoever I
ther is it fair to impute a Thing which we do not owe another as a full and proper Debt, to that he
owe to a Perſon againſt his Conſent; and much hath already a Right, and therefore when I pay
leſs, if our doing of ſuch a thing did not turn to ſuch a Due, I do not, properly ſpeaking, pare
'his Benefit. Whence it is clearly apparent, that with any thing which I have then a Right of re-
no Man can pretend to any Merit with reference taining or of otherwiſe applying, becauſe upon
to Almighty God, even tho' it were poſſible for denying and keeping it back, I ſhould bring a real
him to pay a full Obedience to all the Divine Laws. Injury and Damage on the Perſon to whom I
And that, therefore, God cannot any other way ſtand engag’d. And therefore fince Things which
become a Debtor to Mortal Men, but upon ac I owe in this Manner, do already belong, in fome
count of his free Promiſe, the Breach of which reſpect, to another Perſon, and I have no longer
would be repugnant to his (3) Goodneſs; not a Power to diſpoſe of them as I pleaſe, they can-
that any Right, properly ſo call’d, is thence de not be proper Matter for the founding of Merit.
riv’d to us. Indeed no Adions enjoin’d by Ver- But when I perform any thing towards another
tue of a Supreme Authority, do produce Merit to- Man, which I was not bound to pay by any pera
wards the Enjoiner. For tho’ borh the Sovereign feet Obligation, ſuch a thing really paſſing from me,
of Heaven, and the Inferior Rulers of the Earth, and accruing to him, leaveth in me either a per-
are wont frequently to confer certain Good things fect or an imperfe&t Right of receiving an equiva-
on thoſe who comply with their Commands, in lent Return. And this is properly Merit (d); the
order to the encouraging and exciting their Obe- Retribution or Payment of which, when it is de-
dience; yet to the Payment of theſe good things termin'd by expreſs Covenant, we call Wages :
they are not bound by the Merits of the Agent, or But when as to the Manner, the Time, and the
as in the manner of Covenants ; but by their own Quantity, it is left to the Equity of the other
free Offer and Promiſe : And therefore they can- Party, it bears the Name of Reward. Now upon
not be ſo properly call’d Rewards as Gratuities in ſuch Accounts and Conſiderations we may receive
the ſtricteſt Senſe of that Word (c).
four Kinds of Things, (5) Corporeal, Incorpo-

(a) Comp. Matth. xx. 13, 14, (b) Leviath. c. 1o. (c) Euripides Rhes. Rewarded Vertue gives a double Joy.
(d) Add. Senec. de Beneficiis, l. 3. c. 21, 22.
S. V. (1) The Latin of Seneca is this, Sine me aliquod merituin in Patriam conferre, adhuc militia mea Legis munus est. And
Julius Capitolinus's Words are , Quod quidem non ſatis magnæ pietatis est argumentum, quum Impius ſit magis, qui ifta non faciat, quam
pius, qui debitum reddat, Chap. 2.
(3) The Author might have added here, the Words which an ancient Rhetorician makes his Son ſpeak, when his Father would
hinder him from going to War the fourth time, to ſecure him from the Danger, Sine me aliquod meritum in patriam conferre, adhuc
inilitia mea Legis munus est, Seneca Controv. Lib. 1. Contr. 8. Suffer me to do a meritorious Service to my Country, for as yet I
have done no more in War than I was obliged to do by the Law.
(3) Or rather his veracity; which this Author himſelf mentions in his Elements of Univerſ. Juriſpr. and therefore unficly
omits it here. For it is properly out of his Goodneſs that GOD at firſt promiſes a Reward to our imperfect Performance; but
his veracity that he performs ſuch Promiſe. See Nehem. ix. 8. 33. I John 1. 9. where he is called Just, who departs nor from
the Truth, neither in his Diſcourfe nor Deportment.
(4) The Greek, Mà 28 dxgloo wlw, tò usi cd erby ---- ETE 78 geovners, zo ur elvontws to cvbu vã edimo divd peid, tò un
λίπαν και ταξιν: επ σωφροσύη, το μή ως το ή μοιχόν εμπισθεν έτε άξιον επαινε, το μή κακών φαίνεται παν για και τιμής τε και
77 uweicu looy doesntev, šmw e petí.
(5) See the Explication of this Diſtinction of the Lawyers, Lib. 4. Chap. 9. 4. 7.
real,


CHAP. IX. Of the Imputation of Moral Actions.
95
It
is
But
Senle
(2) Our Author here quotes can hardly be thought to our Author's purpoſe : for it plainly appears by what follows, and is
real, Moral, and (6) Notional. Of the firſt ſort after the Completion of a Corporal puniſhment,
are, Money, Land, &c. of the ſecond, the Grant, Moral Puniſhment, or Infamy with its ſcandalous
of Privileges and Immunities ; of the third, Ho- Marks continues. Secondly, he whom the Judges
nours and Dignities ; of the laſt, Statues, Inſcrip- have acquitted, pafſeth in Human Eſteem for an
tions, Crowns, and the like Tokens and Teſtimo- Innocent Perſon. The third way is, when the
nies of Worth. Add. Montaigne El. 1. 2. c. 7. Delinquent dies. Tho' ſometimes in extraordnary
And thus, as hath been ſhewn, Merit ariſeth Crimes, for a Terrour to others, Severities are
from thoſe
A&tions which we do not owe to others; ſhown on the Body, the Goods, and the Memory
and chiefly as they are uſeful and beneficial to of Wretches after they are dead. Fourthly, by
them. On the contrary, from Evil Actions, eſpe- length of time Crimes are ſo far taken away, as
cially ſuch as damage or injure others, arifeth De that the Author cannot be afterwards try'd on the
merit ; by Virtue of which, a Man is oblig’d to fame Account. Senec. Oedip.
make Satisfaction for the Harm he hath done : But
in general, all Evil Actions produce a Guilt, by Latere ſemper patere quod latuit diu. V. 826.
which the Agent is fuppos'd liable to undergo What long hath lain conceald ſhould ever lie.
ſome Penalty : Which Point we ſhall hereafter
find more room to explain. See Lib. VIII. c. 3. Tho' Lyfias (Orat. 12.) denies that a Crime can
VI. As the actual applying of Imputation cauſeth be blotted our by any ſpace of Years. (2) The
the Effects of Moral A&ions to exiſt; ſo the ceaſing Fifth and laſt way is the procuring of Pardon for
and as it were the recalling of it
, doth diffolve and the image from the Sovereign Power Point
the Caſe is very near the ſame in Good Actions and dormant, as the Astinn.is either conceald, or
in Evil. For both Good and Evil Adions whilſt throughly diffembled or pardon'd (as it were) be-
they are ſuch, or ſo long as they are enjoin'd or pro- forehand: So when once theſe Effects have bro-
hibited by the Laws, muft neceſſarily be attended ken out in Publick, their Moral part may indeed
with Imputation ; at leaſt (1) in the firſt and plain be effac’d, but not their phyſical. For what is
Import of that Term. when a Lawis
repeaľd once done cannot in a Physical or Natural
the Action about which it was concern'd can no be rendred undone; but it may be fo order'a, as
longer be imputed. The Imputation of an Action that it ſhall no longer have any Moral Effect in
not properly due, he alone can remit, whoſe In- Civil Life. Thus a Man who hath been whipp'd
tereft it is that the Effect or Conſequence of the A- for a Miſdemeanor, muft ftill keep the Scars and
&tion ſhould be made good. Therefore if he who Signs in his Back, tho' all the Diſgrace and Scan-
hath perform'd a Work remits the Imputation, the dal of the Puniſhment may be remov'd by a De-
Wages fe due cannot on any account
be cree of the Government. And when the Imputa-
demanded. But to make this Releaſment or Re- tion is taken off, the Ation is to all Intents and
miffion; is not in the Power of the Perſon for Purpoſes, no more than if it had never been
whom the work was done ; it being the Credi- done (c).
tor's part to forgive, and not the Debtor's. So like We need only add by way of Remark, that thoſe
wiſe to take off the Imputation of an III Action, as Authors are ſtrangely overſeen, who in order to
to any Force and Efficacy, belongs to thoſe whoſe the taking away the Guilt of an Évil Action, beſides
the Maker and Guardian of the Law, not to the the Habit of Juſtice and Honeſty. In the ſame
Author of the Fact.
manner, as by plaiftring over a Wall we rid it of
The Civilians reduce the chief Ways by which the Spots that were in it before; and as we drive
Crimes are cancell'd or extinguiſh'd in Human away an ill Smell by burning Frankincenſe in a
Courts, to theſe Five. Firſt, when the Puniſh- Room. Which Miſtake was occafion'd by their
ment defin'd by the Law ſhall be compleatly un- Ignorance of Moral Things, and becauſe they
dergone: For no Man is puniſh'd twice, and with imagin'd that Moral Qualities were produc'd and
equal Severity for the ſame Individual Fault
. deſtroy'd in the ſame way as Phyſical: The Abſur-
Though many Puniſhments indeed leave a kind dity of which Notion is plain enough from what
of laſting Stain behind them (a): And frequently we have before deliver'd.
dit odio zaid
(a) Vid. Sueton. Claud. c.16. (b) All which are treated of at lærge by Anton Matthæus de Crimin. ad. l. 48. D. tit. 19.0
(c) And thus we are to underſtand thoſe sentences of Ovid de Pont. L. 1. El.
Mors ,
Tis lets to feel than to deferve our "Dooin. od baro We non peccarim mors quoque non faciet.
Pena poteft demi, culpa perennis erito 919FI mobllo Death's kind Releaſe may end my Baniſh'd State, quatre
The Penalty may ceaſe, but ne'er the Crime To My Sin will live, and mock the Power of Fate.
(6) Our Author underſtands by this a thing that ferves only to raiſe fome high Thoughts of ourſelves in our Minds, a and ſigni;
fies fomething done for that by human Inſtitution.
:
S. VI. (1) To underſtand this, we are to know, that this Author ( in his Elements of Juriſpr: Univers.p: 357.) divides Impu-
tation into Simple and Efficacious : Simple Imputation conſiſts in fimply approving or diſapproving an Action, fo far as there
redounds no Effect from it to the Agent. And this ſort of Imputation may be made indifferently by any, whether he hath any
Intereſt or no in the A&tion that is done or not done. An Efficacious Imputation is that which produces fome Effect with-rela.
tion to the Agent, and this belongs to thoſe whoſe interest it is thaerehe za orica Man adviſes Oedipus to keep thar always, termine
the
had lain .
ſpoken by the ſame Old Man, that he intends nothing about the Impatation of Crimes
, for (thus he fays) Sepe eruentis veritas
,
paruif maligo 2. 837. for they who make ſuch Diſcoveries, often endamage themſelves by laying open the Tłuth.
-133 6 19. So ba
QUINOD i tibi vino 9013 goivom 30 $040 A 147904
bois
OF
96
OF T Η Ε

LAW of NATURE
A N D YOO
NATIONS
И * BOOK II.
od
Сній. І.
It is not agreeable to the Nature of Man to live without Laws.
H Н
bagi
The CONTENTS:
1. Whether a Law may be impoſed on Man, is doubtful. (V. Man too Noble a' Creature to be allowed ſuch a Freedom,
II. What Freedom of Will is
.
VI. The Corruption of ſuch a Freedom.
III. What ſort of Freedom of Will is in God? VII. The Variety of Mens Tempers.
IV. What is the Freedom of Beaſts?
VIII, Man's Natural Weakneſſ and Rudeneſ.
Aving in the preceeding Book ex: the full range of this flexible Faculty, without any
plaind the Condition of Moral Limit
of Impediment. For to what purpoſe, ſome
Things in general, together with will ſay, did God firſt make us entirely free to
the moſt frequent Uſes of the Com- all things, and afterwards confine us to certain
mon Terms, (which Notices if inſerted otherwiſe, Bounds and Rules? And as the Motion of our Joints
and only as Occaſion ſerv'd would have interrupt- is render'd uſeleſs by the Reſtraint of Chains and
ed us in our Buſineſs, and broken the Series of our Fetters, ſo may che Liberty of the Will ſeem vairi
Undertaking :) we come now to fall more directly and of no manner of uſe, if we can incline to
on our main Deſign, and the firft Enquiry we many things which muſt of Neceffity be forborn,
are here to make is, whether it would be conve- and if we can
be averſe to many things, which we
nient or not for Men to paſs their Lives without muſt as neceſſarily purſue and undertake.
the Reſtraint of any Law. Whence it will evident- II. In tracing this Point to its proper Spring,
ly appear, why the All-wiſe Creator hath not in- we think it convenient firft of all to ſhow, that an
veſted them with ſuch a wild Liberty, as ſhould abſolute Liberty would be ſo far from being uſe-
impower them to a& metely as they lift, and as ful, that indeed it would be deftru&ive to Häman
their wandring Inclinations lead them; without Nature ; and that therefore the binding and re-
being under the Reſtraint of any Rule, (1) Ne- ftraining it with Laws is highly conducive to the
ceflity, or Law. For fince God Almighty has Good, and to the Safety of Mankind. And this
been pleas’d to endue Man with a Will, (that is, Conſideration rightly purſued, will at the ſame
with a Power working by a kind of internal Im- time diſcover what Scope may be fairly indulg'a,
pulfe, and enabling him to incline towards ſuch and how far the Reins may be given to our Free-
agreeable to him, and to dom. Here then we muſt know, that Liberty in
Turn from fuch things as ſeem Inconvenient or general implies, an Internal Faculty of doing and of
Unpleaſant;) and with ſuch a Will as cannot be omitting things according to the Direction of our Jude-
compell’d; a Doubt may be rais’d, whether it did ment. When we call it (1) a Faculty or Power, we
not become the Divine Goodneſs, to allow him intimate, that the Perſon to whom this Liberty is
sat din noi
ona
Mr. Barbeyrac's Notes on Chap. I. §. I.
(1) Our Author does not treat here of á Phyſical, but Moral Neceſſity, ſuch as is explain'd Lib. I. Chap. VI. §. 14. ad fin.
and Chap. VII. §. 2. Neceſſity is no more than an Obligation.
S. II. (1) Our Author ſays only, A Faculty, which Term implies no more than a Power of A&ting, or Moving, doc. for there
are Faculties purely Paffive, and therefore I have added this Definition of a Faculiy, to do, or not, that we are to underſtand by
it, a Power of Acting or Moving, not only itſelf, but communicating a Motion to other Things, and Modelling them after a cer-
applied
bain manner.
CHAP. I.
97
that he ſhould live without Law.
applied, is Maſter of ſufficient Strength for many Excellency to let us not expect in vain, what he
Performances, and has a Force and Ability not commands us to expect; or becauſe to violate å
only to move himſelf, but to imprint Motion on Promiſe, implies ſome kind of Imperfection, from
ocher Things, and to affect them in a certain which the Supreme Nature is molt immenſely re-
Manner. We term this Faculty Internal, to figni- mov’d. Upon which account, we Men do not
fy that its Force and its Motion ariſe from an in- challenge the Divine Promiſes as of Right belong,
ward Principle, contrary to that outward and vio- ing to us, but receive them with Huinility and
lent Impulſe which is the Cauſe of Movement, Reverence, as Gratuities proceeding from God's
rather in a Log than in a Man. Laſtly, we add, free Pleaſure. For 'cis not here as in human Pro-
according to the Direction of our Judgment, to hint miſes, where there lies an Obligation to Payment,
that the Motion is not rais'd at a Venture, or by where the Promiſe turns into a Debt, and what
ſome blind kind of Force ; but that the Agent is was before free, is brought under a Neceſſity: Buc
ſuppos'd, in ſome Degree at leaſt, to have had a thoſe things which God performs upon Promiſe,
Knowledge of the Object, and to have determin'd do as fully retain the Nature of Gifts and Benefits,
himſelf to Action after ſome ſort of Deliberati- as thoſe things which he diſpenſes, without any
on, ſo that the immediate Reaſon of his acting ſuch ſeeming Engagement. Thus may we weak
ſhall be, becauſe he was pleas’d to act. At the Mortals faintly repreſent the Divine Liberty ; but
ſame time it will be underſtood, that all Rubs and that alone which we can determine with Certainty
Hindrances which may (2) either prevent the about it is, that it ſurpaſſes, in an infinite Man,
Motion, or turn it another way, ought to be ſup- ner, both our Notion and our Condition (b).
pos'd abſent, when we ſtate the Notion of Liberty IV. Bruce Creatures which are plac'd below
in Perfection and without Alloy.
our Degree of Being, do, however, enjoy a Li-
III. Matters being thus ſettled, if we caſt our berty proper to their Nature and State. But this
Eyes over the Univerſal Frame of Things, we ſhall Liberty cannot be otherwiſe than very Ignoble,
find that many have no Liberty at all, ſuch as are ſince the Power of theſe Animals is confin'd to
all Inanimate and Vegetative Creatures. Others ſuch narrow Bounds, and ſince ſuch is the Dulneſs
enjoy ſeveral kinds of Liberty, and in ſeveral of their Senſes, and ſuch the Lowneſs of their
Degrees. An univerſal Liberty, void of all Hin- Appetite, that they are concern'd about very few
drance and of all Defect, is applicable only to Objects, and regard even thoſe but very negligent-
God Almighty; this is conceiv'd as the moſt no- ly and ſuperficially; nor are excited by any thing
ble Attribute of his moſt perfect Eſſence, admit- but what is extremely groſs and perpetually obvi-
ting no Bounds or Circumſcription, and intimate- ous, and tends to the Service of their Belly. As
ly join'd with Omnipotence. And therefore, the to other Matters, they have no Cuſtom, no Law,
Reaſon why God doch not do (1) ſome things, or no Right to bind them, in tranſacting either with
why he doth not always do (2) all things, is not one another, (1) or with Mankind. Ainongſt a
to be fetch'd from the Deficience of his Liberty, few of them there is ſome Semblance of Marriage,
but from his own abſolute Pleaſure (a). So like- but of ſuch as is obſerv'd in the bare Act of Con-
wiſe when we ſay he cannot do all things, this junction and in ſome Shew of Love or Liking,
does not proceed from any outward Impediment, not in any Strictneſs of ſerious and conſtant Fide-
whether (3) Natural or Moral
, but from his own lity. Moſt of them, as ſoon as they have ſatisfied
Intention and Deſign, which we Mortals endea- their luftful Defires, retain no farther Mark of
vour to conceive in Proportion to his Greatneſs Love, no Senſe of Shame, no Regard of Off-
and his Excellency. In which Senſe we are to in- ſpring. Some indeed are moſt paſſionately fond
terpret that common Saying, That GOD is a Law of their Young, but then their Kindneſs continues
to himſelf
. Thus too the Juſtice which we aſcribe no longer than till they are able to provide foc
to God, is not to be ſuppos’d to bear a regard to themſelves. After this Period, all Love is loft and
any Obligation, or to any Right in another Per- forgot on both ſides; the Dams take no Care or
fon, as the Nature of Human Juſtice neceſſarily Notice of their Progeny, and the Progeny do
implies. Bat in as much as he has ſhown, both not ſhow any Gratitude, any Senſe of Debt or
by his works and by his Revelations, that ſuch a Duty to their Dams. Thoſe Beaſts which feed on
Manner of a&ing is ſuitable to his moſt compleat Fleſh, tear and devour without Diſtinction, what-
Nature, hence we come to expreſs it by the ſame ever is agreeable to their Palate ; and many when
Term which denotes our own equitable Dealings they fall out, pull one another in pieces without
towards other Men. Thus the Reaſon why Gon's Regret. Being ignorant of the Laws of Proprie-
Promiſes do not fail, is not becauſe his Liberty ty, whenever a ſharper Hunger than ordinary
was reſtrain'd by any Obligation ariſing from his pinches them, we may ſee them fighting furiouſly
Promiſe ; but becauſe it is agreeable to the Divine for the common Paſture or Prey; and what ſome



-
(a) See Pſalm cxv. 3. Epheſ. i. 11.
(b) Add Cumberland. de Legg. Nat. c. 7.6.6.
(2) There are, in general, two ſorts of Obſtacles or Impediments, which hinder us from acting according to our own Wills,
the one Phyſical, as Bonds, Fetters, Priſons, doc. The other Moral, as a Bond, Law, Government, Authority, doc. Elem.
Jur. Univerſ. p. 20.
S. JI!. (1) For Example, doth not make ſeveral Moons to circulate round the Earth, as may be ſeen to go round the Planers
of Jupiter and Saturn. Apologia Pufend. S. 7.
(2) As to create every Day new Kinds of inanimate Bodies or Animals, Ibid.
(3) See Note 2. of s. foregoing. When we ſay that GOD can't do a thing abſolutely, as for Example, Lye, or be worſe
than his Word: for ſince there is no Being ſuperior to GOD, to lay any Obligation upon him, nor more powerful than he, to
hinder him from doing as he pleaſes, or to conſtrain him to abſtain from certain Things, and do others, the Inability which
we attribute to GOD can proceed from nothing, but his own good Pleaſure, and infinite Perfections, Ibid. See Chap. 3. S. 5,6.
following,
§. IV. (1) See Chap. 3.52. following.
O
have
98 It is not agreeable to the Nature of Man, BOOK II.
P.159, &c.
have laid up or ſeiz’d for their private Uſe, the o- furing the Safety and Preſervation of ſuch Beings,
thers make no Scruple to invade and to devour. as are not only produced by Nature with ſuch vaft
Nor is there among them any ſuch thing, as E- Fertility and with ſo little Pains, but are likewiſe
ſteem, as Honour, as Command, as Prerogative, denied the Privilege of an Immortal Soul; and
unleſs ſuch as is deriv'd purely from Superiority whoſe Life conſiſts in nothing elſe, but in the cu-
of Strength. It muſt be confeſt, that Likeneſs of rious and accurate Diſpofition of the little Parts
Kind does produce in ſome Creatures a Shew of of Macter, with the additional Benefit of Motion.
Friendſhip and of Society. Hence many delight Hence God is pleas’d, in producing and in de-
to live in Herds, and thoſe which are more fierce ſtroying theſe inferior Animals, to give us fre-
than others, have ſome Averſion to preying on quent Inſtances, and evident Tokens of his Power.
their own Kind. Thus Juvenal obſerves, Sat. 15. Another Reaſon why Brutes had no need of the
Reſtraint of Laws, is, becauſe their Appetite is
rais’d by nothing elſe but by Hunger, or Thirſt,
-Parcit
or by ſalacious Deſire, for their Satisfaction in all
Cognatis maculis fimilis fera : quando leoni
which Enjoyments Nature has made ſuch large
Fortior eripuit vitam leo? quo nemore unquam
Proviſion. Neither is it likely, that their unli-
Expiravit aper majoris dentibus apri?
mited Way of Proceeding ſhould render them very
Indica tigris agit rabida cum Tigride pacem
hurtful and deſtructive co Mankind, ſince we are
Perpetuam : Jævis inter ſe convenit urſis.
enabled, by our fuperior Strength and Cunning,
to prevent any ſuch unhappy Effe&s (a).
Beaſts of one Kind from other each refrain: V. Now why the Great Creator ſhould not in-
No Weaker Lion's by the Stronger ſlain : dulge us Men in ſo lawleſs a Liberty, many Rea-
Nor from his larger Tusks the Foreſt Boar fons may be given, ariſing both (1) from the Pri-
Commiſſion takes his Brother Swine to gore. mitive and from the Acceſſory State and Condi-
Tyger with Tyger, Bear with Bear you'll find, tion of Humane Nature. The Dignity of Man,
In Leagues Offenſive and Defenſive join'd. and his Excellency above all the other Parts of the
Mr. Tate. Animal World, made it requiſite that his Actions
ſhould be ſquar'd by ſome Rule; without which
But, not to fay that there's ſomething of a Poe- no Order, no Decorum, no Beauty can be con-
tical Figure in theſe Expreſſions, we may only ceiv’d. Hence it is his greateſt Honour that he
take notice, that this ſeeming Relation is but a has obtain'd an immortal Soul, indu'd with the
very weak Bond for a laſting Friendſhip: ſince 'tis Light of Underſtanding, with the Faculties of
immediately broken whenever the Concerns of judging and of chuſing things, and with an admi-
the Belly intervene. Thus you ſhall ſee a Litter rable Capacity for Arts and Knowledge. On
of Puppies play very lovingly together, but throw which account he is juſtly term’d,
a piece of Meat amongſt them, and you breed a
Santius animal, mentiſq; capacius alte
dangerous and a general Quarrel. The Reaſon
Et quod dominari in cætera pollet.
why ſome Creatures exerciſe a little Shadow of
Duty, Love, Faith, and Gratitude towards Men, an Animal bleft with Loftineß of Mind and with Sana
is purely to be referr'd to Cuſtom, and to their Elity of Reaſon, and fram'd for the Dominion and som
Deſire of being ſupplied with Food. If theſe Ob- vereignty of all the rest (b).
ſtacles are once remov'd, and if they find them Farther, That the Soul was deſign'd by the All-
ſelves of ſufficient Strength, Man himſelf cannot wiſe Creator for a much nobler End than to ſerve
eſcape their Violence, if he unhappily provokes only as Salt to keep the Body freſh, may be ga-
them. The Liberty of Brutes then is not reſtrain’d ther'd from this Conſideration, thar the greateſt
by any Intrinſical and Moral Tie: Tho' their Ex- and moſt ſhining part of its Faculties are ſuch as
ternal Motions are often violently put under Con- contribute either little or nothing to the Preſer-
finement by Men. Now if any one is ſo curious vation of the Body, which (2) might be ſecur'd
as to enquire on what account Brute Creatures without any ſuch mighty Parade, without fo
are allow'd ſo unbounded a Freedom, the plain Great and Pompous a Proviſion. It's plain, that
Reaſon ſeems to be, becauſe God Almighty has the Power and the Activity of the rational Soul,
not given them a Mind capable of the Know- (3) is chiefly exercis'd about ſuch Things as belong
ledge of Right and of Law. There was indeed (4) to the Worſhip of God, and to a Life (5) of
no occafion to be ſo very careful and exact in en- Society and of Civility. And 'tis principally for




(a) Add Charron of Wiſdom, B. 1. c. 34. (b) Solinus (cap. 3.) calls Man a Being whom Nature has prefer’d to all othersa
in Excellency of Senſe, and in Capacity of Reaſon.
9. V. (1) We muſt underſtand by the Primitive State, that in which Man was when he came out of the Hands of his Creator,
conſidered purely and barely as a Man, before he had any Uſe of his Faculties, where his Acceſſory State (poft ſuperveniens) is
that wherein he is left to himſelf, and conſequently ſuppoſes the Uſe of his Faculties. The firſt' is treated of in this Paragraph,
and the other in the three following.
(2) This appears from the Example of ſome Beaſts, which live a long time, as Stags; and of ſome Trees, as the Oak, which
continue a long time, tho' they have no Senſe. Cumberland, Chap. 2. 3. 4.
(3) The Sagacity of our Mind confits (not in finding out what ſort of Meats, Exerciſe, or Medicines are proper to lengthen
out our lives here; for the moſt able Phyſicians and Philoſophers have had but a very imperfect and uncertain Knowledge of
thoſe chings. Ibid.
(4) See Chap. 3. S, 20. following, Note 2.
5) Cicero obſerved this, when he reckoned up che Advantages of Men above Beaſts in theſe Matters, in theſe Words, Eadem-
que Natura, vi Rationis, hominem conciliat homini ad Orationis do ad vit & Societatem Nec vero illa parva vis Nature eſt, rationiſ-
que quod unum hoc animal ſentit, quid ſit ordo, quid fit quod deceat, in faltis, di&tiſque qui modus, i. e. “Nature by the Force of
6 Reaſon renders Men fit for Converſacion Nor is this a ſmall Force of Nature and Reaſon that Man only is ſenſible what
** Order is, and how both Words and Actions are to be moderated.” De Offic. lib. 1. chap. 4. See alſo De Legibus, lib. I. chap.
the
CHAP. I. that he ſhould live without Law.
99
the Service and Furtherance of theſe Great Ends, In Man the God deſcends, and joys to find
that it can (6) from known Things infer and ex The Narrow Image of his Greater Mind.
plain thoſe which are leſs known, that it can di-
Mr. Creech,
ſcern and judge what is agreeable and what diſa-
greeable to it; that it can form Univerſal Noti VI. Another Reaſon why it was inconvenient
ons by Abſtradion from Singulars; that it can by to allow Man the ſame extended Liberty as Brutes,
proper Signs communicate its Notions to others, (1) was his prodigious Corruption and Degene-
can form Inventions, can apprehend the Nature of racy ſo many Degrees beyond theirs. That we
Numbers, Weights and Meaſures, and compare charge him thus, no one will wonder, who has
them with one another; that it can perceive the had the Curioſity to reflect a little on the various
Beauty and the Force of Order and Method;: Purſuits and Inclinations of Mankind. Beaſts are
that it can either raiſe, or repreſs, or moderate ſollicited only by their Belly and by their Luft:
Affections; that it can hold in Memory an end. And then their Luft has ſome Shew of Tempe-
leſs Compaſs of Things, and call out, as it were rance, provoking them only at certain Times and
at its Beck, any part of the Stock which it has oc- Seaſons, and being exercis'd not for empty and
cafion to uſe; that it can turn its Sight inward up- fuperfluous Pleaſure, but for Increaſe and Propa-
on it ſelf, recollect its own Dictates, and by them gation of their Kind. Oppian Cyneg.l. 3. v.151,152.
judge of its Actions, whence ariſes the Force and
the Authority of Conſcience. Of all theſe, Powers Ου γαρ τις θηρεασι νόμG- γαστης ότι πλήθH"
and Abilities there would be very little Uſe, or Εις λίγος έρχεμένοις τελέειν φιλοτίσιον έρων:
rather none at all, in a Lawleſs, a Brutal and an
Unſociable Life (a). Now the more Gifts GOD Beaſts in their Joys a decent Temp'rance keep;
has beſtow'd on Man, and the greater Inlarge Nor offer Love, when 'tis the Time for Sleep.
ments he has granted to his Wit and Mind, the
more baſe and unſeemly would it be, that all theſe But the Carnal Deſires of Men do neither obſerve
noble Endowments ſhould ruft for want of Cul- any ſet Times for their Eruption, (2) nor are by
ture and Regulation, ſhould be vainly ſpent and any Means ſo moderate in their Heat, as to make
ſquander'd away without Uſe, without Order, no farther Efforts than are neceſſary for the Pre-
and without Grace. Nor was it altogether in ſervation of Human Species. Again, the Hunger
vain, that God indued Man with a Mind appre- of Beaſts is eaſily ſatisfied with ſuch Food as Nature
henſive of Accuracy, and of Decency; but it was has ſpread in all Places for their Suſtenance; nor
without doubt intended, that he ſhould ſo imploy do their Meals ſtand in need of the Formality of
the Powers he had receiv'd as to manifeſt the Glo- Furniture, or of the Incentives of Sauce. And
ry of his Creator, and to promote his own true when they find this Appetite reliev'd and quieted,
Intereſt and Happineſs. The Heathen Poet was they put an End to their Buſineſs and their Care.
able to make ſuch an Inference as this:
(Nor are they very forwardly, diſpos’d to Rage or
Miſchief (3), provided they are unprovok’d, and
Quis dubitet hominem conjungere cælo ? that their two chief Deſires are at reſt.) But now
Eximiam natura dedit linguamq; capaxq;
the Food of Man muſt not only ſatisfy his Belly,
Ingenium, volucremq; animum ; quem deniq; in unum but tickle his Palate (4). Nature has taken care
Deſcendit Deus atq; habitat, Seq; ipſe requirit. that Beaſts ſhould have no need of other Cloath-
ing beſides, what ſhe has given them. But Man
Then who can doubt that Man the Glorious Pride turns the Infirmity of his Nakedneſs into an Occa-
Of all, is nearer to the Skies alli'd ?
fion of Vanity and Pride. Beſides, do not Men
Nature in Men capacious Souls has wrought, float in a whole Tide of Affe&tions and Deſires,
And given them Voice expreſſive of their thought. utterly unknown to Beaſts? Covetouſneſs, (5) Ama
(a) Add. Cumberland de Legg. Nat. c. 2. 4. 4. who likewiſe in the 33d Se&tion of the Same Chapter, has drawn moſt admirable
Proofs from the Frame and Structure of Human Bodies.
(6) See Chap, 3. §. 10. following, Note 5. and Cicero de. Nat. Dear. Lib. 2. chap. 59.
S. VI. (1) Lycurgus, an ancient Poet, quoted by J. Lipſius upon Seneca, Epift. 103. ſays, That were it not for this, no Laws
need be made for Man; and that Man is naturally a fierce Beaſt, who differs nothing from them we call ſo, but that he lifts his
Head towards the Heavens. His Words are theſe,
Θείς Φού, πως πονηρον εν ανθρώπων φύσις
Το σμάλον, Ου γδ άν που έδεήθη νόμο
Οίει τιτάλλων διαφέρει θηeίων
"AvIpasovs, Oj de luxejv, aimae ghices.
Πλαί εά τ' άλλα, τετο δ' ορθον θηeίον.
Mr. Hirtius has collected together abundance of Authorities about this Matrer, which we may find in his Elements of Civil Pru-
dence, Part I. Se&. 1. S. S, doc. I know they are not all to the Purpoſe, nor taken at the firſt hand, for the firſt of them
gives a juſt Suſpicion to the contrary. Seneca ſays indeed, Cæterum idem ſemper de nobis pronunciare debebimus malos effe nos, ma-
Los fuiffe, invitus adjiciam, & futuros esse. De Benef, lib. 1. chap. 10. But there is nor one Word of what Mr. Hirtius adds,
as if it were fubjoined in the ſame place, Vis amplius dicam ? Homo est omnium animalium pefimum, ac deterrimum, quo nihil pejus,
ac atrocius. See Lib. 7. Chap. I. §. 4. Note 5. following.
, (2) ld evoord tatov, Ljevechtatov (7 {áær å oppnO] év! dpetasxj. reg's coegdioca, rj & Su Slw geleison. Ariſtot. Pol. lib. 1.
chap. 2. in fine, Man without Virtue is the moſt profane and wild Creature, as to Venery and Eating.
(3) Nunquam enim illas (ferds] ad nocendum, niſi neceſſitas inigit, aut fame, aut timore, coguntur ad pugnam. Homini perdere
hominem libet. Seneca Epift. 1oz. “ Nothing but Neceſſity drives the Beaſts to hurt one another, either Hunger or Fear forces
“them to fight. Men take a Pleaſure in killing one another. ”
(4) To complear the Senſe, we may add, out of this Author's Abridgment of the Duties of a Man and Citizen, Lib. 1. Chap. 3.
5.4. And he often deſires more Food than his Stomach can digeſt, as well as that which reſpects Revenge, in the Enumeration
of thoſe Paſſions of Man, which are unknown to Beaſts. of which the Author ſpeaks a little lower.
(3) Uni (animantium) ambitio, uni avaritia, uni immenſa vivendi cupido, uni ſuperſtitio
, uni ſepulturæ cura, atque etiam poſt ſe de
futuro. Plin, Nat. Hiftor. lib. Præm.
bition,






up
)
7.
02
100
It is not agreeable to the Nature of Man, Book II.

bition, Vain-glory, Envy, Emulation, Conten- Puniſhment; what would become of the World,
tions of Wit, Superſtition, the Care of future if they were left to the wild Sway of their Cor-
Things, and the Spur of Curioſity, do all claim ruptions, if they had no inward Bridle to curb
Entertainment in Human Breaſts, and yet are their Inclinations and to check their Purſuits. Add.
Strangers to the dumb Creation. Manilius Aſtron.l.4. Ariſtotle's Problems, Se&t. 29. Queſt.7. Plin. Nat.
Hift. I. 18. Proeme. Iamblichus Protrept. c. 20. That
Nuello votorum fine beati
Men ſhould maintain a Familiarity with one another,
Vieturos agimus ſemper, nec vivimus unquam,
and at the ſame time live contrary to the Laws, is an
Pauperiorq; bonis quiſque est quo plura requirit : impoſſible thing : For by this Means they woulă ſuffer
Nec quod habet numerat, tantum quod non habet optat. more Injury and Damage, than if every Man led a sea
Quumq; ſui parvos uſus natura repoſcat,
parate Life by himſelf. On theſe Accounts, and for
Materiam ſtruimus magnæ per vota ruinæ,
the Neceſſities, Law and fuftice are to be admitted as
Luxuriamq; lucris emimus, luxuq; rapinas,
it were for Sovereigns amongst Men, without the Go-
Et ſummum cenfris pretium est effundere cenfum. vernment of which they could not continue or ſubfift.
VII. It is ſtill farther obſervable to our Purpoſe,
Why ſhould deluding Hopes diſturb our Eaſe, that a much greater, Variety of Diſpoſitions may
Vain to purſue, yet eager to poſſeſs?
be diſcover'd in Men than in Beaſts. All the ſea
With no Succeſs and no Advantage crown'd, : veral kinds of irrational Creatures are for the
Why ſhould we ſtill tread on th' unfiniſli't Round? moſt part indu'd with the ſame Inclinations, and
Grown Grey in Cares purſue the ſenſeleſs Serife, rais'd and incited by the ſame common Appetites
And ſeeking how to live, conſume a Life? and Affections. We may underſtand a whole Spe-
The more we have, the meaner is our Store, cies by the Knowledge of one ſingle Member of
The unenjoying craving Wretch is poor. it. But amongſt Men there are not more Heads
But Heaven is kind with bounteous Handit grants than Wits; and every one is equally zealous in
A fit Supply for Nature's ſober Wants :
giving the Preference to his own Opinion, and
She asks not much, yet Men preſs blindly on, to his
own Poffeffions. So Horace, Sat. 1. Lib. 2.
And heap up more, the more to be undone: ſpeaks,
By Luxury they Rapine's Force maintain,
What that ſcrapes up, flows out in Luxury again. Quot capitum vivunt, totidem Studiorum millia.
16 And to be ſquander'd, or to raiſe Debate, As many Men as live, of them the Brain
Is the great only Uſe of an Eſtate.
As many thouſand Studies entertain.
Mr. Creech.
Philemon in Stobæus, Speech 2. (1) If a Man Should
Liban. Declam. 9. is not á Man a mild and peaceable get together thirty thouſand Foxes, hé'd find that they
Animal, So far as Words go; but in Reality Savage and not only have all one Nature, but all one Method and
Ungovernable? For when do we hear of Lions inder- Tenour of Life: But among st US, as many Bodies are
taking an Expedition againſt Lions ? When do wild there, ſo many ways of Living may we diſcover. Plin.
Beaſts war against their own Kind ? What Perjury do Pan. There are no Things in the World more likely to
we find amongst them? What Breach of Covenants ? diſpleaſe all, than ſuch as are done with an Aim of plea-
What Perfidiouſneſs and Avarice, what inſatiable Love ſing all
. Nor are all mov'd with a ſimple and an
of Riches? What Intemperance, what Adultery can we uniform Deſire, but with Propenſions as vaſt in
lay to their Charge? Whoever conſiders and exa their Number, as they are various in their Mixture
mines the unhappy Variety of Contentions and and Compoſitions. Nay, the ſame Man is very
Quarrels that continually ariſe amongſt Men, frequently unlike, and unequal to himſelf, and
will find that the greateſt part of them proceed what he moſt eagerly deſir’d, he ſhall at another
from ſuch Inclinations and Propenſions, as never time moſt ſtrongly abhor:
diſturb the Peace of Brutes (a). Now in ſo vio-
lent a Fierceneſs, and in ſo wide a Diverſity of
magno curarum fluctuat æftu,
Affections and of Deſires; what a Life would Men Atq; animum nunc huc celerem nunc dividit illuc ;
lead, were they deſtitute of the Benefit of Law
In parteſq; rapit varias, perq; omnia verfat (b).
to unite and to compoſe them? We ſhould ſee no-
thing but a furious Multitude of Wolves, of Lions, This way and that he turns his anxious Mind,
of Dogs tearing and devouring one another. E Thinks, and rejects the Counſels he deſign'd.
very Man would indeed be a Lion, a Wolf, a Explores himſelf in vain through ev'ry Part,
Dog, to his Neighbour, or rather a Monſter, And gives no Reſt to his diſtracted Heart.
more pernicious and more ſpiteful than the fierceſt
Mr. Dryden.
of theſe Creatures; ſince Man, of all Living
Things, is the moſt able to hurt Man, and, if left Neither is there a leſs Difference in their Studies,
to his own furious Paſſions, the moſt willing. And their Inſtitutions, and their Inclinations to employ
lince Men are continually bringing ſo many Evils and exert their Vigour of Mind, as appears from
and Miſchiefs on one another, while they now live the numberlefs Profeſſions, and the endleſs Me-
under the Force of Law, and under the Fear of thods of Living. (2) Quintus Calaber l. 1. Now







(a) Add. Charron Of Wiſdom, B. 1. C.34. 7. 12. and c. 39. n. 11. (6) Virg. Æn. 8. v. 19. Add. Charron de la Sageſe,
1. 1. c. 38.
S.VII(1) His words are, "Εαν τρισμυρίας αλώσικας τις συναγάρι μίαν φύσιν απαξάπασιν, τρόπον δ' ένα' ημών δε όσα και τα σώμαλα
in zent non volevo, Tocétos ésiv rj menys i stiv. And Pliny's Nulla magis omnibus diſplicent, quam que fic fiunt, tanquam omnia
bus placeant.
(2) His Words are
Πάσι δ' άρ' ανθρώποισιν δμων γένο αλλ' επί έργα Al Men indeed have th' fame Original
Στροφών' άλλOέπ' άλλα
But them to divers Works their Genius's call.
CHAP. I. that he Mould live without Law.
IOI
as the more Voices there are, the more harſh and Let us ſuppoſe a Man bred up by another, juſt ſo
unpleaſant would be the Sound, unleſs they far as to be able to walk, and without hearing a
join'd in Confort and Harmony; ſo would human Word ſpoken, inſomuch that he ſhall be deſtitute
Life be nothing elſe but Noiſe and Confuſion, of all Inſtruction and Diſcipline, and enjoying no
were not the jarring Diſſonance compos’d and Knowledge, but ſuch as ſprouts naturally from the
ſweetned by Law, and turn'd into a Muſical A- Soil of his Mind, without the Benefit of Cultiva-
greement. As Things ſtand, this exceeding Va- tion. Let us ſuppoſe the fame Man to be left in a
riety of Parts and of Diſpoſitions, is at the ſame Wilderneſs or Deſert, and entirely depriv'd of the
time an Ornament and an Advantage to Mankind; Company and of the Affiftance of others
. What
ſince when it is thus rightly temper'd, there na a wretched Creature ſhould we at laſt behold! A
curally reſults from it ſo admirable an Order and mute and an ignoble Animal, Maſter of no Powers
Grace, as could not have been produc'd by an U- or Capacities, any farther than to pluck up the
niverſal Likeneſs. And beſides there was likely to Herbs and Roots that grow about him ; to gather
be much leſs Claſhing and Conteſt in ſo vaſt a Mul- the Fruits which he did not plant; ito quench his
titude, whilſt their various Humours and Inclina- Thirft at the firſt River, or Fountain, or Ditch that
tions led them to quite different Objeas of Choice. he finds out in his Way; to creep into a Cave for
The ſame wiſe Counſel Providence ſeems to have Shelter from the Injuries of Weather, or to cover
us’d in ſpreading ſo wonderful a Diſtinction of over his body with Moſs, and Grafs, and Leaves :
Features over the Faces of Men. For ſince diffe- Thus would he paſs a heavy Life in moſt tedious
rent Offices are to be diſcharg’d, and different Be- Idleneſs; would tremble at every Noiſe, and be
haviour to be us’d towards different Perſons, there ſcared at the Approach of any of his Fellow Crea-
would ariſe a moſt wild and fatal Diſorder, if all tures, 'till at laſt his miſerable Days were conclu,
Men exactly reſembled one another, and could ded, by the Extremity of Hunger, or of Thirſt, or
not be diſtinguiſh'd but by Artificial Marks, which by the Fury of a ravenous Beaft. That Mankind
would be liable to ſo many counterfeiting Cheats. therefore do not paſs their Life in a more forlorn
Add. Dr. Cumberland, de L. N. c.2. 8.28. And there and a more deplorable Condition than any other
lies this farther Secret in this Natural Diſtinction, living Thing, is owing to their Union and Con-
that one Face pleaſes the Fancy of one Man, and junction, to their Intercourſe with the other Part-
one ſeems more agreeable to another ; ſo that out ners and Companions of their Nature. The Divine
of the Univerſal Stock, every Man may chuſe Saying, 'Tis not good for Man to be alone, is not to be
what he thinks moſt beautiful, and what may en- reſtrain'd to Matrimony, but ſeems to belong in
gage his Affection with the ſweeteſt Comfort and general to any Society with other Men. But now
Delight.
without Law, 'tis impoſſible that any Society
ſhould be either introduc'd or maintain'd in
VIII. Beſides all this, it was inexpedient for Strength and Quietneſs. And conſequently, un-
Man to live without Law upon account of his ex- leſs Man had been deſign'd for the baſeft and the
ceeding Weakneſs; which is our laſt Reaſon. A moſt wretched Part of the Animal Creation, it was
few Days will ſet a Brute Creature in a Condition not by any Means convenient that he ſhould live
of providing for himſelf; nor is he in any great looſe from all Direction and Obligation of Law.
Need of the Company of others for his Aftſtance Plutarch's Philofophy could teach him, that a ge-
and Support. But Man from his firſt coming into neral and unbounded Licenſe of Acting, was dif-
the World, undergoesla long and tedious Courſe agreeable to the Condition and to the Dignity of
of helpleſs Infirmity. Quinétilian Declam. 306. The Man. (2)Thoſe Perſons only (ſays he, De Audit.)
Frailty of Human Nature appears moft in its Beginning who live in Obedience to Reaſon are wortby to be ac-
and early Growth. The Beasts See (1) their Young im- counted Free. They alone Live as they will, who
mediately after the Birth, a ſtanding on their Feet, and have learnt what they ought to will. Thoſe who give
ſeeking for the Dugg : But we are forc'd to take up the the Reins to unworthy Practices and Purſuits
, uſe ar
belpleſs Infant, and to protect him from the Cold :. And, imaginary Freedom, to purchaſe a real Diſſatisfaction.
after all this Nicety and Care, it is not unlikely, he may From all theſe Remarks it is ſufficiently evident,
die between the Arms of the Parents and the Boſom of the that the Natural Liberty of Man, ſuch as really
Nurſe. Add. Plin. N.H. 1.7.Præfat. What a length and truly agrees to him, and not only in an ab-
of Years is requir’d, and what Diligence of Infor- ſtracted Senfe, muſt always be underſtood as
mation, to enable him by his own Strength to ac- guided and reſtrain’d by the Ties of Reaſon, and
commodate himſelf with Food and Cloathing? by the Laws of Nature (3).



1. VIII. (1) Quintilian's Words are, Caducum circa initia animal; homines ſumus, nam ferarum, pecudumq; fætibus est ſtatim ingreffus,
do ad ubera impetus: nobis tollendus infans, do adverſus frigora nutriendus: fic quoque inter parentum manus, gremiumq; nutricis ſæpe la-
bitur. And Theocritus's, theſe, "Aras do danov suxe 0 g Pod dica pwtãy, i. e. GOD made Man to want each others Help.
To theſe we may add the fine Deſcription of Seneca, Quid est homo imbecillum corpus, do fragile, nudum, ſuapte naturâ inerme,
aliena Opis indigens, ad omnem fortune contumeliam projeètum, quum benè lacertos exercuit, cujuſlibet fere pabulum, cujuſlibet vi&ima,
ex infirmis fluidiſque contextum, & lineamentis exterioribus nitidum; frigoris, astus, laboris impatiens : ipſo rurfus fitu, lo otio iturum
in tahem, aliment a metuens fua, quorum modo inopia, modo copia rumpitur; anxie, ſollicit&q; tutela, precarii spiritus, & male hærentis
,
quem pavor repentinus, adjeétuſque ex improviſo sonus auribus gravis excutit : Soli femper fibi nutrimentum vitiofum do inutile, i.e.
What is Man? His Body is Frail and weak, Naked and Defenceleſs, wanting Help, and expoſed to Misfortunes; when he is ar-
rived at ſome Strength, a Prey to Beafts, every Body's Sacrifice; made up of Infirmities, tho' of a neat Compoſure,, unable to
undergo Heat, Cold, or Labour'; growing Diſeaſed by Idleneſs; ſuſpecting his Food, by Want and Plenty of which he is fome.
times ruin’d; anxious and ſollicitous ; of a precarious and inconftant Mind, which a ludden Fear and Noiſe diſtracts; his Nou.
riſhment is vicious and unprofitable to himſelf alone, De Conſol. ad Marciam, Chap. 11. Our Author feems to have had theſe
Words in his Thoughts, becauſe he expreſſes himſelf much to the ſame Effect.
(2) His Words are, Ω τα λόγω του επομένες άξιον έσι
μόνες έλθέρες νομίζειν. Μόνοι δ, άσε μελέθαι μαθόντες ως βάλοναι
ζώσι, τοϊς δε άπαιδαύταις, και παραλίες
ορμάις, και αξεσι αεννές ερή, και μικρών εν πολλώ το μετανούν, έκέσιον. Με ακάir.
in princip.
(3) See Buddei Elementa Philoſophie praktice, Part II. Chap. 3. where he is both particular and large.in ſhewing how People
incorporated into Sociery are under a neceſſity of having Laws impoſed upon them.
СНАР,
IO2
Book IT.
Of the Natural State of Man.
С НА Р.
II.
1.
3
Of the Natural State of M A N.
13
bre
The CONTENTS.
I. Man's Natural State diverfly conſidered. VIII. Hobbes's Reaſons anſwered.
II. His Miſery.
IX. Reaſon is not to be deny'd its Uſe in the State of
III. Its Laws and Rights.nl
16 Nature.
IV. The State of Nature qualified.
dell|x. The Manners of barbarous Nations do not make up
V. Whether it has an Inclination to War.
the State of Nature.
VI. Hobbes affirms it, and his Reaſons are produc’d. XI. Natural Peace has no need of Covenants.
VII. Mens Relation one to another concludes the negative. XII. Natural Peace is not to be truſted to.
B
Y the Natural State of Man in our preſent double Notion of a State is anſwerable to the două
Enquiry, we do not mean that Condition ble Manner in which we may conſider the Men
which is (1) ultimately deſign’d him by Nature, who are to compoſe it, either as each particular
as the moſt perfect and the moſt agreeable ; but Man lives in a Natural Liberty towards all others;
ſuch a State as we may conceive Man to be plac'd or as ſome Men have entred into a Society between
in by his bare Nativity, abftracting from all the themſelves, but are join'd to all the reft of the
Rules and Inſtitutions, whether of Human Inveň- World, by no other Ties beſides thoſe of commoni
tion, or of the Suggeſtion and Revelation of Humanitý.
Heaven for the Addition of theſe Aſliſtances II. Now to form in our Minds ſome Image of
ſeems to put another Face on Things, and to frame this Natural State, ſuch as it would be if deftitute
human Life anew, by an exacter Model. By this of all Arts and Afliſtances either invented by
wide Exemption we do not only exclude all the Men, or reveald by God, we muſt fancy a Man
various Arts and Improvements, and the Univerſal thrown at a Venture into the World, and then
Culture of Life, but eſpecially Civil Conjuncti- left entirely to himſelf, without receiving any far-
ons and Societies, by the introducing of which ther Help or Benefit from others, than his bare
Mankind was firſt brought under the decent Ma- Nativity; we muſt likewiſe ſuppoſe him to be fur-
nagement of Order and Regularity. That we niſh'd with no larger Endowments of Body or
may be able to form clear and diftin&t Notions of Mind, than ſuch as we can now diſcover in Men,
this ſuppos’d State, we will firſt conſider it in it- antecedent to all Culture and Information; and
ſelf, and examine eſpecially what Rights and laſtly, we muſt take it for granted, that he is not
what Inconveniencies attend it; that is, what foſter'd under the peculiar Care and Concern of
would be the Condition of particular Men, if Heaven. The Condition of ſuch a Perſon could
there were no Arts or Inventions ſer afoot, and not prove otherwiſe than extremely Miſerable,
no Communities form’d and eſtabliſh'd in the whether he were thus caft upon the Earth in In-
World. And then, ſecondly, we will conſider it fancy, or in Maturity of Stature and of Strength.
in order 10 other Men, whether in this Regard it If an Infant, he could not but have ſadly perifh'd,
bears the Semblance of Peace or of War; that unleſs ſome Brute Creature had, by a kind of
is, whether Men who live in a Natural Freedom, Miracle, offer'd its Dugs for his Support ; and
ſo as neither to be ſubject to one another, nor to then he muſt neceſſarily have imbib'd (1) a fierce
acknowledge a common Maſter, are likely to and ſavage Temper, under the Nurſery and
prove Enemies or Friends. In this ſecond Confi Tutelage of Beaſts. If in Perfection of Limbs
deration the State we are ſpeaking of, is capable and Size, we muſt, however, conceive him naked,
of a Subdiviſion, being either full and abſolute, able to utter nothing but an inarticulate Sound, à
and ſo bearing an equal Regard towards all Men Stranger to all Inſtitution and Diſcipline, amazed
in general; or elſe limited and reſtrain’d, as it has and ſtartled at the Things about him, and even
Reſpect only to a certain Part of Mankind. This at his own Being: The Admonition of Hunger


Mr. Barbeyrac's Notes upon Chap. II. S. I.
(1) If Mr. Titius (Obſervat. 452.) had conſidered well theſe Words, he would not have criticiſed upon our Author, as call-
ing that Eſtate Natural very unfitly, which is contrary to Nature, i. e. to the Intention of GOD, who appointed Man for So
ciery. See what our Author ſays at the End of $. 4.
S. II. (1) This appears from an Inſtance which Procopius (Lib. 2. Gothicorum) relates of a Child nurſed by a Goat. Mr. Hirtius
alſo quotes Harthknoch’s Hiſtory of Poland, Lib. I. Chap. 2. who relates fomething like it of an Infant who had been fuckled by
a Bear, and being brought to Warſaw, was preſented to Caſimire King of Poland, in 1661. I fall alſo add at length a like Story
which the ſame Mr. Hirtius has fet down in his Treatiſe of Society, the firſt Principle of the Law of Nature, Set, 1. S. 8. yec
leaving the Reader at Liberry to ſee into the Truth of it, cho' the Author warrants it. “ In 1344 there was a Child found in
“ Helfe, who, as we underſtand ſince, was taken away by Wolves, when it was about three Years old, and wonderfully main-
“ tained by them. They carried it to a Tree, where they had laid up the greateſt part of their Prey, and in the winter they
“dug a Ditch, into which they caſt Leaves, and Herbs, which they laid under the Child, lying themſelves by it to keep it
“ from the Cold. They taught it to go on the Hands and Feet, and run like themſelves, inſomuch chat by Cuſtom it would run
as ſwiſt, and make as great Leaps. When he was firſt taken, they bound fome Pieces of Wood to liim, to reſtore him, and
“accuſtom him not to go like a Beaſt with his Face downward. He was carried to the Court of Henry Prince of Heſſe, and was
“ often heard to ſay, That if it were not for him, he had rather live amongſt the Wolves again, than among Men." This
Story is related by the Author of the Additions to the Hiſtory of Lambert de Schaffnaberg, about 1344.
would
CHAP. II. Of the Natural State of Man.
103
previous Labour and Guidance of others; and how Tunc la amicitiam cæperunt jungere habentes
Aut genue
would make him ſeize greedily on any thing that Sed nemora atq; cavos montes Sylvafq; colebant.
was near him, his Thirſt would direct him to the Et frutices inter condebant fqualida membra,
first Water, and Dens or Trees would afford a Verbera ventorum vitare imbreſq; coaéti.
Refuge from the Injuries of Weather. Should Nec commune bonum poterant ſpectare, nec ullis
we ſuppoſe a Number of ſuch helpleſs Wretches Moribus inter fe fcibant nec legibus uti.
thrown together by Nature on ſome uninhabited Quod cuique obtulerat præda fortuna, ferebat,
Soil, we cannot but think that they would ſo Spome fuå ſibi quiſque valere & vivere dočtusi
long however continue in a brutal Wildneſs and Et Venus in (ylvis jungebat corpora amantum,
Diſorder, till at laft, either by their own Wit and Conciliabat enim vel mutua quamque cupido,
Experience, or by ſome Hints and Inſtructions Vel violenta viri vis atq; impenſa libido.
taken from the Conduct of Mute Creatures, they
ſhould by Degrees arrive at fome Method and E Illud erat curæ quod ſacla ferarum
legancy of Living, and as Virgil ſays,
Infeſt am miſeri faciebant fæpe quietem.
Varias uſus meditando extunderet artesy Inde caſas poſt quam ac pelles ignemq; pararunt;
Studious Need might beat out Uſeful Arts. Et mulier conjuncta viro conceſſit in unum,
Caft aq; private Veneris connubia lata
This will eaſily be acknowledg’d by any one that Cognita funt, prolemq; ex ſe videre creatam.
looks about on the numerous Improvements and Tum genus humanum primum molleſcere cæpit :
Alliſtances which we make uſe of in our daily A- Ignis enim curavit ut alſia corpora frigus
Etions, and at the ſame time conſiders how difficult Non it a jam poſſent cæli ſub tegmine ferre.
it would be for any Man to invent all theſe of his Et Venus imminuit vires ; pueriq; parentum
own Head, if he were not put in the Way by the Blanditiis facile ingenium fregere" Superbum.
great a part of theſe Ornaments and Convenien- Finitima inter fe, nec cædere nec violare:
cies of Life, would at once enter into the Thoughts Et pueros commendarunt muliebreq; ſaclum,
of the Generality of Mankind. Hence it is no Vocibus & geftu cum balbe ſignificarent,
Wonder that the Heathen Writers, who under- Imbecillorum elle æquum miſerier omnium.
ſtood not the true Origine of Men as deliver'd in Non tamen omnimodis poterat concordia gigni,
Holy Scriptures, ſhould make ſo foul a Repreſen- Sed bona magnaq; pars fervabant fædera caſti;
tation of their Primitive State.
Nec potuiſſet adhuc perducere fæcla propago.
Quum prorepſilent primis animalia terris
At varios linguæ Sonitus natura coegit
Mutum & turpe pecus, glandem atq; cubilia prenſant Mittere, & utilitas expreſſit nomina rerum, &c.
Unguibus & pugnis, dein fuſtibus, atq; ita porro
Pugnabant armis quæ poft fabricaverat uſus. Then Man was hard, as hard as Parent-Stones,
Donec verba quibus voces Senſuſq; notarent
And built on bigger and on firmer Bones.
Nominuq; invenere; dehinc abfiftere bello,
Oppida cæperunt munire, & condere leges,
Contented they with the poor eaſy Store
Ne quis fur effet, neu latro, neu quis adulter.
That Sun and Earth beſtow'd, they wiſh no more,
Soft Acorns were their firſt and chiefeft Food.
When the firſt Fathers of our Human Brood, When thirſty, then did purling Streams invite
Dirty and Dumb crawld from the teeming Mud; To ſatisfy their eager Appetite.
A War began with Nails, and Fiſts, and Heads,
For Acorn Banquets, and for Leafy Beds.
They knew no Uſe of Fire to dreſs their Food,
Cudgels came next in play ; and riper Hate No Cloaths, but wandred naked thro' the Wood.
Arm'd them with furer Inſtruments of Fate. They liv'd in pady Groves, and Caves confin'd
At length their Voice grew Index of their Thought, Were Shelter from the Cold, the Heat, and Wind.
Joyful to name the Things for which they fought. No fixt Society, no fteddy Laws,
Now Rage began to cool, and Force to ceaſe, No publick Good was ſought, no common Cauſe.
And gen'ral Parlies work'd a gen’ral Peace. But all at War, each rang'd, each ſought his Food,
Towns roſe, and Laws were ſettled, to remove By Nature taught to ſeek his private Good.
Invading Thefts, and check licentious Love. Then to renew frail Man's decaying Race,
Or mutual Lust did prompt them to embrace,
This is Horace's Deſcription, and we may expect Or elſe the greater Vigour of the Male,
a fuller from Lucretius.
Or ſome few treacherous Preſents did prevail;
Some Acorns, Apples ſome, ſome Pears beſtow,
genus humanum multò fait illud in arvis
The Thing the ſame, the Price was leſs than now.
Durius, ut decuit Tellus quod dura creálſet.
The moſt they dreaded was the furious Beaſt,
Quod ſol atq; imbres dederant, quod terra creârat
For thoſe i'ch' dead of Night did oft moleſt,
Sponte fuâ, Satis id placabat peétora donum ; And lengthen into Death their flumbering Reſt.
Glandifer as inter curabant corpora quercus ;
But when they built their Hutts, when Fire began,
And Skins of murther'd Beaſts gave Cloaths to Mang
At ſedare fitim fluvii fontefq; vocabant.
When One to One confin'd in chaft Embrace
Enjoy'd ſweet Love, and faw a num'rous Race;
Nec dum res igni fcibant tractare, nec uti
Then Man grew ſoft, the Temper of his Mind
Pellibus, du Poliis corpus veſtire ferarum :
Was chang'd from rough to mild, from fierce to kind.
For






Et
}
Plerumque.

104
Of the Natural State of Man. Book II.
For us'd to Fire, his Limbs refus’d to bear once ſuch, that Men, in thoſe Days, before the Settlement
The piercing Sharpneſs of the open Air:
of Natural or of Civil Laws, wandred ſeparately about
Luft weaken'd him, and the ſweet playing Child the Fields, and poffeß'd no more than what they could
Tam’d his Wild Sire, and into Peace beguild. get or keep by mutual Force, and Wounds, and Slaugh-
Then Neighbours by degrees familiar grown, ters. Now between our preſent way of Life, poliſh'd
Made Leagues and Bonds, and each ſecur’d his own. with Humanity and Civility, and that Rude and Bar.
And then by Signs, and broken Words agreed, barous Courſe, the only diſtinguiſhing Marks are Law
That they would keep, preſerve, defend, and feed
and Violence. Vid. de Invent. I. 1.
Defenceleſs Infants, and the Female Train;
Euripid. Supplic.
A Right which Picy urg'd them to maintain. I praiſe the generous Pow'rs, that fenc'd our Life
Tho' this fixt not an univerſal Peace,
With Rules and Graces from the Lawleſs Herd ;:
Yet many kept their Faith, and liv'd at eaſe; By giving firſt a Soul, and next a Tongue,
Or elſe, almoſt as ſoon as it began,
The Soul's Interpreter; and Fruit for Food,
The Race had fall’n, this Age ne'er ſeen a Man. And kindly Rain to breed a future Store:
Kind Nature power of framing Sounds affords, And cloſe Abodes, to skreen us from the Rage
And theſe at length convenience turn'd to Words. Of threatning Skies; and Sails to wing our Courſe
Mr. Creech. To diſtant Shore, to join the Globe in Trade,
And mix the Common Treaſures of Mankind.
We have much the ſame Story in Proſe from
Diodor. Sic. l. 1. c. 8. They tell us, that Men at their It is a general Cuſtom with the Poets to attribute
first Origine led an Irregular Life, in the manner of to the Gods the Invention of all things uſeful in
Beaſts ; Scattering themſelves about in ſearch of Food, Human Life. Vid. Oppian. Halient. l. 2. v. 16, 6c.
which was preſented them by the Savoury Herbs, and
However fabulous theſe Accounts appear, yet
the Fruits which grew of their own accord. But being ſo far the Authors of them were in the right, that
infeſted on every ſide with the wild Beaſts, they learnt upon ſuppoſal of ſuch an Origine of Mankind,
by Uſe the Security of Mutual Aſiſtance; and being (4) the Face of Nature would have born all theſe
forc'd in Fear to unite in Society, they came acquainted Features which we now eſteem ſo monſtrous and
by degrees with their Similitude of Figure and Shape. extravagant. In the ſame manner being ignorant
Tbe first Men, before any Inventions of Conveniency and of the State of Paradiſe, they pleas'd themſelves
Uſe, Supported Life with great Labour and Trouble ; in making Deſcriptions of a ſingular and conſtant
being, as yet, diſtitute of Cloaths and Dwellings, unac- Temperateneſs of Air, and of a ſpontaneous Fer-
cuſtom'd to the Relief of Fire, and Strangers to all tility of the Earth, in the firſt and the Golden
Siveet and Regular Food. Being ignorant of Stores and Age of the World. Becauſe they thought it im-
Proviſions, they neglected to ſecure So much of the Fruits poffible that Human Race could have been pre-
of the Earth as was requiſite for neceſſary
Suſtenance. ſerv'd, as according to their Notion they were
And thus many periſhed in the Winter by Hunger and produc'd, if the Weather and the Seaſons had been
Cold. But being afterwards Inſtructed by gradual Ex- then as changeable and as unfteddy as now,
perience, to ſpend that ſharp Seaſon in Caves, and to lay and if the ſupport of Food had not been more
up a Stock of Neceſſaries, and finding out the Uſe of Fire eaſy to procure (a). And indeed, tho’it is clear
and other Comforts and Supports, they began to introduce from the Authority of Scripture, that the Primitive
many Arts, and many Advantages of Living. Add, Mortals, by the Divine Direction and Aſſiſtance,
Lib. 1. c. 43. Cicero pro P. Sectio. Who amongst (5) arriv'd at a very early Knowledge of the moſt
you does not know the Condition of Nature to have been neceſſary Arts, (See Gen. iii. 21, 23. and iv. 17,22.)
which

(a) Vid. Ovid. Metamorph. 1. 1. v. 107. Virg. Georg. 11. v. 336. Lucret. li s.
At novitas mundi nec frigora dura ciebat,
Nature whilſt Newy no cruel Cold brought forth,
Nec nimios aſtus ; nec magnis viribus aur as. Nor raging Hears ; nor arm'd the ſtormy North.
(4) Altho' Mankind was never in ſuch a ſtate of Nature as we have deſcribed, yet it is good to imagine what that Eſtate was,
not only to convince us, how great an Advantage we receive one from another, and by that means may be induced to a reci
procal ſenſe of Love and Sociableneſs, but alſo becauſe it may happen, that every Man may be reduced to that Condicion, either
altogether or in part. Such an one, for Example, may an Infanc be, who is left in a Deſart, where no Man paſſes; and 'if this
Infant, who is thus forſaken by his cruel Parents, lives to grow up without any humane Affiftance, he'll repreſent to us perfectly,
that ſtate of Nature we are now ſpeaking of., Nay, a Perſon at Man's Eſtate, who by a Shipwreck, or ſome other accidenc, is
caft upon an Iand that is Deſart and Uninhabited, will find himſelf in ſome degree of that ſtate of Nature, becauſe he'll be
forced to call to mind Arts, and other Conveniences of Life, that he may more eaſily provide for his Neceſſities. I have taken
this out of the Academical Diſcourſe of our Author, De ftatu hominum Naturali, S. 5.
(5) This appears from this Expreſſion in the firſt of thoſe Texts, And God made Coats of Skins and cloathed them ; which, ac-
cording to the Hebrew, imports, that God taught them to make them; for otherwiſe how could the firſt Men, who were deſti-
ture of all neceſſary Inſtruments of Iron, and before there was any Cuſtom to kill Beaſts, in ſo little a time find out that Inventi-
on, and bring it to any Perfection by their Induftry. From hence we may infer, in my Opinion, that Divine Providence inſtru-
cted them in ſeveral other things which were as neceſſary for human Life, and no leſs difficult to find out. So God commanded
our firſt Parents to till the Ground, and get their Bread by the Sweat of their Brows, or to that end, 'cis probable, he taught
them the Nature of the Grain, the Time of Sowing, and the Manner of Tillage and making Bread ; which Things they could not
have diſcovered of themſelves, but by long Experience and many Trials. The Hiſtories of Greece tell us, that the ancient Inha-
bitants there, having loſt the uſe of Bread-Corn, I know not by what accident, lived upon Acorns and wild Fruits, before the ufe
of Husbandry was reſtored among then ; whereas the Sacred Hiſtory tells us, that Adam's eldeſt Son was an Husbandman, which
Thews, that the Art was well known beföre; and conſequently, ſo was the uſe of Iron; for 'tis not neceſſary for us to underſtand
what the Scripture ſays of Tubal-Cain, Gen. iv. 22. that he was the Inventor of Iron; for we may ſuppoſe the more plain uſe of
thar Mecal was before diſcovered, and that Tubal-Cain found out a way of forging it into more curious Works ; for 'cis laid only
that he poliſhed all Works of Braſs and Iron. As ro Fire, the Invention of it among the Greeks was looked upon as ſuch a con-
fiderable Thing, that they feigned that Prometheus brought it down from Heaven. 'Tis related of the Inhabitants of the Canary
and Philippine Iſlands, and of an Idle bordering on China, called, Los Jordenas, that they knew nothing of Fire till the Spaniards
arrived there; and perhaps they had been in this Ignorance many Ages, neither their own Ingenuity, nor any Chance, having
been



CHA P. II. Of the Natural State of Man.
105
which they daily improv'd and increas’d by their (14) Peace, Security, (15) Riches, (16) Decency of
own Induſtry and Application; yet the Condition Ornament, Company, Elegancy, Knowledge and Bene-
of Men had been moſt deplorable and baſe, if no volence (6). And I believe there cannot be a more
Societies had been ſet on foot, bur every one effe&tual way found out to ſilence the Complaints
reign'd a ſeparate Prince in his own Family, and and Murmurs of the Common People, when they
ſuffer'd his Children, when once grown up, to pretend to find Fault with the Miſcarriages and
ſeek their Fortunes in a State of Natural Liberty. the Impoſitions of the Government, than if we
And then we might pronounce of all Mankind, as would lay before them a true Proſpect of the Mi-
Euripides does of the Cyclops, they would be ſery and Confuſion which attends a Natural State.
Which trouble thoſe Perſons had certainly a right
Nouides, ánée dos divideis deroso
Notion of, who brought into a Proverbial Saying,
(17) That unleſs there were ſuch things in the World as
as Wandring Swains; never hearing, and never heeding Courts of Juſtice, Men would infallibly devour one
Hobbes has (6) been lucky enough in another,
painting the Inconveniences of ſuch a State. Out III. What kind of Rights attend Men in a State
of Society (ſays (a) he) we are defended only by our of Nature we may eaſily gather, as well from that
ſingle Strength; in Society, by the Strength of all. Out Inclination common to all living Things, by
of Society no Man is (7) Sure to keep poſſeſſion of what which they cannot but embrace and pra&tiſe with
his Induſtry has gain'd; in Society every Body is ſecure the greateſt Readineſs and Vigour, all poſſible
from that danger. To conclude; Out of Society we have ways
of preſerving their Body and their Life, and
8) the Tyranny of Paſſions, (9) War; (10) Fear, (1r) of overcoming all ſuch Things as ſeem to drive
Poverty, (12) Filthineſ, Barbarity, Ignorance, and at their Deſtruction; as from this other Confide-
Wildneſs ; in Society we have the Sway of (13) Reaſon, ration, that Perfons living in ſuch a State are not

one another.

been able to gain the Uſe of lo neceſſary a Thing. See Geo. Hornius de Origin. Gent. American. Lib. I. Chap. 8. Lib. II. Chap. 9.
We find alſo, that ſeveral Nations have been ignorant a long time of the uſe of Iron, tho' they had Mines of that Metal in their
Country. We muſt then believe, that the firſt Men were early inſtructed by Divine Providence in theſe ſort of Things, and many
other Neceffaries of Life. And if a long time after we diſcovered ſome People among whom the Uſe was loſt, 'twas becauſe
they had choſe a barren Country, or becauſe ſome ambitious Perſons had forced great Numbers of Men, by their irrefiftable Power,
to fly into far diftant Deſarts, where they wanted all the Inftruments of Tillage uſed in the Places they had loſt; or ſome Colony
going to ſettle itſelf in a far Country, neglected to carry thoſe Inſtruments, or loſt them by the way, by ſome unknown Acci-
dent, after which 'twas very hard to recover them, becauſe Traffick was not yet fettled. Nevertheleſs, fome have endeavoured.
to ſupply chis Defect, by making uſe of other Materials for the ſame End. Thus ſeveral People of America uſe, inſtead of Iron,
Oyſter-ſhells, the Bones and Teeth of fome Creatures, Canes, and ſuch like Things.. See Dapper's Deſcription of America. This
is alſo taken out of our Author's Treatiſe quoted in the foregoing Note.
(a) De Cive, c. 10. f. 1. (6) Comp. Polyb. l. 4. c. 45. Where he relates the Miſeries uf the Byzantines, occaſion’d by
their endleſs War with the Thracians.
(6) Our Author ought not to have approved Mr. Hobbes's words fo generally, as Mr. Titius has obſerved, (obs. 450, 461.) as
I ſhall fhew in this and the following Nores. And firit, what Mr. Hobbes ſays is not abſolutely true; for what hinders but in a
ftare of Nature, many may join together in their own Defence ? I own, that ſuch a Protection, tho' founded upon an united
Force, is not comparable to what is found in a well Regulated Society; but this may in fome meaſure be fufficient to guard
us from the Inſules that we are liable to in a ſtate of Nature, becauſe 'cis not likely that we ſhall be attacked by ſo great a num-
ber of Enemies at one time; for it often happens in a Civil Society, that Private Perſons are oppreffed by the Forces of the
whole Body, an Inconvenience not to be feared in a ſtate of Nature.
(7) On the contrary, In the ſtate of Nature we ſeem to enjoy, for the moſt part, the Fruits of our Labour with greater Sea
curity; for poor Subjects are very often flea'd by evil Princes.
(8) This he ought alſo to have proved, for why ſhould our Paffions have greater Command of us then ? If the Fear of Laws
keeps the People to their Dury, it will make a like Impreſſion upon the Great Ones, and Perſons of Quality, but they eaſily find
our ways to evade the Laws; for thoſe in whom the Paſſions reign with the greateſt Fury, and in a manner moſt prejudicial to
Society, are beyond Contradiction theſe Perſons in Authority, of which we can't find any Examples in a ſtate of Nature, nor cauz
any there be in a Condition of doing ſo much Miſchief.
(9) Wars are nor a neceſſary Conſequence of a ſtate of Nature, and our Author proves it a little lower,'S. 5. againſt Mr. Hobbes.
There would be doubtleſs ſome Wars, but neither 10 furious, nor ſo cruel, nor with ſuch great Armies, as to lay wafte large
l'rovinces and great Kingdoms.
(10) There want not as niany means to appeaſe and leſſen Fear. See what is ſaid Lib. VII. Chap. 1. S. 7. And in Civil Go-
vernments is there not often more reaſon for terrible Apprehenſions from Princes and their Miniſters.
(11) Labour and good Husbandry would eafily furniſh us with all things neceffary for Life. None but Sluggards and Prodigals
would fall into Poverty, and this often happens as well in Civil Societies.
(12) This is founded upon the falſe Hypotheſis of Mr. Hobbes, that A State of Nature is a ſtate of War. But that Civil Socie
eties are not free from theſe Inconveniences, the Empire of Muſcovy ſhews, as alſo do ſeveral People of Aſia, Africa, and America,
which are neither leſs Miſerable nor Barbarous for having a King.
(13) Whence come thoſe Monſters of Ambition, Coverouſneſs, Pleaſure, Cruelty, and Inhumanity, which ordinarily reign in
the Courts of Princes, and whoſe contagious Examples ſpread almoſt always to their Inferiors?
(14) The horrible Perſecutions which the Subjects ſometimes ſuffer, and the bloody Wars which often harraſs the moſt flou.
riſhing States and Empires, prove, that Peace and Tranquillity do not more ordinarily flouriſh in Civil Societies, than in the ſtate
(15) How comes it to paſs that we ſee ſo many reduced to Beggary, and ſo many Subjects raind by Extortion?
(16) Under theſe fine Names are often hidden Vanity, Sortifhaeſs, Folly, Peđantry, irrégular Paſſions, and ſubtle Cheats.
There is no good thing that can be ſecured to us by Sociery, but it may have place in a ſtate of Nature. Further, this Beauty,
Politeneſs, and Pleaſures of Life, of which Men boaſt fo, are found only in great Cities; the Ruſtick Behaviour is fill kept up
every where in the Country, in the moſt Civilized Kingdoms. Let us then, by way of Concluſion, make an exact Parallel be:
tween che States of Nature and Civil. Experience teaches us, thac contrary to the Natural Appointment of the Creator, and
thro' Man's Corruption, boch States are often troubleſome and unhappy ; but Civil Government being a proper Means to reſtrain
the Malice of Men, the Civil State, without Contradiction, may be more Sociable and Happy than tlie ſtace of Nature ; but then
we muſt ſuppoſe the Civil Society to be well governed, otherwiſe, if a King abuſe his Power, or devolves the Management of
Civil Affairs to Miniſters both Ignorant and Vicious, as it often happens, a Civil State is more unhappy than the State of Nature ;
which appears by the Wars, Calamities, and Vices which ſpring up from ſuch Abuſes, and from which the ſtate of Nature is free.
See what Mr. Loćke ſays in his ſecond Treatiſe of Civil Government, Chap. 1. S. 10. and Chap. 18. 9. 17. near the End.
(17) 'Tis a Proverb of the Jewiſh Doctors. See Grotius, Lib. I. Chap. 4. §. 4. num. 2:
P
ſubject

of Nature.
106
Of the Natural State of Man. BOOK II.
fubject to any Sovereignty or Command. For one, to do all things whatſoever and against whomſoever
from the former Reflexion is follows, that Men be pleas’d; and to poſleſs, uſe, and enjoy all that he
plac'd after this manner in a Natural State, may would or could. Whence it may be underſtood, that in
uſe and enjoy the Common Goods and Bleſſing, a State of Nature, Profit or Utility is the Meaſure of
and may act and purſue whatever makes for their Right. Which Notions, however Paradoxical they
own Preſervation, while they do not hence injure appear at firſt View, yet no Man can fairly draw
the Right of the reſt. From the latter Suppoſiti- from them a Licence of doing any thing to any
on it is clear, that they may uſe not only their perſon, who conſiders that Hobbes, even in this
own Strength, but their own Judgment and Will State of Nature, ſuppoſes a Man ſubject to the Laws
(provided they are form’d and guided according of Nature,and to the Government of (1) found Rea-
to the Law of Nature) for procuring their own ſon. But ſince ſuch an unbounded and injurious
Defence and Safety. And in this reſpect likewiſe, Licence could never, by any Man in his Wits, be
the State we are treating of has obtain'd the Name thought a likely Means for the laſting Preſervation
of Natural Liberty ; in as much as, antecedently
antecedently of himſelf, we muſt preſume that it was never
to all Human Pact and Deed, every Man is con- granted or intended by Nature. And ſuppoſe
ceiv'd to be perfectly in his own Power and Dif- ſome Man ſhould be ſo extravagant as to endea-
poſal, and not to be controllid by the Pleaſure or vour the putting it in Practice, it's plain his Ex-
Authority of any other. On which account too, periment would turn in a high manner to his own
every Man may be thus acknowledg’d equal to Prejudice and Miſchief. So that the only fair
every Man, ſince all Subje&tion and all Command Senſe of Hobbes's Principle is this ; the Things
are equally baniſh'd on both ſides. According to which make for the Preſervation of Men, Nature
this Temperament, we ought to correct and ex- has láid in common, before they have divided
plain thoſe Aſſertions laid down by Mr. Hobbes, them amongſt themſelves by Covenant : And he
in the beginning of his Book De Cive, That the first that has no Superior, may by the Direction of his
Foundation of Natural Right, is the Liberty which each own beſt and ſoundeſt Reaſon, do any thing that
Man hat), to preſerve, as far as he is able, his own is truly conducible to his laſting Safety. But if
Life and Limbs, and to apply all his Endeavours to- that Philoſopher really intended his Words, with
wards the guarding his Body from Death, and from Pains. the ſame Harſhneſs, and the fame groſs Appear-
From which it follows, That ſince 'tis in vain to ance which their Countenance bears, and to re-
have a Right to the End, if one bas not likewiſe a Right ject our kind and favourable Interpretation, the
to the Means, therefore every Man has a Right of uſing Fault is his own, and let him ſhift how he can to
all Means, and of doing all Actions, without which he eſcape the perpetual Cenſure and Reprehenſion
cannot defend and enſure himſelf. But now ſince in of wiſe Men. This is evident, that the Author of
a Natural State no Man is ſubject to another as to the Theologico-Political Treatiſe, who goes common-
a Superior, to whoſe Pleaſure his own Will and ly by the Name of Spinoſa, has deſcrib'd that Right
Judgment ſhould be ſubmitted, hence every Man is of all Men to all Things which atrend a Natural
by Natural Right a Judge, whether the Means which štate, in moft horrid and barbarous Terms; and
he uſes, and the Actions which he performs, are neceſſary therefore it may not be improper to take the Trou-
to the Preſervation of bis own Life and Limbs or not, ble of diſcuſſing his Notions on the Point. By the
For altho’ in this Cafe one Man ſhould pretend to Right and Inſtitution of Nature, he underſtands no-
give Advice to another, yet the other not having thing elſe, but the Rules of the Nature of every In-
ſubjected his Will and Judgment to his Controul, dividual thing, according to which we conceive every
ſtill judge of this Advice, whether it be pro one of them to be naturally determind to a certain man
per and expedient to be follow'd or not. And her of Exiſtence and of Operation. For example, Fiſhes
therefore he may, perhaps, do according as he was are naturally determin’d to ſwim, and the bigger of them
advis’d, but then it will not be for the ſake of the to eat the leſſer; and therefore Fiſhes, by the highest Na-
Counſellor, but becaufe he himſelf approves of tural Right, pleß the Water; and by the ſame Right,
the Propoſal ; and confequently he will at laft a&t. the larger kinds of them prey on the ſmaller. Here it is
by the Determination of his own Judgment. obfervable, that by the Term of Right he does not
From all which he concludes, That Nature has gi- expreſs any Law diređive of an A&ion, but only
one a' Right to all things; that is, in a the Power of acting (2) and what may be done
meer natural State, or before Men had bound themſelves without Injury, and that therefore 'tis by no means
to one another by any Covenants, it was lawful for every a fair Conclufion, that one ought neceſſarily to do



may

ven to
every
*

S. III. (I) Mr. Hobbes, as he himſelt ſays in á Note upon Ş. 1. of the ſecond Chapter, underſtands by Right Reaſon, nor as
moſt do, the Infallible Faculty, but the Power of Reaſoning, i. e, the proper and true Arguings which every one makes uponi
his own Actions, ſo far as they conduce to the Advantage or Decriment of other Men. If we ask him what is this true Reaſon-
ing, he'll anſwer, It is founded upon the Principles laid down in the foregoing Chapter, S. 2, 3, 4, 5, 6, and 7. upon the State
of War, wherein he ſuppoſes all Men to be naturally one againſt another; a falſe Suppofition, which our Author will confure a
little lower, S. 5, c. So that we ſee, that according to Mr. Hobbes, all is reduced to every Man's Judgment, either well or ill
founded. This appears clearly from what he poſitively maintains, That in whatever manner a Man deals with a Perſon, with whom he
makes a Bargain, or Contralt, he does him no Injury; See above Lib. I. Chap. 7. §. 13. If a Man fins againſt GOD, or the Laws of Na-
ture, "tis, according to him, becauſe we prerend ſomething is neceſſary for our Preſervation, which we know in Conſcience nor
to be fo. Note on Chap: 1. S. 10. See alſo that on Chap. 3. $. 27. .
(2) The Words of the Original, in all the Editions of Germany and Holland (for in that which the Author publiſhed at Lunden
in Sweden in 1672, there is nothing of this Confutation of Spinoza) not excepting that which Mr. Hirtius put out in 1706, the
words are placed as we find them in this Engliſh Edition, but they make a ſtrange Horch-potch; for if we examine into the ſequel of
the Diſcourſe, and the Deſign of the Author, we may eaſily diſcern them miſplaced; for theſe laſt words, And what may be done
without Injury, ought not to refer to the pure Faculty of acting, which may do a great deal of Injury, but co the Laws, which
forbids doing an Injury to any Man, and therefore I have placed it in its right Order in my Tranſlation,
all
CHAP. II. Of the Natural State of Man.
107
tot
all thoſe things, which one has (3) a Right of do- fo contradiſtinguiſh'd to Free Agents: And there-
ing. Farther, as it is an improper Acceptation of fore Men, as to thoſe Actions which are left to their
the Term of Natural Law, to make it denote that own Guidance and Direction, are determin’d to
according to which every thing acts by a certain certain Ways and Courſes not by Nature, but by
and determinate manner, ſo is it likewiſe impro- fome Law; and conſequently they are not pre-
per to apply the Name of Right to that Power and ſently inveſted with a Right of doing all things
manner of acting which appears in Irrational Be- within the reach of their Natural Powers and
ings : For he alone can be truly ſaid to have a Abilities. But the Vanity of ſuch Reaſonings will
Right of acting, who acts on previous Reaſon and more fully appear, if diveſting them of their dark
Deliberation. He proceeds to tell us, That Nature Turnings and Intricacies we chus clearly propoſe
abſolutely conſider'd has the highest Right of dying what-them; God has the higheſt Right to all things ;
ever it can; that the Right of Nature extends itſelf as the Power of Nature is the Power of God, there-
far as the Power of Nature : for the Power of Nature fore Nature has a Right to all things : But the
'as the very Power of God, who hath the highest Right Power of Nature is the Power of all the Individu-
to all things. Here, if by Nature abſolutely conſider'd, als together; therefore each Individual has a Right
(4) he mean God in conjunction with all created to all things. Let any Man judge whether the
Things, we grant his Aſſertion, and willingly ac- Connexion in this Argument be juſt or not. Spi-
knowledge in God the higheſt Right to all things, noſa very fallly declares, that in this point no diffe-
yer ſuch a Right as is ſuited to the Perfections of rence ought to be made between Men, and the other Indi-
his Eſſence. But if by Nature he underſtand the viduals of Nature ; or between Men who underſtand
Univerſity of Created Beings, as contradiſtin- and exerciſe Reaſon, and thoſe who do not ; nor between
guiſh'd to the Creator, then we may deny the Men in their Wits, and Fools and Madmen. For, as
Power of Nature to be the Power of God him to the firſt part of this Aſſertion, the Queſtion
ſelf, or that theſe two Powers have the ſame La- of Right ought not to proceed but about
titude and Extent. The Power of Nature is in- the Right of Men. And as to the latter part,
deed produc'd by God, but not in ſuch a manner aliho' ſome Men may have a quicker and ſome a
as to exhauſt all the Power of the Divinity, but flower uſe of Reaſon, yet whoever has any uſe at
to contain itſelf within the Bounds preſcrib’d by all of that Faculty may at leaſt underſtand thus
its Author. His next Inference runs thus, Since much, that (6) in order to his own Preſervation
the univerſal Power of all Nature is nothing elſe but the he has no need of an unlimited Right to all things,
Power of all the Individuals taken together, it follows and that therefore ſuch a Right doth by no means
that each Individual has the highest Right to all things belong to him. As for thoſe who have no manner
that it can compaß, or that the Right of each Individual of uſe of Reaſon, 'twould be frivolous to diſpute
extends itſelf as far as the determinate Power of the about their Right; nor from the unhappy Cir-
Same Individual. But 'tis beyond me to apprehend cumſtances of diſeas’d Perſons, can we pronounce
the Concluſiveneſs of this Argument, The Power of any thing about the Natural Condition of Man-
all Nature is the Power of all the Individuals together; kind : Nor is it impoſſible for any one of theſe
therefore each individual has the highest Right to all poor Creatures to be preſerv'd otherwiſe than by
things. For is it not rather true, that each Indi a Right to all things. The Reaſon which he ſub-
vidual has a certain and definite Share or Por- joins is equally vain and fruitleſs, For whatſoever
tion of Right; and that therefore no particular any thing ałts by the Laws of its Nature, it acts with
Individual can fairly arrogate to itſelf that Right the bighest Right; in as much as it a&ts as it is by Nam
which is proper to all ; as they make up one Uni- ture determind, and cannot do otherwiſe. Becauſe we
verſal Nature ? He adds, And becauſe it is a ſupreme deny Man when he acts by the Laws of Nature,
Law of Nature, that every thing endeavour as far as to affect a Right to all things, or to be determin'd
it is able to continue in its own State, and this not with by Nature to the Exerciſe of any ſuch Right.
any regard or reſpe&t to other things, but only to it- Spinoſa's Concluſion therefore is falſe, Amongst
Self, benoe it follows, that each individual has the high- Men, as they are conſider'd to live only under the Coma
Reaſon
operate as it is naturally determin’d. Here, beſides that of Reaſon, or who has not yet acquir’d a Habit of Vire
Law of Nature is us’d in an improper Senſe, it is tue, doth as well by the highest Right live according
apparently falſe as to Men at leaſt, that their Na- to the Laws of his Appetite, as be who directs bis Life
ture is ſo determin'd, as to make them endeavour by the Laws of Reaſon. That is, as a wife Man bas
their own Preſervation and Continuance (5) with the highest Right to all things which Reaſon ſuggests, or
reſpect to themſelves only, without any Care or according to the Rational Laws if living ; lo an igno-
Conſideration for others. Properly ſpeaking, thoſe rant and ſenfeleſ Perſon has the highest Right to all
things are ſaid to be Naturally determin'd which things which bis Appetite affe&ts, or according to the
are tied to an uniform Method of ačting, and are Laws of living by Appetite. But now the Natural








(3) In Reality, the meer Phyſical Power of doing a thing does not prove, that we are indiſpenſably obliged to do it, nor that
we can lawfully do it if we will; at leaſt, it ſuppoſes what is in queſtion, chat a Phyſical and Moral Power are one and the ſame
thing.
(4) We may fee plainly enough that Spinoza does not acknowledge 'a GOD, or ſuch an Intelligent Being as is all Perfect,
What he calls God is nothing but the World, which he ſuppoſes eternal, and not created.
(5) See S: 5. below, and the following Chapter, where Society is created on.
() This is ſo true, that Mr. Hobbes, whoſe Notions at the bottom are not much diſtant from Spinoza's, makes a neceſſicy to
come to fome Agreements, which according to him are the foundation of Juſtice, upon which it could not be poſſible to preſerve
ourſelves, by making uſe of that boundleſs Right about every thing, and against all Men. See his Book de Cive, Chap. 1. 9.11.13.
and Chap. 2. 5. 3. Spinoza himſelf, as our Author obſerves at the end of this Paragraph, afferts, That it is more advantagious to
follow the Maxims of Reaſon, than the Defires of Nature only,
State

P 2
108
Of the Natural State of Man. Book II.
ſes away;
and
State or the Command and Dominion of Nature, thing which it's poſſible for the Appetite to purſue. This
ſuppoſes Reaſon in Men, nor are other Laws pre- Affertion, if applied to Men, is manifeftly falfe
ſcrib'd to the fagacious and others to the ſimple. and abſurd. But if it includes all living Creatures,
Thoſe who are govern'd purely by Appetite, are and be meant in this Senſe, that there is no Way
Subjects incapable of Right or Law. But when or Manner of Self-preſervation, which ſome Ani-
the Appetite in Men proceeds contrary to their mate Being doth not follow and inake Uſe of,
Reaſon, they are ſo far from living by any Right, out of Natural Inſtinct, then it is nothing to the
or by any Laws, that they are continually guilty Purpoſe ; ſince the only Queſtion is, whether
of tranſgreſſing the Laws. The Corollaries which Men have ſuch a Right to all Things, as they may
he deduces are no truer than the foregoing Propo- uſe againſt all other Men. Bue that Spinoſa inten-
fitions. The Natural Right of each Man is not deter- ded the latter Senſe is evident from what follows,
mind by found. Reaſon, but by Defire and by Power. And no wonder, for Nature is not reſtrain’d to the Laws
For all Men are not naturally determin’d to operate ac- of human Reaſon, which concern only the true Profit and
cording to the Rules and the Laws of Reaſon; but on the Preſervation of Men; but comprehends an Infinity of
contrary, all are born ignorant of all Things, and before other Things, which fall under the Univerſal Order of
they can attain to know the true und rational Way of all Nature, of which Man is but a little part. He
Living, and acquire the Habit of Virtue, a great part afterwards confeffes, that it is more convenient
of their Age, (altho’ they have been well educated,) paf- for Men to live according to the Laws and infalli-
get notwithſtanding all this, they are in ble Dictates of Reaſon, which point out their true
the mean time bound to live, and to preſerve themſelves Intereſt and Advantage. But then what occaſion
to the beſt of their Power; and this Obligation is fulfil- was there for the feigning of ſuch a Right, as
led by obeying the fole Motion of their Appetite
, ſince Na- Man, if he intended to be ſafe, muft neceſſarily
ture' has yet given them no other Guide, denying them relinquiſh ; while other Animals, which exerciſe
the actual Power of living by ſound Reaſon ; and there a kind of Right to all things, lie under no Necef-
fore they are no more obligd to live by the Laws of true fity of quiting it for their own Preſervation ? Nei-
Senſe and Judgment; than a Cat is obligʻd to live by ſuch ther indeed, could ſuch an abſurd Abdication be
Laws as are proper only to the Nature of a Lion. For neceſſary for Man, upon fuppofal, that Nature had
to make a Man obligʻd to live according to Rea- inveſted him with the fame Right.
fon, it is not neceffary that he ſhould be naturally IV. We are ready to acknowledge it for a moſt
determind to act according to the Laws of Reaſon, certain Truth, that all Mankind did never exiſt
that is, that he ſhould not be able to act otherwiſe; together in a mere Natural State: In as much as
but it is ſufficient, that he has ſo much Natural upon the Divine Authority of the Scriptures, we
Power, as may enable him to abſtain from bring- believe all human Race to have proceeded from
ing Injuries and Troubles on other Men; than one original Pair. Now it's plain that Eve was
which nothing in the World can be more eaſy. ſubject to Adam, Gen. iii. 16. and thoſe who were
Neither is the Manner and Method of preferving born of theſe Primitive Parents, and ſo on, did
himſelf ſo very difficult and laborious, as to make immediately fall under Paternal Authority, and
him ſtand in need of a Right to all Things. And under Family Government. But ſuch a State
then from him who through Defect of Age is yet might have befallen Mankind, if, as ſome of the
in abſolute Ignorance, none can require a more Heathens believ'd, they had in the beginning of
accurate Direction of his Proceedings, than is con their Being, leapt out of the Earth like Frogs, or
fiftent with his low Capacity, and his ſmall and had come up from Seed, like Cadmus's human
feeble Efforts of Reaſon. But that what is done Crop, Ovid. Metamorph. L. 3. ver. 122, 123. Which
in this State of Simplicity may not prove very Fable is, methinks, a very exact Repreſentation
hurtful or troublefome to others, Nature has care of that State of Nature, and of chat War of all
fully provided; by giving it fo little Strength of Men againſt all, which Hobbes would introduce ;
its own, and by commending the Care and Gui- where
dance of it to thoſe of maturer Years, The fol-
lowing Inference is as falſe as the former. Wbat-
-furit omnis turba, fuoq;
foever therefore any one, confider'd only under the Com Marte cadunt fubiti per mutua vulnera fratres.
mand and Guidance of Nature, ſhall judge convenient
for himſelf, either by the Direction of Reaſon, on by the Rage hurries all; and in fo blind a Fray,
Impulſe of his paſſions, this by the bigheſt Natural Right The ſudden Brothers fall a mutual Prey.
be may deſire, and may feize upon by whatever he can,
whether by Force, or by Fraud, or by Entreaty, or the
A State of Nature then did never naturally
eaſieſt way be can think of ; and conſequently be may rec- exift
, unleſs qualified, and, as it were, in part';
kon every one his Enemy, who would binder him from namely, while ſome Party of Men join'd with
ſatisfying his Inclinations. As alſo this, Whence it ſome more in a Civil Body, or in ſome Confede-
follows, that the Right and the Inſtitution of Nature, racy like that; but ſtill retain’d a natural Liberty
under which all are Born, and the moſt part Live, is a- againſt all others.
againſt all others. (Tho' it muſt be own'd that
verſe to nothing, befides that which none can deſire, and the more and the ſmaller thofe Societies were,
which none can binder ; not to Contentions, not to Ha- into which Men at firſt divided, the nearer Ap-
tred, not to Anger, not to Deceit, nor abſolutely to any proach was made to a meer Natural State. (2)Thus





S IV. (2) The three Senrences following, in my Opinion, are unfitly placed, and may better be ranged thus, Thus in the
Primitive Age
Liberty, And when of Old Mankind-
among Men, Therefore not the firſt Mortals, doc. Ler the Reader
judge.
of
CHAP. II. Of the Natural State of Man.
10g
7

ſhould govern himſelf and his Actions by the
of Old, when Mankind were parted into di- firſt and principal Point? This firſt and principal
ftinct Families, and now ſince they are fallen Point muſt be Government, or the Sovereign
(3) into ſeparate Communities, thoſe might have Power in Society, without Regard to which, no
been then, and may now be ſaid to live mutually Society can be defir'd by Thinking and Speaking
in a State of Nature, neither of whom obey the Beings. Nature it ſelf inſtructs us, that Govern-
ochers, and who do not acknowledge any Com ment is eſſential to all Society, but that ſuch a Li-
mon Maſter among Men. Thus in the Primitive berry as excludes all Government, tends to unna-
Age, when Brethren left their Father's Houſe, and tural Confuſion. Add. Becler. ad Grot. Proleg.
ſec up particular Families for themſelvesindependent What may be return'd in anſwer to all this Pro-
from any other, then they began to live in a Na- ceſs of Argument, is clear from the preceeding
tural State or Liberty. Therefore not the firſt Doctrine. A meer Natural State, is a Repreſenta
Mortals
, but their Offspring, did actually exiſt in tion of Mens Condition abſtracting from all hu-
ſuch a State. Now a State of Nature thus tem man Inſtitution; but doth not ſuppoſe that Nature
per'd and qualified, is attended with none of thoſe intended Man for ſuch a way of Life (5). For
Inconveniences which follow a meer natural Li. by the fame Allowance of Expreſſion, an entire
berty, eſpecially if we apply it to Publick Com- Ignorance of all things may be ſaid to be natural
munities : And beſides, it paſſes for the higheſt to Man, or to be born with him ; without imply-
Pitch of Honour amongſt Mortals, by vertue of ing any ſuch thing as that it ſhould be repugnant
the united Strength of the whole publick Body, to to Nature for Men to acquire very high Degrees
acknowledge ro Earthly Superior. So chat Com- of Knowledge. Beſides, we have been fo cauti-
monwealths, and the Governors of them, may ous as to attribute no ſuch Natural Liberty to Man,
fairly declare themſelves to be in a State of Natus as ſhall be exempt from the Obligation of Natural
ral Liberty, while they are furniſh'd with ſuffici- Law, or of Divine Commands. But ſuch a Li-
ent Strength to ſecure the Exerciſe of that Grand berty as excludes all human Sovereignty and Su-
Privilege. Whereas, when Men live ſingly in a periority cannot be ſaid to contradict Nature, any
meer Natural State, it is no manner of Pleaſure more than it can be ſaid to reach as far as Infinite
or Advantage to them to own no Superior; in as it ſelf. Government indeed is Natural ; that is, it
much as upon account of their own ſmall Force was the Deſign of Nature that Men ſhould conſti-
and Ability, their Safety muſt needs be in perpe- tute Governments amongſt themſelves. But this
tual Doubt and Danger.
doth not make it e'er the leſs Natural, that he
There are ſome indeed who maintain with great who himfelf bears the ſupreme Government and
Eagerneſs, that ſuch a Natural State either doth Command amongſt Men, ſhould himſelf be ex-
not at all exiſt, or is not rightly call’d Natural; empt from all other human Command, and in that
and they form their Argument in the following Senſe ſhould enjoy a Natural Liberty: Unleſs in
Manner. Nature inclines Men to an Orderly So- the ſame Order, we can fancy ſomewhat before the
ciety or Fellowſhip; now there being no ſuch thing first, fomewhat Superior to the Supreme. Upon
as Order without Government, it follows that there the fame Account it is in general very agreeable
can be no Society without Government, and that to Nature, that he who hath no Lord or Maſter
to be ftild Natural than Liberty. To ſtrengthen Guidance of his Private Reaſon.
this Aſſertion, they alledge the Authority of Cicero,
(4) Nothing (ſays he, De Leg.lib.3.c.1.) is ſo agreeable V. There is a Diſpute of much greater Conſe-
to the Right and to the Condition of Nature, as Go- quence, whether this Natural State, in Regard to
vernment : Without which no Houſe, no State, no Nas other Men, bears the Semblance of War or of
tion, not Human Race in General, not the Univerſal Peace: Or, which comes to the fame Thing,
Nature of Things, not the World it ſelf could ſtand. whether they who live in a State of Nature, that
For the World obeys GOD, and the Seas and the Earth is, who do neither obey one another nor own a
obey the Superior Frame of the World, and the Life of Common Lord, ought to be reckon'd Enemies
Man is led in Conformity to the High and the Sovereign amongſt themſelves, or quiet and peaceful Friends.
Law. Hence they bring a general Accuſation a And here our firſt and chief Buſineſs muſt be to
gainſt Hobbes, for feigning ſuch a State under the examine the Opinion of Hobbes, who as he calls
Name of Natural, as is unworthy of human Na- his meer natural State not a ſingle War, but a Waç
ture, and more agreeable to that of Beaſts, who of all Men againſt all, fo he maintains, that when
are ignorant of Reaſon and of Speech. For that ſome Men have agreed to enter into
all Men have a Liberty of doing, of deſiring, of immediately quit their hoftile State in Regard to
pofſefling all Things, no Reaſon, no Nature truly one another, but ſtill continue againſt all the reſt
y judging can adviſe. Such înclinations of the World. Thus in his Book de Cine, c.9.6.3:
may indeed flow from depraved Nature, but can. Every Man is an Enemy to
to every
Man whom he neither
not be the Dictates of right Reaſon, which by ſerves nor obeys. (He ought to have added, and
defiring Society, doth at the ſame time deſire an with whom he has no Common Maſter.) And again,
Order in Society, and by that means cuts off all C. 13. S. 7. The State of Commonwealths amongſt thema
ſuch licentious and irregular Motions. For what ſelves is Natural, that is
, Hoftile. And tho they ceaſe
Order can be conceiv'd without tending to ſome to Fight, yet this Intermiſſion muſt not be calld & Peace,
(3) See Plato concerning this whole Matter, De Legib. lib. 3. a good way from the Beginning. P.680, 681. Tom. 2. Ed. Steph.
and Ariſtotle's Politicks, lib. 1. chap. 2. Edit. Pariſ.
(4) He means by ie the Law. Theſe are his Words, Nihil porrò tam aptuin est ad jus, conditionemque Nature (quod cùm dico,
Legem à me dici, & nihil aliud intelligi volo) quam imperium, fine quo nec domus ulla, nec civitas, nec gens, nec hominum univerſum
genus ftare, nec rerum natura omnis, nec ipſe mundus potest. Nam & hic Deo paret, do huic obediunt maria, terræque, co hominum
vita juſſis ſupreme Legis obtemperat.
(5) See Chap. 3, s. 13 and 16, following, at the beginning.



rightly
bhi
II
Of the Natural State of Man.
Book II.
but a Breathing-time, during which each Enemy, obſer- founded almoſt all the Pretenſions and all the De-
ving the Motions and the Countenance of the other, rates bates which can fall out between the Governors
bis
Security, not by Covenants, but by the Strength and of one Common-wealth, and their Neighbours of
Deſigns of bis Adverſary. (He ſhould have added, other Countries or Dominions; we imagine it will
and by his own Force (a). ) He adds, in his Levia not be loft Labour, if we proceed to a cloſer and
than, cap. 13, That Wur conſiſts not in Battle only, or a ſtricter Diſcuſſion of the Arguments alledg’d on
the Act of Fighting, but in a Traťt of Time wherein the either hand.
Will to contend in Battle is ſufficiently known: And
VI. That the State of Nature then is a State of
that therefore the Notion of Time is to be confider’d in War, Hobbes endeavours in this Manner to demon-
the Nature of War as in the Nature of Weather. For ſtrate. The Reaſon why Man is continually in
as the foul Weather lieth not in a Shower or two of Rain, Fear of Man, and conſequently in a State of War
but in an Inclination thrreto for many Days together : with him, he draws from this Principle, that
So the Nature of War confifts not in actual Fighting; Men have both the Power and the Will of hurting
btt in the known Diſpoſition thereto, during all the Time one another. That they have the Power of hurt-
there is no Aſſurance to the contrary. Nor indeed was ing one another, he fhews by obferving that Men
Hobbes the firſt Inventor of theſe Notions; for we of ripe and ſettled Age, are commonly equal in
meet with ſomewhat much of the ſame Strain in Strength. For thoone may frequently have the
Plato's Firſt Book of Laws; where Clinias a Cretan, Advantage of another in bodily Force, yet ’tis
is giving the Reaſons why the Law-giver of that poſſible that the Weakeſt may kill the Strongeſt,
Country introduc'd a great number of Ordinances either by ſecret Machination, or by Confederacy
in Reference to Military Affairs, he concludes, with others; in as much as the Stouteſt Mortal
(1) By which Condu&t be ſeems to me to bave, accus' has his vital Parts no better enſur’d from extreme
many Men of extreme Folly and Ignorance, in their not Violence, than the moſt Puny and (1) Impotent
being ſenſible, that all Cities are in a perpetual War with Wrerch (6). Neither is it probable that a larger
all. And that which we call Peace is no more than a Degree of natural Cunning (in which, of two
bare Name, while in Reality Nature bas ſet all Commu- Men one commonly exceeds the other) ſhould be
nities in an unproclaim'd War againſt one another. able to ſecure a Man's Safety, while he has no
We may obſerve, by the way, that ſome Au- Guard and no Protector but himſelf. Farther,
thors have given a very anaccurate Explication of ſince the greateſt Evil that Men can bring upon
this great Queſtion; while they tell us, that by a one another is Death, and ſince this may as well
natural State is underſtood that Condition by be brought on the ſtout by the weakly, as on the
which we are conceiv'd to live fingly, or out of weakly by the ſtout, he fays it follows that thoſe
Society; and that this is a State of War, that is, who can bring on one another the greateſt Evil,
of Inclination to poſſeſs what another hath, and muft, in Effect be of equal Power and Strength.
to drive the Owner from it ; ſo that their whole As to the Will of hurting others, this, he ſays,
Meaning amounts to this, that if Men liv'd with-is in ſome Men out of Neceflity, and in fome out
out all Society, they would be engag'd in a perpe- of Luſt and Pleaſure. For while ſome are for
fual Quarrel; or, if Men did not lead a Social living as they lift, for arrogating to themſelves
Life, they would continue in a State of endleſs undue Honours, and for petulantly ſetting on
Diſcord. But now here's a great Impropriety com their quiet Neighbours, it's impoflible but that
mitted, the oppoſing a State of Nature to a Social thoſe Neighbours, how modeft foever they may
Life ; for thoſe who live in a State of Nature both be, and how willing foever, to allow others an e-
may, and cught, and frequently do, conſent to qual Liberty with themſelves, muft neceffasily de-
live Socially
fend themſelves againſt the Violence of their Al-
But ſince, upon this Queſtion rightly ſtated, are ſailants (c): Beſides, he tells us, that the Will of




(a) Juſt as Oppian deſcribes the State of Fiſhes, Halient. I. 2.
Jn mutual War they ſwim, and mucual Hare,
And hence the Scaly Tribes, with wakeful Eyes,
The Weak the Strong, the Smaller feed the Great : Still watch, and live and die upon Surprize.
Deſtructive Rage boils in the reſtleſs Flood;
Unfixt, Unwearied, all their Age they ſtray,
Each frights and fears, purſues and is purſu'd. In Hopes or Fears to find or prove a Prey.
(b) Seneca de Ira. l. 1. c. 3. There is no one fo lowo or contemptible who may not hope to wreak his Revenge on the greateſt Person,
We are all ſtrong enough to do Miſchief.
(c) It is very probable there may be ſome Perſon like Achilles,
Jura negat fibi nata, nihil non arrogat armis.
| Scorning all Judges and all Law but Arms,
Or like thoſe whom Manilius deſcribes,
Nec pacem a bello, civem diſcernit ab hofte,
Who make no Difference between War and Peace,
Ipſe ſibi lex eſt, dos qua fert cunque libido,
Bur Friends and Foes with equal Fury ſeize.
Precipitat vires : laus eft contendere cuntis.
They every Thing to wild Condition draw;
Their will their Ruler, and their Sword their Law.
Nulla quies placet, in nullo funt otia fru&tu,
They ſcorn chat Reft which private Minds enjoy,
Sed populum, turbamq; petit, rerumq; tumultus,
Bur fawn upon the Crowd, and court Employ,
Seditio, clamorq; juvat.
Love Noiſe, and Stirs, and Tumults.
M. Greech,
S.V. (1) Plato's Words are, "Avorav s moi donc xatuz vāvou T zonawy ces & parlavbylwv,87 zóneu o dei mã oi de Bis Zwog's
ési megs de recous Tai's mes ώ και καλεσι οι πλείσει και ανθρώπων είρωω, σατ' άναι μόνον όνομα, τω δ' έργα πάσαις προς
πάσας τας πόλεις αεί πόλεμον ακήρυκον κατα φύσιν ε3). De Legibus. lib. Ι. princ.
S. VI. (1) Seneca's Words are, Deinde nema tam humilis est, qui pænam vel ſummi bominis fperare non poſſit. Ad nocendum potentes
ſumus. We may add what Q. Curtius delivers in a Speech to the Scythians, Leo quoque aliquando minimarum avium pabulum fuit.
Nihil tam firmam est, cui periculum non fit etiam ab invalida, Lib. 7. Chap. 8. Num. 15.
hurting
CHAP. II. Of the Natural State of Man.
III
Subject of so and . bon.
hurting ariſes frequently from the Contention of Body, ſince Juſtice and Injuſtice have nothing to
Wit, while every Man thinks himſelf wiſer than do but with Societies and eſtabliſh'd Corporations:
his Fellows, and yet at the ſame time cannot bear Tho'a Man may indeed ſin againſt Reaſon, by
the ſame Arrogance in others. Hence, he ſays, it uſing unfit Means for his own Preſervation.
comes to paſs that it is not only odious to contra VII. Theſe Notions are in ſome meaſure tole.
dict, but likewiſe not to confent: For not to con rable, if propos'd only by way of Hypotheſis.
ſent to another in a Thing, is tacitely to accuſe And that Hobbes deſign'd them for nothing more,
him of Error in that Matter; and to diffent in ve we may be apt to conclude from thoſe words in
Ty many Things, is as much as to count him a the Eighth Chapter of his Book de Cive; But to re-
Fool, in not being able to apprehend ſuch an turn again to a Natural State, and to conſider Men as
cvident Truth, as every one takes his own Opi- if they were juſt now riſen out of the Earth like a Muſh-
nion to be. Hence ſince all Pleaſure and Satiſ rome, and of full Stature without any manner of Obli-
faction of Mind conſiſts in this, that one be able gation to one another. Yet in the 13th Chapter of
to prefer one's ſelf to others, 'tis impoſſible buc the ſame Book, and frequently in other Places,
that now and then ſome Signs of Conteinpt to he calls the State of Publick Bodies, not by way
wards others will break out ; than which no Af- of Suppoſition, but ſeriouſly and abſolutely, Ná-
front is more provoking to human Minds (a). tural, that is, as he explains it, Hoſtile. Which
The laſt and moſt frequent Cauſe of a mutual De- ſeeming Contrariety we may do him the Juſtice
fire of hurting, ariſes, according to Hobbes, from thus to reconcile; it ſhall be pure Hypotheſis, that
hence, that (b) many deſire one and the ſame thing all Men did at any time live together in ſuch a
at once, which frequently they neither can nor State of Nature, as they would have done if they
will enjoy in common, nor yet divide: From had riſen ſuddenly in a great Multitude from the
whence it follows, that it muſt be given to the Earth: But what he ſeriouſly maintains ſhall be
ſtronger; and who is the ſtronger, can only be only this, that ſuch a Natural State doth really ex-
known by Fighting (c). Upon all theſe Accounts iſt amongſt ſome Men; that is, amongſt ſuch as
he declares it to be impoſſible but that Men ſhould are neither ſubject one to the other, nor to a
live in perpetual Fear and Suſpicion of one ano. Common Maſter, as is now the Caſe of all eſta-
ther. And that ſince not only natural Paſſion but blifh'd Communities. And this indeed is his own
Reaſon too, recommends to every Man his own Judgment, as he has moderated it in his Leviathan.
Safety in the higheſt Manner, and indulges him Tho' (ſays he) there never had been any time, wherein
in the Uſe of all Means for the attaining of that particular Men were in a Condition of War one againſt
End, the Fitneſs of which, no Superior being yet another; yet in all Times, Kings and Perſons of Sove-
admitted, is to be determin’d by each Man's par- reign Authority, becauſe of their Independency, are in
ticular Judgment ; hence there muſt neceſſarily continual Jealoufies, and in the State and Poſture of
ariſe a Deſire rather of preventing others, than Gladiators, &c.
of yielding to their Invaſion: From whence there But the contrary Opinion ſeems more reaſona-
will at laſt reſult a State of infinite War, of all ble, as what is clearly favour'd by the Origine of
Men againſt all; the Conſequence of which is, Mankind, as related in the infallible Records of
that it ſhall be lawful for any Man to do to any Holy Scripture ; which repreſent the natural State
Man, either ſecretly or openly, whatever he ſhall of Man, nor Hoftile, but Peaceful, and ſhew that
think expedient for his own Affairs: In doing Men in their true Condition are rather hearty
which, altho' his Reaſon ſhould ſometimes fail Friends than ſpightful Foes. From theſe Sacred
him, yet he would not offer an Injury to any Hiſtories we learn, that the firſt Man being by
(a) Cicero Off. 1. ch. 27. Contraque fälli, errare, labi decipi tam dedecet, quàm delirare, & mente eſſe captum. To be miſtaken, de-
ceiv’d or put upon, is reckon’d no leſs Diſgrace, than to Doat, or to be out of one's Wits. Hora::' Ep. 1. 1. 2.
Vel quia nil re&tum, nifi quod placuit fibi, ducunt; Or making their own Tafte che Rule of Wir;
Vel.quia turpe putant, parere minoribus, lo que Or to their Juniors ſcorning to ſubmit ; each
Imberbes didicere, fenes perdenda fateri.
. En
That what they Beardleſs learnt, Au Beard they ſhould forget.
Juvenal. Sat. 15.
Summus utrinque
In furious Anger they each other mock;
Inde Furor Vulgo, quod Numina vicinorum
Each calls the other's God a ſenſeleſs Stock,
Odit uterque locus, quia Solos credit babendos
His own Divine, tho' from the ſelf ſame Block
Eſe Deos quos ipſe colit.
One Carver frand chem
Mr. Tate.
(b) Cicero Off, 1. Nam quicquid ejuſmodi eft, in quo non poſſint plures excellere, in eo fit plerumque tanta contentio, ut difficillimum ſit,
San&tam ſervare ſocietatem. Whatever is of that Nature, as not to admit more than one to excel in it at the ſame time, uſually proveth the
exceedingly to endanger the ſacred Peace of Society. Sit iſta in Grecorum levitate perver-
fitas, qui maledi&tis infe&tantur: eos à quibus de veritate diſſentiunt. Cicero de fin. bin. do mal. Lib. 2. Chap. 25. It is a Perverſeneſs
nor peculiar to the Grecian Levity, to reproach thoſe from whom they differ in Opinion. See alſo Charron Of Wiſdom, Lib. 1. Chap. 7.
Edit. Bourd. (c) Thus Socrates diſcourferh, Xenophon. Apomnem. l. I. Quot za's é x row of dr Ogwritol mel rebel gineco
(δέονlαι ας αλλήλων, και ελευσιν, και σωεργενες ώρελίσι, και τέτο σωινες χάριν έχεσιν αλλήλοις) τάτε πολέμικα,
τάτε γαρ αυτα καλά και ήδέα νομίζοήες, η τέτων μάχούθαι, διχογνώμονενες έναντιέναι, πολεμικών, δε, και έρις και
begin irgjerns rele o ficovén en 'épws, pudotos de Jóv. Men have partly a natural Propenſion to Friendſhip
. For
they stand in of each other's Aſiſtance, and are comforted with each other's Pity, and make the Return of mutual Thanks, upon
receiving mutual Helps and Favours. And partly they are enclin'd to Enmity ; for taking a Fancy to the Same Things, as good and plea-
(ant, they muſt needs fall into Quarrel and Oppoſition about them. Now Anger and Contention are the proper Marks and Chara&ters of
Enemies.. And then Envy, and suspicion, ond Covetouſneſs never fail to produce the moſt violent Hatred. Seneca de Ira l. 2. c. 34.
The deſiring the Same Thing, which ought to be the Band of Love and Friendſhip, is often the Cauſe of Hatred and Sedition. For theſe
which they affe&ł being perhaps ſmall, and not to be posſess’d by one, unless he can take them forcibly from another, adminiſter Occaſion
to fighting and reviling. Add. Charron de la Sageſſe. l. 1. c. 39. n. 8.



६

I need
Divine
II2
Of the Natural State of Man. Book II.
Divine Power produc'd out of the Earth, a Com- ther, unleſs we firſt ſuppoſe, that in the Begin-
panion was foon join’d to him different in Sex, ning of Things a multitude of Men ſtarted up to-
whoſe Subſtance was therefore taken out of him, gether, without being beholden to one another for
to engage him immediately in the deepeſt Love their Production. Ariſtot
. Rhetor. l.1.c. 11. ( 3 )Becauſe
and Affection for her, as being Bone of his Bone, and whatever is according to Nature, is pleaſant and agree-
Fleſh of his Fleſh. This Primitive and Original able, and becauſe thoſe Things which are allied in their
Couple God Almighty was pleas'd to unite in the Original have a natural Reſemblance to each other, all
moft Solemn Manner, and with the moſt Sacred Things that are thus related, and thus alike are, com-
Tie; and ſince from them all Human Race order- monly speaking, as mutually delightful a's Man tó Man.
ly deſcended, we may conceive Mankind mutual- Cicero de Fin. I. 3. Nature bath given Min an U-
ly engag’d, not only by ſuch a vulgar Friendſhip niverſal Recommendation to each other;
on which account,
as might reſult from Similitude of Nature (a), but every Man owes ſo much to his Neighbour barely for
by ſuch a tender Affection as endears Perſons allied the ſake of being a Man like himſelf, as ſhould hinder
by a nearneſs of Race and of Blood: Altho' the him from ſhowing any Unkindneß or Strangeneß. Idem.
Senſe of this kind Paſſion may be almoſt worn off de Nat. Deor. I. 1. Do you not ſee how full Nature
amongſt the Deſcendants, by Reaſon of their is of Charms and Engagements, as if ſhe intended to act
great Diſtance from the common Stock. Now if the kind Procureſ to herſelf? Do you imagine there is an
any Man ſhould pretend to diveft himſelf of this ny Monfter of Land or Sea, which is not delighted with
Affection, and entertain a Temper of Hoſtility a the Fellow-Monſter of its own Race and Shape? And is
gainſt all others, he ought to be cenſur'd as a Re- it any Wonder then, that she ſhould have inftilld this
volter from the primitive and natural State of Principle into Man ( the moſt Noble Member of her
Mankind. Nor will it ſignify much here to Family) to think nothing ſo beautiful as Man? Quin-
object, that even from this Account of Matters it ctil
. Declam. S. There is a Publick, or Univerſal,
follows, that the natural State of Men is a State Kindred among ft Men, derived from Nature their Com-
of War; in as much as if Societies were therefore mon Mother. Add. M. Antonin. l.9. f. 9. Where he
inſtituted at the Beginning of the Worid, to make proſecutes at large the Argument of the Likeneß of
Men (1) live peaceably together, it muſt be true on Naturc, enclining Men to Unity and Love. Add. &
the contrary fide, that without Societies, Men D. Cumberland. de L. N. c. 2. f. 18. We muſt inter-
would not have liv'd peaceably, and that hence a. pret only of particular Love and Hatred that Say-
roſe the Neceſſity of making Societies be born with ing of Beliſarius in Procop. Hift. Vandal. l. 2. By
them. To which we reply that our preſent En- Nature Men have neither mutual Affection nor mutual
quiries are not made after ſuch a natural State, as Averſion. But their particular Actions, either by their
may be conceiv'd by the help of Abſtraction, but Agreeableneſs inviting our Company and Friendſhip, or
after ſuch an one as really has been and is now in by their contrary Diſpoſitions provoking our Hoftility; ren-
the World. And that therefore, ſince the firſt der ſome the Objects of our I.ove; others of our Hate.
Mortals were plac'd in ſuch a State as inſpir’d them VIII. As to Mr. Hobbes's Reaſons, they are eaſily
with Love, and not with Enmity, and ſince from anſwer'd. In the firſt place, thoſe cannot imme-
this State all the reſt of Mankind deſcended, it is diately hurt one another, who are divided by Di-
plain if Men were mindful of their firſt Original, ſtance of Place; for he who is abſent cannot hurt
they might be rather accounted Friends than Foes. me, except by fome Body elſe who is preſent, and
Nor were Societies therefore eſtabliſh'd amongſt my Poſſeſſions cannot be deſtroyed unleſs by one
Men from the Beginning, to hinder a Natural upon the Spot : Therefore, ſince thoſe who live
State from taking place, but becauſe human Kind ſeparately, or at a Diſtance from one another, can
could not otherwiſe have been propagated and offer no mutual Hurt ſo long as they continue thus
preſerv'd. But a State of Nature did then ariſe, diſtant, it doth not appear why ſuch Men ſhould
when Men being largely multiplied could no
not rather be reckon'd Friends than Enemies. For
longer be contain'd in one Society. (2) Hence if any Perſon is more inclin’d to call them Neuters,
it's Nonſence to ſay that without the Help of a So- he ought to underſtand, that the Term of Friend-
cial Condition, Mankind at the Beginning of their ſhip may be there fairly applied, where there is
Being would have liv'd like Enemies one t oano-
neither Will nor Power to injure (1). And then



(a) And ſuch is that ſpoken of in L. 3. D. de Juſtit. Jure.
(6) This is contrary to Ariſtotle's Notion of Friendſhip, who
makes it to conſiſt, not only in doing no Injury to others, but in the real and outward Performance of Kindneſs towards them.
S.VII. (1) The Original has it, nè illi pacatè viverent, that they might not live in Peace. A groſs Contradiction, tho’ it be continued
in all the Edicions, even that of Mr. Hirtius in 1706, and therefore I have changed the Words, and rendred them, That they might
not live in perpetual Diſcord, as the Engliſ has alſo.
(2) Tradition has preſerved ſome plain Footſteps of it among the Pagans. See Grot. de Ver. Rel. Chriſtiane Lib. 1. 9, 16, and
the Interpreters upon Alts vii. 26.
(3) The Greek of Ariftotle is, Και επει το κατά φύσιν ήδ, τα συγΓενώ σε κατά φύσιν αλλήλοις εςιν, άπαντα τα συγγενή και
6 morc, vidéa, ws Emi to Tonů, olov dv@gmro &vpctw, xj ITTO int", ve vím - Cicero's
. Words are, Ex hoc noſcitur, ut etia
am communis hominum inter bomines ſit naturalis commendatio, ut oporteat hominem ab homine, ob id ipſum quod homo fit, non alienum
videri. And again the ſame Author ſays, Non vides, quam blanda conciliatrix, bo quaſi ſui fit lena Natura? An putas ullam ele
terra marique belluâm, quæ non ſui generis belluâ maximè dele&tetur ? - Quid igitur mirum fi boc eodem modo homini natura pre-
ſcripſit, ut nihil pulcrius, quàm hominem putaret, eam effe cauſam quod Deos hominum fimiles putemus. Beliſarius's Words in Procopius
are, Φύσις μν δ, έδενες και παντων ανθρώπων οικειώς αν, ή εναντίος αλλήλοις έχοιεν, αι δε σεάξας ενώσων, ή τώ ομοτρόπω ας
ζυμμαχίαν συνάλεσας, ή το διαλλάουοντε ή γνώμης ες το δυσμενές διακρίνεσαι, φίλες (άν έτωι τύχοι) ή πολέμαι αλλήλες
S. VIII. (1) The Original imports, Word for Word, by the Will and Power not to hurt ; but ſince our Author treats here of
ſuch Men as are not in a Condition to do Injuries one to another, tho' they have a Deſire to do it, I believe that this Sentence
may be better tranſlated, A ſimple Want if a Deſire to hurt, joined with an Impoſſibility to do it aftually, may paſs for Friendſhip.


7018 OID.
as
CHA P. II. Of the Natural State of Man.
II
, ſays he, having try'd their Force againſt
as for that Equality of Strength which Hobbes af- and Deſign 'to hurt us, no Man of Senſe will ad-
ſerts, it is certainly more (a) (2) fit to reſtrain, mit. (5) Cicero (Off. 1.) rightly calls it, an Injury
than to provoke a Deſire of hurting. For no Man out of Fear, when he that is contriving to do another
in his Wits is very fond of coming to an Encoun- Man Miſchief
, doth it by way of Prevention, Suſpecting
ter with his
Equal, unleſs he is either driven upon he should otherwiſe Soffer Hurt from the Quarter where
it by Neceſſity, or by the Fairneſs of the Oppor- he now offers it. Hobbes is the more inexcuſable for
tunity put in Hopes of Succeſs. Otherwiſe, to maintaining that his Natural State cannot be re-
engage in an unneceſſary Fight, where the Blows mov'd' and broken up, but by letting in the So-
one gives will be return'd with no leſs Force, and vereignty of another, and by uniting in the ſame
where the Event is meerly dubious; is no better Commonwealth. For that chofe Commonwealths,
than Fool-hardineſs. For when two equal Com- how diſtinct ſoever, which are allied by Friend-
batants are ſo far engag'd as to put both their Lives ſhip and by Leagues, ſhould ſtill continue in a
in Danger, neither of them can poſſibly gain ſo State of mutual War, is a Contradiction evident
much by the Victory, as he muſt loſe who is killid to the common Senſe of Mankind. Nor ſhould
in the Fight; nor is it ſo much to have taken away we (as he would have us) diſcard all Peace, as not
another's Life, as to have hazarded one's own. For deſerving that Name, which is not fufficiently
the Danger to which I expoſe my Life, takes from firm and certain, any more than we ſhould for-
me more Good, than can poſlibly accrue to me bear ſaying, that ſuch a Man is in Grace and Fa-
from my Enemy's Life being in the fame Danger; vour with another, becauſe the Wills of Men are
nor is his Safety increas'd upon account (3) of the ſubject to continual Alterations.
Uncertainty of mine : But each Party is a Loſer, IX. We muſt likewiſe take ſpecial Care to ob-
and yet the Loſs of neither turns to the Advantage ſerve, that we are not difputing about the Natural
of the other.
State of a meer Animal, govern'd by the ſole Im-
Beſides, the Cauſes alledg’d by Mr. Hobbes, why pulſe and Inclination of the ſenſitive Soul; buc
Men muſt have a mutual Deſire of hurting, are of an Animal whoſe nobleſt and chiefeſt Part is
only particular, and therefore cannot infer a Ne- Reaſon, the Sovereign and Controller of all other
ceſſity of an Univerſal War of all Men againſt all, Faculties; and which, even in a Natural State,
but only a War of ſome particular Men againſt has a common, a firm, and an uniform Meaſure
ſome others
. And then it doth not always hap- to go by; namely, the Nature of Things; which,
pen, as he would ſuppoſe; that modeſt and civil laſtly, is very free and ready in offering it ſelf, ſo
Men, ſhould have a more fierce and infolent Ge- far as to inſtruct us in the general Precepts of
neration living car them; or if the Caſe be ſo, Living, and the Dictates of Natural Law. And
yet it is not neceſſary that the latter ſhould be in thoſe who would rightly deſign and repreſent a
a Humour of invading the former. Contention of State of Nature, ought by no means to exclude
Wit prevails only amongſt Men exalted above the the juſt Uſe of this Reaſon, but ſhould join it
ordinary Level; the greater and vulgar Part of with the Operations of the other Faculties. For
Mankind have none, or but very flight Touches as much then as Man has not only the raſh Cry of
of that Diſeaſe. Nor has the All-wiſe Creator his Luſts, but alſo the ſober Voice of Reaſon (not
been ſo unkind or ſo ſparing in his Proviſions for meaſuring it ſelf purely by private Intereſt) to
human Race, that two Perſons muſt always lay hearken to, if his wild Affections incite him to a
Claim to the ſame Thing. Farther, the general War, ſuch as that extravagant one of all Men a-
Wickedneſs of Men may have ſo much Effect as gainſt all, his Reaſon will be more powerful in dif-
to hinder any one from raſhly thruſting, or offer- Iwading him from it; and that chiefly by giving
ing (as it were) his bare Breaſt to another, eſpe- him theſe two Intimations, that a War undertaken
cially if he has not a Knowledge of him (b) (4). without Provocation from the other Party, is both
But that this Suſpicion or Diffidence ſhould pro- (1) unſeemly and unprofitable. For it is eaſy for
ceed ſo far as to the ſeizing or the oppreſſing an- any Man to gather thus much, that he did not
other, unleſs he hath declar'd a particular Defire exiſt of himſelf, but was produc'd by ſome Supe-
(a) See D. Cumberland de L. N. c. 2. S. 29. Thus the Scythians argue in Q. Curtius, l. 7. c. 8. The firmeſt Friendſhip is between
Equals, and thoſe ſeem properly to be Equals, who have not made Experience of each other's Strength. So Caſar (de B. č.1.3) admo-
niſheth Pompey, that this was the only time to treat of Peace, whilſt both ſeem'd Equals, and each had good Confidence of his own
Power. Florus makes the like Remark on another Occaſion. The Romans and the Parthians
each other, and Craffus on the side of the former, and Pacorus of the latter, having given them Examples of their mutual Abilities,
they renew”d their ancient Friendſhip with equal Deference and Reſpe&t. In Thucydides, L. 3. S. 11. Edit. Oxf. Mutual Fear is aſſerted
to be the ſureſt Guard of States, becauſe on either Side the doubting of their Safety would keep them from any open Attempt of Violence,
though it were never so much in their Deſires. (6) Plautus Aſinar. A Man doth not shemo himſelf a Man, but a Wolf, to another
whoſe Temper and Deſigns he is not acquainted with.



(2) The Latin of Q. Curtius is, The Scythians thus ſpeak to Alexander, Nam do firmiſſima eft inter Pares amicitia, do videntur
parés eſe, qui non fecerunt inter se periculum virium. Cæſar's Words are, Hoc unum eſſe tempus de Pace agendi, dum ſibi uterque con-
föderet, la pares ambo viderentur. "The Words of the Embaſſadors of Mitylene in Thucydides, are theſe To derrimãou deo uóvor
πσον ές ξυμμαχίαν, δδαραβαίνειν τ βελόμwG τω [and not το as it is commonly read] μη σε έχων άν επελθεϊν αποτρέπεται.
(3) The Original in moſt of the Editions runs thus, Quoniam inde certa eſt mea, which imports a contrary Senſe than the Au.
thor ſeems to intend, but in the Edition of Frankfort the Reading is true, inde incerta, as it is in Dr. Cumberland, from whence
this Sentence is taken; and fo I have tranſlated it, as alſo doth the Engliſh Tranſlator.
(4) See Chapter 5. §. 6. and Lib. 3. Chap. 6. S. 9. and Lib. 8. Chap. 5. Note 3. following.
(5) Cicero's Words are, Atque ille quidem injuria, que nocendi cauſà de induſtria inferuntur, ſæpe à metu proficiſcuntur, quum is,
qui nocere alteri cogitat, timet, nè ſi id fecerit, ipſe aliquo afficiatur incommodo.
§. IX. (1) It is in the Original, inutile, but the Sequel makes it evident, that it ought to be underſtood, hurtful and prejudicial,
and not barely, unſeemly and unprofitable. See Note 1. upon $. 7. of Chap. 3. Lib. I.
Q
rior,
114
Of the Natural State of Man. Book II.
rior, who conſequently retains a Power and Au not only be uſed againſt Beafts, but likewiſe againft ſuch
thority over him. And when he finds himſelf Men as, tho' they were born to obey, do yet refuſe Sub-
ſpurr’d on as it were by a double Principle, of ječtion. We have numerous Teſtimonies to this
which one is wholly fixe on things preſent, the o Purpoſe in ancient Writers. Vid. Homer. Odyl. g.
ther can embrace in its Thought what is abſent or v. 73. and Odyll. 1. v. 252. on which Place Didy-
future ; of which one drives him furiouſly on mus tells us, that the Profeſſion of Robbers amongſt the
Dangers, Doubts, and Diſorders, the other con Ancients was not Infamous but Glorious. Diodor. Sic.
ducts him to nothing but what is comely and ſafe; l. 3. c. 49. The Lybians on no account obſerve any man-
he will conclude without any Difficulty, that 'tis ner of Right, or any manner of Faith towards Strangers.
the Pleaſure of his Creator, he ſhould rather fol- Cæfar reports of the Germans, that thoſe Robberies
low the latter Guide than the former. And when do not fall under Cenſure or Reproach, which are pra-
to this Confideration is added, the exceeding étis'd beyond the Bounds of each particular State : And
great Benefit and Advantage of that quiet Condi- the Excuſe they alledge for them is, That they ſerve
tion which Reaſon adviſes, a Man cannot but na- for the Exerciſe of Youth and the Diſcouragement of Idle-
turally incline to Peace. Eſpecially, ſince if at neß. de B. G. 1.6. He tells us farther, That every
any time he ſhould happen to neglect his Reaſon, State reckon'd it the greateſt Honour and Glory to have
and follow his blind Paſſions, he would find by as large Solitudes round them as poſſible, caus'd by their
the fad Event that he took the wrong Meaſures, own Devaſtations: eſteeming it a noble Teſtimony of their
and would be ready to wiſh thoſe Things to be Velour, that their Neighbours were fore’d to quit the
undone, which were done againſt the Orders and Country, and that none are ſo hardy as to live near
Directions of his nobleſt Faculty. From all which them. Mela, l. 3. c. 3. gives the like Account of
we conclude, that the Natural State of Men, al- the Germans in general, but Tacitus ſpeaks in man-
tho' they be conſider'd as not united in Common ner only of the Vendredi, a particular People a-
wealths, is not War, but Peace. And this Peace mongſt them. Of the Spaniards, Plutarch (in Ma-
chiefly depends on the following Laws and Condi- rio) reports, that Robberies paſsid amongſt them till that
tions; that no Man hurt another, who doth not Time for Gallant Adventures. And Thucydides fays as
aſſault and provoke him; that every one allow o much of the ancient Grecians, L. 1. To the ſame
thers to enjoy their own Goods and Pofleffions ; purpoſe ſome produce the Roman Law, (l. ult. D.
that he faithfully perform whatever ſhall be cove- de Colleg.) where thoſe Covenants are declar’d valid
nanted for, and voluntarily promote the Intereſt which paſs between s&S 671 netider egxouévwv, or orxouévwy,
and Happineſs of others, in all Caſes where a Perſons who unite on the account of Booty or Prey. Tho
ſtricter Obligation doth not interfere. For ſince Salmafius,de Ufuris l. 1.c.22. corrects the ancient Read-
the Natural State of Man includes the Uſe of ing into cis xyzóacia, on the account of a drinking Match.
Reaſon, we muſt by no means ſeparate from it Polybius,l. 3.mentions it as a Clauſe in a League be-
thoſe Obligations which Reaſon tells us we lie un tween the Romans and Carthaginians, that the former
der. And becauſe every Man may diſcover it to ſhould neither drive Booty to Maftia and Farſeium, be-
be moſt for his Intereſt and Advantage, ſo to ma- yond the Fair Promontory, nor exerciſe Merchandize :
nage his Behaviour, as to procure rather the Be- As if both theſe Practices had been then eſteem’de-
nevolence, than the Enmity of others ; he may qually lawful. Juſtin, l. 3. ſays of the People of
eaſily preſume from the Likeneſs of Nature, that Phocis, that they ſupported themſelves by Piracy, which
other Men have the ſame Sentiments about the at that time was lookd upon as Glory. Sextus Empiric.
Point as himſelf. Therefore it is very foul Play, Hypot. 1. 3. C. 24. Toʻrob and poil is reckon’d by no
in deſcribing this imaginary State, to ſuppoſe that means diſgraceful amongst many of the barbarous Nati-
all Men, or however, the greateſt part of them ons: Nay, the Cilicians are ſaid to have accounted
do act with Diſregard and Defiance to Reaſon, theſe Adventures moſt highly creditable and renown’d, so
which is by Nature conſtituted ſupreme Directreſs as to pay Honours to the Memory of ſuch as died in their
of human Proceedings; and ſuch a State cannot, Proſecution. And Neſtor, in the Poet, having kindly
without the higheſt Abſurdity, be call’d Natural, receiv’d Telemachus and his Company, asks them,
which owes its Production to the Neglect or to
the Abuſe of the natural Principle in Man (a). What, are you Rovers of the Plundering Trade?
X. It will be in vain for any one here to object,
the ſtrange Barbarity which reign'd among moſt Now if Robbing had been then ſcandalous, it is
of the ancient Nations and People; who ſeem to not likely he would have entertain'd with ſo much
have had ſcarce any other Pleaſure, or any other Civility Perſons whom he ſuſpected of ſuch a
Buſineſs, but the Purſuits of Plunder and (1) Prey; Courſe
. L. 2. D. de Captio & Poſtlim. If there be a
and amongſt whom Robbery paſs’d for one of the Nation, with which we beve no Tye of Friendſhip,
particular Profeſſions and Ways of Living. For Hoſpitality, or League, we muſt not preſently eſteem them
thus Ariſtotle in his Politicks, reckoning up the Enemies : Yet whatever of ours comes into their poſſesſion
ſeveral Callings or Lives of the Herdſmen, the belongs to them; and even a Free Man of our Country,
Husbandmen, the Fiſhermen and the Hunters, if taken by them becomes their slave. Comp. 1. 118.
adds to the reſt the big an Teixòs, the Life of Thieves. de verb. fignific. Dio Caffius, 1.54. ſpeaking of the
And afterwards, War is in ſome fort a Natural Rbatians, Often plundering, ſays he, their Neighbours
way of acquiring Poſſeſſion. For Hunting, or violent- the Gauls, they had driven Booty from the Borders
ly purſuing, is one of its chief Parts; and this may Italy, and bad infeſted the Romans and their Allies in


of
(a) This is moſt largely demonſtrated by Biſhop Cumberland, to whom the Reader is recommended for fuller Satisfa&tion.
$. X. (1) Here our Author uſes Virgil's Words, as he makes Numanus, firnamed Remulus, to ſpeak,
mm
Semperque recentes
Conve&tare juvat prædas, do vivere rapto. Æneid. IX, v. 612,613,
thair
CHAP. II. Of the Natural State of Man.
I15
their Pallage through thoſe Parts: And it was then a re- eſtabliſh'd by bare Nature, without the Interven-
ceiv'd Cuſtom amongst them, to deal in this Manner tion of any human Deed ; and that therefore it de
with all thoſe whom they were united to by ſolemn Leagues pends ſolely on that Obligation of Natural Law
and Agreements
. Iſocrates (Panathen.) obſerves of by which Men are bound as they are reaſonable
the Triballians, there are no Men who obſerve a ſtricter Creatures; and doth not owe its firſt Introduction
Concord amongst themſelves; but then they endeavour to the Agreement and Covenant of Men. Hence
utterly uo deſtroy all beſides ; not only their Borderers and to us it ſeems uſeleſs to frame any Pacts or Leagues,
Neighbours, but any people to whom they can force an barely for the Defence and Support of this Üni-
Acceß. Add. Grot. 1. 2. C. 15.1.5. (2) This ancient verſal Peace (1). For by ſuch a League or Bond,
Hoſtility, amongſt other Reaſons that are given nothing is fuperadded to the Obligation of the
for it, might proceed, in a great meaſure, from Law of Nature ; or, no Agreement is made for
the groſs Superſtition and Idolatry of thoſe Natie the Performance of any thing, which Men were
ons, by which every People imagin’d themſelves not before by the Law of Nature bound to pera
to have peculiar Gods, and thoſe only true ones. form : Nor is the former Obligation rendred
Vid. Juvenal. Sat. 15.
ftreighter or firmer by ſuch an Addition. For
In Return to this vulgar Argument, 'tis ſuffici we ſuppoſe both Parties to remain in a Natural E-
ent to ſay, that in thoſe blinder Ages of the World, quality, and conſequently not to be held to their
the Dictates and Informations of ſound Reaſon, Covenant by any other Tie, than that of Reve-
were choak’d and ſtifled by the Prevalency of cor- rence towards God Almighty, and Fear of ſuch
rupted Manners.
Yet it doth not follow from Evil as may fall on them if they break the Agree-
hence, that there was no Man, even in thoſe Nati- ment. Though indeed there appears ſomewhat
ons, ſenſible enough to apprehend that the Laws of of Baſeneſs and Foulneſs in refuſing a Thing which
Nature were violated by this Courſe of Robberies one has exprelly engag'd to perform. As for the
and Spoils, or to diſallow that State to be Natural, Power and Liberty which the injur'd Party hath,
into which wild and ungovernable Men had of proceeding againſt ſuch a Violator of Nature's
thrown themſelves, in Neglect and in Contempt Law, this is altogether the ſame, whether any an-
of the nobleft Part of their Being. For that a tecedent Covenant hath been made or not. Men
promiſcuous Liberty of Rapine doth not flow as a of any tolerable Culture and Civility muſt needs
Conſequence from a State of Nature, is evident, abhor the entring into any ſuch Compact, the
becauſe the like ill Effect is not ſeen in the State Heads and Conditions of which imply only thus
which different Commonwealths now bear to one much, that the Party concern'd ſhall not offend
another, which is really Natural. Nor muſt we in ſome point, which was before an expreſs Com-
admit what Hobbes farther aſſerts, that ſuppoſing mand of Nature. Beſides, we ſhonld be guilty
Matters ſtood thus, Robbery or Pillaging would be con- of great Irreverence towards God, ſhould we
trary to the Law of Nature. For thoſe who had ſuppoſe, that his Injunctions had not already laid
plunder'd us in this Manner without Provocation, a ſufficient Neceſſity upon us, unleſs we ourſelves
we might have treated with the like Violence, and voluntarily conſented to the ſame Engagement;
have made Repriſals on their Poffeflions for the as if our Obligation to obey the Divine Will de-
Loſs of our own : But then we could not have pended on our own Pleaſure. Therefore in every
ſhown ſuch rough Uſage to a third Perſon, who Covenant ſome Matter is to be inſerted, the Per-
had offer'd no Injury or Moleftation to us before. formance of which the other Party could not have
The Impudence of ſome Perſons in breaking the required from me, by a bare Right of Nature, or
Law of Nature, is no juſtifying Example for us which by virtue of that Right only I did not fully
to imitate. Nor is the Remark more tolerable and perfectly owe him; tho' it now becomes a true
which Hobbes ſubjoins, that this Kind of Life was not and abſolute Debt, upon my Declaration, and his
without Glory to them who exercis'd it valiantly, and yet Acceptance of my Conſent. Thus, as a Man who
not cruelly. As it was the Cuſtom of fome, who laid lets himſelf out to hire as a Servant to another, doth
Hands on every thing elſe, to ſpare the Perſons not ſet it down exprefly and immediately amongſt
Lives, and to paß by the Ploughing Oxen, and all the the Terms and Conditions of the Bargain, that he
Inſtruments of Husbandry, which they did not as if will not act perfidiouſly towards him, or that he
they were oblig’d to it by the Law of Nature, but pure- will not pillage or plunder him ; ſo that would be
ly conſulting their own Glory, lę st their Cruelty should a ſhameful Agreement, in which a Man ſhould
betray their Cowardice. A wondrous Glory indeed, only bind himſelf not to break the Univerſal
to accompliſh only half a Villany, when to have Peace towards another; that is, not to uſe ſuch a
carried it through, would not have turn’d to ſo Right againſt him, as he obtains and exerciſes over
inuch Advantage.
Beaſts. Yet ſuppoſing any ſuch Robberies and
XI. When we affirm that the Exerciſe of a Depredations, as we have been lately ſpeaking of,
Peace towards all Men as ſuch, is the Natural to prevail amongſt ſome Barbarous Nations, then,
State of Man, we imply that it is inſtituted and in order to the reſtoring the Univerſal Peace, there



violent

(2) Bue this very Example may prove to our Author, that his Conjecture is not good, fince the Poet ſets it down as a fingular
Example, and he could not but know, that the Heathens did not hate, and perſecure one another purely for Religion's fake. The
Truth is, it was their Ignorance of the Law of Nature, and of the true Religion, which cauſed them to approve of theſe publick
Robberies. And if any perſons looked upon them as unjuſt, yet they were forced, in a manner, to practice them, partly for
their own Preſervation, and partly by way of Repriſal, We may find that the Iſraelites themſelves uſed them, as appears from
the Example of Jephthá, Judges xi
. 3. upon which Place conſult Mr. Le Clerc's Comment. In fine, We may obferve, that in the
Sele&t Obſervations, printed at Hall in Saxony for ſome Years, there are two Diſcourſes upon this Subject worth our reading, viz.
the fixth and ſeventh in Tome VII, thus entituled, the one, Hiſtoria de latrocinio Gentis in Gentem; and the ocher, Moralitas
Latrocin. Gent. in Gent. The Author is, fames Thomaſius, the Father of Mr. Thomaſius, the famous Profeffor of Law at Hall
in Saxony.
S. XI. (1) See Lib. 8. Chap. 9. §. 2. following.
Q 2
would
116
Of the Natural State of Man.
Book II.
(3) i. e, por refers us to
would be occaſion to enter into Covenant, by Power of Fugurtha, we are told the chief Things
which all Parties ſhould tie themſelves to the Pra- that frighted him and ſet him on his Guard, were
dice of the Law of Nature towards one another. the Nature of Mankind, covetous of Dominion and Go-
The Caſe is much the ſame, when two Nations, vernment, and violently bent on gratifying its Defires ;
hitherto engag’d in War, fall
, by Agreement, and then the Advantage of Opportunity, which by the
lay down their Arms on both ſides; for ſuppoſing fair Hopes of Gain and Succeß, is able to ſeduce Men
that they do not come to any Terms of Settle- to ambitious Practices, who were otherwiſe moderate e-
ment about particular Matters and Performances; nough in their Wiſhes and in their Purſuits. Indeed
then the only thing concluded on and eſtabliſh’d, theſe pernicious Charms of Avarice and of Am-
is that General and Common Peace. We find in- bition have taken ſo faſt hold on human Minds,
deed in Hiſtory, many Examples of Common- that even the moſt mild and gentle Doctrine of
wealths reduc'd to ſuch Éxtremities, as to purchaſe our Saviour CHRIST, which is perpetually in-
of their Spoilers this (2) Univerſal Peace and For- culcating the Rules of Peace, of Kindneſs, of
bearance of Injuries, not only by Compact, but Good-will, of Propenſion to forgive Injuries, of
by Tribute. Claudian de Laudib. Stilicon. l. 1. v. 210, Humility, of Contempt of Riches and Worldly
211. ſays, that the Ancients were obliged to do ſo, Power; hath not been able to extinguiſh the moſt
in theſe Verſes,
unjuſt Oppreſſions, Treacheries, and Wars amongſt
the Profeſſors of that Holy Religion. So that Plu-
Illi terribiles, quibus otia vendere ſemper
tarch's(3)Deſcription will too exactly hit the Chara-
Mos erat, du fæda requiem mercede paciſci. Eter of ſome Chriſtian Princes, whoſe De fires, not Seas,
nor Mountains, nor Deſarts, can ſtop and conclude; not the
Thoſe dreaded Foes, Bounds which ſeparate Europe and Aſia can circumſcribe,
Traders in Peace, and Huckſters of Repoſe. When ſuch ambitious Spirits border on one another's Polles-
fions, it is ſcarce poſſible that they ſhould live ſatisfied
If between Nations or People, hitherto not with their proper Shares, and abſtain from mutual In-
known to one another by Benefits or Injuries, by juries and Invaſions. In effe€t they are continually en-
Peace or War, any common Leagues are made, gag’d against each other, Envying and Plotting being
without deſcending to particular Points or Con- the neceſſary Conſequences of their Temper. As for the
ditions; ſuch Leagues are ſuppos'd to be entred two Names of Peace and of War, they uſe them just as
on for the Eſtabliſhment of a Friendſhip, which they do Money, not as they are determind by Reaſon, best
is reckon’d to imply a cloſer Union, than is pro- according to Cuſtom and Convenience. Nor doth Pa-
duc'd by thar general Peace of Nature. Or elſe terculus's Remark affect only the Romans and Car-
we may take them only for ſolemn Proteſtations thaginians, when he ſays (4), Amongst thoſe people,
made by both Parties, that they will for the fu- there was perpetually either a War, or a Preparation for
ture obſerve (3) their mutual Offices and Duties. War, or a a deceitful Peace. Therefore, as it is the
In the ſame manner as Perſons related, at their Duty of an honeſt and good Man to reſt content-
firſt Meeting, or their firft Knowledge of one an ed with his own Lot, and not diſturb the Portion
other, are us’d to make long Declarations and of his Neighbour either by actual Invaſions, or by
Promiſes to expreſs their mutual Benevolence and covetous Deſires : So it becomes a cautious and
Love.
wary Man, and one who has a true Care and
XII. After all, it muſt be confeſs’d, that this concern for his own Safety, in ſuch a Manner to
Natural Peace is but too weak and uncertain, and believe all Men his Friends, as that they may foon
ſuch as without other Aſſiſtances, would prove but turn his Enemies; in ſuch a Manner to obſerve
a very mean Defence to the Safety of Mankind; this Peace with all the World, as a State which
ſo that we might well enough expreſs, and repre- may ſuddenly be converted into War (b). And
ſent it in Ovid's Verſe(a);
the famous Saying of Dionyſius Halicarnalleus (5),
ſhould often run in our Thoughts : So long as
Pax tamen interdum est; pacis fiducia nunquam, Wicked Men have the Power of doing Miſchief, they
A Peace which all pretend, yet none can truſt. cannot want the Will. For which Reafon Euripides
(6), tells us, that a a prudent Diffidence is a most uſeful
The Cauſe of which Unhappineſs is the great and advantagious Quality : And that a wiſe Man
Wickedneſs of Men, their unbridled Luft of Power, ought (7) neither to a&t like a Sheep, nor like a
and their Deſire of encroaching on the Rights and wild Beaft, to be neither tame in ſuffering Violence,
Poffeffions of others. When Micipſa King of Nu nor furious in offering it(c).
midia, in Saluft (2), grew jealous of the growing Tacitus, in deſcribing the Manners of the German
ulogom
Povsowa
(a) Vid. de Trit. l. 5. Eleg. 2. v. 71.)(b) Comp. Sophocl. Ajar. Flagell, v. 688, doc.
(c) Add. Hobbes de Cive, c. 13. f. 7, 8.
.
. . 01632
what our Author has ſaid a little before.
S. XII. (2) Saluft. Bello Jugurth. c. 2. Terrebat eum (vir Micipſam] natura mortalium avida imperii, do præceps ad explendam
animi cupidinem; praterea Opportunitas, ſuaque do liberorum ætatis, que etiam mediocres viros ſpe preda tranſverſos agit.
(3) Plutarch in Pyrrbo, 6. 389. Edit. Wechel. Ois 28 may, xx ogG, 6x droixnto ngejía Técoles est in aansovežias, &B'
οι διαιρενες ευρώπω 'Ασίαν τέρμονες δείζεσι τας όπθυμίας ---- Δυοϊν δε ονομάτων, ώασερ νομισμάτων, πολέμε, και ειρίύης,
το παρατυχόντι χρώνα πεις το συμφέρον, έ τες το δίκαιον.
Vid. L. 1. C. 12. Aut bellum inter eos populos (viz. Romanos, do Pænos] aut belli præparatio, aut infida Pax fuit.
(5) Β. 6. "Εαν δ' αν παρά τη διώαθαι πόνηρα δράν, έκ ελλείψει τους πονηροίς το βελέθαι.
(6) Eurip. Helen. v. 1633, 1634. ---Σώφρον δ' άπισίας
Ουκ έσιν έδεν χρησιμώτερgν βροτοίι. .
(7) The Greek is, Mòais teó Batov, ci xj Caxis, À Bréflexov, ass Onelov. We know not from whence theſe words are taken.
The Engliſh Tranſlator attributes them to Euripides, but withont any Certainty.
Nation,

(
ol:
CHAP. II. Of the Natural State of Man.
117
Nations, hath left theſe two Characters of the and Horſes make them Famous and Terrible, in the midſt
Chauci and the Cherufci, very remarkable for their of their Peaceful Repoſe. The latter, he tells us, c. 36.
Oppoſition (8). The former he calls a mot noble were too fond of cheriſhing a long and a decaying
People, who chuling to maintain their Greatneß by their Eaſe. This mas more pleaſant to them than Safe. For
Fuſtice, living in Secrecy and Quiet, without Ambition, amongst ſtout and daring People, 'tis never the true way
and without Infolence, by never inviting War, they ne to lie ſtill; and where Men are buſy in Action and Con-
ver feel it; by never doing, they never ſuffer Violence tention, Honeſty and Probity belongs to the Titles of the
and Spoil
. And this is the principal Mark of their Vir- Conquedor (9). Thus the Cheruſci, who had once the
tue and of their Power, that their Superiority is not ob- Repute of Equity and Juſtice, now lie under the Imputa-
tuin'd by Inzury. Yet they have always Arms ready at tion of Folly and Cowardice
. So true is the Obſerva-
hand for their Defence ; and upon Occafion could bring tion of Dio the Orator (10), that thoſe who are best
together a mighty Army: And their Numbers of Men prepar’d for War, may most ſecurely live in Peace.
(8) Tacit de Morib. German. c. 35. 1. 4, 5, 6. Populus inter Germanos nobiliffimus, quique magnitudinem suam malit juftitiâ tueri,
fine cupiditate, fine impotentiâ, quieti ſecretique, nulla provocant bella, nullis rapribus, aut latrociniis populantur. idque præcipuum
virtutis, do virium argumentum est, quod, ut ſuperiores agant, non per injurias adfequantur. Prompta tamen omnibus arma, ac ſi res
poſcat, exercitus ; plurimum virorum, equorumque, do quieſcentibus eadem fama.
0) The ſame Author's Words are, Cheruſci nimiam, ac marcentem diu Pacem inlaceſfiti nutrierunt, idque jucundius, qnàm tutius
fuit, quiæ inter impotentes, do validos, faljè quieſcas, ubi mana agitur, modeftia, & probitas nomina superioris ſunt.' Ita qui olim
boni æquique Cherufci nunc Inertes, Aulti vocantur.
(10) órat. 1. de Regno. p. 6. Ed. Par. Morell. "OT1 tos rebanese. Contudo negeorda quívors, Tótols pánosa testy ciplaw dyay.

CH A P. III.
Of the Law of Nature in general.
The CONTENTS.
I. The Connexion.
XIV. The true Original of the Law of Nature is deri-
II, & III. The Law of Nature is not common to Man
ved from the Condition of Man.
and Beaſts.
XV. The Fundamental Law of Nature,
IV. The object of the natural Law is not neceſſary be- XVI, XVII, & XVIII. Hobbes's Opinion is enquired
fore there is a Law.
into.
V, & VI. Whether the natural Law is common to XIX. The former Original is ſufficient.
GOD and Man.
XX. The Obligation of the Law of Nature is from
VII, VIII, & IX, The natural Law does not depend
GOD.
upon the Conſent of Nations.
XXI. Of the Eſtabliſhment of the Law of Nature.
X, & XI. Whether Profit be the Foundation of Law. XXII. Some Things are ſaid to be of the Law of Nature
XII. Whether the Law of Nature appears plain from
reductively and improperly.
the End of the Creation.
XXIII. Whether the Law of Nature is different from
XIII. The Principles of natural Right are diſcover'd
the Law of Nations.
by the Light of Reaſon.
XXIV. A Diviſion of the Law of Nature.
1. SIIS
Ince then it appears inconſiſtent with the fitive Conſtitutions; are Points which require the
Nature and the Condition of Man, that more careful Examination, becauſe if this Baſis
he ſhould live entirely looſe from all Law, and and Groundwork ſhould be ill laid, whatever we
perform his Actions by a wild and wandring Im- afterwards build upon it muſt fall of Courſe. Tis
pulſe, without Regard to any Standard or Mea- (1) a good Rule of Plato (in Cratyl
. p. 299. Edit.
ſure; it follows, that we make Enquiry into that Francof.) A Man ought to be very ſtrict and accurate in
moſt General and Univerſal Rule of human A- examining the firſt Principle and Foundation of Things,
Gions, to which every Man is oblig'd to conform, and no leſ copious and diſtin£t in explaining them; in as
as he is a reaſonable Creature. To this Rule much as theſe Points being once clearly ſettled, the whole
Cuſtom hath given the Name of Natural Law, and Scheme of Doctrine regularly follows.. And ſo much
we may call it likewiſe the Law Univerſal and Per- the more ought this Rule co be obſerv’d in our pre-
petual ; the former, in Regard that it binds the ſent Subject, the more Truth there is in that Re-
whole Body of human Race, the latter, becauſe mark of (2) Lactantius, l. 3. c.7. p. 224. Ed. Oxon.
it is not ſubject to change, which is the Diſadvan- Becauſe in framing the Manners and forming the Model,
tage of Poſitive Laws. What this Law is, whence of Life, it is the bighest and most fatal Danger to mif.
the Knowledge of it ariſes, what are the chief take; we ought to apply the ſtricter Diligence to the Study
Marks and Tokens by which it is diſcover’d, what of our Duty. In this great Point there is no Allowance
Matters are to be referr'd to that, and what to po- for Error or Diſagreement, all ought to be of one Opinion
Mr. Barbeyrac's Notes on Chap. III.
I.
roei of epgãos návo reģyual o návle dvseenonw aózov y les zonalis' oxéfov, et
ορθως, άτε μη ζωόκειται. Εκείνης σε εξεταθίσης ικανώς τα λοιπά φαίνεθς εκείνη επόμενα.
(2) Laftantius's Words are, Et quoniam in diſponendo vita ftatu formandijq; moribus, periculo majori peccatur, majorem diligentiam
neceſſe est adhiberi, ut fciamus, quomodo nos oporteat vivere Hic vero nullus diffidio, nullus errori eſt lorus, omnes unum ſen-
tire oportet, ipſamq; philoſophiam, uno quaſi ore præcipere, quia fi quid fuerit erratum vita omnis evertitur.
and

Ac
118
Of the Law of Nature in general. Book II.
and to declare with a Common Mouth the ſame Doctrine: Beaſts very much alike, on the Performance of
Since the least Slip may overturn the Rule and Order of which the former are ſaid to have fulfilld the
Living To the ſame purpoſe Diogenes Apollonias, Law ; yet in Stricneſs and Reality they are ex-
(in Diog. Laert. I. 9.) Segm. 57. Every Diſcourſe, in tremely different, fince they are done by Brútes
my Judgment, ought to take its riſe from ſome clear and out of ſimple Inclination of Nature, but by Men
manifest Principle; and the Style made uſe of ſhould be out of Obligation, of which thoſe other Crea-
plain and grave.
tures have no Senſe. And therefore we muſt ſup-
II. The Roman Lawyers defin'd (1) the Law of poſe Authors to ſpeak Figuratively, when they at-
Nature, to be that Law which Nature teaches all Li tribute to ſuch inferior and dumb Animals, Jué
ving Creatures ; which therefore is not peculiar to ftice, Fortitude, Pity, Gratitude, or Chaſtity; on-
Man, but is apprehended and obſerv'd by other ly becauſe they perceive in ſome of their Proceed-
Animals
. So that according to this Hypotheſis, ings the Shadow and Semblance of theſe Vir-
thoſe things muſt be ſaid to belong to the Law of tues (b). For Things which ſeem alike in their
Nature, which Brute Creatures either affect and external Face and Appearance, are by no means
purſue, or avoid and abhor : Whence it naturally the ſame, if they proceed from different internal
follows, that there muſt be a Law common to Men Principles. As for Grotius's Opinion (c), that
and Beaſts. Which Opinion it's likely might pro- ſome Acts of other Creatures are diſpos’d in an
ceed from that famous old Notion about (2) the extraordinary manner, by (4) an external Reaſon
Soul of the World, of which all other Souls were a or Principle, as the Works of Bees and of Ants,
kind of Someowuldor Particles, being in them- and the Frugality which ſome ſeem to uſe about
ſelves all of the fame Nature, but exerting diffe- what they have got, for the Benefit of their Kin-
rent Operations, according as they fell on diffe- dred and Off-ſpring; this is allowable only if we
rent Bodies, and met with different Organs for mean by it, that the Nature of theſe Creatures is
the Conveyance of their Srength and Powers. in ſuch a manner temper'd by the Divine Creator,
Nearly allied to this Fancy was the Metepifúzwars, as to be capable of producing ſuch Actions ; noć
or Tranſmigration of Souls
, according to which that any outward Principle violently guides and
Men and Beaſts were thought to differ only in their ſteers them (5), as a Pilot doth a Véffel. Nor is
Corporeal Figure, having Souls altogether of the it difficult to underſtand, why they do not diſco-
ſame Nature, and mutually lending to each o ver the ſame Cunning in other Matters equally
ther (a). But the general Conſent of Learned obvious ; if we fuppofe with (6) the New Philo-
Men hath diſcarded this Common Law of Ani- ſophers, that whatever Form Irrational Animals
mate Beings : In as much as it is impoſſible to enjoy, ariſes purely from the Figure and Diſpoſi-
conceive how a Creature ſhould be capable of tion of Material Particles, and from the Variety
Law, and at the ſame time incapable of Reaſon of their Movements.
of their Movements. Eſpecially ſince even a-
Hefiod. Op. & Dier. 1. 1.
mongſt Men we may find thoſe who are extreme-
Tiv de 38 av Spas join, voặcov [ aixnes] detáže Kegvia, y quick and ready at ſome ſorts of Buſineſs, yet
"Ιχθυσι με, και θήρσι, και οιώνοις πιπίωοίς
ſtrangely dull and heavy about others, not more
Ειν αλλήλες, έπει και δικη έςιν επ' αυτος.
difficult and abſtruſe : Which can proceed from
'Ανθρώποισι δ' έδωκε δίκω, ή πέλλον αρίση
nothing elſe, but from the particular Diſpoſition
Γίνεται
of their Parts, eſpecially of the Brain and Spi-
This Law did Fove for Human Race ordain :
rits (d) Thoſe therefore who will have a Law of
The Beafts, the Fiſhes, and the Feather'd Train
Nature in Brutes, becauſe they ſee them acting
He left to mutual Spoil and mutual Prey,
now and then with ſome Appearance of Regula-
But Juſtice gave co Men,
rity and of Deſign, abuſe the Term of Law, by
an undue and unneceſſary Application.
And altho' there are ſeveral Actions of Men and Beſides, there can be found no Dumb Creature
opor doido




(a) Vid. Virgil. Æn. V: 724, &c. Ovid. Met
. L, XV. v. 75, &c. (b) Vid. Selden. de L. N. & G. Secund. Hebr. 1. 1. c. 5.
(c) Prolegom. de J. B. & P. & l. 1. de Ver. Rel. Chriſtiana.
(d) Vid. Plutarch Conviv. Sept. Sapient. p. 163. E.dWech.
$. II. (1) Jus Naturale est, quod natura omnia animalia docuit. Nam fits iſtud non humani generis proprium, ſed omnium animalium,
quæ in terrâ, quæ in mari nafcuntur, avium quoque commune est. Videmus etenim cetera quoque animalia, feras etiam, iſtius
Juris perita cenferi. Digeft. B. I. T. 1. Of Juſtice and Law. Leg. 1. §. 3. See Inſtit. B. I. Tit
, 2. §. 1.
(a) Tis certain, that this was the opinion of the Stoicks, as Juſtus Lipſius in his Phyfiol. Stoic. Lib. 1. Diß. 8. and Lib. 3.
Di). 8. makes it appear, and moſt of the Roman Lawyers were of the fame Principles as that Sect of Philoſophers, as Mr. Gran
ving has proved by many Examples. See his Originės fur. Civil. printed at Leipſick in 1708. p 80, &c. But it does nor from
hence follow, that the Definition of Natural Rights which Vlpian gives, is grounded on this opinion, as after our Author, Mr.
Buddeus in his firft Diſcourſe of the Errors of the Stoicks, which is amongſt his Analełła Hiſt. Philoſoph. $ 6. and Mr. Ludovici in
his Delineatio Hift. Furis Divin. Nat. Poſit. doc. S. 14. affirm, who alſo quotes, fa. Thomas Phyfic. Chap. 38. Queft. 32. and
Hornius de Subje&to fur. Nat. &c. for they ſuppoſe, as ehey neceſſarily muſt, chat the Stoicks attribute Reaſon to Beaſts, but they
take it for granted, by a Petitio principii, without Proof, ſince they alledge no 'Authority but the Definition itſelf, which they
produce, to prove, that according to them, theſe ancient Philoſophers muſt believe that Beafts bave Reaſon. The concrary ap-
pears by divers plain Paſſages. In homine optimum quid eft ? Ratio, (fays Seneca) Håc antecedit Animalia, Deos fequitur
Quid in homine proprium? Ratio. Epift. LXXVI. p. 294, 295. See alſo his CXXIV. Epift. p.621, 622. 'Tis certain that the
Stoicks did not acknowledge a Law common to Man and Beaſts. Cicero is plain as to this point, Et quo modo hominum inter bomines
juris effe Vincula putant, fic homini nibil juris effe cum beſtiis. De finib. bon. & mal. Lib. 3. Chap. 20. and Diog. Laertius. "En åpé-
Fue curbis unsev ?) vilio Singeov teistä innafcada de Tov vouoriin tee, &c. In Zenone, Lib. 7. Ş. 129. p. 446. Edit. Amstel.
See what is laid upon $. 3. Note 10. following. As alſo Cicero de Offic. Lib. 1. Ch. 16. and Grotius, Lib. I. Ch. 1. 9. II.
(4) The Original has ic, Principio intrinſeco, contrary to the Connexion of this Diſcourſe, and the expreſs words of Grotius.
But Mr Hirtius has amended it in his Edition of 1705, and made it, extrinſeco, as it ought to be.
(5) See Mr. Bayle's Dictionar. Hiſtoric. do Critic. Tom. III. p. 2616. of the fecond Edit.
(5) Nevertheleſs our Author does not follow that Syſtem, as we may judge from many places in his works, which ſuppoſe
the contrary. See what I have ſaid, Lib. 1. Chap. 3. §. 1. Not. 1.
which
CHAP. III.
Of the Law of Nature in general ΙΙ9
which performs all the Duties and Offices of Man; Interpretation, that GOD will ſometimes make
on the contrary, there is ſcarce any Rational Pro- even Wild Beaſts (2) the Inſtruments of puniſhing
ceeding, to which fome Brutes do not (6) act di- Murtherers. Others again underſtand by every
re&tly oppoſite. Yet in Harangues to the People, living thing (3) only every Man, as if God only
it is reckon'd a high Aggravation of a Crime, to declar'd that no human Murtherer ſhould eſcape
ſhow, that even Brute Creatures abhor the Com- his Juſtice. In Leviticus xviii. 23. and xx. 15, 16.
miſſion of ſuch Enormities. Thus Plato (a) ſays, Command is given, that if any Man or Woman
that in arguing againſt the Unnatural Vice of are found guilty of Beſtiality, (4) the Beaſt ſhall
Pollution with the ſame Sex, it would be proper be ſton'd, without any difference of Age. Yet
to appeal to the Nature of Beaſts, in whom we the Jews obſerv'd ſuch a difference of Years
do not diſcover the ſame foul and monſtrous in regard to the human Parties of both Sexes;
Practices (b).
ſo that if a Boy were not above Nine, and a Girl
III. Some Perſons indeed (rather I believe to above Three Years old, they maintain'd that no
ſhow their Wit, than out of any ſerious Deſign) Puniſhment ought then to be inflicted, either on
have aſſerted this Community of Law between the Perſon, or on the Beaſt ; becauſe they would
Men and Beaſts, and back'd their Aſſertion with not allow that the Pollution forbidden in the Law
a numerous heap of Arguments, all which have could be actually committed at ſuch an Age. Now
been long ſince moſt ſolidly confuted. It ſhall be when they ſton'd the Beaſt, they did not do it be-
enough for us to touch lightly on the Proofs which cauſe the Beaſt had properly offended; but partly
they draw from Scripture. That Text then in left the Sight of that Creature ſhould incite ſome
Gen. ix. 5. Your Blood will I require at the hand of other Perſon to the like Foul Paſſion, and partly
every living thing, according to ſome Expoſitors, left the Beaſt remaining alive ſhould keep up the
imports only thus much, that God would revenge ſcandalous Remembrance of the Human Offender,
the Murther of a Man committed, not only by the who had ſuffer'd Puniſhment, Gratian, Cauſ. 15.
Hands or the Weapon of another, but by the Fury queſt. 1. C. 4. The Reaſon why the Beaſts were order'd
of Wild Beaſts ſet on him by the others Command. to be kill'd, ſeems to have been becauſe they would renew
In as much as in the Antediluvian Times many the unhappy Remembrance of the foul Crime. Philo Fu-
violent Tyrants and Oppreſſors us’d to keep wild deus (de ſpeciat
. leg.) adds a third Reaſon, Lest the
Beaſts, to ſerve for Executioners of thoſe who Beast ſhould bring forth any deteſt able Monſter, ſuch as
diſpleas’d or affronted them (1). Others give this uſually proceed from Unnatural impurities, and ſuch as

(a) L. 8. de LL. p. 913. Ed. Francof.
(6) Senec. Hyppol. v. 910, 911.
Fera quoque ipſa Veneris evitant nefas,
The Beaſts themſelves avoid enormous Love; 10
Generiſque leges inſcius ſervat pudor. And Modeſty unconſcious and untaught
Preſerves the decent Laws of Sex and Kind,
Add. Oppian. Cyneget. I. 1. v. 239, doc. & Halient. 1. 1. V. 702, &c. which laſt place may well be urg'd againſt Parents who ſeem
to have loſt their Natural Affection.
(6) Mr. Bayle has made ſome Reflexions which may pleaſe the Reader, and therefore I ſhall give him them in his own words:
It is a pretty Common-place in Morality, to compare Mens Irregular Aflions with the Regular Motions of the Beasts. (See Horace E-
pod. 7. Juvenal. Satyr. 15. and Boileau Sat. 8.) But how finely ſoever it may appear, and however it may affect, it is never-
theleſs but a weak way of arguing; for firſt, it may be eluded by way of Banter, and ſecondly may be more ſeriouſly anſwered
by this Maxim :
Nil Agit exemplum litem quod lite refolvit. That Argument is of no force,
Which when retorted is the worſe.
Barbard, the wife of Sigiſmond the Emperor, deſigning to marry again after the Death of her Husband, one ſuggeſted to her
the Example of the Turtle, which always remains Single after the Death of her Mate. To which ſhe anſwered, If you will pro-
poſe to me the Example of a Beaſt, inſtance in that of Pigeons and Sparrows. Thus the firſt ſort of Argument is eaſily ſolved with-
out any Inconvenience. Nor is the other more difficult, for the Man whom you'll ſend to School to the Beaſts, to learn his Dury,
will reply, he deſires no better Maſters, for he'll tell you, I ſhall learn of them to yield up Right to force. The ſtrongeſt Dog
makes no ſcruple to take the Morſel from his Fellow. How often do we ſee Dogs quarrelling for their Meat ? Will not Chickens
fight one with another in the ſight of their Common Morher ? Do not Cocks fighe ſo furiouſly one with another, that nothing
but the Death of one of them can end the Combat? Do not Pigeons, the very Image of Mildneſs, often come to Blows one with
another? What more furious Quarrels are there than thoſe of Bulls ? Does any thing but Force decide Right among them in
Matters of Love? (Horace Lib. 1. Sat. 3. p. 110.) Cán a more unnatural Barbarity be any where Learned than at this School!
Do not ſome Beaſts devour their own Young ? Shall I not learn Inceft from them? (Ovid Metamorph. Lib. X. v. 323, Loc.) Muſt
I learn to conform myſelf fo to them, as to lay up my Proviſions as the Ant does ? (Horace Satyr, Lib. 1. Sat, 1. v. 32, doc.)
May tot I reſcue myſelf from that hard Bondage which makes all Men groan, and wrings ſuch grievous Complaints from them
as theſe;
How bleſt are you, No Laws but thoſe of Love ! whilft humane Laws
Wild Beaſts, that are, in loving, tyd unto Inhumanly condemn us for that Cauſo.
Paſtor Fido.
This does not hinder but that ſuch Moraļity may be properly applied to the greateſt part of Mankind, Di&tionar. Hiſterir. Lo Crit.
Tom. 1. p. 475,
476. See what our Author has ſaid, Chap. 1. §. 4. Grotius alſo obſerves, that there is no Action commendable
in Man, but GOD has impreffed ſome Footſteps of it in the Beaſts which are deſtitute of Reafon, De Jure Bel. & Pac. Lib. 2.
Chap. 19. S. 2. num. 2. in the Notes. Laſtly, it is always certain, thar no Right common to Man and Beaſts, can be eſtabliſhed,
nor can the Inſtinct of Beaſts be taken for a Rule of Natural Right, properly ſo called; and ſuch as take ſuch a Courfe run a great
hazard of falling themſelves into Scepticiſm, or leading others into it, by the manifeſt Uncertainty of the Maxims built upon ſuch
weak Principles. See the Diſcourſe, De Scepticiſmo Morali, among Mr. Buddeus's Anale&te Hiſtor. Philoſoph, S. 32.
$ III. (1) This is but a Viſion of ſome Rabbi. See Selden of the Law of Nature and of Nations among the Hebr. B. I. c. 5!
(2) Some turn it thus, God will require your Blood at the hand of every Beast; but the Prepoſition in the Original will not bear
that Tranſlation.
(3). I have corrected our Author's Expreſſion, Others underſtard by every living Creature Man only; as if every living Creature
were in the Text of our Copies or Verſions, whereas it is found only in the Samaritan Copy, which is corrupted. See Mr. Le
Clerc's Notes upon this Paſſage.
(4) Our Author ſays, the Beast ſhall be stored; but that's only a Conjeſture of the Rabbins, for the Scripture determines nor
how the Beaſt Thall be lain,


Ed. Argent.
320
I 20
Of the Law of Nature in general, Book II.
no Pious Man can bear the ſight of (s). Thus too We may excuſe thoſe Leárned Compilers of the
Deut. xiii. 15, 16. God commands the Iſraelites, in Roman Laws, by urging in their Defence, that by
rooting out the Idolatrous Nations to deſtroy the the Term of the Law of Nature (e', they meant that
very Beaſts ; only to ſhow the heinouſneſs of that (7) Order inſtituted by the Great Creator, chief-
Crime, not as if the Beaſts could be partakers of ly in thoſe things which make dire&tly for the pre-
it. It is obſervable, that if a Gentile living amongſt ſervation of Nature, or of the Species and Indivi-
the Jews, had been polluted with a Beaſt, the duals of all Animate Beings. And it is the more
Man only ſuffer'd Death, but the Beaſt eſcap'd (a). probable, that they took it in ſuch a Senſe, becauſe
According to the Law in Exodus xxi. 28. the go (8) they ſet down as the chief Heads of this Law,
ring Ox was to be fton'd; not becauſe he had only the Conjunction of Sexes, the Procreation
properly committed a Fault, but that he might and Education of Off-ſpring, and Self-defence.
not offer the like Hurt another time, and that the Many other Authors have us'd the fame Terms in
Owner who had negligently kept him, might be the ſame improper manner; as particularly Mr.
puniſh'd by his Lofs : And hence they were not Yves of Paris, in his Treatiſe concerning the Na-
allowed to eat the Fleſh of ſuch an Ox. This tural Law ordain’d by God over all Created Things,
Puniſhment was thought ſufficient when the Own- and Des Cartes, in his Principles of Philoſophy.
er was but ſlightly in Fault, or when he was ig. We may conclude this Point with the excellent
norant of the Fierceneſs of the Beaſt : Whereas if Obſervation of Plutarch (f) Nature, ſays he, as in
he knew him thus furiouſly diſpos’d, and ſtill neg. thoſe Trees and Shrubs which we call wild, ſhe hutha
lected to keep him up, he paid for the Miſchief ſown the crude and imperfect Principles of true and
with his own Life, being made a ſad Partner in pleaſant Fruits; ſo in Brutes hath implanted an imper-
the Puniſhment. And here again the Rabbins tell feet Love of their Off-spring, not belonging to the Head
us, that the Ox was ſton'd only when he had of Juſtice, nor reaching beyond the Inducements of Profit
kill'd a few, not if a Gentile had periſh'd by his and Advantage. But in Man, whom ſhe produc'd for
Violence. And indeed it was a Cuſtom in ſeve a Rational and a Civil Being, for the Worſhip of God,
ral other Nations, to deſtroy ſuch things as had for the Obſervation of Juſtice and of Laws, for the
been the Inſtrument of any Miſchief, or of any building of Cities, and for a Social and Friendly Life;
Misfortune (6). Thus it appears from the Orations in Man, I ſay, ſhe has fix'd the Seeds of this Love in
of Domofthenes againſt Ariſtocrates, and of Aſchines a fairer and in a more plentiful manner : And in this
againſt Creſiphon, that by the Athenian Laws, Stones, the bath follow'd the first Principles of his Body, and the
Clubs, Axes, and ſeveral other ſuch things, when Original Ingredients of his Conſtitution.
they had been made uſe of in the Commiſſion of
Murther, were brought formally into Court, as IV. Others make the Obje&t of Natural Law to
it were in order to undergo a Penalty. Thus the be ſuch Acts as do in themſelves include a Moral
Statue of Theagenes in Thaſos having unfortunately Neceſſity or Turpitude, and which are therefore
killd a Man by falling on him, the People order'd in their own Nature either abſolutely Requiſite or
it to be draggʻd into the Sea (6). St. Ambroſe (c) Unlawful, and which we muſt of Conſequence
calls the Copulation of Aſſes and Mares, by which ſuppoſe to be neceſſarily commanded, or neceſſa-
Mules are produc'd, forbidden, not becauſe the rily forbidden by God. And this Mark, they
Beaſts contract any Guilt in thoſe Practices, but ſay, diſtinguiſhes Natural Law, not only from
becauſe Men are forbidden to procure any ſuch Human, but from the Divine Poſitive Law, which
Unnatural Mixture (d).
doth not command or forbid things in their own
(a) Add. Selden. de J. N. & G. l. 1. C. 4. & Mornac. ad Leg. 7, D. de his qui effuderint vel dejec. Lib. 9. Tit. 3.
ib) Vide Div. Chryfoft. in Rhodiac. p. 340. Edit. Morell. (c) Hexaemeri, l. 5. c. 3. (d) Levit.xix. 19. Vide Selden
& Ant. Matth. de Crimin. Proleg. c. 2. I. 1. The Account which Thuanus (1. 5.) gives of the Proceſs againſt the Mice in Bur-
gundy is no more than a Jeſt. (e) L. 1. T. 2. D. de fuſto do fure. (f) De Amore prolis, Edit. Wechel. P. 495,
(5) Our Author hath forgot a fourth Reaſon, as conſiderable as any of them, which is this, That GOD, that he might make
us senſible how deteſtable ſuch abominable Crimes were to him, would have every thing deſtroyed which contributed any way to the Com-
miſſion.
(6) The Officers of Lyons, Maçon, and Autun in the XVth Age, paſſed ſeveral Sentences upon the Beaſts that annoyed their
Country. Sometimes alſo they cauſed the Caſe of the Inhabitants and Beaſts to be pleaded Judicially by their Advocates, who
produced the Reaſons for each Party, before they paſſed Sentence. See the Critical Hiſtory of Superſtitious Praktices, written by
F. Le Brun, an Extract of which is found in the News from the Republ. of Letters, in July 1702. Article IV. p. 63.
(7) There is all the Evidence in the World to believe, that they underſtood by it what the Stoicks call, ti copā Te velde múmy,
as Mr. Hirtius briefly obſerves. See Aul. Gellius, Lib. XII. Chap. V. do Cicero de fin. bon. & mal. who tranſlates ir, Prima ſecun-
dum Naturam, Lib. V. Ch. 7. Nor that they believed, that this Natural Impreſſion, which inclines Men to preferve themſelves
and theirs, is exactly the ſame, as is obſerved in Beaſts, or that it eſtabliſhed a Common Right in either of them; but they held,
that this latter had ſome Relation to the former, and the Likeneſs of the Outward Effects made this Natural Right to be looked
upon to be in ſome ſort common to Man and Beaſts, in a Figurative Nocion. See Vinnius upon the Inſtitutes, Lib. 1. Tit. 2. init.
This appears, in my Judgment, from the Manner in which Vlpian expreſſes himſelf, for he doth not ſay that the Beaſts are;
iſtius juris perita, but only, perita cenſeri, that is, they did not properly know the Engagements of Natural Right, but are only
thought to know them. The ſame Vlpian fays elſewhere. That a Beast in hurting a Man, or doing him ſome Damage, does bim na
Injury, becauſe he doth not know what an Injury is; from whence ir follows, that there is no Right common to Man and Beaſt.
Pauperies est damnum fine Injuriâ facient is datum. NEC ENIM potest animal injuriam feciſſe, quod ſenſu caret. Digeſt. Lib. IX.
Tit. 1. Leg. I. $. 3.
(8) Hinc deſcendit maris atque fæminæ conjunétio, quam nos matrimonium Appellamus, hinc Liberorum procreatio, hinc educatio. Die
gert: Lib. 1. Tit. 1. De juſtitiâ & jure, Leg. I. Nam jure hoc evenit, ut quod quiſque ob tutelam corporis ſui fecerit, jure feciſſe exiſti-
metur. Ibid. Leg. 3. This laſt Law, as it is placed, has reſpect to the Righe of Nations, as Vinnius upon the Inſtitutes" has ob-
and this appears by the Reaſon alledged by the Lawyer of Florence, from whom theſe words are taken, for he appeals
to Nature, which has eſtabliſhed a kind of Relation among us, by virtue of which one Man can’t, without a Crime, do any Evil
to another. Our Author, who ought to have obſerved this
, ſays, That divers Learned Men, and among them Tues of Paris, in
his Treatiſe De Jure Nato à Deo rebus creatis conftituto, and Mr. Deſcartes, in his Principles, have made a wrong uſe of this Term,
Natural Right.
Nature

ſerved;
CHAP. III. Of the Law of Nature in general. I 21

Nature neceſſary or unlawful, (1) but by forbid- poor Inhabitants of the Earth (c); yet when He
ding Things makes them unlawful, and by com once decreed to create him a Racional and a Social
manding Things makes them neceſſary: while the Being, it was impoſſible but that the preſent Na-
Things forbidden by the Natural Law are not tural Law ſhould agree to him ; not by an Abfo-
therefore Evil, becauſe God hath forbidden them, lute, but (2) by an Hypothetical Neceſſity. For
but God therefore forbad them, becauſe they ſhould Man have been engaged to the contrary
were in themſelves Evil: And, on the other hand, Performances, not a focial Animal, but (3) ſome
the things enjoin'd by the ſame Law, are not made other Species of barbarous and horrid Creatures
good or neceſſary by God's enjoining them; but had been produc'd. Notwithſtanding all which,
were therefore enjoin'd by God, becauſe they it remains for a certain Truth, that antecedently
were in themſelves fimply good and neceſſary (a). to the Impoſition of any Law, all Actions are to
But now beſides that upon admitting this Opini- be efteem'd indifferent. For by decreeing to cre-
on, it would remain a moſt perplexing Doubt ate Man, that is, to create an Animal whoſe Acti-
what thoſe A&s are which we thus ſuppoſe in ons ſhould not be all Indifferent, God immedia
themſelves Unlawful, and by what diſtinguiſhing ately conſtituted a Law for his Nature. Neither
Token they may be clearly known from others: from our Aſſertion, that all Actions are in them-
We have already ſhewn in our former Book (b), felves indifferent, before the Application of Law,
that no Actions are in themſelves Good or Bad, doth it follow, that God could have order'd our
Honeſt or Vile, till they are made ſo by ſome Law. worſhipping Him with Blaſphemy, or (4) with
Nor ought any Man to be ſhock'd with fuch a Contempt ; as Vaſquez (d) raſhly maintains. For
Scruple as this ; If all the Morality of Human a Rational Creature, that is, a Creature indued
• Actions depends on ſome Law, might not God with the Faculty of apprehending Things as they
therefore have fo fram’d the Law of Nature, as to truly are, cannot form any other Conception of
enjoin things directly contrary to the preſent Du- God than to acknowledge Him a Being not only
ties; for example, if amongſt the mutual Offices vaſtly his Superior in Nature and Dignity, but
due from Men to one another, He ſhould have likewiſe his proper Lord and Governor in the
put Killing, Stealing, Fornicating, and bearing higheſt degree. For otherwiſe he would con-
• Falſe-witneſs; and amongſt the prohibited Acti- ceive a meer Idol, or indeed any thing rather
ons, Gratitude, keeping Faith, paying Loans, than a God. But now it is plainly contradictory,
and the like.” For here, tho' it ſeems altoge- to ſuppoſe a Being at the fame time the moſt E-
ther a needleſs and an impudent Curioſity to en minent and the moſt Deſpicable; a Governor
quire what God might have done, when it ap- deſign'd purely to be inſulted on by his Subjects;
pears plainly what He hath done ; yet if any Man and to expreſs our Acknowledgment of the Ex-
ſhould perfift in ſuch Vanities, we may aſſure cellency and the Power of the Divine Nature, by
him, that ſuch a Doubt as we have been propo- ſuch Signs as denote directly the contrary. There-
ſing, implies a manifeſt Contradi&tion. For altho'fore to ſay that God cannot eſtabliſh ſuch horrid
God was not oblig'd by any Neceſſity to create Abſurdities by a Law, doth no more detract from
Man; (as I think thoſe Perſons have but a very his Omnipotence, than to ſay, that He cannot
narrow and unworthy Notion of the Divine Pow- die, that He cannot be untrne, that He cannot
er, who believe it would have diminiſh'd any make Things undone, which have been already.
thing from God's Glory, not to have made thefe done.

6


(a) Vide Grot. I. 1. C. 1. f. 15. n. 1. (6) C. 2. f. 6. (c) Vide Job xxxviii. v. 4. (d) Controv. Illuſtr, 1. 1.
c. 27. B. 9. Gc.
1. §. IV. (1) Grotius (Lib. I. Ch. 1. S. 15. num. 1.) criticizes upon the Philoſopher Anaxarchus, as having ſpoke too generally,
that what Things "GOD Wills, He Wills not becauſe they are Just, but they are Just becauſe He Wills them. This was the Occaſion
Alexander the Great, deſpairing of the Life of Clitus, his Favourite, whom he had Alain in his Paſſion, becauſe he had ſpoken
Sincerely to him, Anaxarchus, to comfort him, ſaid to him, in vile Flattery, 'Our Oiste Te Nxley H Trépedego ó Zeus, rj
fpuv, iva táv to pregner ind få ypativo Huilov mi rý Siretsov. Plut
. in Alexand. p. 695. i. e. Knopºſt thou not that the
Poets ſay, that Jupiter has Themis, i.e. Right and Juſtice ſitting oy him, which ſignifies, That all that a Prince does is Holy,Right and
Juft? By which Anaxarchus gives us to underſtand, That as G ÓD regulares Juſtice according to his Will, 1o a Prince can change,
as he pleaſes, the Rules of Right and Wrong. This is juſt the Language of Flatterers, and the Principle of Mr. Hobbes, who
deftroys all Juſtice, and yields up plainly the Will of GOD to the Humour of Princes, fince all that a Prince does being Juſt,
becauſe he does it, if he thinks good to do it, GOD muſt Will it alſo, and approve of it as Juſt. Plutarch elſewhere relating
this Story, maintains that Anaxarchus did very ill to ſpeak fo to Alexander, becauſe inſtead of adviſing him to repent of his Fault,
he had laid down a Maxim, which would encourage him to do the ſame again. The truth is (ſays he) that Jupiter has not Ju-
ſtice ſitting on his Side, but is himſelf perfet Juſtice, and is more ancient, as well as more perfe&t than all Laws. This Fiction of the
Ancients tends to make us underſtand, that without Juſtice, fupiter himſelf could not Govern as He ought, Ouxe opgas de
αφελίμως και εφ' οίς ήμαστε μεθάνοιαν αυτό τον σεις τα όμοια θαρρύνειν τώμενΘ. Ει 3 σε 1α τα εικάζειν, ο μ Ζευς έκ έχει και
Δίκίω πάρεδεον, αλλά αυτό δικη κ θέμις έρη, και νόμων και πρεσβύται, τελειότα οι παλαιοι έτω λέγεσι, κράρυσι,
that this Philoſopher in eſtabliihing the Will of GOD, as the Foundation of Right and Wrong, ſuppoſes ac the ſame time, that
his Wil is not purely arbitrary, but that he immutably follows what the Perfection of his Nature requires. See alto the Reflexi-
on which Arrian makes upon this Matter in his Expedit. Alexand. Lib.4. Ch. 9.
(2) We underſtand by Hypothetical or Conditional Neceffity, that which is founded upon ſome Suppoſition without which it
could not be. And ſo in the 'Matter in hand, we muſt ſuppoſe the will of GOD as a Condition, withouc which there could be
no Law of Nature, ſince if GOD had not freely determined to fend into the World ſuch a Creature as Man, we can'c con-
ceive that there ſhould be any Rule of Life given, which ſhould neceffarily agree to the Conſtitution of a Reaſonable and Soci-
able Creature. See Lib. 1. Ch. I. §. 4. Note 4.
(3) That is to ſay, In caſe GOD had created a Creature like us in Body only, and in outward "Shape, and by Reaſon of that
Refemblance had called him, MAN, this is only a Suppofirion, and a Reduction ad abſurdum, to make us underſtand the Ridi,
culouſneſs of the Hypotheſis
. See alſo what our Author ſays in his Difertationes, Academ P: 747.
(4) Our Author obſerves here, that the Sacrifices of Hercules of Lindus, of whom, among others, Laftantius ſpeaks, (Inſtitut .
Divin
. Lib. 1. Ch. 21. p. 98, 99. Édit. Owon.) are the abominable Invencions of ſenſeleſs Men.
R
Wę
I 22
Of the Law of Nature in general. Book II.
7
We may obſerve farther on this Argument, that Colour to believe that He will either reverſe or
if the Definition of natural Law is to be founded alter the Law of Nature, ſo long as He brings no
on that neceſſary Honeſty or Turpitude of ſome Change on human Nature it ſelf; and ſo long as
Actions, it muſt be always perplext and obſcure, the Actions enjoin’d by this Law do by a natural
and run round in an unconcluding Circle; as will Conſequence promote Society, in which is con-
appear to any Man who examines the Definition tain'd all the Temporal Happineſs of Mankind;
laid down by (5) Grotius. And Dr. Cumberland ex- while the contrary Actions do by as ſtrong a Ne-
cellently remarks, c. 5.8.9. that in defining the ceffaty deſtroy that Society : That is, ſo long as
Law of Nature, when we uſe the Word Good, Beneficence, Kindneſs, Fidelity, Gratitude, and
we muſt mean Natural, and not Moral Good; the like Practices, fhall have a Power of engaging
ſince it would be the higheſt Abſurdity to define a and of winning on Men's Minds; and Injurioul-
Thing by ſuch Terms as ſuppoſe it to be already neſs, Treachery, and Ingratitude, a Power of
rai-
known; thoſe very Terms being deriv'd as Confe- fing and provoking them. And therefore fuppa-
quences from it, and depending on it as to their fing human Nature and human Affairs to be fixe
own Evidence and Certainty.
and conſtant, the Law of Nature, tho' it owed
V. Thoſe Authors who ſearch for the firſt Pat- its Original Inſtitution to the free Pleaſure of GOD,
tern or the Original Draught of Natural Law in remains (2) firm and immovable; unlike to thofe
God himſelf, are divided into two Parties. For Divine Poſitive Laws which depend in ſuch a man-
fome placing the Spring and Fountain, as it were, ner on the Divine Will, as not to ſeem ſo neceffa-
of it in the Divine Will, do thence conclude, that in rily requiſite to the good and ſafe Condition of
as much as that Will is in the higheſt Manner free, Mankind in general. Beſides, tho' this Opinion
the Law of Nature may therefore be chang’d by be ſo far right, as it makes God the Author of na-
God, or (1) the contrary be commanded, as is the tural Law, a Truth which no Man in his Wits can
Caſe and the Condition of Poſitive Laws. Others doubt of (3); yet it ſtill remains an Uncertainty,
affirm this Natural Law to be founded after ſuch a by what Means this Divine Will is to be known,
Manner in the eſſential Holineſs and Juſtice of God, and what Tokens there are to evince, that God
as to repreſent and expreſs a Kind of Image or Co- intended to comprehend ſuch or ſuch a thing un-
py of thoſe Attributes
. And hence likewiſe, they der the Law of Nature
. And the ſame Inconve-
ſay, proceeds the Immutability of the Law of Na- nience attends likewiſe on the latter Opinion. For
ture: In as much as the Divine Juſtice and Holi- though no one can be guilty of ſuch horrid Im-
nefs are utterly incapable of Change or Alteration. piety, as to aſſert that the Law of Nature contains
Concerning the former of theſe Opinions, we any thing in it repugnant to the Divine Holineſs
have this to remark, that it was indeed at firſt en or Juſtice (4) ; yet it would be very difficult to
tirely free to the Divine Pleaſure to produce or not prove, that the fame Law is fo exact a Copy or
to produce an Animal to whom the preſent Law Reſemblance of thoſe Attributes, that in what
of Nature ſhould agree.
But that ſince God Al- Manner foever God Almighty is pleas'd to deal
mighty hath been pleas'd to create Man, a Being with his Creatures, particularly with Men, in the
not poſſibly to be preſerv'd without the Obſervati- fame Manner the Law of their Nature commands
on of this Law, we have no manner of Reaſon or Men to deal with one another. Nor doth it ap-



(5) Our Author proves this in his Apology, s. 19. thus, If we demand of them who define the Natural Law ſo, What Things
are the Matter of this Law? They'll anſwer, Such as are Honeſt or Diſhoneſt in their Nature. If we again ask them, What are
thoſe? They can anſwer nothing elſe, than that they are the Matter of the Natural Law. This makes well for the Schoolmen.
But can't we ſpeak ſomething here in the Behalf of Grotius? I own, that the Notions of this Great Man are not ſufficiently
cleared and freed from vulgar Prejudices : But I am very much miſtaken, if he has not found out the Truth, and can't explain
his Notion ſo, that when the thing is ſearched to the Bottom, the Difference between him and our Author will prove a verbal
Diſpuce only. The Right of Nature (fays Grotius, Lib. I. Chap. 1. §. 10. num. 1.) conſiſts in certain Principles of Right Reaſon, by
which we know that an Action is Honeſt or Diſhoneſt morally, according to the necesſary Agreement or Diſagreement it bath with a Reaſo-
nable or Sociable Nature. So that it is no Circle ; for if you ask Grotius whence comes that neceffary Honeſty or Baſeneſs of the
Actions commanded or forbidden by the Law of Nature, he'll anſwer you, From the neceſſary Agreement or Diſagreement with
a Reaſonable and Social Nature. Very well. He ſeems to acknowledge alſo, with our Author, that this Neceſſity is not abſolute
and independant upon the Will of GOD. This appears not only by the following Words, which finiſh Grotius's Definition, And
by conſequence GOD, who is the Aut bor of Nature, orders or forbids ſuch an Action, but by what he ſays in his Preface, where he ex-
preffes himſelf more fully, The Law of Nature, as well that which conſiſts in our uniting in Society, as that which is ſo called in a
more extenſive Senſe. This Right, I ſay, altho’ it flows from the internal Principles of Man (i, e. from the Conſtitution of the liu-
man Nature) may nevertheleſs, and that with Reaſon, be attributed to GOD, becauſe he has implanted ſuch Principles in us.
I will now leave it to any Man, whether the Commentators upon Grotius have not miſtaken his Senſe, and if when he ſpeaks of
Honeft or Diſhoneſt Actions, he does not mean them in the ſame Senſe that our Author allows them, as I have Thewed above,
Lib. I. Chap. I. S. 4. Note 4. and Chap. 2. S. 6. Note 1.
S. V. (1) Mr. Buddeus eſteems them Scepticks who favour this Opinion, For, ſays he, they may eaſily imagine that it is uncertain,
whether G Ó D has not changed this or that Law, in this or that Cafe, and whether he does not command what we ſuppoſe forbidden, and
on the contrary forbid what we believe commanded, ſince he may do it at all Times without any Hindrance according to them. De Scep-
tic. Moral. 9. 32. p. 257.
(2) The Immurability of the Natural Law is a Principle acknowledged by all ſuch, as reaſon well, Hear what the Roman
Lawyers ſay about this Matter, Sed Naturalia quidem jura, que apud omnes gentes peræquè obſervantur, divina quadam Providentia
conftituta, ſemper firma atque immutabilia permanent; ea vero, que ipſa ſibi quæque civitas conſtituit, fæpe mutari ſolent, vel tacito
conſenſu populi, vel alia poſtea lege lata, Inſtitut. lib. 1. tit. 2. S. II. ſee alſo the Digeſt. lib. I. tit. 1. De juſtitia do juré. leg. Ih.
and lib. 4. tit. 5. De capite minutis, Leg. 8. as alſo a Paſſage in Cicero, which is quoted a little lower, S. 20. Note 4. and Mr.
Noodt's Probab. Juris, lib. 2. chap. 11.
(3) Upon this it is that they ought to reflect, who lay down for the fundamental Principle of the Law of Nature, the will of
GOD, affirming, that there is no great Difference between that and our Author's Hypotheſis, whereas what we ſeek chiefly to
know is, what is the General Rule, by which we may diſcover what is the Will of GOD, that we may draw from that Rule,
by direct Conſequences, all the Maxims of the Natural Law.
(4) In which Senſe we allow the Saying of Euripides, (Hecub. v. 800.) GOD bim elf alts by a Law, i.e. by the Rules of Right
and Wrong. See Lib. 7. Chap. 6. S. 3. Note I.
pear
CHAP. II. Of the Law of Nature in general.
123
pear how a Right which is to obtain amongſt Per- which we reckon honest amongst Men. Shall we call
fons by Nature equal, can be copied from that them Valiant and Brave, able to endure Hardſhips, and
tranſcendent Right, which the Creator uſerh to encounter Dangers ? Shall we pronounce them Liberal?
wards His own Works ; that is, how a Law im- Who then ſhall be the object, or what the Matter of their
pofing a mutual Obligation on Men, can repre- Bounty? Certainly we must not oppreſs them with the
ſent any Image of Omnipotency, which no Laws, Load of Money or Treaſures. In like Manner it would
no Obligations can reſtrain (5). For that Argu- be an impertinent and troubleſome Commendation, to ſay
ment drawn from Scripture, about Man's being they are Temperate; in as much as they have no inordi-
created in the Image of God, is of no Force as nate Affections to govern and reſtrain. And ſo thus, if
to the preſent Caſe. For even thoſe who confeſs we run through the whole Train of human Actions, we
that Image to be loft, do yet acknowledge the ſhall find them all ſo mean and contemptible, es to be in-
Senſe of Natural Law to have ſtill remain'd in finitely unworthy of the Heavenly Natures. Catull.
Man. Amongſt our felves we uſually call him a ad Manl. 68. lin. 141.
Holy or Righteous Perſon, who abſtains from
groſſer Sins, and regularly obſerves his Duty: But Atqui nec divis homines componier æquum eft.
now, who ever fram'd a Notion of the Divine No juſt Compariſon 'twixt Gods and Men.
Holineſs by ſo unworthy a Model ? He amongſt
Men is accounted Juſt, who makes it his conſtant From this Conſideration, that we ought not to
Purpoſe and Reſolution to hurt no body, and to admit any Law common both to God and Man,
pay every one their Due: But in God it is Juſtice we may draw an eaſy Anſwer to thoſe Inſtances,
to deſtroy his Creatures, even in the moſt grievous which ſome give of God's diſpenſing with the
and painful Manner. Neither can he ſo owe a Law of Nature, as when he commanded Abraham
Perſon any thing, as to be accus'd with doing an to kill his Son, and the Iſraelites to rob the Egyptia
Injury upon withholding it.
If he hath been aus,
aus, of their Veſſels of Silver and Veſſels of Gold.
pleas'd to promiſe any thing to Mortals, he indeed For God the Supreme Lord and Diſpoſer of all
performs it: Not becauſe by virtue of ſuch a Pro- Things, hath a much higher and fuller Right over
miſe they obtain a Right againſt God; but be- his Creatures, than one Man can have over ano-
cauſe it would be ſome kind of Derogation from ther, who is by Nature his Equal. Therefore we
his Greatneſs and Goodneſs, to command Men to cannot properly call it a Diſpenſation of the Law
expect any Favour from him, and afterwards to of Nature, when a Man by expreſs Command
fruſtrate their Expectations. For he who breaks from Heaven, executes God's Right upon other
his Promiſe, either wants Power to perform it, or Men, meerly as His Inſtrument. Comp. Grot
. l. 1.
elfe through Inconſtancy or Diſhoneſty falls from c. 1. 8. 10.n.6. None, I believe, can be fo fimple
the Engagement he had once well made, or elſe as to imagine, that when the Object is chang'd,
at the ſame Time of making his Promiſe, he was or the Circumſtances varied, the Law it ſelf fuf-
ignorant how the State and Condition of Things fers Alteration. When the creditor hath forgives a
would be, when it was afterwards to be fulfill’d; Debt, it loſeth that Name, and therefore is no
all which Caſes imply fome kind of Failing and longer comprehended under the Law which en-
Imperfection. Hence God cannot but obſerve his joins Payment. And as for the other Inſtance,
Promiſes, and Men ought not but to obſerve theirs: when the Goods of a Perſon who gave a Thing
Hence human Promiſes turn into Debts, but Divine in Truſt, are adjudg’d to the Publick Treaſury,
Promiſes are made good out of pure Favour. neither the Law is chang'd nor its Object. For
What Rules the Vindicative Juſtice of God pro- thus runs the Law, He who receives a Thing in Truſt,
ceeds by, is far above our Apprehenſion to diſco- ought to reſtore it either to him who committed the Thing
ver. But thus much is certain, that they are not (being his own) to his Charge, or to bim on whom the
altogether conformable to the Methods of human Right deſcends (7). Now this Law cannot affect
Judicature. Ariſt. Ethic. Nicom. I. 10. c. 8. (6)What the Thief, becauſe the Thing was not his own ;
Kind of A&tions ought we to attribute to the Gods? Shall nor to the former Owner, who is ſuppos'd to be
we ſay they are Just? But alas ! It would ſeem most at preſent a Baniſh'd Man, becauſe the Propriety
ridiculous to fancy, that they are concern’d in driving of all that was his paſſeth to the Publick.
Bargains, in reſtoring Loans, and the like Performances, VI. But neither do the Arguments which the




(5) We muſt add here two important Obſervations. I. That there are ſeveral Acts of human Juſtice which can't be attributed
to GOD, becauſe of the Excellency of his Nature. Such are a great number of the Acts of univerſal Juſtice, and thoſe of par-
ticular Juſtice, which regulate Contracts, invented to carry on the Buſineſs and Neceffities of Life. See Pſal. l. v. 10, 11, 12.
Rom. xi. 35. For who, for Example, dare reaſon thus ? Pay your Debrs, becauſe GOD pays his. Be grateful, becauſe GOD is
kind to them that ſerve him. Obey your Governors, becauſe GOD is ſubject to his Superiors. Honour your parents, becauſe
GOD honours his. Are not theſe Arguings manifeſtly abſurd? II. Moreover, as we know GOD by his Works, and by afcen-
ding from the Effect to the Cauſe, we can'c know the Perfections of GOD, but by taking from the Perfections of the Crea-
tures, and eſpecially from Man's, whatever is imperfect, and then attributing them to GOD, when they are ſo purified. Thus
having obſerved that theſe are the Perfections of Man, to keep one's Promiſe, ſpeak the Truth, do no Man any Injury, diſtribute
Juſtice impartially, we thence conclude, that they ought to be in Him, who is the firſt Cauſe and abſolute Lord of the World,
but in a moſt excellent
Manner, and worthy of the Supreme and Sovereign Being. It would be ridiculous then to eſtablish Di-
vine Juſtice upon the Foundation of Human, becauſe this laſt is better known than the firſt, as Dr. Cumberland, De Leg. Nat.
Prolegom. §. 6. and Chap. 5. S. 13. acknowledges. I have taken this out of the Specimen Controvers. Pufendorf' motarum, &c.
Chap. 4. 9.4. and out of his Epiſt. ad amicos p. 262.
(4) Αriftotle's Greek is this, Πράξεις οποίας απονείμαι χρεών αυτούς και πότερα τις δικίας και η γελοιοι φαινεται συλλάλονες,
και ωρακαταθήκας αποδιδόντες, και όσα άλλα τοιαύτα' αλλά τας ανδρείας και ισομένοντας τα φοβερα και κινδωδονίας, όπ καλόν και
τας ελάττείει και τίνι και δώσεσιν και άτοπον οί', ή και έσται αυτούς νόμισμα, ή π τοιον σώφρονες, τι αν δεν ή φορτικός και έπαι-
νθ. όπ έκ έχεσι φαύλας όπθυμίας και διεξι&σι πάνlα φαίνοιτ' άν τα πει τις ορέξεις, μικρα και ανάξια Φτών.
(7) See Lib. 4. Chap. 13. $. 5. following.
R2
Author
124 Of the Law of Nature in general. BOOK II.
Author(a) of the Treatiſe de Principiis Jufti & De whom Nature has ſet them on a Level : Or, to
cori produces, ſeem forcible enough to eſtabliſh a uſe Grotius's (e) Terms, that the Jus Re&torium, and
Twofold natural Law, Divine, and Human, which, the fu Aquatorium, the Right of Governors,
ſuppoſing the preſent Order of the World to continue, do and the Right of Equals are exactly the ſame
fall in with one another (1). For in as much as all Thing.
Law implies Obligation, and that again preſup Neither muft we let that Aſſertion paſs by un-
poſes ſome external and ſuperior Principle, it doth cenfur’d, which the Author of the ſame Treatiſe
not appear how we can, without Abſurdity, ap- lays down, pag. 52. That GOD ought neceſſarily to
ply any
ſuch Matter to God. And it is a like Im- eſteem the Laws of Nature as Just, the Order of the
propriety to ſay, that (2) GOD is oblig?d by Him- Univerſe being eſtabliſh'd in the Manner we now behold:
ſelf, or by His own Effence. Nor will that Text And that He cannot but own every Deviation from them
which he alledges, of Rom. i. 32. ever prove (3) to be indecent and unjust. For without doubt thoſe
ſuch a Law to be in God. For ſince the Gentiles, imperious Terms, GOD ought neceſſarily, are very
from the Dictates of their Reaſon, were able to unſuitable to the Majeſty of an Omnipotent Le-
gather the Knowledge of the Law of Nature, the gillator. Nor is here any Neceflity to be diſco-
next thing which they muſt infer, was, that God ver'd in the Caſe (5), except ſuch as owes its O.
the Legiſlator would not ſuffer the Law to be vio- riginal meerly to the Divine Pleaſure. The Rea-
lated without puniſhing the Offender. Therefore ſon which he ſubjoins is not ſtrong enough to main-
upon the Violation of that Law, there ariſes a tain his firſt Poſition; All Things, ſays he, which
Right to God (if it be decent ſo to ſpeak) of ex- our Thoughts can imagine, bave always ſome kind of
ading Puniſhment; or upon Commiſſion of the geois or Relation, ariſing from the intrinſick Nature of
Sin, God moſt juſtly executes what He before the Thing, and which cannot be separated from the
threatned. But who can conclude from hence, Thing, without offering Violence to Reaſon. For this
that God is obnoxious to Law? What follows is Nature, and this adhering Relation, Things have
an ambiguous Expreſſion, that the Supreme Right of not from themſelves, but from the Free Will of
GOD over His Creatures is diſcover'd by Natural Rea- God; and the Decrees of His Will cannot proper-
fon from thoſe Principles, which make the Foundations ly be called His own Law. Thus, the Reaſon
of Natural Right and Equity amongst Men. For if why amongſt Men one Benefit obliges to the Re-
this only be the Senſe of it, that in many Cafes turn of another; why Violation of Covenants,
God doth proceed in the ſame Manner in his Inhumanity, Pride, Slander, can never be allows
Dealings with Men, as He would have them fol. able, is, becauſe God hath given Man a Sociable
low in their Tranſactions with each other; it will Nature, and as long as that Nature remains unal-
eaſily paſs without Contradi&tion (b). For thus ter'd, thoſe Things which are agreeable to it muſt
God by the Natural Law, hath enjoin'd Men to be good and honeſt, and thoſe which are repuga
keep their Promiſes, as he will firmly keep thoſe nant to it uncomely and unlawful. But who can
which He makes Himſelf (c). So He forbids hu- hence infer, either that there is but one Law, com-
man Judges to condemn the Innocent, declaring mon to God and Men, or that Things are indu-
that He himſelf will acquit them in His own Judg- ed with any géors or Habitude, independent from
ments (d) (4). But if it be meant to affert that the Divine Diſpoſal ?
God hath no more Right over His Creatures, than VII. Thofe who found the Law of Nature on
Men are allow'd to obtain over each other; there the Conſent of Mankind in general, or on the A-
will be need of more convincing Arguments to greement either of all, or however of the moſt,
make us believe, that the Supreme Lord and Ma- and the moſt poliſh'd Nations, ſeem chiefly to fol-
fter hath no fuller Right over His Servants, than low (1) Ariſtotle, as the Author and Patron of their
the Servants have over their Fellow-Servants, with Opinion. He, in his Ethicks to Nicomachus, B. si






(a) Velthuyſen. p. 253. (6) See Luke vi. 35. (c) Rom. iii. 4. Hebr. vi. 17, 18. (d) 2 Chron. xix. 6, 7.
Rom. ii. 2.
(e) L. 1.C. I. 1. 3. 1. 2.
S.VI. (1) Our Author here breaks off his Diſcourſe in a ſtrange Manner, to confute a Writer which he had read over in too great
hafte. Velthuyſen does, no where make two diſtinct Kinds of Natural Right, one to which GOD is ſubject, and the other to go-
vern Man, but that Natural Right which he calls Divine, as well as that which he calls Human, is a Law only for Man. He has
no Word thar fo much as intimates, that he would eſtabliſh a Righe common to GOD and Men. He only endeavours to prove,
that the Law of Nature, which is caught us by Reaſon, is really a Divine Law, and that GOD can't diſpenſe with it, but he
muſt contradict himſelf, fo far as the Conſtitution of Things is ſuch as he himſelf appointed at the Creation of the World.
This appears both by the Coherence of his Diſcourſe, and by what he had before ſaid, p. 52, 53. I had not minded to juſtify
this Author in this ſecond Edition of my Work, if I had not forgot in my firſt. I know not how to read what follows in the
Original.
(2) I know nor what our Author means here, for theſe words are not the Perſon's whom he confutes.
(3) Nor is this Mr. Velthuyſen's Conclufion which he aims at. His Deſign was only to prove, that the Gentiles might know
very well, that by breaking the Laws of Nature they diſobeyed GOD, and ſo deſerved his Corrections, ſo that he might juſtly
puniſh with Death any that had finned againſt the Law of Nature. From whence it follows, that in ſinning againſt the Law of
Nature chey finned againſt the Law of GOD.
(4) Mr. Velthuyſen ſays not the leaſt Thing that tends that way. He only aſſerts, that GOD, notwithſtanding his Almighty
Power, does nothing but what's agreeable to his Perfections. There is nothing, ſays he, of a worſe Conſequence in Religious Mat-
ters, than to teach that GOD dnes many Things wherein human Reaſon can ſee no Fuſtice. For, if this be allowed, we deſtroy all rea-
ſonable Worſhip; Men will be obliged to renounce the Uſe of right Reaſon. They muſt do and believe, in Reference to GOD, Things con-
trary to the Light of the cleareſt Reaſon, and conform to ſuch Notions as to them are incredible, &c.
(s) I can't ſee that Mr. Velthuyſen intends any other Neceſſity here, than what is founded upon the Perfections of the Deity,
who permits us nor to will the End, without willing at the ſame time the Means neceſſary to arrive at it, for this is the Prirciple
he uſes, as well as our Auchor, to diſcover the Original of the Laws of Nature. See &. 1 2. following.
S. VÚT. (1) The Greek of Ariſtotle is, Þú rizov per singlov td may texê outle'égov dwicuiv, rj to do xeiv, . And again,
Ei 83 μαντοναι τι πάνες, φύσει κρίνον δικαιον, και άδικον, κάν μηδεμία κοινωνία προς αλλήλες ή μήδε σωθήκη. See Cicero's
Tuſc. Quaft. Lib. 1. Chap. 13, 14. The Conſent of all Men in any Point, is to be efteem'd a Law of Nature. And again, The Conſent of
all Men is the Voice of Nature.

C. IO
CHAP. III.
. Of the Law of Nature in general.
125
6.10. сails that Natural Juſtice, which bears the ſame Some too there are, who fall foul upon our
Force in all Places, and doth not depend on particular Sen- Learning, in proſecuting which we ſpend ſo much
timents. And in his Rhetorick, B. sic. 13. he tells good Time; they will have it to be no better than a
us, there is a General Right and Wrong, or Just and Prop, or a Crutch to ſupport and aſſiſt our Dal-
Unjust, believ'd and profeßid by all Men; although no neſs: In as much as the good Diſpofirion of many
Society ſhould be inſtituted amongst them, and no Co- Men carry them on to a natural Innocence and
venants be tranſacted.
Probity, without Improvement or Ornament of
Now beſides, that this Way of proving the Law Letters'; and becauſe it requires no great Clerk-
of Nature is only à pofteriori (2), and therefore fhip to be an honeſt Man. It is likewiſe too evi-
cannot ſhew the Cauſe and Reaſon of the Thing; dent that high Attainments of Knowledge are
ſo is it very ſlippery and uncertain, and involv'd not always bleſs’d with the Attendance of good
in an endleſs Maze of Doubts and Perplexities. Manners or of good Temper (c). Many Nations
To appeal to the Conſent of all Mankind, Mr. we ſee pride themſelves in the tedious Pageantry of
Hobbes (a) obſerves it to be inconvenient upon this vain unneceſſary Things; deſpiſing thoſe who lead
Account, becauſe at this rate it would be impoſſi- a Life of leſs Gallantry and more Simplicity. Yet
ble for a Man, actually uſing his Reaſon, to ſin a were we to ſeek for Innocency and Integrity, we
gainſt the Law of Nature. In as much as his Con- might, perhaps, find them much fooner amongſt
ſent being wanting, who is a part of Mankind, theſe plain and unartificial Mortals, than amongſt
the common Agreement muſt needs be maim'd their ſtately and formal Neighbours. (5) 'Tis a
and imperfect. Then again, becauſe it would not ſhrewd Remark of Juſtin, l. 2. c. 2. ſpeaking of
be fair to gather the Laws of Nature from the the Scythians; It ſeems wonderful, ſays he, that meer
Conſent of thoſe who break them more frequently Nature ſhould give them, what the Grecians, with the
than they obſerve them (3). For, as Iſocrates (6) long Inſtitutions of their Wiſe Men, and the Precepts of
ſpeaks, It is a natural Misfortune which we all lye un- their Philoſophers could never attain ; and that the pom
der, that we ſhould more frequently Tranſgreſs than Per- liteſt Manners ſhould be diſtanc'd and out- done in the
form our Duty.
Compariſon with Barbarity. Of ſo much greater Benes
Nor will it be a more happy way of arguing to fit on one ſide was the Ignorance of Vice, than on the o-
appeal to the Conſent of all Nations. For, were ther the Knowledge of Virtue. Vid. Valer. Max. 1, 1.
it poſſible for us to underſtand all the Languages of c. I.if. 2. Extern. Sext. Empiric
. Hypotyp. l. 2. c. 5.
Ancient and Modern People, yet we ſhould be where we meet with ſeveral Things to the ſame
ſtill far enough to feek in the Knowledge of their Purpoſe.
Manners and of their Inſtitutions. We cannot - Beſides, that ſuch a Conſent can be of no Force,
hit off this Difficulty by ſaying, that the Conſent appears from this farther Reflection; that the num-
of the moſt Civiliz'd Nations is ſufficient, and that ber of Fools far exceeds that of wiſe Men; and
the Opinions of Barbarians are not to come into that few Perſons have form’d their Opinions upon
the Account. For, what Nation any ways able to a full Search into the Foundations of Things; but
manage and to preſerve it ſelf, will own the Title moft Men follow on in the Track of others, and
of Barbarous ? Or what Nation can take ſo much yield an implicit Aflent to their Notions, without
on it felf, as to deſire its own Manners and Pro- applying their own Thoughts or Judgments to the
ceedings ſhould be the Standard in Trying all o Points in Debate. Farther, altho' we have a to-
thers, and that whatever People did not exactly lerable Aſſurance of the Conſent of moſt people,
conform to its Model, ſhould be immediately (4) at leaſt as to the general Precepts of natural Law ;
pronounc'd Barbarous and Savage ? Heretofore and altho' we may preſume on the Conſent of the
the Pride of the Grecians, cenſur'd all as Barbari- reſt, from the Principles of thoſe who are better
ans, who liv'd without the Bounds of their Coun- known to us, yet it is more ſafe to conclude hence,
try. The Romans afterwards ſucceeded them, as what thoſe Nations eſteem juſt and equal amongſt
well in their Arrogance as in their Empire. And themſelves, than what they think fair Ways of
at the preſent, ſome few Nations here in Europe, dealing with Strangers; all whom (6) are by ſome
have the Vanity to prefer themſelves to the reſt of People accounted Enemies, and treated accor-
the World in the Opinion of their own Civility dingly (d).
and Improvements of Living. But there are not - VIII. Tho' the common Uſe and Cuſtom of
wanting other People, who imagine themſelves to mány Nations may ſeem to be alledg’d with more
have the Advantage of them in all Reſpects: And Force for proving a Thing to be lawful or allows
'tis an old Proverb amongſt the Chineſe, that them- able, than for the proving it to be actually com-
ſelves only have two Eyes, only the Europeans one, manded by the Law of Nature; yer that we can-
and all the reſt of the World are ſtark blind. not with any Security make ſo much as the former



(a) De Civé, l. 2. S. I. (6) Orat. ad Philipp. () Plato Epiſt. 10. Firm Integrity, Faith, and ſincere Dealing, this I take
to be the true Philoſophy. (d) Add. Montaigne's Eſays, 1. 1. c. 30.
(2) That is, not from the Nature of the Thing it felf, but from fome External Principle, as from the Conſent of People.
(3) The Greek is, 'Αλλα πάνες πλείω πεφύκαμεν εξαμαράνειν, ή κατορθέν.
(4) Charron reckons this among the fooliſh Opinions that are in the World, to condemn and reject all Things, Manners, Opini-
óns, Laws, Cuſtoms, and obſervances, as barbarous and evil without Knowledge of them, meerly becauſe they are not uſed by
us, and are not thought proper for our Practice. Of Wiſdom, Lib. 1. Chap. 6. §. 9. numb.2.' See alſo Lib. 2. Chap. 8. and Chap. 2.
§. 5. Let the Reader further confult Mr. Brugere's Characters in his Chapt. of judgments, p. 420. and he'll find ſomething very
ingenious and ſmart upon this Subject there.
(5) fuſtin's Words are, Prorſus ut admirabile videatur, hóc illis naturam dare, quod Græci longa fapientium Do&trina præceptiſque
Philoſophorum conſequi nequeunt, cultoſque mores incult å barbarie ſuperari. Tanto plus in illis profcit Vitiorum ignoratio quam in bis
cognitio virtutis.
() This appears eſpecially by the Example of two of the moſt famous People in the World, I mean the Greeks and Romans.
See Parrhafiana, Tom. 1. Page 202, 203. and Mr. Le Clerc's Ars Critica, Tom. 1. Part 2. Sect. 1. Chap. 6. G. 2, doc.
of
126
Of the Law of Nature in general.
Book II.
them-
of theſe Concluſions ſeems probable from the great (b) the Sceptick, to ſhew that there is no Certainty
Variety and Contradiction diſcoverable in the in the Notions of Honeſty or Diſhoneſty, hath
Manners and in the Inſtitutions of the moſt fa- raked up a great Heap of theſe contradictory Cu-
mous People upon Record. So that we may well ſtoms and Inſtitutions. But he hath ſtumbled ve-
apply to the preſent Caſe, that Saying of (1) So- ry fatally in the very Entrance of his Deſign,
crates(a), óx els cold airs ze di leonenss Kataqeúzes, tis. zou while he talks in this Manner: Amongst us Pollution
Tomass exccégwv. You conſult no very expert Maſters, with the Male Sex is unlawful and abominable; yet a-
when you refer yourſelf to the Multitude for Inſtruction. mongst the Germans, as is reported, it is no Diſgrace,
To the ſame Purpoſe Plutarch (b) obſerves, that but rather a faſhionable Practice. For the Grecians
the Laws of Men are vaſtly different, fome making one
were ſo ſcandalouſly addicted to this unnatural
Thing to be Good, and ſome another : And Tacitus's Vice, that Plato, in his 8th Book of Laws, thought
Deſcription of an Army compofs'd of various Na- there was need of urging fome Reaſons to prove
tions, may ſerve to repreſent the ſame wide Diſa- the Poſſibility of reſtraining it by Publick Edi&ts.
greement. Their Languages, their Manners, their De- And that the Bæotians, Sextus Empiricum's Country-
fires, ſays he, are different ; and while ſome will have men, ought not to ſtand excepted from this Impu-
one Thing to be lawful, and ſome the contrary, amongſt tation, may be gather'd from a Paſſage in Corneli-
them all, nothing can eſcape as unlawful (c). To give us Nepos's Life of Epaminondas; though perhaps the
ſome Account of this 'Variety by way of Speci- vile Cuſtom had ceas'd in thoſe Parts before this
men. Ariſtotle (d) reports of Tome favage Nations Sceptical Philoſopher wrote.
on the Confines of Pontus, that it is cuſtomary vaild there, he himſelf afterwards relates. But
with them, to borrow one another's Children, to what he reports of the Germans, is ſo groundleſs a
furniſh out their Feafts. And theſe people he Falſity, that 'tis wonderful how it ſhould enter in-
preſently after calls Irrational, Wild, and living on to the Head of any one, who is the leaſt acquaint-
ly by Senſe. Eufebius, in his Book de Preparatione ed with the Manners and the Story of that Na-
Evangelicà (e), reckoning up the foul Cuſtoms and tion. He adds, that the Cynick Philoſophers, and
Manners which had been corrected by the Doctrine Zeno, Cleanthes, and Chryſippus, eſteem'd the ſame
of the Goſpel, amongſt others, mentions the Pol- foul Enormity an indifferent Thing. That ſome
lution with Mothers and Siſters in Perſia, (which of the Indians thought it no Indecency to be fami-
Diogenes Laertius (f) too takes notice of from the liar with their Wives in Publick. That in ſeveral
Authority of Socion) the eating of human Fleſh, Parts of Egypt for Women to proſtitute themſelves
and the murdering of Children under a religious was look'd on as a creditable Profeſſion; and that
Mal getæ, and the Derbices us’d to kill their Rela-ſelves a Fortune by the Jilting Trade, and then to
tions when they grew very old, and make an En- Marry. That the Stoicks held it to be no irrational
tertainment with their Bodies; that the Tibareni Practice either to frequent the Stews, or to main-
in Cappadocia, threw their Ancient Perſons down tain one's ſelf by Pimping. That the Perſians con-
Precipices; that the Hyrcanians caſt out their Dead tracted Marriages with their Mothers, and the E-
to the Birds, and the Caſpians to the Dogs to be de- gyptians with their Siſters: The former of which,
vour’d. Hither alſo may we refer thoſe foul Watch- Zeno maintaind to be agreeable to Reaſon (i).
ings and other Ceremonies, deſign’d for the Ho- That Chryfippus permitted a Father to have Chil-
nour of their Gods, but mixt with all the Licen- dren by his Daughter, a Mother by her Son, and
tious Practices of Adultery and Lewdneſs; as al- a Brother by his Siſter. That Plato allow'd the
ſo the human Sacrifices barbarouſly murder'd on Community of Wives. That 'twas a receiv'd Cu-
their Altars. The ſame excellent Author (g) gives ftom with many of the Barbarians to feed on Man's
the following Relations out of Bardeſanes the Syrian. Fleſh ; which the Stoics themſelves approv'd of.
'Tis a Law amongſt the Getulians, that the Women of- That, amongſt many others, Adulteries paſs’d for
fer their Bodies to whomſoever they pleaſe, eſpecially to indifferent Matters.
indifferent Matters. That the Scythians offer'd
Strangers; and that their Husbands ſhall not accuſe them Strangers to Diana ; and kill'd their
own Parents,
on theſe Accounts, or pretend to cenſure them as guilty of when they arriv'd beyond the Age of Sixty Years.
Adultery. The ſame Liberty obtain'd amongst the Bac- That by a Law of Solon's at Athens, the Parents
trians. Whereas, on the contrary, amongst the Arabi were impower'd to put their Children to Death.
ans, all Adultreſſes were puniſhed with Death, and if That the Roman Gladiators, after the Performance
Suſpected only, underwent some leſſer Penalty. In Par- of their Murther, receiv'd Honours and Rewards.
thia and Armenia it is provided by Law, that no Man That Thieves amongſt the Spartans were puniſh’d,
fhall be accus'd for killing his Wife, bis Son, his Daugh- not for ſtealing, but for letting themſelves be catch'd
ter, or bis unmarried Brother or Siſter
. Among st the That the Amazons, if they happen'd to bear Male
Atrians Petty Robberies are puniſhi'd with Stoning ; a- Children, willfully made them Cripples, to pre-
mong it the Bactrians only with the Ignominy of being vent their Performance of any Manly Actions or
publickly defiled with Spittle
. The Wiſe Men of Greece Exploits. He enlarges farther about the different
are not aſhamed to court the Love of little beautiful Boys. Opinions in reference to the Divine Nature, a-
In Britain many Men polleſ one Wife. In Parthia ma- bout the Diverſity of Religious Rites and Ceremo-
ny Women belong to one Husband. (2) Sextus Empiricus nies, about the various Manners of Burial, and





(a) Plato Alcibiad. I, (b) In Themiſtocl. Pyrrhon. Hypotheſ. 1. 2. c. 5. p. 125. Ed. Wech. (c) Hift. 3. L. 3. c. 39. in fill
.
(d) Ethic. 1. 7. 6. 6. (e) L. 1. c. 3. (f) See bis Preface, f. 7. with Menage's Notes. (8) L. 6. c. 8. (b) Pyrrhon.
Hypothef. I. 3. 6. 24. (i) Ibid. chap. 23. Zeno's
Speech, as there repreſented, reacheth the higheſt Degree of Looſeneſs and Impudence.
S. VIII. (1) But here he ſpeaks of the Multitude or Populace, and not of the Conſent of ſeveral Nations.
(2). Theſe Remarks againſt Sextus Empiricus, in Favour of the Germans, contain only an uſeleſs Digreffion, which might well
be ſpared, as I have done.
the
1
CHAP. III. Of the Law of Nature in general I 27
the abſurd Procurements of Death (a). Tully (b) guiſh what thoſe Nations admit for natural Law;
reports that the Egyptians, having their Minds over and what for Poſitive and Civil. We may add to
come by wicked Errors, will ſooner let themſelves be cut this Conſideration, that meer Uſe and Cuſtom
in pieces, than they will hurt a Serpent, an Alp, a Cat, when it hath born a long and an unqueſtion’d Sway,
a Dog, or a Crocodile : And if they happen unawares to frequently puts on the Face and Semblance of Na-
do any of theſe Creatures a Miſchief, they voluntarily tural Reaſon. 'Tis manifeft, fays Agathius (d), that
undergo any Puniſhment. Busbequius (c) informs us, whatever I.aw or Inſtitution bath obtain’d thro' a long
that Theft is an honourable Practice amongſt the Courſe of Time amongst many people, then certainly cry
Colchians: And Fran. Alvarez that in Abylynia the it up for moſt excellent and moſt equitable; and if any
Cuſtom is, for the Thieves to preſent a part of thing be attempted contrary to it, this they reject as ridi-
their Booty to the King, keeping the reſt without culous, and unworthy of all Credit and Álowance. We
Scandal for their own Uſe. Philo Judæus de Temu- have a famous Example to this Purpoſe in Herodo-
lentia, p.208, 209. Ed.Genev. (3) And theſe Things may tus (e)Darius, for Experiment's fake, put the
give us warning not eaſily to credit thoſe Uncertainties, Queſtion to the Greeks, who were under his Com-
which being diffus'd thro almoſt the whole World, have mand, what Summ of Money he ſhould give them
thrown both Greeks and Barbarians into common Errors to feed on the Bodies of their deceas'd Parents, af-
of Judgment. I mean thoſe early Inſtitutions, thoſe Na- ter the Manner of the Indians. Upon their Refu-
tional Caftoms, thoſe Ancient Laws, through the whole fal to comply on any Conſiderations; he ask'd
Summ of which we cannot find one in which all agree; ſome of the Indians, what they'd take to burn their
but in every Country, People, City, Street, and even in dead Parents after the Grecians Faſhion, and not to
every Houſe, the Men, at leaſt, differ from the Women, eat them : But they ſetting up a general Outcry,
and the Children from both. And indeed I do not won deſired the King to have better Thoughts of them.
der, that a confus’d and miſcellaneous Rabble, meer Beſides, to have been inur'd in any Opinion from
Slaves to Laws and Cuſtoms, however introduc’d, inur’d one's Infancy, is ſo forcible a Prepoffeflion, that al-
from the Cradle to yield Obedience to them no leſs than to tho' the Opinion be falſe, yet it ſcarce enters into
Maſters or Tyrants, and having their Mind cow'd, and any Perſon's Head to queſtion it; at leaſt it paſſes
broken by Severity and Blows, and not able to aſpire to with an uncontrol'd Currency, amongſt Men of
any Great and Manly Attainments, ſhould believe the vulgar Parts and Capacities. (1) Ariſtot. Problem.
Traditions they receiv'd from their Anceſtors, and let- Se&t. 18. qu. 6. Thoſe Things wbich Men have at firſt
ting their Reaſon lie without Uſe or Exerciſe, affirm made Choice of, and to which they have been accuſtom'd,
Things or deny them unexamin'd and unobſerv’d. But I in theſe they are not able to judge for the better. For
cannot forbear wondering at the Philoſophers; who, their Mind is already corrupted by evil Prejudices and
whilſt the greateſt Part of them pretend to hunt for the Prepoſſeſſion. Cicero. Tuſc. Quæſt
. I. 4. C. 3. Some
real Truth and Certainty of Things, dividing themſelves Perſons are tied and refrain'd in their Notions, before
into ſo many Troops and Orders, pronounce of almoſt every they are capable of judging what is beſt, and afterwards,
Matter, Great or Small, ever with Difference, and often in the weakeſt part of their Age, either following the O-
with Contradiction. Add. Montaigne's El. l. 1. c. 22. pinions of Some Friends, or taken with the Speech of the
and Charron of wiſdom, l. 2. c. 8. .4, 7.
firſt Mafter they have heard, they give their Verdiets on
Points wbich they do not in the leaſt underſtand, and bea
IX. But that Notion of extracting the Law of ing carried with the Violence, as it were, of a Tempeſt,
Nature from the Manners and Cuſtoms of the to ſome particular Doctrine or Sect, they cleave to it as if
World, is accompanied with this farther Inconve- they were bugging a Rock to ſave their lives. And a
nience ; that 'tis almoſt impoſſible to find any Na- little after, I know not how it comes to paß, that most
tion, which is govern'd purely by Natural Law; Men had rather continue in a Miſtake, and quarrel and
but every Country hath its own particular Laws fight in Defence of an Opinion which they have once lov’d
fuperadded, either in Writing or otherwiſe; to be and embrac’d, than to examine without Obſtinacy or Par-
made uſe of when the People have any Bargains tiality, what is deliver'd with most Agreement on all
or Tranſactions with their Fellow-ſubjects. And ſides. Add. Mich. Montaigne's El. l. 1. c. 22. Philo
many times Affairs in Debate between whole Na- Jud. de Abrahamo p. 294. B. Ed. Genev. Inveterate
tions are decided either by Civil Law common to Cuſtom uſually bears as much Force as Nature it ſelf.
both, or by the Law of Nature, as it is not Na- To the greateſt part of Mankind we may apply
ked, but Cloath'd, as it were, with many poſitive Sextus Empiricus's (2) Saying, they follow the uſual
Additions. So that it is no eaſy Matter to diſtin- Ways of Life without Thought or Reflection (f). And
abcow To







(a) Add. Diog. Laert. in Pyrrho. 1.9. (6) Tuſc. Queſt. l. 5. 6. 27. (c) Epift. 3. (d) L. 2. 6. 20. (e) Thalia.
p. 112. Gr. Edit. H. Steph).
(f) Pyrrbon. Hypoth. l. 3. c. 24.
(32) Phild's Greek is, Εκεί δ' ημάς και παρακαλεί μη λίαν τους αφανέσι «ευπεύειν, α χεδόν ανά πάσαν την οικε εδώην ανακέχυτα,
κοινόν "Ελλησιν ομά και βαρβάροις επάρνια η εν σε κείνειν όλιθον, τίνα εν ταύτ' όξιν, αγωγαί δίπειν αι εκ παίδων, και έ9η πα-
Τι παλαιοί νόμοι, ών έν έδέν ομολογείται ταύτιν ή νεα πάσιν, αλλά και χωρίς και έθνη, κ πόλεις, μάλλον και και τι κώμην
και οικίαν εκάσης, άνδρα μεν έν και γυναίκα και νήπιον παίδα, τοις άλλοις διακέκείνα τα γεν αιχeg παρ' ημίν ετέροις καλά,
πονγκ, απρεπή, και οι δίκαια, άδικα- Εγώ έ τιθαύμακα ει συμπεφορημένα και μιας όχλΘ ετών και νομων ή οπωσεν εισος
Lévay draens dig, da wir en avaggevar un reegex's eav (for to it ough to be read, inſtead of dixéeiu], as v Stavo toy
κράννων, εκμαθών, κατακεκονδυλισμένα την ψυχήν, και μέχρι και νεανικών φρόνημα λαβείν μή δυνάμνΘ, πτύει τις άπαξ και
φων και πληθύς και εν τοις έσι σαφές και αψάδες επιμορφάζεσα κράν, και άφη και λάχες διακόκειται
, και δόγματα ασυμφώνα, πολλάκις
3 και ενάντια και σε ενής τίθενται σε τυχόντα, αλλά έχουν οι πάντων μικρών και μεγάλων, εν οίς αι ζητήστις σιωίσαν ται.
28 i dodvora sia caunas megcupboets
. Tully's Words are, Nam cæteri primum ante tenentur adftri&ti, qua'm, quid esſet optimum, judicare
potuerunt : deinde infirmiffimo tempore ætatis aut obſecuti amico cuidam, aut una alicujus, quem primum audierunt, oratione capti, de re-
bus incognitis judicant, & ad quamcunq; funt diſciplinam quaſi tempeſtate delati
, ad eam, quaſi ad ſaxum, adhereſcunt.
(2) S. Empiricus's Words are, "Ende ö ározászos tñ Blotixħ tupňosi.
Euripides

ng
128
Of the Law of Nature in general.
BOOK II.
Man among them wore long Hair, it was a Shame to him, whereas if women had long Hair it was Honourable.
(3) Euripides's Obſervation is no leſs true, that the Photinus's wicked Counſel in Lucan, B. 8. v. 488.
Traditions which we receiv'd from our Parents, and which Et ſegg. proceeds on the ſame Principles.
are grown up with us, no Reaſon can confute, no ſtrength
of Wiſdom can over-rule (a). To the ſame Head
- Sidera terra
we may refer that Text of the (4) Apoſtle, 1 Cor. Ut diſtant, & flamma mari; fic utile recto.
xi. 14. and that Remark in Plato, in his ſeventh Sceptrorum vis tota perit, ſi pendere juſt a
Book of Laws, that our uſing one of our Hands Incipit ; evertitq; arces refpeétus honeſti
.
more readily than the other, proceeds purely Libertas ſcelerum eft quæ regna inviſa tuetur. atei
from Cuſtom : In as much as Nature equally fa-
vours both. Amongſt many People Honour and As Fire from Water, as each Heavenly Light
Reſpect are meaſured by the Length of Beards(b); From Earth, fo Profit ftands remov'd from Right.
whereas, on the contrary, the greateſt part of the If nice Regards to Faith and Truth are ſhown,
Americans think it a brutiſh Indecency to appear Your Scepter drops, and you unhinge your Throne.
with any Beard at all (c).
The way to fix all bated Reigns has been
But all this while, we do not aſcribe ſo much To grant a general Liberty of Sin.
Force to Cuſtom, that it ſhould be able in ſuch
a manner to deprave and reduce the Judgment of Ariſtippus too, and Pyrrho in Diogenes Laertius (e),
Reaſon, as to render the Truths concerning Natu- deliver themſelves very grofsly concerning the o:
ral Laws impoſſible to be apprehended (d). rigin of Juſt and Unjuft. But of all the Ancients
none diſputed this Point ſo largely as Carneades is
X. This ſtrange Diverſity of Laws and Manners, ſaid to have done. His Arguments, as Lactantius
by which moſt Nations in the World contradict (f ) hath contracted them, are (2) to this Effect.
each other, hath, without doubt, been the Occa. That Men firſt inſtituted Laws to fecure and to
fion why ſome Men have aſſerted that there's no promote their own Advantage; whence they came
ſuch Thing as Natural Law, but that all Law firſt to be ſo various according to their different Mani-
aroſe from the Convenience and the Profit of par- ners, and different Times; but that there was no
ticular States, and is incapable of any other Mea- ſuch thing as Natural Law in the World. That
ſure. Thus Horace, Serm. l. 1. Sat. 3. v.98, 111, &c. Mankind and all other Animate Beings, are by the
Guidance of Nature, carried on to the Purſuit of
Atq; ipſa utilitas, juſti prope mater do aqui.
their own Profit ; and that conſequently there can
be no Juſtice; or, if there be, that it muſt be the
Jura inventa metu injuſti fateare neceſſe est,
higheft Folly, in as much as it would make a Man
Tempora ſi faſtofq; velis evolvere mandi.
injure himſelf in conſulting the Conveniences of
Nec Natura poteſt juſto ſecernere iniquum,
others. That all Nations famous for Empire and
Dividit ut bona diverſis, fugienda petendis.
Command, and the Romans themſelves, who then
reign’d Maſters of the World, if they would be
Of Mother Profit, Juſt and Right were born. juſt, that is, if they would reſtore every one his
own, muſt return to their ancient Cottages, and
Turn o'er the muſty Annals of Mankind, to their Primitive Poverty (g). In clearing up
And you'll confeſs that Laws were firſt enjoin'd theſe Objections, it will not be amiſs to begin with
Thro' fear of Wrong: Meer Nature never knew, Tully's Remark, in his fecond Book of Offices, c. z.
Or Good, or Bad to ſhun, or to purſue.
(3) Profitable, ſays he, is a Word which by the Corrup-
tion of Time and Cuſtom is perverted inſenſibly to the Sig-
Ovid Ep. Heroid. 4. v, 131, &c. makes his Phedra nification of ſomewhat that may be ſeparated from Hone
declare her Mind to the ſame Purpoſe.
fty; ſo as to make ſomething Honeſt which is not Profita-
ble, and ſomething Profitable without being Honest: An
Ifta vetus pietas evo moritura futuro,
Error of the moft pernicious Conſequence to the Life
Ruſtica Saturno regna tenente fuit.
of Man. On which account, in his third Book of
Fupiter eſſe pium ſtatuit quodcunq; juvaret.
the ſame excellent Work, c. 3. he tells us, that som
erates us’d to curſe the Authors who firſt divided theſe
That Thread-bare Virtue only held its Sway, Names in Notion and Opinion, which were in Nature ſo
Whilſt heavy Saturn ruld the Sons of Clay. inſeparably united. For thoſe Maſters of falſe Poli-
Jove broke the dull Reſtraint; by Jove's Decree ticks cheated the heedleſs Vulgar with the Ambi-
Profit is made the Teſt of Piety.
guous Term of Profit; which is of two kinds, as
(a) In Bacchis, v. 201, &c. (6) Vide Arrian. Epiftet. l. 1.c. 16. (c) Vide Rochefort. Deſcript. Antill. p. 2. c. 8. $.6.& c.9.
(d) Add Selden de 7. N. & G. Secund. Hebræos I, 1, c. 6. (e) See Book 2. and Book 9. (f) Divine Inſtitutions, 1. 5. c. 17.
(8) Add. Grot. Prolegom. N. 16, &c.
(3) Euripides's Words are, Tateos moet dozes, é o l'epíaixas xeira
Κεκτόμεθ', όπως αυτά καταβαλεί λόγG,
Ουδ' δι' άκρων το σοφόν έυρηλα φρενών.
(4) St. Paul in that Place Thews us only the Power of Cuſtom, which is ſo ſtrong, that Nature it ſelf taught the Corinthians,
that if
any
S.X. (2) Laftantius's Words are, Ejus, i.e. Carneadis.] Diſputationis hæc fuit fumma:Jura ſibi homines pro utilitate ſanziſſe ſcilicet,varia
pro moribus do apud eofdem pro temporibus
fæpe mutata, jus autem naturale nullum effe. Omnes do homines, & alias animantes ad'utili-
tates juas, naturâ ducente, ferri: proinde aut nullam efle juſtitiam, aut fi fit aliqua, ſummam eſſe. Stultitiam, quoniam fibi noceret alienis
commodis conſulens
Omnibus populis, qui florerent imperio, do Romanis quoq; ipfis qui totius orbis potirentur, fi iuſti velint effe hoc
est, fi aliena reſtituant, as caſas eſſe redeundum, & in egeſtate G miſerii jacendum.
(3) Tully's Words are, In quo ( verbo) lapſa conſuetudo deflexit de via, ſenſimq; eo deduéta est, ut honeſtatem ab utilitate ſecernens,
do conſtituerit honeftum eſſe aliquid, quod utile non eſſet, & utile quod non honeftum, qua nulla pernicies major hominum vitæ potuit ad
Again, Itaq; accepimus, Socratem execrari ſolitum eos, qui primum hæc naturâ coherentia opinione diftraxiffent.





ferri.
it
CHAP. III. Of the Law of Nature in general. 129
it is rated by two different Principles. One fort have been their chief End and Deſign, to hinder
of Profit is that which appears ſuch to the depravid Men from ſquaring their Aations by fo falſe a Mea-
Judgment of ill compos'd Affections ; theſe being ſure. For ſhould any one reſolve to direct all his
mov'd chiefly by preſent and tranſitory Advanta. Proceedings to his own private Advantage, without
ges, and very little ſollicitous about future Con- any Regard to the reſt of Mankind, ſince all o-
cerns. (4) The other and the true Profit is ad- ther Men might as well take the ſame Courſe,
judg’d ſo by ſound Reaſon, which doth not only there could not but arile the deepeft Confuſion,
conſider Things at Hand, but weighs and exa- and a kind of War of All againft All, a State (6)
mines the Effects and Conſequences which they the moſt Unprofitable and the moſt inconvenient
are likely to produce. Which therefore muſt pro- in the World. On the contrary, it is very mani+:
nounce that alone to be truly profitable, which is feft, chat he who by obſerving the Law of Nature!
univerſally ſuch, and which gives Aſſurance of endeavours to win the Affections and the good
Conſtancy and Duration (a), but can never judge Grace of others may conceive much farer Hopes
it a deſirable Thing to enjoy a Momentary Advan- of Profit attainable by their Affiſtance, than hez
tage, drawing after it a Train of endleſs Mifchiefs
. whoitruſting to his own fingle Power, takes the
'Tis a moft unhappy and a moſt dangeroqs Plea- Liberty of treating others as he lifts (c). Nor is iti
fure, in the Heat of a Fever to relieve ourſelves poffible for Men to frame a Notion of any Profit,
with cold Water, which will be ſure afterwards to which will be their own Peculiar, or to which all
redouble our Tortures. Actions perform'd in: Con. Men will not have as good a Title as themſelves;
formity to the Law of Nature have a double Ex- fince Nature hath'never given any Man fo large a
cellency, not being only Honeſt, that is, conducive Privilege, as to let him exerciſe any kind of Right
to the Preſervation and to the Increaſe of the Ho- againſt others, the Uſe of which they are not al-
nour and the good Credit of Men; but likewiſe low'd to turn again upon him. Therefore 'cis a
Uſeful and Profitable, promoting their Intereſt and great Miſtake to fancy 'twill be Profit able to you,
Advantage, and contributing largely to theit Hap- to take away either by Fraud or Violence, what
pineſs
. And this latter Quality is ſo far from be another Man hath acquir'd by his Labour (d);
ing an unworthy Attribute of Virtue, that even in fince others have not only the Power of reſiſting
Holy Scripture, 1 Tim. iv, 8. Godlineſ is ſaid to be you, but of taking the ſame Freedom with your
Profitable to all
, having both the Promiſes of this Life Goods and Poſſeſſions. And you have as little
and of that which is to come. On the other Hand, Reaſon to think it will prove advantagious to you
thoſe Actions which contradict the Law of Nature, to break your Faith; ſince your own Example
are always Baſe and Diſhoneft, and tho' they now may be made uſe of to your own Prejudice. Iſo-
and then bear ſome Appearance of Profit and of crates in Areopagitic. p. 252. (7) They judge thoſe who
Pleaſure, yet theſe Charms are quickly over, and break Faith and Contracts, to injure the Poor more than
never fail of being attended with a more conſide- the Rich. The latter, by loſing ibeir. Dependants, could
rable Croud of Evils and Misfortunes (b). (5) Tully ſuffer only ſome little Damage in their Revenues. The
in his firſt Book of Offices, Chap. 4. talks admira- former, if they were thrown off by their Patrons, whoſe
bly for our preſent Buſineſs. Betwixt a Man and Support and Aſſiſtance they continually needed, must be
a Brute, ſays he, there is eminently this Difference; reduc'd to extreme Indigence and Miſery (8) The ſame
the one is carried on by Senſe, and to that only which is Orator, in Orat. de Pace. p. 285. Éd. Pariſ. placeth
preſent, with little or no Regard to what is either paſt or the chief Strength and Foundation of all his Ad-
to come : Whereas the other, by the Benefit of Reaſon fees vice to his Countrymen, in this Principle, that
the Conſequences of Things; their Riſe and their pro- there is more Gain and Profit in a peaceful Competency,
greſ, and couples together Cauſes and Effects; compares than in a needleſ Purſuit of Abundance
. That Juſtice
Reſemblances of Actions and Events; tacks the preſent is much more eligible than Injury, and the Care of their
to the future ; and ſo taking in his whole Life at a View, own Poſſeſſions, than the Deſire of other Men's (e). (9)
he prepares all Things neceſſary for the Uſe and Comfort Nor ſhould any preſume ſo much on his own
of it. Therefore 'tis ſo far from being true, that Strength and Power, as to imagine that others will
Civil Laws were firſt inſtituted for the ſake of this not repay him with ſuch Uſage as they receive
Momentary and Baſtard Profit, that it appears to from him. For all true Power ariſes from a Con-




(a) Marc. Antonin. l. 7. . 74. Thoſe Aktions are profitable or advantagious which are agreeable to Nature, (b) See Prov. xx. 17.
v. 3, 4. ix. 17, 18. xxi. 6.
(c) Add. D. Cumberland, c. 2. §. 2, 9. n. 2. (d) See Prov. 1, 13, 14, &c. (e) Which Afler-
zion he afterwards proves at large, and which is much more to the preſent Purpoſe than that above-mention’d by our Author.
(4) As the Objets which are near us are commonly eſteemed greater, than thoſe vaft Bodies that are at a Diſtance; ſo in Rea
fpect of Good and Evil, the preſent have the Advantage, and, in Compariſon of thofe that are ar a Diſtance, are always the
greareft : So the moſt of Men are like Prodigal Heirs, believe a leffer Good in preſent preferable to the Reverſion of a greater ;
and ſo for the preſent Poffeffion of a ſmall thing, they'll part with a large Inheritance which would certainly come to them.
This proceeds from a falſe Opinion. Every one ought to know, wherein conſiſts his pleaſure, for what is abſevt now, will one.
Day be preſent certainly, and then having the Advantage of Nearneſs, he'll ſee Things at their juſt Proportion, and fo prevenc
in Time the unreaſonable Eſtimate he has ſet on them by reaſon of the unequal Meaſures. Mr. Locke’s Eſay of the Underſtanding,
lib. 2. chap. 21. 9.93. See alſo, what goes before and follows.
(3) Sed inter hominem, & belluam hoc maximè intereſt, quod hæc tantum, quantum ſenſu movetur, ad id folum, quod adeſt, quodque
praſens est ſe accommodat, paululum admodum ſentiens præteritum aut futurum. Homo autem, quod rationis eſt particeps, per quam con-
Sequentia cernit, cauſaſque rerum videt, earumque progreſſus de quafi anteceſfiones non ignorat, ſimilitudines comparat, & rebus præfentibus
ndjungit, atque adnettit futuras, facilè totius vite curſum videt, ad eamque degendam præparat res neceſſarias.
(6) of the Word Inutilius, Tee Note I. on 5.9. of Chap. 2. of this book.
(7) This Paſſage of Iſocrates is nothing to our Author's purpoſe, as any one may diſcern at the firſt fight.
(8) τω με ήσυχίαν ώφελιμωτέραν, και κερδαλεωτέραν τη πολυφραγμοσύης, ή και δικαιοσύίω η αδικίας, 3 3 14ίων οι
μέλειαν τή άλλοτειων επιθυμίας.
(9) “ There are more Men that can poiſon, ſteal, and cheat us, than there are againſt whom we can commic thoſe Crimes. Eve-
very one is more liable to be offended, than offend; for among 20 Perſons that are Equals, it is manifeſt every one of them
“has leſs Power againſt the Nineteen, than they agaipt him.” Bayle's Did. Hiſt. do Crit. Tom. III. 2745. Col. 2,
S
junction

130
Of the Law of Nature in general. Book II.
,' wy oi . év Ž , y PSV
then
junction with other Men, whom 'tis impoſſible to Aſſurance of general Profit ; for while it takes place byi
keep together by your ſingle Force. So that if the Univerſal Conſent of all parties, there ariſes tie
that falle and ſpurious Profit were to be the Mea- Common Advantege, that Men do not-mutually give end!
ſure of all our Proceedings, the Life of the ſtouteft receive Injuries, but live in Peace and Quietneſ together:
Mortal would be as often in Danger, as it ſhould which as it is good and profitable, fo doth Nature incite
ſeem profitable to any one to rid him out of the every Man to embrace and to purſue ited Tho' it muft
Way : And whoever took ſuch a Courſe would be obſerv'd by the way, That what Gaſſendus afeér-
only fet a fatal Pattern, and chalk out the Waywards delivers about a different Profit, among dif-
to his own Deſtruction. On the whole Matter ferent Perſons, and about a variable Juſtice, muft
then, not Juſtice, but Injuſtice is really the higheſt not be admitted in Regard to Natural Law, but
Folly; which, tho' it may ſeem to ſucceed for the only to Civil Conſtitutions. Diodor. Sicul. 1. 23.
preſent, yet is neither generale nor lafting; and Eclogar. Epicurus; in the Book which he calls, Seru
to the Diffolution and Deſtruction of human tled Notions, affirms, That a Life led acoörding to F1-
Safety ; Men being chiefly guarded and ſecur'd ſtice is free from all Trouble and Diſquiet ; but that injući
from Dangers by Society and by Friendlineſs. ftice was full of Diſturbance and Difquiet. "Lucrecius;
Nori will this hold true only of particular Men, 1. 5. 1151, &c. bitons has wolna dous
but likewiſe of whole States and Communities; is too olvasni od: sisut
there having never been any Commonwealth fo Circumretit enim vis atque injuria quemque, too disin
Powerful, or fo well eſtabliſh'd, as not ſometimes Atque unde exorta eft ad eum plerumque revertit
. bobot
to ſtand in need of their Neighbours Affiftance ; Nec fácile eft placidam ac pacat am ducere vitam, imot
ſince no ſingle Kingdom could long bear up againft Qui violat faétis communia fædera pacis.on ebaello
the united Forces of a ſtrong Confederacy. bo to stond ik of Scienelorl sd 03
Quintilian obſerves (10) that an ill Example can Becauſe diffufive Wrong can ſpread o'er all, as nuo
never be truly advantagious ; for tho' it may give fome No State's fecure; nay, of the Wrongs recoil
Delight as the Occafon now ſtands, set it afterwards With double Force on the Contriver's Pall.svb
draws on us a beavier Load of Miſchiefs. It is impof- Nor can thoſe Men expect to live at Eaſe, alborg
ſible, afays Demoſthenes, Olynthiac. 2. to obtain any Who violate the common Bonds of Peace. its goi
firm and durable Power by Injuries, by Perjury, and by
Ou Mr. Creech:
Lies. Epicurus himſelf, in his Notions of Juſtice,
was very honourable and very fair, as Gallendus In ſhort, any one is able to judge what a Contra-
hath given us this ſhort Repreſentation of them diction it is almoſt to common Senſe, to make ſuch
(a). Juſtice not only never burts any one, but, on the a Profit as is oppoſite to Juſtice, the Standard of A
contrary, always carries along with it ſomething conducing ating (11) The Sophift Protagoras in Plato, p.225.
to the Eaſe and Tranquillity of the Mind; which it like- Ed. Franc. Ficin, though a Trifler in other Matters,
wiſe farther ſupports with the Hopes of wanting
, nothing yet had Wit enough to ſpeak ſmartly on this Point.
that uncorrupted Nature can deſire. A Soul where In- In other Habits, ſays he, if a Man pretend, for Exam-
juſtice hath taken up its Seat, cannot but be in perpetual ple, to be an excellent Piper, when he doth not underſtand
Diſorder and Confuſion, whilft when it attempts any a Note, be either raiſes the Laughter or the Indignation
thing with never ſo much Secrecy, yet it bath no Ali of thoſe that bear bim; and his Friends admoniſh bim of
rance that the Fact will always be undiſcover'd. And his Madneſ and Vanity. But the Caſe is quite otherwiſe
ſince Juſtice is defign'd for the Promotion of the Common in Injuſtice. For ſuppoſe Some Perſons know another to be
Good, it's plain that nothing can be juſt which doth not really Unjuſt, yet should the Man himſelf confeſ that he
tend to the Advantage of whole Societies, and of each is guilty of that Vice before Strangers, they would take
Member in particular. And becauſe every one by the it for granted, that he was out of his Wits; maintains
Guidance of Nature, defires and purſues what is good ing that ſuch a Wickedneß is never to be diſcover'd, but
for him, it is neceſſary, that whatever is just ſhould be the contrary Virtue always to be pretended to, whether it
according to Nature, and ſhould therefore be callid Natu- be really practis'd or not. Not to counterfeit Juſtice
tal. And this Juſtice is nothing elſe but the Pledge and therefore they take to be a Senſeleß Extravagance; ſince
W 970
971991 VOTRE
(a) Syntagm. Part 3. c. 24, & 25. Vide Ciceron. de Fin. Bonorum Lo Malorum, B, 1. C. 16.
(10) Nunquam prodeſt malam exemplum, etiamſi in preſenti occafione quadam dele&tat, in futurum tamen altius nocet. Declam. 254.
Oủx ésiv, **Ardges Allesciou did exšvla, ni omogxšvla, mai folosi for dubapur bebuice xThouartodo
() '() 'Avantas
ési, i na taj
λώσιν , ή χαλεπαινέσι, και οι οικείοι ωeoστόνες νεεσεσιν ως μαινόμενον» αν και δικαιοσύνη, και εν τη άλλη πολιτική αρετή, εάν τινα
και ει δώσιν, ότι άδικο εσίν, έαν έτος αυτός καθ' αυτή τάληξη λέγη εναντίον
πολλών, και εκεί
σωφροσώην ηγενθο ταλως λέγειν,
εντώθα μανίαν, και φασι πάνας δεν φάναι 2) δικίες εάντιόσιν, εάντε μή, η μαίνεται η μη στειτοιε μόνον δικαιοσώην, ως α
vay nexors Mira, ovlev i go uwoye Tws METEX HV o`tás, h . ?? r v Opásmoes. But I do not fee well how this Paflage and the fol-
lowing one of Quintilian make for our Author's Purpoſe, ſince they only prove the Maxim of the Duke of Rochefaucaut, That,
Hypocriſy is an Homage which Yice pays to Virtue. Moreover, there is not any thing that can prove, that Profic may
be
oppot
ſed ro Juſtice, and any Man's private Intereſt to the Publick. I ſhall alledge ſome more pertinent Authorities to this purpoſe, our
of Seneca and Arrian's Epi&tetus. Scneca's Words, Epiſt. 48. are, Nec poteft quiſquam beatè degere, qui fe tantum intuetur, qui om-
nia ad utilitates ſuas convertit : alteri vivas oportet, fi vis tibi vivere. Hæc focietas diligenter do San&té obſervanda eft, que nos omnes
omnibus miſcet, do judicat aliquod eſſe commune jus generis bumani : i.e. . 'Tis not poſſible for any Man to live happily who regards
« of Mankind." Árrian's Words in Epi&et. Lib. 1. Chap. 19. are, Kembar TE Co zás] Tobably púar To 1931xã São retrox daosy,
ένα μηδενός 7 Ιδίων αγαθών δύνται τυγχάνειν, ή μη τι άς η κοινών θρίλιμων ωeoσφέρεται, έτως έκέπ ακοινώτατον άνεται τα πάν-
Te curs Crera 2010v: i. e. “GOD hath diſpoſed the Nature and Order of Reaſonable Creatures in ſuch a Manner, that every one
6 of them ſhould advance each other's Intereſts, ſo as contributes to the publick Advantage, 1o that tho'we refer all to our pri-
« vare Advantage, we ought yet to do what in us lies to promote chat of others.” M. Antoninus has many ingenious Reflections in
his VVorks tending this way.
whoever
a
32

CHAP. III. Of the Law of Nature in general.
IZI
6
, ;
whoover makes a contrary Profesſion deſerves to be dri- themſelves, through the Information of their Sen-
ven out of human Converſe and Society. (12) No Man ſes, do perceive what is agreeable to their Body
is so bad, ſays Quinctilian (a), as that he deſires to and what not ; without the leaſt Apprehenſion of
feem Bad. And almoſt every Body ſpeaks more Honeſty or of Diſhoneſty. But if he means the
honeſtly than he either thinks or acts.
Rational Nature, we deny the Poſition, as abfo-
But the Divine Providence hach ſufficiently con- lutely falſe. As for Carneades his Argument, that
futed this pernicious Opinion, by making its bold- if the Romans would be juft, that is, if they would
eft Patrons and Affertors feel the fatal Conſequen- reft vre every one his own, they must return to their pri-
ces of it. To give an Inſtance or two. Lyfander, mitive Cottages; and that therefore Juſtice is Folly; in
that crafty Deſigner, who manag'd moſt Affairs vulgar Eſteem this may bear ſome Semblance of a
'by Cheats and Shuffles, who plac'd all Right in plauſible Truth; but to thoſe who look farther in-
Profie, who affirm'd Truth and Lies to be indif- to it, it will appear exceeding empty and triling.
ferent Things, and either to be moſt valuable as For ſince whatever Right we aſſume upon others,
it was moſt advantagious; who bragg'd that Men they may in like manner uſe againſt us; it can by
were to be deceiv'd with Oaths as Children with no means be profitable for us by injurioully ſeizing
' Dice or Bounding Stones ; as Plutarch(b) and Po- on other Mens Goods, to invite them to make Re.
lyænus (c) give his Character; did he build his For- priſals on our own. And in ftating the Nature
tunes on a firmer Bottom, than if he had made and the Definition of Profit, we are not to conſider
Truth and Honeſty the Mark and the Standard of what ſeems advantagious to ſuch or ſuch a Man,
his Proceedings (d)? Agefilaus (e), who at other at ſuch a particular Time, to the Prejudice of o-
ſtice for the Queen of Virtues, without which, nefit and Expediency. Thus, for inſtance, let us
Valour and Fortitude would be of no uſe, yet ſuppoſe an Officer to have rais’d a vaſt Eſtate, by
when Phæbidas had without Orders poſſeſs’d him- robbing the publick Treaſury: ſuch an one cere
ſelf of the Fort Cadmea, defended that Boldneſs tainly imagines it would be Folly in him, to make
by ſuch Kind of Rhetorick as this, That the Ati an exact Reſtitution, and ſo to return to his firſt
on of Phæbidas was to be rated and judgd of according Narrowneſs of Fortune. But when the Prince,
to the Benefit and Advantage it brought to the State. upon convi&ting him of Extortion, hath adjudg's
Since whutever conduc’d to the publick Good of Lacede- his Goods to the Treaſury, and his Perſon to the
mon, was to be done at a Venture ; whether Men were Goal or Gallows, do we then think he took a wiſer
impower'd by Commiſſion for ſuch Performances or not. Courſe to raiſe himſelf in the World, than ano-
Bu was not this very Exploit the Occaſion of the ther Perſon who refts contented with a competent
Spartans miſcarrying in their Deſign of rendring Maintenance, innocently acquir’d? Thus I know
themſelves Maſters of Greece?
not whether it had not been better for the Roman
XI. Theſe Foundations being fettled, 'tis eaſy People to have fate down with Satisfaction in the
to ſolve the Objections of the oppoſite Party. 'Tis Enjoyment of that moderate Wealth which at
ridiculouſly weak to conclude, that ſuppoſing dif- firſt they got together without the Expence of
ferent States to have ſet up different Laws upon their Virtue or Honour ; than when they had ri-
the account of Profit, therefore there can be no fled and plunder'd all the whole world, to turn
Perpetual or Natural Law. For all Civil Laws do their Weapons upon themſelves, and to expoſe the
either preſuppoſe or include the chief Heads of the feeble Carcaſs of their Empire to be torn in pieces
Law of Nature,thoſe by which the Safety of Mankind by the barbarous Nations. Nor do the other Ar-
is fecur’d: Neither are theſe in the leaſt injur'd or guments of Carneades as fet down by Lactantius
impair’d by the particular Ordinances, which each (1), require any long or any laborious Reply. For
Commonwealth finds a Neceſſity of ſuperadding, if any think it a piece of Wiſdom in the Seller of
for its ſeparate Intereſt and Benefit. Penal Laws, a Houfe, to diſſemble its being infected with the
or Sanctions, we acknowledge to have been infti- Plague, certainly it muſt be own’d for Wiſdom in
tuted out of Fear of Juſtice, or to reſtrain the Wic- the Buyer, if he either give falſe Money for his
kedneſs of Men, when the bare Dictates of Natu- falſe Goods, or to puniſh the Author of the Cheat
ral Law were found inſufficient for that Purpoſe. by the ſevereſt Methods. Laſtly, as for thoſe C2-
When Horace denies that Nature is able to diſtin- ſes, whether it be fair (2) in a Shipwrack for a
guiſh betwixt Right and Wrong; we agree with ſtronger Mán to force a Plank from the Arms of a
him, if he means only that Nature which Man weaker, or in a Flight, for a found Man to diſpof-
bears in common with Brutes ; whereby Bruces feſs a wounded Soldier of his Horſe, preferring
(a) Inſtitut. l. 3. c. 8. Ed. Lugd. Bat. p. 251. (b) Plutarch. Apophthegm. Lacon. p. 229. Ed. Wech. (©) Stratag. l. 1. c. 45.
(d) Vide Cornel. Nep. Lyſand.
(e) See Plutarch, in Ageſil. p. 608.
(12) Nec enim eft quiſquam tam malus, ut malus videri velit,
5. I. (1) Bonus vir, inquit, ſi babeat fervum fugitivum, aut domum inſalubrem, do peſtilentem, que vitia folus ſciat, do ideo proſcri-
bat, ut vendat, utrumne profitebitur fugitivum fervum, & peſtilentem domum ſe vendere, an celabit emptorem? le profitebitur, bonus qui-
dem quia non fallit, ſed tamen ſtultus judicabitur, quia vel parvo vendet, vel omnino non vendet ; ſi celaverit, erit quidem ſapiens, quis
rei confulet, ſed Idem malus, quia fallet. Rurfus fi reperiat aliquem, qui aurichalcam se putet vendere, cum ſit illud aurum , plumbum
cum ſit argentum ; tacebitne, ut id parvo emat, an indicabit, ut magno? Stultum planè videtur malle magnó. Divine Inſtitut, I. $.
c. 17. n. 5, 6, 7.
(2) Again, La&antius adds, Ibid. n. 10, &c. Nempe juſtitia eft, hominem non occidere, alienum prorſus non attingere, quid ergo juſtus
faciet, li forte naufragium fecerit, & aliquis imbecillior viribus tabulam ceperit ? Nonne illum deturbabit tabula, ut ipſe confcendat
eâq; nicus evadat, maxime cum fit nullus medio mari teſtis ? Si ſapiens eft, faciet, ipfi nimirum pereundum eſt, niſi fecerit. Si autem
mori maluerit, quam manus inferre alteri, jam non juſtus ille, ſed ſtultus est qui vite ſus non parcat, dum parcit aliene. Item : Si acie
fuorum fuſa, hoſtes inſequi cæperint, do juſtus ille fuerit načtus aliquem (aucium equo inſidentem, eine parcet, ut ipſe occidatur, an dejiciet
ex equo, ut ipfe poffit hoftem effugere ? Quod fi fecerit ſapiens, ſed idem malus, fi non fecerit fultus fit necesſe eſt, licet juſtus.
S2
his
132
Of the Law of Nature in general. Book T.
his own Preſervation to the Safety of his Fellow, mon to Man with Himſelf; or that the Order pre-
we ſhall hereafter find Occaſion to diſcuſs and to ſcrib'd by Him to Man, that is the Obſervation of
determine them (a). It will be ſufficient for the the Law of Nature, doth produce the End for
preſent to make this ſhort Remark, that Actions which God created the World. Nor can the Crude-
done upon extreme Neceſſity, and out of Confter- nefs of the following Aphoriſm paſs with ordinary
nation of Mind ariſing from imminent Danger, Digeſtions: That the Natural Neceſſity which is in
and which do therefore meet rather with Excuſe, GOD doth lay on Men a Neceſſity of purſuing Virtue,
than with Approbation ; ought by no means to and of flying Vice. Yet ſuppoſe we ſhould be brought
be eſtabliſh'd for common Rules of Proceeding (b). to grant all this, and then ſhould guide our Search
XII. The Author of the Treatiſe De Principiis after the Law of Nature by ſome fuch general Max-
juſti á decori, in ſearching after the right Notion of im and Rule, Whatever Things are by Nature ſo disa
the Law of Nature, follows this Method. In the pos’d, as to hinder the End which G O D fropos'd in the
firſt place he lays down this Confeſs’d Principle, Creation of the World; all thoſe Things are prohibited by
That there is a GOD, and that He created the World the Law of Nature; But whatever Things are ſo natu-
in Wiſdom; which no Man in his Senſes will diſpute. rally order'd, that the End before-mention'd cannot be ob.
He adds, that GOD bath declar'd bis Reſolution of ex-
taiń'd without them, thoſe are certainly enjoin'd or com-
erciſing the Virtues of Truth and Juſtice, in His Govern- manded by the ſame Law: We ſhall ſtill be at a loſs
ment of the World (č). But here, beſides that it ſcarce to underſtand what neceſſary Relation every parti-
ſeems right to conceive the Divine Juſtice or cular Precept of the Law of Nature bears to that
Truth after the Manner of Virtues, it is ſufficient- End; whilſt the End itſelf is not perfectly diſco-
ly manifeft, that the Diſpoſition or the Inclination ver’d by us. Thus, for Example, there would
to Juſtice which we attribute to GOD (1), is very be need of a Train of Deductions, to make me
different from that which Men are to exerciſe to apprehend, that the End for which the World was
wards one another: In as much as the former de- created cannot be attain'd without honouring one's
notes that Method by which an infinitely Great Parents, or that Theft is repugnant to the ſaid
and Good Creator is pleas’d to govern his intelli- End. 'Tis meer trifling therefore to ſtick upon
gent Creatures; whereas the latter obtains only a ſuch General Terms, without calling in the Affi-
mongſt Perſons by Nature equal, and ſubject all ſtance of nearer and more diſtinct Principles. And
alike to a Common and a Supreme Lord. Neither the Foundation of the Law of Nature muſt be always
can it be at all made out that Divine and Human left in the dark by him who can make no farther
Juſtice are capable of the ſame Meaſure, from this Progreſs in the Queſtion, than to tire us with ſuch
Argument, that in Holy Scripture we are frequent- Repetitions, that (3) ſince the World was made in Wif-
ly referr’d to the Example of God (d): For in dom and Order ; and ſince Man hath his part aſſign’d him
thoſe Paſſages the Holy Spirit is pleas'd to follow in the Univerſal Harmony ; therefore that Order ought
the uſual Way of Reaſoning (2), from a Greater to neceſſarily to point out to every Man bis Duty, in every
a Leſ. But from theſe Principles the faid Author, Action or Proceeding.
P. 9, 10. concludes, that in the Creation of the World XIII. Thus far moſt are agreed, that the Law
GOD propos'd to Himſelf ſome End. That He hath ap- of Nature is to be drawn from Man's Reaſon;
pointed Means ſufficient for the obtaining that End. That flowing from the true Current of that Faculty,
a Man Jhall certainly be puniſh’d, if he deviates from that when unperverted (1). On which account the
Order which GOD would have us obſerve, in the Profe- Holy Scriptures declare it to be written in the
cution of the End propos’d by Him to Himſelf, and to
Hearts of Men, Rom. ii. 15. This we judge to
Mankind. And on the contrary, Mall certainly be re be a moſt manifeſt Truth, that altho' the ſacred
warded, if he direct his Life according to the Order pre- Writings do throw in a more enlarged Light to
Scribd by his Creator. In fine, that the Juſtice of GOD direct us in the cleareſt View of Nature's Law,
implies nothing elſe, but His Lawful Diſtribution of Re- (2) yet the fame Law may without any extraor-
wards and Puniſhments. In Regard to this Do&trine, dinary Aſſiſtance be found out and ſolidly de-
I queſtion whether it can be ſaid with any tolera- monſtrated, by the bare Force of Reaſon, ſuch as
ble Senſe, that GOD hath conſtituted an End, com God firſt implanted and ſtill preſerves in Man-


(a) See Chap. 6. of this Book. (b) Add. Velthuyſen, de Principiis fufti & Decori, p. 114, &c. (c) Pſalm xcvi. v. ult.
(d) Luke vi. 36. Matth. v. 44, 45. xviii. 33.
S. XII. (1) I do not ſee that Velthuyſen ſays any thing that can intimate the contrary. His Notion is, That GOD hath diſpo-
ſed all Things in a manner ſuitable to his Perfections; and this is that Natural Neceffity of which he ſpeaks a little lower.
(2) Our Author ſays, That in thoſe places of Scripture the Arguments are drawn, à minori ad majus, 1. e. from the Leſs to the
Greater; whereas 'tis evident that they are drawn juſt the contrary way; for thus the Argument rúns, and he himſelf ſpeaks to
in another place: “ If GOD, who is the Lord of all the world, and has from all Eternity enjoyed a compleat Happineſs, who is
“Self-ſufficient, and has no need of Pardon, is very merciful to his Creatures, who have provoked him to Anger by their Sins,
“ with how much greater Reaſon ought Men to have compaffion on their Brethren, whoſe Pardon they themſelves often want,
“and whoſe Help they can't live without? If a Mafter hath Pity of his Servants, the Servant ought much more to have Pity on
“ his Fellows. If GOD cauſes the Sun to riſe on wicked Men, much more ought Men to do good to their Enemies. Men, I ſay,
" who are ſo ſubject to offend one another, and who have ſo great Need of Aſſiſtance one from another.." Specimen Controvers.
Chap. 4. S. 5. To call this way of Arguing, à minori ad majus, is contrary to the Language of all Orators and Logicians. See Ariſtót.
Rhet. Lib. 2. Chap. 23. and Top. 2. Chap. 1o. as alſo Quinttil. Inſit. Orat. V. 10.
(3) 'Tis true, that this is not much to the purpoſe, but we muſt own, that Velthuyſen did not much depend on it, and though
he does not explain himſelf ſo diſtinctly as our Author, yer he lays down a Principle which reaches to the very bottom of that
which eftabliſhes Society, in another place, which is this, “ That which is ſuch in General, and of that Nature thar Men can't
“ diſpenſe with the Obſervation of it, without bringing a great Prejudice to all Mankind, or which if Mankind ſhould permit
“ to every body, 'twould be to their great Damage, whatever is ſuch, ſay I, is forbidden by the Law of Nature,” Page 115.
S. XIII. (1) Něy ñ é gav gvoon and gedură, ti coi meg.xle6v 737, ij o ws. Being endued with a Soul, you may know from your
felf, what and how you ought to udt. Dio Chryloft. Orat, 10. de Servis, p. 156. Ed. Morell.
(2) See what I have ſaid in my Treatiſe Of Games, Lib. 1. Chap: 3, $, 2.

kind.
CHAP. III. Of the Law of Nature in general.
133
7
kind. Yer here we by no means think it neceſ- whole (7) Series of common Life, that few of
ſary to maintain, that the General Principles of them ſo much as doubt whether they may not pro-
Natural Law are innate, or imprinted, as it were, ceed by other Methods. Whoever confiders this
upon Mens Minds, from their very Birth, in the Matter accurately, will diſcover, that 'tis very
manner of diſtinct and actual Propoſitions ; ſo as hard to give a Reaſon for many Practices, which
to be readily expreſs’d and utter'd by them, as yet the common People undertake without Scruple
ſoon as they arrive at the uſe of Speech, without or Heſitation. To borrow an Inſtance from a late
farther Inſtruction or Meditation. For that theſe Author (d), If a Man be found committing a Robbery,
Native Idea's or Original Characters are no better the Multitude preſently join Hands and Minds to purſue
than unwarrantable Fictions (3), any one may and to ſeize the Thief: But if upon a Quarrel one Man
diſcover, who will be fo curious as to obſerve hath kill'd another, every Body wiſhes he may get off
nicely the Steps by which Children make their ſafe ; at least no Body willingly aſſiſts in the taking of
Progreſs in Knowledge, clearing themſelves by him. The Reaſon of ſuch a Difference the Vulgar
little and little from the Ignorance of their Infanc underſtand not, which is this; Every one is more
State. Nor is it a Conſideration of little Weight in danger from a Thief, who deſigns to plunder where-
in this Point, that the Holy Scriptures frequently ever he can meet with Booty ; than from an Actor of
deſcribe Infancy and Childhood (4) by the Igno- Manſlaughter, who intends Miſchief to none but to the
rance, and Ripet Age by the Knowledge of Perſon who gave him Provocation. Therefore when
Right and Wrong (a). Dr. Cumberland muſt be we acknowledge the Law of Nature to be the
our Guide and Maſter in theſe Diſquiſitions, who Dictate of Right Reaſon, our Senſe and Meaning
hath moſt clearly demonſtrated (b), that altho' is this, that the Underſtanding of Man is endued
we rejea che Notion of thoſe Innate Propoſitions, with ſuch a Power, as to be able from the Con-
the Knowledge of the Law of Nature is truly templation of Human Condition, to diſcover a
and really imprinted on Human Minds by God, neceſſity of living agreeably to this Law; as like-
as He is the firſt Mover and Director of them: wiſe to find out ſome Principle by which the Pre-
Whence likewiſe any one may readily diſcover, that cepts of it may be clearly and ſolidly demonftra-
'cis his Will and Command we ſhould a&t according ted (e). Nor is it any Rub or Prejudice to this
to that Law. That Phraſe in Romans II. 15. which Doctrine, that the artificial Method of demon-
is urg'd ſo hardly by ſome Authors, is certainly ſtrating theſe Natural Precepts, is not known or
(5)Figurative, and implies no more than a clear apprehended by all Men; and that moſt Perſons
and certain Knowledge treaſur'd up in the Me- both learn and obſerve the Law of Nature by Cu-
mory; of which the Perſons ſpoken of are con- ftom, and by the common Courſe and Tenour of
victed in their own Conſciences, by what means ſo- living. For we ſee every day the common Me-
ever thoſe Notions firſt enter'd into their Thoughts. chanicks and Artificers performing many things,
Thus too thoſe Sins which in Jeremiah xvii. 1. are either by Imitation, or by the compendious Di-
ſaid to be engraven on the Tables of the Heart, in as rection of Inſtruments, the Proof of which they
much as they are actual Tranſgreſſions, could not do not in the leaſt underſtand : And yet this doch
be diſcover'd at the Nativity of the Offenders (c). not hinder ſuch Operations from being truly Ma-
That Readineſs which we ſee in Children and in thematical, or from being founded on folid Prin-
the Ignorant Multitude, to diſtinguiſh Right from ciples of Reaſon. Hence it likewiſe appears what
Wrong, is owing in a great Meaſure to Exerciſe Rule we are to meaſure our Reaſon by, in judg-
and Uſe; whilſt from their early Years, and the ing of its Fitneſs for the Diſcovery of Natural
firſt opening of their Reaſon, they obſerve Good Law: or whence we may be aſſur’d, whether
Things to be approv'd of, and Evil Things to be ſuch a Dictate proceeds from Right, or from de-
exploded; the former to be attended with Praiſe, prav'd Reaſon. The Dictates of Right Reaſon are
the latter (6) with Puniſhment. Their Minds are true Principles, which agree with the Nature of
ſo fix'd and diſpos’d by daily Practice, and by the Things well obſerv'd and examin'd; and which

yet

(a) Vid. Jonah iv. II. Dent. I. 39. Ilaiah vii. 14, 15, 16. (6) Prolegom. ſ. 5, 7, 8.
(c) Add. Luke ii. 51.
Proverbs vii. 3.
(a) De Principiis Juſti do Decori, p. 81. (e) Add D. Cumberland, de L. N. C.4, 1.3.
(3) Our Author treats more at large of this in his Apology, S. 24. and in his Specimen Controverſ. Chap. iv. S. 23. Buc Mr.
Locke has ſet it in its full Light in his Eſay upon Man's Underſtanding. See alſo what I have ſaid in my Preface, s. 3.
(4) Our Autbor muſt underſtand here by Good and Evil, Reti & Turpis, Honeſty and Diſhoneſty, but that is not the true
Notion of this Expreſſion in the Sacred Writers, who, according to the Idiom of their Language, would have us to underſtand
by that Phraſe in general, All that can't be known, becauſe in reality all things that we know are either Good or Evil, i.e. Profi-
table or Hurtful; as is judiciouſly obſerved by Lud. Capellus in his Nores upon Gen. iii. 5. which it would be well to conſult ; as
alſo Mr. Le Clerc's Commentary on the ſame Place. Nevertheleſs, if any Conſequence ought to be drawn from the Expreſſions
of Sacred Writers in marcers of Philoſophy, in reſpect to which they commonly follow the moſt popular Notions, we might in-
ferr, that theſe Paſſages very much favour the Opinion of thoſe who deny Innare Ideas, ſince he that ſays All, excepts nothing.
In fine, we find this way of ſpeaking among the Profane Authors. See Mr. Le Clerc's Ars Critica, Part II. Sect. 1. Chap. 2. 9.25.
pag. 153. Tom. I. and Hefiod's Theogonia, v. 900.
(5) See Grotius in his Nores upon this paffage, and Le Clerc's Ars Critica, p. 194,&c. Tom. I. ad Edit.
(6) See Mr. Locke's Philoſophical Esſay, Lib. 2. Chap. 28. S. 10, 11, 12.
(7) Add to this the manifeſt Proportion that there Maxims have with the Light of Right Reaſon, for it is perceived by the
moſt Simple, the very Moment that 'cis propounded, and they underſtand it, tho they would never have found it out themſelves,
nor can they apprehend the Reaſons ſo well as to deliver their Thoughts diſtinctly about it. Further, it is certain, that no Man
at the Age of Diſcrecion, can reaſonably pretend an invincible Ignorance for his Excuſe ; but yet it is no leſs true that Education,
Inſtruction, and Example, are the ordinary Means by which Knowledge is conveyed into the Mind of Man, and without is either
the Natural Light would be almoſt wholly extinguiſhed, or we thould not attend to it. This Experience ſhews us, not only among
ſeveral Savage Nations, but even among the more Civilized, there being many Men that make good this fad and mortifying Truthi
Whence we may conclude, that every one ought to take ſpecial Care to contribute as much as may be to the Inſtruction of other's
in their Dury, and to eſtabliſh, confirm, and ſpread abroad fo neceffary a Knowledge.

are
134
Of the Law of Nature in general.
Book II.

are deduc'd from other true and firſt Principles, Debauchery, becauſe ſuch Courſes are repugnant
by the Rules of Good Conſequence. On the con to the Dignity of the Sacerdotal Office ; he ſays
trary, thoſe are Didates of deprav'd Reaſon, in nothing but Truth, in all this, but he doth not
which a Man either lays down falſe Principles, or alledge the laſt and the ſtrongeſt Reaſon, ſo as to
by a wrong Method deduces falſe Conciuſions. ſet the Matter beyond Doubt and Diſpute (b).
For (8) at the ſame time as we affirm the Law of Altho', as hath been already obſerv'd, it is not
- Nature to be imprinted on us by the Nature of in the Power of every Man, to deduce the Law
Things, we imply that it is moſt true and infallible: of Nature artificially from its Principle : yet thac
Since Nature preſents us with nothing but what it may be properly ſaid to be known to all Men
really exiſts, and produces no Effect that can be enjoying the uſe of their Reaſon, it is ſufficient,
charg’d with Falſhood : All Falſity ariſing from if even Perſons of tolerable Heads are able to ap-
the Miſtakes of Men, whilſt they either divide prehend the Demonſtration when propos’d by
ſuch Notions as naturally cleave together, or join others, and clearly to perceive the Truth of it,
ſuch together as Nature hath ſeparated and plac'd by comparing it with their own Natural Condition.
at a diſtance (a). And this Courſe of Judging As for the loweſt degree of Mortals who are ac-
being duly follow'd, we need not fear that
any quainted with the Law of Nature, chiefly by Poo
one ſhall be able to foiſt upon us for Natural Law, pular Information and by common Uſe, they
either the frantick Notions of his ill purg’d Brain, ought to require no farther Proofs of its Certainty,
or the irregular Defires of his miſguided Mind. than that firſt the Exerciſe of it is maintain’d by
For 'tis in vain for that Man to make his Appeal their Superiors, by whoſe Authority they are to
to Reaſon, who cannot demonſtrate his Aſſertions be guided; and then, fecondly, that they them-
from Principles of unqueſtion d Truth, and ſuch ſelves cannot find any probable Reaſons by which
as agree with the Nature of Things; in as much they might either confure or weaken its Force;
as all Truth and all Rectitude conſiſts in the agree- and laſtly, becauſe they are every Day ſenſible of
ment of Conceptions and of Propoſitions with the its Uſefulneſs, and of the Benefits which it confers
Things themſelves, which they are intended to upon Mankind. And upon this account the Law
expreſs. And he who hath not Parts enough to of Nature appears to be ſufficiently promulgated ;
frame and unite the Chain of a Demonſtration, ſo that no Perſon of competent Years and of ſound
niuft ſupply that Defect by an exceeding Stock of Underſtanding, can by any means plead invinci-
Impudence, if he deſires any regard ſhould be had ble Ignorance of it.
to his vain Conje&tures, when they run aftray For the eaſy Knowledge of what the Law of
from the receiv'd Opinions of Mankind. More- Nature dictates, Hobbes (c) commends the Uſe of
over, it is manifeft to all thoſe who underſtand this Rule, When a Man doubts whether what he is
the force and the manner of Demonſtrations, that going to do to another be agreeable to the Law of Nature,
there is not only a Neceſſity that the Principles let him ſuppoſe himſelf in the other's room. For by this
made uſe of be true, and the firſt or higheſt that means, when Self-love and the other Paſſions,
we can aſcend to, but likewiſe that they be pro- which weigh'd down one Scale, are taken thence
per and peculiar to the Queſtion in Debate, and and put into the contrary Scale, 'tis eaſy to gueſs
ſo very clear, that the Mind apprehending by which way the Ballance will turn. (9) Moſchus
their Means, the Cauſe of the Thing aſſerted, may Idyll.V.v. ult.
reſt ſatisfied, and neither deſire nor want any far Στέργα τους φιλάουλα, ίν' ήν φιλέητε, φιλήσθε.
ther Proof. Now againſt this Rule of finding out Love thoſe who Court, that thoſe you court may love.
the Dictates of Right Reaſon, thoſe Authors have
not only tranſgreſs’d, whoſe Foundations of Na- Add Selden de J. N. & G. 1.7. C. 12. Ariſtotle (in
tural Law we have already examin’d : But thoſe Diogenes Laertius 1.5. Segm. 21.) being ask'd how
too who think it ſufficient to build thac Law on we ought to behave ourſelves towards
our Friends,
ſo ſlender a Bottom as this, That Natural Honeſty anſwer'd, As we wiſh they would behave themſelves
confifts in the agreement of Reaſon and Appetite ; the towards us. L. 2. t. 2. D. quod quis juris in alterum,
Rule of which Honeſty is the Excellency and the Dignity &c. Senec. de Ira, 1. 3. C. 12. Let us ſuppoſe ourſelves
of Human Nature, and that most Noble End for which in the ſame Circumſtances as the Perſon with whom we
Providence ſeems to have given us the Dominion and the are angry : That which now puts us in a Paſion, is only
Poſſeſſion of the World. For tho' we could argue the wrong Opinion and Eſtimate of ourſelves : We are
never ſo fairly, this Action is ſuitable to the Ex- unwilling to SUFFER what we are willing to DO.
cellency and the Dignity of Man, and therefore 'Tis a Saying in Confucius (in Marcinus's Hift. Sin.
honeſt and to be perform’d; yet this doth not l. 4. C. 25.) Never do to another what you are unwil-
furniſh us with any clear and certain Knowledge, ling to ſuffer from him. The fame Precept was
in which our Minds may reſt ſafely without far- made uſe of by Ynca Manco Capace, the Founder of
ther Enquiry: But the Queſtion ſtill remains, in the Peruvian Empire ; in order to the reducing his
what that Excellency conſiſts, and by Virtue of Subjects to a Life of Civility. De la Vega l. 1. c. 21.
what Cauſe it comes to agree to Mankind. Thus, And indeed this is no other than that Great Rule
if one ſhould ſay to a Clergy-man, It doth not preſcrib'd by our Saviour himſelf, of Doing to
become you to frequent Taverns and Houſes of Men as we would be done by. Match. vii. 12.
(a) Idem c. s. f, 1. (6) Comp. Rechel. Prolegom. ad Ofic. Ciceronis, f. 38, doc. (c) De Cive, c. 3. f. 26. &
Leviath. c. 15.
(8) This Period was not in the firſt Edition of this Work; and not being exactly fitted to the Coherence of the Diſcourſe, I
have changed the Reading in my Tranllation, but without any prejudice to the Author's Senſe.
(%) we find the fame Maxim in Sadder, or the Collection of the Precepts of Zoroaſter, made by the Perſian Magi (Porta. 71.)
in Mr. Hyde’s Book. See the Pallage of Hierocles ſet down in my following Nores.
Dr.
CHAP. III.
Of the Law of Nature in general. 135

Dr. Sharrock is of Opinion (a) thar this Rule is that he loves himſelf as highly as is poſſible, that
not Univerſal, becauſe if ſo, a Judge muſt needs he endeavours by all Ways and Means to ſecure
abſolve the Criminals left to his Sentence, in as his own Preſervation, to obtain whatrappears con-
much as he would certainly ſpare his own Life, ducible to his Good, and to repelo what is ini his
were he in their Place : I muſt needs give a poor Judgment Evil (b), And this Self-Love ( reguřáp.
Petitioner what Sum foever he deſires, becauſe I ly ſpeaking) is ſo very ſtrong as to ſupercede any
ſhould wiſh to be thus dealt with, if I was in his Inclination which a Man may have for another
Condition : Or I muſt clean my Servant's Shoes, Someoimes indeed Men ſeein to affect others with
becauſe I require him to clean mine. But the a more tender Paſſion than themſelves, to be more
Rule will ftill remain unſhaken, if we obſerve, delighted with their Happineſs, and more diſturb'd
that not (10) one Scale only, but both are to be at their Misfortunes ochan at their rown. Thus
conſider'd; or that I am not only to weigh and Des Cartesi (c) obſerves, that the Love whichá
examine what is agreeable to me, but likewiſe Good Parent bears towards his-Children is ſo very
what Obligation or Neceſſity lies (ir) on the pure, as to make him deſire neither the gaining
other Perſon, and what I can demand of him, of any thing by them, nor the poſſeſſing them in
without injuring either of our Duties. Yet we any other manner than he doth at preſent, nor
muſt confeſs, that this Precept cannot be eſteemid the being join'd to them by any ftri&ter Engage
a. Fundamental Axiom of the Law of Nature ; ments than thofe of the preſent Union. But coni
ſince it is only a Corollary of that Lawl which fidering them as his other ſelf, he feeks their Good
obliges us to bold all Men equal with our ſelves; and equally with his own, or rather with greater Care,
therefore may be demonſtrated d priori. in 100 in as much as he reckons himſelf and his Children
XIV. According to our Judgment, there ſeems to make up but one entire Thing, of which noc
no way fo dire&tly leading to the Diſcovery of the thinking himſelf the better Part, he frequently
Law of Nature, as is the accurate Contemplation prefers their Advantage to his own, and is not
of our (1) Natural Condition and Propenſions. afraid to ſecure their Safety by his own Deftrudi-
Altho' in this Confideration regard muſt be had on (d). But now beſides that ithis Love is not
to ſome Things which are extrinſical to a Man, always conftant, there are other Reaſons why
and chiefly to thoſe which are likely to promote Parents are ſometimes willing to have the Misfor-
his Intereſt, or to procure his Damage and Incon- tunes of their Children transfer'd on themſelves,
venience. For whether this Law was impoſed on namely, becauſe sthey think themſelves more able
Man to advance his Happineſs, or to check his to fuftain them: or becauſe they cannot but con-
Wickedneſs, (which might otherwiſe break out to fefs, that Perſons of thoſe tender Years are more
his own Deſtru&tion) (2) we cannot proceed more worthy of Life and of Safety. And a Reaſon
clearly in gaining a Notion of it, than by exa- why on the other hand Parents are ſo highlý ſa-
mining in what Points and Reſpects he hath need tisfíd and pleas?d with the Succeſs and Proſpérity
of Alliſtance, and in what he hath occafion for of their Off-fpring, may be, becauſe they are
Reſtraint and Controul. In the firſt place then, ſenſible a great part of the Glory will redound to
Man hath this in Common with all other Crea- themſelves, for bringing ſuch excellent and wor-
tures endued with a senſe of their own Being, thy Perſons into the World (e). Qui tanti talem
Obní ponoro alobrow Madovolil
TWITT
(a) De Officiis, C. 2. n. II. (6) Cicero de Fin. 1. 3. c. 5. So ſoon as any Animal is born it is endear'd, and, as it were,
recommended to itself for its own Preſervation, and for the loving of its own Condition, and of every Thing that tends to the preſerva.
tion of it : Being at the ſame time made averſe to Deftru&tion, and to all things which feem pernicious. Valer. Flacc. 1. 5. v. 644.
El amor, lo cunétis Tere
dos cunétis rerum tutela ſuarum. O exorft as Beni ise
By Nature all love and protect their own.
Add Diog. Laert. 1.7. In Zen. Marcus Antoninus, 1. 17. f. 8. Epictetus Enchirid. c. 38. n. 2. Cicero de Officiis, 1. 1. c.4.99
(c) De Paffionibus, Arc. 82. (d) See 2 Sam. xviii. 33. Euripid. Alceſt. v. 653. uſque ad 705.17. (e) See Lake xi. 27.
.
Balaihia R
Die store once
(10) Hierocles laying down the ſame Rule, adds this Reſtriction, A Maſter, ſays he, ought to think how he would be treated, if
he were a Slave; and this laſt, if he were a Maſter bom be would be ſerved. XT MENTOS-refe25.cimiv megtuir úzens ó abro, ás
σαφής. πανί &ν χρήση, έκ τε τη σαυτόν με εκείνον, εκείνον και σαύτον εαυθέως. και η οικέτη εώτ' άν τις καλώς, ενθυμηθείς πως
av áziustev inervor cum opso épeas, ketep ensino rele viv Sonotus, dümes ho. A pud s tob. Serm. 82.
(ii) So that, altho' a Judge, if he were in the place of a Criminal, would undoubtedly wiſh, as well as he, to eſcape the Pu-
niſhment inflicted by the Law; nevertheleſs he ought to paſs Sentence, becauſe otherwiſe the can'c diſcharge the Ducy of his
Office, and will bring on himſelf much crouble by ſuch an Indulgence. We muſt relieve the Poor, buc noc co hurt ourſelves
much by it, nor ſatisfy his inſatiable Avarice. It is juſt to uſe our Servants kindly, but we are not oblied to make clean their
Shoes; this were to become a Servant inſtead of a Maſter. In a grear Buſineſs, for Example, in a Diſeaſe, a Mafter may and
ought, unleſs by another's Fault, to do ſuch Services for his Servants as they have a Right to require of him; but to go farther.
is to reverſe the Order of Society, and accuſtom his Servants to Idleneſs, or rather to make them infolent in the highet
degree.: 0751001
Marca:
c) 997 207077
$. XIV. (1) The very Name of Natural Right ſhews us, That the Principles ought to be deduced from the Nature of Man,
as many of the Ancients have acknowledged. Natura enim furis, ſays Cicero, explicata eft nobis, eaque ab hominibus repetenda
Natura, De Leg. Lib. 1. Chap. 5. IIxeg.rige i og quos matosis ve Dúnews covor.drogusumma di Ta wiet autè, aj tregoisoo,
ει μη χείρον μέλλει διατίθεται σε ή ως ζώα φύσις. εξής και παρατηρητέον, τι επιζητεί σε και ως ζώε φύσης, ο παν στο παραλιτά έον,
Η μη εξειν μέλλά διατίθεται και ως ζώα λογικά φύσις· ε Λ ο λογικόν, ευθύν, και πολίτικον, τέτοις δε κανόσι ώμων, μηδέν
gresepjá. Marc. Antonin. Lib. X. $. 2. i. e. Conſider well what your Nature requires, as if you were governed by Nature only; and da
this, if the Nature of the Creature be not any ways diſordered. Ther, conſider what the Nature of the Creature requires, and do not
refuſe to do it, if it be not contrary to the Nature of a Reaſonable Creature ; for he that speaks of 4 Reaſonable creature, ſpeaks of a
Political one ; i. e. One born for Society. If you obſerve theſe Rules you need not be uneafy for any thing. Further, Our Author
speaks only of a Natural Obligatory Right, he thinks not in the leaſt of the Natural Righ by Simple Permiſfion. See above,
Lib. 1. Chap. 6. S. 16. Note 1. and what is ſaid in the laſt Noce of this Chapter.
(2) The laſt of theſe Periods was added in the Second Edition, and is not well placed. To start broeit
genuete
3
136
Of the Law of Nature in general,
Воок ІІ.

Mens devoting themſelves arătat Tuch Ways of
genaere Parentes (a)? It is likewife evident, that nance, chat to live happily and conveniently they
many Perſons have contentedly fuffer'd Deach for. have continual Occaſion for the works and for
other Perfons, whom they either lov'd with an the Supplies of their Neighbours, in as much as
entire Affection, or to whom they devoted them- their own Times as well as Power, would fail
felves with an abſolute Service. For thefe Men them to procure the moft uſeful and the moſt nem
fancied themſelves to be join'd to iſuch Friends ceſſary Things; bſo on the other Hand, particular
or Maſters as Jeffer parts of the whole, and there Men have Convenience of furniſhing others with
fore choſe to be themſelves deſtroy'd for the Pre- many Things, which they themſelves do not want:
fervation of the greater Part (6)! Prodopius (c) and which therefore would turn to no Uſe or Ac-
tells us, that amongſt the Eprbalife Hunns the more count, unleſs they were thus beſtow'd and diſpen-
Wealthy. Men pick out about Twenty, or per- fed (2). 1: And as Merr thus appear to be ſo valtia
haps more Perſons for their ſpecial Friends; theſe Supportisand Help to each other, oſo, may they
are conſtant Gueſts at their Tables, and have the likewiſe in as eminent a manner prove a mutual
Uſe and Command of all their Riches and Poft Plague and Miſchief ; and they do often actually
feflions, being allow'd a kind of a Common Right prove fo, either upon the Inſtigation of their Bru-
over all Things : And when their Patron happens tiſh Paſſions, or being compell’d by the Neceflity
to die, Cuſtom obliges them to be put alive wish of defending themſelves from the Injuries and the
him into his Grave.
Japan, we are affur’d by the Authors who defifted on more largely by us in the firſt Chap
ſcribe that country and People (d). The Truth ter of this Book (F). But we defire it ſhould be
is, in the Opinion of ſuch Perfons, the Boaſts of well'obferved, that in ſeeking out the true. Condi-
Faith and of Affection with the Glory thenčeia- tion of Men we have aſſign'd the firſt place and In-
-riſing, are of more Value than all the Thingse influence to Self-Love, not as if each particular Man
the World beſides, and are not over-purchas'd at oughe in every reſpect to prefer himſelf to all o-
the Expence of Life itſelf. ad Some too being de- thers, for to meaſure all Things by his own private
priv'd of a near Friend, or of a fingulare Bene- Advantage, eſtabliſhing his Yeparate Intereſt for
Fador, do caſt away their own Lives only out of his chief End and Deſign; but becauſe a. Man is
Impatience and Deſpair, imagining ic is impoffi- by Nature fooner ſenſible of the Love he bears tol
ble they ſhould be otherwiſe chan very Miſerable, wardso himſelf, than of that which he bears to
having loſt him on whom alone all their Hopes wards others, in as much as it is natural for him
and Fortunes depended. Certain it is, whatever ſoover to perceive his own Exiſtence, than the Ex-
a Man doth for others, he never forgets himſelf; iſtence of others. And farther, becauſe the Care
and Satan, in Job ii. 4. well expreſs'd the com- of me and my, Affairs, belongs to no body fo pro
mon Temper and Inclination of Mankind, when perly as to my ſelf. For altho' I propoſe the com-
he ſaid, Skin for Skin, and all that a Man hath, will mon Good for the Mark of Aging, yet hinde! I
be give for bis Life.
likewife am a part of Mankind, to the Preſervati-
Beſides this Self-Love, and this Deſire of prefer- on of which fome Care is due, this Care muft
ving himſelf by all Means and Methods, there is needs lie more eſpecially and more forcibly on me
diſcoverable in Man a wonderful Impotency and my ſelf, than on any Perſon elſe in the World.
natural Indigence; ſo that if we ſhould conceive XV. Thus much being granted, it is an eaſy
any ſingle Perſon, quite deftitute of the Aſiſtance Matter to diſcover the Foundation of Natural
of others, we ſhould conclude his Life was given Law. Man is an Animal extremely deſirous of
him rather for a Puniſhment than for a Blefling. his own Preſervation, of himſelf expos’d to many
It is farther manifeſt, that, next to the Support Wants, unable to ſecure his own Safety and Main-
and the Defence of Heaven, Men draw their chief tenance without the Aſiſtance of his Fellows, and
Help and Comfort (3) from one another. For, capable of returning the Kindneſs by the Forche-
as the Strength of particular Perſons is fo unable rance of mutual Good : But then he is often ma-
to compaſs their Preſervation and their Mainte- licious, inſolent, and eaſily provok’d, and (1) as
3
(a) Æn. 1.610. On the other ſide, it was a gallant Saying of Epaminondas, that amongſt all the Good and Fortunare Accidents
of his Life, none ſtruck him with ſo real a Pleaſure, as that he won the famous Victory at Leuctra, before he had loft either of
his parents. Plutarcb's Apophthegm. p. 193 Ed. Wech. (6) Vid. Cartes de Paſion. Art. 83. Calar de B. G. I. 3. c. 22.
concerning the Soldurii. (C) De Bello Perf. I. 1. c. 3. (d) Vid. Franc. Carron. in Deſcript. Japan, c. 7. Of the
Æthiopians, ſee Diod. Sic. l. 3. c. 7. (e) Senec. de Irâ, I. I. c. 5. Men are born to be Helps to each other. Mare, Antonin. I. 2.
C. 1. We are born for mutual Support and Afiftance, and have each of us our proper Office to diſcharge for the General Benefit the
Feet, the Hands, the Eye-lids, the Teeth, or any Members of the Body. (f) Add Dr. Cumberland, c. 1. f. 15, 16. 10
we
(3) Cicero proves at large, (De Offic. Lib. 2. Chap. 3, 4, s.) that there is nothing that a Man can receive more Good.or Evil
from, than from his Like. After which he thus concludes, Cum igitur hic locus nihil habeat Dubitationis, quin homines plurimum
hominibus do profint do obſint, primum hoc ftatuo eſſe virtutis, conciliare animos hominum do ad uſus ſuos adjungere, Chap. s. Juſt the
fame Conſequence as our Author draws in S. following.
S. XV: (1) Mr. Titius affirms, that the Conſequence is nor good, but he is certainly miſtaken ; for our Author deduces Socia-
bleneſs from all theſe Characters put together, and not from any ſingle one. - Buc in one Thing Mr. Titius ſeems to ſpeak wich
Reaſon, when he ſays, That our Author in fecrling Sociablenels in that Manner, gives us Cauſe to believe, that every one's pri-
vate Advantage is the Foundation of Natural Right, becauſe, according to him, if a Man becomes Sociable, 'cis becauſe he can'
preſerve himſelf without it, nor enjoy ſuch Conveniences of Life as are neceſſary in this world. I own, that our own Intereſts
will engage us to be Sociable, but 'cis not therefore a Confequent, that we muſt raiſe the Obligation of practiſing the Laws of
Nature directly upon it; for there are Cafes in which we mult ſacrifice our own Intereſt to others Advantage and the Good of So-
ciety. I may adà, that our Author himſelf, in his Element. Juriſprud. Univers. p. 431, &c. makes Self-Love and Sociableneſs two
diſtinct Principles of Duty; and I do not know for what Reaſon he ſhould change his Sentiments. See what is ſaid Note s. of this
Paragraph, and what the Author ſays in the beginning of S. 16.03.18
power-
CHAP. III. Of the Law of Nature in general. 137

powerful in effecting, Miſchief, as he is ready in ed to them by Benevolence, by Peace, by Chari-
deſigning it. Now that ſuch a Creature may be tý, and ſo, as it were, by a filent and a fecret Obli-
preſerv'd and ſupported, and may enjoy the good gation. It would therefore be a Charge moſt no-
Things attending his Condition of Life, it is ne- toriouſly falſe, ſhould any inſinuare, that the Soci-
ceſſary that he be Social, that is, that he unite him- ableneſs which we eſtabliſh is perfectly indifferent,
ſelf to thoſe of his own Species, and in ſuch a and hath an equal Regard to Good Society and to
Manner regulate his Behaviour towards them, as Bad. We ſaid it was the Duty of every Man to
that they may have no fair Reaſon to do him Harm, promote and to practiſe Sociableneſs as far as in
but rather incline to promote his Intereſts, and to bim lies; becauſe, for as much as it is not in our
fecure his Rights and Concerns (2). This then will Power to oblige all ocher Men to behave cheni-
appear a Fundamental Law of Nature, Every Man felves towards us as they ought, we have done
ought, as far as in him lies, to promote and preſerve our Duty when we have omicced nothing which
peaceful Sociableneſ with others, agreeable to the main we were able to perform, in moving and engaging
End and Diffoſition of Human Race in General (3). For them to exerciſe the like Sociableneſs towards us.
by Sociableneß we do not here mean a bare Readi- From all which it follows, that ſince he who obli-
neſs or Propenſion to join in particular Societies, ges us to any End, cannot but at the ſame time be
which may poſſibly be form’d on ill Deſigns, ſuppos’d to oblige us to thoſe Means which are ne-
and in an ill Manner; as the Confederacies of ceſſary to the Attainment of that End, all Actions
Thieves and Robbers; as if it were ſufficient only which neceſſarily conduce to this mutual Sociableneſ, are
to join ourſelves with others, let our Intentions be commanded by the Law of Nature, and all thoſe on the
what they will. But by this Term of Sociableneſ, contrary, are forbidden, which tend to its Diſturbance, or
we would imply (4) ſuch a Diſpoſition of one Diſolution.
Man towards all others, as ſhall ſuppoſe him unit This (5) Method of diſcovering the Law of
Nature,



(2) Nihil eſt profe&to praſtabilius, quàm planè intelligi nos ad juſtitiam effe natos, neque Opinione fed naturâ conftitutum esſe jus. Id
jam patebit, fi hominum inter ipſos Societatem, conjun&tionemq; per ſpexeris, Cicero de LL. 1.C.1o. “You will ſee clearly chat Right doch
not depend on Opinion, but on the Eſtabliſhment of Nature; if you conſider the neceffary Union and Alliance of Mankind.
Σω
αλλήλοις ή ανθρώπες κανομία διαιτάς έχ ο ' μείζωοάν αυτοίς ζημίαν έτω γίνεται εκείνης ή και ένα διαίτης. Ξambilich.
Protrep. cap. 2. " That Men ſhould live together, and yet without Law, is abſurd and impoſſible; for at this rare, Sociecy would
“ be more dangerous and prejudicial to them, than if they dwelt ſeparately and fingly without any Communication.”
(3) To explain this Rule more fully, I think this ought to be added. From whence it follows, that whoever is oblig'd to aim
at a certain End, is oblig'd at the ſame time to make uſe of the Meanis, without which it can't be obtain'd. Whacever contri-
butes neceſſarily to an univerſal Sociableneſs, ought to be looked upon as preſcrib’d by the Law of Nacure; and, on the contrary,
whatever diſturbs it, to be forbidden by the ſame Law.
(4) Whenever à Thing appears advantagious or noxious to Society in general, in what State ſoever Men are, in every place,
and at all times, we muſt look upon it as either abſolutely commanded or forbidden by the Law of Nature. So altho' Theft or A-
dultery may in certain Circunſtances, and through the Corruption of Manners in certain Countries, have cauſed little no Trou-
ble in ſome particular Societies; as ſome affirm, chat Experience hath proved in the Kingdoms of the Maſageta and Lacedemoni-
ans, yer theſe two Crimes are not a whit the leſs contrary to the Law of Nature: For if they were allowed always and in all
States, there would reſult from them, without doubr, monſtrous Inconveniences and terrible Diſorders; and, on the contrary,
every Society whatſoever, muſt be more quiet and happy, where the Members of it religioully abſtain from Robbery and debauch-
ing their Neighbour's Wife, than where ſuch Attempts are frequently made. Our Author explains himſelf well enough upon this
Subject in ſeveral Places of this Book, and in his other Works, viz. his Spicilegium Controverſ. circa fus Natur. Chap. 3. §. 13. So
that I am amazed that certain Men, who labour to confute him, and pretend to take a new Method in explaining the Law of
Nature, make continual Alterations in a Thing ſo clear.
(5) Our Author (in the beginning of the following $. of this Chapter, and in his Specimen Controverſ. Chap. s. $ 25. as alſo in
his Spicilegium Controverf. doc. Chap. 1. S. 14.) declares, that he deſigns to explain here the Duties of Men only which properly
refer one to another: For, according to him, our Duties toward GOD belong to Natural Theology, and Religion is no other ways
concern'd in a Treatiſe of Natural Right, than as it is a more ſtrong Cement of human Society. As for the Duties of Man to him-
ſelf, they are derived partly from Religion and partly from Society. So that were Men independant on GOD's Authority, and
no way concern'd in Society, we could not conceive how he could be ſubject to any Obligation from himſelf. If ſome had at-
tended to this Syſtem of our Author, they would not have ſpent ſo much Paper in delivering Objections ſo ill grounded. Never-
theleſs I own, that he did well to prevent theſe Cavils by putting out a Treatiſe containing all the Duries of Man, of which we
may know the Neceſſity by the Strength of Reaſon only, and which, if we rightly underſtand the Thing, are contained in the
Idea of the Law of Nature, otherwiſe we muſt agree, that his Method to prove the Principle of Sociableneſs is ſubject to ſome
Inconveniences, as we have obſerved above in Note s. But all this may be rectified in ſome meaſure, by keeping cloſe to the
,
to be the Foundation of Natural Right, either as it came out of the Hands of the Creator, or as franied afterward diverſly by
fome human Aēts. I. From this Principle only, That Men are G O D's Workmanſhip, ic evidently follows, that they ought to
ſhew towards that Supreme Being, all the Sentiments which are comprehended in the Notion of Religion, and of which we ſhall
treat in Chap. 4. S. 3. Note 2. following. Moreover, GOD having conſulted the Preſervation and Happineſs of Mankind (as ir
appears plainly) both by the Faculties he has endowed him withal, and by that ſtrong Inclination which carries us irrefiftably to
ſearch after Good, and avoid Evil. He alſo requires, doubtleſs, that every one ſhould not only preſerve and make Himſelf hap-
py, but alſo contribute his utmoſt Endeavours to the Preſervation and Happineſs of others. There are alſo two other Funda-
mentals of the Natural Law in general, taken in its full Extene, and they are, 1. Love of Ourſelves, in a true Senſe; and 2. So-
ciableneſs. Inſomuch that as Religion contains all the Duties of a Man cowards GOD, To Love of Ourſelves (for ſo it may be beſt
expreſſed to avoid all Equivocation) comprehends all that we are directly obliged to do in Relation to Ourſelves; and Sociable-
neſs all that is due to others. See $. 24. Note 3. So that Sociableneſs is oppoſed to Self-Love, and Self-Love is no farther a
Foundation of Sociableneſs, than as we are bound to Others, becauſe we love Ourſelves. But there are two diſtinct Principles,
which though they have one great Relation, and equally concur in the Sight of the Creator, do yeč differ in the Main, and ought
wiſely to be managed, ſo that we muſt keep an equal Ballance, as much as is poffible, between them. I ſay, as much as is poſſible,
for it ſometimes happens that we can't ar the ſame time perform all the Duties which flow from theſe three great Principles of the
Natural Law; and in ſuch caſes we ought to regulate ourſelves by theſe general Maxims. 1. That our Duties toward GOD ſhould
always be preferred before all others. 2. That when there is a kind of Oppoſition between two Duties of Self-Love, and cwo of
Sociableneſs
, we ought to prefer that which is attended with the greatest Advantage, i e. we muſt conſider whether the Good
which ſhall be procured to Ourſelves or to Others in performing either of chefe Duries is more confiderable, than the Good char
fhall redound to Ourſelves or to Others by the Omiſſion of that Dury, which we can't ar preſent diſcharge without neglecting
Come other. 3. If, all Things elſe being equal, there is an Oppoſition between Self-Love and the Duties of Society, whether it
happens
T
138
Of the Law of Nature in general. Воок ІІ.
for any living Rival. And it is Society alone which whole World, after the Example of Hercules, whom
Nature, doth not only appear, upon Examination, theſe Secondary Reaſons of Sociality, is that
to be the moſt plain and eaſy, but it is likewiſe which Tully takes notice of in his firſt Book of Of-
own'a for the moſt proper and genuine Way by fices, c. 44. There are ſome People, ſays he (7), that
full Conſent of the greateſt part of Learned Men. fancy all Leagues and Alſociations amongst Men, to ariſe
There's no need of heaping up Teſtimonies and from the Need that one Man hath for another, toward
Authorities, but we may, let Seneca ſpeak for all the supplying of our natural and common Neceſſities: Be-
the reſt. (6) By what other Means, ſays he, are cauſe (lay they) if Providence had deliver'd us from
we preſerv’d, but by the mutual Aſſiſtance of good thus Care of looking after Food and Cloathing, by appoint-
Turns ? This Commerce and Intercoarſe of Kindneſſes, ing ſome extrcordinary way for the Procurement of it :
adds Strength and Power to Life, and, in caſe of ſud- no Man of either Brains or Virtue would ever trouble his
den Aſſaulis
, puts it into a better Condition of Defence, Head about Buſineſs, but wholly deliver himſelf up to the
Take us all aſunder, and what are we, but an eaſy and attaining of Wiſdom. But this is a Miſtake; for even
an unequal Prey to Wild Beaſts? Man by Nature is weak in that Condition a Man would fly Solitude, and wiſh for
on every ſide: Society fortifies his Infirmity and arms his a Companion in his very Studies: He would be willing to
Nakedneſs. Thoſe two Excellencies
, of Reaſon and Teach and to Learn, to Hear and to Speak. He talks
of Society, render bim the moſt potent of all Creatures, to the fame Purpofe in the Third Book of that
who would otherwiſe be obnoxious to Injuries from every Work, c. 5: (8) It is more according to Neturi, for a
Thing about him. Thus by the Help of Union be commands Mun to undergo all ſorts of Labours and Troubles for the
the world, who, if divided, would ſcarce be a Match Service and the Conſervation (if it were poſſible) of the
gives him his Sovereign Sway over the inferior Creation. the Gratitude of Men barb plac'd for his Virtue among
This was the Thing which firſt reſtrain'd tbe Violence of the Gods ; than to live in Solitude, and not only free from
Diſeaſes, which lent Crutches and Supports to Old Age, Cares, but even wallowing in Pleaſures and Plenty, with
and adminiftred Conſolation to Grief." Take away thus, all the Advantages of Strength and Beauty over and a-
and you cut aſunder the Band of Union, sbe vital String bove. This it is that makes all Great and Glorious Spirits
of Mankind (a).
prefer the former Kind of Life to the latter. What the
There are other lefs principal Cauſes, or rather ſame Author obſerves in his Laliss, is rather appli-
Arguments of a Sociable Nature in Men, For cable to Particular Friendſhip than to Common
Example, becauſe nothing is more ſad and diſa- Society : Friendſhip first aroſe rather from Nature than
greeable than perpetual Solitude (b)? Becauſe o- from Weakneß; rather from the Bent and Inclination of
therwiſe we ſhould have no Uſe of our Tongue, Mens Minds, than from the Confideration of the Profit it
that moſt noble Inſtrument, by the help of which would produce.
Mankind have this Advantage above all other liv We would have it obſerv'd, that the Fundamen-
ing Things, that they are able to expreſs their in- tal Law of Nature eſtabliſh'd by us, doth not dif-
ward Sentiments in articulate Sounds (c): Becauſe agree (9) with chat which Dr. Cumberland hath
every good and excellent Perſon is deſirous of ſhow- laid down in his work on that Subje&t (d), con-
ing his worthy Deeds amongſt others. Amongſt cerning the Study and Endeavour after the Com-




ز


101
happens through the Fact of another or not, then Self-Love ought to prevail, but if there be an Inequality, then Preference
ought to be given to that of the two ſorts of Duties, which is accompanied with the greateſt Profit. See what is ſaid upon Chap.s.
and 6. of this book. II. But it often happens, that Men, without leſſening the general Obligations, which refule directly and im-
mediately from their Original Conſticution, and the Appointment of the Creator, add thereto by their own Will, or by fome
Contract and Poſitive Law, divers private Engagements, which are united with the object of the Law of Nature, as it is a Rule
of Action which requires ſuch Engagements. In ſhort, all Men ought throughly to conform their Actions to their Original Con-
ficution, but in a different Manner, according to the different Eſtate they are in, as all the parts of a Clock concur to fulfil
the Contrivance of the Artiſt, although every Wheel move in a way agreeable to its particular Form. Sec S. 22. and 24. follow-
ing.
(a) 'Arne 78 and
es, &c. Men are the Defence of Men, Cities of Cities; as the Hand rubs the Hand, and the Fingers wafli the
Fingers. All Safety is Confederacy. Plin. N. H. I. 9. c. 46. Add. Marc. Antonin. 1. 4. . 4. & 1.5. S. 16, & 29. where he calls So
ciety the Good or Happineſs of a rational Creature; as it is frequent with him to term Man a Creature Sociable by Nature. Vide &
1.7. T.55. Liban. Declam. 19. p.499. Nature appointed Man to be a Companion, and an Aſſiſtant to Man. (6) Cicero de Fin. 1. 3. c. 20.
No Man would be willing to lead a Life of Solitude, though in an Infinity of Delights and Pleaſures. Whence'tis eaſy to apprehend, that
we are born for Natural Conjun&tion and Community. (c) Vid. Quin&til. Inſtitut.l.2. c. 16.
(d) C.1. /.4.
(6) Vt fcias per ſe expetendam eſse grati animi adje&tionem, per le fugienda res eft ingratum eſſe, quoniam nihil aquè concordiam bu-
mani generis diſſociat & diftrahit
, quàm hoc vitium. Nam quo alio tuti fumus, quam quod mutuis juvamur officiis . Hoc une inſtructior vi-
ta, contraque incurſiones ſubit as munitior eft, beneficiorum commercio. Fac nos fingulos, quid fumus ? præda animalium & vi&time, do
imbecilliſſimus do facilimus ſanguis. Quoniam cæteris animalibus in tutelam qui fatis virium eft, Quæcunque vaga naſcuntur, & aštura
vitam ſegregem, armata funt : hominem imbellia cingit : non unguium vis, non dentium, terribilem cateris fecit; nudum, & infirmum
Societas munite Duas res dedit, quæ illum obnoxium, validiffimum facerent, Rationem & Societatem. Itaque qui par esſe nulli pol-
(et, si ſeduceretur, rerum potitur. Societas iui Dominium omnium animalium dedit ; Societas terris genitum, in alienæ Natur& tranſmiſit
imperium, & dominari etiam in mari juffit. Hec morborum impetus arcuit, (ene&tuti adminicula profpexit, solatia contra dolores dedit :
hæc fortes nos facit, quod licet contra fortunam advocare. Hanc tolle o unitatem generis humani, quâ vita suſtinet ur, Scindes. De Be.
nef. Lib. 4. Chap. 18.
(7) Nec verum eft
, quod dicitur à quibuſdam, propter neceffitatem vita, quod ea que natura defideraret, conſequi fine aliis, atque effi-
,
nent, quasi virgula divina, ut ajunt, ſuppeditarent, tum optimo quifque ingenio, negotiis omnibus omiffis, totum ſe in cognitione, & scientia
collocarent. Non eft ita, nam bo Solitudinem fugeret, & focium ftudii quæreret, tum docere, tum diſcere vellet, tum audire, tum
dicere.
Gold
5
(8) Magis fecundum naturam, pro omnibus Gentibus, li fieri poßit, conſervandis, aut juvandis maximos labores, molefiaſque ſuſcipere
imitantem Herculem illum, quem hominum fama beneficiorum Memor, in concilium Celeſtium collocavit, quàm vivere in folitudine, nor
modo ſine ullis moleſtiis, fed etiam in Maximis voluptatibus, abundantem omnibus copiis, ut excellas etiam pulchritudine do viribus.
(9) There are leveral other Authors whofe Principles being well underſtood, may be reduced to this, though there appears
ſome Difference in the Language and Method. See Mr. Hirtius's Diſcourſe De Sociabilitate primo fur. Nat. princip. Se&. II.
&
bildo vid
cum
mon
CHAP. III. Of the Law of Nature in general
139
.
and Happineſs, or hath not Strengthens Quiet
mon Good, and the demonſtrating all pollible Be- made Oppoſites; but thoſe different Inclinations
nevolence towards all Men. For we, when we are in ſuch a Manner to be temper'd, that the for:
maintain that a Man ought to be Sociable, do at mer do not overthrow or diſturb che laccer (6)
the ſame time intimate, that he ought not to make When by the Enormity of wild Lufts this Tempe-
his own ſeparate Good the Mark of his Proceed ramenc is broken, and ſo all take up a Reſolution
ings, but the Benefit of Mankind in Common; of ſeeking each his own Advantage to the Injury
that no Perſon ſhould purſue his private Advan- of others; then ariſe choſe Heats and Conténti-
tage, by oppreſſing or by negle&ting other Men; ons which divide and confound Mankind. For
and that none hath reaſon to hope for Happineſs the avoiding which, the bare Care of our private
and Succeſs, who either injures or defpiſes his Safety commands the Obſervation of Social Laws,
Neighbours.
ſince we cannot enſure our own perſons without
From this Social Nature of Man, and from the their Aſliſtance and Protection. As for Hobbes's De-
Conſideration that every one is born, not for him- monftrarion, in which he ingeniouſly enough de-
ſelf alone, but for all human Kind, the Lord Bacon, duces thoſe Laws which we call Natural, from the
in his work of the Advancement of Learning, Book 7. Principle of Self Preſervation, the firſt Remark
t. 1. deduces ſeveral excellent Corollaries; as, that that we ſhall offer concerning it is this; that ſuch
an active Life is preferable to a contemplative one; a way of Proof doth indeed clearly enough make
that the Happineſs of Manis to be ſought for in Vir- out, how conducive 'cis to the Safety of Men, that
tue(10), not in Pleaſure; that the Fear of ſudden they act according to theſe Dictates of Reaſon.
and unexpected Accidents ought not to deter us, ei- But it is not an immediate and dire&t Concluſion
ther from managing publick Affairs, or from main to ſay, a Man hath a Right of ufing thoſe Means
taining Society and Commerce with other Men: for his Prefervation, therefore he is oblig'd as it
Laſtly, that we ought not to withdraw ourſelves were by a Law, to obſerve and to purſue them.
from Civil Buſineſs, out of a tender and ſcrupulous For to give thoſe Dictates of Reaſon the Force and
kind of Humour, or out of an Averſion to the uſual Authority of Laws, there is need of proceeding
Methods of Complaiſance. In which place the on ſome other Principle, than whac he lays down.
ſame noble Author farther obſerves, that there ne In the next place, great Care is to be taken left
ver was any Philoſophy, Religion, Law, or Diſci- any ſhould conclude from ſuch Arguments and Po-
pline found out in the World, which fo far ex- fitions, that when he hath once enſur'd his own
alts che publick Good, and debaſes private Inte- Safety, and ſet himſelf out of Danger, he need
reſt, as the Chriſtian Inſtitution appears to have not trouble himfelf about the Security of other
done.
Men; or that he may inſult how he pleaſe, over
XVI. Let us conſider now whether or no the ſuch a perſon as doth not contribute to his
c. 1. f.2. claſhes with what we have been deliver- diſturb it. For we therefore give Men the Name
ing on this Head. Certainly he hath been intern of Sociable Creatures, becauſe they, of all living
preted with very great Rigour, and with very little Things, are the fitteſt and the moft able to pro-
Reaſon by ſome Learned Men, when they cenſure mote the Advantage of each other: Neither is any
him for teaching, that Nature did not inſtitute Society, inferior Creature capable of receiving ſo great
but Diſcord, amongst Men, and, as they hence infer, Benefit (1) from Man, as Man himſelf
. Again,
that all Kind of human Society is against the Deſign of the Excellency and Perfection of any particular
Nature (a). Which is much the ſame thing, as if I Perſon riſe the higher, the more he deſerves of the
ſhould talk thus, Speech is by Nature actually born with Community by his publick Benefactions and
90 Man; therefore all Speech which is afterwards learnt, Works of this kind are reckon'd the moſt Noble,
runs againſt Nature's Intention. Or thus, All Men being ſuppos’d to proceed from the greateſt Wiſ-
by Nature come into the World little; tberefore it is a- dom: Whereas any worthleſs Wretch, or a meer
gainſt Nature that they ſhould grow up to larger Dimen- Fool, may be able to trouble or to hurt his Fellows.
fions. Or, Men are by Nature ſubject to Diſeaſes; Beſides, fappofing every Man's private Advantage
aberefore it is against Natüre, to make uſe of Diet, or were eſtabliſh'd for the Mark of his Actions, if
Phyſick to prevent or to cure them. We muſt conteſs, many Perſons ſhould happen to fix that private Ad-
that this Notion of Hobbes, looks at firſt View ex- vantage on the very fame Thing (2), there will
tremely paradoxical; eſpecially if a Man doth either be a Neceſſity of ſaying that theſe
not conſider diligently the Ambiguity of the Word Defires including a plain Contradiction, are con-
Nature. i But for fear any one ſhould hereafter befiftent with Reaſon, which is the higheſt Abſur-
cheated by the ſame doubtful Philoſophy, and led dity: Or, ſince none can pretend that his Deſire
fatally into Error; let us firſt obſerve, that Self- ſhould have the Preference of the reſt, we fhall
Love and Sociableneſs ought by no means to be be forc'd to admit it for a Truth, that no Man

many
YUV
107 3122
(a) compt. Conring. in Jure Civili, c. 14. in fin. (b) Arrian. Epi&et.t. 1. c. 19. God has diſpos’d the Nature and Conftitution of ra-
tional Creatures after ſuch a manner, that they can't advance their private, without contributing, ſomething to the publick Intereſt.
Community doth not exclude the purſuit of private Advantage,
(10) Virtue is the cauſe of Happinels, but it is not Happineſs itſelf. All Happineſs confifts eſſentially in Pleaſure, although,
there being diverfe forts of Pleafure, every one will not make a Man Happy. This might be eaſily proved, if this were a proper
place. Sec a fine Pafſage of Montagne's upon this Subject, Esays, Lib. 2. Chap. 19. Init. vo
S. XVI. (1) Our Author muſt mean Harm, for to ſay Benefit would not be agreeable to right Reaſoning.
2) Again, our Author is guilty
of an Inadvertency, for inſtead of ſaying, on the very ſame Thing, he doubtlefs meant to ſay,
on Things very different from one another , as appears from his Reaſoning afterwards, and from Dr. Cumberland, c. 5. . 16. whole
Notions or Author follows, If right Reaſon, ſays that Engliſh Writer, di&tates to Perer, that all
his Happineſs, and the End that he
aims at, confits in the Enjoyment of the full Right of the Lands which John and James pofjeſs, as alſo of their perſons, and of
Goods of all others in general, right Reaſon cannot inſpire James and John to place their Happineſs in the Enjoyment of a full Right in the
Lands and Perſon of Peter, and of ali otbers, for that mould imply a plain Contradi&tion, &c.
T2
ought
the
140
Of the Law of Nature in general.
Book II.
that they ace hurt-
ought ſo to make his own Profit the Aim of his Pro- ſons, but they are both extremely agreeable and
ceedings, as not to conſider and to regard the Good confiftent, as appears ſufficiently from the Rule
of others. Farther, whoever attempts to draw e- propos’d by our Saviour, Matth. xxii. 39. when he
very thing to himſelf and to his own Intereſt, with- commands us to love our Neighbours as Ourſelves (4).
out looking towards his Neighbour, will not only Indeed Reaſon plainly informs us, that whoſoever
labour in vain, (it being impoſſible that all Per, hath a hearty Deſire for his own security muſt not,
fons and all Things ſhould be diſpos'd according cannot neglect the Care of his Fellows. For,
to the contradictory Deſires and Wills of Particu- ſince our Safety and Happineſs depend for the
lar Men) but he will likewiſe invite others to moſt part on the Benevolence and on the Aſſiſtance
plunder and to deſtroy him. Moreover, if that of others, and ſince the Nature of Men is ſuch,
only can be ſaid to be Good to a particular Perſon, that for Benefits conferr’d they expect a Return
which conduces to his ſeparate Intereſt, it follows, of Kindneſs, and when no ſuch Return is made,
that in reſpect of all other Perſons it muſt be Evil, refrain from farther Favours: No Perfon in his
in as much as their Intereſt or Profit is not further- Wits can fick ſo cloſe to the Purſuit of his fepa-
ed by it :- And ſo what one covers and purſues, all rate Advantage, as to diveft himſelf of all Regard
the reſt will oppoſe and keep off, which cannot
to the reſt of the World: But rather the more ra-
but raiſe perpetual Claſhing and contending a- tionally he loves himſelf, the more earneſt he will
mongſt Men(a). Laſtly, although another Perſon be in endeavouring by good Turns to procure the
hath done me neither Good nor Hurt, and though Love of other Men. For no one hath any reaſon
he hath nothing in him to raiſe either my Fear or at all to hope, that Men will voluntarily contri-
my Love, yet Nature obliges me to eſteem even bute towards advancing his Happineſs, whom
ſuch a one as my Kinſman and my Equal; which they know to be malicious, perfidious, ingrateful,
Reaſon alone, (had we no others) were ſufficient and inhuman, and that theſe wicked Practices are
to enforce the Practice of a friendly Society and the Requitals which he will make for their Boun-
Correſpondence amongſt Men. And upon this ty; on the contrary, it ſhould be expected, that
Confideration, ſuppoſing there was a Nation in they will all join together in ridding the Earth of
the World maintaining Peace and Juſtice amongſt ſuch a Monſter, or, at leaſt, in reſtraining him
themſelves, and of ſuch mighty Strength as to be from doing farther Miſchief
.
formidable to all others, and ſo not reſtrain'd from XVII. Neither is the following Argument which
hurting them by the Fear of a like Return ; yet the Hobbiſts make uſe of at all concluſive; Parti-
ſhould
this Nation or People aſſault, drive, kill, or
'cular Men when they join Society or Company
drag into Slavery their weaker Neighbours, as of with certain others, have Regard to ſome peculi-
ten as they thought convenient, we ſhould pro ar Good or Benefit, which is likely to redound
nounce them actually guilty of a Breach of the to themſelves : Therefore human Nature in ge-
Law of Nature. And yet (as we ſappoſe) theſe
neral is not determin’d to Society, or, I am not
People might preſerve themſelves, whether they oblig’d to behave my ſelf in a focial Manner to
allow'd any Rights to others or not (3). In the wards him, from whom I do not expect ſome
ſame manner, none will commend the Life and particular Advantage.' For thus much indeed is
Profeſſion of Robbers, becauſe they exerciſe ſome evident, that the Reaſon why certain Men join in
litele Juſtice towards thoſe of their Gang, becauſe any certain Species of Society, is either becauſe
their Captains divide the Prizes equally amongſt they have a peculiar Refemblance and Agreement
them, and becauſe he who either openly or ſecret in Diſpoſition of Mind, or in other Qualities; or
ly robs one of the Crew, is (even by Thieves) ad- elſe becauſe they think they ſhall better obtain
judg’d unworthy of farther Partnerſhip and Society fome End which they drive at, amongſt theſe Per-
with them (b). This Rule of extending our Care fons than amongſt others
. But, (beſides that, re-
beyond our own Perſons, is ſo much the more di- gularly ſpeaking, no Man hath the Property of
ligently to be attended to, the more evident it is, belonging to no particular Society) even amongſt
that a Man of more Strength and Power than or- Men who are united only by the common Tie of
dinary, is likely to be tempted to the Violation Humanity, that general Sociableneſs and Peace
ſufficiency; that
dantly provided for, he need not give himſelf the ing one another unjuſtly, and that as far as their
trouble of maintaining Peace and Friendſhip with ſtricter and particular Obligations leave room, they
his Neighbours.
a mutually promote and communicate their Intereſts
But to conclude this point, as the Care of our and their Goods. N Enduro
own particular Preſervation doth not exclude a XVIII. Hence it is clear what Anſwer ſhould
Concern for Society, ſo neither doth a kind Re- be made to that Objection, if one Man lavid another
gard for Society ſuppreſs our Affection to our Per- naturally, that is, upon account of bis being a Man,

C
(a) Self-Intereſt is a poor Centre of a Man's A&tions, ſays my
Lord Bacon, Ef. 23. (6) Vide Ciceron. Off. 2. C. II. nie
(3) Nec magis vituperandus eſt Proditor Patria, quam communis utilitatis, aut ſalutis deſerto“ propter fuam utilitatem, aut Salutem
Cicero de Fin. 1.3.6.1993“ A Betrayer of his Country is not more foully ſcandalous, than he who deſerts the common Benefic or
- Safery for the Procurement of his own.."
corso 169
(4) Qui ſtadium currit eniti do contendere debet, quàm maximè poſſit, ut vincat ; ſupplantare eum, quicum certet, aut manu depellere,
nullo modo debet. Sic in vita ſibi quemque petere quod pertineat ad ufum, non iniquum eſt, alteri deripere jus non eft. Chryfippus apud
Ciceron. De Offic. Lib. 3. Chap. 10. In running of a courſe a Man may be allow'd, nay, he ought to ſtretch and contend bis utmost for
tbe Vi&tory: But be must not, on any account, trip up his Antagoniſt's Heels, or thruſt him out of the Liſts by main Force. So in Life, it
is very fair and allowable, for every Man to get, by boneſt Means, wbatever makes for Uſe and Advantage ; but 'tie by no means lawful
tbat he should take it away from other so
them
CHAP. III. Of the Law of Nature in goricral.
141
may
, .
then there can be no Reaſon given, why every one ſhould be manag’d with more Conveniency, and with
not love every one equally, all being equally Men: Or why more Succeſs. And altho' when a Man unites
a Man ſhould chuſe to frequent their Company moſt, from himſelf to any particular Society, he hath a prime
whom he receives either greater Honour or greater Profit. Regard to his own Intereſt, and but a ſecondary
In this Fallacy, common Society is confounded one to the Intereſt of his Companions ; not being
with particular and ſtricter Confederacies, com able to carry on his own Matters without ſuch a
mon Love, with ſuch as ariſes from peculiar and Conjunction ; yer this doth not hinder him from
ſingular Cauſes. For to deſerve that common Af- being oblig'd ſo to purſue his own private Ends
fection, no Property is requir'd but barely the be- and Advantage, as not to injure either the Corpo-
ing a Man. Nature having, for the Reaſons above ration in general, or any fingle Member of it, and
affign’d, really conſtituted a generals Friendſhip ſometimes to poſtpone his ſeparate Good, for the
amongſt Men, from which no Perſon is excluded, Advancement of the common Benefit.ad.
unleſs he hath rendred himſelf unworthy of it by What is urged about the Original of great and
his monſtrous Villanies. Now, altho’ by the good laſting Societies, or States, (it being ſaid that they
Diſpoſal of the All-wiſe Creator, our Natural are not deriv'd from mutual Benevolence, but
Laws are ſo fitted to Human Condition, that the from mutual Fear ; by which Word they mean any
Obſervation of them is join'd with the Intereſt kind of Precaution and Fore-fighe,) is entirely be-
and Advantage of the Obſervers; ſo that even fide the Purpoſe. For as the Queſtion doth not
this common Love is exceedingly profitable to at preſent proceed about the Riſe of Civil Society
Mankind: Yet in afligning the Cauſe and Reaſon in general; ſo farther, it is highly agreeable to our
of it, we are wont to have recourſe, not to the natural Condition, that whereas fingle Perſons or
Benefit proceeding from it, but to the General a few join'd in Confederacy might lie perpetually
Nature in which it is founded. For Example, if expos'd to the Inſults of ſuch Wretches as purſue
we are to give a Reaſon why one Man ought not their private Ends without Regard to their Neigh-
to hurt another, we do not uſually lay, becauſe bours; many ſhould unite in a Body, and ſo
an abſtaining from mutual Violence is profitable, ftrengthen their Guard againſt farther Affaults and
(altho'ic is ſo indeed in the higheſt degree) but, Miſchiefs
. Neither is it indeed abſolutely necef-
becauſe the Perſon being another Man, that is, ſary, to the proving any Society agreeable to Na-
another Animal related to us by Nature, (1) it ture, to ſay that it aroſe entirely from mutual Be-
would be a Crime to offer him any harm (a). nevolence. And yet even this Principle muft be
Yet beſides this common and univerſal Affecti- allowed ſome little Share at leaſt, in the forming
on, fome Circumſtances may make a Man love of States, ſince the Perſons who firſt begin them
one Perſon in a higher degree than another : Sup- are commonly join'd on the account of Kindneſs
poſe becauſe their Inclinations particularly agree, and Good-liking, though many others
Perſon is more able or more willing to promotement of Fear. But as for this Fear, which is look'd
his Advantage; or becauſe their Race or Original on as the Cement of States, as likewiſe for that
makes them allied to each other. As to that Ob- Diſpute, whether or no Man by Nature be wav
ſervation about Mens being more willing to fre- Metixòv, we ſhall examine them more at large when
quent ſuch Company, where they find themſelves we come to enquire into the Riſe and the Origi-
preferr'd to others in Honour and in Profit ; the nal of Commonwealths.
Reaſon of the Thing is this, becauſe every one XIX. This Principle which we have eſtabliſh'd
muſt naturally love his own Intereſt, if he have for deducing the Law of Nature, as it is the moſt
Wit enough to underſtand it. But this Love is by genuine and the moſt clear, ſo we take it to be in
no means repugnant to the ſociable Nature of ſuch a high Degree (1) adequate and ſufficient,
Mankind, if it doth not riſe to ſuch a guilty that there is no natural Obligation bearing a Re-
height, as to diſturb the Harmony and Agreement gard to other Men, the Reaſon of which is not
which is univerſally to be maintain'd amongſt terminațed here, as in the chief Head and Foun-
Men. For Providence did not for this Realon tain of Duty: Yet, as we ſhall hereafter ſhow,
give us a Sociable Nature, that we ſhould there. to give theſe Dictates of Reaſon the Force and
fore (2) neglect ourſelves and our own Affairs. Authority of Laws, there is a Neceſſity of ſuppo-
But rather we are ſtudious of Society on this very ſing that there is a God, and that his Wife Provi-
account, that by a mutual Communication of dence overſees and governs the whole world, and
Aliſtance and of Goods, our own Concerns may in a particular Manner the Lives and the Affairs of

DO
Wito a 1313

uitda to 7290700 Onion
(a) Lucian in Amoribus, Tom. I. p. 893, Ed. Amft. We do not, like Brute Creatures, affe& Solitary Meditations, but joining together
in a Friendly Society, we make our joys to be the greater and our Afiations the leß, by being mutually communicated: And our Pleaſures
baving many Sharers in them, fill us with the truer Satisfa&tion and Delight. Dio Chryfoftom, Orat. 12. tells us, that the Reaſon why
Jupiter hath often the Title of pinto and Starpeio, The Kind and The Friendly, is, becauſe he gathers, as it were, all Mankind
into Unity and Society, and would have them prove Friends to each other, without the least Mixture of Hatred or Oppoſition. In like man-
mer, ſays he, he is callid, Eevic, or Hoſpicable, becauſe we ought really to think no Man a Stranger to us. besoin
S. XVIII. (1) This is what the Roman Lawyers ſay, Cum inter nos cognationem quandam natura conſtituit, confequens eft hominem kom
mini inſidiari nefas effe. Digeft. Lib. 1. Tit. I. De Juſtit
. & Jure, Leg. 3
Norry!
(2) Seneca has very well
obſerved this, and ſays, Thaſ the higheſt Point of Friendſhip is to look upon one's Friend as a Per-
ſon who ought to be as dear to us, as we are to ourſelves ; we ought to provide for the Intereſts one of another. I will, ſays
he beſtow upon him that is in Want, but in ſuch a meaſure as not to be reduced to Neceſity my felf. I will ftep in to the Aſſiſtance of him
who is in Danger of periſhing, but not ſo as to periff with bim. Quum fumma amicitiæ fic, amicum fibi æquare, utrique fimul con-
Hulevdum eſt. Dabo egenci, fed ut ipſe non egeam, ſuccurram perituro, fed ut ipſe non peream. De Benif. Lib. 2. Chap. 5.
S. XIX. (1) See Note 5. upon the isch Paragraph.
Mankind.
142
Of the Law of Nature in general.
Book II.
Times this Morive, has had
falſe and It be, perhaps, in Reli-
ftanding their other falſe ſuperſtitious Idea's, as appears from the Example of che Pagans. But, as much as Atheiſm pleaſes fome
Mankind. For we cannot by any Means ſubſcribe would be obſerv'd out of a bare Regard to Inte-
to the Conje&ure which (2) Grotius ftares, in his reft, as thoſe are which the Phyſicians preſcribe in
Prolegomena, or Introduâion, N.XI. That the Laws the Regimen of Health. Grotius ſeems to have
of Nature would take place, ſhculd we (as we cannot taken the Hint of that Notion from a Paſſage in
without the moſt borrid Impiety) deny either the Being of Marcus Antoninus (b); if, ſays the Emperor, the
GOD or His Concern in buman Buſineſs
. For, ſhould Gods do not conſult about any of our Affairs, which the
any Wretch be ſo horribly ſenſeleſs as to maintain vileft Impiety can ſcarce believe ; why then’tis fit that
that wicked and abſurd Hypotheſis in the rankeft I ſhould conſult or deliberate about my own Concerns :
way, and ſo hold Men to have deriv'd their Being And all
And all my Deliberation muſt be concerning what is moft
wholly from themſelves ; according to them, the profitable for me. Now that is moſt profitable to every
Edicts of Reaſon could not riſe ſo high as to paſs one, which beſt agrees with his Nature and Conſtitution.
into a Condicion of Laws; in as much as all Law And my Nature is to be rational, and to be a Sociable
ſuppoſes a Superior Power. (3) 'Tis a good Ob- Member of ſome City or State. My City and Country,
ſervation of Tully, De Naturà Deorum, l. 2. c. 2. 1 as I am Antoninus, is Rome, as I am a Man, is all
know not, ſays he, but that upon taking away Religion the World: Thoſe things therefore which are profitable to
and Piety towards ibe Gods, all Faith and Society of bu- theſe Communities, are the only Things which are good
man Kind, and even the moſt excellent Virtue of Juſtice, and expedient for me.
muſt be baniſh'd the World (a). Unleſs the Rules As to what a certain Learned Man objects, that
(a) Liban. Declam. 3. p. 230. Ed. Pariſ
. Where there is no Honour of the Gods, there can be no Fidelity amongſt Men. (6) See his
Moral Reflexions, B. 6. S. 44.
(2) Mr. De Courtin, the Tranſlator of Grotius, explains theſe Words, but ſomething obſcurely, and ſeems alſo to miſtake him,
telling us, that he maintains, That Man's Natural Light, without any Star of GOD, would carry a Man in a moſt efficacious
Manner to ſeek Good and avoid Evil, by all means poſſible, in Obedience to that Law only which Reaſon preſcribes, and with
the Execution of which Conſcience is charged. I ſuſpect that Grotius never deſigned to expreſs himſelf with ſo much Philofo-
phical Exactneſs, and that there is little Rhetorick in that Paffage, if the Senſe being rightly underſtood has that Meaning; That
che Maxinis of the Law of Nature are founded upon the Conſtitution of Mankind, and neceſſarily contributing to the Advantage
of every one, will not ceaſe to take place, and be practifed outwardly in lome Meaſure, although no Deity be acknowledged;
but then they can't be looked upon as Duties, nor can be put in practice, but upon the Account of ſome Intereit or Vainglory.
Mr. Bayle goes much farther, and maintains, in his confiderations upon a Comet, pag. 554. Thac Reaſon, without any Knowledge of
GOD, may ſometimes perſuade a Man, thar a Thing is honeſt, and good, and commendable to be done, not for the Advantage
coming by it, but becauſe it is ſuitable to Reaſon. The famous Chancellor Bacon, (whoſe Authority, no more than Grotius's, Mr.
Bayle doth not take notice of ) has delivered much the fame Thing, in his Serm. Fidel. 117. where, making a Parallel between Su-
perſticion and Atheiſm, he reafons much after the fame Manner in his conſideration on a Comer, though more largely. My De-
ſign is not to examine Things throughly, and therefore I ſhall only make ſome ſhort Reflexions. I own, that Religion is neither the
only, nor principal Baſis of
Seciery ; but then, in my opinion, we muſt allow, 1. That the Nocions of Honeſty being ſtript of all
Relation to the Will of GOD, the Supreme Lawgiver, the Author of our Being, the Prorector of Mankind, and of Society, are
meer Chimera's, or meer barren Principles, pure Speculations, incapable
of laying a Foundation for good Morality, or to produce
ſolid Virtue. if we look upon the Atheist (fays Mr. Bayle himſelf) in the Diſpoſition of his mind, we shall find that he, not being awid
by any Fears of "Puniſhment, nor encouraged with the Hopes of GOD's Bleſsing, muſt reſign himſelf to the Government of his Paſions.
2. That, ſo far as we can judge by Conjecture, a Society of Atheiſts, all Things elle being equal
, would be more corrupt, and
ſubject to more Disorders, than any of thoſe who retain Tome Principles of Religion, although imperfect and incoherent. I
I ſay,
All Things elſe being equal. For it would be ridiculous, to compare, for Example, a polite and well-inſtructed People with a
ſavage Nation, who have not Senſe enough to do any Evil
. We muſt beſides, if we will exactly diſtinguiſh the Effects proper to
Atheiſın, and a good or bad Religion, ſuppoſe the Perſons ſo compared together, to be very near furniſhed with the ſame Nori.
ons, and to be in the ſame Situacion, and under the fame Circumſtances in general, otherwiſe we ſhall be in Danger of attributing
to Religion, what really proceeds from Nacure, Education, Cuſtom, or the like; which Religion is very little or nothing conducing to,
or we may accuſe Religion of Impotency, by reaſon of ſome invincible Obſtacles in them, upon whom it would not fail to produce its
Effect, were it nor that they are ignorant of the moſt neceſſary Point. Upon this foot I maintain, that Religion, tho corrupred,
would produce better Effects chan Atheiſm, that it would diſturb Society lets, and that the Good it would do, would be much
greater than the Evil it would cauſe. I will not deny, but there may be amongſt theſe Atheiſts, Men of Senſe and Philoſophers,
who, reflecting that it is better for Men to ſubject themſelves to certain Rules of Life, than for every Man to follow his Humours
only, may obſerve them outwardly, lo far as they are exempt from ſuch Circumſtances, as ſome great Intereſt preſent, or ſome
violent Paffion forces them upon, ſuch Councils as are reaſonable, calm and aware of the Conſequences. But the common fort of
ignorant People, and Idiots, which make up the greateſt part of Society, are not able to inake ſuch Reflections. To curb in there-
fore the violence of their Paffions, and to outweigh Mens private Intereſts, which often claſh with the publick Good, ſome more
obvious Principle, twhich all the world may be fenfible of, and which may make the deepeſt Impreffions upon them, mult be
found out, and that, in a Word, can be no other than the Fear of a Deity. Experience fufficiently confirms this, char in all
was the Cauſe of in many ., did always to their Princi-
ples, and for it might well happen, that many
Pagans did nor perceive nor draw the Confequences which followed
from the false
Notions which they had of the Deity. ?Tis certain, that not only the Philoſophers, bur the Vulgar looked upon the Gods as the
Revengers of the Violation of the Laws of Nature. See what is ſaid in the next Chap. S. 3. Note 4. Since then there are among
Atheiſts the fame Principles of Diſorder, as among Pagans, from which no Man can be reftrained but by Religion, it ſeems plain
that Vice muſt reign with much leſs Controul and Extent in the Society of Atheiſts, than in a Religious One, alçho' their Worſhip
gious Societies, by Superftition and falſe Zeal; and I own, that theſe Inconveniences, which ariſe from the Abuſe of Religion, are
great, but the Disbelief of a Deity would produce much greater. As much as the Norions of Religion are perverted, and though
they are made uſe of as an Occaſion or Pretence of confirming or engaging many Perſons in the Commiſſion of Crimes, yet they
fail nor to diſcourage and deter others, and thoſe of a much greater Number. 's The Notion of a GOD, and of an inviſible Judge
who will puniſh Vice and reward Virtue, are naturally ſo fatt linked together, that the moſt finple have a Senfe of it, notwith
neſs and Debauchery; Conſequences which are clear to the light of all the world, and can't but bring Deſtruction to a Society,
which is compoſed of Men endowed with fuch irreligious Principles. If the Nations which are ſo barbarous as to have uo Reli-
gion be objected, beſides chac the Hiſtories which give an accounc of them are contradicted by more modern and faithful Relations.
chefe People are either nor formed into any Society, or are fo illiterate and ſtupid, as there is little Difference between them and
the Beaſts, as the ingenious Writer of the Rights of the Chriſtian Church, has very well obſerved in his Preface, S. 18. See alſo
Lib. I. Chap. 6. Ş.13. Note 7. aforegoing, and Chap. 4. 5.3. Note 4. of this Book, following. tubo
(3) Tully's Words are theſe, Atque haud Scio, an Pietate adverſus Deos Sublata, fides etiam & Societas humani generis, & una 'ex-
cellentiſſimi virtus fuftitia tollatur. See alſo Libanius, Declam. 3. p. 250.
particularly



CHAP. III.
Of the Law of Nature in general. 143

I Cor. XV. 19.
a
particularly the Virtue of Fortitude, cannot be de- it rather contradies and hinders the Preſervation,
monſtrated from our Principle, unleſs we farther the Sociableneſs, the Peace, and the Tranquility of
fappoſe the Immortality of the Soul; fince other. Mankind. But the Genius and the Scope of Chri-
wife there would be no Reward to a Man who ftianity differs vaſtly from theſe meer Natural
ſhould throw away his Life on a good Cauſe: This Schemes; and the holy Apoſtle had good Reaſon
will require no great pains to anſwer. For altho' to affirm, (8) that if in this Life only we bad Hope
really to deny, or ſo much as to call in queſtion in Chrift, we ſhould be of all Men the moſt miſerable.
ſo certain a Truth be extremely impious; yet
without bringing this high Point into the Argu XX. But to make theſe Dictates of Reaſon ob-
ment, it is poſſible to demonſtrate, that a Soldier tain the Power and the Dignity of Laws, it is ne-
may fairly be commanded to fight to Death, in ceſſary to call in a much higher Principle to our
the Behalf of his Country. For, beſides that, Afliftance. For altho' the Uſefulneſs and Expedi-
there appears yet no clear Reaſon why we muſt ency of them be clearly apparent, yet this bare
ſacrifice, as it were, every good Action to ſome Confideration could never bring ſo ſtrong a Tie
external Reward; thus much is univerſally agreed on Mens Minds, but that they would recede from
on, that 'tis in the Power of the Sovereign to arm theſe Rules, whenever a Man was pleas'd either
the Subje&s, and to lead them out againſt the E- to neglect his own Advantage, or to purſue it by
nemy, in Defence of the State ; and farther, when ſome different Means, which he judg’d more pro-
they find it requiſite to forbid every one under per, and more likely to ſucceed. Neither can the
pain of capital Puniſhment, to quit his Station by Will of any Perfon be ſo ſtrongly bound by hi
Flight. Now of two Evils the leſſer is moft cer own bare Reſolution, as to hinder him from act-
tainly to be choſe. But it is a leſs Evil to fight ing quite contrary, whenever the Humour takes
with extraordinary Danger, and even to the laſt him. And altho' we ſhould ſuppoſe many Perſons
Breath, than to ſuffer unavoidable Death for ruu- ftanding in a Natural Liberty, and combining to
ning away. And therefore that Soldier muſt be keep theſe Precepts, yet the Force of them could
the greateſt Fool, as well as the greateſt Coward, then laft no longer, than the Agreement from
who would not chufe rather to fall honourably bý whence they derivd it. Nor would the Obligati-
the Enemies Hand, having firſt anticipated his own on then only ceaſe, when all the conſenting Par-
Revenge, than to deliver up himſelf to be igno- ties ſhould pleaſe to alter their Minds ; (as is now
miniouſly diſpatch'd by the Executioner (4). It the Manner of receding from mutual Covenants
ſeems ſufficient that a Man fight with all his Force by common Conſent ; ) but even during the ge-
and Ability, let his Inducement to this Behaviour neral Agreement, the Power of obliging would
be what it will. Nor is it requiſite to the Preſer- be wanting to the Compact: In as much as we ſup-
vation of States, or of Society amongſt Men in poſe, that Dictate of Reaſon which commands us to
general, that every particular Perſon ſhould be in- ſtand to our Bargains and Promiſes, not yet to have
dued with ſuch a Firmneſs of Mind, as the Terrors obtain'd the Authority of a Law; and therefore
of Death cannot ſhake or overcome; all Souls 'tis at every one's Pleaſure to renounce the Cove-
not being capable of this noble Pitch of Valour, nant, whether the other Perfons concern'd are
Beſides, the Uſe of Fortitude doth not only diſco- willing or not. Laſtly, the meer Force of human
ver it ſelf in bearing Death undauntedly upon ex-
Command ſeems inſufficient to inveſt theſe Di-
treme Occaſion; but is chiefly employ'd in vigo. Etates with the Power of Obligation. For ſince
rouſly withſtanding, and in driving off the Dan- no ſuch Command could take place otherwiſe
ger of Death, as it preſſes on us. Many Difficul- than by the Intervention of Covenants, and ſince
ties are not otherwiſe to be avoided, than by un- Covenants owe all their Strength to ſome Law, it
dergoing others of almoft equal Hazard : 's) And doth not appear how there could ariſe any human
Fate ſooner overtakes the Coward, than it maſters Sovereignty capable of Obligations, unlefs the
the Valiant. It is farther obſervable, that ſetting Dictates of Reaſon were beforehand receivd for
aſide the Suppoſition of the (6) Soul's Immortali- Laws. Or ſhould wel grant the Fancy of ſome,
ty, it doth by no means appear that the chief End that human Government depends only on human
and Happineſs of Man () conſiſts in Pleaſure. Conſent, and then make theſe rational Duties be
For beſides that in the Doctrine of Natural Law, enjoin'd the Subje&ts like other Laws; yet even
treated of in this Manner, the Immortality of the thus they would obtain no more Power than poſi-
Soul is by no means denied, but only abſtracted tive Conftitutions, which depend on the Will of
from ; it's plain that the Pleaſure of the Body, the Legiſlator, both as to their Original and their
in which Epicurus is vulgarly thought to have plac'd Duration (a). It is therefore on all accounts to be
his Summum bonum, is ſo far from promoting, that concluded and to be maintain'd, that the Obliga-

.
(a) Comp. Selden de J. N.GG. l. 1. c. 7.
-4) póßw uwzóvar voduivxoir ou es vi er sproet dévelop or un mouév . lamblich. in Protrept. “When the Valianteſt Men
“ ſuſtain Death, they do it for fear of greater Evils." vol
(5) Horat. 1. 3. od. 2. v. 14, Loc. Mors do fugacem perſequitur virum; zido
Nec parcit imbellis Juventa
1 bac Poplitibus, timidove tergo. :)
(6) All that the Author ſays here is true; but we muſt alſo declare that the moſt effectual Mocive to leſſen the Fears of Death,
and make us out-face, as I may ſay, the Dangers, which the Defence of a good Cauſe engages us in, is the Höpes of another Life,
and the Proſpect of the Reward which ſhall be given to good Men ; the Courage produced by any other Principle is but a falié
Bravery, in compariſon of the Undauntedneſs which naturally follows that Perſwafion, when it is ſtrong and the idea of it is vi-
gorully impreſſed on the Mind. See the News from the Rep. of Letters, July 1707. P. 79. and Aug. p. 178.
(7) See S. 15. Note 10. above.
(8) See what is ſaid at the End of S. 21. with Note 6.
tion
144
Of the Law of Nature in general. Book II.
tion of natural Law proceeds from God him- fcience inherent in the Minds of Men that are
ſelf, the great Creator and ſupreme Governor of nat corrupted and debauched with Vice; by which
Mankind'; who by Virtue of his Sovereignty hath they are convinc'd, that to ſin againſt Nature's
bound Men to the Obſervation of it. And thus Law, is to offend him, who hach a Sovereign
much may be demonſtrated by the ſole Light of Power over Mens Souls, and who is to be feard,
natural Reaſon. Here then we lay it down as a even when we do not apprehend any Danger from
granted Truth; that God Almighty is the Crea- human Puniſhment (c).
tor and Governor of the World, ſince it hath been The Laws of Nature would have a full and per-
ſhown with ſo much Evidence by Wiſe and Learned feet Power of binding Men, altho' God Almigh-
Men,and ſince no Perſon of Senſe and Underſtand- ty had never propos'd them anew in his reveal'd
ing ever call'd it in Queſtion(I). Now this Supreme Word. For Man was under Obligation to obey
Being having ſo form’d and diſpos’d the Nature his Creator, by what Means foever he was pleas'd
of Things and of Mankind, as to make a Sociable to convey to him the Knowledge of his Will.
Life neceſſary to our Subſiſtence and Preſervation; Nor was there any abſolute Neceſſity of a particu-
and having on this account indued us with a Mind lar Revelation to make a rational Creature fenfi-
capable of entertaining ſuch Notions as conduce ble of his Subječtion to the ſupreme Author and
to this End, and having inſinuated theſe Notions Governor of Things. No one will deny but that
into our Underſtandings by the Movement of Na- thoſe Perſons who were not acquainted with the
tural Things, deriv'd from Him the firſt Mover; Holy Scriptures, did yet ſin againſt the Law of
and likewife moſt clearly repreſented to us their Nature: Which we could not affirm, did this Law
neceffary Connexion and their Truth: Hence it derive its Force from the Promulgation made of
follows, that it is the Will of God, Man ſhould it in the Sacred Writings. On this account we
frame his Life according to that Diſpoſition and can by no means admit
of that Notion ſtarted by
Method which he ſeems peculiarly to have aſſign'd Hobbes (a), Since thoſe Laws, ſays he, which we call
him, above the Life of Brutes. And ſince this Natural, are nothing elſe but certain Concluſions appre-
cannot otherwiſe be atchiev'd and compaſs’d, than bended by Reaſon, concerning things to be done and things
by the Obſervance of Natural Law, it muſt be ſup- to be omitted; and ſince Law, in a proper Senſe, is only
pos’d that God hath laid an Obligation on Man the Speech of him, who by vertue of his Right commands
to obey this Law, as a Means not ariſing from hu- Men to execute or to abſtain from ſome Performances ;
man Invention, or changable at human Pleaſure, therefore they are not Laws as they proceed from Nature,
but exprefly ordain'd by God himſelf for the Ac- but only as they are enacted by GOD in Scripture
. For
compliſhment of this Deſign. For when any So we do not take it to be eſſential to a Law, that it
vereign enjoins his Subject the Purſuit of ſuch an be conveyed to the Subje&s Notice in the Form and
End, he is at the ſame time ſuppos’d to oblige him Manner of a Propoſition ; but we reckon it ſuffi-
to make uſe of thoſe Means, without which the cient that the Will of the Sovereign be gather'd
End cannot be attain'd(a). Nor is this the only and underſtood any way, whether by internal Sug-
Proof of Man's being oblig'd to a Social Life by geſtion of the Mind, or from the Contemplation
the Command of God, that, as the Condition of of our State and Condition, and of the Nature of
Mankind ſtands at preſent, we could not ſupport thoſe Affairs and Tranfations which are to engage
and ſecure our felves unleſs this Perſwafion were our Life. And indeed he himſelf acknowledges as
firmly rooted in our Minds; and that by Order of much, in another part of the ſame Work (e), where
the Divine Providence it ſo falls out, that by a na- he obſerves, that the Laws of GOD are declar'd three
tural Conſequence our Happineſs flows from ſuch ways; firſt by the tacite Dietates of Right Reaſon, &c.
A£tions as are agreeable to the Law of Nature, Beſides, the Laws of Nature as they are deduc'd
and our Miſery from ſuch as are repugnant to it: by Ratiocination, cannot be apprehended other-
But it is farther confirm’d by this Conſideration, wiſe than in the Manner of Propoſitions, and
that in no other Animal there is diſcoverable any therefore in this Reſpect they may be allow'd to
Senſe of Religion, or ony Fear of a Deity (6)(2). bear that Name. But as in Civil Laws it matters
To which may be added, that tender Senſe of Con- not, whether they be promulgated in Writing, or
(





09.00

2
(a) Vide M. Antonin. l. 9. J. 1. (0) Vide Protag.de Platon. p. 224. Ed. Wech. Ficin.se (c) Tis remarkable what Tacitus
ſays, An. 6. c. 6. of Tiberius. His own Crimes and Villanies were by his Conſcience turnºd inta the greatest Puniſhments to him. And
it was not without Reaſon, that the great Maſter of Wiſdom us’d to affirm, That could we open the Hearts of Tyrants, we should diſco-
ver the Strokes and wounds of Guilt : The Body not being more cut and tormented with Stripes, than the Mind is with Cruelty, Luſt,
and ill Deſigns. Cicero de Finib. I. 1. c. 16. If there be any who think themſelves ſufficiently guarded and ſecur'd againſt the Diſcovery
of Men, they yet dread the Majeſty of the Gods: And judge all thoſe Cares and Diſquiets which Night and Day, prey upon their minds, to
be ſent from Heaven, as a preſent Puniſhment for their Crimes. Seneca in Lactant. 1. 6. c. 24. Vain Madman. what can it profit thee to
have had no Witneſs of thy Villany, when thou always carrieſt a Conſcience about with thee? Albricus de Deorum. Imagin. A wicked
Man is never Maſter of his own Countenance. Add. Juvenal. Sat. 13. The Advantage of a Good Conſcience, Martial hath thus hap-
pily expreſs’d, L. 10. Ep. 23.
Ampliat ætatis ſpatium fibi vir bonus : hoc eft Good Men live twice: It doubleth every Hour
Vivere bis, vit a posle priore frui.
To look with Joy on that which paſs’d before.
Add. Philoftrat. de Vit. Apollon. 1.7.0.17. (d) De Cive, c. 3. f. ult. (e) c. 4.5. 3.
§. XX. (1) The ſtrongeſt and moſt natural Proofs of this Fundamental Truth may be found in Locke's EŞay of Human Under-
stand. B. 4.6.10, S. 9,6c. See Le Clerc's Latin Treatiſe of Pneumatology, Part 3. c.1.
(2) Επειδή ο άνθρωπG- θείας μέπη μοίρας, ενώ τον μεν δια και το Θεϊ σε γενίαν, ζώων μόνον θεές ενόμιση, και οι χώρει βωμές
7 , eizea eta Sear, i.e. Man is the only one of all the Creatures, who by reaſon of the Relacion which he has to the
Divine Being thinks that there are Gods, and erectech Altars and Images to them. Plato gathered this Norion from Socrates his
Maſter, as it appears from what Xenophon relares, memoirs of Socrates Lib. I. Chap. 4. Numb, 13. See alſo Cicero de Legib. lib. 1.
Chap. 8. and La&antius de Ira Dei, chap. 14. 8. 2.

viva

CHA P. III. Of the Law of Nature in general. 145
viva voce (3) fo the Divine Law is of equal Obli- rightly from God. Thus Plutarch (c) Touriv 65
gation, whether it is diſcover’d to Men either by fore 3 ore Stõ, vì to refJH 263W. To follow GOD and
God himſelf in a viſible Shape, and with the re to obey Reaſon is the ſame Thing. But Tully hath left
ſemblance of a human Voice, or by holy Men, the moſt noble Teſtimony for our Purpoſe, as it is
peculiarly inſpir’d from Heaven; or whether, laft- cited out of his Books de Republicà by Lactantius(d):
ly, it be work'd out by natural Reaſon, from the (5) There is indeed, ſays he, 'a Law agreeable to Na-
Contemplation of human Condition. For Reaſon, ture, and no other than right Reaſon, made known to all
properly ſpeaking, is not the Law of Nature it- Men, conſtant and perpetual ; which calls us to Duty by
felf, but the Means, upon a right Application Commands, and deterrs us from Sin by Threats; and
of which that Law is to be diſcover’d. Nor doth wholė Commands and Threats are neither of them in vain
the Manner and the Method of promulgating a to the Good, though they may ſeem of little Force to the
Law belong to its inward Eſſence and Conſtitution. Wicked. This Law we are neither allow'd to diſannul,
Farther, altho' it ſeem à more clear and a more nor to diminiſh ; nor is it poſſible it should be totally re-
compendious Way of revealing one's Will to ano- vers’d; the Senate or the People cannot free us from its
ther, to force it upon his Senſes by expreſs Words Authority. Nor do we need any other Explainer or Ina
and Speeches : Yet that is likewiſe reckon'd to be terpreter of it beſides our ſelves. Nor will it be different
ſufficiently reveald, which we muſt unavoidably at Rome and at Athens, now and bereafter ; but will
diſcover, if we make Uſe of the Occaſion offer'd, eternally and unchangably affect all Perſons in all Places:
and keep the way that we are put into. And thus GOD himſelf appearing the univerſal Maſter, the uni-
Man, who by the Bounty of his Creator, enjoys verfal King. 'Tis He who is the Inventor, the Ex-
the Faculty of comprehending both his own and pounder, the Enacter of this Law; which whoſoever
other Mens A&tions; and of judging whether or shall refuſe to obey, ſhall fly and loath his own Perſon, and
no they are agreeable to human Nature, cannot
bis thus
but take occaſion (ſuppoſing there are more Men the ſevereſt Penalties, though he eſcape every thing elſe
in the World beſides himſelf ) to obſerve and confi- which falls under our common Name and Notion of Pusa
der how ſome of thoſe Actions do really thus a- niſhment. Sophocles ſpeaks very honourably on the
gree to the Inclination and to the Condition of fame Subject in his firſt Oedipus, Act 3d, p. 187.
Mankind (a):
Ed. H. Steph.
Although to render a Law obligatory there is a
Neceſſity of making it known to the Subject; and
- vócson uffirades, &c.
altho' to deduce the Law of Nature from the Sug-
geſtions of Reaſon, and to apprehend its Founda-
The lofty Laws
tion, and its neceſſary Connexion with the State Deriv'd from Heaven and High Olympian Jove,
of Humanity, be not the Gift of every Perſon; And not the mean Device of Mortal Men.
yet hence it can neither be pretended, that this
Law doth not oblige all Men, or that it may not Mr. Selden, in his Diſcuſſion of this point, hath
be ſaid to be known by the Light of Reaſon. For ſhown (e), that although the Gentiles did acknow-
to give a Law a binding Force, a popular and ſim- ledge the chief Heads of Natural Law to be ſome-
ple Knowledge is ſufficient; nor is an artificial De- times violated through the corrupt Manners of
monſtration and Deduction abſolutely requiſite to Men; and to be (as it were) opprefs’d and ſtifled
this Purpoſe. And altho' 'tis (4) very probable by wicked Ordinances and Confticutions; yet they
that the chief Heads of Natural Law were expreſ- were at the ſame time fully perſuaded that their
ly deliver'd by God Almighty to the firſt Mortals, co durodí nguov, or, what was really juſt and fit to be
and were from them communicated to others by done, did by Order of the Gods perpetually re-
Cuſtom and Inſtitution ; yet the Knowledge of main the ſame, and hold the ſame Force of Obli-
that Law may nevertheleſs be ſtild Natural, in as gation. Whence aroſe that common Opinion a-
much as the neceſſary Truth and Certainty of it mongſt them of the Puniſhment of Wicked Men
may be drawn from the Uſe of Natural Reaſon. in another State; when they had been guilty of
At the ſame time, becauſe thoſe Propoſitions which any monſtrous Offences againſt the Law of Nature.
repreſent to us the Law of Nature, are inſinuated And ſince they thus believ'd the Gods to be the A-
into Mens Minds from the Contemplation of the vengers of its Violation, we may take it for grant-
Nature of Things; on that account they are juſtly ed, that they thought them too the Authors and
attributed and referr’d to God, the Author of Na- Founders of its Authority. On the other Hand,
ture (b).
ſuch of them as had any Senſe of any Virtue, did
The Wiſeft of the old Heathens acknowledg’d as fairly ſuppoſe, that Good Men exerciſing Piety
the Authority of Natural Law, and deriv’d it never faild of the peculiar Countenance and Con-

(a) Add. Dr.Cumberland, c. 1. f. II. &c. 5. f. I.
(4) De 7. N. do G. l. 1. c. 8.
(b) Add. Dr. Cumberland, c.i. f. 10. (c) De Auditione. (d) L.6.c.8.
(3) Theſe words, which are found a little lower, Nor doth the manner - as far as, Conſtitution, may be more properly added
here, as any Man may eaſily diſcern.
(4) See the Extract of an Engliſh Sermon of Dr. Barrow's in Tom. 3. of the Univerſal Library, p. 322.
(5) Cicero's words are, Eft quidem vera Lex, reta Ratio, Natura congruens, diffuſa in omnes, conſtans, ſempiterna, que vocet ad
officium jubendo, vetando à fraude deterreat : quæ tamen neque probas fruftra jubet
, aut vet at ; nec improbos jubendo aut vet ondo movet.
Huic Legi nec obrogari fas est ; nec derogari ex hac aliquid licet ; neque tota abrogari poteft. Nec vero aut per Senatum, aut per po-
pulum folvi hac Lege posſumus : neque eft quærendus explanator, aut interpres ejus alius. Nec enim alia Lex Rome, alia Athenis, alia
nunc, alia pofthac ; sed do omnes gentes, & omni
tempore, una Lex, do ſempiterna, do immutabilis continebit ; unuſque erit communis
quafi magifter do imperator omnium Deus, ille Legis hujus inventor, diſceptator, lator : cui qui non parebit, ipſe se fugiet, ac naturam
kominis aſpernabitur , atque hoc ipſo luet maximas pæna, etiamfi cetera fupplicia, quæ putantur, effugerit.
U
fideration



146
Of the Law of Nature in general. BOOK II.
ſideration of Heaven. (7) Thus lamblichus (a) We pleas’d to aſſign to ſuch and ſuch Performances of
must take this therefore for a certain Truth, that nothing the Laws ſuch perpetual and natural Effets, pro-
properly Evil jhall bappen to a Good Man, either in this ductive of the Good and Profit of Mankind.
And
Life or after it. Nor are the Affairs and Concerns of ſuch theſe are thoſe which Dr. Cumberland calls Natural
a Perſon neglected by the Immortal Deities. And Euripi- Rewards. A third kind of Goods proceed from
des (6) ſays, Good Min do at last obtain what theirVirtue fome certain Actions, either by the Pleaſure of the
bath defero'd: But Evil Men fhall never arrive at any Legiſlator, or by the Covenant and Agreement of
tolerable Degree of Happineſ.. But Mr. Selden farther Men; of which the former are call'd, xar'lEogày
,
Thews (c) it to have been a conſtant Opinion a- Rewards, or arbitrary Returns, the latter more
mongſt the Primitive Chriſtians, that in the Inter- properly Wages
. In the ſame manner may Evils be
val betwixt the Creation and the Publication of divided. Some of them follow the very Nature
the Decalogue, thoſe natural and univerſal Laws and Condition of Men; (if we abſtract the firſt
were given to Mankind, which were afterwards Cauſe and Original of that Condition; ) or they
inſerted in the Mofaical Conſtitutions. Hence happen without the particular Default of him
was drawn that moſt excellent Obſervation of St. who ſuffers them. Which we may, in a found
Chryfoftom (d), that to the Commandments about Senſe, call Fatal Evils, oppoſing the Word Fare,
the honouring of Parents, about Murder, about nor to the Divine Diſpoſal, but to the peculiar
Adultery, and about Theft, God was therefore Faultineſs of the Perſon on whom theſe Evils light.
pleas’d to add no Reaſon, becauſe thoſe Duties Others do, by Natural Conſequence and Connex-
were already well known and underſtood, as being ion, proceed from Sins; which are by fome Au.
main Points of the Law Natural; whereas to the thors term’d Natural Puniſhments
. Laſtly, others
Ordinance concerning the Sabbath-day, a Reaſon there are which ariſe from Sins, by the peculiar
of the Precept was deſignedly affix’d, upon account Determination and Diſpoſal of the Legiſlator be-
of its being poſitive and arbitrary (e). To conclude, yond the manner of Natural Effects: In which the
all Legiſlators have believ'd that their Laws, of Quality, the Manner, the Place and Time of the
what Kind foever, would derive the greateſt Evil depend on the Legiſlator's free Pleaſure. And
Strength and Authority from the Succours of Reli- theſe are what we would properly call Puniſhments,
gion: As appears from their ſolemn Cuſtom of or (in a looſer Senſe of the Word) Arbitrary Pu-
uſhering in all their Conſtitutions with the Wor- niſhments.
ſhip of the Gods (f).
XXI. It is well worth our while to treat more Thus much being premis’d, we proceed to re-
diftin&tly and more carefully concerning the Sancti- mark, that altho' the Omnipotent Creator might
on of the Law of Nature. And to this purpoſe, by vertue of his Sovereign Right have requir'd
beſides what we have formerly deliver'd about the our Obedience, without making any good Fruit
San&tion of Laws in general, we will firſt of all proceed thence to our own Advantage : yet it hath
obſerve, that the Goods and Evils which happen pleas’d his infinite Goodneſs, ſo to order and conſti-
to Man, may be both divided into three Ranks or tute the Nature of Things and of Mankind, that
Claffes. And as for the Goods, ſome of them pro- by a kind of Natural Connexion ſome Goods
ceed, either from the free and liberal Donation of fould attend the Obfervance, and ſome Evils the
the Creator, or from the voluntary Benevolence Tranſgreſſion of Nature's Laws. Thus a conſtant
of other Men, or from the Induſtry of the Acquir- Obedience, is follow'd by (1) Serenity and Secu-
ers, to which Induſtry they determin’d themſelves rity of Conſcience, join'd with a good and cer-
by their own free Choice. And it is plain, that
And it is plain, that tain Aſſurance; by a good Frame and a ſettled
this firſt fort are not owing to the Obſervation of Tranquility of Mind (8); by the Preſervation of
the Laws. Other Goods there are which flow, by a the Body from many Evils, not fatal : Beſides an
natural Conſequence, from fome Axions which infinite Number of Advantages, which may be ob-
the Laws command: The Creator having been tain'd by the mutual Benevolence and good Offi-



(a) Protrep. c. 13
(b) Euripid. Ion. v. 1620, &c.
(c) See Book 7. Chap. 9, 10.
(d) Orat. 12.
ad Pop. Antiochen. (e) Add. Selden, ibid. Chap. 9. and Lib. 7. Chap. 9, 10, (f) See the Form which introduceth Za-
leuchus's Laps in Diodor. Sic. l. 12. c. 216
(8) See Archbiſhop Tillotſon's 38th Sermon, Folio, pag. 451, &c. See likewiſe
page 51. and 74, &c.
(7) Jamblichus's Greek is, “Ev 77 šv rīto darosios ou de angels, on 8 x tészy ävdee dija Jõ xoxòo ed èv, šte Jõpe, šte tend thousle,
mode dueneitar od few trail Téty medyua Tao Thele very, Words Plato alſo makes Socrates to ſpeak, at the End of his Apolegy,
p.41.' and Cicero has tranſlated them, Tuſc. Quæſt. Lib. I. Chap. 41. Euripides's Words alſo
are;
Σέβονία δαίμονας θαρρείν εων
Εις τέλΘ- οι μεθλοι τυγχάνκσιν αξίων
Οι κακοί ', ώασερ πεφύκασ’ αποτ' άαeάξιαν αν.
G. XXI. (1) “ It is certain (ſays Montagne) I know not how to expreſs the Satisfaction that we enjoy in ourſelves by well-
“ doing, nor the generous Bravery that accompanies a good Conſcience. A Soul couragiouſly Vicious may provide for its Secu-
“rity at all Adventures, but it can't have the pleaſure and Satisfaction. 'Tis none of the leaſt Comforts, that ic finds itſelf free
66 from the Infection of a corrupt Age, and can ſay in itſelf, if any Man could look into my Breaſt, he ſhould not find me guilty
“ of troubling or ruining any Man, neither of Revenge, nor Envy, nor breach of the publick Laws, nor of Diffeiſin, nor Dí-
« ſturbance, nor ill Language; and tho' the Licentiouſneſs of the Time allows and inſtructs, yet I have not put my Hands to che
“ Goods or Purſe of any Man, nor eat of any Man's Bread but my own, either in War or Peace, nor made Uſe of any Man's La-
« bour without Wages. Theſe Teſtimonies of Conſcience are pleaſing, and 'cis our Benefit that this Comfort is Natural, and the
" Reward which we can never want. To expect the Reward of virtuous Actions from the Commendation of Men, is an uncertain
1 and troubleſome Foundation." Eſays, Lib. 3. Chap. 2. p. 596.

ces
CHAP. III.
Of the Law of Nature in general.
147

xxxi, 22,
&c.
7015 egéronlas, é nadov EHV T Trovnpoyº ina's X izgu ishu o [for
ces of other Men (a)(2). On the other hand from yond Diſpute, that more Advantages moſt ſurely
the Violation of the ſame Laws, ariſe by a natural and certainly follow from good and juſt Proceed-
Connexion, Diſquiet of Conſcience, Diſturbance ings, than we can in reaſon expect from the oppo-
and Degeneracy of Mind, Deſtruction of the Bo- ſite Vices (c). And altho' the whole Train of thoſe
dy, and numberleſs Evils
, which may be occaſion'd Goods do not attend on ſuch a conſcientious Be-
by che withdrawing of other Mens Aſſiſtance, or haviour, as in the Nature of Things they were
by the Violence of their provok'd Revenge (3) (b). diſpos’d to do (4), yet we have a fair Probability
Now altho' theſe Rewards, and theſe Puniſh- that many of them will not diſappoint us; at leaſt,
ments, are by ſome imagin'd not to proceed with that we ſhall obtain a greater Share than we could
Certainty enough from good and evil Actions; be- have hop'd for from a Courſe of Diſhoneſty and Wic-
cauſe many Perſons in Return for Benefits receivę kedneſs. And ſo by this means we provide much
only Hatred, Envy, or Injury; whilft others on better for our own Security, and have much fairer
the contrary do ſecurely enjoy the Fruits of their Grounds to hope that others will, in their turn, be
Wickedneſs, without Moleſtation or Puniſhinent ; alike ready to promote our Intereſts and Concerns;
whence we cannot be infallibly aſſur'd before-hand than if, laying aſide all Regard to our Neighbours,
that our good Deeds will be equally repaid by o we directed every thing towards our own private
ther Men ; (tho the Fruit which ariſes in our ſelves Advantage; and therefore infinitely better than if,
from ſuch honeſt Practices is not capable of Hin- by the Exerciſe of Violence or of Deceit, we endea-
drance or of Interruption :) yet thus much is be- vour’d to make our own Gains and Profits out of
„(2) Seneca de Ira 1, 2, C. 23; calls the unmou'd. Tranquility of a happy Mind A Great Resyard. Idem Ibid. The way to Happineſs is
plain and ealy. For what can be more comfort able to the mind than Calmne}}? What more troubleſome than Paſſion? What more at rest
than Clemency? What ſo full of Bufaneß as Cruelty? Modeſty and Chaſtity enjoy a perfe&t Leiſure, whilst Lust is ever tir’d with laborious
Purſuits. To, conclude, the Poffefion of every Virtue ftands us in little Cost on Trouble, but Vices are all Chargable to be kept. Add. de
Irâ, 1.2. c. 30. & ult. and l. 3. c. 5, 26. See the Story of Hercules, at the two Ways in Xenoph. A pomnem. I. 2. Prov. viii. 19. X. 9.
xii , 5, 10, 25.
ing of Tully, ad Attic
. 1.9. Ep. 12. on a profligare Wretch, Viciſcentur illum mores ſui, His own Praćtices will be reveng?d upon him.
. his :
See Prov. v. 9, 10, 11, vi. 33, 34, 35, xii. 13. xiv. 14, 32, 34. sviia 13. xix. 29. xx. 1. xxii. 5. xxiii. 20, 28, &c. Sirac. xix. 3.
(c) See Prov. xi.31. Vid. Iſocrat. de Permutatione, p. 576.
(2) Seneca's Words are,
expe&tat
Nec ut quibuſdam
di&tum est, arduum in virtutes, com aſperum iter eft; plano adeuntur. Non vane vobis au&tor rei venio.
vane vobis au&tor rei venio. Facilis eſt ad beatam vitam
inite modo bonis aufpiciis, ipſiſque Diis benè juvantibus, Multo difficilius est, facere iſta que facitis. Quid enim quiete otiofius eſt animi, quid
Srâ laboriofius? quid clementiâ remiſſzus, quid crudelitate negotiofius? Vacat pudicitia, libido occupatilſina est; omnium denique virtutum
tutela facilior est
, pitia magno coluntur. We may add to this Montagne’s Meditation, Elay, Lib. 1. Chap. 25., * Virtue is not, as
the Schools ſpeak, placed on the top of a Two-headed Mountain, rough and not to be afcended. They that purſue it may at-
“ tain it. On the Reverſe, ſhe has her Abode in a fine fertile and pleafant Plain, from whence ſhe beholds all Things below her;
6 and if we labour to find her, our Way lies through ſhady and green Roads, ſweet, flouriſhing, and pleaſant; of an eafy and
“ ſmooth Afcent, like that of the Celeſtial Vaults
The Price and Excellency of Virtue conliſts in the Eaſe, Pleaſure,
“ and Profit of the Practice. The Difficulty is ſo little, that an Infant may exerciſe it as well as a Man, and the Simple as well
as the wife. The Rule is its chief Inftrument, and not Force. Socrates her firſt Favourite, willingly left his Buſineſs to glide
" aloug in Eaſe and Activity in her Paths. She is the nurſing Mother of all Pleaſures, The makes them ſuitable, and renders them
“ ſure and ſafe, and moderating them keeps us in Breath and Appetite. Abridging us of what ſhe refuſes, the makes us more
eager
of what ſhe allows us, and ſhe allows us all Things that are ſuitable to our Nature plentifully, to Satiety, at leaſt, if not to
Wearineſs, like an indulgent Mocher, unleſs we will fay that a Regimen of Sobriety and Temperance is an Enemy to Pleaſure.
" If a common Fortune befals it, ſhe can make her Eſcape, or paſs through it, and make another, not more fleeting and tranſito-
ry. She knows how to be rich and powerful, and lie in Beds of Roſes. She loves Lite, Beaucy, Fame and Health, but her
“ peculiar Office is to teach us to uſe our Goods regularly, and to ſpend them freely; an orice more noble than ſevere, without
“ which the whole Courſe of our Lives is churliſh, curbulent, and deformed, and can we do leſs than confine theſe Rocks, Thicker
“ and Monſters? " See alſo Mar. Antonin. Lib. 5, 9.
(3) “ That is not Vice, really lice, which offends not, and in a true Judgment does not aceuſe. For there is ſuch an apparent
“ Deformity and Inconvenience in it, that they ſpeak with Reaſon who ſay, that it is principally produced by Beſtiality and Ig.
“norance, ſo hard is it to know it and not have it. Malice fucks up the greateſt part of the Venom and poiſons it,
an Ulcer in the Fleſh, and Repentance in the Soul, which always tears and wounds it felf, for tho' Reaſon extinguiſhes almoſt
“all other Griefs and Sorrows, yet it begers Repentance, which is ſo much the niore grievous becauſe it is bred within, as the
“Cold and Hear that affects the Sinews is always more ſharp than that which outwardly affects.” Montagne, Lib. 3. Chap. 2. I
could not forbear copying out theſe fine Thoughts, of which Seneca alſo hath one, Epift. 81. Qumadmodum Attalus nofter dicere
folebat, malitia ipſa maximam partem veneni ſui bibit.
(4) A Paffage of Iſocrates in Orat. de Permutat, is worth our Notice here, where he ſays, Owoudl w dok nis dictul 78s Thy
xi > x aj , 7 (
To it fhould be read, and not ήγεμένες] κ α θεοίς
, και ως ανθρώποις πλέον οισεται ή άλλων. εγω μεν ο οίομαι, τέτας μόνες,
ών δεί πλεονεκτείν, τες και άλλες δε γινώσκειν εν ών βέλπόν όξιν ορώ 8 τες με την αδικίαν προτιμώνας, και το λαβών τι σ' αλλο-
τείων μέμφον αγαθόν νομίζοντες, όμοια προθαι τοις δελεαζομένους και ζώων, και καταρχάς μεν πολαύονται ών άν λάβωσιν ολίγω
δ' ύπρον εν τοις μεγίσους κακούς όντα της και μεθ' ασεβείας, και δικαιοσύνης ζώνlας, έντε τοις παρέσι χρόνοις ασφαλώς διάφονίας,
και οτι το σύμπαν τα αιωνε ηδιες τις ελπίδας έχονlας, και ταυτ' ε μή και πάντων όπως είθισται συμβαίνειν, αλλά το γ' ώς ότι το πολύ
τέτο γίγνεθαι και τρόπον, χρή και τις ει φegνένας, έπαδή το μέλλον αν σωοίσειν και καθορών, το πολλάκις ώρελίν τύτο φαίνεθα
Φροαιρεμένες. Πάντων δι' άλογώτατον πεπόνθασιν, όσοι κάλλιον μεν επιτησάμα νομίζεσιν τή, και θεοφιλέτρον, τα δικαιοσύνης της
αδικίας και χεiegν ' οίονα βιώσεθαι της ταυτή χρωμένες, και η πονηeίαν πειρημένων. which is thus Englified, “I wonder that
any one can be perfwaded, that they who apply themſelves conſtantly to Piery and Juſtice ſhould think themſelves more unhap-
ру than Sinners, and don't promiſe themſelves more Advantages both from GOD and Man. As for me, I believe that only
good Men enjoy moft plentifully what is worth ſeeking, and Sinners, on the contrary, know nor their own true Intereſts
. For
whoever prefers Injuſtice before Juſtice, and ſuppoſes his chief Happineſs to conſiſt in extorting other Mens Goods from them,
is, in my Judgment, like the Beaſts that bire at an Hook, who are pleas’d at firſt with the Sweetneſs of the Eait, buc foon after
« find themfelves embroiled in very great Troubles. But, on the other Hand, they that apply themſelves to Piety and Juſtice,
are not only in Safety for the preſent, bur meer with agreeable Hopes, that all their Life ſhall be happy. I own, this does not
* always happen, but Experience verifies it to be true for the moſt part. Now in all things wherein we can’ infallibly foreſee
& the Succeſs, a wiſe Man will chooſe that fide which commonly proves moſt advantagious. But nothing is more unreaſonable
& chap their Opinion tyho believe that Juftice is ſomething fine and more agreeable to the Nature of the Gods than Injuſtice,
and yet imagine, that they who apply themſelves to the firſt, ſhall be more unhappy than thoſe who give themſelves up to the
U 2
the
Vice leaves
di larrer,
148
Of the Law of Nature in general.
Book II.
the Loſſes of other Men. By this way of reckon- and Forecaſt, and permit ourſelves to be driven at
ing therefore it appears, that the Value of that Re- random by the blind Guidance of Chance. But
ward which will follow upon a good Action, doth, this point is indeed as clear as any thing in Na-
all things rightly conſider’d, exceed the Gain of ture, and hath been made out to full Advantage
the oppoſite illegal Practice.
by Dr. Cumberland.
We deſire it ſhould be well obſerv'd, that whilſt There remains therefore this only Queſtion
we are here treating about the Natural Effects of farther, whether or no beſides the Natural Effects
Good and of Evil A&tions, we do not by any means of Evil Actions, and beſides thoſe which ariſe
reckon amongſt theſe Effects thoſe kind of Goods from the Sanction of Civil Laws, there are ſtill
which we but now rank'd in the firſt Claſs, and others in reſerve appointed by God's free Plea-
which our own Prudence and Induſtry either can- ſure, and to be (5) inflicted by virtue of his So-
not obtain, or cantiot avoid. Such Things both vereign Prerogative; or whether God hath not
may, and generally do happen alike to Virtuous added to the Sanction of the Laws of Nature fome
and to Vicious Men. Thus a wicked Perſon may Arbitrary Puniſhment : Eſpecially ſince it is ap-
by the Gift of Nature, poſſeſs a vigorous and a parent, that the Natural Conſequences and Effects
healthy Body, while perhaps a Man of Honeſty of Evil Adions are frequently interrupted, and
and Piety labours under a weak and crazy Confti- that the Wickedneſs of many Men ſeems to turn
tution. And thus Death lays hold promiſcuouſly to their Gain and Advantage. Now what the
on the Juſt and on the Vile. But the only Goods Scripture hath declar'd in this Matter, is plain and
we here allude to are ſuch as it is in the Power of beyond all Diſpute. But waving that Authority,
Human Reaſon to provide for us ; and which do the affirmative side of the Queſtion may be defen-
therefore, in fome meaſure, depend upon our ded from ſeveral Confiderations : As from that
own Ac. Now altho' ſome part of thoſe Goods moſt ancient and moſt univerſal Tradition, con-
which we intend by the Obſervance of the Law cerning a certain Revenging Divinity (6), and
of Nature to obtain from other Men, has a De- the Pains after Death. Of which Opinion we
pendance on their Kindneſs and on their Probity, have two fair Inſtances in the Caſes of Jonas and
and ſo is not abſolutely in our own Power; yet, of St. Paul ; (Fonas i. 7. Afts xxviii. 1, c.) for
for as much as in all Probability, they have the there being no natural Connexion and Conſe-
fame End and Deſign with our ſelves, we have at quence, either between Fonas's Crime and the
leaſt fair reaſon to hope for and to expe&t ſuch Tempeft, or between the Fa£t of Murther and
good Uſage and Retribution from them, tho' we the biting of the Viper, the People who were pre-
cannot give ourſelves an infallible Aſſurance of it, ſent at both Accidents, immediately ſuppos’d that
before it comes. Scarce any Man hath met with God Almighty did thus extraordinarily interpoſe
fo many Enemies in the World, as not to own his Hand to puniſh ſome heinous Wickedneſs (a).
himſelf indebted to ſome Benefactors. And we Moreover, it being moſt certain that it is the Di-
fee that the Evils which Men procure to one ano vine Pleaſure thoſe Laws ſhould be obey'd, and
ther, have never been able to prevail to the utter nor leſs manifeft, that the Natural Effects of them
Ruine and Deftruétion of Human Race: Which is may be (partly at leaſt) eluded; it is highly pro-
a plain Evidence, that Good Actions have oftner bable, that God will find ſome other way of pu-
attain'd their juſt End and Reward, than they have niſhing ſuch Offenders : Eſpecially ſince the
fail'd and been diſappointed of it. On the other Gnawings of Conſcience, and the want of Quiet
fide, altho' a Perſon who neglects or diſobeys the and Security, which conſtantly attend Evil Men,
Law of Nature, may ſometimes, by an unaccoun- do not always riſe to ſuch an afflicting degree, as
table Concourſe of External Cauſes, receive a to ſeem a ſufficient Plague and Penalty for their
whole Flood of Goods and Benefits from other Crimes (b). But becauſe whatever Arguments
Men ; yet becauſe in this Caſe thoſe Effects are, we can alledge à priori, will not amount to a De-
with regard to him, meerly contingent, and do monſtration, but only to a high Probability; and
very ſeldom fall our in ſuch a manner, we may becauſe this Arbitrary Puniſhment preſuppoſes
conclude, that Nature and Reaſon did not pre- ſome poſitive Determination of the Divine Will,
fcribe, much leſs command the Means by which which we can hardly come to a knowledge of
he atcain'd, only caſually, to ſuch an End. Rea- without a particular Revelation; and ſince our
fon, on the contrary, moft clearly ſhews us, that Induction and our Experience are at preſent im-
we take a much more probable way to Happineſs
, perfect, we can ſcarce avoid confefling, that to
by acting on a fertled Deſign, and by applying thoſe who ſee only (7) by the Light of Natural
the beſt Means we can to the gaining of our Pur- Reaſon, this Controverſy muſt ſtill appear in
poſe, than if we ſhould throw aſide all Counſel ſome meaſure dark and obſcure,
XXII. As




1

(a) Add Grot. de Veritate Rel. Chr. L. 1. f, 19, 20, 21, 22. L. 2. f. 9. (6) Add Dr. Cumberland, C. 5. f. 25,
(5) Our Author expreſſes himſelf thus ; Manu velut Regiâ exercendo; in which he alludes to an Expreſſion of the Roman
Lawyer Pomponius, ſpeaking of the firſt Roman Kings who governed all Affairs as they thought fit, becauſe they had no written
Law; Et quidem initio civitatis noſtræ Populus fine Lege certà, fine jure certo primum agere inſtituit, omniaque MANU A REGIBUS
GUBER N A BANTUR. Digeft
. Lib. I. Tit. 2. De Origine Juris, &c. Leg. 2. §. 1. See Tacitus's Annals
, Lib. III. Chap. 26.
(6) which was call’d Nemeſis. [or síxx) and was thought to have the Care of puniſhing the Crimes which were unpuniſh'd
upon Earth; either chro’ Negligence, or thro' want of Power, of this there is a fine Deſcription in Ammian. Marcellin. B. 14.c. 2.
(7) This is true, but not to leſſen the Efficacy of the Laws of Nature, fo far as they are known by the Light of Reafon alone,
let us add ſome Reflexions, and to this End, I think I can't do berrer, than to make uſe of the Words of a great Philoſopher
of this Age, whom I have already quoted in ſeveral places, who thus ſpeaks ; “ The Rewards and Puniſhments of another Life,
“ which God has eſtabliſhed to give greater force to his Laws, are of Importance ſufficient to determine our Choice concerning
6 all the Good or Evil Things of this Life, when we conſider the Happineſs or Miſery to come as poſſible, of which none can
doubt. Whoever, ſay I, agrees that an excellent and infinice Felicity is a poſſible Conſequence of a good Life which he hath
"Jiyed
CHA P. III.
. Of the Law of Nature in general.
149
XXII. As to the matter of the Law of Nature, make Wills, or to Buy and Sell; yet Proprieties
Grotius obſerves (a), that many Things are referr'd being ſuppos’d, as in the former Caſe, it naturally
to this Law not properly but reductively, for as much follows, that a Perſon at his Death ſhall have the
as the Law doth not oppoſe or forbid them. As Power of diſpoſing of his own Goods; and that
thoſe Things are term’d Juſt, not only which are Men, by the Intervention of Bargains and Con-
in ſtrict Juſtice due, but which Juſtice doth not tracts, ſhall be at Liberty to alienate ſuch Things
contradict: (tho' it would be better to call ſuch as belong to themſelves,
as belong to themſelves, for the Procurement of
Things permitted, than plainly just.) But perhaps thoſe which are in the Poffeffion of others.
this Diſtinction of Grotius might be more conve Grotius farther obſerves on this Subject (2), that
niently applied to thoſe Conſtitutions which ac- ſometimes by abuſe thoſe Things are referr’d to
cording to the particular State of Men, the Deſire the Law of Nature, which Reaſon indeed ſhows
of Peace and Tranquillity hath at any time intro- us to be Honeſt, and better than their Oppoſites,
duc'd: as likewife to the Actions undertaken in tho they are not properly matter of Debt and
Conformity to fuch Conſtitutions. For we ſhall of- ftrict Obligation. Of which kind are many high
ten hear the Lawyers debating fuch Caſes as theſe, and uncommon AEts of Liberality, of Mercy and
whether the Pofjeſſion of Things, whether Preſcription, Clemency ; as likewiſe whenever a Man recedes
whether the making of Wills, and whether buying or from any part of his Right, not being compelld
felling, do belong to the Law of Nature, or not. by Neceflity. Theſe Matters St. Paul illuſtrates in
Which Doubts cannot eaſily be reſolv'd, unleſs we his firſt Epiſtle to the Corinthians, Chap. vi. v. 12.
diftinguiſh between choſe Things which the Law Chap. vii. v. 38. Chap. x. V. 23. (b).
of Nature determines, by commanding or forbid Socrates (c), when a Rafcally Fellow had offer'd
ding them : and thoſe things which Men have him an Injury, would not complain of it to the
been induc'd to ordain for the neceſſary Promo- Judge, but reckon'd it (as he ſaid) no more than
tion of Society (1), the Liberty of doing which if an Aſſe had kick'd him. And Cato, as Seneca
flows immediately from this Human Ordinance tells us, when he receiv'd a Blow in the Face,
and Inſtitution : and then we ſay of theſe laſt was ſo far from reſenting the Affront, and from
Things, that they belong to the Law of Nature defiring Satisfaction, that he would not venture
by way of Reduction. Thus the Dominion or the fo far as to forgive it, but denied that any ſuch
Poffefſion of Things, doth not immediately ſpring thing had been done. Thinking it better not to
from Nature, nor can we alledge any direct and acknowledge the FaƐt than to proſecute it.
expreſs Precept for its Introduction : yet it may XXIII. There is ſtill one Queſtion behind,
be ſaid in ſome meaſure to be enjoin'd by Natural which requires our Determination. Whether or
Law, in as much as when Mankind began to niul no there be any ſuch thing as a particular and
tiply in the World, it was requiſite to their peace- poſitive Law of Nations, contradiſtinęt to the Law
able Condition, that the Primitive Communion of Nature. Learned Men are not come to any
of Goods ſhould be laid aſide. Thus Preſcription is good Agreement in this point.
Many aſſert the
not plainly commanded by the Law of Nature ; Law of Nature and of Nations to be the very fame
yet upon Suppofition of Things being divided in- thing, differing no otherwiſe than in external
to diſtinct Proprieties, the Peace of Mankind Denomination. Thus Hobbes (e) divides Natural
ſeems to favour it; left otherwiſe the Titles to Law, into the Natural Law of Men, and the Natural
Things ſhould remain always in doubt. Thus, Law of States, commonly called the Law of Nations.
laſtly, Nature doth not poſitively enjoin us to He obſerves, That the Precepts of both are the Same :





"lived here upon Earth, and an Oppoſite State a poſſible Recompence of an Irregular Life, ſuch a Man muſt neceſſarily own
“ that he judges amiſs, if he concludes from thence, that a Good Life, joined with a certain Aſſurance of Eternal Felicity
“ which he may attain, is not preferrable to a Wicked Life, accompanied with the Fear of luch horrible Miſery, into which ir,
" is poſſible the Wicked Man Thall one day fall, and where nothing can be his Comfort but the terrible and uncertain Hopes of
" being Annihilated. All this is very evidenc, ſeeing Good Men have nothing to receive in this world but Evil, and Sinners are
“ in a perpetual Felicity; which yet often happens otherwiſe, inſomuch as Sinners have no great Reaſon to boaſt of their Eſtate,
in relation to the Good Things that they actually enjoy; or rather, if we conſider all Things well, they have, I believe, the
s' worſt part, even in this Life ; but when we put Infinite Happineſs into the Ballance with Infinite Miſery, if the worſt happen
a to a Good Man, which is that he is Miſtaken, it is the greateſt Advantage that the Sinner can have; but if the contrary hap-
what Man would run the hazard, if he be a Perſon of any Thought? Who, I ſay, will be ſo much a Fool, as to expoſe
himſelf to the danger of being poſſibly infinitely Miſerable, whereas he can get nothing by ir bue a pure Negative if he eſcapes
the Danger ? But, on the contrary, the Good Man hazards a Negative only againſt an Infinite Happineſs, which he ſhall attain
if his Expectations fucceed. If his Hope be well grounded he is eternally Happy, and if he be Miſtaken he is nor unhappy, be-
"cauſe he'll be ſenſible of nothing. But, on the other fide, if the Sinner judges rightly he is not Happy, but if he be Miſtaken
" he is eternally Miſerable. Is not this one of the moft viſible Irregularities of Thought that any Man can fall inco, nor to ſee ac
the firft fight
, which Side ought to be preferred in this controverſy ? Mr. Locke's Philof. Efſay upon Man's Underſtanding, Lib.2.
Chap. 21. $. 70. This is the reſult of alinoſt all Mr. Paſcal's Reaſonings in his Meditations, Chap. 7.
The Reader alſo would do
well to read Mr. Clerc's Pneumatology, Chap. 9. Sect. 2. S. 9. to the end of the Chapter ; and Mr. Bruyer's Characters, or Manners
of the Age, in his Chapter of Brave Spirits, p. 560, &c. See alſo a Paſſage out of Arnobius, quoted above, Lib. 1. Cbap. 3. $. 7

pen,
Note 5
(a) L. 1. C. I. f. 1o. n. 3.
(6) So Ulpian, (L. 4. [ 1. D. de alien. jud. mut. caus.) The Pretor doth not diſapprove of his
Proceeding, who choſe rather to loſe his Right, than to engage in long Suits and Contentions. This averſion to Strife doth by no means
deſerve Reproof.
(c) See Plutarch of the Education of Children, p. 10. C. Ed. Wech. (d) De Ira, L. 2. C.32, doc.
de Conſtant. Sapientis, C. 14. (e) De Cive, C. 14. 4, 5.
§. XXII. (1) There are two forrs of Duties preſcribed by the Law of Nature, taken in its full extent, the one flowing from
the natural and primitive Conſtitution of Man immediately, and the other ſuppoſes humane Eſtabliſhment. Theſe laft are but
the Conſequence of the former, or a ſuitable Application of the General Rules of the Law of Nature to the private Condition,
and diverſe Circumſtances of every one. See s. 15. above, Note s. and the laſt Paragraph of chis Chapter. We may obſerve
the ſame in all the Duties, particularly, of which this Author treats.
(2) See above, Lib. I. Chap. 2. $. 8. Note 5.
But
150
Of the Law of Nature in general.
Book IT.
But that for as much as States when they are once in and others are refer'd to the Law of Nations, as
ſtituted, aflume the Perſonal Proprieties of Men, bence the ways of acquiring things, the Buſineſs of Con-
it comes to paß, that what, speaking of the Duty of tracts, &c. do indeed belong either to the Law
particular Men, we call the Law of Nature, the Same of Nature, or to the Civil Laws of thoſe Coun-
we term the Law of Nations, when we apply it to whole tries where they are obſerv'd: Many People and
States, Nations, or People (1 ). This Opinion we, States agreeing in ſuch Points, which otherwiſe
for our part, readily ſubſcribe to : Nor do we con do not depend on the Univerſal Reaſon of Man-
ceive, that there is any other Voluntary or Poſi- kind. Now it is not proper or fair to conſtitute
tive Law of Nations, properly inveſted with a theſe as a peculiar and diſtinct Species of Law;
true and legal Force, and obliging as the Ordi- in as much as the Reaſon why ſuch Conſtitutions
nance (2) of a Superior Power (a). And thus we are common to many Nations doth not ariſe from
do not really differ in Judgment from thoſe who any mutual Covenant or Obligation, but is wholly
are more inclin'd to call that the Law of Nature to be attributed to the particular Pleaſure of the
which conſiſts in a Conformity to Rational Na- ſeveral Legiſlators, who by accident agreed in
ture, and that the Law of Nations, which flows theſe Ordinances, without the leaſt regard to one
from the Conſideration of Human Indigence, the another. And therefore this kind of Cuſtoms and
Relief of which ſeems to be the main end and de- Decrees, may be, and frequently are, alter'd by
ſign of Society. For we, as well as they, deny one People, or Kingdom, without adviſing with
that there is any poſitive Law of Nations proceed their Neighbours.
ing from a Superior. And whatever is deducible Nor is Feldenius's Diſtinction to be deſpis'd,
from Reflections on the Indigence of Human Na- who in his Obſervations on Grotius (b) tells us, that
ture, we refer immediately to Natural Law: only the Roman Lawyers, by the Law of Nations (3),
we were unwilling to define and explain this Na- underſtood the Power and Liberty which Stran-
tural Law by a Conformity to Rational Nature ; gers and Foreigners were allow'd to tranfact Mac-
becauſe by this means we ſhould eſtabliſh Reaſon ters in the Roman State ; and by the Civil Law, that
for the Rule and Meaſure of itſelf; and fo this way which was proper to the Citizens only, all Foreign-
of demonſtrating Nature's Laws would run round ers being excluded from its Benefit. That on this
in a Circle.
account (4) Wills and Marriages were ſaid to be of
Moſt of thoſe Matters which by the Civilians the Civil Law, and Contracts or Bargains , of the




quire him.
(a) Add Boecler, iu Grot. L. 1. C. 1. f. 14. and in L. 2. C. 4. 1.9. (6) L. 2.C.2. 1. 20. and C. 8. f. 1.
S. XXIII. (1) It is poſſibly from this diſtinction of the Law of Nations from the Natural Law, that we are accuſtomed to
judge otherwiſe of the Actions of Princes, or Commonwealths, than of Private Perſons, as Mr. Bernard has obſerved in relating
Mr. Buddæus's Words, as a good and ſmart Nocion, in his Elemen. Philoſoph. Pra&t. p. 236. I Thall give you them in the Extract
made of them in the News of the Republ. of Letters, March 1704. “ If one private Perſon offends another without Cauſe, we
"call that Action Injuſtice, but if one Prince encroaches upon another without Cauſe, by Invading his Dominions, by robbing
с his Subjects, and plundering his Towns and Provinces, it is called War, and 'twere too much Boldneſs to call it Unjust, To
o break Bargains made and agreed on, is a Crime between one Man and another : but among Princes, to break the moſt folemn
“ Alliances, is Prudence, i.e. the Art of Governing 'Tis true, they always alledge ſome plauſible Pretences, but they matter
- nor whether they are believed Juft or Unjuſt. Be they called Chears, Frauds, Lyes, Double dealings, Rapine, Theft, or the
“ like Crimes, which are abhorred in the Common Sort, all the World will commend, or at leaſt excule them, if a Prince or a
" whole Nation commits them."
(2) There is neither a Superior nor Inferior. All People are naturally Equal, and conſequently no one People can impoſe Laws
upon another, much leſs can they all together impoſe Laws upon themſelves. But if we ground this pretended Law of Nations
upon the Conſent or Agreement of the People, we run from our Subject ; for beſides that there is a difference between an Agree-
ment and a Law, this would not produce a particular Law diſtinct from the Natural, but it muſt be referred to that general Law
of Nacure which obliges us to keep all Covenants. Further, Neither all People, no nor the greateſt and more civilized part,
did ever yet agree together to obſerve thoſe ſort of Cuſtoms which are faid to belong to the Law of Nations ; nay, chere is not
ſo much as One, in which they exactly agree in the practice of it. How they become Obligatory ? See Mr. Titius's Obſervat. on
Pufendorf, XCI. num. 14. Mr. Buddeus's Elemen. Phil
. pra&t. p. 206, 207. as alſo a Diſcourſe de Lytro, Sect. I. S. 2, &c. in Tom. I.
of the Comment. & Opuſc. of Mr. Hertius. The ſecond of theſe Authors had occaſion to obſerve, after he had created of the
Law of Nature, the Application that people might make of it one to auother, ſo far at leaſt as the thing would permic and re-
(3) 'Tis not exactly the Notion of the Roman Lawyers, for they underſtand by the Law of Nations, properly ſo called, that
which the Light of Natural Reaſon has eſtabliſhed among all Men, and ſo is common to all Nations, i. e. as the Definition ſuppo-
ſes, to all thoſe that follow the Light of Reaſon. It chiefly conſiſts of ſuch Things as the Neceſſities and Buſineſs of Life oblige
us to eſtabliſh, for we refer to it Civil Government, Propriety of Goods, all Contracts almoſt, Slavery, and the Freedom of Slaves,
the Rights of Wars, doc. Quod verò Naturalis Ratio inter omnes homines conſtituit, id apud omnes populos peræquè cuſtoditur, vaca-
turque Jus Gentium, quafi quo jure omnes gentes utantur Nam uſu exigente, lo humanis neceffitatibus, gentes humana jura
quædam fibi conftituerunt. Bella etenim orta ſunt, do captivitates ſecuta do ſervitutes. ---- Et ex hoc jure gentium omnes pene
contractus introdu&i funt.
Inſtit. Lib. 1. Tit. 2. S. 1, 2. Manumiſſiones quoque furis Gentium ſunt
Ex hoc Jure
Gentium introduéta bella : diſcret e gentes : regna condita : dominia diſtin&ta : agris termini poſiti: ædificia collocata : commercium,
emptiones, venditiones, locationes, condu&tiones, obligationes inſtitute ; exceptis quibuſdam, que (à) jure civili introdukt e funt. Digeft.
Lib. 1. Tít. I. Leg. 4, 5. So that the Law of Nations is near a-kin to thoſe Laws of Natural Right which our Author calls Condi-
tional, s. 24. And the Roman Lawyers ſometimes confound it with the Laws of Nature, becauſe the Rules of both are founded
'on Natural Reaſon. See Grotius upon that Paſſage of Çicero, where by the Law of Nature, i, e. the Law of Nations, one Man
can't promote his own Intereſt at the loſs of another : Neque verò hoc folum Natura, i. e. pure Gentium
conftitutum ests
et non liceat ſui commodi caufa nocere alteri. De Offic. Lib. 3. Chap. 5. p. 296, &c. See alſo Mr. Hertius, de Lytro, Sect, 1. . 7.
(4) The Roman Lawyers do not refer Marriage to the Civil Law, becauſe, according to them, it belongs not only to the Law
of Nations, but Law of Nature ; Hinc (ex Jure Naturali] deſcendit maris atque fæemine conjun&tio, quam nos Matrimonium appellamus,
Digeſt. Lib. 1. Tit. 1. Leg. 1. $. 3. They only ſay, that to make a Marriage-Contract valid, which is the effect of the Civil Law,
boch the Perſons, who are to be married, muſt be Citizens of Rome. See Ulpian Tit. 5. $. 3, 4. Seneca, de Beneficiis, Lib. IV.
Boeth, in Top. Cicer. Chap. 4. Likewiſe, altho'a Will, to make it valid, requires certain Formalities, and Strangers can neither
make a valid Will, nor Inherit by a Will. (See God. Lib. 6. Tit. 24. and Dion. Gothofrid, upon it.) Nevertheleſs, Wills were re-
puted to be from the Law of Nations, as appears from this, Thst a Soldier Inight make a Perſon condemned to Baniſhment, or
condemned for all his Life to the Mines or Quarries, his Heir, becauſe they ftill had a Right by the Law of Nacions. Ut ſunt in
Opus publicum perpetua damnati, dar in Inſular deportati, ut ea, quidem, que Juris civilis ſunt, non habeant, qus vero Juris gentiuin,
habeant. Digeſt. Lib. 48. Tit. 9. De Pænis, Leg. 17. §. 1. See Lib. 29. Tic. 1. De Teſtamente Militis, Leg. 13, S. 2. See allo che
Law of the Code quoted Lib. 4. Chap. 1o. S. 4; Note s.
Law



35.
CHAP. III. Of the Law of Nature in general. ISI
Law of Nations, becauſe the former were reſtrain'd to the Law of Nature ; he is guilty of no other
to the Citizens, whereas Strangers were admitted Sin, but a ſort of Unskilfulneſs, in not adjuſting
to a Share and Right in the latter.
his Proceedings to the nice Models of thoſe
Many Authors do farther rank under the Title who reckon War in the number of the Liberal
of the Law of Nations, ſeveral Cuſtoms mutually Studies. As a Gladiator is accus’d of Inexpert-
obſerv'd by tacit Conſent, amongſt moſt people nefs
, when he wounds his Antagoniſt otherwiſe
pretending to Civility ; eſpecially in the Affairs than by the Rules of Art. Whoever therefore
and Tranfa&tions of War. For after that the moſt wages War in a juft Cauſe, may flight theſe For-
poliſh'd Parts of the World came to eſteem Martial malities at Pleaſure, and govern himſelf purely
Glory as the greateſt of Human Honours, and to by the Law of Nature : Unleſs he thinks it more
think that a Man had no ſuch fair way of ſhown for his Intereſt to obſerve them, as a means to
ing his Excellency beyond others, as by being render the Enemies leſs ſevere towards himſelf
able by his Boldneſs and his Sagacity to deſtroy and his Men. On the other hand, he who pro-
many of his Fellows ; upon which account there fecutes an Unjuft Quarrel, if he punctually fulfils
perpetually aroſe either unneceſſary or unjuſt theſe Niceties, is ſo far in the Right, as to appear
Contentions ; For fear great Captains, if they Wicked with ſome kind of Temper and Modera-
us’d the full Liberty of a juft War, ſhould bring tion. However, theſe Reaſons not being general,
too much Envy on their Power, and expoſe them cannot conſtitute any Law of an (6) univerſal
ſelves to general Hatred ; many Nations found it Obligation. Eſpecially ſince as to any Reſtraints
convenient to temper the vigorous Fierceneſs of which depend on tacit Agreement, it ſeems rea-
Hoſtile Proceedings, by a ſhew of Clemency and ſonable that either Party ſhould have the Liberty
of Magnanimity. Hence aroſe the Cuſtoms of of abfolving themſelves from them ; by making
exempting certain Things and Perſons from Mar- expreſs Declaration that they will be holden by
tial Violence; the particular manners of hurting them no longer, and that they do not expect or re-
Enemies to ſuch degrees, of treating Captives, quire the Obſervance of them from others.
and the like. Machiavel in his Prince, Chap. 12, Hence we find many fuch Pra&tices to be worn
relates one Pra&tice of this Nature, which I que out by Time, or overcome by the Prevalence of
ſtion whether it were worthy of the Name and contrary Cuftom. Neither have (7) thoſe Men
the Profeſſion of Soldiers; he ſays, It was firſt any good reaſon of Complaint, who cenſure this
introduc'd by Alberigo de Como of Romagna, and Doctrine as a Notion by which the Security, the
kept up in the Italian Wars of the laſt Age, chiefly Intereſt, and the Safety of Nations are robb’d of
by the Foreign and Mercenary Troops, the op- their ſureſt Guards and Defence. For the Enfu-
poſite Generals endeavour'd with all poſſible In rance of theſe Advantages and Bleſſings doth not
duſtry, to rid themſelves and their Soldiers of all conſiſt in the Practice of ſuch mutual Favours,
Trouble and Fear : And their way was, by killing but in the due Obſervance of the Law of Nature;
no one in Fight ; only taking one another Priſo- a much more ſacred Support; and which whilſt
ners, whom they afterwards diſmiſs’d without they enjoy, they have little need of inferior Me-
Ranſom. When they were in Leaguer before a
thods of Protection. And ſure it ſhows much
Town, they ſhot not rudely amongſt them in the more Excellency and Worth in any Cuſtom, to
Night; nor did the Beſieged diſturb their Camp derive it from the Law of Nature, than to eſta-
with the like Incivilities. They made no In- bliſh it only on the Conſent of different People.
trenchments for their Security whilſt encamped ; Amongſt the chief Heads of that Voluntary Law
and when Winter came on, never lay at all in the of Nations which Grotius maintains, he reckons the
Field. And to behave themſelves in this manner Law (8)of Embaſſies. Now as to this point it is our
was part of their Diſcipline and Inſtitution. An Opinion, that the Perſons of Embaſſadors are Sa-
Agreement ſomething like this Strabo tells us of, cred and inviolable, even amongſt Enemies, by the
Lib. io. between the Eretrians and the Chalcidians, meer Law of Nature; provided they do not come
forbidding the uſe of Miſfive Weapons againlt purely as Spies, nor enter into any hoſtile Deſign
each other. To which we may add the Cuſtom againſt the Perſon to whom they are fent ; altho
obſerv’d by the ancient Indians, of letting the in the ordinary Courſe of Buſineſs, and of Trea-
Husbandman remain ſafe from all Injury and ties, they prefer their Maſter's Intereſt to all others.
Moleſtation, even in Civil Wars (a).
For in as much as ſuch Perſons are neceſſary for
But altho' theſe Cuſtoms ſeem to include ſome the procuring, the preſerving, or the ſtrengthning
kind of Obligation ariſing from tacit Confent ; of Peace by Leagues and Covenants ; and ſince
yet if one who is engag'd in a Lawful War, the Law of Nature enjoins us to embrace Peace by
ſhall negle&t them, and profeſs that he will not all honeſt Ways: It muſt at the ſame time be fup-
be bound by ſuch Reſtraints ; provided what is pos’d to have provided for the Security of thoſe
contrary to them may be rightly done according Men, without whoſe Intervention this good End







(a) Arrian. in Indice. Chap. II.
(5) Cuſtom never obtains the force of a Law in any Stare, but by the tacit Conſent of the Sovereign, which may eaſily be
preſumed. But when one People treats with another, how muſt it be determined what repeated Acts, and what ſpace of Time
Mall render a Cuſtom Obligatory? Moreover, great Revolutions often happen, inſomuch that nôr only the Sovereign, but
alſo the Government itſelf is wholly changed, and in this caſe
, why ſhould a new State, or a new Prince, be obliged exactly
to obſerve a Thing which they never confenced to ? This is whát Mr. Hertius has well obſerved ? See his Diſcourſe, De Lytro,
(7) Samuel Rachelius is plainly meant here as appears to me by what Mr. Hertius ſays in the fame Diſcourſe, $. II, where
he mentions a Diſcourſe, De Jure Gentium, of that Lawyer, who was Profeſſor at Keil in the l'rovince of Holſtein.
(8) See what is ſaid Note 1. g. 12. Chap. 9. Lib. 8.
before quoted, S. 2.
cannot
152
Of the Law of Nature in general .
7
Book II:
cannot be obtain'd (a). To this Right of perſonal cerning the keeping of Faith, doth oblige us to ſtand
Safety, is join'd another of being exempted from to ſuch Agreements; yet the Agreements them-
the Juriſdiction of the Sovereign to whom they felves cannot be call'd Laws, in any Propriety of
are ſent ; at leaſt in all Matters relating to their Speech or of Senſe. Beſides they are almoſt infi-
Office. Since otherwiſe they would not have full nite in Number, and commonly are ſettled only
Power and Liberty to promote their Maſter's Inte- for a Time. Nor do they any more conftitute a
reſt
, with due Application and Vigour, were they part of Law in general, than the Covenants and
oblig'd to give an account of their Management to Bargains of particular Subjects with each other,
any Authority, beſides that which they repreſent. do belong to the Body of the Civil Law of the
Other Privileges commonly attributed to Embaſſa- Kingdom : But they are rather to be eſteem'd the
dors, eſpecially to thoſe who reſide in Courts, not Subject and the Concern of Hiſtory (c). Aids
for the ſettling or the ſecuring of Peace, but XXIV. Of all the Diviſions of Natural Law,
chiefly for the diving into the Secrets and Policies that ſeems to us moſt accurate and moſt covenient,
of a State, theſe depend abſolutely on the Indul, which conſiders, in the firft place, a Man's Beban
gence of the Prince who entertains them; and viour towards himſelf
, and then towards other Men.
therefore, if he fees convenient, he may deprive (1) Thoſe Precepts of the Law of Nature which
them of theſe Favours without the Breach of any bear a Regard to other Men, may be again divided
Law, provided he will ſuffer his own Miniſters into Abſolute and Hypothetical
, or Conditional
. The
abroad to be treated in the ſame Manner.
former åre ſuch as oblige all Men in all States and
The (9) Right of Burial, which, according to Conditions, in
Conditions, independent from any human Seccle-
Grotius, ſeems likewiſe to make a particular Head ment or Inſtitution. The latter preſuppoſe ſome
of the Law of Natioris, may be well referr'd to the publick Forms and civil Methods of Living to have
common Duties of Kindneſs and Humanity (b). been already conſtituted and received in the World.
Nor are the other Inſtances which he offers of Con- Which Diſtinction Grotius hath thus expreſs’d in
fequence enough to eſtabliſh a new Species of Law, other Words; The Law of Nature is concernd, not on-
ſince they may with Convenience enough be al- ly about ſuch things as exist antecedent to human Will,
low'd a Place in the Syſtem of the Law of Nature. But likewiſe about many things which follow upon ſome
As for thoſe Perſons who (10) rank under the Law Acts of that Wil. Whence altho' the Dominion or
of Nations, the particular Compacts of two or more the Propriety of Things as it now ſtands is efta-
States,concluded by Leagues and Treaties of Peace, bliſh'd by the Pleaſure of Men, yet ſuch a Settle-
to us their Notion appears very incongruous. For ment being once ſuppos’d, Natural Law informs us
although the Law of Nature, in that part of it con that tis a Sin to take the Goods of another Man,

6
(a) Add. Marſelaer Legat. l. 2. c. 13. (6) Add. Ant. Matth. de Crimin. Proleg. c. 3. f. 5. (c) Add. Selden de Mari Clauſo,
l. 1. c. 2. Concerning Unwritten Laws, or Cuſtom, beſides others, fee Becler. ad Grot. 1.2.c.4.4.5.
.
(9) Altho' after Death whatever Treatment the Corpſe of the Dead meet with, is all one to it, the Right of Burial is not a
whit the leſs founded on the Law of Humanity, inſomuch that it is a kind of Puniſhment to be deprived of Burial, as the Practice
of Civil Judicatures ſhews, and the Uneaſineſs of ſuch, as in their Life-time are troubled at the Thoughts that their bodies, when
dead, ſhall be caſt into the Highway, To this we may add, that, according to the Cuſtoms and ordinary Opinions of Men, Bu-
rial is a Mark of Honour. Now to deny a Man the Honour that he may lawfully claim, although but by an imperfect Righr, is
without Contradiction, a Breach of the Law of Nature. It is to no purpoſe to object, that a dead Man is not ſenſible of what is
done to his Carcaſe, yet he may be really wronged for all that, for 'tis not neceffary that an injured Perſon thould know or feel
the hurt done him, or be in a Condition to obtain his Right. (See Lib. I. Chap. 5. 6. 7. Note 4.) All the World agree, that an
Infanc in the Cradle may be wronged, and fo may an Idior, although the firſt knows not what it ſuffers, and the other does not
underſtand the Hure done him. Laſtly, the Relacions and Friends of the Dead, do in ſome Manner repreſent his Perſon, and
a Right to require the Honour of Burial for him. But, by Burial we are to obſerve, that all the laſt Ducies to be paid to
the Dead are underſtood, whether it be by burning of the Body, or inrerring it ; for this depends upon Cuftom, which alone de-
termines how the Memory of the Dead is to be honoured. Moreover, as we have intimated, a certain kind of Puniſhment is fome-
times inflicted upon the Bodies of ſuch as have committed enormous Crimes, and this is chiefly practiſed upon ſuch as have killed
themſelves, and conſequently the Magiſtrate can puniſh them any other way, to affright others and diſcourage them from the
like Attempts. But the Rights of War do not extend ſo far, as to deny Burial of Main Enemies , this Refuſal anſwers not to the
lawful Ends of War, and can have no other Principle than barbarous Cruelty. I have taken this almoſt all out of Buddeus's Ele-
ment. Philoſoph. Prałt
. We may add upon this laſt Article what Plato ſays, viz. That it is a great piece of Cowardice to treač
the Rody of him with whom we are at War as an Enemy; in ſo doing we act like Dogs, who bite the Stones caſt at them when
they can't come at him that throws them. Και γυναικείας, και σμικράς διανοίας, όξιν, πολέμιον νομίζαν το σώμα τα τεθνηκότG-
απολαμένα το εχθρό, λελοιπό7G 3 ώ επιλέμε, ή οίει η διάφορων δραν του τύτο ποινας - κυών, οι τοις λίθοις, οίς αν βλώσι
PLAST OLVT5, Tð Banaóv órázó ulas. De Rep. Lib. 5. Tom. 2. Mr. Thomaſius nevertheleſs maintains, that there is no Evil
in refuſing Burial to Enemies, and he affirms it a Thing altogether indifferent; but I leave it to others to examine whether whac
he ſays about it in his Inſtitut. Juriſpr. Divin. Lib.3. Chap. 1o. deſtroys the Principles I have laid down. He alſo ſays, That fup-
poſing there be ſome Obligation to grant a Burial, the Refufal of that Duty of Humanity is no juſt Cauſe of War. I own it, but
it ought to be conſidered, that this Refuſal in ſome caſes ſhews a bloody Diſpoſition, and may be more juſtly made a Cauſe of
War, than many other Things that are.
(10) 'Tis the ſame Mr. Rachelius, beforementioned, in his Book De Jure gentium, in which he follows Herman Conringius's Dif.
courſé De fure, as I underſtand from Mr. Hertius.
S. XXIV. (1) We muſt add, towards GOD. See what is ſaid above, S. 15. Note 5. and in the next Chapter, S. 3. Note 2."
This Diviſion is very natural and ancient. We find it in Tuſc. Quæſt. Lib. 1. Chap. 26. Hæc Philoſophia
Hæc Philoſophia nos primum ad illorum (De-
orum) cultum, deinde ad jus hominum, quod ſitum est in Generis humani Societate, tum ad modeftiam, magnitudinemque animi erudivit,
i. e. "Philofophy teaches us firſt of all the Worlhip of a God, then the Duties of Men one to another, which are founded upon the
• Society of Mankind, and then on a Moderation and Greatneſs of Mind.” Every one knows that the Goſpel obliges us to reſpect
GOD, our Neighbour, and Ourſelves, as the three principal objects, and greateſt Originals of our Duty., This Diviſion is clearly
deduced from St. Paul's Words, Tit. ii. 12. The Grace of GOD, which bringeth Salvation
teacheth us to deny Ungodlines
and worldly Lusts, and to live ſoberly, righteouſly, and godly in this preſent World. We may alſo here take notice of that Paitage of
the Philofophick Emperor, Τράς σας, η μεν προς το απον αεικείμενον, και προς τις θλαν αίτιαν, άφης συμβαίνει πάσι πένα
j ö teós tès ouubisvesoi.e. “We have three obligations, the one to the Cauſe which is ſurrounding us, i. e. our Body; the o:
ther ties us to the ſupreme Cauſe from whom all Things come, which happen in this World, i. e. GÖD, who is the Univerſal
Reaſon; the third and last obliges us to all Men, i, e. 3s joined in Society." M. Antonin. Lib. 8. S. 27.
without


CHAP. III.
Of the Law of Nature in general.
153
without the Owner's Conſent (a).' That is, Sovereignty over us. Thus much indeed is cer-
there are many Things which as to the Exerciſe of tain, that the Violaters of Civil Laws do, by break-
the Ad are Arbitrary, or where it is left to the free ing their intervening Covenant, mediately fin a-
Pleaſure of Men whether they will perform ſuch gainſt the Law of Nature. And yet there ſtill re-
an A& or no: But the Act being once perform’d, mains a prodigious Difference between theſe Na-
there follows upon it, by vertue of ſome Precept tural Laws which we call Hypothetical, and the Po-
of the Law of Nature, a Moral Neceſſity or Obli- fitive Laws of Civil Governments; in as much as
gation; or elſe the Manner and Circumſtances of the Reaſon of the former is drawn from the Con-
the Act are by the fame Law adjuſted and deter- dition of Mankind conſider'd in general; but the
min’d. Thus, for Example, altho' the Law of Reaſon of the latter is taken from the particular
Nature doth not command me to buy of another, Intereſt of any Nation or State, or from the bare
yet ſuppoſing me to buy at my own Pleaſure, it Pleaſure of the Legiſlator. Therefore our Civil
commands me not to ſeek my own Gain to the Poſitive Laws are not ſo many Precepts of the Na-
Damage of the other Party, nor to cheat him in tural Hypothetical Law, but do only borrow their
the Bargain. And many ſuch Precepts of the Force of obliging (3) in human Regard, from the
Law of Nature there are, which cannot take Vertue of ſome ſuch Hypothetical Precept of Na-
place, or indeed be underſtood, unleſs upon Sup. ture. Now of thoſe human Inſtitutions which
poſition of diſtinct Proprieties of Things, and ſerve for Foundations of theſe Hypothetical Pre-
of the Eſtabliſhment of Civil Authority. Yet it cepts, the three chief are (4) Speech, the Dominion
cannot hence be prov'd, that even all poſitive Laws and the Price of Things, and (5) human Sovereignty
are part of the Law of Nature, becauſe Nature o or Command. And by this Diviſion we ſhall here-
bliges us to obey the Commands of the Supreme after guide our Proceedings, when we arrive at
Magiſtrate, tho' our own Conſent gave him his that part of our Deſign.
(a) Vid. l. 1. S. 3. D. de furtis. l. 42. D. de verb. Signif.
(2) See above, S. 22. Note 1.
(3) The laſt Editions ſay, in foro humano, and the Engliſh Tranſlator follows them, rendring it, in human Regard, whereas the
firſt Editions expreſſed it, in foro Divino, as the Reaſoning of the Author plainly requires; and Mr. Hertius in his Edition in 1706
hach fuffered this Miſtake to paſs.
(4) See Note on . 8. Lib. 3. Chap. 9.
(5) All that our Author fays in this Chapter reſpects only the Obligations of the Natural Law, which obliges us to act or not
ałt indiſpenſably, and which hath for its Object ſuch Actions as contain in them an Agreeableneſs or Diſagreeableneſs to the hu-
man Nature ; but, as I have already ſaid above, L. 1. C.6. S. 16, N. 1. we muſt acknowledge a natural Law of ſimple Permiſſion,
by virtue of which we may do or not do, according as we judge fic, every thing which has not a neceſſary Agreeableneſs or Dif-
agreeableneſs with the Nature of Man, unleſs it be exprefly ordered or forbidden by ſome poſitive Law, either Divine or Human. 'Tis
upon this natural Law of fimple Permiſſion that all Rights, as well natural as acceſſory and acquired, are founded, as Liberty, the
Right of ſuffering no Evil from others, Empire or Authority over Perſons, and other ſuch like Things, which ordinarily receive di-
vers Changes, according to the Will of Man. For Actions permitted by the Law of Nature may become Obligatory, and after-
wards return to their natural Indifference. Mr. Selden (as is before obſerved) acknowledgech this Right of ſimple Permiſſion.
See his Treatiſe De Jure Nat. do Gent. Secundum Hebræos Lib. 1. Chap. 8. And if we examine what our Author ſays hereupon in
the beginning of s. 22. we ſhall find, that he can't forbear owning a Right of ſimple Permiſſion. See Lib. I. Chap. 6. 8.15. Note 2,

CHA P. IV.
Of the Duties and Performances of Man towards himſelf; as
well in Regard to the Improvement of his Mind, as to the
Care of his Body and of his Life.
The CONTENTS
I. Every Man is to take Care of himſelf,
XI. And about Pleaſures.
II. In what that Care conſiſt s.
XII. Our Paſſions are to be governed by Reaſon.
III. The Mind is to be inſtructed in Religion.
XIII. Of our Study for Learning.
IV. And all corrupt Opinions to be rooted out of it. XIV. Of the Care of the Body.
V. The Knowledge of a Man's Self is neceſſary.
XV. Of the Uſe of Life.
VI. A Man should know his Soul and its Offices. XVI. What Obligations we are under to preſerve Life.
VII. And how great its Abilities are.
XVII. How far our Life is to be employed in the Service
VIII. Nothing above its Abilities may be attempted.
of others.
IX. How much we are to labour after Famé.
XVIII. Whether it is to be endangered for them.
X. And how much after Riches.
XIX. Whether Self-Murder is Lawful.
Ltho this be a Quality common to (1) Man, for his own Preſervation, and is naturally glad to
that
with other Animals, that he is concern'd be in as good a Condition as poſſible; yet
Mr. Barbeyrac's Notes on Chap. 4,
S. I. (1) This Objection ought firſt to have been anſwered, before our Author had entred upon this Subject, viz. How a Man
can be under any Obligation to himſelf? Our Author meddles not with it till he comes to 9.16. where ſee Note 2. This Neglect
proceeded from hence, that the fifteen firſt Paragraphs were not in the firſt Edition, but being added in the ſecond, the Obje.
ction became ſo far poſtponed.
A
X
his
154
The Duties of Man with regard to Himfelf. Bookll.
bis (2) Care of himſelf ought to be of a much more draw us all; more or leſs, out of the ſtraight Path
refin'd, and of a much nobler Strain, than what of Reaſon; and unleſs we bridle and reſtrain
we can ſuppoſe in Brute Creatures, there is good them, pour out a Flood of foul and unworthy A-
Reaſon to conclude: Not only becauſe he hath re- ctions, thro' the Courſe of our whole Lives. And
ceiv'd more Endowments than they, and ſuch as it may, perhaps, quicken our Induſtry, to conſider
are more capable of fruitful Culture and of uſeful that we have but one Time allow'd us to act our
Improvement; but farther, becauſe he cannot per- Part in, and cannot hope for a ſecond Entranc
form the Duties to which he ſtands oblig'd, unleſs on the Stage, to amend the Faults of our firſt Per-
he brighten and quicken his Faculties by good Ex- formance. For that old Complaint in Euripides
erciſe, and make them more vigorous and more will ever be as vain and ineffectual as when it was
ready, in the Production of worthy Actions. Be- firſt made: (3)
fides, the Labour which a Man ſpends on his own
Improvement, is not terminated in himſelf; but Me miſerable! that Men ſhould be deny'd
ſpreads abroad its Fruit to the Benefit of all Man- The Gift of ſpringing to a ſecond Youth,
kind; and the better any Perſon approves himſelf A double Age! The Structures which we raiſe
in the Management of his own Gifts and Abilities, If found defective, later Cares reform,
he is juftly eſteem'd the more excellent Citizen of New modell’d: But our own unhappy Frame
the World, and the more generous Benefactor to Stands without Change, and falls without Repair !
his Fellows. Wherefore Man, in his Endeavours
to fulfil the Laws of Sociery, to which he is by his O! might we turn our Steps, and tread again
Creator directed and deſigned, hath good Reaſon The Path of Life, what Slips we once had made
to imploy his firſt Pains and Study on himſelf; We would correct, and every cheating Maze
fince he will be able to diſcharge his Duty towards Avoid, where Folly loft our Way before.
others with ſo much more Eaſe and Succeſs, the
more diligent he hath been in advancing his own Now ſince Man conſiſts of two Parts, a (4) Soul
Perfection. Whereas he who is unuſeful to him- and a Body, whereof the former is the great Prin-
felf, and idle in his proper Concerns, can give o- ciple and Spring of human Actions, the latter fup-
ther Men but little Reaſon to expect Advantage plying the Place of a ſubordinate Inſtrument, the
from his Pains.
Care and Improvement of the firſt and nobleſt
There is ſcarce more Neceſſity for our engaging Part, may juſtly challenge the Precedence in our
in this Care, than there is Sollicitude and Difficul- Endeavours (5)
ty in the Proſecution of it. For, in the firſt place, II. (1) The Culture of the Mind which all Men
Men are born in an entire Ignorance of Things, are oblig’d to undertake, and which is abſolutely
and their Minds whilft yet tender, may be eaſily neceſſary for the Performance of human Duty,
ſo far defiled and tainted with vile Opinions, that conſiſts chiefly in theſe Particulars ; that we ob-
it will afterwards be no eaſy Labour to waſh off tain true Opinions concerning all ſuch Things as
the Stains. Beſides, we bring hereditary and in- our Duty bears any Reference to, that we fet à
bred Corruptions with us into the World, which right Judgment and Price on thoſe Objects which


(2) Our Author here puts the Care of preſerving a Man's ſelf, before that of perfecting himſelf, which is indeed the more na-
tural Order ; for beſides that the Idea of Preſervation is a Thing more ſingle than that of Perfection, our Being certainly pre-ex-
ifts our Well-being; and in vain a Man thinks of perfecting himſelf, if he has not before taken all the Care he can of preſerving
himſelf. But if the Author expreſies himſelf well in this firſt Period, 'tis by meer chance, for he forgers himſelf the next Moment,
and takes a clear contrary Method in this Chapter; for all he ſays in this, and the thirteen following Paragraphs, concerns only
the Care of perfecting a Man's ſelf; and he begins nor till the fifteenth to ſpeak of his Life and the Preſervation of it. Further,
we muſt obſerve, that according to the Principles I have above laid down to rectify our Author's Notions, (Chap. 3. S. 15. Note 5.)
the Duties of Man to himſelf directly and immediately flow from Self-Love, which obliges him both to preſerve himſelf, and put
himſelf into as good a Condition as poſſible to attain all the Happineſs that he is capable of. Montagne's Words may be pertinent
here, “ The principal Ofice (ſays he) which we have here, is for every one to govern himſelf. 'Tis the chief End of our Be-
ing here. He that forgets to live well and piouſly, and thinks to diſcharge his Duty by ordering and managing others, is a
« Fool. He that is careleſs of his own Health and chearful Converſation, to ſerve others, rakes, in niy Opinion, an ill and un-
o natural Courſe.” Eſſays, Lib. 3. Chap. 10. P: 748. But we muſt always ſuppoſe, that Self-Love muſt be managed accordiog to
every one's Condition, and without any Prejudice to Religion or Society. See the general Rules which I have laid down in the
Noré above quoted.
(3) Euripid. Supplic. 1080. & ſeqq. "O1406. Ni Bag tom ovv xx oziv zóne
Nexs sis m, rregulas of resov;
*Αλλ' εν δόμοις μ' ώ μη καλώς έχη,
Γνώμαισιν υσέρgισιν εξορθάμεσα.
be
'Armia 8x Essiv, till nulla veel
sis zij hegyes, eitis Saveplavov,
Διπλή βία λαχόνες, εξορθάμεθ' άν.
See Gataker upon Marcus Antoninus, Lib. 2. S. s.p. 6c. Edit. Londin. 1652.
(4) So Saluſt ſpeaks, Sed omnis noftra vis in animo do corpore fita eft. Animi imperio, .corporis ſervitio magis utimur, alterum nobis
cum Diis, alterum cum Belluis commune eſt. De Bel. Catelin. Chap. I.
(3) Thus Plato judiciouſly reflects to the fame Senſe, K.ch, u što 9 [we uonównl.ce] on tunais ousantéov, x eis si Baezafos
Ewuá twv ö, rj genueltog i omruenetan ezégous Toey do tkov, i.e. We must all confeſs, that the Soul is to be chiefly taken Care
of, and above all things to be looked after. The Care of our Bodies and Eſtates we may commit to otbers. In Aleib. 1. p. 443. See al-
Lo his Book De Legib. Lib. 5. in che beginning; and Cicero de fin. Lib. s. Chap. 12, 13.5
S. II. (1 ) This Paragraph and the following afford an Example of the Corrections and Additions which I have made of the lem-
ma's in the Margin, to fit them to the Subject created on. The Author Thews in what this Care confifts, as if he were ſpeaking in
general of the Care a Man ought to take of himſelf, whereas this Paragraph treats only of the Care of the Soul in Oppoficion to
that of the Body. In the following Paragraph he diſtinguiſhes, and explains more diſtinctly the different Ducies, which make
che parts of the general Duty.
fou
commonly

Od to
Chap. IV. The Duties of Man with regard to Himſelf. 155

12
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commonly excite our Appetites, and that we tem Choice. That this Eternal Being exerciſes a Son
per and regulate our Paſſions by the Direction of vereignty not only over the whole world, or over
ſound Reaſon (2). o voltoi op
Mankind in general, but over every Individual
III. Amongſt the Opinions then which it highly Human Perſon: Whofe Knowledge nothing call
concerns all Men to ſettle and to embrace, the eſcape: Who,' by Virtue of his Imperial Right,
chief are thoſe which relate to Almighty Gov, hath enjoin'd Men ſuch certain Duties by Natural
as the Great Creator and Governor of the Uni- Law, the Obſervance of which will meet with
verſe. That there is really exiſting a Supreme his Approbation, the Breach or the Neglect, with
Being, from whom all other Things derive their his Diſpleaſure: And that he will
Original
, and the Principle of their Motions not require an exact Account from every Man, of his
as from a dull and ſenſeleſs Power (as the Wéight, Proceedings, without Corruption and without
for Example, in a Clock) but as from a Cauſe en- Partiality (1).
du'd with Underſtanding and with Freedom of Now as the main Parts (2) of human Duty turn
oni scurec 209 lo vino dt 10 bus daun 50.59jga on
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(2) Seneca hath a fine Paſſage to this purpoſe, which begins thus, Epift. 66. Edit. Gronov. Animus intuens vera, peritus fugiendo
rum, & petendorum, non ex Opinione, ſed ex Naturâ pretia rebus imponens pulcherrimus, ordinatiffimus, cum decore, cuin via
ribus Sanus & ficcus, imperturbatus, loc. i.e. “ The Mind looks into the Truth, is skilful in knowing what is to be avoided and
“ deſired; fets a Price on Things, not according to the common Opinion, but according to its Nature - is moſt beautiful,
“ orderly, graceful, and tho' of great Force, yet is found, uncorrupted, and undiſturbed, Go."
ODOT: tout
§. III. (1) Primus eft Deorum cultus (ſays Seneca) Deos credere, deinde reddere eos majeſtatem ſuam, reddere bonita' emn, fine quid
nulla majestas est. Scire illos eße, qui preſident mundo, qui vniverſa vi ſuâ temperant, qui bumani gen-ris tutelam gerunt, interdum cu.
risſi fingulorum. Hi nec dant malum, nec habent ; ceterum caſtigant quofdam, & coercent, & irrogant Pænds, do aliquando ſpecie boni
puniunt. Vis Deos propitiare, bonus efto. Satis illos coluit, quiſquis imitatus est. Epiſt. 95. i. c. “ The Worſhip of God conſiſts,
* firſt of all in believing that they are, and then acknowledging their Sovercigney and Goodneſs, without which there can be
“ no real Greatneſs. We muſt alſo be throughly perſuaded, thar they govern the World, and by their Power order and diſpoſe
“all Things, who take Care of Mankind in general, and ſometimes concern themſelves in private Affairs. They neither are E-
“ vil, nor do any, yet they correct ſome Perſons to reſtrain their Malice, yea, and ſometimes puniſh them whom they ſeem to
“ favour. Would you have them propicious and kind to you? Be Good. They honour them moſt, who imitate them. See
Cicere de Legibus, Lib. 2. Chap. 7. and Epi&tet. Enchirid. Chap. 38.
(2) Our Author, in his Abridgment of the Duties of a Man and Citizen, Lib. I. Chap. 4. hath given us a Syſtem of Natural
Religion ; i. e. the Duties of Man to GOD, which, becauſe I have faid, Chap. 3. S. 15. Note 5. ought not to be excluded our
Knowledge of the Law of Nature, I ſhall here give an Extract of what he chere fays, which is, Thele Duties, fo far as they
can be diſcovered by the Light of Reaſon only, may be referred in general, to ſuch as concern, 1. The Kaowledge, and, 2. The
Worſhip of GOD. So that the Syſtem of Natural Religion comprizes Propoſitions, 1. Speculative, and, 2. Practical. The Spe-
culacive Propofitions are, I. That we muſt believe, 1. That there is a GOD. See S. 20. of the foregoing Chapter. 2. Thar this
GOD creared the World. See his Abridgment of the Duties of a Man and Citizen, Lib. 1. Chap. 4. 5. 3. 3. That He governs all
Things by his wife Providence, which takes particular Care of all Mankind. And indeed it is the ſame in Reſpect to Morality, to
deny the Exiſtence of GOD, as his Providence, as the Pagans the mſelves did acknowledge. See the Paffages quoted Chap. 6.
Lib. 1. S. 11.
Note 3. 4. That nothing can be atrributed to GOD chat implies the leaſt Imperfection. For, tince he is the Firſt
Cauſe of all Things, he can't be ſuppoſed, without a manifeſt Abſurdity, to have any In perfection, nor want any of thofe Per-
festions, of which we, who are his Creatures, can form to ourſelves any Notion, See the Abridgment above mentioned, s. s.
and what is ſaid in the next Paragraph of this Chapter. The practical Propoſitions of Natural Religion contain all the parts of,
11. Divine Worſhip ; which is either Outward or Inward. The inward conſiſts in the Honour that is given to GOD. Nowv Honour
being nothing ellë but the Opinion which we have of the Power or Goodneſs of any thing, we honour GOD, when with Re.
gard to his infinite Power and Goodneſs, we conceive of him all the Sentiments of Reſpect and Reverence we are capable of.
From whence it follows, that we muſt love him, as the Fountain and Author of all good Things, hope in him, as the Being upon
whom all our Happineſs depends, both now and for ever; ſubmit entirely to his Will, having a Perſwafion that he will do all
Things for our Good, and that he knows better than ourſelves what is convenient for us; to fear him, as a Being of infinite Power,
by which he is able to inflict the moſt terrible Evils upon thoſe that offend him; laſtly, to obey him in all Things with the moſt
profound Submiſſion, as our Creator, and Lord, Almighty, and of all Goodneſs, Outward Worſhip conſiſts principally in the
following Duties. 1. We muſt give GOD Thanks for all the good things we receive from him. 2. We must, as far as in
us lies, regulate our Actions according to his Will, i. e. actually obey him, ſo far as Ignorance and hunian Frailty will permit.
,
ſtand in need of, and to deliver us from all the Evils which threaten us. Indeed, Prayer is a ſign of our Hope and Confidence,
and Hope implies a ſpecial, though tacir Dependance upon the Goodneſs and Power of him in whom we truſt. 5. When we are
obliged to take an Oath, we ought to ſwear by the Name of GOD, and afterwards obſerve religiouſly what we have engaged
ourſelves to, by taking GOD to witneſs, as his infinite Knowledge and Power does require. 6. We ſhould never ſpeak of GOD,
but with the greateſt Care and Circunſpection, for it is a ſign of Fear, and that is a tacit Regard to the Power of him whom we
fear. From hence it follows, that we muſt not uſe the Name of GOD lightly and without Neceſſity in our common Diſcourſe,
for this ſhews want of Circumſpection ; that we ſhould never take an Oath, but upon Neceſſity; that we ſhould never curiouſly
and nicely ſearch into the Nature of GOD, and the Acts of his Providence; for that were to confine the Divine Nature within
the narrow Bounds of our own feeble Reaſon 7. Whatever we do in Relation to GOD, ought to be moſt excellent in its Kind;
and proper to fhew our moſt profound Reſpect to him. 8. That we muſt honour him, and ſerve him, not only in private, but
publick, and in the fight of Men. For what a Man does only in private, looks as if he were aſhamed to do it. Whereas publick
Worſhip is a Teſtimony, not only of our Zeal, but is alſo an Example to others, and often induces them to join in the fame Acti-
9. and laſtly, We muſt apply our felves as cloſe as poſſible to the practice of fuch Duties as the Natural Laiv preſcribes,
both in reſpect to our felves and others; which ſome call an Indire&t Worſhip. Indeed, as the Contempt of GOD's Commands is
the greateít Affront we can offer to him, ſo, on the contrary, there is no Sacrifice ſo agreeable to him as Obedience to his Laits.
Now the Law of Nature is a Divine Law, as we have before proved. This is what our Author has delivered in fort. I might
alledge ſeveral Paſſages of Heathen Authors to this purpoſe, but this Note is already too long : Nevertheleſs we will add what
Mr. Thomaſius (Inftit. Juriſpr. Divin. Lib. 2. Chap. 1. §. 11, doc.) has faid, viz. That the Law of Nature indiſpenſably requires a die
rect outward Worſhip, ſo far as is neceſſary to thew that we do not contemn the Deity, and not ſo far as it conſiſts in giving a
pofitive Honour to the Deity, by ſome exterior Acts, the Omiſſion of which is no ſign of Contempt to him. This able Lawyer
grounds this Affertion upon chis, That GOD has no need of our Service, and that as he is the searcher of Hearts, the inward
Worſhip, without which all outward Acts of Piery are of no Worth, is ſufficient to diſcharge us of the Obligation we owe to the
Supreme Being, on whom we depend. As to what concerns other Men, Mr. Thomaſius ſays, That the Omillion of the outward
Worſhip does not hurt either Human Society in general
, nor Civil Society in particular, provided there be an inward Worſhip
paid. But it does not from thence follow, in my opinion, that there is no Neceffity of worſhipping GOD outwardly, and thao
this Neceflity is not fufficiently known by the Light of Reaſon ; for how can we conceive that there is a true Piery containd in the
Heart, unleſs it fhew itſelf by fome Ourward Ads of Religion? Men are made in ſuch a Manner, that they do not think that
they ſew a ſufficient Reſpect one to another, if they do not give ſome Proofs of it by word of Mouth, or ſome figuificant A&i-
4.
X2
on,
156 The Duties of Man with regard to Himſelf. Book II.
.
on this Belief, ſo is it the only Foundation of that pay him, as to embrace them with peculiar Fa-
ſweet Tranquillity and Acquieſcence of Mind, vour, and to give them a Title to Eternal Life,
which Men inwardly enjoy, and (3) the very which good Effects do follow only that Inſtitution
Fence and Bulwark of all that Probity which we and Way of Service which he hath reveal'd in a
are to exerciſe towards our Neighbours; without ſingular Manner to the World: Yet a ſerious Per-
which no Man can ſeriouſly and heartily do a ſwaſion concerning the Divine Exiſtence and Pro-
good A&tion himſelf, or give ſufficient Caution vidence, under whatever particular Apprehenſions,
and Security of his honeſt Intentions to others(a). or particular Worſhip, hath however thus much
And although it appears from the Ordinances of of Force and Efficacy, as to render Men more ob-
the Chriſtian Religion, that God is not ſo far ſervant (4) of their Duty. To prove this Afferti-
pleas’d with every Kind of Worſhip which Men on we need only conſider, that there have been of
old

on, ſeeing they can no ways be aſſured of the Sincerity of each others Intention. But if the inward Worſhip of GOD is neceſ.
ſary for the Welfare of Society, as Mr. Thomaſius ſuppoſes it, I can't ſee how ſuch a purely Spiritual Religion can be of any great
Ure; unleſs we will ſuppole that all Men are equally capable of knowing their Duty to GOD, and as careful to practiſe it, ſo
thar none need to be inſtructed or exhorted by others. Mere Talk is not ſufficient for che ignorant and common People, which
are the greateſt part of Mankind; there muſt be ſomething that will affect their Senſes, and rouze their Attention, without which
they'll forget the Being of a GOD. So that though I might enlarge upon the Obligation to our ward Worſhip, of which we ſhall
ſpeak more afterward, Chap. 6. §. 2. we muft grant, 'tis abſolutely neceſſary. And though Mr. Thomaſius declares that he was al-
ways of that Opinion, yet I ſee him owning, in his Fundament. Fur. Nat. & Gent. p. 150. that outward Worſhip is neceſſary for
the Regulation of Honeſty and good ,Order, which, as he explains theſe Terms in the general Reformation of his Syſtem, lay an
Obligation, if not ſo binding, yet at leaſt as true and indiſpenſable, in my Judgment, as that he calls Juſt.
(a) Grotius in lib. Sapientiæ, Cap. 12. v. I. How high ſever come people talk about Honeſty's being deſirable merely on its own Ac-
count'; yet ſo great is the force of theſe outward viſible Things upon our Mind, that without a full Perſwafion of the Divine Providence
and Retribution, and without some Syſtem of Law to guide Men in the true Way of Alting, it is impoſible bat that they would wander
into moſt grievous and fatal Dangers. For, as human Reason is looſe and giddy, when the Paſſions have overcome the judgment, and
the Manners are ſuited to the Paſions, it eaſily finds out a Colour and Diſguiſe for Sin, and ſo long obſtinately refuſeth to hear, till it
grows quite deaf. Therefore the wiſe Man pronounceth thoſe to be miſerably vain, who are ſo far from having a careful Regard to the
Knowledge of GOD and of bis Providence, as to let thoſe great Points depend on every Man's Fancy and Choice: Than which nothing
can be contriv’d more deſtructive, I do not ſay to good Manners, but to Government and Society.
(3) Boethius de Conſolat. Philofoph. in fin. Magna vobis eſt, ſi diſſimulare non vultis, neceſſitas indi&ta probitatis, cùm ante oculos
agitis Judicis cuncta cernentis, i.e. “ Your living under the Eyes of an All-ſeeing Judge, lays a kind of a Neceſſity upon you to
« be Good and Virtuous.”
(4) Lucian de Imaginib. "25 6ool to Jehov pesi ev tagéeyw obxov, ŠTOA megs av Apónes å erson äv &ex, i. e. “ Thoſe who are
“ moſt ſtrict and conſcientious in their Dury to GOD, are the moſt honeſt and regular in their Dealings with Men." It is certain
that Religious Motives are of great Force to wean Men from Vice, and engage them to Virtue, however confuſed and imperfect
Mens Nocions of the Deity are. This may appear ſomething difficult to conceive in reſpect of the Heathens, but we have ſome
Proofs of Fact. I don't ſpeak of Philoſophers, who had more clear Notions of Religion than the Vulgar, although they dared not
deliver them openly. Mr. Selden (in his Treatiſe De Jure Nat. do Gent, Secundum Hebræos, Lib. 1. Chap. 8.) has collected ſeveral
Authorities to make it evident, that moſt of them looked upon the Laws of Nature as derived from GOD, who will puniſh the
Tranſgreſſion of them, and reward their Practice. And 'twould be rio hard thing to add to them many other Paſſages. Nay,
the very People, notwithſtanding their prodigious Superſtition into which they were plunged, yet préſerved fome Tincture of
this importatit Principle, either by reaſon of that natural Relation there is between the Idea's of GOD and Sanctity, which hin-
dered ſuch Men as had not wholly given themſelves up to Vice, from attending to the Conſequences of the received Opinions, or
becauſe there remained ſome Footſteps of the ancient Tradition of the only true GOD, the Creator of the World, and the Au-
thor and Protector of human Society. This ſeems plainly to ariſe from the common Opinion among inoſt of the Heathens con-
cerning the Rewards and Puniſhments of another Life. (See what our Author has ſaid Chap. 3. 9. 20 ) We may alſo find ſome
expreſs Words relating to this Matter in the Poets, who, as every one knows, accommodated themſelves to the common Opini-
ons. Selden has alledged many in the Place above quoted; we ſhall produce ſome others, viz. in the Oedipus of Sophocles, A&t. 3.
the Chorus.
Ei voi gwein osporle ubieg tar
Let th' Gods be ſo propicious co me
Εύσε ον αγνείαν λόγων
As I preſerve my ſelf in Sanctity
Έργών τε πάντων, ών νόμοι πρόκειναι In Words, and Deeds, by th' Laws unto us given
“Υψίποδες Ερανίαν δι' αιθέρα
Noc by poor Mortals, but the GOD of Heaven.
Τεκνοθίνες: ών ΟλύμπG
Which Laws no Mortal can aboliſh quite
Πατος μόνο, έδε νιν θνα τα
For GOD's in them, and by his Pow'r and Mighe
Φύσις ανερων ετικεν, έδε
Will triumph over all that is not right,
Μιω ποπ λάδι κατακριμάστε:
For He can ne'er grow Old
Μέγας εν τέτοις Θεός,
Oudynegoutte
See alſo the Antigone of the fame Poet, v.455. Euripides in his Jon. v. 440, &c. and a Paſſage in Heſiod, which our Author hath
quoted in the foregoing Chapter, S. 2. Note 3. to which we may add v. 321, doc. in the work of this laſt Poet. I will conclude
with Cicero, who was not leſs ſuperſtitious, (De Legib. Lib. 2. Chap. 7.) Vtiles autem eße opiniones has, quis neget, cum intelligat,
quam multa firmentur f urejurando, quant & ſalutis fint foederum Religiones ? Quàm multos Divini Supplicii metus à ſcelere revocarit?
quamque San&ta fit Societas civium inter ipſos, Diis immortalibus interpofitis tum judicibus tum teſtibus, i.e. “ Who can deny the Uſe-
" tulneſs of theſe Opinions, (viz. of the Gods and Providence) when he confiders, how many Things are confirmed by Oaths ?
" How much the Security of Leagues and Alliances depend on Religion? How many the Fears of Divine Vengeance keeps from
6. Wickedneſs? And how careful Citizens are to diſcharge their Duties to each other, becauſe they believe the immortal Gods are
“ not only the Witneſſes, but will be Judges of their Aštions.” See what I have ſaid Lib. I. Chap. 6. S. 12. Note 7. and Lib. 2.
Chap. 3. §. 19. Note 2.
I ſpake in this laſt Nore ſomething touching a Compariſon between a Society of Atheiſts, and another, of ſuch as have ſome
Notion of a God, though imperfect and incoherent; but ſince chat Note was compoſed and printed, Mr. Bayle hath put out
(in 1704) a Continuation of diverſe Meditations upon Comers, where he ſpeaks fomething that may ſerve to ſtrengthen
and explain my Affertion, but I ſhall firſt begin with what Mr. Le Clerc has ſaid upon this Subject, in his Biblioth. Choiſie, Tom. 5.
p. 302, 303. in Anſwer to this Queſtion, whether Atheiſm is to be preferred to Pagan Idolatry ; To which he ſays, “ We muit,
- in my opinion, diſtinguiſh firſt of the Societies, conſider their Opinions abſtractly, and then on the one ſide deſcribe Atheiſm,
" and on the other Idolatry, 'Tis poſſible we may find one ſort of Idolatry better than Atheiſm, and another worſe ; and ſo I
** can neither fay Yea nor Nay, to Mr. Bayle's general Queſtion. In the ſecond place, when we come to conſider, not on the O-
pinions in general, but the Societies in themſelves, which profefs the Pagan Idolatry or Atheiſm, we muſt make alſo ſome cu-
s rious Diſtinctions, and divide the Queſtion into ſeveral Propoſitions, according to the different Cafes which are put, and to
16 which.
Chap. IV. The Duties of Man with regard to Himſelf. 157
old, and ſtill are, Men profeſſing Religions which who from the Experience of long Travels, pre-
we muſt own to be deſtructive to Salvation, as tend to affirm, that Chriſtianity hath not been able
ſuppoſe Mahomet ans, or Pagans; who nevertheleſs to alter the common Diſpoſitions of fome Nation
by vertue of their Perſwafion of God's Providence, towards particular Vices; and that tis not eaſy to
have ſhown no inconſiderable Care and Concern diſcover the Truth of that Holy Religion, from
for Honeſty and Juſtice ; fo as not to be outdone the Manners and the Practices of thoſe who pro-
by many Chriſtians, at leaſt as to External Per- fefs it. Though I ſhould imagine the Reaſon of
formances. Nay, there are not wanting Perſons, that Unhappineſs to be chiefly this, becauſe the
Chriſtian
" which we muſt anſwer negatively or affirmatively, according to their Nature.” Mr. Le Clerc gives us an Example in the ſame
Volume, ſpeaking of the Hiſtory of the Incas, written by Garcilaſo de la Vega, pag. 380, 381. Theſe are his Words, “ If whar
Garcilasſo de la Vega ſays of the Opinions, Laws, and Manners, of the Subjects of the Incas, be true, there is no Idolatrous Na-
« tion in the World, nor excepring the moſt polite and learned, where there are ſuch good Laws, or ſo well obſerved. Their
se Religion which chiefly conſiſts in worſhipping the Sun, whom they believe to be the Father of the Yncas not with Human Sacrifices,
" as they do in the other parts of America, but with Beaſts and other Things, is the leaſt corrupted of any among the Idolaters.
« Beſides the Sun, they hold that there is another Deicy, which they call Pacha-camac, a Word chat lignifies, in their Language,
“ The Soul of the World. They ſpeak of this God as a Being invitible, whoſe Nature is incomprehenſible, and who created the
« Sun and the Stars. They believe the Immortality of the Soul, and have ſome confuſed Notion of a Reſurrection. Suppoſing
“ that all this that Gar. de la Vega ſays is true, we may fay, that ſuch an Idolatrous Society as chis, is incomparably better than a
“Society of Atheiſts, and, in ſome Reſpects, may be preferred to ſome Societies, that otherwiſe have better Principles.” Tho'
this Queſtion in itſelf be not very important, becauſe a Society of meer Atheiſts is a Thing no where to be found, at leaſt, not
in any Country; yet I doubt not, but many Perſons wiſhed that Mr. Le Clerc had deſcended to more particulars.
I ſuppoſed in my Nore, to which this is only a Supplement, that I did not intend to ſpeak of the Opinions of the Atheiſts or
İdolaters, conſidered in themſelves and abſtractly, buc only of the Effects they are able to produce in reſpect to Societies. I ſup-
poſed alſo, that in the parallel between a Society of Idolaters and Atheiſts, we might conceive an Idolatry which did not deſtroy
the principal Fundamentals of Religion, i.e. the Effence and Providence of ſome Deity. For it is certain, that Faith in the Ex-
iſtence of a God, without Faith in his Providence, is at the bottom indirect Atheiſm, as to Moralicy. Upon which Foot I think
that, all Things being otherwiſe equal, a Society of Athefts, i.e. a People compoſed of Men Learned and Unlearned, Perſons of
all Orders and Conditions, bearing that Character ; ſuch a Society, I ſay, will be more corrupt than another which preſerves the
fundamental principles of Religion, though mixt with Errors, and Things inconſiſtent with the Truth. And ſince in this Queſtion
we have chiefly an Eye to the ancient Heathens, let us ſuppoſe, for Example, that the Commonwealth of Greece, or ſome Roman
Province, were on a ſudden turned Atheiſts, and no Man had any Senſe of Religion; I ſay, that after ſuch a Change, that Com-
monwealth or Province could not keep up any tolerable Order in Civil Society, but there would be among them many more Diſor-
ders than were before. And my Reaſons are theſe, Among the Heathen, the People were not iguorant of the Agreement there is
between Religion and the Laws of Nature. The Poers, who principally dealt with the People, have delivered many Things (as
Mr. Le Clerc in his Bibliotheq. Choiſie, Tom. 3. Thews) that prove that the true Notion of GOD was not quite blotted out of their
Minds. For Example, the moſt ancient of them, Homer and Hefiod, ſpeak thus of the Gods, That they are Almighty, Immortal,
Good, Omniſcient, Wiſe, Happy, the Lovers of Virtue, and Enemies of Vice, &c. Moreover, the Unicy of the Godhead itſelf was
not altogether unknown to the Poets, although Mr. Bayle ſeems to think that all the Heathens were ignorant of that Truth. No-
thing can prove this better and more fully, than theſe Verſes of Sophocles, in a Tragedy now loft, but preſerved to us in Grotius's
Excerpta, pàg. 1494
Είς ταϊς αληθείαισιν, ας ες θεός,
In Truth there is no more Gods but One,
“ος έegνον τ' έτπυξε, και γαλαν μακραν, Who made the Heaven, far extended Earth,
Movt te zá@gmov oidud, reivé Lewr Bias The blue ſwelling Sea, and fierce Winds.
Θνητοι και πολλοί καρδίαν πλανώμενοι Yer many Men being grofly deceived,
“Ιδρυσάμεθα πημάτων παραψυχής, Have erected, to comfort themſelves in Trouble,
Θεών αγάλμαθ' έκ λίθων, ή χαλκέων, Images of the Gods, of Gold, and Stone, and Braſs;
*Η ευσυτεύκων, ή λιφαντίνων τύπες And offer Sacrifices to them in their Aſſemblies,
Θυσιάς και τέτοις, και καλας πανηγύρεις And think that they are Religious.
Τα χοντες, όπως δυστον νομίζομδυ.
Several other Paſſages, beſides what are alledged above, might be produced, to prove that the Practice of Virtue was well plea-
fing to the Gods; on the contrary, Vice odious, notwithſtanding the Crimes attributed to them in their Fables. Mr. Bayle, in
the Continuation of diverſe Meditations, pag. 654.) ſays, “That ſingle Theft, for Example, and lying, were not contrary to the Ore
“ dinances which their Gods had exprefly delivered, and ſo they believed that their Gods did not regard them.” I own, that the
Prieſts ſpake very little of Morality to the People, but this hinders not but that the principal Duties of the Law of Nature were
known among the People, who looked upon them as Laws to which the Gods required their Obſervation, although their Notions
of them were very obſcure, and corrupted by ill Cuſtoms. This is what the Poets always ſuppoſed, who contributed more to
their entertaining the Notions of Virtue and Vice, than the Prieſts, who, as wicked as they were, dare not openly contradict
them. We find in Euripides this fine Sentence, which he makes a Woman to ſpeak, and ſay, That the Gods abherred all-Oppreſſion,
Extortion, and every unjuſt Way of enriching our ſelves. The ſame Poet alſo ſays, that every Crime is A GREAT IMPIET Y, as
well as a great Folly, in theſe Words,
Tè d' auraxaggeiv å oil eie uszáan,
Kexopeórwr ' dvdgão trackvoid Oreft. v. 821, 822. Ed. Cant.
See Heſiod. Oper. & Dier. v. 180, doc. 219, doc. and 238, 239. Ed. Cler. and Mr. Earon Spanhemius's Comment on Callimachus,
Hymn. in Jovem. v. 3, and in Cerer. v. 19. Many more ſuch paſſages might be collected out of the Poers; but there is a remarka-
ble place in Plato that may not be paſſed over. That Philofopher, treating of Incest, ſays, That it was looked upon with ſuch Hor-
ror, that Men of no Honeſty, yea, and the Common people, would not entertain ſuch wicked Defires, for a Siſter (for Example)
though ſhe were never fo fair. And that which extinguiſhed thoſe Impure Thoughts was this, That Inceſt PASSED FOR AN
UNLAWFUL AND ABOMINABLE ACT WITH THE DEITY. No Body, ſays he, contradi&ts it, every one knows this
from his Cradle, and all the World keeps to it in both jocular and ſerious Diſcourſes. The Stage repreſents Thyeſtes's, Oedipus's and
Macareusºs who flew themſelves for the Inceſtuous Commerce which they had with their Siſters. His Words arc, Euineov poñerce
κατασβέννυσι πάσας τας τοιαύτας ηδόνας
... τη ταύτα ΕΙΝΑΙ Φ Α ΝΑΙ ΜΗΔΑ ΜΩΣ ΟΣΙΑ, ΘΕΟΜ Ι Σ Η
ΑΕ, και αίσχρών αίσχισα. το δ' αίπον ας' και σε όξι, το ΜΗΔΕΝΑ ΑΛΛΩΣ ΑΛΓΕΙΝ ΑΥΤΑ, αλλ' ευθύς οξυο κινου
και μην έκαν, ακέειν τε λεόντων αεί και παναχύ ταύτα, ο γελοίοις τε άμα, αν πάση τεσπαδή τραγική λες μ' και πολλάκις, όταν και
Θυέσας, ήτίνας Ο' ιποδας εισάγωσιν, ή Μακαρέας τινας αδελφαίς μιχθένας λαθραίος, όφθένας 3, επoίμως θάνατον εαυτοίς οπι-
745761) cs díxlu s djuptias. De Legib. Lib. 8. p. 838. Ed. Steph. So that it was a common Opinion, that even in this Lite Crimes
do not go unpuniſhed always, but whoever violates the Law of Nature, hath great Reaſon to fear the Effects of Divine Vengeance.
Plautus has a fine paſſage to this purpoſe, ſufficient to Thew how great Impreſſion ſuch a perfwaúon makes upon the Minds of the
Common People. Ardurus one of the Conſtellations, is introduced, ſaying, Thar Jupiter the King of Gods and Men, had
ſent him and other Conſtellations, i. q. inferior Deities which preſided over the Stars, lie' fent them, i ſay, into all pares, to be
Witnelles



158
The Duties of Man with regard to Himſelf. Book II.

Chriſtian Doctrinel and Worſhip, being received which they happen to be born, reſides rather in
by moſt Men, noe upon their own Choice and their Mouth than in their Heart; whence it
Judgment, but from the Cuſtom of the State in comes to paſs, that fo few are ſeriouſly inclin'd to
reform
moi
905191)
Atque
-010
Witneſſes of the Actions, Manners, Piety and Fidelity of Men, and to ſee how every Man enriched himſelf. " We wrote down
diſtinctly
(fays Arcturus) the Names of thoſe who made ute of Falſe Witpeffes, to carry their unjuft Cauſes, or who deny
's their Debts upon Oath before a Judge, and carried them to 7 upiter, and by this he knows every Day who they are, that by
" their Crimes pull down his Judgments upon their Heads. He knows them that are ready to take an Oach to get their
" Cauſe, and ſuch as get it unjuſtly by the Favour of the Judges. He reviews their Cauſe, and judges it anew, condemning
“ the Offender to ſo great a Puniſhment, that the Gain they have made by it is inconſiderable. He hath the Names of Good
« Men written in another Book. Theſe Wicked Men Hátter themſelves, that they can appeaſe Jupiter with Offerings and
“crifices, but they loſe both their Labour and Coft, for he regards nor any of the Prayers or Services of Perjured Perſons. A
“Good Man will be eaſily heard, and obrain Favour of the Gods, but the Sinner cannor. This I advertiſe you of, Oye Vir-
tuous, who live in Piery and Integrity: Continue in them, that ye may receive the benefit of your good conduct. ” The Poet
thas expreſſes himſelf, on to Tesnes
Coquim HISTED OVE os 1
2Toob nt Is nos per gentes alium alia diſparat,
Bonos in aliis tabulis exfcriptos habet. meil nich v 26 **
Hominum qui fa&ta, mores, pietatem do fidem hoc ſcelefti in animum inducunt fuum,ad phiog **
Storie Noſcamus, lit quemque adjuvet Opulentia: Jovem ſe placave poſſe donis, hoftiis :
Job Qui falſas lites falſis teftimoniis ' SITIOS un
Et operam for fumptum perduunt : ideo fit, quia non baste?
un tonovic Petunt, quique in jure abjurant pecunia: w Nihil ei acceptum e{t a perjuris ſupplicia. Podeu
Peloto Eorum referimus nomina exfcripta ad fovem. Facilives, la qui pius eft, à Dîs fupplicans, citishia to 1002
Cotidie ille ſcit, queis hic quærat malum, en Quam qui bele tu, et, inveniet veniam ſibi, slini online
Qui heic litem apilci poſtulant perjurio, Iccireo moneo vos egin bac, qui eſtis boni,
Malires falſas qui impetrant apud judicem : Quique et atem agitis cum pietate do cum fide, Y TODO
w Iterum ille eam rem judicatam judicat, a Retinete porro, poft faétum at lætemini.
Abiti lobi
Majore multâ mul&tat, quam litem auferunt.
Rudent. Proleg. v. 10, Lc. glo
Horgung Som legioni
I do not know what Mr. Bayle thought, when reciting exactly what the Conſtellation afferred upon the Roman Theatre, he ad-
ded thereupon, (Reſp. ad Provincial. Tom. 4. p. 320.) “ This was not to teach Men, but only in this
, that they ſhould not offend
" the Deicy perſonally in abuſing Oaths, which they have taken to bear Witneſs with the greateſt Formality, which if they do,
“they need not fear his Anger." But, on the contrary, is it not very evident, that the Poet ſpeaks of Honeſty and good Manners
in general, without which all outward Acts of Religion are no ways acceptable to GOD, and if he mentions other Crimes join-
ed with Perjury, it is only to give an Example of the moti enormous Wickedneſs, and ſuch Circumſtances as aggravate the hei-
nouſneſs of it. Nor is Mr. Bayle more happy in Citiuiſm than he is in Reaſoning, “So that (adds he) Common Lies, Evil-
Speaking, Lewdneſs, Drunkenneſs, and an hundred other Diſorders may promiſe themſelves Impunity in Reſpect of the Gods.
Be it ſo, yet it will be always true, that Religion will be of Force to keep Heathens from Fraud, Cheating, Double-dealing, doc.
in which it has much the Advantage of Atheiſm; and we know that many Heathens were faithful in their Dealings, for fear of
bringing down Vengeance upon them in this world, and, on the contrary, to obtain Succeſs of the Gods in their Affairs. As to
the Rewards and Puniſhments of another Life, we know that an ancient Tradition, which is much inculcated in the VVritings of
the Poers, made the Opinion common almoſt every where. But can we think that thoſe Puniſhmeprs were only deſigned for them
who neglected the outward Worſhip of GOD, or directly offended his Majeſty? Read the Deſcription of Hell written by Virgil,
and you'll ſee that not only the Titans, Gyants, Salmoneus, Tityus, Ixion and Pirithous, are puniſhed, but Brethren that are Ene-
mies, and they who beat their Father'; thoſe who deceive their clients and Dependants, hoard up their Riches, and will nei-
ther impart them to their Fathers nor Friends; thoſe who have been Nain in the Act of Adultery; who have engaged in unjuſt
VVars; ſuch as make no Conſcience of breaking their Promiſes made to their Maſters. Another cries out, as loud as he
can,
“Learn by my Example, to do Juſtice, and not to flight the Gods.” Another hath fold his Country, and betrayed it to a Tyrant.
Another for Money has made Laws and abrogated them. Another has committed Inceſt with his own Daughter. “If I had,
adds Sibyll," an hundred Tongues, and as many Mouths, with a voice that would never fail, it were impoſſible for me to reckon
up all the different forts of Crimes which are puniſhed in that place, or the Names of all the different forts of Puniſhments
6. which the wicked ſuffer.” Theſe are his VVords, DHA
Hic, quibus inviſi fratres, dum vita manebat, Diſcite juſtitiam moniti, & non temnere Divos.
Pulſat uſq; Parens, do fraus innexa Clienti; Vendidit hic auro Patriam, Dominumque potentem tudo
Aut qui divitiis joli incubuere repertis,
Impoſuit, fixit leges pretio atque refixit,
Nec partem poſuere ſuis, quâ maxima turba eſt; Hic thalamum invafit natæ vetitoſque hymeneos. to the
Quique ob adulteriuin caſi; quiq; arma ſecuti
Impia, nec veriti dominorum fallere dextras; Non mihi ſi lingue centum fint, oraque centum,
Incluſi poenam exſpeliant
Ferrea vix, omnes ſcelerum comprendere formas,
magna teſtatur voce per umbras : Omnia pænarum percurrere nomina poffim. Æneid. 1. 6. v. 608.
He, on the contrary, repreſents Good Men in a place by themſelves, viz. in the Elyſian-Fields, enjoying the Happineſs of another
Life, and being, as ir were, under the Conduct of a wiſe Cato.
Secretoſque pios, his dantem jura Catonem. Æneid 8. v. 680.

There are, I own, inany ridiculous Fables mixed with theſe Deſcriptions of the Gods, and another Life, and the blockiſh Mul-
tirude did apparently depend more upon the Chimera's of the Poers than on the Truths which they had interſperſed in their
V Vorks. But is it credible that among the People themſelves, which comprehends the illiterate part of Mankind in general, there
ſhould be many who have acknowledged, at leaſt, in part, the Abuſe, and gave great Attention to the true Principles of Natural
Religion, tho' mixed with many Fallities. Theſe Notions eaſily enter into the Mind of any Man that will make uſe of the Light
of Nature, and Men without Study are ſometimes better diſpoſed to receive the Truch, and leſs pejudiced, than fuch as profeſs
themſelves Learned, (See Parkhaſiana, Tom. 2. p. 103, &c.) The Poers might here alſo ſhew the People the way, and give them
Occaſion to think that they did nor themſelves believe che Abſurdicies which chey attributed to the Gods, as Hercules's VVords in
Euripides may prove.
'Eqw @ Tès Ocès éta ', un déuss, I don't believe the Gods love unlawful Beds,
Στέργείν νομίζω, δέσματ’ οξά αν χεesir: Or that they put one another in Fetters and Chains:
Ούτ' αξίωσα πώποτ', ότε πείσομαι,
Nor can I perſwade my ſelf to believe
Ουδ' άλλον αλλά δεασύτω πεφυκέναι. . That one of them is Maſter of the other.
Δά τον γδ ο Θεός, Η αρ ες' όντως θεός, God, who is really fuch, can ſtand in need
Ουδενός, αιωδών οίδε δύσηνοι λόγοι.
Of Nothing. Theſe are the falſe Accounts of the Poets:
See alſo Mr. Baron Spanhemius, upon Callimachus's Hymn. in Fovem do in Iphigenia Taurica, where the Quire thus fpeaks, v.385,
Sic. Ed. Cambr.
- Eza


H

Chap. IV. The Duties of Man with regard to Himſelf.
159
reform their Mind by its Directions. For I doubt National Vices, might be repreſt, would Men
not, but that at leaſt the External Acts even of but apply themſelves in earneſt to the leading a
Life


• Ew we er
'Tis incredible to me that Tantalus ſhould feaſt the Gods,
Tai Tantalar neõlov esihudla,
And that they ſhould eat the Fleſh of Children,
*Απςα κείνω, παιδες ηθη ναι βορά.
I rather think, that the inhabitants of that Country
Tές ' ενθαι δ', αυτές ένας άνθρωποκτόνες, VVere accuſtomed to Homicide, and to juſtify their Crimes
Εις ή τον το φαύλον αναφέρειν δοκώ.
They attributed them to the Gods; for I can't perſuade myſelf
Ουδένα γδ οίμαι δαιμόνων ή κακόν, , That any God can be guilty of ſuch a VVickednes.
Pindar had before ſaid much the fame Thing, reflecting upon the ſame Fable,
Εμοί δ' άπορα, γασρίμαρος
To me it is abſurd to ſay, that God's a Glutton,
Μακάρων τιν' ειπείν,
I muft withhold Afſent. They chat thus abuſed
'Αφίσταμαι, 'Ακέρδεια λίλογχν
Thoſe Happy Beings ſhall ſurely be puniſhed.
Θαμινα κακαόρως. -
Olymp. I. 82.
The fame Poet, as Mr. Le Clerc obferves (Biblioth. Choiſ. Tom. 6. p. 269.) ſhews a little higher that he was ſenſible of the Falf-
hood of theſe Fables, ſaying, “Romantick Stories and Fables, ſet out with divers Fictions, do more eaſily gain Entertainment
« in Mens Minds, than true Hiſtories. A flouriſhing Rhetorick which pleaſes Men, fercing off a Thing makes a Thing almoſt in-
“ credible to be believed. But length of Time certainly diſcovers the Truth. Men ſhould always ſpeak well of the Gods, for
“they run the leaſt Hazard. »
Πιο Η θαύμαζα πολλά,
Koi ämsové urcalo msonga .
Kai
Ti και βροτων φρένας. Οι "Eup.svas to mandéres, in adam
“Υπέρ ή αληθή λόων
Αμέραι δ' οπίλοιποι,
Δεδαλμένοι ψεύδεσι ποικίλους
Μάρτυρες σοφότατοι, γιατί
Εξαπατώνι μυθοι,
"Es des ei ocuering
Χάρις δ' άπερ άπανία το &-
'Ερικός αμφί δαιμόνων. Η εταιρία και
χα τα μίλιχα θνητοί, ,
Kendo usiwv 78 atid, er wollton por
Επιφέesισα τιμών,
Theſe Reflections may eaſily come into the Minds of the moſt ſimple Perſons, that will but make Uſe of their Natural Senſe.
For 'cis probable that the Poets did not hatch them in their own Brains, but here, as in other Things, followed the Dictates of
Nature. We have always obſerved theſe Things to happen among Chriſtians, and doubtleſs the ſame things happened among
the Heathens. Among the Papiſts, in ſome Countries eſpecially, one word from a Prieſt will raiſe the Mob againft an Heretick,
as they call them; bue yer there are many honeſt Men, who abhor ſuch a Diabolical Madneſs, and do not believe that any Man
may be perſecuted for his Religion ; though the Clergy inculcate that Doctrine with all the Earneftneſs poſſible, to ſatisfy their
Ambition, Pride and Avarice, and to engage the People in their Intereſts, who ſuffer themſelves to be led blindly by their Ha-
rangues, eſpecially when they ſuggeſt Things agreeable to the r brutiſh and irregular Inclinations. We may alſo ſay the ſame
of diverſe Opinions, which are received by the ſeveral Parties of Chriſtians. The Doctrines of Tranſubftantiation, Impanation,
and the Ubiquity of Chriſt's Body, are ſuch grofs Contradictions, that none can believe them, and though ſome Men make a Pro-
feffion of that Faith, they no more believe them than ſuch as deny them. (See what I have ſaid in my Preface to Tom. III. of
Archbiſhop Tillotſon's Sermons.) But there are other ſpeculative Opinions and moral Maxims, either entirely or very unſound,
which the Preachers deliver from the Pulpit, without convincing many Men, who by the Strength of meer Natural Reaſon per-
ceive the Abſurdity of theſe Doctrines and Maxims, or explain them in a clear different Senſe from the Preachers, as appears
when they are queſtion’d about them in familiar Terms. The Pagan Fables were in like Manner abſurd, and why may we nor al-
ſo believe that many among the People looked upon them as falſe, and kept to the Fundamentals of Nacural Religion, though
with ſome Mixtures of Error and Imperfection. Did not Men then make Uſe of their Reaſon? Or were thoſe Truths ſo obſcure
that they could not be found out but by long and profound Meditation? We may with much greater Reaſon ſuppoſe, that they,
whoſe Education has been above the common fort, in going to the Schools of the Philoſophers, and carefully reading their
Books, ſhould be happily freed from the Superſtitions and groſs Nocions of Heatheniſm. With what Liberty did the Philoſo-
phers inſult the Religion of the Vulgar ſeveral ways? “We may believe (ſays Mr. Forutenelle, in his Hiſtory of Oracles, Diſſert. 1.
Chap. 8.)“ thar among the Pagans Religion was a ſort of Practice, whoſe Speculation was a Thing indifferent. Do as others do,
" and you may believe as you pleaſe.” This is a wild Notion, but the People, who ſaw not the Weakneſs of it, were contented
with it, and the Philoſophers ſubmitted readily to it, becauſe they got by it
. Mr. Bayle alſo (in his Diverſe Meditations, p. 367.)
owns, That there were, among the Heathen, Men of ingenuity and good Senſe, who, without Philoſophy, had ſometimes tolerable
Notions of the Deity. It is true, that, according to him, they were not to be regarded, becauſe when they had heard the Rea-
ſonings of the Philoſophers, about the Nature of the Gods, as ſoon as they were gone, they did as others did. But it is no ways
neceſſary in the Queſtion we are debating, to find ſuch Men among the Pagans as had the Courage to oppoſe the common Errors
or Worſhip eſtabliſh'd by publick Authority. 'Tis ſufficient that ſeveral did acknowledge the more groſs Abuſes of Superſtition
and Idolatry, and acquire fuch Notions in Religion as were able to produce ſuch a Degree of Honeſty, as they could not have
had if they had been Atheiſts. The Deſcriptions of the Pagan Corruptions, made by Mr. Bayle (in his Continuation of Diverſe
Meditations, p. 702, &c.) do not prove the contrary. Theſe ſort of Deſcriptions oughe not to be taken in a Metaphyſical Gene-
rality, 'tis fufficient chac, according to the Rules of good Criticiſm, they agree to the greateſt Number. Farther, the Men of
vehom I am now ſpeaking, not daring, for fear of incurring a general Odium, to openly oppoſe thoſe ſtrange Abuſes of the Vul-
gar, deſerve cercainly to come under that Deſcription as well as the Philoſophers, as having ſuppreſſed the Truth which they
knew, according to the Reproof given them by se Paul, Rom. i. 18. But you'll ſay, we muſt not attribute the Honeſty of theſe
Men to the Religious Notions they bąd received : It was cauſed by a Principle of Honour, Fear of Laws, che croſfing of Paſſions,
and ſeveral other Intereſts proceeding from Self-Love. That this is all the Virtue which moſt Men have, as we ſee among Chri-
Rians, can'c
be deny?d, but doth it thence folow, that no Heathen was incliud to Virrue by a Religious Motive, or with a reſpeco
to the Puniſhments and Rewards which are diſtributed by the Deity, either in this Life or the next. "I can't deny, ſaith Mr.
Bayle, (in his Diverſe Meditations, p. 439, 440.)" but there have been ſome Heathens, who making a good Uſe of their know-
a ledge of the Nature of God, have by that Motive ſubdued the ſudden Force of their Paſſions. But then (ſays he) 'cis moſt
5 probable, that when this Motive was ſo prevalent, their Paffions were ſo moderate, that they might have been reduced by
Reafon, without that Help.” So we may as well believe, that among Chriſtians no Man is Vircuous purely through his Religịous
Principles, becauſe there are Laws and Difgrace attending every Crime; nay, in a word, all the other Motives which have place
in Heatheniſm. Moreover, what we have ſaid of the Laws may fuggeſt a Reflexion not to be ſlighted. Theſe wife Lawgivers
of Antiquity ſo much eſteemed and reſpected by all the VVorld, at the ſame time that they appointed that the Gods ſhould be
worſhipped in their ſeveral Countries, forbad, under the moſt rigorous Puniſhments, moſt of thoſe Crimes which the Vulgar at-
tributed to their Deities. And is it not natural to infer from thence, that they looked upon the Fables as abſurd Relations of the
Poets, which the People pleaſed themſelves with? At leaſt, this is the Reaſoning of Lucian in his Necromancy, Tom. 1. p. 327.
de rès vorros élas rá vanie Tchas mesmas ei ole muonea civ er en diye bevov, i.e. « On the one fide
I can't imagine that the Gods

.
65 comic
160
The Duties of Man with regard to Himſelf Book II.
Life ſuitable to their Profeſſion (5).
So are the Opinions contrary to theſe Truths moſt
IV. As this Perſwalion, and whatever elſe we carefully to be barr'd off and excluded. And here
are able co learn concerning the Worſhip of God, we would not only be underſtood of Atheiſtical
either from Reaſon or from Revelation, is firſt of and Epicurean Principles, but of thoſe numerous
all to be implanted in a rightly Cultivated Mind: Notions which appear to be deſtructive of true
“ comniit Adultery, or that there are among them Diviſions, or at leaſt that they think theſe Things Juſt and Honeſt; and on
« the other ſide I fee, that the Lawgivers have ordained the contrary, which they would not have done, had they thought them
“ profitable.” But you'll ſay again, The very Notion of Honeſty, confidered without any reſpect to Religion, might incline the
Heathens; for Example, To render Men their Dues, tho’they might keep them without any apprehenfions of Puniſhment from
the Laws, or Diſgrace otherwiſe. But I'll leave it to any, Conſidering Man, if the Reaſonings which Mr. Bayle attributes to an
Atheist, can come into any Man's Mind but ſome fubtil Philoſophers, who are exerciſed in deep and abſtruſe Metaphyſical
Medications. 'Tis not conceivable that any Philoſophers, whether Atheiſts, or not, ſhould be inclined to practiſe the Maxims
of Virtue, by no other Motive, but its own Beauty, whether inward or outward.
It is very evident, that all that is ſaid about theſe Notions of Honeſty, is in the Mouth of moſt Men, eſpecially Atheiſts and
Epicureans, meer empty Talk and pure Declamation, of which the Mind is not perfuaded. Nor are we more ſure that all thoſe
who ſay, That Honeſty is natural to Virtue, and Diſhonefty to Vice, that Virtue is worthy to be loved for itſelf, and is its own Reward,
(Continuation, &c. 761.) have by that means excluded all Relation between Honeſty and the will of GOD, as the Example al-
ledged by Mr. Bayle out of Cicero, gives us Reaſon to believe. It is true, that he maintains, That unleſs we could eſcape the Eyes
of God, as well as Men, we ſhould not ſuffer ourſelves to hearken to any Motions of Avarice, Injuſtice, Debauchery, or Intem-
perance. But does
not the ſame Author declare poſitively elſewhere, that God is the Author of the Law of Nature ( Lib. z.
De Repub. apud Laétantium Lib. 6. Chap. 8.) in theſe words, Unuſque erit communis quaſi Magiſter, do Imperator omniurn Deus; ille
Legis, illius [viz. RECTÆ RATIONIS, NATURÆ CONGRUENTIS) INVENTOR, DISCEPTATOR, LA-
TOR, doc: See the whole Paffage quoted above, Chap. 3. S. 20. Note 5. What do I ſay? In the ſame Book of the Of-
fices from whence this Paffage is taken, which Mr. Bayle quotes, do we not find, that the Law of Nature is both an Human
and Divine Law ? Atque hoc multo magis exigit ipſa Naturs Ratio, que est Lex Divina do Humana, Lib. 3. Chap. 5. Edit. Græv.
And a little lower, chap. 6. he explains himſelf better, Qui autem Civium rationem dicunt habendam, externorum negant, bi diri-
munt communem humani generis Societatem : quâ fublatâ beneficentia
, liberalit as, bonitas, juſtitia funditus tollitur : quæ qui tollunt,
etiam adverſus Dens Immortales impii judicandi ſunt, i.e." They that hold, that the Rights eſtabliſhed among Citizens are to be
“ regarded, yet will not allow them to Strangers, and theſe laſt deſtroy the Society general of all Mankind, with which Bouncy,
“ Liberality, Humanity, and Juſtice muſt fall
. Now to attempt this is an Impiety againſt the Gods themſelves, ſince it is the de-
“ ſtruction of that Society they have eſtabliſhed among Men.” The ſame thing appears in many other Paſſages of that famous
Roman.
Whoever then will conſider what I have ſaid, will perhaps agree, that notwithſtanding the Pagan Blindneſs, Religion
hath won from Vice, and inclined to Virtue, many Men who without that had never been Virtuous, eſpecially ſuch of the People
as were not able to make or underſtand all the Reflections which the proſpect of Intereſt, or Fame, and the Norion of Honeſty
might ſuggeſt to the Philoſophers. As for others they would not be leſs corrupted, ſuppoſing they were Atheiſts
. Generally
ſpeaking, we may ſay, in my opinion, that the Falſe Notions of Religion abate the Evil of an Action rather than produce any;
they ſerve for an Excuſe or Pretence, but never invite into any Crimes of themſelves, even thoſe who are otherwiſe inclined có
thein. For the moſt part, thoſe whom we think to be ſeduced by Superſtition, or by falſe Conſequences drawn from the true
Principles of Religion, act altogether by another Motive, which is, if not the only, the chief Caufe at leaſt of their Conduct : Theſe
are ordinarily the downright Hypocrites, Men without any Religion, and falle Devoto's
, who (as Mr. de la Bruyere ſpeaks, p.478.)
under a King that is an Atheiſt will be Atheiſts, or who, if they have noc extinguiſhed quite all ſenſe of a Deity, and a Proviá
dence, yet at leaſt look upon theſe great Truths as ſome indifferent Problems. Montagne ſpeaking of a great Nuniber of Chriſti .
ans, fays, that ſome fallly make the world believe, that they believe what they do not; others, and thoſe a great Number, cheat
themſelves with a falſe Norion of Faith (Eſſays, p. 316. Edit
. Pariſ.) and how much greater Reaſon have we to think that Pagi-
niſm affords Men of that Character? I do not deny but there are ſome Men which engage themſelves in Evil Actions out of a
Principle of Religion, but if Idolatry and Superſtition feducerh them, in fome Reſpects, 'cis becauſe what is otherwiſe good and
true in Paganiſm had no Influence upon them to keep them from Vice, and incline them to certain Virtues; infomuch, that the
Evil that Religion produces on the one ſide, is compenſated by the Good it doth on the other; for we muſt not imagine, that the
greateſt Bigots to Paganiſm did only
draw, or obſerve all the Conſequences which naturally followed thoſe things, which they
attributed to their Gods. What I have ſaid above proves the contrary, and no Man but muſt as readily agree to it, as Mr. Bayle,
who has taken great Pains to prove it, That Men do not realon and act always according to their Principles, and perhaps has
much deviated from his Subject. A Pagan may, for Example, proftitute his Daughter upon ſome Feſtival in hononr of the Gods,
and for all thar be honeſt in his Buſineſs, a Religious Obſerver of his l'romiſes, Serviceable, Charitable, doc. for fear of the Gods.
They are uſually ſome ſpecial Notions of Religion which make Impreſſions upon Men, and which determine them to do Good or
Evil; but the general Notion of a Deity, that he puniſhes Vice and rewards Virrue, works more effectually upon them, a Notion
fo affecting to Mens Minds, that it often hinders the Effects that had Principles would have upon ſuch as profeſs Religion. But
I ſhali fay no more in this matter, yet tho I have enlarged myſelf beyond the Bounds of a Nore, I can't but add ſomething more
about it ; Mr. Bayle who has quoted that Paffage of Grotius upon which our Author Criticizes, explains it thus ; (Continuat. dc.
p. 768.) We ſhould be obliged to follow the Law of Nature, if we ſuppoſed that there were no God nor Providence; but his way
of expreſſing himſelf
, viz. Hæc locum aliquem haberent, etiamfi daremus, &c. fhews, that he means no more than what's expre?
fed in my Note. I know not what Mr. Bayle means by thefe words, Law and Obligation; but in the Language of the Philoſophers
a Law ſuppoſes a Superior, and Jus comes from Jubeo, becauſe Right and Law proceed from the Authority of a Superior. Our
Author, as I think, has very well proved in the foregoing Chapter, Ş. 20. and Lib. 1. Chap. 6. $. 7,8. That Man's Will cannor
impoſe any Obligation, properly ſo called, upon itſelf, and that Maxims of Reaſon are not ſufficient of themſelves to determine
the will neceſſarily this way or that way. All that Mr. Bayle ſays, proves only, 1. That an Atheiſt knows that Thankfulneſs and
Gratitude are two different Things, as are alſo Faithfulneſs and Deceitfulneſs, a Circle and a Triangle. 2. He can perceive that
the Maxims of Virtue are not purely Arbitrary, but that they have a Foundation in the Nature of Things, and imply a certain
Convenience. But can that alone make him certainly follow thoſe Maxims contrary to his private Intereſt, and the bent of his
Defire? I can't think it can ever come into an Atheiſt's Mind, much leſs, that he fall have the Courage to facrifice his Earneſt
Paſſions to thoſe fine Notions. He may think it becomes a Reaſonable Creature to conform to Reaſon, but from the Moment that
theſe Maxims of Reaſon are oppoſed by the Enjoyment of any Pleaſure in which he promiſes himſelf more Satisfaction than he ac
preſent enjoys, he'll filence his Reaſon and follow the Allurements of Senſe. Let us ſpeak the Truth, Suppoſing the Impiery of
the Atheiſt, he does not act unreaſonably in following the Voice of Nature, whoſe words, according to Mr. Bayle, are, (Conti-
nuat. doc. p.31.) “We muſt Eat and Drink well, enjoy all the Pleaſures of Senſe, prefer our own Intereſt before another's, accom-
C modate ourſelves to every Thing that is agreeable, to do a Wrong rather than fuffer any, to revenge Ourſelves, &c. See more
againſt Mr. Bayle in Mr. Bernard's Extract of his Continuation, &c. in his News from the Rep. of Letters, May 1705. and in his
Diſpute againſt Mr. Bayle, April 1707; Art. 3: May, Art. 4. fune, Art. 3. August
, Art. 3. and September, Art. 4.
(s) we may add to this, That tho?the Chriſtian Religion be not obſerved as it ought, inſomuch thac there is little or no dif-
ference between the Manners of Chriſtians and Pagans, yer Chriſtianity has divers great Advantages above Paganiſm, as Mr. Le
Clerc has made it appear, in his Treatiſe of Infidelity, Part 2. Chap. 5. p. 222. To the Examples that he has produc’d, to thew
the good Effects of the Chriſtian Religion, we may add this very remarkable one, that by it the Cuſtom of expoſing infants is
utterly aboliſhed, which was ſo much uſed by the Greeks and Romans, as Mr. Noodt in his Julius Paulus The ws.
Religion,


told him Fate te pas his Fate to ſteal : Yes,
bus
CHAP. IV. The Duties of Man with regard to Himſelf. 161
Religion, of Good Manners, and of Human So. A Son his Father, Father kills the Son,
ciety, which it is in an high manner the Intereſt On niutual Wounds ewo headlong Brothers run.
of Mankind, to ſee abſolutely roored up, and Theſe Combats prove the force of Ruling Powers:
baniſh'd out of the World. Such is that Fancy of For they are too unnatural to be curs.
the Stoical Fare, or the unchangeable Courſe and Nay, this Opinion's ſettled by Debate,
Wheel of Things and Actions ; by which Men are 'Tis Fate, that we ſhould thus diſpute of Fate.
made only the Tools or Engines of their own 0: cingo
Mr. Creech.
perations, it not being in their Power to manage
them
with any Freedom of Choice, or with any And this Superſtition ſtill bewitcheth a great part
Direction of Counſel. For admitting this Hypo- of the Eaſtern World, where no Buſineſs of Mo-
theſis, it doth not appear, why the Actions of ment is undertaken without conſulting the Aftro-
a Man ſhould be morally imputed to him, rather logers, that they may reçd, as the Phrafe is, what is
than the Motion of a Clock to the Wheels by written in Heaven. (3) To which purpoſe Father
which it is perform’d, or what would be the uſe Bernier tells a pleaſant Story of a Gardener of Abas
of Religion, what the Equity of Laws and of King of Perſia, who rooting up fome Trees which
Puniſhments. Seneca Oedip.
the King, by Direction of his Aftrologer, had
de planted in a Fortunate Hour, and being thereupon
Fati iſta culpa est; nemo fit fato nocens.
rebuked, turning to the Aſtrologer, Sure, ſays he,
The Fault is Fates ; and Fate can fix no Guilt. you was out in your Calculation : For thoſe Trees could
never have the benefit of lucky Stars, which were ſet
Vid. ibid. v.980, &c. Homer lli. T.
at Noon, and unfortunately pulld up at Night. Ano-
ther Relation like this, he gives us of a certain
'Ey w od čr cnós vilu,
Slave, a Run-away from Goa, who ſet up in the
'Anne Zeus is kõiga tj. neegpõiles
City Debli for an Expounder of the Stars, and
’Eevveus .
foretold many ſtrange Events with good Confi-
The Fault's not mine, but Jove’s and Fate's, dence to the People : Every now and then look-
And the Night-wandring Hag's.
ing upon his Mariner's Compaß and
Compaß and his Hour-Book,
as the Noble Inſtrument of his Art. When ſome
Zeno (in Diog. Laert. 1. 7.) retorted this Objection who had formerly a Knowledge of him, declar'd
very pleaſantly, tho' he did not refuce it : As he their Wonder at his new Profeſſion and Equip-
was correcting his Slave who had been catch'd in ment, his Reply was, A tal Beftias, tal Aſtrologuo.
a piece of Thievery, the Fellow in way of Excuſe For fuch Beaſts, ſuch an Aſtrologer. But all this kind
,
your too to be beat for it. Marcus Antoninus way of cheating Ignorant People of their Money,
gives a more ſerious Judgment on the Point, (2) undertaken by ſome Confident Knaves, who in
The Gods (ſays he, l. 1. c. II.) have put it into every their talk of future Occurrences are not ſo much
Man's Power and Choice, to avoid whatever is truly ſupported by their own Arts, as by the Credulity
Evil. There is an Opinion nearly allied to this, of their Hearers : If Things fall out as they bold-
which ſuppoſes, the
Conſequences of Cauſes and ly gueſs’d, they preſently riſe in Honour and Cre-
vable Decree, that God hath left himſelf no li- Miſtakes make no noiſe. Tacitus, Hill. 1. 1. calls
berty of interpoſing in particular Caſes. Thus all the Pretenders to Aftrology, Gentes bominum po-
Miracles, all extraordinary Aliſtances of Heaven, tentibus infidum, ſperantibus fallax : "A Pack of
all Effects of Prayers, of Repentance, and of A “ Men unfaithful to the Great, and diſappointing
mendment, ſeem to be entirely cut off at one to All of eager Hopes and Defires. Add, Hobbes
Stroke. To this we may join that ancient and de Homine, c. 14. 1. 12. Agathias, l. 1. I cannot be-
widely receiv'd Perſwaſion, that the Poſitions of lieve that the cauſe of Evil is fix'd in the Courſe of
the Stars laid an indiſpenſable neceſſity on Hu- the Stars, and in the Fatal Appointment of Unconceiva-
man Actions and Events; or that the Hour of ble Neceſſity. For if the Power of Fate every where
Nativity determin’d the whole Proceedings of prevails, all free Election of Man's Will is deſtroy'd;
Life
. Which Manilius, one of the Affertors of it, and with it, all Precepts, all Arts, all Diſcipline must
and thoſe who have led Pious and
Vertuous Lives, will be depriu'd of their future Ex-
- Furit alter amore
pectation. Nor do I think it allowable to aſcribe Mu-
Et pontum tranare potest, du vertere Trojam. tual Wounds and Slaughter to the Deities. Vid. Grot.
Alterius fors eft fcribendis legibus apta:
de Veritate Rel. Chriftianæ, l. 4. l.n. Now be-
Ecce patrem nati perimunt, natoſ que parentes,
fides the other numerous ill Conſequences of ſuch
Mutuaque armati coeunt in vulnera fratres : a Superſtition, this Miſchief follows of Courſe,
Non noftrum hoc bellum est: coguntur tant a movere, that whilft Men are continually. gaping at the
Inque ſuas ferri pænas, lacerandaque membra. Stars, they have neither Leiſure nor Inclination
Hoc quoque fatale est fic ipfum expendere fatum. to guide their Lives by the Rules of ſound Reaſon.
Helen ſays wiſely in Euripides :
One, mad in Love, to Troy will carry War,
Or ſwim the Flood, and view the Torch from far;
Γνώμη δ' αρίση μάπς ήτ' ευβουλία.
Prudence and Good Counſel are the beſt Prog-
Another is determin'd to the Bar.
[noſticators.

'twas you
os V
thus delivers,
come to
e to nothing;
(2) The Greek is, kai Teis wir ve 7 d'an detay vexois
, ivc pell sexzialn ó öv8fw7Q, IT 'N Tò mäv kozv7o oi @soi.
(3) Our Author might have ſpared himſelf the pains of reciting theſe two Scories.
Statius,
anoistike
Y

162 The Duties of Man with regard to Himſelf. Book II.
Statius, Theb. 2. (4).
with a Security of finning. He who believes that
Quid craftina volveret ætas
his own Offences ſhall be forgiven him for the
Scire nefas komini. Nos pravum ac debile vulgus fake of Another's Deſerts, can ſcarce be hinderd
Scrutamur penitus fuperus : hinc pallor & ire, from finking into the baſeft Diffoluteneſs, unleſs
Hinc metus, infidia que el nulla modeſtia voti. he be at the ſame time fully perſwaded, that there
is ſtill an Obligation incumbent on him, to apply
What future Years ſhall bring to paſs all his Endeavours to the Practice of a moft Holy
'Tis Sin to know. We a weak, puny Race,
Life.
Examine Heaven and ranſack Fove's Decrees, Farther, It is no leſs peſtilent than brutal an
Wirely to antedate our Miſeries.
Opinion, to pretend that the Wickedneſs of ſome
Hence all our Miſchiefs ſpring, our Rage, our Fears, Actions is excus’d with God, upon account of
Our treach'rous Wiles, and our immodeſt Prayers. their Dexterity or Humour ; and that ſome Sins
paſs only for Jeſts in the Cognizance of Heaven.
Moſt pernicious likewiſe is that conceit, which As the old Poets feign’d their Deities to take no
makes God to allow a kind of Marker of Sins, notice of the Perjury of Lovers, and to forgive
ſo as to let them be bought off with Money or their Thefts and treacherous Intrigues (d). Nay,
other Preſents, or perhaps with ſome vain Cere- their Madneſs proceeded ſo far, that they were
monies and ſet Forms of Speech, without Amend not afraid to introduce their Heavenly Powers as
ment of Life. No leſs abſurd is it to imagine, the Actors of dereftable Villanies ; aſſigning ſo
that God Almighty is delighted with ſuch Inven- many Tutelar Gods to have the Care, as it
were,
tions of Men, ſuch Inſtitutions and Ways of Li- and the Guidance of ſo many particular kinds of
ving, as are diſagreeable to Human and Civil So- Wickedneſs. Now the Argument which Fulgen-
ciety, as it is tenper’d by the Dictates of Reaſon tim (e) draws hence is right and concluſive: If
and the Laws of Nature. Such may we reckon there were any Deities (ſays he, meaning Mercury
the greateſt part of the Monaſtical Orders, which and Laverna) preſiding over Robberies, how could thoſe
we find in vaſt Numbers, not only in Chriſten- A&tions be criminal before Human Judges, which had
dom, but amongſt the Turks and the Heathens. Divine Authors and Patrons to defend them (fj?
We ſhould alſo carefully avoid all ſuch unworthy Euripides diſputes as well on the fame Point.
and ſuperſtitious Notions, as debafe and diſhonour
the Divine Nature or Worſhip. Every ſenſible
min 'Ourét' ev 3 párys va xãs !
Man ought to be as (5) Antoninus ſays his Father
Λέγειν δίκαιον, ει τι τ Θεών κακά
Μιμέ μεθ', αλλά του διδάσκοντας τάδε.
was, 0:05: Bris zagis d'Hordre povics (a), Devout without
Superſtition (6).
If Human Vices are but Tranſcripts drawn
'Tis another wicked Opinion, that the bare Ex- From Deeds Divine, and Copies ſet in Heaven,
erciſe of Piety towards God is ſufficient, without Should Men be blam'd who act what theyare taught,
any regard had to Honeſty, and to thoſe other Or thoſe Immortal Guides who teach 'em wrong?
Duties which are to be practis'd towards our
Neighbours: As if the Externals of Divine Wor- Nor was the poor Indian much out in his Infe-
ſhip, when exactly perform’d, were able to make rence, who when a Spaniard boaſted to him, thar
amends for a Courſe of Injuſtice towards other he was a Chriſtian, a Son of the Great Creator of
Men : Or, as if it were lawful to ſcrape up Mo- Heaven and Earth, whoſe Laws he came there to
ney in our Life-time, by all Means and Methods, publiſh and proclaim, anſwer'd him to this effect:
good or bad, provided at our Death we leave If 'tis by Command of your God, that you thus invade
ſomewhat to be ſpene in Pious Uſes (c). Nor leſs other Mens Dominions, and there ſpoil, burn, kill,
and
unreaſonable is the Fancy, that a ſingle Man commit all other Wickedneſs at pleaſure; you may rest
ſhould be able not only to fulfil his own Duty to allur’d, that we will not on any account believe in Such
God, but to transfer ſome of his Merits on o a God, or receive his Ordinances among st us (g).
thers; as if one Perſon's Negligence in his Duty It is wicked likewiſe to believe, that thoſe Pray-
was to be ſupplied by the over Righteouſneſs of ers can pleaſe God, by which a Man deſires that o
another. Of the fame Stamp is that vain Con- thers may ſuffer an undeſerv'd Evil, for the
promo-
jecture, that upon account of the Satisfaction and ting or the occaſioning of an Advantage to himſelf
.
the Merit of Christ, we have a leſs Obligation As ſuppoſe, if the Inhabitants of a Sea-Coaſt
lying on us to Probity and Sanctity of Manners; ſhould pray, that many Shipwracks might happen
and that the Hope of thoſe Bleſſings furniſhes us on their Shore. Nor do I take thoſe ſolemn Sup-

(a) L. 6. 1. 30. Add, Bacon, Eſſay 17. (b) See Plutarch's Treatiſe of Superſtition. Item, Charron of Wiſdom, lib. 2.
G. S. . 10. (c) Add, Charron de la Sageße, 1.2. c. s. ſ. 25, doc. (d) Tibull. 1. 3.
Perjuria rider amans um
Jove laughs to hear Love's harmleſs Perjury,
Jupiter, do ventos irrita ferre jubet.
And bids che Winds go loſe it as they fly.
(e) Mytholog.il. 1. (f) Senec. Hypolit.
Deum eße Ainorem, turpis do vitio favens
Love was firſt Deifid by Luft and Vice:
Finxit libido ; quoque liberior foret
When Men to gain a Patron to their Sin
Titulum furori Numinis falſo addidit,
And free purſuit of Pleaſure, fix'd the Stamp
Of Heaven on Hell, a Fury made a God,
(8) Benzo. Hiſt. Nov. Orb. I. 2. 6. 13.
(4) The ſame Poet, in another place, gives the Deſcription of all ſuch Perſons as pretend to Divination, in theſe words,
-Tis â perles 'es' dring;
What's an Aſtrologer? I thus reply,
“O, ολίγ' αληθή, πολλα και ψάλη λίγα A Man that ſpeaks few Truths, but many a Lyc,
Τυρον, όταν και μη τύχη, διοίχεται.
Which, when found out, he takes his Heels to tly.
Spoken by Iphigen in Aulid. v.956. Edit. Cant.
(5) See what Mr. Bayle ſpeaks abouç çhis Macter in his Medications upon a Comet.
plications


Chap. IV. The Duties of Man with regard to Himſelf.
163
plications to contain much more Holineſs which which he enjoins us to know our ſelves; deth not mean,
are perform’d, either upon the engaging in an un- that we ſhould be careful in knowing our Limbs, our
juſt War, or upon any Succeſs obtain’d in it. Stature, or our Figure ; for our Bodies indeed are not
Thoſe Perſons too muſt needs lie under a great our ſelves. But when the Oracle ſays, Know your Self,
Miſtake, who fancy the Breach of ſome Precept it ſays in Effect, Know your own Mind and Soul. For
of Natural Law to be a part of Divine Worſhip. the Body is no more than the Soul's Veſſel or Receptacle.
As they who are for treating in a hoſtile Manner, And no Astion is properly done by your ſelf, but what
all ſuch as differ from them in Perſwalion; who proceeds from your better and nobler Part (a). Now
aſſert that Religion is to be propagated by the from this Knowledge of himſelf rightly purſu'd, a
Sword ; that no Faith is to be kept with Men of Man is brought to underſtand his Condition; and
a contrary Profeſſion, no political Friendſhip (as the Office he is to bear in the World: Whilſt he
they call it) and no Offices of Humanity to be ex- apprehends, that he did not exiſt of himſelf, but
ercis'd towards them, but that they are to be a- ow'd his Original and Being to a much Sublimer
voided, even in common Converſation, as Un- Principle; that he is endow'd with far more noble
holy and Unclean; that Violence, Wickedneſs, Faculties, than he ſees enjoy'd by the Beaſts about
Treaſon, Perfidiouſneſs, Sedition and Rebellion, him ; laſtly, that he was not born by himſelf,
are not only lawful, but commendable, if under nor purely for his own Service, but that he is a part
taken on a Religious Account (7). To conclude, of human Kind, and is oblig'd to behave himſelf
the following Opinions are not of leſs fatal Effect ſociably towards other Men. And from theſe
than thoſe which we have already mention'd: Fountains may eaſily be drawn the compleat
That is imports nothing to ſolid Felicity, whether Knowledge of human Duty. Vid. Marc. Antonin.
a Man apply himſelf to a Virtuous or to a Vicious l. 10.5.6. (3) Perſ. Sat. 3.
Life, and that Good Men are (8) entituled to no
better State or Condition than the Wicked.
Quem te Deus elle
That the higheſt Pleaſure a Man can expect or ob- fuffit, & humana qua parte locatus es in re
tain, is the preſent Gratification of his Senſes ; Diſce.
and that the Soul periſhes with the Body. Laſt-
ly, that all Law, even that which we call Natural, Study thy ſelf : Learn in what Rank and State,
is a meer human Device, not referable to God as The wiſe Creator hath ordain'd thy Fate.
the Author of it. nor deriving from him its Force
and San&tity. Theſe therefore, and ſuch like No- It belongs likewiſe to our underſtanding our ſelves
tions, are entirely to be rooted up out of human (4), to know our own Power, and how far it ex-
Minds, in as much as they deſtroy our Dury to tends, either in exerting our Actions, or in form-
Almighty God, and prevent or intercept all'En- ing our Deſigns (b). And farther, what is the
deavours of conforming our Life and Manners to true Effect and Conſequence of every Practice;
the Guidance of good Reaſon.
and what Reſpect and Uſe the Things without us
V. When this principal Care is over, the main have to our ſelves and to our Happineſs.
Concern behind is for a Man accurately to exa VI. From this Knowledge it follows, that a Man
mine his own Nature, and to ſtudy to know him- muſt apprehend his Subjection to Almighty God,
ſelf. An Enquiry which Antiquity ſo much va and the Obligation which lies upon him, according
lued as the Forerunner of true Wiſdom, that to the Meaſure of the Gifts he hath receiv’d, both
Tvã Sa oz autóv was thought an Inſcription worthy to to celebrate the Divine Majeſty, and to ſhow
be ſet in Letters of Gold, and confecrated in the himſelf a ſociable Creature in his Tranſactions
Delphian Temple. (2) On which Tully hath given with his Fellows. And in as much as God hath
us this Comment, The Precept of Apollo, ſays he, in beſtow'd on him the Light of Underſtanding, he
(a) Add. Caſaubon ad Perſ. Sat. 3. v. 67. and Plato in his firſt Alcibiades p. 448. Edit. Francofurt. Ficin.
Explication of that noble Sentence in Zenophon Apomnem. l. 4. Add, Bacon Ill. 36.
(6) See Socrates's
(7) See Mr. Bayle's Philoſophick Commentary upon theſe VVords, Compel them to come in, &c. Part 1. Chap. 4, &c.
(8) Cicero de Naturâ Deorum, l. z. c. 35. Vt enim nec Domus, nec Respublica ratione quadam, & diſciplina defignata videatur, fi in
ea nec re&tè fa&tis præmia exſtent ulla, nec ſupplicia peccatis ; ſic mundi divina in homines moderatio, profe&to nulla eſt, ſi in ea diſcri-
men nullum eſt bonorum do malorum, i.e. Heaven is certainly not at all concern'd in the Government of Men, if it doth not make a
Diftin&tion between the Good and the Wicked.
S. V., (2) Tully's Words are, Nimirum hanc habet vim praceptum Apollinis, quò mònet ut ſe quiſque noſcat; non enim, credo, precipit
ut membra noſtra, aut ftaturam, figuramve noſcamus, neque nos corpora ſumus Cum igitur noſce te, dicit, hoc dicit, noſce ani.
mum tuum. Nam corpus quidem quaſi vas eſt, aut aliquod animi receptaculum. Ab animo tuo quicquid agitur, id agitur à té.
(3) Perfus's preceeding words are elegant and pertinent.
Diſcite vos, miſeri, do Cauſas cognoſcite Rerum, Learn, wretched Men, and know the Cauſe of Things,
Quid ſumus, & quidnam vi&turi gignimur, ordo What’ris we are, and why we have our Beings.
Quis datus, aut meta, quàm mollis flexus Go unde, What is the Order, and what Nature's Courſe,
Quis modus argento, quid fas opt are, quid aſper What we may wiſh for, and what Money's Force,
Viile nummus habet, Patriæ, chariſque propinquis Whar Profit it doth yield ; what to beſtow
Quantum elargiri deceat, quem, &c.
Upon our Country and our Kindred coo.
Study, doc.
(4) “ This
great precept is often alledg'd in Plato, Mind thy own Buſineſs, and know thy Self. Each of theſe Sentences con-
tains in general our whole Duty, and ſeems to include the other. He that will do his own Buſineſs, muſt learn this Leſſon firſt,
" to know himſelf, and he that knows himſelf, will not undertake any Buſineſs as his own, that he is not acquainted with ; for
as if he loves and takes care of himſelf, he'll refuſe needleſs Employments and unprofitable Thoughts and Propoſals.” Montagne’s
EMays, l. 1. c. 3.
ought
Y 2
164
The Duties of Man with regard to Himſelf. Book II.
ought certainly to conclude, that he is not to do lible for him to arrive at any comfortable Conditi-
every thing at Random, and (1) without End or on : Since, (6) as Sophocles obferves,
Deſign, but that whatever he undertakes, he
ſhould firſt weigh the Matter in hand, and regu-
Πολλώ το φερναν ουδαιμονίας
late his Method of proceeding about it (a). And
Πρώτον υπάρχει
conſequently, that he propoſe an End (2) agree True Wiſdom is the Spring of Happineſ:
able to his Nature, and rightly moderate and direct
both his own Actions, and all other due Means VII. If a Man thus rightly apprehend and con-
towards the Attainment of that End. And this fider his own Strength and Power, he will diſco-
in ſuch a Manner, that he neither proceed in the ver that it is of a finite Nature, having certain
Application of the Means, before the End is fix'd Limits beyond which it can never extend itſelf ;
and determind; nor ſettle ſuch an End as he muſt and therefore, that there are many Things in the
afterwards want Means to arrive at. Another In- World which he cannot manage or compaſs, as
ference cloſely ally'd to this is; that ſince Truth many that he cannot hinder or refift. Other
and Right are always Uniform and without Alte- Matters there are which do not abſolutely exceed
ration, ſo he ought always to form the fame Judg- human Power, but which may be intercepted and
ments of the ſame Things, and when he hach prevented by the Oppoſition of other Cauſes. And
once judg’d truly, to be always conſtant in his a third Kind of Things we cannot compaſs by our
Mind and Reſolution. Farther, that his Will and bare Strength, nor allifted by Dexterity and Ad-
his Appetite do not get the Start of (3) Good dreſs. Applicable to theſe Reflections is the fa-
Judgment, but follow and obey it; never making mous old Diſtinction of the Stoicks, dividing
Reſiſtance to its Decrees (4). For he who obſerves Things into tã do sição and tã óx ép súr, thoſe in
this Courſe of Proceeding, will be ſure to act with our Power, and thoſe without or beyond it. What
Prudence, with Conſtancy and with Moderation. ſeems to be moſt under our Command, is our
He will make it his chief Aim and Rule, as Lucan own Will, and the Power of that Faculty in exert-
deſcribes Cato,
ing Actions proper to our Species of Being. For
although the Will hath ſome croſs and ſtubborn
--- Servare modum, finemq; fueri,
Principles adherent to it, which bend and ply it
Naturamq; ſequi, patriæq; impendere vitam :
continually from its due Aquilibrium, yet hath a
Nec fibi ſed toti genitum ſe credere mundo.
Man nothing in his whole Nature more nearly and
cloſely tied to him, nothing which is leſs capable
To keep a Mean, to eye the chief Deſign ; of being hindred by external Powers, and there-
To follow Nature, as a Guide Divine,
fore nothing the Motions of which do more pro-
To pay his country's Ranſom with his Blood, perly belong to his Perſon, and may accordingly
And private Pleaſure quit for publick Good : be imputed. Hence it follows, that every Man
To raiſe his Soul to Univerſal Cares,
ought to make it his main Care and Concern,
And in his Pains give all the World their Shares. rightly to imploy his Force and Abilities, in con-
formity to the Rules of Reaſon: At leaſt to ſettle
He that acts otherwiſe, inſtead of keeping a de- a conſtant Reſolution of diſcharging, as far as in
cent Pace in the Journey of Life, ſeems to rowl him lies, every thing which ſeems agreeable to his
and tumble through the World (5): His Proceed- Duty, and to the Deſign of his Being. For this is
ings are perpetual Contradi&tions; and 'tis impof- the Teſt by which we are to rate the Worth of e-

(α) Ταξον πνα ήδη χαρακτήρα σαυτω, και ύπον ον φυλάξης όλη τη στυτά ών, και 'Ανθρώποις εντυγχάνων: Epiξt. Ench. .
Chat. 4.
S. VI. (1) Seneca has a fine paſſage relating to this Subject, Epift. 71. Ideò peccamus, quia de partibus vitæ omnes deliberamus,
de tot â nemo deliberat. Scire debet, quid petat, ille, qui ſagittam vult mittere, & tunc dirigere, do moderari manu telum. Errant confi-
lia noftra, quia non habent quo dirigantur. Ignoranti quem portum petat, nullus ſuus ventus eft. Neceſſe eſt multum in vitâ noftrâ ca-
ſus pofit, quia vivimus calú, i. e. “ The Original of our Errors is, that no Man contrives ſerioully to draw up a Scheme of his
« whole life, but contents himſelf to deliberate occaſionally upon fome particular Actions. The Gunner ſhould know his Mark,
" before he take his Aim to ſhoot. Our Counſels are diſappointed, becauſe we keep not the End in our Minds. The Wind can
“ never blow well for him, who don't know the Port he is Sailing to. Fortune muſt do much among us, who leave ſo much to
« Chance in our Lives.” See Cicero's Paradoxes, Chap. 5. with Grevius's Notes, and M. Antoninus with Gataker's, Lib. 2. S. 16. and
1. u. $. 21. See alſo Plato de Repub. 57. p. 695. and Montagne's Eſays, Lib. 2. Chap. 1. at the End.
(2) All the World knows that famous Principle of Morality laid down by the Stoicks, who ſay, That we muſt live agrreable to
Nature. See Seneca, M. Antoninus, Epi&tetus, &c. but chiefly M. Antonin. Lib. 5. Chap. 16.
(3) Cićero has very well obſervd, Efficiendum autem eſt, ut Appetitus votioni obediant, eamque neque præcurrant, nec propter pia
gritiam, aut ignaviam deſerant, fint que tranquilli, atque omni perturbatione animi careant. Ex quo elucebit omnis conſtantia, omniſque
moderatio, i. c. “ We mult bring all our Affections into Subjection to our Reaſon, and not ſuffer them either to ourrun it, or thro
6. Sluggihneſs to deſert it. They muſt alſo be calm and not diſturb our Minds. And then we ſhall be eminent for Conſtancy
66 and Moderation.”
(4) i.e. Never to inquire into them, but after mature Deliberation, and never to act againſt our own Conſcience. See Tully
de Off. 1. 1. c. 29.
(5) Theſe words are Horace's, Epift. 1. Lib. I. v. 69. Et vitæ diſconvenit ordine toto.
6) Lipſius, in his Politicks, tranſlates the words thus, Lib. i. Chap. 7. Longe Prudentia felicitatis primas tenet, i. e. “ That
“ Prudence that makes a Man Happy, is certainly the chiefeſt by much.” Bur VViſdom is incomparably much more advantagious
and valuable than Happineſs or Proſperity: So that this Sentence makes nothing to our Author's Purpoſe, who is proving, Thar
V Viſdom is the means to arrive at Happineſs
. Nevertheleſs I thought fit to obſerve, that this paſſage of Sophocles is explained,
as I have underſtood it, in the Greek Comment of Triclinius, for others follow an Explication which to me ſeems not true, and
which they embraced, without being aware that apô Toy has ſometimes a comparative Signification.


very
Chap. IV. The Duties of Man with regard to Himſelf. 165
very Perſon, and to meaſure his intrinſical Good- is any room for human Caution and Foreſight; ſo
neſs and Excellency: (1) Arrian. Epictet. l. 1. c. I. when we have done all that lies in our Power, we
What therefore, on the whole Matter, are we to do? Io cannot enſure an Event which doch not depend
improve, and to put to the beſt Uſe thoſe Things which on our Direction, and of which (5) we have no
are in our Power, and to deal with other Things as their certain Knowledge till it actually happen. As I
Nature (2) require.
phicrates us’d to ſay 'twas unworthy of a General
VIII. As to the other Matters which lie without to ſay, I did not think it ; ſo 'tis below a wiſe Man
us, we are ſo far to employ our felves about them to make the like ſorry Reflection. It was a good
as they do not ſurpaſs our Strength, as they tend Wilh of the Poet ;
to a lawful End, and are worth the Labour which
we ſpend in the Purſuit. For Things above us, a - Careat ſucceſſibus opto
wiſe Man will not loſe his Hopes and his Pains Quiſquis ab eventu facta notanda putat.
upon them; he will reckon it Folly to endeavour
with vaft Toil the Attainment of ſuch an End,
Ne’er may Succeſſes bleſs
which he knows his own Force, together with the The Man who meaſures Actions by Succeſs.
Aliſtances he expects, unable to compaſs: Or un-
leſs he be at leaſt certain that the very Probability Yet this abſurd Opinion is ſo ſtrong and ſo uni-
of obtaining the End is of more Conſequence than verſal among the Mahometans, that they take good
any other Effect, which he could without queſtion Succeſs to be an infallible Argument of the Juſtice
have produc'd at the ſame time, and with the ſame of a Cauſe, and an open Sign of the Approbation
Labour. (1) Other Things he will leave to the of Heaven. Whereas ſuch a Notion is indeed to
Direction of Providence, and will compoſe his be rank'd amongſt the ridiculous Follies of the
Mind as well as he is able, (2) for a peaceful Ac- loweſt and moſt ignorant Vulgar. For 'tis evi-
quieſcence in every Event. He will not (3) vain- dent to any Perſon of Common Senſe (6), that
ly diſquiet himſelf on the account of Evils which as Juvenal ſays,
either have already happen'd, or may hereafter
fall out without his Fault: And ſo he will cut off
Multi
the greateſt part of human Troubles which are Committunt eadem diverſo crimina fato ;
wont to be produc'd either by vain Hope driving Ille crucem ſceleris pretium tulit, hic diadema.
us on ill Deſigns, or by the more violent Motions
of Grief, Anger, or Fear (a).
That Sins alike unlike Rewards have found,
From theſe conſiderations this farther Conſe- And whilſt this Villan's Hang'd, the other's Crown'd.
quence may be drawn, that Man, as he is guided
only by the Light of Reafon, ought not to frame Hence likewiſe we learn, that as it is the part of
to himſelf
, or to aſpire after any other Happineſs a wiſe Man (7), not to bound his Sight at the
in this world, than ſuch as ariſes from the prudent Things before him, but to extend his Conſidera-
Government of his Faculties, and from thoſe Af- tion and his View to Things to come, and to
fiſtances and Supports which we are ſure the Di- drive on his well-form's Reſolution with his
vine Providence will afford us, in the Univerſal whole Strength, without ſuffering either the
Adminiſtration of Things. From the fame Prin- Threats of Fear, or the Flatteries of Pleaſure to
ciples we may infer, that as we are not to leave turn him aſide : So is it as ſure a Mark of a Fool
Things to mere Hazard and Chance, whilſt there to drive directly againſt the Stream, and not rather

See alſo numb. 224.
(a) Arrian. Epictet. 1.2.c. 7. What can be better for us, than that which hath the Approbation and the Appointment of GOD himſelf?
S. VII. (1) Arrian's VVords are, Ti šv sei ; td to siurūv, Béatisu Mele Ta or del av, Tois ö ár 2015 xeñatas, as me qu xe.
(2) M. Antonin. 1. 6. 32. Τη 3 διανοία αδιάφορα, όσα μη εν αυτής ενεργήματα, όσα και γι αυτής εςιν ενεργήμια ταύτα πάνlα
επ' αυτή έσν. και τέτων μεν τοι, ά οι μόνον το παρόν ωρα γματεύεται τα 8 μέλλονια, παρωχικό τα ενεργήμαθα αυτής, και ω-
Tee i'm ci reposa, i.e. “ All Things are indifferent to my Soul, except its own Operations. For all its Operations depend upon it.
“But only thoſe about which it is buſy at preſent are dear to it; ſuch as are paſt and to come are equally indifferent." See al-
1o S. 50. of the fame Book.
S. VIII. (1) Permittes ipfis expendere Numinibus, quid Let's leave it to the Gods to do what they
Conveniat nobis, rebuſque ſit utile noſtris.
think agreeable and profitable for us,
Nam pro jucundis aptiffima quæque dabunt Dî. We ask what plea fes us, they give what's fit and beſt.
Carior is illis homo, quam ſibi.
They love Man better than himſelf.
Juv. Sat. 1o. v. 347, doc.
(2) 'Twas a Maxim of the Pythagoreans, That wiſe Men are prepared for all Events which may happen to Man, and whoſe
Management depends nor on himſelf. Kui li wrois (ſays f amblichus) Trachy leadece, rjó für dĩ, 7 dv@gwrivwv ou p.77 wuólo e mego-
δόκητον έή) αρg τοϊς νεν έχεσιν, αλλά πάνα Φυσδοκών, αν μη τυγχάνεσιν αυτοί κύριοι όντες. De Vita Pythag. Chap. 31. η. 196.
(3) “ Repreſent to your ſelves in your Minds all the Evils that can befall you, yea, the moſt intollerable, ſuppoſe yourſelves
certain to ſuffer them, and on the contrary is it not more eaſy and natural ro baniſh ſuch Thoughts? They'll happen ne'er the
"logner, nor continue e'er the longer. We may enlarge and prolong them by our Thoughts, yea, fo incorporate them before.
"hand in our ſelves, and entertain them, tho' we have not truly any Senſe of them. They diſturb us enough whenever they
come; (ſays one of the Leaders, not of the tendereſt, but hardeſt Sects) therefore favour thy ſelf. Believe what thou lovelt
beft
. Recollect thy ſelf
, and uſe all Means to prevent thy ill Fortune. Don't loſe thy preſent Eaſe for fear of future Evil,
Cand be not now miſerable, becauſe thou ſhalt be at ſuch a time.” Thoſe are the Words of Mr. Montagne, Eſays, Lib.3. Ch.12.
See alſo Seneca, Epift. 13, 24, 74, 98, doc.
(5), Liban. Declam. 21. Oze"sos tj ones évàę tñ grauen, wġ ois megcianzho, xeive): não to trépcs cixons Jhon os Bebe-
alufer d'Ecov, & fer í tov eshots füG, i.e. " A good and diligent Man proceeds according
to his Judgment, and to the Noti.
ons which he hath form’d of Things: And although the Event doth not anſwer the Worthineſs of his Defign, he is no leſs
“induſtrious for the future." See Marc. Antonin. Lib. VI. 50. VII. 38. VIII. 47.
See Mr. Montagne's Eſsays, upon this Subject, That 'cis not reaſonable to judge of Actions by the Event. Lib. 1. Chap. 31.
3.
(7) So Terence ſpeaks, Iſtuc eſt ſapere, non quod ante pedes modo eft
Videre, ſed etiam illa, que futura funt, Adelph. Ace 3. Scene 4.
to

and Lib. 3. Chap. 8.
166
The Duties of Man with regard to Himſelf. Book II.
the more ;
Vel Sole puro.
to accommodate his Inclinations to the Events, Ibid. Ode 10.
when they will not conform themſelves to his In- Rebus anguſtis animoſus atque
clinations (a). Laſtly, ſince human Foreſight is Fortis appare, ſapienter idem
ſo weak in diſcovering future Things, and fince Contrahes, vento nimium ſecundo,
they are very far from being under our Guidance, Turgida vela.
though they frequently fall out well beyond our
Hopes and Expectationsíb); hence it is plain, that The more you are oppreſs’d, bear up
we ought neither too ſecurely to truſt our preſent Weather the Tempeſt, 'till its Rage be o'er.
Condicion, nor to ſpend too much Care and Anxi- But if too proſp'rous and too ſtrong a Gale
ety on what is to come, And for the ſame reaſon Should rather ruffle than juſt fill your Sail,
Infolence in Proſperity, and Deſpair in Adverſity, Leſſen 't, and let it take but ſo much Wind
are to be both avoided as equally dangerous and As is proportion’d to the Courſe deſign'd.
equally abſurd. 'Twould be eaſy to illuſtrate this
Dryd. Mifcel. 2. p.422.
Doctrine with endleſs Teſtimonies of Authors.
Take the following for a Specimen. Arrian. Epict. L. 2. Ode 29.
1. 2. C. I. In Things which do not depend upon our Ele&ti-
Ille potens ſui
on, let us be bold and venturous, but in Things which Latuſque deget, cui licet in diem
are capable of Choice and Counſel, let us be timerous Dixiſſe vixi ; cras vel atra
and cautious(c). Juvenal, Sat. 10.
Nube polum pater occupato,
Nullum numen abest fi ſit prudentia; ſed te
Nos facimus, fortuna, Deam, cæloque locamus.
He lives in true Delight
And Maſter of himſelf appears,
All Heav'n ſtands ready to affiſt the Wiſe, but we Who ſtrange alike to Hopes and Fears,
Make Fortune a celeſtial Deity.
Can boldly ſay each Night,
To Morrow let my Sun bis Beams diſplay,
Horat. Carm. III. 4.
Or in Clouds hide them ; I have liv'd to Day.
Vis conſilii expers mole ruit ſua:
Mr. Cowley.
Vim temperatam Dii quoque promovent
Idem. I. 2. Sat. 9.
In majus
Quifnam igitur liber? Sapiens; fibi qui imperioſus,
Quem neg; pauperies, neq; mors neq; vincula terrent.
Force, without Wiſdom for its Guide
Reſponſare cupidinibus, contemnere honores
Sinks with its own unweildy Weight,
Fortis, & in ſeipſo totus teres atq; rotundus,
But with delib'rate Art apply'd
Externi ne quid valeat per lave morari.
The Gods advance it to a nobler Height.
He's Free, who wiſely can himſelf controul,
Lucret. l. 3.
And challenge Fate and Death to ſhock his Soul.
presenten und Petere quod inane est nec datur unquam, Brave to reſiſt the Tide of wild Deſire,
Atque in eo ſemper clarum perferre laborem;
And Proof againſt Ambition's cheating Fire.
Hoc est adverſo nix antem tradere monte
All round and ſmooth, that no external Load,
Saxum, quod tamen a ſummo jam vertice rurſum May fix a Rub, to check him in his Road.
Volvitur, bo plani raptim petit æquora campi.
Juvenal, Sat. 13.
For, ſtill to ſeek, and ſtill in Hopes devour,
Dicimus autem,
And never to enjoy deſired Power,
Hos quoque felices qui ferre incommoda vitæ,
What is it but to rowl a weighty Stone
Nec jactare jugum vita didicere magiſtra.
Againſt a Hill, which ſtraight will tumble down?
Almoſt a Top, it muſt return again,
As Happy thoſe, tho' not fo Learn'd, are thought,
And with ſwift Force rowl thro' the humble Plain. Whom Life inſtructs, who by Experience taught
Mr. Creech. For new to come from paft Misfortunes, look,
Hor. Ode 2. 1. 2.
Nor ſhake the Yoak, which gauls the more’ris ſhook.
Aquam memento rebus in arduis
Mr. Creech.
Servare mentem : non ſecus in bonis
Idem, Sat. 10.
Ab inſolenti temperatam
Permittes ipſis expendere Numinibus, quid
Lætitia.
Conveniat nobis, rebuſque fit utile noſtris.
Nam pro jucundis aptiſſima quæque dabunt Dii ;
Learn, Friend, to keep an even State,
Charior ejt illis homo quam ſibi.
Whatever Scene your Cares imploys,
Amongſt the Smiles or Frowns of Fate.
Intruſt thy Fortune to the Powers Above,
Nor mean in Grief, nor infolent in Joys. Leave them to manage for thee, and to grant
(*) Cedere majori virtutis fama ſecunda eſt. Mart.
'Tis next to Congu’ring, wiſely to Submit.
(b) 'Oulxan doxolo- covouévæv, the dark Miſt of Futurities. Tryphiodor. (c) Plutarch de Superſticione. 'Apetūs 78ands
deis esiv, darías reóquois, i.e. GOD is tbe Hope of Courage and Virtue, not the plea and Excuſe of Weakneſ and Cowardice. In-
deed Self-Love is the Cauſe chat we are alhamed co own chat the Evil thar befalls us happens through our own Fault, and ſo we
charge Fortune, as Mr. La Fontaigne ſpeaks fuicably, Fab. 11. Lib. 5.
Noching happens here below
And are we Fools ſo co take our Meaſures?
But ſhe may us anſwer to,
This Excuſe we meditate
VVe do make her Rule our Fare,
Ve accuſe our Luck, not to be long
She is the Author of our Adventures.
Fortune always has the V Vrong.
What
Chap. IV. The Duties of Man with regard to Himſelf.. 1674
to carry
What their unerring Wiſdom ſees thee want; 10 Reaſon, and promoting the Good of Human
In Goodneſs as in Greatneſs they excel :
Society; and as far as it openis a wider Field for
Oh that we lov'd our ſelves but half ſo well! ſuch Generous Undertakings. But how large a
BUDI 1avg Mr. Dryden. Share ſoever we obtain of theſe Favours, and even
Defyr brs otio, ylagu by Honeſt Means, good heed is to be taken thee
IX. Another neceſſary part of Human Improve our Mind doth not ſwell with Arrogance and Vaim,
ment, is to be able to let a juft Price cn thoſe glory(4). Much more fooliſh and ridiculous is it
things which are the chief in moving our Appetites. to boaſt of, and to value our felves upon, what is
Becauſe from the exact Worth and Value of them empty and vain, and gives no ſolid Proof of our
we are to judge how far we may juftly.labour to be Worth. Therefore Demonaftes in Lucian, when he
concern d'about them. Amongst theſe, that which ſaw a Fellow priding himſelf in the Wideneſs of
appears with moſt Figure and Splendor, and which his Purple, Hark you, Friend, (fays he) a Sheep us’d
is moſt capable of ſolliciting Elevated and Noble this fine Burthen before you, and yet was
Souls, is the Opinion of Worth and Excellency, bxet a Sheep. But when we wane Occaſions and
the Foundation of Glory and of Praiſe.. Now as Opportunities of ſhowing our Worth, and are not
to this concern, we are in ſuch a manner to form able to procure them, we muſt bear this ill For-
and diſpoſe our Mind, as to endeavour as far as tune with Patience, ſince there is nothing in it
poſſible the (1) procuring and the preſerving that that can be charg’d upon our Default (5). On the
kind of Eſteem which is (2) fimply ſo call’d, being other hand, it appears to be at the ſame time
the bare good Opinion of good Men: In as much wicked and fooliſh, to affect and uſurp the exter-
as this regularly flows from the Obſervance of the nal Enſigns of Honour, when the inward Founda-
Law of Nature, and of our Duty: and becauſe the tions of it are wanting : As it is dereftable Mad-
want of it may lay open an occaſion to a Thouſaud neſs
, to aſpire to Fame and to Honours by evil
Miſchiefs and Inconveniences (a). And if this Arts, and by Deeds repugnant to Reaſon; and to
good Reputation be aſſaulted by the Lies and Ca- deſire the ſhining above others, only to be able to
lumnies of Wicked Men, we are to ſpare no La- inſult over them, and to make them obnoxious to
bour in reſtoring it to its primitive Purity. But our Pleaſure. Laſtly, ſince we are not always al-
when it is not in our power to overcoine Slander, low'd the Liberty of building our Fortune as we
or to ſtifle the falſe Conceptions that the World pleaſe, ſince it muſt fometimes depend on external
may entertain about us we are to comfort our Cauſes; our Mind is to be put into ſuch a Temper,
Selves (3) with the Teſtimony of a good Conſci as when we have once done our beſt, to reſt ſa-
ence, and with the Aſſurance that our Integrity is tisfied with the Lot thac falls to our Share ; and to
ſtill known to God (6).
look on thoſe Things which we are not able to
As for that Eſteem, which we uſually term Inten- compaſs and to obtain, as Matters which do not
five, as Honour and Glory, we are ſo far to purſue concern us, and which therefore are not worthy
it, as it redounds from worthy Actions, agreeable our Grief or our Anger (6). potom
X. For


P.8. p. 420.
Lib. s. $. 3.
(a) See 2 Cor. viii. 21. Vide Eſais de Morale par Mr. Placete, Vol. 4. Diſcours 6, & 7. (6). Add. Le Grand Philol.
S. IX. (1) Negligere quid de ſe quiſque ſentiat, non folum arrogantis et, fed etiain omnino diſſoluti. Cicero de Off. Lib. 1. Chap.
28. To be careleſs what others think of us, is a Sign not only of great Pride and Preſumption, but alſo of entire Impudence. See
Gravius's Notes.
Street
(2) See the Explication of this Diviſion of Eſteem into ſimple and diſtinctive, Lib. 8. Chap. 4. §. 2. and what I have ſaid
upon the laſt in my Treatiſe of Games, Lib. I. Chap. 3. §. 6.
(3) Seneca has very well obſerved, that no Diſgrace ought to diſcourage us from doing Good, Si gratum eſſe non licebit, niſi ut
videar ingratus, fi reddere beneficium non aliter qudin per ſpeciem injurie potero, equiſſimo animo ad honeftum confiliuin, per mediam infa-
miam tendam. Nemo mihi videtur pluris eſtimare virtutem, nemo illi effe magis deuotus, quàm qui viri boni famam perdidit, ne conſci-
entiam perderet, i. e. “When I can't ſheiv my Gratitude unleſs I expoſe my ſelf to the Diſgrace of being thought ungrateful,
* and I can't be thought to do a Kindneſs, but it will be taken for an Injury; I will ſtill perfiſt ſincerely in my honeſt Deſign
to execute it, though I wade through Diſgrace. For no Man ſeems to have a greater Etteem for Vircue, or to be more devo-
ted to it, than he, who to ſave his Conſcience, has loſt the Reputation of a good Man.” Seneca Epiſt. 81.
Seneca Epiſt. 81. See Marc. Antonin.
(4) Plin. Panegyr. Chap. 71. Nam cui nihil ad augendum faftigium ſuperest, hic uno modo creſcere poteſt, si se ipſe ſubimittat, ſecurus
magnitudinis (ue, i. e. "He who hath already arrivd at the nobleſt Pitch of Eminence, hath this only way left of improving
" his Height, by ſtooping to the Arts of Humility and Condeſcenfion, as ſecure of his own Greatneſs.
(5) Hor. Carm. III. 2. Virtus repulsa neſcia ſordide
On its own Worth true Majeſty is rear'd,
Intaminatis fulget honoribus, om And Virtue only is her own Reward;
Nec ſumit aut ponit ſecures,
With ſolid Beams and native Glory bright,
Arbitrio popularis aur &. novaland She neither Darkneſs dreads, nor covers Light.
True to her felf, and fix'd to in-born Laws,
Nor ſunk by Spight, nor lifted by Applauſe.
Claudian. de Conſular. Mall.
Ipſa quidem Virtus pretium ſibi; Solaq; latè Virtue the Tribute ſcorns of Vulgar Eyes,
Fortune ſecura nitet, nec facibus ullis And in herfelf her richeſt Portion lies.
Erigitur plauſuve petit clareſcere vulgi ; With native Rays ſhe ſhines, nor owes a Beam
Nil opis externæ cupiens, nil indiga laudis, To glittering Honour, or to glofly Fame.
Divitiis unimoſa ſuis, immot aque cunctis Unmov'd at Earthly Storms, to Heaven ally'd,
Cafibus, ex alta mortalia deſpicit arce. From Heaven ſhe looks, and laughs at Mortal Pride.
(6) Seneca Agamemn.
Modicis rebus longius ævum eſt.
Exceſs of Fortune kills, or cloys,
ignon Felix mediæ quiſquis turba
Bur Temp'rance is the Health of Joys.brow
,
Happy the Man whoſe middle State
Aura ſtringit littera tuta
Fearing to tempt the Tide of Fate,
Timiduſq; mari credere cymbam,
Securely guides with wary Oar
Remo terras propiore legit.
His humble Bark along the Shore.
Mr. Prior. A
Ideitt
168 The Duties of Man with regard to Himſelf. Book II.
va
2002
X. For the better maintaining and preſerving Et quantum natura petit. -
himſelf in the World, a Man hath likewiſe need - Satis eft populo fluviuſque Cerejque.
of external Goods and Poſſeſſions; as it is fre-
quently a part of our Duty to provide them for True Bliſs is frugal, every Brook and Field
others. Concerning which it is the Command of A full Supply for Life and Nature yield.
Reaſon and Nature, that we endeavour (1) the
Tudton
Procurement of them, ſo far as is conſiſtent with
Lucret. 1.5.
od ja
our Strength, our Opportunities, and our Hone. Quod fi quis vera vitam ratione gubernets egift
fty. The Ant which Virgil (a) makes fo prudent a Divitiæ grandes homini ſunt vivere parcè011
Provider for Old Age, is even in the Divine Writings Aquo animo.
buio 976 9W
propos'd amongſt the Examples of harmleſs Indu-
ftry(b)(2). But becauſe our Wants are not infinite, Would Men but once live up to Reaſons's Rules,
but lie in a very little Compaſs, therefore we muſt They would not ſcrape and cringe to wealthy
moderate our Deſire and our Purſuit of theſe For 'tis the greateſt Wealth to live content (Fools.
Things, according to the juſt Occaſions of Na- With little.
noi Mr. Creech.
ture, and the Meaſure of Sobriety. Socrates in
Diogenes Laertius, when he us’d to ſee the prodigi Claudian. in Rufin, I.
Dogo has
ous Quantity of Goods expos’d to Sale in the pub- Vivitur exiguo melius; Natura beatis (:) od old og
lick Places, would cry out, zbowy szal xiptar iu té di Omnibus elle dedit ſi quis cognoverit uti. s 10 Unid
What a number of Things are there bere which I do not
want ! Juv. Sat. s.
Life runs the beſt on little: Nature's Store in as
Can make all Happy that will uſe their Power. I
Ventre nihil novi frugalius.
The Belly is a frugal Gueſt.
Horat. Carm. III. 16. Hotel bas ēl slina
Contracta meliùs parva cupidine 3 nits1000 boog
Idem. Sat. 14.
da
Vectigalia porrigam,
roli 70 il
Menfura tamen que
Quam fi Mygdoniis regnum Halyattici ito l'on aimed
Sufficiat cenſus, ſi quis me conſulat edam :
Campis continuen : multa petentibus į Joni di non
In quantum ſitis atq; fames & frigora poſcunt.
Defunt multa, benè eft cui Deus obtulit, 0310
Parca quod fatis eft manu.
If any ask me what would ſatisfy
To make Life eaſy, thus would I reply:
Thus Paraphras'd by Mr. Cowley.
As much as keeps out Hunger, Thirſt and Cold. A Field of Corn, a Fountain, and a Wood,
Mr. Dryden, Jun. Is all the Wealth by Nature underſtood.
The Monarch on whom fertile Nile beſtows
(3) Apuleius Apolog. I would chuſe my Fortune as I All which that grateful Earth can bear,
would my Coat, rather neat and fit, than too long or Deceives himſelf if he ſuppoſe,
too full
. In as much as in all Things which we apply to That more than this falls to his Share.
the Service of Life, whatever exceeds Conveniency and Whatever an Eftare doth beyond this afford,
Moderation, turns more to Burthen than to Uſe. Un Is not a Rent paid to the Lord;
weildy Poffefſions, like vast and monſtrous Rudders
, will But is a Tax Illegal and Unjuft
Sooner drown than guide us: They clog with Plenty, and Exacted from it by the Tyrant Luſt.
ſurfeit with Exceſs.
Much will always wanting be
To him who much deſires. Thrice Happy he
Lucan.l.4.
To whom the wiſe Indulgency of Heaven
Diſcite quàm parvo liceat producere vitam,
With ſparing Hand but juſt enough has given.





Idem Herc. Oetæ.
Malè penſantur magna ruinis;
Falls are the ſad Rewards of Height:
Felix alius, magnuſq; volet;
Let others burſt in ſwelling Great.
Me nulla vocet turba potentem;
Give me no Title from the Crowd,
Stringat tenuis littora puppis.
But let my gentle Bark be row'd,
Nec magna meos aura phaſelos
Cloſe to the Bank, whilſt fluttering Gales 30)
Jubeat medium ſcindere pontum.
Court me in vain to hoiſt my Sails.
Tranſit tutos Fortuna finus,
When angry Vengeance puts to Sea
Medioq; rates quærit in alto,
She leaves in peace the filent Bay,
Quarum feriunt ſuppara nubes.
At the call Maſts her Thunders fly,
1
Whoſe blazing Streamers ſtrike the Sky.
Add Oedip. v. 882, &c. See alſo Val. Max. Lib. 7. Chap. 2. §. 1. exter.
() Inopi metuens Formica Jene&te. Georg. 1. 1. V. 186. (6) Prov. vi. 6. xiij, 7.
$. X. (1) See my Treatiſe of Games, Lib. I. Chap. 3. S. 7.
(2) Eurip. Ele&tr. v. 80, 81.
'Apzés 38 Štis Hiségewu dva sóuce
The Wrerch that hopes
Βίον δίαιτ' άν ξυλλέγειν άνά πόνε. To help his idle Hands with idle Prayers,
And will not work to Live, ſhould fairly Scarve, 2017
By Gods and Men unpitied.
(3) Apuleius's Words are, Fortunam, velut tunicam, magis concinnam, quam longam probare, quippe etiam ea fi non geſte,
tur, do trahatur, nihilominus quam lacinia præpendens, impedit, & præcipitat? Etenim in omnibus ad vite munia utendis, quidquid
aptam moderationem ſupergreditur, oneri potius, quam uſui, exuberat. Igitur & immodice divitia, velut ingentia de enormia gubernacula,
facilius mergunt quam regunt : quod habent irritam copiam, anxiam nimietatem. Our Author in this Paragraph heaps together a great
Number of Quotations confuſedly.
Idem
Chap. IV. The Duties of Man with regard to Himſelf. 169
Idem 1. 1. Epiſt. 10.
Non tibi ſepoſitas infelix ſtrangulat arca
Liceat ſub paupere tetto
Divitias, avidiq; animum diſpendia torquent
Reges, & regum vita præcurrere amicos.
Freneris : expoſiti cenfus & docta fruendi
woll
Temperies.
A Cottager may match in true Delights
Kings, and their more luxurious Favourites. In ſtilling Cheſts your Wealth is not confin'd,
Nor, lent on greedy Uſe, torments your Mind ;
Idem l. 1. Ep. 12.
But nobly ſpreads, on decent Ends employ'd,
Pauper enim non eſt cui rerum ſuppetit uſus.
By Moderation, and with Art enjoy'd (6).
He's never Poor that holds enough for Uſe.
We are farther to conſider, that Nature is not
Quinctil. Declam .13. It is Wealth enough to deſire wanting in a plentiful Proviſion for the Neceſſities
no more. Turpilius in Priſcian. The happieſt Livers of her Sons(c). That the Riches which we hoard
are the contented Maſters of little Fortunes.
up for future Uſe, are expos’d in the mean time to
a thouſand Dangers, and ſometimes give us more
We muſt not then on any account give too looſe Trouble in keeping them, than they gave us La-
Reins to our deſire of Getting; much leſs muſt bour in getting them (d). Laſtly, that whatever
we invade the Wealth of others by Injuries and we leave heap'd together, at our Death, muft fall
Evil Deſigns (a). And thoſe Things which we to an Heir, who may not only be unworthy of
have fairly made our ſelves Maſters of, we are to the Gift, but may deſpiſe and deride the Giver (e):
account no otherwiſe, than as Helps to our Necef- As therefore an honeſt Occaſion of acquiring
ſities, and Inſtruments to make us deſerve well of Riches is not to be neglected, ſo the Mind ought
Mankind. But the Mind muſt by no means fix to be put into ſo even a Temper, as not to loſe it
and enſlave it ſelf, to poſſeſs and to preſerve them ſelf, if it ſhould happen to loſe them. Horace hath
merely for their own Sake: or to be perpetually taught us the beſt way of dealing with Fortune :
employ'd in the endleſs Labour of increaſing them.
'Tis downright Phrenſy, as Juvenal ſays,
Laudo manentem ; ſi celeres quatit 3:13
Pennas refigno qua dedit, & med
Ut locuples moriaris, egenti vivere fato.
Virtute me involvo; probamq;
Puperiem fine dote quæro.
Living, to ſuffer a low ſtarving Fate, fie
In hopes of dying in a Wealthy State.
Which a Great and Noble Wit hach thus moſt hap.
pily Paraphras'd:
On the other ſide, 'tis a very good part of the Let her love whom ſhe pleaſe, I ſcorn to woo her;
Character which Statius gives of a wiſe Man, Whilſt ſhe ſtays with me, I'll be civil to her ;

(2) Hor. Sar. 1. Denique fit finis quærendi, cumq; habeas plus, | Stop then your ſwelling Riches as they grow;
2
Pauperiem metuas minus; do finire laborem And let baſe Want, with its Retinue, ſhow,
Incipias, parto quod avebas.
Ar greater Diſtance, a leſs dreadful Foe.
S
Ceaſe your vain Care, let all your
Labours ceaſe,
when your large Wiſh is crown'd with full Succeſs.
Eumen. Panegyr. Thoſe who make not Reaſon the Bounds of their Deſires, are never ſatisfied with any Profuſeneſs of Fortune; and thus
Happineſs ever ſides by them, whilſt being full of Hopes, and void of real Enjoyments, they lose the preſent in gaping after the future,
Add. Charron de la Sageſe, 1. 1. 6. 21. (b) Hippodamus de Felicitate. The Poffeſion of Good Things contributės nothing to Hap-
pineſs, without the Uſe. Add. Theocrit. Idyll. 16.
Horat. Epod. 1.
Haud paravero
I would not labour to abound
Quod aut, avarus ut Chremes, terra premam, In what I might with no leſs Care,
Diſcin&tus aut perdam ut nepos,
Like a baſe Miſer or a Spendthrift Heir,
Squander above, or bury under Ground.
Idem Carm. IV. 9.
Non poſſidentem multa voc averis
The wide Poffeffor vainly clainis
Rette beatum: re&ius occupat
Amongſt his Titles and his Names,
Nomen beati, qui deoyum
The Term of Happy, which ſhould bleſs
Muneribus ſapienter uti
The Man that wiſely lives on leſs.
---Callet,
Idem L. 1. Epiſt. 2.
Semper avarus eget; certum voto pete finem: 1 The Miſer's ever poor : Thy Vvilh ſhould fall
Quod fatis eſt cui contingit nil amplius optat. On ſome fix'd End: who has enough, has all.
Idem L. 2. Epift. 2.
Vtar, do ex modico, quantum res poſcit, acervo I'll uſe my little Store, and freely take
Tollam : nec metuam quid de me judicet hæres, VVithout Concern, what ſair Occaſions lack.
E Quod non plura datis invenerit.
And let my greedy diſappointed Heir
Rail when I'm gone, and curſe my want of Care.
() Arrian. Epictet. I. 3. c. 24. No Man is properly an Orphan ; we have a common Father, who is conſtantly buſied in providing
(d) Horat. Carm. III. 16. Creſcentem ſequitur cura pecuniam.
Care in proportion ſwells with every Bag.
(e) Bion. Idyll. 5.
'Ες πόσον & δειλοί, καμάτως κ' ας έργα πονεί μες, How vainly wretched do we ſpend our Years
Ψυχαν δ' άχει τίνα ποτό κέρδεα και το τέχνας
In uſeiefs Labour and in idle Cares?
Βάλλομες, ιμίρονες αεί πολύ πλέον όλβω. The Chaſe of VVealth unwearied we purſue,
Λαθόμεθ' ή άρα πάντες, όπ θναπί οθωόμεθα And loſe the preſent, for a future View.
But not one thinks how ſoon his Mortal Line
Muit ladly break, and end his wild Defigu.
z
But

Add. Gell. 1. 10. C. 17.
for us.
170
The Duties of Man with regard to Himſelf. Book II.
But if ſhe offers once to move her Wings, ther Train, than Trouble, Danger, Damage and
I'll fling her back all her vain Gew-gaw Things, Diſgrace. As therefore 'tis next Degree to Mad-
And, arm’d with Virtue, will more glorious ſtand, neſs, to invite Uneaſineſs and Torment without
Than if the Bitch ſtill bow'd at my Command. Uſe or Occaſion: So is it very rational to allow
I'll marry Honeſty, though ne'er ſo poor,
our ſelves a moderate Taſte of lawful and inno-
Rather than follow ſuch a dull blind Whore (a). cent Pleaſures, without ſuffering them to over-
whelm and to drown us. But this is to be fix'd
As to Expences, we are to uſe ſuch a Moderati- as an inviolable Rule, that no Pleaſure muſt be
on about them, as moſt willingly to undertake ſuch purchas'd ar ſo dear a rate, as the Neglect or the
as our Duty requires of us, and yet not to ſqan- Tranſgreſſion of our Duty.
der our Fortune at a venture, without Neceſlicy XII. The laſt Care which 'lies on us in the im-
and without Reaſon (b). For 'tis equally fooliſh and proving and well-ordering of our Mind, is with
abſurd, not to apply our Riches to the ends for our utmoſt Diligence to maintain its Sovereignty
which they are given us, and vainly to throw them over its own Motions and Affections; the greateſt
away on Inferior Uſes and Deſigns. The former part of which do not only impair the Health of the
Vice including numerous Breaches of our Duty; the Body and the Vigour of the Soul, but caft ſuch a
latter leading the direct way, to Debt, Poverty, Cloud on the Judgment and Underſtanding, as to
Rapine, Deceit, and a Thouſand other Enormities wreft them violently from the ways of Reaſon and
and Miſchiefs (c).
of Duty. So that a Coldneſs of the Paſſions is, as it
XI. In Reference to Pleaſure and Pain, 'tis not were, the Natural Principle of Prudence and Pro-
only the Permiſſion but the Advice of Reaſon, bity amongſt Men (1). It may not be amiſs to
that we avoid as much as poffible all unneceſſary run with ſome light Remarks through the Particu-
Trouble and Diſquiet; and not only endeavour lars. Joy is in it ſelf a Paſſion moſt agreeable to
to keep our ſelves free from Grief and Diſguſt, but Nature. But ftri&t Care is to be taken, that it do
likewiſe to entertain our Senſes with ſuch Objects not break out on improper Occaſions, as upon
as are (1) agreeable and delightful to them (a), the Misfortunes of other Men: And likewiſe,
But to a ſingular and exquiſite Gratification of that it do not drive us on any thing that is vain
Senſe, the Mind is by no means to be accuſtom- and trifling, or baſe and indecenti Sorrow (2) is
ed ; in as much as this kind of Epicuriſm either a Canker that waſtes alike the Body and the Mind.
weakens and enervates a Man, equally oppreſſing This therefore is, as much as poſſible, to be re-
the Vigour of Body and of Soul, and rendring mov’d and expelíd; unleſs ſo far as the Offices of
them both unfit for any ſerious Buſineſs ; or ſteals Humanity oblige us to expreſs our Concern and
our Time from better and more neceſſary Imploy. Pity at the Misfortunes, or at the Deaths of o-
ments; or waſtes and conſumes our Wealth, and thers; and as it is requiſite to the great Buſineſs of
our Conveniences of Life; or often, being join'd Repentance. Love is a friendly Motion to Man-
with ſome criminal Practice, draws after it no o kind; yet this is ſo wiſely to be manag’d and mo-



(a) Add. Charron de la Sageſse, l. 1. c. 39. n. 2.8.9. (6) Horat. I. 2. Epift. 2.
Diſtat enim ſpargas tua prodigus, an neque ſumptum You may be Gen'rous, and yer nor Profuſe;
Invitus faciøs, neque plura parare labores.
Vain Squandering differs wide from chearful Uſe,
Which neither fears to break the preſent Stor
Nor labours in the needleſs Search of more.
(c) Lucan. L. 1.
Hinc Uſura vorax, avidumq; in tempore fænus, Hence greedy Uſury, hence Trufts betray'd,
Et concuſ a fides, do multis utile bellum.
| And War, to Wickedneſs a gainful Trade.
Ovid. Epiſt. 5. Quaſq; male emiſit nunc male quærit opes.
V Vhar Vice h'as ſpent by Vice he would repair.
(d) Vide Charron de la Sagesſe, l. 2. c. 6. n. 1, 2.
S.XI. (1) Mr. Montagne has ſome curious Thoughts on this Subject, which are worthy our Obſervation. “Nature, ſays he, like a'n
« indulgent Mother, has enjoined us no Actions for our Neceſſities, but what it is a Pleaſure to perform; being invited to them,
o not by our Reaſon only, but by our Appetite, ſo that it is Injuſtice to corrupe thoſe Rules. VVhen I ſee Cafar and Alexander in
" the midſt of their great Employments, enjoying human and bodily Pleaſures fo fully, I can't think it was for the Refreſhment
“ of the Mind, but to ſtrain it, by introducing thoſe violent Actions and laborious Projects, through Greatneſs of Courage, into
" an ordinary Courſe of Life. If they had been thought wiſe Men, what had been their ordinary Calling? This laſt. The Ex-
u traordinary
That the Soul affifts and favours the Body, and does not abſolutely refuſe to ſhare in its Pleaſures, but
“ ſeems to be delighted with them, it is to preſerve a Moderation, as the wiſer Part, for fear through Indiſcretion Men ſhould
turn them into Trouble ; for Inreinpecance is the Bane of Pleaſures, and Temperance is ſo far from being any Abridgment of
“ them, that 'tis a ſweetning of them. I direct my Soul to look upon both Grief and Pleaſure with a view equally regular and
firm, but on the one pleafantly, and on the other ſourely ; and, according to its Ability, robe as careful to ſhorten the one, as
enlarge the other. The clear ſight of good Things is always attended with a diſtinct Knowledge of Evil, and Grief hath fome-
«.thing noc avoidable at the beginning, as Pleaſure hath ſomething avoidable in the end, which may cut off all Exceſs. Plato
“(De Legib. Lib. 1. Tom. 2.) couples them together, and will have it the Duty of Courage to encounter Grief and the charming
“ Delights of Pleaſure, with equal Bravery. Theſe are the two Fountains at which whoever draws, where, when, and how he
“ ought, whether he be Citizen, Man, or Beaſt, he is Happy. The firſt he muſt take as a Medicine, merely for Neceffity, and
ſparingly, the other to ſatisfy his Thirſt, but not co Drunkenneſs. Grief, Pleaſure, Love and Hatred, are the firſt things an
“ Infant feels. If Reaſon happens to guide them, they follow it, and that is Virtue.” Esſays, Lib. 3. Chap. ult. There are ma.
ny other curious Thoughts both before and after, see Porpbyr. de Vit. Pythag. 8. 39. and what I have ſaid in my Treatiſe of
Games, Lib. 1. Chap. 4. S. 8.
§. XII. (1) Quinctilian Declam. 295. Magni affe&tus Jura non fpe&tant, i. e. " Great Paſſions are above Laws." See. Lib. 1.
Chap. 4. S. 7.
(2)“ i neither love nor value this Paſſion (faith Montagne) although the World fet a peculiar Efteem upon it, and gives it a
6 particular Honour. They call it Wiſdom, Virtue, and Conſcience. Fooliſh and vain Commendations! The Italians have given
« it a much properer Name, calling ir, a corroding Humour. It is a Quality always noxious, always fooliſh, and the Stoicks main-
“ rain it to be Bafe and Cowardly, as their wiſc Men have ever eſteemed it.” Elai, Lib. 1. Chap. 2. See alſo Charron of Wiſdom,
Lib. 1. Chap. 33. and Lib. 3. Chap. 29.
derated



Chap. IV. The Duties of Man with regard to Himſelf.
171
derated by Reaſon, that it does not throw itſelf a Dum abeft quod avemus, id exſuperare videtur
way on an ill Obje&t; that it does not procure Cætera; poft aliud, cum contigit illud, avemus ;
baſe and unworthy Fuel to its Flame ; that it does Et fitis æqua tenet vitai ſemper bianteis, &c.
not hinder the Exerciſe of other Duties, nor de-
generate into Diſquiet and Diſeaſe: That if it fer-
- Abſent Pleaſures ſeem the beſt ;
ile on a Thing ſubject to Lofs, or to Corruption, With wing’d Deſire and Hafte we thoſe purſue,
ie ſtick not ſo cloſely to it, as upon the Failure of But thoſe enjoy'd, we ſtraightway call for new
it, co make the Soul unable to recollect and to reco- Life, Life we wiſh ſtill eager ao live on, &c.
ver its Force (3). (4) Hatred is pernicious as well
Mr. Creech.
to che Perſon who employs it, as to him againſt
whom it is employ’d. This therefore is to be di- Fear, as it is a dangerous Enemy to Human Minds,
ligently quench'd and Atifled, leaſt it betray us to fo is it a Motion (8) altogether uſeleſs and unſer-
Injuries and Breach of Duty againſt our Neigh- viceable. For that Good Caution which fome
bours. And if ſome Perſons do really deſerve our make to be the Product of it, may ariſe without its
Averſion, yet 'twould be ſtill Folly to create, on Affiftance from a wary Circumſpection, and from
their account, Uneaſineſs and Diſquiet to our a Prudence alike untouch'd with Anxiety, or with
ſelves. Envy is a moſt deform's Monſter, ſome- Confternation. Anger is a moft Deftru&tive as well
times producing ill Effects in others, but always as a moft Violent Paffion; which is to be refifted
in the Envious Perſon ; who like Iron, o'er-run with our utmoſt Strength and Endeavour. And
with Ruft, not only defiles but deſtroys himſelf con whereas (9) fome alledge in its Favour, that it ex-
tinually (5). Hope, altho’ a Paſſion more eaſie and cites our Valour, and confirms our Conftancy in
mild than others, yet it is to be guided with ſuch Dangers; its Effect is indeed dire&tly contrary, for
a Temper, that it do not make the heart fick; nor, it binds a Man's Spirit and Courage, and drives
by aiming at Things either vain and (6) uncertain, him headlong to his Ruine (10)(11). Anger (12)
or beyond its Strength and Reach, tire it ſelf to no is the most improvident Thing in the World: and ſeldom
purpoſe, and become as Ariſtotle terms it ég engaegros acts but what we afterwards repent of. Nearly relat-
trúarlov, a Waking Dream: And that we do not falled to Anger is the (13) Deſire of Revenge, which
under Lucretius's Cenſure and Character;
when it exceeds a moderate Defence of our ſelves
and
(3) Sophocles Antigone.
Μη νιώ πότ', ώ παϊ, τας φρενας υφ' ηδονής
i
Never let Woman rob thee of thy Wits:
Γυναικός, ένεκ' εκβάλης
Euripid. Hippol. Coron.
Χρης και μετείας εις αλλήλες
Men ſhould be mod'rate when they fix their Love,
Diaías Sváros avarigradtad
And ne'er give up their Freedom and their Soul.
Και μη προς άκρον μυελός ψυχής
The Bards of Paſſion ſhould be loofly tyd,
Ευλυτα ο 27 έργήθρα φρενών,
Fit for a wider or a cloſer Knot.
'ATÓ Törants, rj Ew devou
1
Our Author here affirms,
that the Maxim of Euripides agrees exactly to a Subject contrary to what he applies, I mean, Ha-
tred and Enmity, and that it ought rather to be looked upon as a Precepr, not to make too great a Number of Friends. Where-
as the Poet only condemns ſuch an Exceſs of Familiarity as cauſes us to carry our Kindneſs beyond the Bounds of Duty, and
makes the Loſs of the Thing loved intollerable. This is evident from the Verſes following, which are an Explication upon the
foregoing.
Ούτω το λίαν γ' οσον επαινω
is under cazar.
Και ξυμφύσεσι σοφοί μοι.
(4) "Anger and Hatred (ſays Montagne) alſo, are above the Duty of Juſtice, and are Paſſions of Uſe only to them who can't
“ be kept to their Duty by plain Reaſon. Utatur Motu animi, qui uti ratione non poteſt.” Eſſays, Lib. 3. Chap. i.
(5) Ovid. Metamorph.
Videt ingratos int abeſcitque videndo
Pale Envy with pernicious Joys ſurveighs
Succesſus hominum, carpitq; do carpitur una,
Others Succeſs; and in Reflection preys
Suppliciumque ſuum eft.
Upon her ſelf; her Sin's her Puniſhment,
Add. Bacon's El. 10.
(6) Horat. Lib. 1. Epiſt. 2.
Invidia ſiculi non invenere Tyranni
Envyt a Torment that no Arr can reach,
Majus tormentum,
Of Cruelty improv'd
(8) See Montagne, Lib. I. Chap. 17.
(9) Ariſtotle ſays that Anger ſerves inſtead of Arms to Courage and Fortitude. This is very probable, but they that oppoſe
(Senec. de ira, Lib. I. Chap. 16.) anſwer in Drollery; “ 'Tis a kind of Arms of a new Invention, for if we take away other Arms
" that will fail us, our Hand can't weild that, but that guides our Hand, that holds us, and we do not hold it. Montagne’s Eſsays,
Lib. 2. Chap.31. in the End; read the whole Chapter, which is very fine and inſtructive,
(10) Ira furor brevis eſt, Anger is a ſhort Phrenzy. Hor. Lib. 1. Ep. 2. Add. Liban. Progymn. Vituper. Ire.
(1) Scarius, Theb. 10.
Ne frena anime permitte calenti, Give nor the Reins to Paſſion in its Courſe,
Da ſpatium tenuemq; moram: male cunéta miniſtrat Let Silence cool, and Leiſure break ics Force:
Impetus.
Fury does all Things ill
(12) Horat. Lib. 1. Epiſt. 2.
Qui non moderabitur ir&
The Man of Rage, whoſe Mind is not his own,
Infe&tum volet esse dolor quod ſuaſerit, & mens
Muſt often grieve, and often wiſh undone
Dum pænas odio per vim feſtinat inulto.
What paſs’d when Raſhneſs, deaf to wiſe Debare,
Prompted the ſpeedy Vengeance of his Hace.
(13) Marcus Antoninus ſays, "Aeso teimos duuventui, si un Novostas. “The beſt way of revenging ourſelves is not to
reſemble him that has done us an Injury, See what is ſaid in the following Chapter, Seneca has a proper Paflage for our
Purpoſe of which our Author quotes a part elſewhere, Non enim ut in beneficiis honeftum eft, merita meritis repenſare, ita injurias
injuriis; illic, vinci turpe eſt, hic vincere. Inbumanum verbum eft
, eo quidem pro juſto receptum, vltio, do d contumelia non differt, niſi
ordine. Qui dolorem regerit, tantum excuſatius peccat
Magni ani!ni eft, injurias defpicere, ultionis contumeliofiffimum genus
Z 2
eft




The Duties of Man with regard to Himſelf. Book II.
i, e. “ We muſt not behave our felves Wercome. Revenge is an in human Word, though the Thing which ic fignifies is looked
Youch the Sciences: He will nor have any Conſtraint or Force to be uſed with Children, or have them treated like Slaves, but
co be inſtructed with pleaſure, because nown. "On (W &70) fev ud India annoias & egon zu pri por Je VHV, oi les no
το σώμα και πόνοι, βία και μασιν αλλά παίζοντας τηέφε, ίνα ή μαλλον οιoς τ' ή, καθοραν, εφ' ώ εμας πεφύκεν, Dc Rep. Lib.
172
and of our Dependants or Concerns, and a jutt Af- Life, no Man can raiſe a Doubt about their Ex-
ſertion of our Rights againſt the Invaders of them, cellency and Uſe. But concerning the Study of
turns, beyond Diſpute, into a Vice (a).
Letters, many have been ſo bold as to maintain,
XIII. In ſuch Duties then, as we have already that Learning is not only uſeleſs, but deſtructive
reckon'd up, doth that Culture of the Mind chiefly to Mankind; and thac for this Reaſon we find it
confift, which all are oblig'd to undertake, and to have been forbidden in ſo many Common-
in the implanting and inforcing which thoſe Per- wealths, above the Degree of Reading, Writing,
ſons ought to employ eſpecial Care and Concern, and managing Accounts. Every one knows the
who have the Information and Inſtitution of others common Reproaches that are caſt on Scholars :
committed to their Care. For the want of this Of their Unfitneſs for Buſineſs, their Weakneſs of
Improvement, or the Diſpoſition directly contrary Courage, and of Civil Prudence, their Awkward-
to it, are both repugnant to Human Duty, and neſs in Geſture and in Converſe; with a thouſand
lay ſuch a Rub in our way as it is not eaſy to get more Reflections of the fame Nature, which ſome
over. And therefore whoever is found deſtitute of Men have thought themſelves very Eloquent in
ſuch a neceffary Perfe&ion, juſtly falls under com- ferring out (b)(2).
mon Cenfure and Reproach.
Now to come at the Truth of this Queſtion and
There is ſtill behind (1) a more peculiar Culture to know how to ſet a juſt Value on ſuch Attain-
of the Mind, conſiſting in the various Knowledgements, let us firſt lay this down for an undoubted
of Things, and of Arts and Diſciplines. This can- Principle, that to the acquiring of Wiſdom and
not be abſolutely neceffary to the Diſcharge of Prudence, bare Letters are by no means fufficient,
our Duty in general : And therefore every one is without a native Excellency of Soul. If this Hap-
to moderate his Purſuit of them, according to his pineſs be wanting, we can no more produce Wil-
own Capacities and Occaſions, according to the dom by Scholaftical Inſtitution, than we can pro-
Cauſes which drive him on ſuch Searches, and the cure a rich Harveſt of Corn by Ploughing on the
Fruits which he may fairly hope to obtain from Barren Sands. For 'tis one Thing to be a great
them. Now as for thoſe Arts which adminiſter to Reader, and another to be a prudent Man(c). And
the Neceſlicies and to the Conveniences of human Qninctilian's Judgment is right, when he ob-
eft, non eſſe viſum dignum, ex quo peteretur ultio, Multi leves injurias altius fibi demiſere, dum vindicant ; ille magnus & nobilis eſt,
qui, more
magna ferą, latratus minutorum canum ſecurus exaudit. Minus, inquies, contemnemur, ſi vindicaverimus injuriam. Si tanquam
ad remedium venimus, fine ira veniamus, non quaſi dulce ſit vindicari, ſed quaſi utile. Sæpe autem ſatius fait diffimulare, quam ulciſci,
, as under Theſe tis good but ; there
“ upon commonly as juſt and innocent. It differs nothing from an Injury but in Time. The Aggreffor does the firſt Injury, and
“ he that revenges himſelf does another in his Turn, this laſt is but little more excuſable than the former. A Great and Gene-
“ rous Soul contemns Injuries. The moſt injurious Revenge, and moft mortifying to the Aggreffor, is to be judged unworthy of
“ Revenge. Many Men in revenging a fmall Injury, have gained nothing but an Affrone more ſmarting and hard to be forgot-
“ ten. Å Lion hears the Barkings of little Whelps without Regard. But you'll ſay, by revenging our ſelves we prevent others
“ Contempt of us : Very well. But if you uſe Revenge as a Remedy, do it withour Paſſion and Anger, and behave yourſelves,
“not as if you delighred in it, but as a Thing profitable. Nevertheleſs we muſt own thar it is more advantagious often to dil
« ſemble an Injury than to revenge it." De Irå, Lib, 1, Chap. 32. with Juſtus Lipſius's Notes on it.
(a) Add. Le Grand. Philofoph. p: 8. c. 12, &c. (5) Eraſmus (Epift. 12, 1, 17.) giving a Character of a Learned Man,
adds, He was skill'd in common Prudence and Knowledge of Affairs, which is generally wanting to Scholars. Procop. Hiſt. Goth. l. 1.
Learning and Virtue are different Things; and good Diſpoſitions are moſt commonly broken and com’d by rigorous Inſtitution. Theodorick
us’d to ſay, 'tmas impoſſible that they who had been bred up in Fear of the Rod, ſhould ever arrive to ſuch a Degree of Courage,
teinn Swords and Spears. Plato de Repub. l. 7. No Free-born Subjelt ought to be inſtructed in a Servile Manner. Seneca
Hippol,
Ingenia melius re&ta ſe in laudem ferunt,
Great Souls move ſtraighteſt in the Paths of Praiſe,
Si nobilem animum vezet a libertas alit.
When left to follow their free Narive Benc.
Plato Gorg. When they (the Philoſophers) apply themſelves to the Management of Publick on
e ele eli vate Bufines, they are moſt con-
temptibly ridiculous. Arrian. Epillet. I. 1. c. 11. calls a meer Scholar, an Animal that all
.
c. 24. Charron. 1.1. C. 39. 1.3. c. 14. n.19, doc. (c) 'Tis the Saying of an old Poet, 'Qs & Nvivá Intes, år pes všs mapħ, i.e.
Learning ſignifies nothing without a Mind, or Gerius.
which is the fifth among his Selecta Jur. Nat. & Gent."
§. XIII. (1). We may find ſeveral curious Remarks, upon this Subject in Mr. Baddeus's Diſcourſe, entitled, De cultura Ingenii,
(2) Among the Paſſages here collected together by our Author, there are two nothing to the Purpoſe; viz. The firſt is of Plato,
whom our Author makes to ſay, That a young Man of honeſt
nt Condition ought not to apply himſelf to any Science in a ſervile
way. His Words are. Nullam diſciplinam ingenuum Serviliter oportet diſcere. In which he ſeems to mean, That the Study of Phi-
lofophy is only agreeable to Slaves. But this is not the Senſe of Plato in that place! He only ſpeaks of the Manner of teaching
chem, cheir Diſpoſitions are
σώμα ψυχή
2017cmtuxñö Julia
, i
, . .
7. Tom. 2. This is the very Notion which Mr. Locke has
his Treatife, the Education of ſee
9. 73, doc. and $. 131. of the laſt Edition at Francfort in 1708. Plato is ſo far from diſcouraging any from the Study of the Sci-
ences, that he tells us particularly in that Book, what thoſe are that Children ought to learn early, and ſays, with Reaſon, that
they that cry down Philoſophy, as of no Uſe to the Vulgar, never underſtood it, and that moſt of thoſe that meddle with it are
not well qualified for it. Vve will alſo rehearſe fome VVords of the fame Philoſopher, and ſo the Heedleſsneſs of this Author
will give an Opportunity to produce fonie Quotations, which contain ſome remarkable Thoughts
, viz. Tà gõv vui ciude inuice (1s
' έχω) και η ατμία φιλοσοφία δια ταύτα σε αντίθωκεν (ο και πότερον είπομεν) ότι ο καθ' αξίαν αυ της άποναι, και ο νόθας έδει
Deo, anne gendies. The other Paflage unfitly applied is Seneca's Hippola v. 459, 460. where we may plainly ſee that he is ípeak-
ing of a clear different Thing, than of a Mind not adornd with the Study of Philofophy.
ferves,



a
he
CHAP. IV. The Duties of Man with regard to Himſelf.
173
ferves (a) (3), that Prudence can do more without tom, and maintains a ſeparate and a ſuperior E-
Learning, than Learning without Prudence. There- fteem: Tho' if it condeſcends to enter the common
fore that Perſons naturally Fooliſh and Stupid are Diviſion of Sciences, it muſt be placed under this
not turn'd into great Sages by the Application of firſt Head. (7) Morality is concern'd about the
liberal Studies, doth no more detract from the Ex- Improvement of Mens Minds, and the Advance-
cellency of ſolid Learning, than it doth from the ment of a ſocial Life; Phyfick hath the Health of
Efficacy of Medicines, that they are not able to the Body under its peculiar Care ; and Mathema-
recover Dead Men. To him that bath ſhall be given: ticks are of apparent Uſe and Benefit in the In-
Matth. xxv. 29.(4): And Learning, as Horace vention of ſo many Arts for the Profit and for the
ſays, Lib. 4. Ode 4. v. 33, 34. vim promovet infitam; Conveniency of human Life. By that Learning
and where that vis inſita, that Natural Vigour is which we term Elegant and Curious, we under-
wanting, the other Gift is vainly beſtow'd. ſtand ſuch as is not indeed of fo neceſſary Uſe,
We may obſerve farther, that as Learning can as to render the Life of Man leſs Sociable or leſs
not alter native Foily, fo neither can it reform a Convenient upon the want of it; and yet is wor-
native Diſpoſition to Wickedneſs and to Impiety; thy of the Enquiries of Ingenious Perſons; be-
which, on the contrary, grow more incurable by cauſe it either leads us deeper into the Diſcovery
its Application; drawing thence a Supply of of the ſecret Works of Nature, or ſhows the fin-
Arms for their open Defence. 'Tis a Remark of gular Excellency of Human Wit and Cunning, or
Hobbes (b), that without I.earning it is impoſſible for a- preſerves the Memory of Things and Adions, and
ny Mando become either excellently Wiſe, or (unleſs his the Records of Mankind. And ſuch may we rec-
Memory be hurt by Diſeaſe, or ill Conſtitution of Or- kon the Knowledge of various Tongues, Natural
gans) excellently Fooliſ (c).
Experiments and Speculations, the more fine and
But the whole Courſe of thoſe Purſuits which ſubtile Parts of Mathematicks, Hiſtory of all kinds,
paſs under the Name of Learning, is not all of the Criticiſm, (as it preſerves Authors correct and en-
fame Nature, and therefore ihould not be all tire) Poeſy, (8) Oratory, and the like. Which are
rated at the ſame Price. We may divide Learning all in themſelves excellent, and worthy of Praiſe,
then into three Kinds, ſuch as is Uſeful, ſuch as is and ſerve for the Garniture and Ornament of Hu-
Elegant and Curious, and, laſtly, ſuch as is Vain and man Improvement ; according to which Meaſure,
Inſignificant (6). Uſeful Learning may be again di- both the Practice and (9) the Value of them are to
vided into three Claſſes, Morality, Phyſick, and be ſtated and determin'd.
Mathematicks. For Divinity ſtands on its own Bot Vain Learning we call, not only ſuch as is made


(a) Quintilian Inſtit. I, 6.c. 6. Plus fine Do&trina Prudentiam, quam fine Prudentia facere Do&trinam, certum est.
(6) Leviath. c. 4.
(c) Add Bacon, Eſſay 48.
(3) Montagne’s Words are, “ The moſt Learned are not the leſs Fooliſh. I love and honour Knowledge as much as they that
« have it, and if it be rightly uſed, it is the moſt noble and powerful Acquirement of Men. Bur as to thoſe (and there are a
" vaft Number of them) who place their chief Excellency and Worth in it, and referre their Underſtanding to their Memory,
“ Sub aliena umbra Latentes, (as Seneca ſpeaks, Epift. 33.) and can do nothing without a Book : I hate them, if I may lo ſpeak,
s almoſt as much as a Blockhead. In my country and Time Learning has done much Service to the Purſe, bur little to the
“ Soul. If it meets with dull Men, it loads and choaks them, becoming a crude and undigeſted Maſs, if with ayry Minds, it
" purifies their VVills, and ſo ſubtilizes their Notions as to turn them into nothing. 'Tis a thing of almoſt an indifferent Nacure ;
"a very uſeful Addition to a generous Mind, but pernicious and hurtful to any other: Or rather 'ris a Thing of a precious Uſe,
“which can't be attaind at a cheap Rate. In one Man's hand 'eis a Scepter, in another's a fools-bauble.” Ejays, Lib. 3. Chap. 8.
(4) This Maxim of the Goſpel, which our Author applies in the Stile of a Preacher, is meant in another Senſe.
(6) See Seneca de Brevitate Vita, Chap. 13. and his Epiſtle 88. where there are alſo many other fine Reflections on Study:
(7) I wonder our Author hath ſpoke nothing of Logick, which is abſolutely neceffary, whatever Science we purſue, if we
will do it with Benefit. See Mr. Clerc's Preface to his Latin Logick, and The Art of Thinking, as alſo the Second Volume of Par-
Thaliana, Art. 2.
(8) This Science though of no great Uſe, yer is often pernicious, becauſe 'ris very ſubject to be abuſed. Let us hear Mon-
tagne about this Marter. “An Orator of old ſaid, That it was his Work to make ſmall Marrers appear grear. He is a Cobbler
“that makes great Shoes for a ſmall Foot. They were whipped in Sparta who profeffed any Arc of Cheating or Deluding. We
may
believe thac Archidamus King of Sparta could not hear without Aſtoniſhment the Anſwer of Thucydides, when he was
asked, who was beſt at Wreſtling, Pericles or He? He ſaid, This is very hard to determine, for when I have thrown him to the
* Ground, he'll perſwade them that ſaw it, that he did not fall
, and ſo win the Prize. They that mask and paint Women do leſs
“Evil becauſe 'cis no great Matter whether we fee them in their pure natural Shapes or no, but theſe make it their buſineſs to
deceive, not our Eyes, but our Judgmene, and to baſtardize and corrupt the very Eſſence of Things. Thoſe Republicks who
maintain’d a regular Order and Policy, as the Cretans and Lacedemonians, ſet no Value upon Orators. Ariſtotle defined Rhe-
torick wiſely, calling it, an Arc to perſuade the People, but Socrates and Plato called it an Art of Soothing and Deceiving ;
e and thoſe thar deny this in the general Deſcriprion, verify it fully in their Rules. It is an Inſtrument invented to manage and
ftir up the Mulcitude and diſorderly Societies, which is never made uſe of but as a Medicine. Where the Vulgar or the Igno-
rant, or both, have the Power, as they had at Athens, Rhodes, and Rome, or Things were in mighty Confuſion, there Orators
" were plentiful.” Efays, Lib. 1. Chap.51. Where we may find many other fine Things about this matter. To theſe we may
add the Judgment of a Modern Author, whoſe Authority is of great
Weight. “In Diſcourſes by which we ſeek rather to please
and divert, than to initruct and complear the Judgment, we can't blame ſuch ſort of Ornaments as are taken from Figures.
except Order and Elegancy, the whole Art of Rhetorick, all its near Applications and figurative Expreſſions, ac-
cording to the Rules of Eloquence, ſerve only to beger falſe Notions in the Mind, and corrupt the Judgment, ſo that in Effect,
they are nothing but perfect Cheats, and confequently ought to be avoided in all Diſcourſes which are deſigned to inſtruct,
* for they muſt be eſteemed great Defects, either in the Language or Perſon that uſes them, ſo far as Truth is concerned. Hence
it may appear how little Regard and Concern Men have for the Truth, fince theſe fallacious Arts have ſo great Eſteem and Re-
“ ward given chem.
But Eloquence, like the fair Sex, hath Charms too powerful to admit of any Contradiction, and
compris in vain to diſcover any Faults in theſe Arts of Deceiving, fince Men rake Pleaſure in being cheated. Mr. Locke's Phil.
Ejay, &c. p. 642. See alſo what I have ſaid upon this Subject, concerning the Pulpit, in my Preface upon Tom. 2. of Archbiſhop
Tillotſon’s Sermons. As co Poetry, there is an excellent Diſcourſe in Art. 1. of the Parrhafiana, Tom. 1. which 'ewill be a plea-
fure to read.
(9) We muſt obſerve here, that ſome of theſe Sciences are neceſſary, if not in themfelves, yet in Reſpect to others, in which
no Progreſs can be made but by their Help, fuch, for Example, is Hiſtory, in Reſpect of Politicks, and Criticiſm in Reſpect of
Hiſtory and Divinity. See Mr. Clerc's Ar's Critica in the Preface.
up
16
57
The Duties of Man with regard to Himſelf. Book II.
Allies, that tbey Mould not teach Children Letters or Mufick : Thinking it the most grievous Puniſhment that could be inflicted, to live in
,
174
up of falſe and erroneous Notions; but likewiſe who went to the Engagement very good Friends, come
all thoſe Inventions of Crafty or of Idle Men, fet away most violent and ſpiteful Enemies (c).
up to amaze our Minds, and to hinder us from the But ſuppoſing things rightly order’d, can any
Purſuirs of ſolid Knowledge. Amongſt which, as one doubt, whether a Perſon endow'd with good
we muſt needs reckon many Opinions of the Old Natural Abilities, and inſtituted in ſolid Learning,
Philoſophers, ſo very diſagreeable to the apparent will not diſcharge the greateſt Affairs with more
Nature of Things; ſo we think it will not be over- Accuracy and with more Diſpatch, than if he de-
ſevere to join to them the greateſt part of that pended on the bare ſtrength of Nature, and neg-
barbarous Cant, which went under the Name of lected other Alliſtances (d)(11)? But then all
School Learning in the Ages preceeding the Refor- thoſe who apply themſelves to Study, ſhould be
mation of Religion; and which is ſtill reſolutely exa&ly careful, firſt that they direct their En-
maintain'd by Tomie Men, either becauſe they quiries to a good End, the ſervice of Life, or
know no better, or becauſe they are aſham'd to the Improvement and Perfection of their Minds;
unlearn, what they have made themſelves Maſters and not make uſe of them for idle Amuſements, or
of with ſuch prodigious Labour, or becauſe 'tis pleaſant Methods of palling away Time. Ariſtip-
the manifeſt Intereſt of the Papal Monarchy to keep pus (12) in Diogenes Laertius, being ask'd what Things
Mens Wits employ’d on Trifles, for fear they ſhould Ingenuous Children ſhould be taught, anſwer'd,
make ſome very dangerous Diſcoveries (a). Now Such as they may uſe when they come to be Men.
the greater Proficiency any perſon hath made in 'Twould not be only ſhameful, but wicked, if thoſe
ſolid Knowledge, the more he deſpiſes theſe empty whoſe Heads are ill’d with brave Notions and
and unprofitable Enquiries.
Sentences, ſhould do no more Good than common
Another thing to be conſider'd by thoſe who Ideots (13) (e). The Egyptians call'd their Li-
diſpute about the Uſefulneſs of Learning is this; braries Phyfick-Shops for their Souls, intimating their
that the Faults of bad Inſtitution and of Hotbrain'd Uſe as well as their Excellency (f). And Arrian's
Pedants, are not to be charg’d on the Sciences Epictetus (8) thought he could not give a worſe
themſelves (b). Is it likely, that ſound Knowledge Character of Mens being fally and inſignificantly
and Wiſdom ſhould be learnt in ſuch a School as Learn'd, than to ſay that they were Lyons in their
Agathias deſcribes under the Philoſophaſter Uranius? Schools, but meer Vermin out of them.
At their Meetings, ſays he, every one talks as he pleaſes They are likewiſe to take heed, that they do not
about the Sublimest Matters, and Points of Divinc Sci- reſolve all Science (14) into bare Authority (h),
ence; and tho' they are perpetually canvaſſing theſe Que- and Cuſtom of Speech, and an unintelligible Set
ſtions, yet they neither perſwade others, nor will ever lay of Terms; but that they ſearch into the ſolid
aſide the Notion they themſelves bave taken up, but Foundations of Things, and build their Schemes
whatever they be, defend them Tooth and Nail, against on evident Reaſon. As for thoſe Things which
all Oppoſers. When the Diſputations are over they depart they cannot yet bring to clear Demonſtration,
mutually incens’d, and vent their Rage against one ano- there muſt be no Stubbornneſs or Obſtinacy in
ther, like quarrelling Gameſters, in the most abufive mnintaining them; but a former Opinion muſt be
and foulest Ribaldry (10). Thus the Contention ends, willingly quitted, upon a better and a more cer-
without the least Profit given, or receiv’d; and thoſe tain Information; becauſe ʼtis very likely another
(a) See Hobbes's Leviath. c. 46, 47. Plutarch (in Alexand.) has left this Cenſure of Ariſtotle's Metaphyſicks, that they can af.
ford no real Advantage to the Teacher or the Learner. Martial. ll. Epig. 86.
Turpe eſt difficiles habere nugas,
'Tis ſhameful Men ſhould needleſs Knots invent
Et ſtultus labor eft ineptiarum.
To prove Jaboriouſly Impertinent.
(0) Vid. Charron, 1. 3. C. 14. n. 21, &c. (c) The Maſter is deſcrib'd very agreeable to his Scholars, Bearing above the reſt
only by Impudence, and Volubility of Tongue, he appeard the firſt Fool of the Herd, and conquer'd thoſe that knew nothing, by know.
ing juſt as much. The like Form of Diſputation is ridiculd by Lucian, in his Accuſato, and in Charron. (d) Plutarch de E-
ducar. The Life of Contemplation is of no vſe unleß Allion be added. And the Man of Ation cannot but miſtake and miſcarry, without
the Aſiſtance of study and contemplation. Saluft. Jugurth. The more Reaſon have we to wonder at the Perverſneß of thoſe who ſuffer
their Parts and Genius, the beſt and the nobleſt Advantage of a Mortal Nature, to ruſt in Idleneſ, and to grow dull and barren through
want of Culture. Ælian. V. A. 1. 7. c. 15. When the Mitylenians were Maſters of the Sea, they impos’d this Penalty on their Revolted
utter Ignorance of the Liheral Arts. Add, Cic. Off. I. where he ſpeaks of the Study and Search of Truth. (e) I hate Men
(ſays Old Pacuvius, in Gell
. 1. 53. c.8.) that are Philoſophers in opinion, and Drones in Buſineſ. Ifocrates Encom. Helen. The Sophiſts
onght to have inſtruśted their Scholars in Things which are of Uſe in Common Life, and to have exercis’d them in the skilful Management
exquiſite Attainments in unneceſſary Speculations, and that it is much better to excel others a little in Great and Important Things, than
to go far beyond them in ſmall Matters, eſpecially in ſuch as contribute nothing to the Aſſiſtance of Life. Lucian in Conviv. 'Tis to na
Purpoſe to be wiſer, unleſ we are Better. (f) Diodor. Sic. l. I. C. 49. (6) L. 4. c. 5. (b) Horat.l.1. Epiſt. 1. verſe 14.
Nullius addi&tus jurare in verba Magiftri. Vide Ciceron. de Nat. Deorum, l. 1. c.5. Seneca, de Vita beata, c.l.
(10) See about the Abuſe of Diſputes, a fine Paſſage in Montagne's Eſays, Lib. 3. Chap. 8. which is copied out with ſome
ſmall Alteration of Words, by the Author of the Art of Thinking, Part 3. Chap. 19. 5. 7.
(11) Plutarch's Greek is, 'O JE OPNIX'S (BIO) o meg.xlixš did wastewy, évoqeans'O 9 mesinler i morgious Q12000
φίας, άμεσα και πλημμελής. The Author allo quotes here the Saying of an ancient Greek Poet, Γράμμαθα μαθείν δει, και μάθονία
võivé xrv, He that affects Learning ſhould grow wife by it.
(12) The Greek is, o 3' By ’Aistrosewoontes, tivo ozir à di Toù relašs müdos desen vévev; 'fon, ois avdiges garów.eyor xsú-
coulan .
(13) Iſocrates's Words are, Os Coopesa's) explū epe elevus TOÁTAS * Teloletes, of in uery tis nógois é benéyxov meramaixuévns, er
και τις έρρις πολιων ήδη χρόνον, εξεληλεγμένης του αληθείαν διώκειν, και σε τας ωegξως, εν αίς πολιτώόμενα, τις συνθας παι-
δέυειν, και ή εμπειρίαν ή τέτων γυμνάζειν, ενθυμεμένες ότι πύλυ κράτος και οι χρησίμων όπιεικώς δοξάζειν, ή ειταχρήστων
ακριβώς επίσαθαι, και μικρών σείεχαν εν τοις μεγάλους, και πολύ διαφέρον εν τις μικρέις, και τοις μηδε προς ή βίον ωφελέσιν.
Lucian's Greek is,"22 fèy opero ivães on coats Té paluuald, HALA tis žoge j * Biov pu pu treds TÒ Bex.pcoy.
(14) Tully's Latin is, Obelt plerunque iis, qui diſcere volunt, authoritas eorum, qui docere profitentur, definunt enim ſuum judicium ad-
bibere : id habent Ratum, quod ab eo, quem probant, judicatum vident.
Man






Chap. IV. The Duties of Man with regard to Himſelf. 175
Man may have more quick and more piercing Labours, or any other way. Upon this account
Parts than our ſelves; and becauſe every new Day Gluttony, Drunkenneſ (4), Immoderate Uſe of Wo-
may correa fome Miſtake in the former. And men, and the like Exceſſes are to be avoided. ”Tis
this teachable Diſpoſition is a moſt infallible Mark
a famous (5) Saying of Democritus in Plutarch (d),
(15) of a generous Mind (a). Laſtly, Care is to if the Body Should bring an Action of Damage against
be us’d, that they do not in ſuch a Manner bury the Soul, the Soul would be ſure to be cast. Though
themſelves amongſt their Books, as to neglect o to this it might be replied, that the Miſtakes of
ther Duties, and rider themſelves (16) unfit for the Mind in Reference to food, and Pleaſure and
the Genius of a il and Sociable Life. For Pe- other Things, which concern the Preſervation of
dantry of Mind
(17) Vice not peculiar to Scho- the Body, do all proceed from its yielding to the
lars, but runs i byme Meaſure through the whole Corporeal Appetites and Affections, contrary to
World, and in
s Men of all Orders, Profeſſions the Admonitions of Reaſon: So that the Mind is
and Condition ✓
never of it ſelf the Cauſe of bringing the Body in-
XIV. But although the principal and the moſt to a worſe Condition than ordinary. And there-
laborious part of human Improvement is concernd fore to Democritus's Saying on one ſide, we will
about the Mind, we muſt not in the mean time oppoſe the no leſs renown'd Sentence of (6) Theo-
(1) neglect the Body ; ſince (2) the Mind makes phraſtus on the other; The Soul (ſays he) pays large
Uſe of its Supports, and can never riſe to any Rent to the Body for its Dwelling.
great Atchievement, if this Inferior be ill affected. XV. Our Life is given us by our Great Creator,
We are oblig'd therefore, as much as in us lies, as a kind of courſe or Race, in which we might
to ſecure (3) a Sound Body for our Sound Mind to exerciſe our Strength and Abilities by the Directi-
lodge in (b); and rather to harden our Limbs and on of Reaſon: And therefore it is not to be mea-
Conſtitution by long Endurance of Labour, than ſur’d by ſo many times drawing Breath, but by a
to ſoften or break their Strength by Effeminacy conſtant Succeſſion of good AĞtions. Every one
and Idleneſs (c). Pyrrhus is ſaid to have made this is therefore to take Care, that he be not bolov
only Requeſt to the Gods in his daily Devotions, 206 áségns (e), an
äzdG dségns (e), an uſeleß Burden to the Earth ; unpro.
üzdévev, to be well in Health, judging this Bleſſing to fitable to himſelf, and troubleſome to others, (2)
contain under it all Degrees of Happineſs. Care born only to increaſe the Number of Mankind,
is likewiſe to be taken that our Bodily Force and and to devour the Proviſions of Nature, (3) and
Vigour be not weaken’d by Intemperance in Meat that he do not only live for the Sake of his Palate
or Drink, or by unſeaſonable and unneceſſary (f) (4). Farther, ſince human
Farther, ſince human Induſtry com-
monly

(a) Plin. N. H. 1. 3. Proem. 'Tis not to be look'd upon as a Wonder, that Mortal Creatures Mould be incapable of knowing all Things.
Idem 1. 11. c. 3. By my frequent Contemplations on Nature, I have been inſtru&ted never to call any thing incredible that ſhe performs.
Diog. Laert. 1.10. In Natural Enquiries we are not to proceed according to ſtri& Method and Rules, but according as the various Ap-
pearances offer themſelves to our Obſervation, and incline our fudgment. Cicero de Nat. Deor. l. 1. The Authority of thoſe who pretend
to Teach, often proves a Hindrance to thoſe who deſire to Learn. For by this means they negle&t to apply their own Fudgment, and to take
every Thing for fixt and certain, which they hear deliver'd by thoje whom they admire. Quindtil
. Inftit. I. 3. c. 1. They love the Path
which they firſt trod in, whatever it be. And you will find it a moſt difficult Task to make Perſons change ſuch Opinions as they imbib'd
when they were Children; becauſe every one rather wiſhes to have his Trouble over, than to continue it, to have learnt formerly, than to
be a Learner now. Idem l. 7. c. ult. No Body is willing to ſee a Thing lesſen'd, in which he once appear°d Great. Yet, as Plato obſerves,
de Repub. 1. 5. 'Tis very unjuſt to be angry with the Truth. And aŭ farther Study would be in vain, if it were unlawful to improve the
Diſcoveries of thoſe that went before us. (6) To this End it may be uſeful to read that incomparable Book, Medicina Mentis do
Corporis, by Mr. Tchernhauſen. (c) Vide Diodor. Sic. 1. 1. c. 45. (d) De Sanitate tuenda. Add. Bacon Eſ. 30. (e) Homer, II. £.
(f) Ovid. de Pont. l. 1. El. 6.
Mors nobis tempus habetur iners,
To be Idle's to be Dead.
Sil. Ital. 1.3. Quantum etenim diftant a morte filentia vite?
A filent Life is an untimely Grave.
Theocrit. Idyl. 14.
More 77 dã oic zovu xa webv.
Buſineſs ſhould be pli'd whilſt Age is green.
Add. Gell. !. 19. C. 10.
(15) Sophocl. Antigone. 'Am'avdeg xlwns hoopòs, to dev Sarev | True Wiſdom is noe Sciff or Poſitive,
Plona'ágegyšš įv, aj to us Teiver ägar. Nor thinks it a Diſgrace to be Inform’d.
(16)." A Learned Inſtitution leads aſide from right and plain Reaſoning, thoſe who keep their Eyes and their Thoughts con-
tinually fix'd upon their Books." Lucian Conviv.
(17) Here is a Fault in the Original, that quite ſpoils the Senſe, viz. initium, for, vitium; and 'cis ſurprizing that Mr. Hertius
did not correct it in his Edition of 1706. Indeed all this is taken,' word for Word, out of the Art of Thinking, Diſc. 1. and the
Author ought to have referred us to the Original where he had it.
S. XIV. (1) See Plato (in Charmid. p. 464.) Seneca Epiſt. 14. in the Beginning, and Hierocles upon Pythagoras's golden Verſes,
P. 153, 182. Edit. Lond.
(2) Corpori vaco, cujus fulturis animus fuftinetur. Plin. Epiſt. Lib. 1. Ep. 9. The Author alludes to this and the following Paffage
though he does not quote them; nor are they diſtinguiſhed by the Italick Letter.
(3) Orandum est, ut fit mens Sana, in corpore Sano, i. e. We must pray for a Sound Mind in a Sound Body. Juv. Sat. 10. V. 356.
(4) Juvenal. Sat. II.
Виссе | Fools only make Attempes beyond their Skill
Noſcenda est menſura tua
A Wife Man's Power's the Limit of his Will.
This Verſe does not reflect upon an Exceſs in Eating and Drinking, but upon ſuch exorbitant Expences as Men are at, nor,
conſidering whether they are Rich enough to bear them. For 'cis a Proverbfignifying, That Men
ought in all Things to examine
themſelves, what they are capable of, and able to do. Our Author more fitly referrs us to Socrates his Words about Intemperance,
in his Memoirs collected by Xenophon, Lib. I. Chap. 3:
(3) Plutarch's Greek is, "Ns ei to owree dorésoul to tñ fuxiña mencow's šx år mérles dropugar. The Reflection which our Author
makes upon theſe Words, is not altogether proper, for though Briskneſs of Spirits, and other Motions of the Body have great
Influence upon the Soul, there are other Paffions purely Spiritual, as Coveroufneſs, &c. which are not leſs violent, and do much
Hurt to a good Conſtitution of Body. See my Treatiſe of Games, Lib. 3. Chap. 4. 5.6. and Chap. 5. 9. 11, &c.
(16) His Greek is, Πολυ τω σώματι τελών ενόικιον ή ψυχίω, in Ρlut.
§. XV; (2) Nos numerus ſumus da fruges conſumere nati. Hor. Lib. 1. Ep. 2. v. 27.
(3) Juvenal is referr'd to without Quotation, Aut quibus in folo vivendi cauſa Palato est. Sat. 11. v. 11.
(4) Ciceron. de Nat. Deor. 1.2. Mihi enim, qui nihil agit, esse omnino non videtur, i.e." He that doth not ſhew himſelf in Action,
" ſeems to me to have loſt his very Being." But this is nothing to our Author's purpoſe. For by theſe words one of the
Dialogills


i
167 The Duties of Man with regard to Himſelf. Book II.

monly exerciſes it ſelf one of theſe two Ways, Buſir. The like Cuſtom was receiv'd amongſt the
either in procuring Things feceſſary for the Pre- Peruvians, under their ancient Incas; the Nobility
ſervation of Life, or in diſcharging the Offices of alone being allow'd to improve themſelves by the
a Social and a Civil Condition ; which admit of Study of Letters. De la
Study of Letters
. De la Vega. l. 4. c. 19. Tis a true
great Variety, and do not all ſuit alikė with all Obſervation of Xenophon, Cyropæd. I. 2. Thoſe Perſons
Men's Capacities and Abilities (a); it is manifeſt arrive at the greateff Height and Perfection in particular
that every Man ought with early Care to chuſe Attainments; who have given themſelves wholly to some
out and undertake ſuch a Courſe of Life as is Ho- Single Purſuit, avoiding Multiplicity of Buſineſs and of
neft, Profitable, and Comporting with his Parts Enquiry. As he ſays well in another Place, Lib. 8.
and Strength. In which Choice (6), Men are 'Tis impoſſible that a Man who profeſſeth many Arts toge
uſually determin'd, either by Impulſe and Inclina- ther ſhould excel in all. Hence it appears, that not
tion of Genius and Fancy, or by ſome peculiar only thoſe Perſons do live in a State repugnant to
Aptneſs of Body or Mind, or
by Condition and ſound Reaſon, who maintain themſelves by Rob-
Quality of Birth, or by the Goods of Fortune, bery or Villanies ; but thoſe too, who withdraw
or by the Authority of Parents, and ſometimes by themſelves unneceffarily from the common Duties
the Command of the Civil State, or laſtly, by the and Offices of Life: fuch are many of the modern
Invitations of Opportunity, or by the Compulſion Hermits and Monks, as well as ſome of the ancient
of Neceſſity. (5) Iſocrates in Areopagit
. gives us Philoſophers. But thoſe who chiefly fall under
this Account of the old Athenians. Under ſo great this Cenſure, are the ſturdy and able Vagrants, who
an Inequality of Fortunes, they could not preſcribe to all abuſe the Divine Name into a Trade of getting
the same common Exerciſes ; and therefore, they put them Money, and make God, as it were, their Tribu-
in different Ways according to their Circumſtances and tary. The Wickedneſs of theſe Varlets is the
Condition. The Meaner ſort they cngag’d in Agriculture greater, if they voluntarily maim or diſtort any
and in Trading ; well knowing, both that Idleneß was of their Limbs, ſo as to render themſelves incapa-
the Cauſe of Poverty, and Poverty a Temptation to In- ble of doing the World any Service, though they
jury and Miſchief
. So that by removing this Fountain ſhould afterwards deſire it
. 'Tis a Cuſtom very
of Vice, they thought they should prevent the Evils remarkable amongſt the Chineſe, that no Perſon of
which us’d to flow from it. As for the more Wealthy, found Strength is permitted to beg, although he be
them they comfelld to apply their Minds to Horſemanſhip. blind; ſuch unfortunate Wretches being imploy'd
Feats of Body, Hunting, and Philoſophy: Apprehending in turning Mills, from which Service they earn
that ſuch Employments and Amuſements muſt needs have their Subliftence (c).
this good Effect, to make ſome excel in Virtue, and to Again, Since Time runs on with ſuch ſwift
keep others from being notorious in Vice. It was an Or- Steps, fince Death ſurprizes Men ſo often when
dinance amongſt the Egyptians and Indians, that e- they leaſt expect it, and is always beyond their
very Man ſhould follow his Father's Trade. Diodor. Power to avoid ; thence it follows, that 'tis our
Sic. l. 1. c. 74. and l. 12. c. 41. (6) The Reafon of Duty to make an early (7) Uſe of Life, not to
which Inſtitution is given by Iſocrates, in Laud. begin too long a Thread of Actions, not to lay



Dialogiſts labours to prove a Providence, againſt the Epicureans that denied it: for, ſays he before, To maintain that there are no
Gods, and to deprive them of all Care and Action, is much the ſame thing; for he that doth not, &c. So that this Paſſage could noc
be fitly applied to the Idleneſs of Man, but by a Preacher : He might much better have quoted Saluft's words, who ſays, “That
“ they only live truly, who are buſied in doing Good, the Idle Man's Life is Death.” Sed multi mortales dediti ventri, atque
Somno, indo&ti, incultique vitam, ficuti peregrinantes, tranfiere, quibus profe&to contra naturam corpus voluptati, anima neri fuit. Eorum
ego vitam, mortemque juxta exiftimo, quoniam de utrâque filetur. Verum enim vero is demum mihi vivere, atque frui arimâ videtur
,
qui aliquo negotio intentus, præclari facinoris, aut artis bonæ famam quærit. De Bell
. Catilim. ch. 2. Maximus Tyrius alſo ſays, That
Idleneſs belongs to none but a Dead Man, zö ö ónov, e weeyuooun tivo åv åaas on sale) verpo. Differt. 5. Mr. Bruyere alſo has
a fine paffage, which may perhaps agree better than all theſe Quotations of old Authors. - There are ſuch Creatures made by
"GOD as are called Men, who have a Soul, which is a Spirir, whoſe Life is wholly employed, and all their Thoughes taken up
“ in fawing Marble: This is very filly, and a thing of little Worth; and there are others that wonder at it, but are neverthe-
“ leſs uſeleſs, and ſpend their Days in doing nothing ; this is worſe than ſawing Marble.” Chara&ter of the Manners of this Age,
Chapt. of Judgments, pag. 450, 451. See what I have ſaid in my Treatiſe of Games, Lib. 1. Chap. 1. §. 1. and Lib.4. Chap.6.
(a) Vide Eſais de Morale, Vol. 3. pag. 44, 202.
(6) Vide Mr. Oſtervald's Cauſes of Corruption, Engl. Ed. p. 227, doc.
(c) Mart. Hift. Sin. 1. 1. c. 34.

(5) Iſocrates's Greek is, "Amavas, Life Sev BH Teis ouita's åper drengildis og biovr' ls, avouéxws Temel Bioy Excuteceso mis press
θεσίαν ήρμοθεν, έτως εχάσεις wesσέλα σν. τες μου ισοδεέστρον αράπονίας, όπι τας γεωργίας και τας εμπορίας έτρεπον ειδότες,
τας με απορίας, δια τας αργίας κγνομένας τας και κακερίας, δια τας οπτείας" αναιρένιες &ν τίω αρχών και κακών, απαλλάξειν δοντο,
και και άλλων αμαρτημάτων και μετ' εκείνων γιγνομένων, τες βίον έκαναν κεκτημένες, πεί πιππικών και τα γυμνάσια, και τα
κωνίσια, και η φιλοσοφίαν, ήνάγκασαν διατείξεων έρώνες εκ τέτων, τες με διαφέρονίας καιγνομένας, του 3 και πλείσων κακών
αποχαμένες.
(6) Ifocrates only ſays, that Bufiris would have no Man have more than one Trade, or Profeſſion, becauſe 'tis noe poſſible to
excel in feveral. Αεί τοϊς αυτοίς τας αυτές πράξης με τα peeίζεται προσέταξεν ειδώς τες με μεταβαλλομένες τις εργασίας, πεις
δεν ξεργών ακριβώς έχοντας τες και οι ταϊς αυταίς ωeάξεσι σιωεχώς επιμένονας, ας αρβολήν έκαςον αποτελενίας. So that he had
better liave joined this with what he quotes out of Xenophon's Cyropeed. Lib. 2. Chap. 1. 9. 8. and Lib. 8. Chap. 2. S. 4.
(7) “ The moſt glorious and principal Work of Man is to live well
. All other Things, as to Reign, get Eftates, Build, are
“ but Appendages and Helps for the more - They are mean Souls who are buried in Buſineſs, and do not know how to
“ diſentangle themſelves, nor to leave them and reſume them.” Montagne’s Eſſays, Lib. 3. Chap. ult.
too
CHAP. IV. The Duties of Man with regard to Himſelf.
177
coo valt a Train of Deſigns (a). We ought like- fince Society, for which a Man is ſent into the
wiſe to have the Accompes of our Life always World, cannot be well exercis’d and maintain'd,
drawn up in a Readineſs, and to harden our Minds unleſs every one, as much as in him lies, takes
betimes againſt the Terror of Dying ; that without care of his own Preſervation ; (the Safecy of the
a trembling Reluctancy, without repining at our whole Society of Mankind, being a thing unintel-
Creator's Pleaſure, we may reſign, when he de- ligible, if the Safety of each particular Member
mands it, what he lent us of his Free Bounty, un were an indifferent Point), ic manifeſtly appears,
der no Terms of keeping (b).
that a Man by throwing aſide all Care of his own
XVI. How paſſionately every Man loves his Life, tho' he cannot properly be ſaid to injure him-
own Life, and how heartily he ſtudies the Secu- felf, yet is highly injurious both to Almighty
rity and Preſervation of it, is evident beyond Dif- God, and to the general Body of Mankind (c).
pute. But it will admit of a Debate whether the It was not rightly inferr'd in the Argument we
bare Natural Inſtinct which he enjoys in common juſt now mention'd, that the Law of Nature did not
with Beafts, inclines him to theſe Defires; or concern itſelf with this Matter, becauſe Inſtinct
whether he is not engag'd in them by fome Supe- did before drive us on the like good Reſolution.
rior Command of the Law of Nature. For, in as We ſhould rather imagine, that the Force of In-
much as no one can, in a legal Senſe, ſtand oblig'd ſtinct was ſuperadded (as an able Second) to the
to himſelf, ſuch a Law ſeems to be of no Force Dictate of Reaſon; as if this Help alone could
or Significancy which is terminated in my felf, ſcarce make a Tie ſtrong enough to keep Man-
which I can diſpenſe with when I pleaſe, and by kind together. For indeed, if we reflect on the
the Breach of which I do no one an Injury. Be- Troubles and Miſeries that conſtantly wait on Hu-
ſides, it looks like a needleſs thing to eſtabliſh a man Life, and do ſo far outweigh that little and
Law about this point, ſince the anxious Tender mean Portion of Pleaſure (3), which through a
neſs of Self-love would beforehand drive us ſo perpetual Repetition, grows every Day more flat
forcibly on the Care of our own Safety, as to and languid, ſo that we muſt needs loath it in
render is almoſt impoſſible for us to act other- every Enjoyment; and if we conſider farther,
wiſe (1). If then (2) a Man were born only for how many Men have their Days prolong’d only
himſelf, we confeſs it would be convenient that to make them capable of more Misfortunes and
he ſhould be left entirely to his own Diſpoſal, and Evils; who is there, almoſt, who would not rid
be allow'd to do whatever he pleas'd with himſelf
, himſelf of the Burthén of Life, as ſoon as poſſible,
But ſince by the univerſal Conſent of all Wiſe if Inftint did not render it fo light and ſo ſweet;
Men it is acknowledg’d, that the Almighty Cre or unleſs ſo much Bitterneſs or ſo much Terror
ator made Man to ſerve him, and to ſet forth his were join'd to our Notion of Death? And yet
Glory in a more illuſtrious manner, by improving who is there almoſt who would not break through
the Good Things committed to his Truſt; and the bare Oppoſition of Inftin&t, had not the Com-
ز
1
3.
(a) Martial, 1. 1. Epigr. 16. Ars longa vita brevis. Hippocrat.
Non eft, crede mihi, Sapientis dicere vivam :
The Future is the Tenfe of Fools. Delay
Sera nimis vita eft craſtina : vive hodie.
May make to Morrow Late ; be Wiſe to Day.
Horat. I, 1. Epiſt. 4.
Inter ſpem curamque timores inter do iras,
Whilſt Hopes, Cares, Fears and Frets to plague you join,
Omnem crede diem tibi diluxiße (upremam;
Think every Day your laſt that is to ſhine.
Grata ſuperveniet, que non ſperabitur , hora.
'Tis not expe&ting makes a Bleſſing dear :
An Hour's Reprieve is worth a Vulgar Year.
Sil. Ital. Lib.
Brevit aſque vet at mutabilis hore Time ever on the Poſt and on the Change,
Prolatare diem.
i
Forbids us to delay.
Horat. Carm, l. 4. Vite ſumma brevis fpem nos vetat inchoare longam.
The ſhortneſs of our Mortal Line
Forbids a longer Thread in our Defign.
(b) Sil. Ital. l. 3.
Virtus futile nomen,
Vertue's but an Idle Sound,
Ni decus adfuerit patiendo, ubi tempora lethi
Unleſs undaunted Honour keeps our Ground
Proxima fint.
Againſt the laſt Attack of Fate.
Plin. N. H. 1. 7. C. 40. One Day paſſeth Judgment on another, and the laſt on all. Arrian Epiktet. l. 1. c. I. Tūs äexs sad sons,
la títe, nevágoncio trös; w's Pegounet te daaóreide Spor Boulce. When my Time is come, I will be prepar'd immediately to leave
the World. After what manner? Why; like a Perſon who is reſtoring what was lent him. Add, M. Antonin. I. 12, . 12. and
Bacon, Eflay 2. See alſo Mont agne's Eſſays, Lib. I. Chap. 19.
(c) Compare Ant. Matth. de Crim. Prolegom. c. 3. f. 4.
S. XVI. (1) Senec. de Benef. Lib. 4. Chap. 17. Supervacuum eſt enim, in quod imus, impelli : quemadmodum nemo in amorem
ſui cohortandus est, quem adeo dum naſcitur trahit. 'Tis needleſs to drive us, whicher we are going of our own accord. No one
wants an Exhortacion to be perſwaded to love himſelf, ſince he drew in that Principle with his firſt Breath. See alſo Xenophon's
Memoirs of Socrates, Lib. I. p. 423.
(2) The Obligation of preſerving and compleating a Man's Self, proceeds directly from Self-love plainly, which we have
proved, $. 15. Note 1. of the foregoing Chapter, to be one of the principal Fundamentals of all our Duties. Indeed Inſtinct
alone cannot always fo forcibly conquer our own Idleneſs and Negligence, as to make us know fufficiently, what is really profi-
table
, or hurtful, to our own Self-preſervation, as Experience teaches. on the other ſide, 'tis fometimes too fierce, and ſome-
times too blind, to leave to its Direction entirely, a Thing that requires ſo much Circumſpection, as the Care of ourſelves
, and
our true Intereſt does, which ought to be managed in ſuch a manner, as not co be prejudicial to Religion, the Rights of others,
or good of Sociecy.
(3) Mr. Bayle has over and over provºd in his Hift. and Crit. Di&tionary ( as may be found in its Index) The Miſeries of Life are
more and greater than its Comforts. The places are marked in his Index. See alſo my Treatiſe of Games, Lib. 3. Chap. 1. §. 3.
Аа
mand
178
The Duties of Man with regard to Himſelf. BookII.
mand of our Creator ſecur'd us with a much ſtron XVII. 'Tis a Queſtion of more Difficulty, whe-
ger Bar and Reſtraint (a)? Nature, fays Quincti- ther at all, or how far a Man hath Power over
lian, hath invented this chief Device for the his own Life, either to expoſe it to extreme Dan-
Preſervation of Mankind, to make us die unwil- ger, or to conſume it by flow Means and Degrees,
lingly, thus enabling us to bear ſo vaſt a Load of or laſtly, to end it in a ſudden and violent man-
Misfortunes as falls to our Share, with ſome Pa ner (d). Many of the Ancients allow'd a Man
tience and Quiet.? And Socrates in Xenophon (b) an abſolute Right in theſe Points, and thought he
declares it to be copš dupureszē Téxynuce, the Artifice of might either voluntarily offer his Life as a Pledge
a Wiſe Workman, or Builder, to have implanted in for another's, or devote it freely, without any
Men a Deſire of producing Offspring; in Wo- ſuch Deſign of preſerving the Life of his Friend;
men a Deſire of Nurſing and bringing them up; or whenever he grew weary of Living, mighé
and in all, when brought up, a vaſt Deſire of prevent the Tardineſs of Nature and Fate. Pliny
'Living, and as great a Fear of Death.' And (e) calls the Ability to kill one's ſelf, the most ex-
this laſt Motive is the main Security of every Man cellent Convenience, in the midst of ſo many Tor-
from the Violence of others. For how eaſy were ments of Life. Whom we can by no means ex-
it to Kill, were it not ſo hard to Die? Hence he
Hence he cuſe from Hat Impiety, for daring to think ſo ab-
preſently becomes (4) Maſter of other Mens Lives, jectly (1) of the greateſt Gift of Heaven. It is
who hath once arriv'd at the Contempt of his own. our Bulineſs to examine what ſeems moſt agreeable
And the regard that others have to their own in this Caſe, to the Law of Nature. And here we
Safety, is the beſt Defence of mine (c).
may take it firſt of all to be true beyond Diſpute,
(a) Quin&t. Declam. 4. What Satisfa&tion, O wretched Mortals, can it prove, to keep the Soul for ſo many Tears, or, if Nature al-
low'd it, for infinite Ages, in the unpleaſant and weariſome reſtraint of the Body? If we diligently weigh and examine all our Joys, all
the Pleaſures, which in this univerſal Scene of the World, either attrast our Sight or flatter our Vſe, we shall find the whole Life of Man
to be no more than a ſingle Day. They muſt be low and abje&t Minds which are not tired with this poor Circulation of A&tions. so that
he who by Application to honeſt Arts is able to underſtand what is the Perfe&tion of Goodneſ and true Happineſ, will think no Death un-
timely: and thoſe who refer the Deſign of our Being chiefly to the Mind and Soul, muſt every Day be ſurfeited of Life : Te expet I ſhould
now give an account how many things there are in this ſhort Stage, which we ought to avoid and decline; that I ſhould ſet our Fears
and our Calamities againſt our foy and our Succeß. Let us then weigh thoſe dear Comforts for which we weary the Gods with vain Pe-
titions, and on the account of which we complain of the Shortneſ of Life. And what are they, but Vanity, Greedineß, Luxury and Luſt?
And ſhall not we be aſhamed for the sake of ſuch Scandalous Privileges, to bear Weakneſ, Grief, and tedious Diſtempers; and even to
court'their ſtay, when we have an Opportunity of throwing them off and eſcaping?
(6) Xenophon Apomn. l. 1.
(c) Add, Charron, l. 2. C. II. n. 8.
(d) See Montagne's Eſſays, l. 2. c. 3.
(e) N. H. 1. 2. c. 7.
(4) 'Tis the Expreſſion of Seneca, Ita dico, quiſquis vitam ſuam contempfit, tus est Dominus. Epiſt. 4. & Mr. Corneille, in his
Cinna, makes Æmilius ſpeak of Auguſtus;
Whatever Care or Order thou dost take,
He that deſpiſes his own Life, doth make
Himſelf Maſter of thine.
Act. I, Scene 2.
*This Verſe is alſo found in Seneca's Tragedy, Hercul. Oet. v. 443.
Contempfit omnes ille, qui mortem prius. He contemns all Men that contemns Death.
$. XVII. (1) Mr. Montagne's words are here remarkable: After he has alledged the Reaſons of ſuch as hold it lawful to kill
themſelves, he goes on and ſays, “ Several hold, that they may not leave this world without the expreſs Command of him that
« ſent them into it; and that God hath placed us in it, nor for ourſelves only, but for his own Glory, and the good of others,
and He is to releaſe us when he pleaſes, and not we ourſelves ; That we are not born for ourſelves, but for our Country; and
" therefore the Laws call us to an Account of Ourſelves, for their Intereſt, and have an Action of Murder againſt us.”
Nay,
we are in another World puniſhed as Deſerters of our Stations. as Virgil (in his Æneids, Lib. 7. v. 104, doc.) and Lucretius
Lib. 3. v.79.) ſpeaks.
Proxima deinde tenent mæſti loca, qui ſibi lethum Thoſe doleful Souls in the next Rooms of Hell,
Infontes peperêre manu, lucemque peroſi
Who, without Guilt, did ſay themſelves, do dwell.
Projecere animas
'Tis an Argument of much Bravery and Courage, rather to lug the Chain that clogs us, than break ir. Regulus's Conſtancy is
more commendable than Cato's Deſpair. 'Tis Indiſcretion and Imparience that haſtens our Pace ; Virtue will not turn its back
upon any Misfortunes, it rather ſeeks our Trouble and Afiction, as its Nouriſhment. The Threarnings of Tyrants, Fires, and
Executioners rather invigorate and enliven it. (See Horace, Lib. 4. Ode 4. v. 55, &c.) And Seneca's Theb. or Pheniſ. Act, 1.
p. 190, doc.
Rebus in adverſis facile est contemnere vitam;
Fortiter ille facit, qui miſer ello poteſt.
Mart. Lib. 11. Epigr. 57.
It is a sign of Cowardice, and not of Courage, to caſt a Man's ſelf into the Grave, under an heavy Tombſtone, to avoid the
Strokes of Fortune. Courage will not be beat out of its Way, or Courſe, by any Tempeſt that attends ir.
Si fra&tus illabatur Orbis,
If the World falls about his Ears,
Impavidum ferient ruine.
The Ruins will not raiſe his Fears.
Moſt commonly, when we are flying from other Troubles we fall into this. By avoiding Death we ſometimes run headlong to it.
Hic rogo, non furor est, ne moriare, mori? Mart. Lib. 2. Epigr. 80.
As thoſe who, for fear of a Precipice, throw themſelves head long from it. (See Lucan. Lib. 7. p. 104, doc. and Lucretius, Lib. 3.
v. 79, &c.) Contempt of Life is ridiculous, for our Being is our All. Things which have a more Noble and Excellent Being,
may ſlight Ours, but 'tis againſt Nature for us to deſpiſe it ourſelves, and bring ourſelves to neglect it. 'Tis a particular Diſ.
eaſe, which no other Creature is troubled with, to hate and deſpiſe ourſelves. 'Tis a like Folly to deſire to be another Thing
than we are.
The Conſequence of ſuch a wiſ does not concern us ſo much, as contradict and hinder itſelf. He that deſires to
be made an Angel, does nothing for himſelf : He deſires nothing better, for having no Exiſtence, how can he be ſenſible of, or
rejoice at that Amendment? The Security, Indolence, Impaſſibility, and Privation of the Evils of this Life, which we purchaſe
by dying, bring no Profit to us, In vain he avoids War, that can't enjoy Peace; and in vain he flies from Pain, who has no way
to get Eaſe. All Inconveniences are not ſo heavy, as to make us deſirous to die to avoid them; for fince there are ſo many ſudden
Changes in human Affairs, it is hard to judge when we are come to the full end of our Hopes. All Things, ſays an anciene Pro-
verb, are full of Hopes to a Man as long as he lives. Eſſays, Lib. 2. Chap. 3. Madam Deſhoalieres has ſome fine Verſes to this
purpoſe.
In greatnes of Courage Men do not know
But Diſgrace follows them hard, as they deſerve.
When they are got to the Rank of the Hero's.
By one Death they have eſcaped a thouſand.
Thoſe Greeks and Romans who themſelves flew, Home ſweet is it to troubled Hearts to figh! |
That they might make themſelves famous,
It is more noble, more difficult
Ithat great Thing have they done ?? They're departed this Life ; To bear a Misfortune, than to be delivered from it.
Diverſe Reflex. Stanza x. Tom. I.

that
CHAP. IV. The Duties of Man with regard to Himſelf. 179
that ſince Men both can and ought to apply their mand us to lay down our Lives for our Brethren) that,
Pains to the Help and Service of another; and without any ſuch rigid Injunction of a Superior,
ſince ſome certain kinds of Labour, and an over a Man fhould voluntarily expoſe himſelf to a Pro-
ſtraining Earneftneſs in any, may ſo affect the bability of loſing his Life for others ; provided he
Strength and Vigour of a Man, as to make Old hath good hopes of thus procuring their Safety,
Age and Death come on much ſooner, than if he and that they are worthy of ſo dear a Ranſom:
had paſs’d his Days in Softneſs, and in eaſy Pur- For it would be filly and ſenſeleſs, that a Man
ſuits; any one may, without Fault, voluntarily ſhould venture his own Life for another whom
contract his Life in ſome Degree, upon account 'tis impoflible to preſerve; and (2) that a Perſon
of obliging Mankind more ſignally, by fome ex of Worth and Excellence ſhould ſacrifice himſelf
traordinary Services and Benefits (2). For fince for the Security of an inſignificant paltry Fellow (b).
we do not only live to our felves, but to God, We conceive it then to be Lawful, that a Man
and to Human Society; if either the Glory of may either give himſelf as a Surety for another,
our Creator, or the Safety and Good of the Ge- eſpecially for an Innocent and a Worthy Perſon,
neral Community require the ſpending of our or as a Hoſtage for the Safety of many, in the
Lives, we ought willingly to lay them out on Caſe of Treaties ; upon pain of ſuffering Death,
ſuch excellent Uſes (a). Pompey the Great, in a if either the accus'a Perfon doth not appear, or
time of Famine at Rome, when the Officer who the Treaty be not obſerv’d. Tho' the other Party
had the Care of tranſporting the Corn, as well as to whom he ſtands bound on either of chefe ac-
all his other Friends, intreated him not to venture counts, cannot fairly put him to Death upon ſuch
to Sea in fo ftormy a Seafon, nobly anſwered Failure; as we ſhall elſewhere make out. But
them, That I ſhould goʻtis neceſſary, but not that I that thoſe vain Cuſtoms of Mens devoting them-
ſhould live. And Achilles in Homer, when his Fate ſelves out of Foolhardineſs and Oftentation (ſuch
was put to his Choice, preferr'd a haſty Death in as we obſerv'd to be in uſe amongſt the Faponeſe),
the Glorious Adventures of War, to the longeſt are contrary to the Law of Nature, we do not in
Period of Age, to be paſs’d idly and ingloriouſly the leaſt doubt. For there can be no Virtue in
at home.
an Action where there's no Reafen. Nor do we
XVIII. Farther, in as much as it frequently pretend to maintain, that the Law of Nature ob-
happens, that the Lives of many Men cannot be liges a Man to prefer the Lives of others to his
preſerv'd, unleſs others expoſe themſelves, on their own; eſpecially ſuppoſing the Caſes and Circum-
Behalf, to a probable Danger of loſing their own'; ſtances to be equal. For beſides that the common
this makes it evident, that the lawful Governour Inclination of Mankind is an Argument to the
may lay an Injunction on any Man in ſuch Cafes, contrary, we might alledge the Teſtimony of
not to decline the Danger upon Pain of the ſevereſt Witneſſes beyond all Exception, allowing a Man
Puniſhment. And on this Principle is founded the to be always dearest to himſelf, and Charity ſtill to
Obligation of Soldiers, which we ſhall enlarge begin at home (c).
upon in its proper place. 'Tis a Noble Saying of XIX. It remains that we examine, whether or
Socrates in Plato's Apology, (I) In whatever Station no a Man, at his own free Pleaſure, either when
a Man is fix'd, either by his own Choice, as judging it he grows weary of Life, or on the account of a-
the best, or by the Command of his Superior ; in that he voiding ſome terrible impending Evil, or ſome
ought reſolutely to continue, and to undergo any Danger ignominious and certain Death, may haften his
that may aſſault him there; reckoning neither Death nor own Fate, as a Remedy to his preſent or t
to his
any other Evil ſo grievous, as Cowardice and Infamy. future Misfortunes (d). On this point we have a
Nor doth it ſeem at all repugnant either to Na- famous Saying of (1) Plato, in Phado, frequently
tural Reaſon, or to the Holy Scriptures, (which com mention's with Honour and Commendation by

ز
(a) Statius Theb. X.
Felix, qui tant a lucem mercede relinquit.
Happy, who at a Price ſo noble fold
Horat. Carm. III. 2.
A fleecing Life!
Dulce do decorum eft pro patria mori.
How Sweet, how Glorious is the parting Breath
Mors do fugacem perſequitur virum,
With which our injur'd Country's Peace we buy?
Nec parcit in bellis juventa
In vain the Coward flies : whilft ſwifcer Death
Poplitibus, timidoque tergo.
Hangs on his Back, nor ſpares the quivering Thigh.
(6) Grotius ad Jonah. C. 1. v. 12. If one Man does well in offering to die for the Preſervation of many (as Phocion told Demoft-
henes) how much more is he in Juſtice oblig’d to this, who apprehends himſelf to be the cauſe of the common Danger ?
(c) See 2 Corinth. viii, 17, 14. L. 14. Prin. D. præſcript. verb. 1. 6. C. de ſervit. I. 2. f. 9. D. de aqua pluv, arc.
Nor can any
Argument for the contrary be drawn from L. 5. 1. 4. D. Commodati, L. 1. f. 28. D. de Santo Silan. Add, Traff. de Principiis
Guſti do Decori, p. 12, doc. (d) Vid. Lipſii Epift. Cent. 2. Ep. 22. Dr. Donne's Box távåt, Ef. de Morale, Vol. 1. p. 50.
(2) In fine, We may obſerve with Mr. Titius (Obſerv. 115.) That the effect of theſe great Undertakings is not always ſo cers:
tain, that we need believe, that they thereby infallibly ſhorten their Days. Moreover, the equal Poize between Self-love and
Sociableneſ, doch nor confift in an indiviſible Point, but contains a conſiderable Extent. Laſtly, Sociableneſ ſometimes prevails
more than Self-love. See what I have ſaid in the foregoing Chapter, S. 15. Note 5.
S. XVIII. (1) The Greek. Ou är tis eau Tòr túžiuviz nouvevo beansov 7), i rad opgeno Ingoing ev paūga di, as fucà
δοκεϊ, μια οντα κινδυνεύειν, μη δεν υπολογιζόμενον, μήτε ανάλον, ιτε άλλο τι μίδεν πε5 τα ασε.
(2) There would be not only Folly, but great Injuſtice in it, for the Law of Nature poſitively ordains, That all other Things
being equal, every one ſhould love himſelf better than others, and preferr his own Intereſt before theirs, in a Thing of that great
Conſequence as Life is
, which is the Foundation of all the good Things of this world. By a much ſtronger Reaſon, if he that
runs the hazard of his Life, can't endure that a Perſon of Merit and worth to Society, ſhould ſacrifice himſelf to ſave him.
5. XIX. (1) Plato plainly treats here of the Private Inſtructions which the Pythagoreans gave their Scholars, juſt admitted
into their Schools, and in which they diſcover the Reaſons of the moſt abſtruſe and private Doctrines of their Philoſophy. Theſe
ſecret Inſtructions they called their 'Arópfuld, about which ſee Scheffer, De Not. Jo Conſtit. Phil Ital. Chap. 1o. What Plato
Tays before of Philolaus, a Pythagorean Philoſopher, will not allow us to doubt, that the Reaſon which he fers down here, as very
obſcure and hard to comprehend, is no other than what the Pythagoreans give, to prove that Self-murder is not allowable. And
°cis the ſame exactly which Cicero attributes to Pythagoras, De Sene&t. Chap. 20.
Аа 2
Chriſtian


180
Book II.
The Duties of Man with regard to Himſelf.
Chriſtian Writers: ''s tv move opreĝo touèr os óvogWTOs, Sampſon, who choſe to die by his own Strength,
vj Så de Ecu Too Ĉn Taútus aúcio, 8 d Stodd
ego rev. We when he (4) found the True Religion expos'd to
are plac'd, as it were, upon the Guard, in Life; Scorn in his Perſon and Misfortunes: And of Saul,
and' a Man must not rid himſelf of this Charge, or who (5) fell on his own Sword, left he ſhould
bafely deſert his Post. Which Laétantius hath ex- have been derided and inſulted over by God's
preſs’d more fully in his Divine Inſtitutions (a): As, and bis Enemies; and left, if he ſhould have yiel-
ſays he, we did not come into the World upon our own ded himſelf Priſoner, the Slavery of his Country
Pleaſure or Choice, ſo neither usust we quit our Station and Kingdom ſhould inevitably follow. For the
otherwiſe than by the Command of him who gave it us ; Jews are of Opinion, that Saul recover'd his Wif-
who put us into this Tenement of the Body, with Orders dom and Honour, as to the laſt Act of his Life;
to dwell here, till be ſhould pleaſe to remove us.
It is in as much as after the Ghoſt of Samuel had fore-
worth while to hear how Plato (2) deſcribes the told his Death in the Battel, yet he refus'd not to
Self-Murderer, whom he hath condemn’d to a dif- engage for his Country and for the Law of his
graceful Burial. He that kills himſelf, preventing by God; whence he merited eternal Praife, even
Violence the Stroke of Fate, being forc'd to his End nei- by the Teſtimony of David; who likewiſe com-
ther by the Sentence of the Judges, nor by any inevitable mended ſo highly the Piety of thoſe Men, who
Chance, nor on the account of defending his Modeſty in honour'd their Prince's Reliques with a decent
extreme Danger; but thms unjuſtly condemning and ex- Burial.
ecuting himſelf, out of Cowardice and Unmanlineſs of Some extend this Exception and Allowance to
Spirit. Ariſtotle hath well ſeconded his Mafter. many other Cafes which bear a Reſemblance to
To die, ſays he, (b) either to get rid of Poverty or the former. And the Foundation they build upon
of Love, of any other Trouble or Hardſhips is ſo far is this, that as no Man can be properly bound or
from being an Act of Courage, that it rather argues the oblig’d to himſelf, ſo no Man can do an Injury to
meaneſt degree of Fear. For 'tis Weakneſs to fly and to himſelf, when he takes away his own Life. As
avoid thoſe things which are hard and painful to be un- for a Man's being engag'd by the Law of Nature
dergone (c). Grotius (d) hath obſerved, that Per to preſerve himſelf, they ſay the Reaſon of this
fons Guilty of Self-Murther were excluded from is, becauſe he is conſtituted and appointed by
decent Honours of Burial, both amongſt the Gen- God for the maintenance of Human Society, which
tiles and the Jews. But amongſt the latter, one he muſt not by any means forſake, like an idle
Caſe is commonly excepted, and allow'd as a juſt Soldier, who runs away from the Poſt afſign'd
Reaſon for killing one's felf; and that is (3) when him in Battel : And that therefore my Obligation
a Man finds he ſhall otherwiſe be made a Re- to ſave my own Life, is not a Debt to myſelf, but
proach to God, and to Religion. For acknow to God, and to (6) the Community of Mankind.
ledging the Power over our Lives not to be in So that if that Reſpect to God and to Mankind
our own hands, but in God's, they took it for be taken off and be remov'd, the Care of my Life
granted, that nothing but the will of God ei- is recommended to me only by Senſitive Inſtinct,
ther manifest or preſumptive, could excuſe the De- which not riſing to the Force of a Law, an A&ion
fign of anticipating our Fate. As Inſtances of repugnant to it cannot be accounted ſinful. On
this excepted Cafe, they alledge the Examples of theſe conſiderations, they think the Caſe of thoſe

1
(a) Div. Inftit. l. 3. c. 18.
(b) Ethic, 1. 3. C. H.N.
c) Senec. Phæniſl.
Non eſt Virtus
Valour is not, to be afraid of Life,
Timere vitam; ſed malis ingentibus
But bravely to reſiſt impending Woes,
Obſtare, nec ſe vertere ac retrodare.
And never to ſubmic or to retire.
Martial, L. 11. Epig. 57.
Rebus in anguftis facile eſt contemnere vitam; Cowards in Miſery may court their Fate;
Fortiter ille facit qui miſer eße poteſt.
He's Brave chat dare perfift Unfortunate.
Virgil aſſigns a Place in Hell to Self-murtherers.
Qui fibi letum
They
Infontes peperere manus, lucemque peroſi
Who prodigally throw their Souls away ;
Projecere animas.
Fools who repining at their wretched State,
And loathing anxious Life, ſuborn'd their Fate.
Mr. Dryden.
Procop. Hift
. Goth. I. 4. To throw away our Life when there can be no Advantage, is precipitate Madneß : And tho' ſuch a blind Fierce-
neß hath ſome vain Shadow of Courage, yet it will always paſs for Folly, in the Judgment of wiſe Men. Ammian. Marcellin, 1. 25.
C. 4. If we conſider right, it is juſt the ſame Fearfulneſs and cowardice, to deſire Death when we ought not, and to refuſe it on a proper
Occaſion. Add, Roger de Bramin. p. 2. c. 19. Nicol. Trigant. de Regno Chine, 1. 1. C. 9. Charron, 1. 2. C. II. n. 18.
(d) L. 2. c. 19. f. 5.
(2) De LL.. 1. 9. “Ο, αν εαυτόν κλείνη, θα ειμαρμένης βία αποστρών μοίραν, μήτε πόλεως ταξάσης δίκίω μήτε τπειωδιωίω, και
αούκιω @es αντσέση τύχη αναγκαθείς, μήδι αιoύνης την απόρε, και αβία μεγαλαχών, αργίας και και ανανδρίας δειλία εαυτώ δίκιο
a dirov 7.3n Támos de Tois 876 peptiot, we mov jell xi muovas, &c. See a Paſſage of Mr. Montagne's, quoted s. 17.
Note 1. where you'll find an Abridgment, and a lively Repreſentation of the principal Realons which can be alledged againſt
thoſe who believe that Self-marder is allowable, and fome other Paſſages which our Author puts in the Margin here.
(3) This Reaſon does not excuſe Self-murder at all. Suppoſing that we do not any thing to diſhonour God on our part,
'cis not our Fault, if profane Perſons take an occaſion unjuſtly to ridicule their Creator; and this doch not at all authorize us to
violate the expreſs Prohibitions both of the Natural Law and Revelation, in departing out of this Life without his Leave.
(4) 'Twas done rather out of Revenge againſt the Philiſtines, and God puniſhed himſelf by hearing his Prayers. See Mr. Le
Clerc on Judges, xvi. 28.30.
(5) See Mr. Le Clerc upon 2 Sam. I. 14.
(6) Ariſtotle obſerves, (Ethic. l. 5. c. 15.) that thoſe who are guilty of their own Deaths, are more properly Injurious to the
Commonwealth than to themſelves ; and that therefore they deſerve the Ignominy commouly inflicted on their Reliques.
Perſons

CHAP. IV. The Duties of Man with regard to Himſelf. 181
Perſons deferves a favourable Judgment, and at they might well preſume on the Confent and
leaſt a kind Pity, rather than a rigorous Cenſure, Leave of Mankind, to whom they were already
who lay violent Hands upon themſelves, when loft: It being no one's Intereſt that they ſhould
they ſee that they ſhall otherwiſe infallibly ſuffer not anticipate their Death
for ſo little a time, to
a Death of Torture and Ignominy from their Ene- avoid the feeling of ſuch Tortures and Abuſes as
mies;
ſince it cannot be for the Intereſt of the Pub- might, perhaps, tempt them to yield to a more
lick, that they muſt needs die in fo infamous a man- grievous Sin: And in as much as it ſeem'd un-
ner: Or elſe, when they ſee ſuch an Injury likely reafonable to condemn Generous Souls to ſuch
to be offer'd to them, as if they undergo, they a Neceſſity, as that they muſt wait for the Sword
ſhall be ever after ſcorn’d and derided by the reſt of Villains, who would inhance the Bitterneſs
of Mankind. Of the former fort are thoſe who of Death, by their foul and ignominious U-
feeing themſelves condemn'd to Death, either by ſage (c).
Cruel Enemies abroad, or bloody Tyrants at home, But to leave this particular Point without ven-
have wilfully prevented the Stroke ; either to a- turing at a Determination; thus much we take to
void the Tortures and the Shame of a Publick Ex- be evident, that thoſe who voluntarily put an end
ecution, or to procure ſome Benefit to their to their own Lives, either as cired out with the
Friends or Families by this Expedient. Thus Ta- many Troubles which commonly attend our Mor-
citus, Ann. VI. giving an Account of ſome of the tal Condition; or from an Abborrence of Indigni-
Accus’d Perſons under Tiberius, who made themſelves ties and Evils, which yet would not render them
away, obſerves, that the (7) Fear of the Executioner diſgraceful Members of Human Society; or through
rendred theſe sets very frequent. And that whereas Fear of ſuch Pains and Torments as by reſolutely
ſuch as ſuffer'd Death in Publick, were denied the enduring, they might have become uſeful Ex-
Privilege of Burial, and had their Goods confiſcated; amples to others; cannot be well clear'd of the
thoſe who died by their own bands were decently interr’d, Charge of Sinning against the Law of Nature. Sir
and their Last Wills ſtood good with full effect ; theſe Thomas Moor ſeems to be of another Opinion in his
Indulgences ſerving as a Reward for their Hafte. Utopia, but his Reaſons do not prevail with us to
And here, by the way, we may remark, that alter our Judgment.
Martial's Cenſure doth not always hold good, But thoſe are, on all Accounts, to be exempted
from the Crime of Self-Murther, who lay violent
Furor est, ne moriare, mori ;
Hands on themſelves, under any Diſeaſe robbing
them of the Uſe of Reaſon. Many Perſons like-
'Tis mad to die for fear of Death; wiſe who have run into Voluntary Deſtruction,
upon an exceeding Fright and Confternation,
For, as Æſchines (a) hath well diſtinguiſh’d, To have on that account been excus'd by Moderate
die es not ſo terrible, as to bear the Infamy that attends and Candid Judges (d).
ſome kinds of Deaths.
It ought to be obſerv'd farther on this Head,
The other ſort of Perſons whoſe Death we ob- that it makes no difference whether a Man kill
ſerv'd to be ſo favourably interpreted by ſome himſelf, or force others to diſpatch him. For
Caſuiſts (9) are thoſe Women and Beautiful Boys, he who at ſuch a Time, or on ſuch Occaſion,
who have killd themſelves to avoid the Violation ought not to die, is by no means excus’d, if he
of their Chaſtity (b). And in their Behalf, they makes uſe of another Man's Hands to procure his
urge this plauſible Excuſe, that being aſſaulted Death; ſince what a Man doth by another, he is
with ſuch a Danger as they could not other- ſuppos'd in Law to have done himſelf, and muſt
wiſe, unleſs by a Miracle, eſcape, they might therefore bear the Guilt or Imputation of the Fact.
well conclude, that their Almighty Sovereign and David was guilty of the Death of Uriah, tho he
General now gave them a Diſmiſſion, and that got ic effected by the Hands of the Ammonites. So


(a) Orat, de falf. Legat. (6) Vid. Paul. Diac. I. 15. & Eufeb. H. E. 1. 8. c. 24, 27, (c) Cicero Tuſc. Qu. I. Caro
left the World rejoicing that he had met with an Opportunity of Dying. For that Divine Power which dwells in us, forbids us to depart
without his Leave. But when Heaven preſents a fair Occaſion, t formerly to Socrates, now to Caco, and often to other Perſons, I dare
engage, that a truly wiſe Man will quit with Joy this Vale of Darkneſs, to enter into Happineſs and Light. And yet ſuch an one will
not violently break the Chains of his Priſon; for this the Laws forbid him ; but he will go out quietly and fairly, when God is pleaſed
to give him his Enlargement; as if his Releaſe from the Reſtraint were ſign”d by the Proper Magiſtrate and Power. Compare L. 3. 1.6.
D. de bonis eorum qui ante ſententiam. L. 45. 1. D. de jure fifci. Add, Quintilian, Declam. 4. Ant. Matthe : de Crim. ad 1. 48.
tit. 5. c. 1. 1.9. Grot. ad Judic.c. 16. v. 30.
(d) &. Curtius, L. 4. c. 16. When Fear hath once got Poſeſſion of the Mind, Men grow deſperate, and dread nothing but that firſt
Obje&t of Terror. Lucan. L. 3.
Mille modos inter lethi mors una timori est
Amongſt a Thouſand ways of Death, they fear
Qua cápere mori
That only which in part they feel
Mors timore appetita, Death deſired thro' Fear, is a Phraſe with Sueton. Add, L. 14. f. 3. D. quod metus cauſa, and Montaign?
Eflay, L. 1. C. 17.
(7) Tacitus's words are; Nam prompt as ejuſmodi Mortes, metus carnificis faciebat, do quia damnati publicatis bonis, ſepultura prohị.
bebantur; eorum, qui de se ſtatuebant, humebantur corpora, manebant teſtamenta, pretium feſtinandi.
(9) This is not a ſufficient Reaſon to juſtify Self-murder, for they ought to comfort themſelves with the Teſtimony of their
own Conſcience, which can't blame them in that reſpect, and bear patiently the unwarrantable Cenſures of Men, and the other
Inconveniences which may redound from ſuch a Violence. True Chaſtity, as Mr. Thomafius fpeaks very well (Inſtitut. Furiſpr.
Divin. Lib. 2. Chap. 2. S. 76.) is a thing which no Man can cake away by force, and 'cis without Reaſon that they are leſs eſteem-
ed ſo, who have been obliged to yield to a greater Powen


to
182
The Duties of Man with regard to Himſelf. Book II.
were Pilate and the Phariſees guilty of that of our we cannot approve of thoſe Laws, which in ſome
Saviour, tho' they did not themſelves faften him Countries either command or permit People to
to the Croſs
, but order'd the Soldiers to do it. make themſelves away. Such a Law Diodorus Si-
Altho' the Perſon who lends his Hands to ſuch a culus, L. 2. C. 57. reports to have been in force
Şervice, may likewiſe bring himſelf in for a Share amongſt the Inhabitants of the Iſland Ceylan, or-
in the Fault. For this Reaſon we don't admire the daining, “That the People ſhould live only to
Reflection which Florus (a)(10) makes on the Deaths " ſuch a Number of Years, which being run out,
of Brutus and Callius; Who, ſays he, doth not won they eat a certain Herb that put them into
der, that theſe Wiſe and Great Perſons did not employ " their long Sleep, and diſpatch'd them without
their own bands in their concluding Strokes? Perhaps it o the leaſt Senſe of Pain. Add, L. 3. Ch. 33.
was part of their Perſwaſion, that they ought not to And thus too amongſt the Creans, all Perſons 2-
defile themſelves by ſuch Attempts, but that in delivers bove Sixty Years old, were obliged by the Laws to
ing their most Holy and most Pious Souls from the Con- poyſon chemſelves, to ſupply Food for the rest (c).
finement of their Bodies, they ſhould make uſe of their Though Ælian gives this better Reaſon for the
own Judgment, in the Intention, and of other Mens Practice; “ That having arriv'd at ſuch an Age
Wickedneſs in the Execution. For if it were unlawful they were conſcious to themſelves, that they
for them at that time to end their Lives, it was were no longer able to promote their Coun-
indifferent whether they fell by their own, or by " try's Intereſt by their Service; growing now
others Violence. But if it were lawful, how can “ towards Stupidity and Dotage” (d). Procopius,
any Wickedneſs or Guilt be imputed to the Ser- Hiſt. Oeth. L. 2. relates a Cuſtom of the Heruli,
vants who aſſiſted them? Tho' the Hiſtorian by which thoſe who were weaken'd and diſabled,
might, in fome meaſure, be excus'd, if the ſame either by Diſeaſe or Age, voluntarily ſent them-
Cuſtom were practis'd in his Country, which felves out of the World : The Wives hanging
Æſchines mentions amongſt the Grecians, that if a themſelves at the Tombs of their Husbands, if
Perſon murther'd himſelf, the Hand that per- they loſt them in this manner. Alian, L. 4. C. 4.
form'd the Deed was buried apart from the reſt reports ſomewhat to the ſame purpoſe of the
of the Body (b).
Sardi, and the Bebricei ; and Strabo, Lib. 2. and
To conclude, Since we deny that a Man hath Herodotus, Clio in fin. of the Maſſageta, who may
abſolute Power over his own Life, it is plain that be conſulted at Leiſure.


(a) lib. 4, 7.
(6) Orat. contra Creſiphonr.
(c) Strabo, L. 10. Heraclid. de Polit. Vide, H. Lib. 3. Chap. 37:
: .
(d) Add, Valer. Max. Lib. 2. Chap. 6. f. 7, 8.
(10) Thus Deianira ſpeaks in Seneca (Herc. Oet.)
Dextera fternar tud,
Yours fhall be the Hand of Fare,
Sed mente noſtra.
And mine the Will.
СНАР.
183
С НА Р.
V.
Of Self-Defence,

V wiſe.
I. The Defence of a Man's ſelf is a lawful Violence. XII. Of a Box on the Ear.
II. And is ordain'd by the Law of Nature.
XIII. Whether a Man is bound to fly.
III. What ſort of Defence is allowed in a Natural State. XIV. Whether the Chriſtian Religion commands other
IV. And what ſort in Cities?
V. Whether it is lawful against one that Miſtakes. XV. Slaughter committed in Self-defence, is guiltleſs.
VI. The time for ſuch Defence in a Natural State. XVI. Of the Defence of our Goods.
VII, VIII, IX. And bow to be ſettled in a Civil State. | XVII, XVIII. Of a Night-Thief. fiai
X. Of Maiming any part of the Body.
XIX. Of ſuch Defence as is made by him who has of-
XI. Of Chaſtity.
fered the Injury. Ciu

تردد
Tderet
O Self-Preſervation, which not only the ten with his Fellows, and all the Laws of Nature,
dereft Paſſion, but the exacteſt Reaſon re which bear a regard to other Men, do primarily
commends to Mankind, belongs Self-Defence, or tend towards the Conſtitution and the Preſervati-
(1) the warding off ſuch Evils or Miſchiefs as tend on of this Univerſal Safety and Quiet. Yet Na-
to our Hurt, when offer'd by other Men. This ture is not backward in giving us an Indulgence
Defence of our ſelves may be undertaken two to fly even to Force, when we cannot by other
ways, either without hurting him who deſigns the means ſecure ourſelves from Injuries and Aſſaults.
Miſchief againſt us (2); or elſe by hurting or de- For the Obligation to the Exerciſe of the Laws of
ſtroying him. As to the former Expedient, no ſen- Nature and the Offices of Peace, is mutual, and
ſible Man can queſtion, but that it is altogether binds all Men alike; neither hath Nature given
lawful, and blameleſs
. But concerning the latter, any Perſon ſuch a diſtinct Privilege, as that he
many have entertain'd a Scruple ; in as much as may break theſe Laws at his Pleaſure, towards
by putting it in Practice, we hurt or deſtroy a others, and the others be ſtill oblig'd to maintain
Man like ourſelves, with whom we are oblig'd the Peace towards him. But the Duty being mu-
to live in a Social manner, and whoſe Death ſeems tual, the Peace ought to be mutually obſerv'd. And
to be as great a Lofs to Mankind, as our own. therefore when another, contrary to the Laws of
And beſides, becauſe a forcible Repulfe of an Ag- Peace, attempts ſuch things againſt me, as tend
greffor,may cauſe more Diſturbances and Outrages to my Deſtruction, it would be the higheſt Impu-
in human Society, than if we ſhould either de- dence in him to require me at the ſame time to
cline the Miſchief by Flight, or paciently yield hold his Perſon as Sacred and Inviolare : that is,
our Body to it, when an eſcape is impoſſible. Yet To forego my own Safety, for the ſake of letting
that the Defence of ourſelves may not only be un- him practiſe his Malice with Impunity (4). But
dertaken the firſt of theſe ways, but (3) when ſince in his Behaviour towards me he ſhows himſelf
that proves ineffectual, even with the Hurt of the unſociable, and ſo renders himſelf unfit to receive
Aſſailant, we are inform’d, as well by the Judg- from me the Duties of Peace, all my Care and
ment of Reaſon, as by the concurring Teſtimony Concern ought to be how to effect my own Deli-
of the Learned and Unlearned World. 'Tis true, verance from his hands; which if I cannot accom-
Man was created for the maintaining of Peace pliſh without his Hurt, he may impute the Miſchief
He treats of the firſt in
Barbeyrac's NOTES on Chap. V. S. I.
(1) This is well ſtated by the Roman Lawyers, for they lay it down as a Maxim of the Law of Nations ( which we call the
Law of Nature) vt vim atque injuriam propulſemus : Nam jure hoc Evenit, ut quod quiſque ob tutelam corporis ſui fecerit, fure feciſſe
exiſtimetur, Digeft
. Lib. 1. Tit. 1. De inftit. & Jure Leg. 3. See alſo Lib. 9. Tit. 2. Ad Leg. Aquil. Leg.4. in princ. Indeed,
as Mr. Titius obferves (Obſerv. CXX.) there may be ſome Oppoſition between Self-love, and the Duties of a Community, either
in reſpect to the Good Things which can't be poſſeſſed by two Perſons at the ſame time ; and in this caſe Self-love ought
often to thew itſelf; or in reſpect of Evil
, which equally threatens ochers and ourſelves. Our Author, in this and the next
Chapter, treats of this laſt Oppoſition, which happens either by the Act of him towards whom we ought otherwiſe to obſerve
the Laws of the Community, or without any Act on his part. He explains the firſt Caſe in this chapter, and clears the other in
the following; for the Fact of the other, which produces this oppofition, is either Malicious, or not.
this Paragraph, and will ſpeak of the ocher in s. s.
(2) We may add this Explication here, which our Author uſes in his Abridgment of the Duties of a Man and Citizen, Lib.r.
Chap. 5. §. 12. 1. e. Taking good heed that he ſhall not gain his Ends in inſulting us; or that he may have reaſon to fear the
(3) We ought to obſerve this Limitation well, how unjuſt foever the Attempt of the Aggreſſor may be, the Community
obliges us to ipare him, if we can do it without Prejudice to ourſelves. By this Juft Temper we may, at the ſame time, pre-
ferve the Rights of Self-love and Duties of Community. The Roman Lawyers have owned this Truth, Injuria autem (ſay they)
occidere intelligitur, qui nullo jure Occidit. Itaque qui latronem ( Inſidiatorem occiderit
, non tenetur, utique ŚI ALITER PERI-
CULUM EFFUGERE NON POTEST. Institut. Lib. 9. Tit. 3. De Leg. Aquil. S. 2. See Mr. Noodt's excellent Treatiſe, Ad
Legem Aquiliam. Chap. 4. p. 15, 16.
(4) Herodian, L.4. C. 5. Ομε, και ευλογον, και αναγκαίον, και μέλλον θα πεί σε δεινόν, αμύναθαι μάλλον, ή πομείνει τη μεν
Mes su u popã rõ movle, vjellavopis Motores a In Extrean Danger, nor only mecellity, but Reputation, obligeth
Unfortunate, we ihould be reproach'd as Cowards.
us rather to avenge an Injury, than ſustain it. Since ſhould we fall by ſuch a Miſchief, at the fune cime that we are pitied as
ill Succeſs of his Attempt.
to
184
Of Self-Defence.
Book II.
to his own Wickedneſs, which put me under this P.33." That ſince amongſt other things contribu-
Neceſſity (a). For otherwiſe, all the Goods which ting to the Preſervation of Man, Nature hath
we enjoy either by the Gift of Nature, or by the given us all a quick Senſe of Pain, a Deſire of
Procurement of our own Induſtry, would have Revenge, together with Hands for the hurting
been granted us in vain, if it were unlawful for us others, or the defending ourſelves; we may
to oppoſe thoſe in a forcible manner, who unjuſtly “ hence infer, that theſe Gifts not being beſtow'd
invade them. And honeſt Men would be expos’d a on us in vain, it is the Pleaſure of God that
ready Prey to Villains, if they were never allow’d we ſhould employ them in procuring our own
to make uſe of Violence in refifting their Attacks. “ Safety. And that therefore, not to uſe my
So that upon the whole, to baniſh Self-defence “ Hands againſt an Aſſailant, tho' to the Pro-
though purſued by Force, would be ſo far from curement of his Death (3) would be the ſame
promoting the Peace, that it would rather con " thing as voluntarily to cut them off. Tho’in-
tribute to the Ruine and Deſtruction of Mankind. “ deed he afterwards confeſſes, P. 118. that this
Nor is it to be imagin'd that the Law of Nature,
“ Law of Self-preſervation is not of ſo ſtrict ne-
which was inſtituted for a Man's Security in the cefficy, but that there may ſometimes happen
World, ſhould favour ſo abſurd a Peace, as muſt “ ſuch Caſes, as ſhall either diſpenſe with a Man's
neceſſarily cauſe his preſent Deſtruction, and “ Obedience to it, or leave him free to do as he
would in fine, produce any Thing ſooner than a pleaſes.
ſociable Life.
For our Parts, we think it ought principally to
II. But now, whether a Violent Self-defence, and be conſider'd, whether it much concern the In-
ſuch as is join'd with the Hurt or the Slaughter of tereſt of many, that the Perſon Invaded ſhould
the Affailant be an obliging and a neceſſary. Ducy, ſurvive, or whether he ſeem only to live for him-
(as we have already ſhown it to be a lawful, and ſelf
. In the former Caſe we conceive, that there
an allow'd Practice,) is a Queſtion not ſo eaſy to lies an Obligation on a Man to ſecure his own
be determin'd. In ſtating which Point we do not Life by any poſſible Means. But in the latter
ſpeak of Souldiers, or of the Guards hired by Cafe we take it to be a thing of Permiſſion, or
Travellers, who whilſt they defend themſelves Allowance only, not of Command, to defend
with the Slaughter of the Enemies or the Robbers, One’s ſelf by the Death of the Aggreſſor, eſpeci-
at the ſame time prote& and deliver their Coun- ally if his Life would have been of great Service
try, (1) or the Men who have put themſelves under and Profit to many people; and if we may pro-
their Care. But we confine ourſelves to the Caſe bably conjecture, that by dying in ſuch an Ata
of thoſe who are excited to make ſuch Defence by tempt, he incurrs the Danger of Eternal Damna-
their own (2) Particular Danger (b). Now there tion. For tho' the greatneſs of a ſurprizing Ter-
are ſome who will have this Defence to be ſo ſtrict ror will ſcarce fuffer one exactly to weigh the
a Command, that it cannot be taken off even by Merits of Perſons; and tho' ſuch a Danger as a
Civil Conſtitutions; and conſequently that he who Man voluntarily throws himſelf into, and may
ſuffers himſelf to be killd, when he might have at his Pleaſure get rid of, ought to find little Re-
violently refifted, ought to be look'd upon as guil- gard or Conſideration from others, eſpecially from
ty of Self-Murder (c). Which is ſomething like the him who is the Subject of his Fury, and at whoſe
Čuſtom in Sparta, where the Ephori puniſh’d a Coft he is thus extravagant (el) (4): Yet that an
Man, for having ſuffer'd many Perſons to injure Act from which ſo great Evils would be brought
him (d).
upon another (as there would ſometimes from
The Author of the Treatiſe, De Principiis Jufti this Violent Defence), ſhould be reckon'd a Mat-
& Decori, declares in Favour of this Opinion: and ter of ſtrict Duty, and the Omillion of it a Sin,
the Argument he proceeds on is to this purpoſe, we ſee little Reaſon to allow. Eſpecially, ſince the



1
(a) Hor. 2. Sat. 1. V. 44.
Nec quiſquam noceat cupido mihi pacis : at ille
Hurt not a Peaceful Min: but if you try
Qui me commovit, (melius non tangere, clamo;) His Patience far, (you'd beſt keep off, I cry ;)
Flebit.
You may repene your Boldneſs.
(6) Plutarch in Phocion : '0 ' Qwxlwv, em ti megéu i avdese [Nirévoga Boleni peèv vel egeveg menéuevo, šon ms d'ev udir
τω Νικάνοι, και μη δεν απ' αυτά ωegσδοκών δεινόν. ει δε μή μάλλον εθέλειν άδικέμενΘ, ή άδικών φανερά γένους. τύτο και τα
έωσε μεν άν τινι σκοπενι δοκoίη καλοκαγαθικώς λελέχθαι, και γενναίως, και ας πατρίδα επικινδυνων σωτηρίαν και τα τα κράτη-
γώ και άρρων, εκ διδα μη μιζόν παραβαίνει, και ορεσβύτερον το ορος του πολίτας δικαιον. When he was cenſur’d by ſome
for letting Nicanor, the Embafiador of Caſander, enjoy his Liberty, he anſwer'd, that he did not diſtruſt the Man, nor appre-
hend any Danger from him : But if things ſhould happen otherwiſe, he would be glad to let the World ſee, how much more
willing he was to receive an Injury, than to offer one. This, if he look'd no farther than his own Perſon, was ſpoke with Honeſty,
as well as with Bravery:. But if a Man by ſuch an A&t of Generoſity endangers the Safety of the State, eſpecially being himſelf in a Pub-
lick Truſt, I queſtion if he does not violate that greater and more ſacred Law, his Obligation to his Country.
(c) Vid. Zeigler ad Grot. Lib. 1. c. 3. f. 3. (d) Plutarch Lacon. Inſtitut.
re) Iſocrates adverſ. Callimach. Is it not ridiculous and abſurd, that he ſhould petition you for Mercy in ſuch a Danger, «s purely
depended on his own Will; which he freely run into at firſt, and from which he has ſtill means of being deliver’d.

§. II. (1) Add, Grot. Lib. 1. c. 2. & c. 3. f. 3. To whom we may apply that Saying of Seneca (Phænifl.)
Vitam tibi ipſi ſi negas, multis negas.
By chuſing Death your felf, you hazard the Lives of many.
(2) In general, No Man can releaſe his own Rights, or renounce his private Intereſts, when they are intermixed with ano-
ther's, who will not allow us to do it. To this the Example of Phocion, alledged by our Author. See Letter (c).
(3) Mr. Velthuyſen does not ſay this, 'cis our Author's Comment.
(4) Liban. Declam. 33. A 38 8 x 'é za Jev, óx disināv, ToữTA OÚ Toyés par i fermecoso He who unleſs he had offer'd one
Injury, had not fuffer'd another, is equally the Cauſe of both.
Old
CHAP. IV. Of the juſt Defence of oneſelf. 185
Old Maxim might be ſo well applied to this Cafe, this Liberty is ſtinted, in Perſons living together
that any Man may renounce his own Privilege, pro- under a Civil Government.
vided he doth not thereby injure a third Perſon : Which It is then a good Rule of Prudence, that a wiſe
Quinctilian (5) hath thus expreſs’d and illuſtrated, Man ought to try all other Expedients before he
This, ſays he, is the Nature of all Benefits, that they proceed to Arms, or Violence(1). For in as much
do not impoſe a Neceſſity, but grant a Power. Whatever as all Combat and forcible Contention is of un-
Expedient you invent to procure the Honour or Safety of certain Iſſue, it would be adviſable firſt to make
another, loſes the Name of a Privilege, if you compel Experiment of ſafer Remedies and Redreſſes, e're
bim to make uſe of it. Run over all the Inſtitutions we enter the Lifts, and come to a formal Engage-
and all the Rights of Mankind, and you ſhall never ob ment (a). Thus if I can cut off the Invader's
Serve that the Law is so fondly follicitorus for our Good, Acceſs to me, I am a Fool if I unneceſſarily meet
as to extort that from us, by which it intends only to do him Hand to Hand. And if I can defend my ſelf
us a Favour.
with a Wall or a Gate, 'tis abſurd in me to expoſe
III. But in order to more exact Judgment of my Breaſt (2) to my Foe. Farther, Wiſdom ad-
Self-defence, and to know by what Rule it ſhould viſes us to put up a ſmall Injury, if we can with
be moderated, and how far it may rightly pro- Convenience, and ſo rather to recede in ſome De-
ceed: first of all we ſhould examine, whether the gree from our Right, than by an unſeaſonable De-
Defendant live in a State of Nature, or of Civil So- fence, to expoſe our ſelves to a greater Danger :
ciety;
ſince the Bounds of this Practice are much Eſpecially if that Thing or concern of ours, up-
narrower in the latter than in the former Conditi- on which the Attempt is made, may be eaſily
Which Difference not being obſerv'd by ma made amends for, or repair’d (3). Thus a Man
ny Authors, hath been the Occaſion of their de- who hath a Debt owing him from another, ſup-
livering ſuch Things in general concerning Un- poſe to the Value of Ten Pounds, would act more
blamable Self-Defence, as will hold true only under wiſely, in my Judgment, if he made up the Buſi-
one particular State. But now if we firſt diſtinctly neſs by any Kind of Compoſition, than if he en-
explain what Right we have to ſuch a Practice in gag'd in a troubleſome Suit, where the Lawyers
a State of Nature, it will appear with great Eaſe Fees might exceed the main Sum which he endea-
and Evidence, how far, and on what Grounds vours to recover(b).
Ас

on.

(5) Declam. 7. Omnium beneficiorum iſta Natura eſt, ut non fit neceffitas ſed poteſtas. Quicquid in honorem alicujus inventum eſt,
deſinit privilegium vocari poße, ſi cogas. Coalta, ſe videtur, jura percurrite, nuſquam adèo pro nobis ſollicita lex eft, ut quod præſtat,
extorqueat. See Mr. Daumat's Civil Laws, Tit. 1. Selt. 4. 5.4. But we ought here to obſerve, contrary to our Author's Hypothe-
fis, That Self defence is not ſo inſeparable a Right, that we may uſe it or not, at all Times as we ſee fit. The Law of Nature
does not allow us to defend our ſelves only, but it poſitively orders us thereby to love our ſelves, and do all we can for our Pre-
ſervation. See Mr. Van der Muelen's Commentary on Grotius, Lib. 2. Chap. 1. §. 8. & 9. and Mr. Titius's Obſervat. 121. If we
were not under this Obligation, it would follow, that any Man might ſuffer himſelf to be killed as often as he was attacked, and
no Man need to be concerned for his Preſervation. Now who fees nor that this tends to the Deſtruction of a Community, and to
deprive it of the moſt honeſt Men? Beſides, ſuch as ſurvive would have a fair Occaſion to leave the VVorld. It is true that
the Creator hath provided by a natural Inſtinct, that every one ſhould defend himſelf, infomuch that we are more apt to offend
on the other side than this; but this ſhews, that Self-Defence is not a Thing abſolutely indifferent in its own Nature, or barely
permitted, ſo that it is always at our Liberty to ſuffer our ſelves to be Slain. All that has been ſaid, tends only to this, that a
Man may, yea, ought ſometimes to renounce his Right of defending himſelf, as we ſhall Thew below. And that in theſe laſt
Caſes, the Fear, into which the greatneſs of Danger, and the Force of our Natural Inſtinct throws us, may excuſe or free them
from Blame, who ſave their own Lives by the Loſs of theirs whom they ought rather to have ſpared with the Expence of their
own. We may alſo believe, on the other Hand, that if one ſacrifices his Life chrough great Kindneſs, or ſome other weighty
Conſideration which he has for the Unjuft Aggreffor, who does not of himſelf deferve ſuch a Sacrifice, he is excuſable, for
yielding to a Motive of that Nature, as to be of Force enough to overcome Self-Love and Fear of Death. See s. 5. Note 1. fol.
lowing.
$. III. (1) Omnia prius experiri verbú, qudm Armis Sapientem decet. Ter. Eunuch. Act 4. S.-7. V. 19.
(2) Terent
. Eunuch. Tu quod cavere poſſis Stultum admittere est, i. ..“ 'Tis extreme Folly to meet a Danger that you may a-
u yoid.”
(3) Plautus Amphitru. Act. 2. S. 2.
001
Bacche bacchanti ſi velis adverſarier station Oppoſe the raving Gypſy in her Fit,
Ex inſanâ inſaniorem facies, feriet ſæpius: bao.coShe'll get more Fury, and you'll get more Blows, wit
(3p but art1
Si obſequare, unâ refolvas plagâ. vices.c; begildas Be Gentle, and her confecrated Wand
See alſo Trucul. A&. 4, Scene 2. v. 5500 OR Smalt viis to anae vos gumon 3M bilo bi na tano
22b to act boog istrin si May then excuſe you with a ſingle Stroke., juttu
Martial, Epig. 64. L. 6.
Was I 280
Sed miſerere tui, rabido nec perditus ore te te ge Have Pity on yourſelf, and, tho? you'r ſtou. triche
1975 hitala si
Fumantem naſum vivi tentaveris urſi. SMC2 a 2 As Maſtiff Breed, don't take a Bear by th’Snout.
(a) Liban.
Ban. Declam. 1. Πρώτον μεν και τα δίκαια, το λόγο παράθι λαμβάνειν, αλλά μη τοϊς οπλοΐς επιτηδάν, ανθρωπινώτερον
Sebèy. It is a more Worthy and more.
Manl Way of Proceeding; not to run presently to Arms and Violence, but to try fir if our Right
may not be recover'd by fair Means. ei 109 Storliebrow TH 10 guiaomirt 21. svim detech sorabileyicidi
- Martial, 1. 7. Épig. 64.
do Ilumn 101 orog og en overs son biwow ICT
Bilang Ah miſer. G demens ! viginti litigat annis bus baill Would any Wretch prolong his Suit, a Score orliomvi huo
pa Quiſquam cui vi
cui vinci
, Gargiliane, licet ?1929 i stoidy. Of doubtful Terms, that might be Cast before? Morla con
Home
Origa tor tooxe na xão uéza váno dvorptivo
'Tis wiſe to cloſe
!
A A great contention with a little Lols.Dohoto
Pindar, Olymp. Oder 10.
Næro ä upeistarwy St Hy & Toege wifi'is hard to end a Quarrel with the Great too
Egày a paveia mizas nj Mapvana un orl di sua War is as blind as Chance: The doubtful Day
It was very wife Conduct that which Ifocrates reports of himſelf, (de Permut.) Theſe, lays he, were the Arts I made use of ; never
to offer any Damage or Treſpaß: And, in caſe I receiv’d any Injury from others, not to make my self my own Redreſler ; but to refer the
Controverſy

Theocrit. Idyll. 23.
And ifthm. Ode 4.
Bb
186
BOOKII.
Of the juſt Defence of oneſelf.
1
At the ſame time it may be obſerv'd, that the maintain that neceſſary and natural Order, we ſhould
injur'd Party doth not owe this Patience and Mo- render Society it ſelf unſociable (a). But we do by no
deration, to the Perſon from whom he receiv’d means aſſert, that this Infinite Liberty of reſiſting is
the Damage ; who as far as lay in his Power, hath to be actually made Uſe of in all Caſes; becauſe
broke off all Duties of Humanity and Commerce ſeveral intervening Conſiderations may prevail
with him; but to his own Security and Quiet. with the injur'd Party not to proceed to Extremi-
And therefore if a Man provok'd by Anger or ties: But only that the injurious Perſon cannot
Pain ſhould happen to exceed theſe Bounds, he complain of hard Meaſure, though he be repell’a
does no Injury to the Provoker, but can only be with the utmoſt Violence and Severity. The Life
faid to have (6) acted imprudently, or without of Men would be then indeed moſt properly ren-
fufficient Temper and Diſcrecion.
dred Infociable, if, in a Natural State, any Bounds
But when by the Application of theſe moderate were ſet to the Liberty of Reſiſtance. For what
Expedients, I cannot ſecure my ſelf from the im- an Age of Torments ſhould I undergo, if another
pending Danger, I am then to oppoſe Force with Man were allow'd perpetually to lay me on only
Force, and am compelld to enter the Combat. with moderate Blows, whoſe Malice I could not
During which, if the Injurious Party continue to otherwiſe ſtop or repel, than by compaſſing his
puſh on his Malicious Deſigns againſt me, and do Death? Or if a Neighbour were continually to
not declare his Sorrow and Repentance for his infeft me with Incurſions and Ravages upon my
Fault, and his Willingneſs to renew the Peace, I Lands and Poſſeſſions, whilft I could not lawfully
am at Liberty to kill him. And although he do kill him, in my Attempts to beat him off? For
not directly attack my Life, as ſuppoſe he only ar ſince the chief Aim of human Sociableneſs, is the
tempts to load me with a great Number of Blows, Safety of every Perſon, we ought not to fancy
or to maim me hy the Loſs of fome Member not in it any ſuch Laws, as would make every Good
Vital, or to rob me of my Goods ; yet ſince he and Modeft Man of Neceſſity Miſerable, as often
hath once broke the Peace with me, and ſince he as any wicked Varlet ſhould pleaſe to violate the
gives me no Caution or Security, that he will not Law of Nature againſt him.
And it would be
from theſe leffer Injuries proceed to much greater, highly abſurd to eſtabliſh Society amongſt Men,
I may even in theſe Caſes make uſe of Extremities on ſo deſtructive a Botton as a Neceſſity of en-
for my own Deliverance. For at the ſame Inſtant, during Wrongs. Wherefore he is to be reckon'd
as a Man profeffes himſelf my Enemy, (which he a fooliſh and baſe Traitor to his own Safety, who
doth while he injures me without Shew of Repen. whilſt an Enemy perſiſts in the Exerciſe of Hoſti-
tance) he gives me, as far as 'tis in his power to lity, vainly ſpares his Life, and chuſes rather to
give it, an (7) Infinite Liberty of proceeding againſt Periſh than to Deſtroy. For the Law of Nature
him. Some indeed there are who do not approve obliges me thus far only to be Mild and Merciful
of this Liberty of reſiſting in infinitum; for (ſay they) towards my Enemy, as that if he ſhall expreſs a
there can be no Natural Right of Defence and of Refi- Sorrow for what is paft, and an Inclination to de-
ftance againſt Injuries, but ſuch as is conſiſtent with fiſt from farther Injury, ſhall make Retribution
that Order, which is the chief End and Deſign of a So- for my preſe.it Damage, and give Security for his
cial Life. Therefore in reſiſting by Natural Right
, this not offending hereafter, I may entirely ſpare and
Exception is always underſtood, unleſs the Social Or- pardon him, and, renewing the Peace, may per-
der be infring' by my prefent refifting, to which form all friendly Offices towards him, as he ſhall
Order Nature hath the firſt and chiefeſt Regard. And towards me (8). For mere. Revenge, which pro-
if this Caution were not interpos’d, upon our failing to poſes no Aim but the Grief or the Deſtruction of
Controverſy to the Deciſion of Friends. Lucian. Eunuch. This is highly ridiculous, that men who pretend to Philoſophy, should engage in
Suits and Quarrels ; whereas they ought to compose in a Friendly Manner, their Differences of the greatest Conſequence. Add. 1. 4. 1.1.
D. de alienat. jud. mut. That which Polybius (in Excerpt. Piereſc.) applies to the Achaans, proves a Truth in many other Cafes,
ca u Tuzéws Xterbus
. Ja čx av forcówu uf. Unless we had been quickly loſt, we had never been
ſavd. Seneca, de Irá 1. 2. C.14. Red-
son often preſcribes Patience, when Anger calls for
Revenge: And when we might have eſcap'd ſmaller Evils, we ſink our ſelves into
greater. Some upon the Reſentment of one affronting Word, have been caſt into Baniſhment : They have incurr'd the severelt Troubles,
by not being able to digeſt a ſlight Injury'; and been made arrant Slaves, hy their diſdaining a petty Encroachment on their Liberty. See
Stobens, Serm. 19. To this may be applied, the (*) Interpretation of Matth. v. 17. offer'd by Grotius, l. 1. C.1.5.8. Though
others will have thar Saying to relate to Men who are under Oppreſſion, and who cannot obrain Juſtice. (Comp. Lamentat. iii.
28, 29, 30.) Whereas in a well-ordered Commonwealth every one is obligʻd to apply himſelf for Redreſs of Injuries to the Judge,
(Levit. v. 1.), not for the ſake of Revenge; (Levit
. xix. 17, 18.) but with a good Deſign of defending the Laws and Juſtice of his
Country, and to hinder wicked Men from reaping any Gain or any Pleaſure from their Crimes. Lyſias
, Orat. contra Tbeomneſt. 1
take it te be a sign of a most Litigious and a moſt Ungenerous Temper, to ſue a Man for an affronting Word. It was a Law amongſt the
Cyrenians, that the Ephori ſhould bring the Litigious Citizens before the Court of Juſtice, and impoſe a Fine on them, with the Addition
of a Diſgrace. Arrian, Epicter, 1. 1. c. 28. Suppoſe I ſtand is deaf, as a Stone when I am abus’d; what Advantage can the Slanderer
reap from his Calumny? Seneca de Irå. To deſpiſe Injuries is a Mark of a Great and Generous Mind. 'Tis one of the moſt grating ways
of being revenged upon a Man, by ſeeming not to think him worthy our Revenge. He is truly Brave and Noble, who like. Some Princely
Beaſt, can hear the puny Dogs barking about him with Scorn and Security." (a) Vide Becler. ad Grot. l. 1. c. 4. 7. 2.
(*) This Explication does not give us the true Meaning of CHRIST's Words, whoſe Senſe is certainly this, as Mr. Le Clerc ex.
preſies it: “ JESUS CHRIST would not have us to go to Law for ſmall Matters, leaſt having ſuffered one Injury, we bring up.
a on us another. Moderation much gains and ſweetens Men's Minds, and ſooner makes an end of Quarrels than the Penalties
“ which the Magiſtrates inflict according to Law. The Revenge which is exerciſed by their Means, is often the Cauſe of irrecont
66 cileable Animoſities between Families,
(6) Theſe are a Confuſed Heap of Citations.
6) Antiphon. Orat. il. Ou 28 Teta, dance usb? ov!, ústaciova. dixeron os dpavlos áronégav sivi, i.e. " The firſt Aggreſſors
« in an Injury not only deſerve to ſuffer the ſame, but much greater Evils.”
(8) It is a Rule of Hefiod's, Oper. do Dier. l. 2.
Ηγ37' ει φιλότημα, δικα εθέλησι παραχείν,
But if the injurious Friend the Wrong repair,
Adas
And beg a Re-admiſſion to thy Care,
Reject him not

him
CHAP. V. Of the juſt Defence of Onefelf.
187
14
him who hath hurt us, is deteſted and diſcarded by eſpecially in Regard to their Dealings with their
Nature, as falling under the Vice of Cruelty. Whence Fellow-Subjects. For againſt theſe who live un-
it follows, that the Remembrance of Enmities der the ſame Government and Laws (either perpe-
and Contentions ought as ſoon as poſſible to be tually, or only for the time being) they ought to be
defac'd out of our Minds. On this account, as ſo moderate in the Uſe of this Violent Self-defence,
we find the Story in Tully, the Tbebans were ac as then only to berake themſelves to it, when the
cus’d in the General Diet or Council of Greece, for Time and Place will not admit of any Application
ſetting up a Brazen Trophy of their Victory over to the Magiſtrate for his Alliſtance in reprefling
the Lacedæmonians; in as much as it did not become ſuch an Injury, as puts either their Life, or ſome-
one Grecian State to fix an eternal Monument of their thing as valuable as their Life, or (1) fome Good
Quarrel with another. For it ſeems, the Cuſtom which can never be repair’d, into preſent and ma-
was to raiſe their Trophies only of Wood, to nifeſt Danger. And even in ſuch a Cafe we are,
prevent their long and reproachful Continu- by our own Strength only, to rid our felves of the
ance (9).
preſent Miſchief, leaving both the Puniſhment,
But farther, Perſons in a Natural State may not and the Caution for future good Behaviour, en-
only repel a preſent Danger that threatens them, tirely to the Magiſtrate's Determination. Cicero
but having got rid of that Fear, may purſue their (2) tells us, that Nothing is ſo contrary to Rights and
Succeſs againſt the Aſſailant, till ſuch time as, up- Laws, as the uſing Force in a well-order'd Common-
on ſufficient Caution given, they ſhall think them- wealth : But then 'tis his own Obſervation in ano-
ſelves ſecure of him for the future. Concerning ther Place, that theſe Laws are filent, when Arms
which Caution, this is to be obſerv'd; if a Man ha- appear bent against 15 ; and do not command us to wait
ving injur’d me, ſhall preſently after, repenting for their Help and Protection, when we should most cer-
of what he had done, deſire my Pardon, and offer tainly ſuffer an unjust Violence, before we could procure a
Reparation of the Damage, I am then oblig'd to be just Redreß.
reconcil'd to him, and cannot fairly demand any By theſe Rules and Foundations which we have
farther Security than his Faith and Promiſe. For laid, may be decided moſt of thoſe Diſputes,
his voluntary Repentance, and Application to me which are uſually bandied in Authors, concerning
for Pardon, (10) are a ſufficient Argument of his the Meaſure and the Moderation of Unblamable
firm Reſolution to offer me no Wrong for the fu- Self-defence.
ture. But he who muſt be brought to Repentance V. Some Men have rais'd a Doubt, whether
by main Force, and who then only thinks of beg- ſuppoſing a Perſon aſſaults me by Miſtake, with-
ging Pardon when his Strength fails him in profe- out any evil Deſign againſt me, and intending to
cuting his Violences; ſuch an one is not ſafely to employ his Force againſt another, I may in ſuch
be truſted on his bare Promiſe: And therefore in a Caſé kill him in my own Defence. For the
order to our farther Security, we muſt either cut clearing of which Point Grotius (a) lays down this
off from him all Power of doing Miſchief, or we Principle to proceed upon, that the Right of De-
muft lay ſome ſuch Bond or Confinement on him fence doth primarily and abſolutely ariſe from that
as ſhall hinder him from appearing ever after for Favour of Nature, by which ſhe hath recom-
midable to us: In as much as his Malice having mended every Man moſt ſtrongly to himſelf,
been once expreſs'd, and never rightly purg'd or whence no one can refuſe to apply all his Endea-
amended, hath rendred him a juſt Object of our vours for the Procurement of his own Safety; and
perpetual Suſpicion.
not from the Injuſtice or the Sin of the Aggreſſor.
IV. But that which is a lawful Practice in Men, It will therefore be ſufficient to render my De-
living under a Natural Liberty, who are to work fence innocent, if the Affailant have no Right to
out their Safery by their own Strength, and ac- invade or to deſtroy me, (1) and I lie under no
cording to their own Judgment, can by no means Obligation of taking Death at his Hands, without
be indulg’d in the Members of Civil States; and Reluctancy or Refiftance. Farther, ſince in the
Caſe
(a) L. 2. c. 1. 1.3. Add. Gell. l. 4. c. 14. Quin&tilian Declam. 13. 'Twas on this account we receiv’d Laws and Magiſtrates from
Inſtitution of our Anceſtors ; that no man might be the Redreſſer of his own Grievances : And left, if private Revenge ſhould purſue every
Crime, there should be a conſtant Succeſſion of Injuries, and all Parties prove alike guilty.
(9) De Invent. I. 2. See Flor. l. 3.c.2. in fin. Seneca Herc. Fur.
Si æterna ſemper odia mortales agant,
Should Men maintain Immortal Hate,
Nec ceptus unquam cedat ex animo furor,
Nor guell the Fury riling in their Breaft;
Sed ar ma felix teneat, infelix paret;
Bur ſtill the Fortunate their dreaded Arms
Nihil relinquent bells.
Shake, and th' Unfortunate new Force prepare,
To try another Field ; the General War
Would clear the World, and drive a common Spoil.
(10) See a paſſage of Arrian, quoted a little lower, at $. 19. Note 1.
S. IV. (1) Some Good.] In ali the Editions of the Original, not excepting that of 1706, there is a groſs Fault, which ſpoils
the Senſe, 1. e. Damnum, for Bonum ; but it is corrected in his Abridgment of the Duties of 'a Man and citizen, Lib. I. Chap. 5. 8.
16. where this Sentence is, word for word.
(2) De II. Lib. 3. Nibil est enim exitiofius civitatibus, nihil tam contrarium juri, do Legibus, nihil minus Civile, quam compoſit å
Republicâ, quicquam agi per vim.
Pro Milone. Silent enim leges inter arma, nec ſe expe&tari jubent, cum ei, qui expe&tare velit, ante
injufta pæna luenda fit, quàm juſt a repetenda. See Mr. Noodt, ad Leg. Aquil. 6.4.
S. V. (1) We ought to obſerve theſe two Conditions, for upon them depend ſome caſes which our Author makes no mention
of
, as that of a Perfon being aſſaulted by his Prince. What we are to think of this, is this, in my Judgment. I luppoſe, thac
he that defends himſelf reſolves to free himſelf of the unjuſt Aggreffor, by killing him, otherwiſe he had better ſuffer himſelf
to be killed, than come under the Hand of the Executioner, and ſuffer cruel Torments. This being premis'd, the Prince who
would kill me, does it either Maliciouſly, and with Deliberation, or elſe in a Paffion, which he can't govern. In the firſt Cafe,
I may as lawfully defend my ſelf againſt him as againſt my Equal
. See my Comment on the Abridgment of the Duties of a Man aná
Citizenia
Bb 2
188
BOOK II.
Of the juſt Defence of oneſelf.
Caſe propos’d the Love of our own Perſons and ſeizing us : And that no Suſpicion or Fear, whilft
Lives muſt needs gain an eaſy Conqueſt over all yet uncertain, is ſufficient to juſtify our aſſaulting
other Conſiderations, it is impoſſible but that a another. But this Affertion too will prove very
Man who finds himſelf expos'd to equal Danger unaccurate, unleſs we relieve it with our Diſtincti-
with another, muſt, if he follow Nature, give his on between a Natural and a Civil State. For as in
own Deliverance the Preference in his Regard: neither Caſe the Point of Danger, which theſe
And ſince ſuch a Danger as we are ſpeaking of is Men ſpeak of, can be underſtood without ſome
brought on me without my deſerving it, my Fact Latitude, ſo is it moſt certain, that Perſons plac'd
is, for that Reaſon, the leſs odious, if I turn the under a Natural Liberty are allow'd a longer Space
Miſchief on the Author. All this being taken for in making their Defence by Violence, than thoſe
granted, 'twill be very eaſy to decide all thoſe who live under the Protection and Aſſiſtance of a
Particulars and Cafes which may happen about the Government.
Point in hand. As ſuppoſe a Madman, or a Per In as much as Nature obliges us to maintain
ſon walking in his Sleep and affrighted with ſome Peace with others, it may and ought to be preſum'd,
terrible Dream, ſhould make an Attempt upon my that every one will fulfil this Obligation, unleſs he
Life; in as much as he hath no Right of aſſaulting give manifeſt Evidence of contrary Deſigns, and
me, and I have good Reaſon to prize my ſelf a unleſs it be apparent that he quits his Obedience
bove all Things, it doth by no means appear why to ſound Reaſon, which advis’å him to this Duty.
I ſhould prefer his Safety to my own.
But here it But conſidering how prone the greateſt part of
muſt neceffarily be ſuppos’d, that I could not de- Mankind are to violate this Precept of Reaſon,
cline the threatned Danger any other way: Which whoever hath a true Concern for his own Safety,
is not ſo ſcrupulouſly obſerv'd, when a Man at will fortify himſelf betimes by all innocent Me.
tacks me upon a Grudge, or upon a manifeſt ill thods of Defence; as ſuppoſe by ſhutting up the
Deſign. The ſame Deciſion will hold, in caſe a Avenues againſt ſuch as are plotting any hoſtile
Soldier, fighting with good Intentions, aſſaults Deſign; by providing Arms and all other (1) Ne-
me, whom he miſtakes for one of his Enemies. ceffaries for offenſive or defenſive Force ; by en-
For if even an Enemy had a Right of reſiſting tring into Confederacies and Alliances ; by keep-
him, there's no Reaſon why I, who am in no ſuch ing a watchful Eye upon the Motions and At-
State of Oppoſition, ſhould patiently run upon tempts of others, and the like. Thus we juſtly
his Sword: But he ought to impute it to his own eſteem it Wiſdom in a Commonwealth, to think
Folly and Heedleſsneſs, that he thus drives a Friend of War during the full Enjoyment of Peace. And
on the Neceſſity of an hoftile A& ; ſince he ought altho' Innocency will always find a ſtrong Guard
to have known againſt whom his Force was to be and Support in the Divine Providence, yet is it
employ’d. The fame is to be ſaid, when a private moft ſenſeleſs Vanity for that Man to expect Mi-
Man, lying in wait for one with whom he hath a racles from Heaven for his Deliverance, who lies
particular Quarrel, fets upon me, inſtead of him, ſtill in a drowſy Idleneſs, and negle&s aîl Care of
by Miſtake. For why ſhould I, upon account of his own Affairs. And even in Civil States, where
the Aggreſſor's Blunder, be brought under a har our Goods are in ſome Meaſure ſecur'd againſt
der Condition than that other Man, whom per- Thieves and Ravagers, by the Severity of Penal
haps he had ſome Reaſon to hate? Such an Allai- Sanctions, he would be reckon'd a very ill Huf-
lant is indeed by the (2) Cornelian Law of Rome band, who ſhould forbear to ſecure his Doors in
guilty of Murder. For though there was an Er- the Night, or to lock up his Cloſets and his Cheſts.
ror in the Perſon, yet there was no Error in the To this purpoſe we are inform’d, that the Old
Deſign; but the Will and the Attempt of commit- Romans us’d to ſeal their meaneft Utenſils and
ting Murder were both manifeſtly declar'd(a). Houſhold Goods with their Rings, to ſecure them
VI. To render the Defence of our ſelves entirely from pilfering Slaves ; over whom, at the ſame
innocent, it is commonly thought a neceſſary time, they had the free Power of Life and Death
Condition, that, as to the Time, the Danger be (b).
juſt upon us, or, as it were, in the very Point of But now, though my providing thus far for my

L.1. C.5. Ş.20. In the larter Caſe, I ought to ſpare him, and rather ſacrifice my own Life than take away his, provided that he did
nor by his own Fault pat himſelf into a Condition where he could not command himſelf; for if a Prince, knowing himſelf ſub-
ject to ſuch violent Tranſports of Anger, and Lion-like Fury, gives himſelf up to his Temper, without any Reſtraint, and takes
no Care to avoid Provocations, at leaſt in certain Circum?łances, and to keep himſelf from Drink, he deſerves to be had in no
Regard, and we have as much Right to defend our felves againſt him, as if he acted in cold Blood. He had a Deſign to hurt
us, if nor formally, yet incerpretatively, at leaſt, and the Intereſt of a Society is ſo far from requiring us to ſuffer our ſelves to
bé ſlain by ſuch a Sovereign, that it ought it ſelf to fear him. After all, there is nothing more cafy for Princes, ſince few of
them are good Men, than to keep themſelves from ſuch Extravagances. If a Society loſes by a Change, it alſo gets ſometimes
by it, and perhaps it would be better for it, if Men would not allow Princes ſo great a Liberty, to ſatisfy their Paſſions, and if
Succeſſors had before their Eyes ſome ſad Examples of an unhappy Fate, which their Predeceſſors had brought upon themſelves, by
thinking all Things lawful for them. What I have ſaid, will, by a much ſtronger Reaſon, have place in Reſpect to the Miniſters
of a Prince, and his inferior Magiftrates, for whom, doubtleſs, there is much leſs Regard to be had, than to the Perfon of the
Sovereign himſelf. I ſhall ſpeak ſomething, $. 14. Note ult. of the Caſe, where the unjuſt Aggreffor is a Father.
(a) Add. L. 18.3.3. D. de Injurin, do Grot, in Sparſ. Flor. ad l.14. D. ad L. Cornel.de Sicar. (b) Vide Tacit. An. II. 1.
(2) The Cornelian Law, which is created of in the Diget. Lib. 48. Tit. 8. puniſhed Murders committed deſignedly, and with
full Deliberation, whereas the Aquilian Law punihed Murder committed thro’ Tome Imprudence and Fault, tho' very ſmall, and
without any Deſign. See Mr. Noodt, ad Leg Aquil. Chap.4, 5.
§. VI. (1) Such are principally in Relation to Srates, Fortreſſes built on the Borders of Kingdom s. See Mr. Thomaſin's Diſ-
courſe upon this Subject, entitled, Non-Ens a&tionis Forenſis contra ædificantem ex æmulatione, S. 18, &c.
Security

CHAP. V. Of the juſt Defence of One felf.
189
Security can be injurious to none, yet before I juſt Cauſe of ſetting upon him, becauſe he doth
can actually aſſault another under Colour of my not yet expreſs this ill Will towards me in particu-
own Defence, I muſt have Tokens and Arguments lar. For it is not ſufficient Proof that a Man de-
amounting to a moral Certainty, that he enter- figns to hurt me, becauſe he hath already hurt 0-
tains a Grudge againſt me, and hath a full Deſign thers; in as much as he might be provok'd to his
of doing me a Miſchief, ſo that, unleſs I prevent Attempt on them by ſome particular Reaſons,
him, I ſhall immediately feel his Stroke. Amongſt which he doth not find againſt me. An Injury
theſe Signs and Tokens, giving me a Right to then done to another, gives me no Licenſe of fal-
make a violent Aſſault on another Man, I muſt ing on the Aggreſſor, whilſt I am tied to both
by no means reckon his bare Superiority to me in Parties only by the common Band of Humanity.
Strength and Power; eſpecially if that Happineſs But I may happen to be united by a more peculiar
derivd its Increaſe from harmleſs Induſtry, or Obligation to the injur’d Perſon ; as if upon his
from the Bounty of Providence, without the Op- Deſire, I have promis’d and engag’d to aſlift him,
preſſion of others. For 'twould be inhuman Ma- For it is very agreeable to Social Nature, that a Man
lice, to envy another, and to endeavour to take who hath himſelf receiv'd no Wrong, ſhould yet
from him a Bleſſing which he came ſo fairly by. join Forces on Covenant with another, to help
'Tis a very groſs Knack of Philoſophizing which him to drive off an unjuſt Affault, as being allied
ſome Men have got, when they tell us, by way of to him by thoſe general Ties which hold together
Advice, He that is able to hurt you, undoubtedly is all Mankind. Becauſe, ſuppoſing the two Parties
willing; and therefore, without farther Warning, down to be otherwiſe indifferent to me, yet it is a ſtand-
with him, as you love your own Safety. This Kind of ing Rule that an Injury receiv’d ought to incline
Doctrine is manifeſtly deſtructive of all Sociable me to Favour, and an Injury offer'd (3), to Hatred
Commerce amongſt Men; and the Authors com- and Averſion (c). But farther, if on good and
monly cited in Defence of it, either are ſuch probable Grounds I ſuſpect that this powerful Ag.
whoſe Character prevents their Authority, or elſe greffor, when he hath diſpatch'd his firſt Prey, will
in the Paſſages alledg’d from them, they ſpeak curn his Force upon me, and uſe his former Con-
only of Precaution of our dealing with thoſe queſt for the Inſtrument of another ; I may then
Wretches, who have given us ſufficient Tokens of more readily aflift the diſtreſs'd Party, becauſe his
their Reſolution to hurt us (a) (2). . And whereas Preſervation is likely to enſure my own Safety.
ſome Men bring Examples inſtead of Arguments As a wiſe Man will lend his beft Help towards
for ſo baſe a Practice, this is to make another's Sin quenching a Fire in his Neighbour's Houſe, when
the Rule and Standard of my acting (b). Yet be- his own is the next in Danger.
cauſe any Man may abuſe his Strength to ill Pur More than this, if it appear by clear Tokens
poſes, therefore, as we ſaid before, we ought to that a Man is at preſent under a real Deſign of
fence againſt Danger, by timely and by harmleſs hurting us, though he doth not yer proceed to
Methods.
the open Execution of it, ſuppoſing us to live in
Nay, although ſuch a mighty Neighbour hath a Natural State, we may immediately enter on our
ſhown himſelf to have the Will of hurting as well own Defence by violent Methods, and prevent the
as the Power, he doth not yet give me directly a Foe; provided that either upon a friendly Admo-
(a) And as for that Saying of Cicero, (Epiſt. Fam. 11. Ep. 28.) Even Slaves have been always allow'd this Liberty to fear accor-
ding to their own Judgment, not anothers; we may oppoſe to it the ſharp Return of Vibius Criſpus (in Quintilian 1. 8. c. 5.) Who ever
gave you Permiſſion to fear ſo unreaſonably? Nay, Cicero himſelf hath fufficiently overthrown this Opinion, Who, ſays he, ever made
ſuch an Ordinance as this, or to whom can this be granted, without the manifeſt Danger of the whole Community, that a Man may law-
fully kill him, by whom he mall pretend to fear being hereafter kill’!? Orat. pro Tull
. in Quinctil. I. 5. c. 13. (6) Add. Alberic.
Gentil. de Jure Belli, l. 1. c. 14. (C) For that of Exodus ii. 14. only holds in a Civil State.
(2) Our Author quotes theſe words of Cicero, as favouring the Opinion which he confures, At hæc etiam ſervis ſemper libera
fuerunt, timerent, gauderent, dolerent fuo potius, quàm alterius arbitrio. Bur if we conſider the following part of the Diſcourſe,
we ſhall find that the Words will not bear the Senſe which he gives chem. The Latin of the following paſſage in Quintilian is,
Quis hoc ftatuit unquam, aut cui concedi fine ſumma omnium periculo poteft, ut eum jure potuerit occidere, à quo metuiſe ſe dicat, nè ipſe
pofterius occideretur.
(3) That the Laws of Nature, which tend to the preſervation of Mankind, may be obſerv'd, without which they are uſeleſs,
and that no Man may offer an Injury to his Neighbour, Nature has given every Man a Right to puniſh the Violation of its Laws,
both in Reſpect to all Mankind, and to private Perſons. The Laws of Nature, as well as all others, which are impoſed upon Men
here below, would be altogether uſeleſs, if no Body in the free State of Nature had Power to execute them, by protecting and
preſerving the Innocent, and reſtraining the Infolent. For all Men being naturally equal, it follows, that if in that Eſtate every
one have Right to puniſh the Breach of the Law of Nature, there is no Man bur hath it in as large an Extent as another. Theſe
are the Principles of the illuſtrious Mr. Locke, in Part II. of his excellent Treatiſe of Civil Government, Lib. 2. Chap. 2. We
Thall elſewhere obſerve the Conſequences which he draws from it in Relation to other Matters of Importance. See Lib. 8. Chap. 3.
$. 4. Note 3. Hence it appears, that our Author is miſtaken, when he affirms, That unleſs we are under ſome particular Engage
nient to help a Perſon that is wronged by another, we are not obliged to oppoſe this latter, unleſs he inſults us directly. Much
rather, we not only have a Right to eſpouſe the Quarrel of the Injured, but alſo, according to the Laws of Humanity, we are in-
diſpenſably engaged to defend him, if we find our felves able to do it. This is the Confequence of the Principle of Sociable-
nefs, as Mr. Titius, with much Reaſon maintains, Obſerv. 131, And I wonder our Author did not mind it, fince, in Lib. 1. Chap.
5. S. 14. he approves of that fine Maxim of Cicero, Qui non defendit, nec obfiſtit, ſi potest, injurie, tam est in vitio, quam ſi Parentes,
aut amicos, aut Patriam deſerat, i.e. “ He that does not prevent or reſiſt an Injury, if he be able, is as much to blame, as he
as that forſakes his Friends, Parents or Country.” Menander alſo has a fine Sentence relating to this Marter, ſaying, “ If any one
" would be as much concern'd for the Injuries done to another, as if he receiv'd them himſelf, and vigorouſly undertake the De.
“ fence of them that are oppreffed, there would not be ſo many Evil-doers, and thoſe that are would not be fo daring.
Eίοδο ή άδικανή’ ασμένως ήμώετο
Ουκ αν οι πλέον το κακον ημίν ήυξατο
"Ενας ημών, και σωμη γωνίσατε
Το Jπονηρών, αλλά παρατηρά ενοι,
"Iozos voulwr i nov to negoros
Και υγχάνονες, ής έδεε τιμωρίας
'Αδίκημα, και σωφegίον αλλήλοις πικρώς, "Ήτοι ασάνιση σφόδρ' αν ήσαν, ή πιο παυμένοι,
In Stober4 Tit. 43. See Mr. Le Clerc's Note on this Fragment, P. 3.
nition
199
Of the juſt Defence of oneſelf. BOOK II.
s
nition he is not likely to be driven from his hoſtile Thoſe Moraliſts are widely miſtaken, who, as
Intentions, or that the giving ſuch an Admonition Grotius (a) ſays, maintain, " That I may lawfully
would prove of ill Conſequence to our Affairs. 'kill, not only the Man who offers me preſent
For no Man is oblig'd to expe&t patiently the In Violence, but him too whom I ſhall have diſco-
fult of another, that he may thereby build the ver'd to plot and conſpire againſt me; as by Poy-
Juſtice of his Violence on the abſolute Neceſſity ſon, by falſe Accuſation, Falſe Witneſs, the
of his Defence. And therefore, in this Cafe, he • Procurement of an Unjuſt Sentence, or the
is to be accounted the Aggreſſor who made the firſt like.' Nor is the Abſurdity at all leſſen'd by
Motion towards hurting his Neighbour, or who chat Reſtriction which they add (3), if either tha
conceiv'd the firſt Deſign of Miſchief, and was Danger cannot otherwiſe be avoided, or if we are not
preparing to accompliſh it, though the other Party ſufficiently affur’d that it cannot. Becauſe ſuch a De-
uſing greater Expedition, may have ſurpriz’d and lay of Time as is here ſuppos’d, how ſhort foever,
oppreſs’d him before he could bring his Plot to Per- may put us on many good Ways of Redreſs and
fection. For it is not abſolutely neceſſary to the Relief; beſides (4) the Variety of Accidents which
Notion and Buſineſs of Defence, that a Man re may perhaps work our Deliverance. It is mani.
ceive the firſt Stroke, or that he only ward off or feſt, that theſe Authors ſuppoſe a Civil State, be-
elude the Blows that are aim'd at him ; but he too cauſe in that only we can conceive ſuch Things as
ſhall be interpreted to act by way of Selfc-Defence, unjuſt Judgments, Accuſationis, Witneſſes, &c.
who, taking his Foe tardy, hath prevented the For the Suppreſſion of which Injuries, if we per-
Miſchief that was hatching againſt him (4). mit the Subjects to inflict Death, what occaſion
VII. But we muſt by no means allow an equal have we for Magiſtrates or for Laws? No Man is
Liberty to the Members of Civil States. For in Danger of being condemn’d, if he can prove
here, if the Adverſary be a Foreigner, we may the Accuſer guilty of Calumny and Forgery.
reſiſt and repel him any way at the Inſtant when Yet, if being unable to make this out, he aſfaults
he comes violently upon us : But we cannot his Life, 'twill be hard to excuſe him from the Le-
(without the Sovereign's, Command) either aſſault gal Cenſure and Penalty of Murther. But when
him whilſt his Miſchief is only in Machination, a Man is already actually ſet upon, and reduc'd
or revenge our felves upon him after he hath per to ſuch Streights, that he hath not Power or Op-
form’d the Injury againſt us'(1), left we ſhould, by portunity to implore the Aſſiſtance of the Magi-
this raſh and unwarrantable Proceeding, involve ſtrate, or his Neighbours, he may then make uſe
our Country in an unneceſſary and unſeaſonable of Extremities in repelling the Aſſailant: Yet the
War. And' a much greater Degree of Caution Reaſon and Ground of his proceeding to ſuch Vi.
muſt be us d in our Dealings with our Fellow-Sub- olence, muſt not be that he
may revenge him-
jects. For though I underſtand that ſuch an one is ſelf for the Injury offer’d; but only becauſe he
now coming to do me a Miſchief, or that he could not otherwiſe ſecure his Life from the immi-
threatned me deſperately in Publick, this will on nent Danger. And therefore ſuppoſing that Dan-
no Account bear me out in aſſaulting him ; but I ger to be more eaſily driven off, he cannot law-
am to inform againſt him before the common Ma- fully purſue the Aggreſſor, ſo as to ſtrike or harm
giftrate, who is to require Security for his good Be- him in his Flighe(6).
haviour. But if the Magiſtrate refuſe to interpoſe, VIII. It appears then from theſe Conſiderati-
I may then conſult (2) my own Safety by what ons, that under Civil Governments the Time of
Means I can, with the ſame Freedom as if I were making an unblamable Self-defence, is ſet within
plac'd under a Natural State and Condition. very narrow Bounds, and indeed reduc'd almoſt

thus
(a) L. 2. c. 1. (b) Vide l.3. 8.9. D. de vi do vi armata.
(4) Demoſthenes, Philip. 3. 'Ons ois végw ang Feilw Toûta melawv, xj xataoxda?ówc, sto įuoi concus, xoty centre
Beanu, unde Tod'n, i e. “He who is preparing and contriving Wiles for my Deſtruction, is moſt certainly engag'd in a Hoftile
« Stare with me, though he has not yet attack'd me with his Darrs or his Spears.". Thucydid. 1. 6.“ We ought, not only to cha-
“ ftiſe the open Actions of our Enemies, but to prevent, by due Puniſhments, their ſecret Counſels and Deſigns : For they will be
" before-hand with us, if we neglect to be ſo with them.” Procop, de Bel. Perfic. l. 2. c. 3. Auror 78 sipleblow goi év 2015
γένοιν ο πρώτοι, αλλ' οι άν επιβαλλοντες εν συνδαις ταις πίλας αλοίον, το έγκλημα των εγκεχειρηκότι κάν από το κατορθέν πίρα-
11 ou, i.e. “ Thoſe break the Peace, not who firſt take Arms, but who are diſcover'd in any Plot againſt their Neighbours and
« Friends. For whoever actempts and deſigns Miſchief, hath really committed the Crime, though his Endeavours prove unfuc-
« ceſsful. Phil. Jud. de Leg. Special. “We do not only reckon them our Enemies, who affault us with Fleets or Armies, but
“them too who by Sea or Land make Preparations againſt us.”
See Alberic. Gentil. advoc. Hiſpan. l. 1. c.9. Leges Wijogoth.
1. 9. tit.4.c.6.
S. VII. (!) See what this Author ſays, Lib. 8. Chap. 17. $. 8.
(2) We may add, and that of ours. So Moſes ſeeing one of his Brethren, an Iſraelite, ſuffer Wrong, he defended him; and in
vindicating the Perſon injured, flew the Egyptian, Exod. ii. 11, 12. and Acts vii. 24. for, as Mr. Le Clerc ſays upon this laſt Paf-
ſage, “ Moſes knew very well that the Iſraelites could obtain no Juſtice of the Egyptian Judges. And when Power is arrived at
" that height that Juſtice can't be had, and the Foundations of Civil Sociecy are deſtroyed, we return again to a State of Na-
“ ture, in which 'tis lawful for every one to defend himſelf and his friends, againſt all Force, without ſeeking Help, in vain, from
$ them who will not affift us. But this Right can't be made uſe of bur in extreme Confuſion, as Ægypt was, where any Injuries
“ might be done the Iſraelites, without any Fear from the Ægyptian Judges.
(3) Grotius reads it thus, but careleſly. He maintains, that all the Reaſons which he mentions there, are not ſufficient to pre-
vent'a Perſon who has ill Defigns againſt us, and kill him, altho' he can find out ſome way to eſcape the Danger, or is not ſure
that he can otherwiſe eſcape ir, which Determination he founds upon the Remedies and Accidents which a little Space of Time
may produce. But he adds, that there are ſome Divines and Lawyers, who extend this Favour farther, i.e. as any one may fee,
who grane to the Perſon againſt whom any thing is attempted, a greater Liberty, believing that he hath Right to prevent his
Enemy, although he could avoid the Danger ſome other way. So theſe Moraliſts do not perplex themſelves in any manner with
the Reſtriction of which our Author ſpeaks. Grotius embrares the Exception in the Negative, and maintains it againſt them,
Nevertheleſs I afſerc, That if you examine the Thing in it ſelf, he doth not ſufficiently diſtinguiſh berween the State of Nature and
Civil Scare, as will appear by what our Author ſays afterwards
(4) See Aul. Gelius, Nott. Attic. Lib. 13. Chap. 17. and Erafmu upon the Two Proverbs taken from thence,
so
to
CHAP. V.
Of the juſt Defence of oneſelf.
I91
to a Point or Inſtant, yet ſuch as admits fome ſmall which Condition is by fome Authors added to
Latitude, and in which a ſlight Exceſs will eſcape mitigate Baldus's Opinion.
And therefore altho'
the Magiſtrate's Cenſure.
IX. As to the common Determination, that
an Underſtanding Judge will be beſt able to ſettle this killing a Man in our own Defence is then on-
the Innocency of any Defence, from the Cir- ļy innocent, when we cannot poſſibly eſcape the Danger
cumſtances of the particular Facts: Yet we think by other Means ; this is not to be interpreted in too
it may be afferted in general, that the exakt Time ſtrict a Senſe, but admits of a reaſonable Latitude,
when a Man may fairly deſtroy another in his own upon account of that Perturbation of Mind which
Defence, begins at the Inſtant, when the Aggreſ- ariſes from fo ſurprizing and ſo imminent a Mif-
for ſhewing plainly his Deſign upon my Life, and chief. For it is ſcarce poflible that a Man under
being furnith’d with Strength and Weapons for fo terrible Apprehenſion ſhould be ſo exa& in con-
the Execution, is already got into a place whencefidering and
diſcovering all Ways of Eſcape, as he
he may perforin his Miſchief; Allowance being who being ſet out of Danger can fedately delibe-
only made me for juſt ſo much Space as is neceſſa rate on the Caſe. Hence, as it is meer Raſhneſs
rily requir’d for me to attack him in, before he at- for me to come out of a fafe Hold to him who
tacks me. For Example, if a Man is making to challenges me, ſo if another affault me in an open
wards me with a naked Sword, and with full Sig- Place, I am not ftri&ly oblig’d to betake my felf
nification of his Intention to ſtab me, and I at to Flight, unleſs there be near at hand a Place of
the ſame time have a Gun in my Hand, I may moſt ſecure Refuge, nor am I always bound to
fairly diſcharge it at him whilſt he is at a Diſtance, draw back from the Onſet. Becauſe I then turn
and cannot yet reach me with his Weapon, be- my defenceleſs Parts to the Danger, and there is
cauſe, ſhould he get too near me my Arms would great Hazard of tripping or falling ; and beſides
,
be of no Uſe. And the ſame holds more ſtrongly when I have once quitted my Poſture of Guard,
in Relation to Bows, and Inſtruments of that Na- tis not very eaſy to recover my ſelf. Neither
ture, which ſignify nothing at all, unleſs we give doth it render my Defence blamable, if I choſe to
them full Room and Space to exert their Force in, run the Hazard of ſuch Accidents, rather than o-
Again, ſuppoſe a Man approach me with full De- mit ſuch Buſineſs, which was either a part of my
ſign upon my Life, and is only arm’d with Piſtols, Duty, or which however I had a Liberty of acting.
or the like, whilft I am furniſh'd with a longer As ſuppoſe, whilſt I am going to any publick
Piece, I am not oblig'd to wait till he comes with- Place, about my Affairs, I kill a Man that ſets
in Piſtol-ſhot, but may prevent him with my Arms upon me in the Way, I am not the leſs innocent,
before he can uſe his own. For this is what the becauſe if I had ftaid at home the Thing had not
Laws call (1) to meet a Danger in time, which is en happen’d. For the publick Security would be ill
ſteem'd much better, than to revenge it after it hath ta- guarded, and our Liberty would ſtand us in little
ken Effect. The Continuance of this Time for in- ſtead, if we might not make Uſe of it in oppoſing
nocent Defence is ſo long as till the Aggreſſor either thoſe ſudden Violences which others offer us, out
is repuls'd, or hath retreated of his own Accord, of pure Malice and wicked Deſign.
whether repenting of the miſchievous Deſign in There is no need of proving Balſamon's Di-
the very Moment that he was performing it, or ftin&tion(b) to be ridiculous; À Man (ſays he)
elſe becauſe he fees he is like to loſe his Aim; as who kills another in his own Defence, is free from all
ſuppoſe his Sword is broke, or his Piece hath miſs’d Guilt if the other Perſon had first given him a Mortal
Fire, or ſhot beſide us ; ſo that at preſent he can Wound, or the like Miſchief ; but if the Hurt that was
hurt us no farther, and we have an Opportunity first offer'd him be ſlight and curable, the Slaughter of
of retiring into a Place of Safety. For the Re- the Aggreſſor is then unjust, and be must anſwer for the
venge for paſt Injury, and the Caution for future Fa&t.
Security, belong to the Care of the Magiſtrate, Much more pleaſant is their Nicety, who make
whom we are to addreſs on thoſe Accounts (a). it a Queſtion, Whether an Equality of Weapons be ne-
Whoever, enjoying the Prote&ion of a Civil Go- ceſſary to the rendering a Defence innocent. As if the
vernment, ſhall kill another beyond theſe Bounds Aggreſſors were ſo generous, as conſtantly to give
and Conditions, under the Notion of Self-defence, Notice to the other Party of their Deſign, and of
cannot be acquitted as entirely guiltleſs. Whence the Arms they purpos’d to make uſe of; that they
we may perceive how unreaſonable the Aſſertion might have Leiſure to furniſh themſelves in like
of Old Baldus is, when he declares, if a Man manner for the Combat. Or as if in theſe Ren-
chance to ſay to me, I'll kill you where ever I find you
where ever I find you counters we were to act on our Defence by the
from bence forward, I may, without incurring any Pe- ftrict Rules of the common Sword Plays, and
nalty, take his Life by way of Prevention, either in the Tryals of Skill, where the Champions and their
midst of his Threats, or whenever I can do it with moſt Weapons are nicely match'd and meaſur’d for our
Convenience. For though I be not oblig’d to wait better Diverſion.
till he performs his Threats, yet in a Common But it muſt be obſerv'd on this Head, that the
wealth" I ought to purſue other ways of Safety Plea of Self-defence ſhall not excuſe or indemnify
than by killing him : Even when it appears from him, who being challeng’d to meet in the way of
the former Courſe of his Life that he is not back- Duel, doth by fo appearing put himſelf into ſuch a
ward in making good fuch bold Reſolutions ; Condition, that he muft either kill or be kill’d.

Loch. Can.43.
(a) Vide l. 45. S. 4. D. ad L. Aquiliam.
* Mention'd by Sichard ad C. Cod.
(6) Ad Epift. Bafil. ad Amphie
(1) The Words of the Çode are, Meliss enim est occurrere in tempore, quàm poft Exitun vindicare. Cod. Lib. 3. Tit. 27. Quando
biceat unicuiq; fine judice ſe vindicare, doc. Leg. !.
For
192
Of thé juſt Defence of oneſelf. Book II.
For in the Eſtimation of ſuch a Fact, the Danger Capital Puniſhments for Offences of this Kind, ſo
will not be conſider’d, ſince the Laws forbad him they might farther give a Liberty to all honeft
to meet it; and therefore he will not only be guil- Women, to uſe Extremities in their own Defence,
ty of Manſlaughter, but will ſtand obnoxious to upon Danger of loſing what 'tis impoſſible for
thoſe other Penalties which are particularly or them to recover, and for which no Reparation
dain'd againſt the Cuſtom of Duelling.
can be made them. Amongſt the Jews, as Mr.
X. There is one Enquiry commonly made far. Selden (b) tells us, a Man was allow'd to kill ano-
ther on this Point, and that is, Whether it be ther, not only in his own Defence, but in the
lawful for a Man to kill another, who comes up- Defence of a third Perſon, if unjuſtly aſſaulted,
on him, not with a Deſign to take away his Life, whether with Regard to Life, or to Chaſtity of
but only to Maim him ; provided the Danger can- either Kind (c). And thus the Sentence of
not be otherwiſe avoided. And here, as to a N«- C. Marius was highly applauded amongſt the Ro-
fural State, we may ſafely hold the affirmative Side mans, when he not only abſolv’d, but crown'd
of the Queſtion. For Nature hath inſpir'd us the Soldier who had kill'd his Nephew, a Tribune,
with ſo tender a Care to preſerve our Bodies or Colonel in the Army, for ſolliciting him to an
whole and entire, that we cannot but make uſe of unnatural Debauch (d). St. Auguſtine (e) hach a
all Ways and Methods for that purpoſe ; and the Saying, that the Holineß or Purity of the Body is ne-
Loſs of one Member, eſpecially if it be of the ver lost, whilst the Purity of the Mind remains, tho’
moſt noble Kind, is reckon'd almoſt equal to the the Body Suffer Violence (F). But it follows no
Loſs of Life it ſelf
. Beſides, Death is frequently the more from hence, that forcible Raviſhers are not
Conſequence of ſuch barbarous Treatment; and I to be repelld with Extremities, than that becauſe
have no Security but that the Villain will proceed a good Man is tranſlated to eternal Happineſs,
to greater Miſchief
. Laſtly, as we have hereto- therefore he ought not to defend himſelf with Vi-
fore hinted, ſuch an Attempt declares a Man my olence againſt a Villain who attempts his Life.
open Enemy, and conſequently gives me a Li-
'Tis (2) obſervable what Lyſias (g) reports, that
cenfe in infinitum of acting againſt him.
the Attick Laws decreed a ſeverer Puniſhment a-
Nor do the Laws, even in Civil Governments, gainſt him who perſuaded a Woman to an Unchalt
feem to engage the Subjects to ſuch hard Conditi- Compliance, than
againſt him who compeľd her
ons, as that they muſt rather ſuffer themſelves by mere Force. The Reaſon we find lubjoin'd,
to be maim'd, than uſe Extremities in repelling becauſe (fays he) Man who commits a violent Rape is
the Affailant: For fince ſuch a Degree of Pati- Supposd to be bated by whom he abufes. Whereas thoſe
ence ſurpaſſes the ordinary Strength and Conſtan- who by Flattery and Inſinuations tempt Women to their
cy of Mankind, 'twould look very rigid to re- Defires, do by, this Means gain a greater Intereſt and
quire it, only in Favour of a Malicious Rogue. Authority with them than their own Husbands, and con-
But when ſuch an Injury is once actually receiv’d, Sequently have the whole Family in their Power and
the Proſecution of the Malefactor is to be left en- Diſpoſal: beſides the Inconvenience of confounding the
tirely to the Magiſtrate.
Childrens Birih, and hindring all Diſtinčtion between
XI. The Defence of Chaſtity is in almoſt all Na- thoſe who came lawfully, and thoſe who came unlawfully
tions eſteem’d equal to the Defence of Life, and into the World (b).
doth in the ſame manner excuſe the Slaughter of XII. 'Tis another famous Queſtion, Whether
thoſe who attempt it. The Reaſon of this Favour the Danger of receiving a Box of the Ear, or ſome
is grounded on the natural Conſideration, that the ſuch ignominious, though ſlight Injury, will ex-
Honour of Women is their chief Treaſure and Or- cuſe the killing of a Man in our own Defence.
nament; together with the Reſpect had to the And Grotius's Deciſſion (i) makes it not to be repug-
Weakneſs of the Fair Sex, which 'twas conveni nant to Expletive Juſtice. The Senſe of which 'Ex-
ent ſhould be guarded by all poſſible Means from preſſion is this, that ſince Expletive Juſtice is equal.
(1) Violence and Abuſe (a). Even in Civil States, ly violated by deuying one that which he had a
as the Legiſlators might very reaſonably appoint perfect Right to poſſeſs, or
perfect Right to poſſeſs, or by bringing ſomewhat

(e) De
(a) Quintilian. Declam. 349. You have drawn a Virgin into as great an Injury, as War it ſelf could have offer’d.
(6) L. 4. C. 3;
(c) Lex Wiſogoth. 1.3. tit.3. c. 6. Conſtitut. Sicul. I. 1. tit. 22. (d) Plutarch in Mario. Plato de LL. 1. 9. He that hath debauch'd
a Young Perſon of either Sex, Mall be lawfully killd, not only by the abuſed Party, but hy the Father
, Brothers, or Children.
Civitate Dei, 1.1.c.18. (f) Add. Gratian. Cauf:. 32. qu
. Soc1; 2; 3; 4, Plautus Amphitry
; Haue promeruit
quainobrem vi.
tio verteres, mea vį ſubacta eſt facere. You can't lay to her Charge, what she did upon my compulfion.
Senec. Hippolit.
Mens Impudicam facere non caſus folet
Not on Chance, but on the Will
Unchaſtity depends.
(8) Orát. 1. (h) Liban. Declam. 2. It is a much greater Wickedneſs to tempt and entice a Maid to be conſenting to her own Abuſe,
than to injure her by meer-Force. ! ) L. 2. c. 1. f. Io
S: XI. (1) The Affront is fo much the greater, becauſe a Woman of Honour may be reduced to that hard Neceffity,
up, from her own Blood, a Child to an Enemy, Duties of a Man and Citizen, Lib. 1. Chap.5. 5. 22, See what I have ſaid upon
thár Place of this Author's Abridgment, and Mr. Thomaſius's Juriſprud. Divin. Lib. 2. S. 114. Mr. Bayle, in his
anſwer to the gue-
ſtion of a Provincial, Tom. 4. Chap. 28. p. 412, affirms, That if that Law of the Decalogue, Thou Malt do no Murther, doth not o-
blige a Woman, who breaks it to ſave her Life or Cháſticy, it follows, that the other Laws of the Decalogue include the ſame
Condition in obſerving them, provided it be no Damage to my Life or Honour ; and ſo as often as the obſervation of any of,
chefe Articles of the Decalogue expoſe us to any certain Danger of loſing our Life or Honour, we may excuſe our felves from it
as well as from the Obſervation of this Precept, Thou shalt not kill
. To me the very Recital of ſuch an Argument is its own Con.
fucation. And I ſhould wonder that Mr. Bayle ſhould ſuffer himſelf to be blinded with ſuch weak Reaſons, if I did not plainly ſee,
that he has eſpouſed the falſe Notions of ſuch as pervert the Moral Doctrines of the Goſpel, by ſuch Explications as are contra-
rý ro the Rules of good Senſe and Criticiſm.
(2) See Digest. Lib. 11. Tit. 3. Leg. 3. S. 3. where is the like Deciſion in the Caſe of Slaves. See alſo what is ſaid Lib. 6. Ch. 1,
9:21. Note 2.

to raiſe
on
CHAP. V.
Of the juſt Defence of oneſelf.
193

on
.
on him which he had likewiſel a perfect Right not mutual Conſent to Fifty-Cuffs, and deal freely
to ſuffer ; when a perſon is kill'd for offering an with each others Facé and Head, can on neither
Injury of this Nature, there can be no Complaint fide complain of an Injury of this affronting Na-
made that a Breach of Expletive Juſtice hath been ture. Nor is it eaſy to conceive how a Man that
committed upon him. For he who firft makes an beats Arms, and is preparing to uſe them for his
Attempt of any Miſchief againſt another, retains Defence, can be capable of receiving a Blow
no Right why the other ſhould not proceed to Ex- under the ſame Notion and Aggravation of Con-
tremities in returning it ; for, (what comes to the tempt
. Beſide, 'tis a great
Miſtake to fancy
that a
fame thing) gives the other an Infinite Right of op- Man's Honour is feally impair’d by fuch a Triffe ;
poſing him ; though other Conſiderations may for (2) Honour would be a moft fragile and a moſt
frequently hinder the injur'd Partý from a full and precarious Good, if 'twere in the Power of every
rigorous Uſe of this Right. Nor will it fignify ſaụcy Fellow to diminiſh and to infringe it.
any thing
to obje&, that in ſuch Returris chát & And as for the Contempt which is fhown in such
quality is neglected which Juſtice commonly re an Adion, this may be either quite taken off
, or
quires
. For that Equality is chiefly concern'd with however eaſily repaira by the Magiſtrate, by fer-
the Exchanges of Things, and the Diſtribution of ting a heavy Fine the Offender, and by en-
common Goods.
But Evils, which by way of joining him farther to perform in publick Tome
War are mutually offer'd, cannot be exactly re Marks of Honour and Reſpect to the Perfon whom
duc'd to any ſuch Meaſure, nor is it neceſſary he hath injur'd. Nor is the Vulgar Notion of a-
they ſhould. (1) As for Grotius's Remark, that ny Weight, which fancies the Courage of Men,
the Degree of burting in War ſhould be ſtated according and eſpecially of soldiers; 'to be 'indamag'd in its
to the manner of Reftitution and Reparation in Civil
. Chara&er, by the receiving theſe kinds of Af-
Damages, (there is good Reaſon for this Limitation fronts, and that therefore their Credit muſt be
to it) as nearly as we can : And then that Modera- vindicated by Sword and Duel. For that Man
tion doth not ariſe from any Right inherent in the ſhows ſufficient Teſtimonies of his Courage, who
Enemy, but from the Generoſity and Courage of bravely maintains and · diſcharges the Office afa
the Victor. Grotius adds, that Charity doth not of it fign'd him by the State. And there are much more
Self require our patiently ſuffering ſuch an Affront, in noble and more ſhining Occaſions of exerciſing
Favour of the Perſon who offer'd it ; tho' the Doctrine of Valour, than, contrary to the Laws of Reaſon
and
the Goſpel doth indeed forbid the Repulſe of fucb At- of our Country, to purfüe an immoderate
Paſſion,
tempts by violent Means. '
or to engage in the Hazard of an unneceſſary and
For our Parts, we have already ſhown, that in unprofitable Combat. Yet if, as it commonly
a Natural State, a Man cannot be requir’d to bear falls out, upon the offering of ſuch an Injury,
even a ſlight Injury, (eſpecially if it be continued) Swords are immediately drawn, and the Man who
without endeavouring, even by the utmoſt Vio- thus began the Fray happens to be kill'd, or defpe-
lence, to keep it off. And we read, that the moſt rately wounded, 'tis reaſonable that the other
Holy King David, for an Affront put upon his Party ſhould have his Penalty mitigated, upon ac-
Ambaſſadors, rais'd a War, to almoſt the utter count of the high Provocation. But 'tis an into-
Ruin of a Nation (a).
lerable Paradox which ſome maintain, that a Man
1. But 'tis very doubtful, whether in Members of may fairly kill another, not only to avoid an Af-
a Civil State, the fame violent Procedure is excu front of this Kind, but for the Recovery of his
fable. It is indeed in common Judgmert a moft Honour, after the Affront has been actually given,
high Affront to receive a Box on the Ear, and the and the Party who offer'd it is filed.
Reaſon of this Opinion amongſt many of us Eu We
may add to theſe Obſervations, that though
ropeans, ſeems
becauſe we treat our Ser the Rare and Eſtimation of Things is not to be
yants in this Manner, and other Inferiors plac'd determin’d by the Multitude, but by the Judg-
under our Diſcipline. And hence'tis a Cuſtom in ment of wife Men, yet if in any State the Re-
ſome places, when Perſons are firſt allow'd the ceipt of ſome particular Injury is attended with
Uſe of Arms, or come out of their Apprentice- extraordinary Scandal and Diſgrace, there ought
hip, and the like, to give them a Box on the Ear, to be a moſt ſevere Puniſhment ordain'd againſt
in formal Manner, to put them in mind of their Delinquents in this Point'; in' as much as all Men
former Condition, and to let them underſtand, have not Philoſophy enough to put up theſe pro-
that they are above ſuch Treatment for the future. voking Indignities; and becauſe it would be in-
Therefore to offer ſuch an Affront highly dif- conſiſtent with the Chara&ters and Stations which
graces the Sufferer, and ſuppoſes him to be un- fome Men are to maintain in the Commonwealth,
worthy of bearing Arms, or of being reckon'd a ſhould they be expos’d to the Contempt and De-
mongťt free and grown Men. But here we muſt riſion of the meaneſt Subjects. The Magiſtrate
obſerve, that ſuch a Blow never appears ignomi- then hath little Reaſon to be angry, if neglecting
nious and diſgraceful, but when it is given before or refuſing to give Redreſs in Complaints on this
the other Party prepares for Reſiſtance: For thus Score, a Man aſſerts his own Honour by what
Slaves and Children are beaten without the Liber- Means he can, though only in Regard to the O-
ty of Oppoſition. Therefore thoſe who fall by pinion of the Vulgar, ſince the ſame Opinion
(a) 2 Sam. X.4, doc.
(12. Theſe Words of Grotius, as our Author expreſſes himſelf, ought to have been found in the ſame place with the foregoing
and following, but I can't find them either in thoſe Places, or in the Third Book, where Grotius treats expreſlly of the Diigo ſi-
tion which Men ought to obſerve in War.
(2) See Lib. 8. Chap. 4. S. 8. following.
01
would
Сс
199
Of the juſt Defence of oneſelf. Book II.

W.
pair’d (a).
would otherwiſe load him with ſo much Reproach. who oppoſes an Aſſailant Breaſt co Breaſt, rather
Therefore thoſe Governors who would effectually than he will lay himſelf open to his Violence, by
ſuppreſs all Duels and private Combats, ought to running off on a Diſadvantage.
enact the moſt grievous Penalties againſt thoſe Laſtly, Grotius hath done well to cenſure thoſe
who ſhall offer ſuch a Blow or other Affront as is Authors, who allow that we may lawfully kill a Man
reckon’d ignominious in the Opinion of the par- who bath ſaid any ſuch Thing of us, as we think will
ticular Country. For the Courſe and Manner of injure our Repute and Character with good Men. For,
Civil Life will not bear that refind Philoſophy of if the Man hath ſpoken falſe, have we not many
Gratius ; ſince Honour is no more than an Opinion of Ex- more convenient ways of wiping off the Calum-
cellence, and the Sufferer of ſuch an Injury ſhowvs bimfelf ny. And if he hath faid nothing but Truth,
excellently patient, his Honour is ratber increasd than im- muſt we ftudy the Concealment of one Sin by
out the Commiſſion of another? How much better is
XIII. From what hath been ſaid it may likewiſe Plato's Law (2), If a Man kill a Slave who hath not
be underſtood, whether in Caſes of Aſſault, a injur’d him, only out of Fear he ſhould diſcover ſome
Man is oblig'd, if he can conveniently, to betake baſe Action, or on the like account; be ſhall undergo the
himſelf to Flight, ſo as that the Slaughter of the Same Penalty as if be bad murther'd a free Subject or
Aſſailant is never juſtifiable under a Poſſibility of Citizen?
running from him., Now here it is plain, that in XIV. All this ſeems plainly enough deducible
a State of Nature the Aggreſſor hath no Right, by from Reaſon. But many raiſe a Scruple about
whóch the other Party is bound to decline his Vi- theſe Doctrines, in regard to the peculiar Tem-
olence in this Manner, rather than oppoſe it. per and Genius of Chriſtianity, afferting that al-
And the Reaſon why a Man (under this Natural though it be indeed lawful to kill a Man who un-
Condition) ſometimes chuſes rather to fly than juſtly attempts our Life, yet 'tis an Adion (1)
fight, is not out of any Favour to him who ſets
him who ſets more praiſe-worthy to loſe our own Life in ſuch a
upon him, but becauſe he thinks it moſt conveni- Caſe, than to take his. Becauſe he thus dying in
towards each other: And who will ever maintain, ſiſtent with Juſtice to rid our felves of a leſs Evil,
that when one King unjuſtly invades the Realm of by bringing a greater on another Man. Now,
another, the injur Prince is oblig'd to ſave him tho the Solution of this Difficulty doth not proper-
ſelf, if poſſible, by flying ; for fear he ſhould kill ly fall under our Buſineſs; yet we think the Main-
ſome of his Enemies by making Reſiſtance? tainers of this high Notion would do well to con-
But under Civil Governments, we are to fly, ſider, that in the Conſternation of Danger, and
if we can with Convenience, rather than take a- in the Heat of Fighting, a Man hath little Lei-
way
the Aſſailant's Life. Nor can ſuch a Flight ſure for a nice Reflection on ſuch Reaſons; in as
be at all Baſe or Unworthy of a Man at Arms; in much as all his Thoughts and Faculties are taken
as much as it is not undertaken out of Cowardice up with conſulting how to ſave him from preſent
or Neglect of Duty; and becauſe Reaſon can Death. Again, the Perſon who is thus aſſaulted,
never think this a fic Occaſion of exerting my Va- is not always ſo well prepard, as not to need
lour, when I only kill a Fellow-Subject without ſome farther Time for compoſing his Mind and
any Neceſſity, from whom the Magiſtrate could Conſcience, and for making up his Bundles, before
have ſufficiently ſecurd me. We added this Re- he takes his long Journey, as Varro (2) ſpeaks. Be-
ftri&ion, if we can with Convenience, becauſe, (as fides, it doth not appear very probable, that I
hath been already hinted in part) we are not al- ought in this Cafe to be more follicitous for the
ways oblig'd to retreat and to turn our_Backs, Soul of the other Man, than he himſelf is. And
ſince we thus expoſe ourſelves to a greater Danger therefore if he, neglecting this great Concern in-
of Wounds and Miſchief, as well as to the additi- vade my Life, ought I to pay fo precious and ir-
onal one of falling; and since a Man who hath recoverable a Ranſom, for reſcuing him from one
once betaken himſelf to his Heels, if he meet Danger of incurring ſo fad a State (3)? For it
with a Stop, or if the Aggreſſor happen to over is very doubtful whether, if I ſhould now ſpare
take him, cannot eaſily recover himſelf into a him, to my own Ruin, he will not, for all my
Pofture of Defence. Therefore in caſe there be Charity, ftill deſerve, and ſtill meet with the
not a Place of ſafe Refuge near at hand, he doth fame terrible Sentence. 'Tis a Maxim vulgarly
not tranſgreſs the Bounds of innocent Self-defence, known, that no Regard is to be had to ſuch a
1
(a) Vide Alls xvi. 37.
S. XIII. (1)
TIedes A and garðy, ſays Oppian, Cyneget. Lib. 4. V. 35. Hares have their Armour in their Feet. A need-
leſs Quotation.
(2) De Legib. Lib.9. "Eur Gris Saidov uleion under e Nušvid, pobes ö yn ylwuths aigsãy épgav, rý nex@vavirš ziyun tale, ši nuo
άνετα άλλα τοιέτε, καθάπερ άν ή πολίτίω κείνας υπείχε φόνε δικας, ωσαύτως και σε τοιέτο Ράλι και αυτιά αποθανόν(G-, έτως
ύσεχέτω.
s. XIV. (1) Mr. Fortſchius Profeſſor of Divinity at Tubing, undertakes to defend St, Ambroſe, and ſome other Fathers, who
maintained, that Chriſtian Charity would not allow a Man to lay an Unjuſt Aggreffor, and that he ought to ſuffer himfelf to be
lain. But if we examine the Words of this Divine, Diſert. 1. in Offic. Ambroſi, we ſhall find, that after he has diſcourſed long,
he does not touch upon the Reaſons of our Author. I find only one thing reaſonable, which I have obſerved above, S.2. Note 5.
vir. That in following the Principles of Mr. Pufendorf, he aſſerts, That he chat ſlays his Unjuft Aggreſſor, ought to have more than
a ſimple Permiſſion.
(2) De Re Ruſtica. Lib. I. Chap. 1. Annus enim Otogeſimus admonet me ut ſarcinas Colligam, antequam proficiſcarè vitâ.
(3) Plin. l. 2. Epiſt. 1o. Purum eſt providum ſperare ex aliis, quod tibi ipſe non præſtes, i.e." You are very improvident, if you
expect that from others, which you will nor do. This Paſſage does not make the Icaſt to this Author's Purpoſe.
Danger
CHAP. V. Of the juſt Defence of oneſelf.
195
Danger as a Man throws himſelf into by his own Aſſiſtance, when the Buſineſs we muſt neglect for
Default, and from which he may deliver himſelf that good Office is of more Conſequence, than
if he pleaſes. Now in the Caſe before us, pro- the Thing we thus endeavour to ſave or reſcue
vided he draw off or forbear to treat me in this for another. And beſides all this, it may very
Injurious Manner, the Danger to which he ex- fairly be queſtion'd, whether a perſon who ar-
poſes his Soul, ceaſes as to the preſent Marter. faults us in a violent manner, cught to keep the
And doch not this Opinion allow greater Favour Title of a Neighbour, as the word ſeems to be
and Indulgence to Wickedneſs
, than to Goodneſs, meant in our Saviour's Command (c).
whilft it makes the former, as it were, Sacred Lactantius (d) hath cenſur’d Tully (6) for deſcribing
and Inviolable ? For according to ſuch Rules, a Good Man to be one that doth Good to as many as
the moſt Holy and Vertuous Men would be al- poſſible, and that hurts no Body unleſs provok’d." o
ways oblig'd to yield their Throats to Villains what a most excellent and a most true Sentence (fays
and Murtherers, left, by reſiſting, they ſhould (7) the Father) hath he ſpoild by the Addition of
ſend them immediately on their Road to Hell (a). two Words! For what occaſion had be to ſay, unleſs
That Saying of our Saviour, in which he com- Provok’d? If a Good Man may thus burt another
mands us to love cur Neighbour as our felves, Matt. when he is provok’d, the very Offering that hurt, will
xxii. 39. ſeems not ſo ficly to be interpreted of make him loſe his Character and Name : It not being
the Degree of Love, as of the Truth and Sincerity; leß Evil to return an Injury, than at first to give it.
in as much as no Man diſſembles or counterfeits For whence ariſe all the contentions and the Combats
a Paſſion towards himſelf. And that Phraſe, ds which we behold among st Men, unleſs from this Mif-
thy ſelf, looks like a Proverbial Speech, importing carriage, that Impatience oppoſing Wickedneſs, occaſions
a ſincere and hearty Kindneſs (b). But ſhould we lo many Tempeſts in the World? Whereas, if in oppo-
take the Expreſſion in the higheſt Senſe (4), it ſing the ſame Wickedness we ſhould make uſe of Pati-
would ſcarce follow, that ſuppoſing the Love of ence, than which there is no truer Virtue, and none
our ſelves and of our Neighbour not capable (in more worthy of Human Nature, we should as effectua
ſome Inſtance) of being anſwer'd both together, ally extinguiſh the ill Deſign, as if we were pouring
the former ought to yield to the latter (5). Nor Water upon Fire. But indeed, as the Impatiency
are the Proofs which we find ſometimes alledgʻd of the Injur’d Party is frequently the occaſion of
from Exodus xxiii. 4, 5. and Deuteronomy xxii. 4. unneceſſary Combats, which might with Conve-
ſufficient to evince, that the Love of our Neigh- nience have been avoided ; ſo, on the other hand,
bour ought to take place before our own real Patience is not always infallible in the Cure of
Advantage : For it cannot thence be gather’d, Malice and Villany. Nor doth the Virtue which,
that we are firſt to help our Neighbour's Beaſt under that Name, is ſo highly recommended to
out of the Ditch, if our own be in the ſame Con- Chriſtians, equally oblige us to the putting up
dition ; or that we are oblig'd to give ſuch an (8) all Injuries promiſcuouſly, without Difference



(a) Comp. Grotius L. I. c. 2. 1.8. & c. 3. f. 3. (b) Vid. 1 Sam. xviii. 1, 3. (c) See Luke x. 29, &c. where,
by the Term of Neighbour, we are to underſtand every Man who hath need of our Help, and whom we shave opportunity of
Benefiting. (d) Inſtitut. L. 6. c. 18.
(4) If as often as a Man finds himſelf in the fame Danger as another, he ought indiſpenſably to reſolve to periſh to ſave him,
he is obliged to love his Neighbour better than himſelf. Moreover, this Command of CHRIST is a general Maxim, which
can't be of Uſe to determine a particular Caſe, and inveſted with the Circumſtances of all particulars, ſuch as this, when a Man
finds he can't at the ſame time ſatisfy the Love of Himſelf and his Neighbour, for, all things elſe being equal, the Love of a
Man's Self ought to be preferred, as appears by St. Paul's Words, 2 Cor. viii. 13. The Determination of that Caſe, in which
there is an Oppoſition between the Love of a Man's Self and Sociableneſs, depends upon other Principles, from which it may be in-
ferred, Thar as there are ſome caſes in which the Love of a Man's Self is to be preferred before every other Thing, ſo there are
other Caſes, when the Preſervation of another may be preferred before his own. This is taken out of the Apology of our Author,
which is in the Eris Scandica, $. 32.
coba27
(5) Præclarum illud est, et ſi queris, re&tum quoque, do verum, ut eos, qui nobis cariſſimi eſle Debeant, &què ac nofmet ipſos amemus ;
ac verò plus fierî nullo fatto poteft : nè optandum quidem eſt in amicitia, ut melille plus quàm fé, ego illum pluſquam me. Perturbatio vita,
ſi ita fit, atque officiorum omninm conſequatur, i.e. “ Thus much indeed is Brave, and Right, and True, who ought to be moſt dear
“to us, as well as our ſelves. But to love them berrer is abſurd and impoſſible. 'Twould be ridiculous for me to wiſh, that my
“ Friend and I ſhould each of us prefer the othér's Perſon and Intereſt to his own; becauſe ſuch a Change of Hearts could
56 not but be follow'd with a Confuſion of all Ofices of Life.” Cicero Tuſc. Quæft. 1. 3. c. 29.
(6) Tully's Words are, Eum virum bonum effe, qui profit, quibus poffit, noceat nemini niſi laceſſitus injuriâ. Our Author might here
have oppoſed to this Cenfure of Lattantius or her Words of Cicero, which will thew, thar that Orator believed, that a good Man
ought to ſpare his greateſt Enemies, when he can do it without Danger to his own Life. Jugulare civem, nè jure quidem quiſquam
bonus vult. Mavult
enim commemorare le, cum poſſit perdere, peperciſſe, quam cum parcere potuerit perdidiffe. Hæc in homines alienifſi-
mos, denique inimiciſſimos, viri boni faciunt, & hominum exiſtimationis de communis humanitatis cauſa: ut cum ipfi nihil alteri ſcientes
incommodarint, nihil ipſis jure incommodi cadere poßit, Oratio pro Quintio.
U (7) La&tantius's Words are, o quam fimplicem, veramque sententiam duorum verborum adjeftione corrupit ! Quid enim opus fuerat
adjungere, niſi laceſſitus injuria? — Nociturum esſe dixit bonum virum, fi fuerit laceſſitus; jam ex hoc ipfo viri boni nomen amittat,
neceſſe est, fi nocebit. Non minus enim mali est, referre injuriam, quam inferre. Nam unde certamina inter homines, unde pugne, con-
tentioneſque naſcuntur, nifi quod improbitati oppofita impatientia, magnas Sæpe concitat tempeſtates? Quod fi patientiam, quâ virtute nihil
nihil homine dignius inveniri poteft improbitati oppofueris, extinguetur protinus, tanquam igni aquam fuperfuderis.hu!
(8) This may be inferred from the Words of CHRIST, Matth. v. 39, 40. in which Patience is moft earneſtly recommended.
For that Divine Teacher ſays not, if any one will play, wound, or ſmite you mortally, bear it patiently, but, If any one ſmite you on the
right Cheek, turn to him the other alſo, for a Blow on the Cheek is a ſmall Injury in itſelf and eaſy to be born. Moreover, in theſe
Words there is a Proverbial Expreffion, which imports thus much, That, rather than revenge our felves of them that have done
us any Perſonal Wrong, we ſhould rather ſuffer our felves to receive ſome new Injuries. Nor doth JESUS CHRIST ſay, If
any Man will take away all your Goods, or the greatest part of them, do not reſiſt the Spoiler, nor oppoſe his Injuſtice, neither by your
OWR AE and Deed, nor by ſeeking Prote&tion from the Magiſtrate, but, If any Man ſues you at the Law, and takes away thy Coat, let
bim take thy Cloak alſo i. e. rather than engage thy ſelf in a Law-ſuit for fo ſmall á Marter, be ready to undergo a fresh Loſs.
See Grotius, and Mr. Le Clerc on this Place. The Heathens alſo acknowledge, that we ought ſometimes, though not always, to
depart from ſomething of our Right. See Cicero De Offic. Lib. 2. Chap. 18.
Сс2
and

196
Of the juſt Defence of oneſelf.
Book II.

and Diſtinction. He that defends himſelf in a But it cannot be hence inferr'd, that ſuppoſing a
Lawful manner, doth not act diretly for the Man to have the Lives of none, or of very few
Hurt of another, but for his own Preſervation : depending on him, ſuch an one may not fairly
And he who repels a Wrong is not Injurious, but kill an Aſſailant, who is perhaps of more Service
he who offers it. 'Tis one thing to exerciſe an to the Publick, or in whoſe Life the Intereſt of
unblameable Defence, and another thing to pro more Perſons are concern'd. For at this rate, a
ſecure an unmerciful Revenge. The latter may Man who is either Unmarried, or without Chil-
as great a Sin as the firſt Offer of an Injury, dren, muſt in no Caſe kill an Invader, who hath
but the former can never fall under ſo hard a a Family, for fear his Wife and Children ſhould
Cenſure.
be left Deſolate and in Want. But if the Affe&ti-
But farther, thoſe who maintain that in Caſes on and Concern for theſe Relations could not
of this Nature it is more commendable to be killd, hinder the Injurious Party from attempting his
than to kill, add this Exception, Unleſs the Party Villany, what Reaſon hath the other Perſon to
affailed be a more uſeful Perſon than the Aſſailant. As give his own Life for the Prevention of their
if it were always poſſible for me, under the Ap-
Misfortune and Trouble ?
prehenſion of fo imminent Danger, to weigh my Plato (10) in his Syſtem of Laws hath been
Abilities nicely with thoſe of the other Man, and very nice and exact on this point : If the Life of
to determine, whether the World would have a Son, ſays he, be attempted by his parents, did ever.
more occaſion for his Service than for mine. any Law allow him in ſuch a Caſe to kill thoſe who
This is beyond Diſpute, that he on whom the gave him being, although in his own Defence ? So far
Safety of many depends, and whoſe Office or from this, that he is oblig'd and commanded to suffer
Duty it is to keep off Violence from others, ought all Extremities; rather than to engage in ſo unnatural
not to reſign his own Life for the ſparing an un a Deed. But if upon account of a Tumult, or Sedition,
juft Invader ; tho' he ſhould be of ſo mild a Dif or the like occaſion, a Brother kills bis Brother, to pre-
poſition as with Piſo in Tacitus (9), to think it as ſerve himſelf from his Violence and Affault, he shall be
great a Miſery to kill another, as to die himſelf. And equally guiltleſs as if he had ſlaughter'd an Enemy.
the Reaſon is evident, becauſe by throwing him- As for the Additional Clauſe, if a Slave in his own
ſelf away, he betray'd the Safety of ſo many other Defence kill a Free Man, be shall be obnoxious to the
Perſons. This is the Caſe of thoſe who accom- Same Penalties as a Paricide, this was not the Fault
pany Travellers by way of Guards ; as likewiſe of the Lawgiver, buc of the Age.
of Princes, of Generals, and other Commanders,
whoſe Deaths are uſually attended with ſo wide
XV. From what hath been obſerv'd on this
a Ruine, and to whom we may apply that Saying Head it appears, that a Slaughter committed
of Lucan :
within the juft Bounds of Self-Defence, doth not
tain the Author with any real Blemiſh or Guilt,
Cum tot in hac anima populorum vita, Saluſque and conſequently doth not render him obnoxious
Pendeat, da tantus caput hoc fibi fecerit orbis, to any Puniſhment: and that it is not to be
Sævitia est voluiſſe mori.
rank'd amongſt thoſe Actions, which, tho' they
are in themſelves finful, yet Human Laws favour
Since one Dear Life enſures and guards us all, with Impunity, upon account of the violent and
And with the World's great Head, the World almoſt unavoidable Tranſports of Paflion : As
muſt fall,
when they allow the Husband to kill the Adul-
Twere Cruelty to court your Fate (a). terer (1). If therefore in any Places fome Pe-
nalty

(a) And that of Alexander's Friends in Quintus Curtius, L. 9. c. 6. What God can ſecure to us a long Enjoyment of this Light,
this Bulwark of Macedon; when you so often, with a kind of Greedineſ, expoſe your Perſon to certain Danger ; not refle&ling home
many l'bouſand of Lives you bazard in one.
() Tacitus's Words are, Si nobis aut perire hodiè neceſse eſt, aut quod &què apud bonos miferum eſt occidere. Hift. Lib. I.
Chap 29.
(1ο) De LL. Lib. 9. Ουδ' αμινομένω θάναον, μέλλονι σοτ γνέων τελετήσεις, παρέξει νόμο έδεις κλείναι ο πατέρα, ή
μητέeα, του εις φώς και εκείνα φύσιν αούνας, αλλ' υπομείνανα τα πάνlα πριν, πειν τι εάν τοιέτο. 'Αδελφός και αν αδελφών
κλείνη, αν χάσεσι μάς γενομένης, ή τινι τόπω τοιέτω άμυνόμενα άρχονία χειρών πρότερον, καθώς πολέμιον αποκλείνας, έσω
Xuntapo 'Εαν 5 άυ δελG- έλαερον αμυόμενο αποκλείνη καθώς και κείνας πατέρα, τοίς αυπίς ένοχG έσω νόμοις.
To treat of this Queſtion more exactly, I obſerve, That in Truth the Laws may by reaſon of ſome Inconveniences, punilh all
Children, who ſhall Ilay their Father or Mother, though in Defence of their own perſons, becauſe we may ſuppoſe the
Caſe 1o very rare, that it would be to no Purpoſe to make ſuch an Exception, which might be an Occaſion of fuffering a real Par-
ricide to go unpuniſhed. But if the Thing be conſidered as it is in itſelf, without any Relation to Civil Tribunals, we muſt, in
my Judgment, thus think of it. 1. If a Father be hurried by his Paſſions, which he can't maſter, to kill his Son, and knows noc
what he is doing, as I have ſpoken, in the Caſe of one attacked by his Sovereign, Note 1. of s. s. fo I ſay here, that he cught
to ſuffer himſelf to be flain, rather than imbruc his Hands in his father's Blood. 2. Buc if we have Reaſon to fear, thar a Fa-
ther is inclined with fome Knowledge and Deliberation to put us in Danger of our Life, we ought to avoid the leaft Occafions
to provoke him, and abſtain from doing many of thoſe things which we have Right to do, if we were concerned with any o;
ther. 3. But if
, after we have done all we can on our Part, we ſee our ſelves infallibly in Danger to loſe our Life by the Hand
of him, who, above all Men, is bound to preſerve it, though in this caſe we may, if we will, ſuffer our ſelves to be lain, our of
Exceſs of Love and Kindneſs, and in Regard to him from whom we have derived our Being, yet I do not believe him guilty of
Murder and Parricide, if, in defending himſelf, he ſlays the Aggreſſor. The Right of Defending our felves is prior to any
bligation we have to another, and a Father, if he ſo far forgers himſelf, as to fall into ſuch an extravagant Paſſion againſt his own
son, deſerves not to be looked upon as a Father.
S. XV. (1) Of which fee Lib. 20, 22, 34. 32. D. ad L. Jul. de Adulter. and Lyfias Orat. 1. pro cade Eratoſthen, where he ſhews,
that by the Attick Conſtitucions it was allowable to kill, if catch'd in the Fact, the Abuſer, not only of a wife, but of a Cono
cubine'; and as Demoſthenes extends it, of a Mother, a ſiſter, or a Daughter. And the Reafon he gives is this ; Becauſe what-
ſoever Perſons we fight for againſt our Enemies, to reſcue them from Injury or Affront, for the ſake of the same Persons the Law. pero

O-
mits
CHAP. V. Of the juſt Defence of One felf.
197
Mr. Dryden.
naley or Expiation hath been enjoind the Actors ever had llain a Man involuntarily, quitted his
of juſt Slaughter, it either belong'd not to the Country till ſuch time as the Gymnoſophifts had
Caſe of Innocent Defence, or it was introduc'd purg'd him by their Ceremonies (a).
And we
without any true Ground or Reaſon : or, laſtly, find Æneas in Virgil declaring in Reference to the
it might be applied for the making Men under- Holy Reliques,
ſtand how heinous a Crime it was to kill unjuſtly,
(2) when the killing even upon a juſt Account Me bello è tanto digreſſum do cæde recenti
ſtood in need of ſome Satisfaction. (3) Philo che Attrectare nefas ; donec me flumine vivo
Few, in his Life of Moſes, Lib. I. tells us, He com Abluero.
manded the Priest to perform a ſolemn Purgation, on
tboſe who return'd freſh from the Slaughter of their E In meʼtis impious Holy Things to bear,
nemies, becauſe tho the Laws did by no means forbid Red as I am with Slaughter, new from War:
ſuch Attempts, yet he who kills a Man, tho' by Com Till in ſome living Stream I cleanſe the Guilt.
pulſion, and in repelling an Injury, ſeems to contract
Some Stain, upon account of the near Relation which
Mankind bear to one another, being all deriv’d origi In the 18th Canon of the Council of Nantes,
nally from the ſame Head. And this therefore was held under Pope Formofus, we have this nice In-
the reaſon of the Ceremony, to take off the very Appear- junction; If a Man by accident, and unwillingly hath
ance and Shadow of Guilt. As for the Benefit of the been Author of another's Death, let him repent forty
Aſylums or Places of Refuge and Sanctuary, a Man Days with Bread and Water; when this Courſe is over,
who preſerv'd his own Life by the Death of an let bim for two years be separated from the Congrega-
Affailant, ſeems to have had no occafion for theſe tion of the Faithful, and let him neither Communicate
Reliefs ; but only he who had been the Author of nor Offer. After the space of two Years, let him Offer
another's Death by an involuntary Stroke, yet with the Congregation, but not Communicate. At the
ſuch as upon exact Care and Diligence he might end of the five years let him be receiv’d to full Commu-
have forborn and avoided. That Place in the nion, but let his Abſtinence from Meats continue at the
firſt of the Chronicles, Chap. xxix. ver. 3. doth not Diſcretion of the Priest. Yet neither doth this Ca-
belong to the Caſe of Self-defence ; and (*) the non touch the Caſe of Defence, nor can it well
Building of a Temple ſeems to have been forbid- be vindicated from too much Rigour. Thus too
den David, not ſo much becauſe he had gather’d what we meet with in the Laws of the Lombards,
any Pollution by his Slaughters in War, as be. (b) ſeems not capable of being extended to the
cauſe he who had acquir'd ſufficient Honour to Buſineſs in hand, or if it be, may deſervedly fall
himſelf by Martial Archievements, ought not to under the Cenſure of unreaſonable Severity.' De
have robb'd his Son of ſuch an occaſion of grow- Mornay (c) tells us, that 'tis religiouſly obſerv'd by
ing Glorious by the Works of Peace. The Scho- the Judges in France, ſcarce ever to abſolve Per-
liaft on the Oreſtes of Euripides informs us; that ſons in Cauſes of this Nature, without enjoining
'twas an ancient Cuſtom amongſt the Grecians, them at the ſame time to beſtow peculiar Lar-
for thoſe who kill'd any one upon a juſt Reaſon, geſſes upon the Poor, and ſometimes to be at the
immediately to ſhow their Weapons to the Sun for Charges of Chriſtian Sacrifices, or Propitiations for the
a Token of their Innocence; as defiring him to Soul of the Party killd. And tho' the latter part
be Witneſs of the Fact, who, in their Opinion, of this Cuſtom ſmells too much of Superftition;
overolook'd and overheard all things. And beſides yet every good Man hath reaſon to be deeply
this Formality, they applied fome Means of Ex- afflicted and concern'd, when he is put under the
piation, and were oblig'd to undergo one Year’s Neceſſicy of depriving Another of Life, by any
Baniſhment: Which Baniſhment is likewiſe men- fuch unfortunate Means.
tion'd by Plato de LL. 1.9. Vid. l. 16. /. 8. D. de XVI. Indeed, the Defence of Life, of Limbs,
Pænis & Groti in flor. Sparſ. ad loc. And we learn and of Chaſtity, as of Irreparable Goods, admits
farther from Demofthenes, and from the Scholiaft fo large a Degree of Favour, as to ſtand exempted
on Ariſtophanes, that at Athens when a Man had from one of the Poſitive Divine Laws, and to be
kill'd another, and pleaded to have done it juſtly, conſtrued as no Breach of the Sabbath. Vide
the Cauſe was tried in a peculiar Court, cald i Maccab. I. 32, &c. Joſeph. Antiq. L. 12. c.8. (1)
the Delphinian, with Alluſion to the Oracle of A- For thoſe who maintaind the contrary Opinion,
pollo at Delphi. Amongſt the Egyptians, Barb. who- are not without Reaſon ſcouted by Plutarch and





tit. 27. & lib.
7. tit.
mits us to kill even Friends, if they offer them any unjuſt Violence. For fince Enemies and Friends are to be judgʻd and diſtinguiſh'd by
their A&tions, thoſe that praktice Hoſtility, we may proſecute in an hoſtile manner. Amongſt the Perſians, he that kills the Adulterer
and the Adultereſs at the fame time, is preſented with a new Garment as a Reward of his Service to the State. Add, Olear.
Itin. Per fic. L. 5. c. 22. Val.Max. L. 9. c. 1. ſ. 13. Ant. Mattha. de Crimin. ad L. 48. D. tit. 3. c. 3. f. 13, &c. Adverf. 820.
(a) Vid. Philoft. de Vir. Appolon. 1. 6. (0) L. 1. tit. 9. 1. 19. & capit. Carol. I.
4.
295.
(c) Ad. Leg. 3. D. de Fust. Lo Jure, in which there appears búr little Superſtition.
(2) Porphyry, as Mr. Hertim obferves, ſpeaks very well, that the Reaſon why Lawgivers command, that Murthers committed
without any Deſign, and upon Neceſſicy, ſhould noć be wholly exempted from Puniſhment, is, for fear it ſhould be a Pretence
το any to attempt it on fet purpofe. Επι και ακέσιον Φόνον εκ έξω πάσης ζημίας καθεσησαν οι νομοθέται, όπως μηδεμίαν
wdão πρόφασιν τους εκείως τα των ακείως δρώνων έργα μιμεί θα σωριμίοις. De Abftinent. Lib. Ι.
(3) The Hiſtorical Remarks made here by the Author, had better have been placed under a Noce. See Numb. xxxv.10,&c.
(*) See Mr. Le Clerc upon that place, who gives another Reafon more apparent.
S. XVI. (1) I may add, That as Mr. Le Clerc obferves, Jeſus Chriſt alludes to this Opinion of the Jews, when he ſays to
them who were offended becauſe he did Cures upon the Sabbath-Day, Is it lawful to do good on the Sabbath-day, or to do evil, to
Save Life or to deſtroy it ? Mark iii. 4.
Aga-

Deut. xix. 1, doc.
198
Of the juſt Defence of oneſelf.
BOOKIT.

Agatharchides, as Joſephus obſerves in his Antigui Thoſe who have tormented themſelves in main-
ties (a'). And therefore 'tis ſtrange that the ſame taining the more rigid fide of the Queſtion, build
Author, in his firſt Book againſt Appion, ſhould chiefly on two Suppoſitions ; firſt, that a juſt
celebrate, as worthy of all Commendation, that Puniſhment ought always to be fo equal to the
A&t of the Jews which we read of in the Hiſtory Crime, that the guilty Perſon be not depriv'd of
of the Maccabees, whilſt refuſing to make Refift- a greater Good than what he attempted to hure
ance on the Sabbath-Day, they preferr'd this or to deſtroy in another (2). The Falſeneſs of
Command of God to their own Lives, and to which we ſhall elſewhere make out. Secondly,
the Liberty of their Country: Unleſs he is to That the Hurts which we offer to an unjuſt In-
be underſtood as rather praiſing the Good Inten- vader, in Defence of ourſelves and our Poſſeſſi-
tion, than the Deed itſelf.
ons, are Puniſhments in a proper Senſe, and conſe-
But in Reference to the Defence of Things or quently ought to be ſtated by the Rules of Vin-
Goods, which as they may be reſtor'd or com- dicative Juſtice. But this Hypotheſis is no truer
penſated, ſo they ſeem not all of thein abſo- than the former. For all Puniſhment proceeds
lutely neceſſary to Man's Happineſs, it will bear from a Superior againſt a Subject, by Virtue of
a Diſpute whether theſe may be preſerv'd and ſe- his Sovereign Right; and the Degree of it is
cur'd by the Uſe of Extremities. Eſpecially ſince meaſur'd with reſpect to the Publick Good. But
many are very ready to approve of what Taxilles Defence is a thing of more ancient Date than
ſaid to Alexander in Plutarch, What occaſion is there, any Civil Command, and chiefly takes place a-
Alexander, that you and I must needs Quarrel and mongſt thoſe, neither of whom are ſubject to the
Fight; ſince you neither came to rob us of our Water other; and is moderated with regard to our own
nor of our Food, which are the only two things that Safery, and to the Neceſſity of Self-preſervation.
Men in their Wits think worth contending for. Indeed amongſt thoſe who live under the ſame
Civil Government, the Liberty of Natural De-
Euripid. Supplic.
fence is very much reſtrain’d. Becauſe the in-
Τετο και μόνον βροτοίς, &c.
ward Tranquility of a State could not ſubſiſt, ifthe
For, Life alone's th' Irreparable Lofs; Subjects were to return Hoftilities to each other,
Breaches of Fortune have an eaſy Cure. for every Injury or Affront. The Members then
of a Community may ſo far only make uſe of Vio-
The Judgment and the Cuſtom of all Nations is lent Defence, as it is not taken off or forbidden
manifeſt in this point, whilſt they allow Men by the Genius of Civil Society, or by the Laws of
to fight for their Goods and Poffeffions, even to the State.
the State. And the Laws of moſt Places, tho'they
the Slaughter of thoſe who wrongfully invade allow one Subject to repel another who invades
them. It is plain likewiſe, that moſt War is en- him, by offering a greater Evil, than the Invader
gag'd in, not for the ſake of deſtroying Mens deſign'd againſt him (3); yet according to the
Lives, but of winning their Lands or their Wealth. regular Courſe of Proceeding, they would not
And it would be reckon'd a very pleaſant Humour have private Perſons apply Extremities, in oppofing
in an Enemy, if to hinder himſelf from being ſuch Injuries as are levelld only againſt things that
oppos'd by violent means, he ſhould make Prote- may be reſtor’d or repair’d. In as much as ſuch
ſtation, that he came not to kill but to rob. Thus Reparation or Reſtitution may eaſily be procur’d
much therefore is certain, that he who is killd by the help of Government; whereas when there
in the Attempt of plundering or of waſting ano- is no Government to interpoſe, Men cannot be
ther Man's Goods, hath no Injury done him: forc'd to make Requitals, but by War. There is
Tho', in other reſpects, thoſe Goods do not bear no need then of being ſo ſollicitous with 'Grotius
an equal Proportion to the Life of a Man. For in (b) to make up the Inequality between the thing invaded
a Natural State, he who offers any kind of Injury and the Life of the Invader, by our Favour to the Defen-
with a malicious Intent, immediately becomes a dant, and our Hatred and Rigour againſt the Guilty Par-
Enemy; and then he can have no Right inhe- ty. Unleſs we join with Bæcler in his Explanation
rent in himſelf to forbid the uſe of the utmoſt of the Place, and ſay no more than this, that ſince
Extremities againſt him. And ſince another hath in a Cauſe or Action of this kind, it is generally
no more Right to invade my Poſſeſſions, than tó very difficult to determine what was done within,
affault my Life, I have certainly an equal Licence and what beyond the due Bounds, it is not repug-
and Power to defend them both. Beſides, fince nant to Nature that we turn our Favour on the
Life cannot be preſerv’d without a competency ſide of the Perſon who ſuffer’d, or was likely to
of Goods, he that goes about to rob me of theſe, ſuffer, the Damage, and our Hatred upon the
doth, by conſequence, endeavour to deprive me Plunderer or Thief; that is, when the Cafe is
of that. And indeed, it is clearly evident, that doubtful, we may fairly pardon in the former the
the Security and Peace of Society, and of Man- Death of the latter. In Civil States therefore it is
kind, could very hardly ſubſiſt, if a Liberty were ſufficient, that a Man do not exceed the Limits
not granted to repel by the moſt violent Conrſe, of Defence, appointed by the Laws of his Coun-
thoſe who come to pillage our Goods, for which try. And yet if he ſhould tranſgreſs theſe Mea-
Men have commonly a very hearty Love and ſures he doth no Injury to the Invader, but only
Concern.
is guilty of a Breach of Civil Law. But it may be




(a) L. 12. C. 1. Add. Grot. ad 1 Maccab. xi. 37. (6) L. 2. C. I. f.11.
(2) See Lib. 8. Chap. 3. S, 23, 24.
(3) Such was the Athenian Law mention’d by Demoſthenes (adverf. Ariſtocrat.) ordaiping, That he who killd another in de
fence of Goods, which this other Perſan was taking or carrying off by Violence, ſhould not be chargeable with any Guilt. The Greek is,
Και εαν φέρονα, ή αρνία βία αδίκως, ευθύς αμυνόμενα κτίμι, νωποινεί εθνά ναι κελεύει.
ask'd
CHAP. V.
Of the juſt Defence of oneſelf.
194
>
OLIO
may be
be proper
at least
ask'd farther, whether it is not at leaſt a Sin a- mitting a Thief, taken in the A&t, to be kill'd, if
gainſt Charity, ro kill one who comes to plunder the thing happen'd in the Night, or if being the Day-
us of a Reparable Good. In anſwer to which, it time, be defended himſelf with his Árms against the
is our Judgment, that Charity towards one who Diſcoverer. As for the Sign of Crying out, the
profeffes Hoftility againſt us, takes place only ſo Twelve Tables requir’d it only in the Caſe
long as we have probable Hopes of bringing him, of the Day-Thief when he fought in his own
by this means, to Repentance and to Peace. Buc Defence. Si luci furtum faxint, si se telo defenfint,
when theſe Hopes appear fruitleſs, he that ſpares quiritato, endoque plorato : Post deinde ſi caſi ſint, fe
his Enemy betrays himſelf. Or if at any time my fraud: efto. Comp. 1. 3. S. D. ad L. Aguil. where
Reaſon perſwades me, that a Thing of little and the Term æque is mollified by Tribonian. Yet it is
deſpicable Value is not to be defended with the not improbable, that in Courſe of time, and up-
ſame Eagerneſs and Violence, I forbear, in this on the Authority of Wiſe Men, that ancient Law
Caſe, not for the ſake of the Robber or Invader, was plainly
mitigated, as Cujacius allows, L. 14.
bur partly becauſe I would not give myſelf fó Obferv. 15. This appears from Ulpian, L.5. ad Edi&t.
much Trouble about a matter of ſo flight Con- whoſe words are fully recited in the Compariſon of
cern, and partly becauſe I would not ſeem Nar- the Jewiſh and Roman Laws, firſt publiſh'd' by Peter
row-ſpirited and Coverous, by reſenting to ſo Pithaus. Which are maim'd, as we have them in
deſperate a height, ſo inconſiderable a Damage., L. F. D. ad L. Aguil. (Add. L. 9. D. ad L. Cornel. de
Sicar.) The reaſon of which Alteration perhaps
XVII. It
for
us, on
might be, that it was a Practice ſometimes with
occaſion, to reflect on that moſt noble Lawgiving Villains to ruſh out of their Houſes and murder
Licence to kill a Night-Robber, but not one that Perſons, and then pretend that they found them
comes in the Day-time (1); which we read in in the Ad of Thievery: As likewiſe, becauſe
Exodus xxií. 2. and which hath been ſo often imi- Houſes which are ſtrongly built, and ſtand thick
tated in the Grecian and the Roman Conſtitution. together, cannot eaſily be robb’d without the Ma-
Thus the Law of Solon recited by Demoſthenes, fter's Negligence; or at leaſt cannot afford Rogues
(contra Timocrat.) (2) If any one, in the Day-time, ſo frequent Opportunities. Compare Juſtin L. 2.
ſteal above fifty Drachmx, all Perſons are impower'd c. 2. f. 9. Whence Cujacius conjectures, that the
to bring him before the Court of the Éleven. But if he ſaid Law as by L. 1.C. quando bic unicuique, was
ſteal in the Night, whatever the Value be, it shall be abrogated in Towns and Cities, and only allow'd
allowable either to bring him before the Judges, or to to hold good in the Country. Tho' indeed this
purſue, and wound, or kill him. For which Ulpian Order which he cites, doth not ſpeak of Thieves
the Rhetorician, gives this Reaſon, (*) In the Day who make their Attempts in Privacy and Silence,
we may call for Aſſiſtance, which in the Night cannot ſo but of violent Robbers and open Affailants; as
well be had.' So Plato de LL. 1.9. He that kills a Thief appears from the Reaſon ſubjoin'd, That they may
entring his Houſe in the Night ſhall be blameleſ. The meet the Death which they threaten’d, and incurr that
fame we find in the Roman Twelve Tables. Tho' which they deſign’d against others. Sextus Caecilius in
as to this, Caius (L. 4. f. 1. D. ad L. Aquil.) affirms, Gell. L. 20. c. 1. explains this Law of the Twelve
That the Roman Law doth indeed permit a Man to Tables falſly, when he makes it relate to the inſi-
kill the Night-Thief; but then it obligetb him to give dious Violence of Nightly Murtherers (3). Now the
Notice of it by crying out. The latter part of which Reaſon of ſuch Diſtinction we take to be this, that
Affertion, fac
. Godefredus (ad LL. 6. Tali) obſerves in the Day we may eaſily ſeize the Thief and re-
to be a Specimen of Tribonian's Mild Diſpoſition, cover our Goods; whereas in the Night he may
in as much as that there was no Clauſe originally in flip from the Houſe undiſcover’d; it being diffi-
the Twelve Tables, appears from Cicero Orat. pro cult to know him in the dark; or if one Perſon
Milon. The Twelve Tables, ſays Cicero, allow the ſhould chance to have a Knowledge of him, yet
killing of the Night-Thief by any means poſſible
, but the this would not convict him, unleſs, which cannot
Day-Thief only if he defend himſelf with his Weapon. be done without great Trouble, more Witneſſes
M. Senec. I. 1o. Con trov. ult. The Law whieb pere are call’d out of their Beds. But in this Opinion
mits the killing of the Night-Thief any way poſſible, there is one thing which ſtartles moft Men, and
doth not ſpeak of him as condemned, but as ſurpriz’d in puts them to ſome Loſs and Difficulty ; for they
A. Gell. 1. 11. C. ult. when he reports are apt to argue thus, ſince the Laws which make
that Draco made Theft Capital, and Solon only this Allowance do not decree a Capital Puniſh-
Double Reſtitution; adds, that the Roman Decem- ment againſt Robbers, it looks like an Abſurdity,
viri took the middle way between the Severity of the that private Perſons ſhould be indulg’d with a Li-
former, and the Mildneſs of the latter ; then only per cence of proceeding farther in theſe caſes, than




the Fact.

(1) The Words are, If a Thief be found breaking up Can Houſe] and be ſmitten that he die, there ſhall no bloud be shed for him.
But if the Sun be riſen upon him, there ſhall be bloud fhed for him, for he ſhould make full reſtitution, if he hath nothing, then he
shall be ſold for his Theft, (to make Satisfaction.]
(2) The Greek of Demofthenes is, 'Ei ő tis vÚstwę onišv
xaénior
, Fôtov Flavou, rj Storleivoen zij op cô trece drúxov tu:
(*) Olpian’s Greek is, Εν νύκτι μείζονα τιμωρίαν έδειξεν, επειδήπερ μείζον όσιο έγκλημα και νύκ/G, εν 8 ημέρα δύναται
τις, και βοηθες καλέσαι ευτώ εν 5 νυκτί, έκέτι.
Plato's words are, Νύκλως φώρα εις οικίων εισίοντα όπι κλοπή χρημάτων, έαν έλων κλείνη τις, καθαρός έσω.
(3) Mr. Noodt has thewed in S. 1. of Law IV. ad Leg. Aquil. that there was no addition of Tribonian's, nor any thing con-
trary to the Law of the Twelve Tables. He treats there of Reſtitution, nor Puniſhment. The Cornelian Law, as well as that of
the Twelve Tables, allows an abſolute Impunity to them who flew a Thief in the Night, whether they cried out or no, whether
they might have avoided killing of him or no; but the Aquilian Law did not exempt them from paying Damages and Fines, unleſs
when there was an abſolute neceility of ſlaying the Aggrefior to ſave their own Lives. Obſervat. Lib. 1. Chap. 15, and his Pro-
babil. Juris Lib. I. Chap.9. as alſo ad Leg. Aquil. Chap. 5.
ths
200
Of the juſt Defence of oneſelf. Book II.


In anſwer to which it may be obſerv'd, that all
the Sovereign Power thinks proper for itfelf to do. kill him, tho’ barely for the Preſervation of my
thoſe Laws concerning the Puniſhment of Thieves, me with his Weapon, but when upon my endea-
do ſuppoſe the Things ſtollen to be reſtor’d or vouring to recover my Things from him, he em-
compenſated, upon the Apprehenſion of the Fe- ploys it againſt me for his own Security.
lon. And in order to this they judg’d the giving XVIII. And therefore it is clear, that they are
of two-fold, or ſometimes of four-fold to be fuf- in the wrong who make the Reaſon of the 'fore.
ficient ; according to the different Cuſtom of par- faid Law to be only this, Lest if the Robber eleapd
ticular Commonwealths. But it doth not hence in the Night the Crime ſhould paß unpuniſh'd. As to
follow, that therefore the ſame Laws, in Caſes Grotius's (b) Diſcuſſion of this point, there are
where Reparation was not to be had, could not many things in it to which we cannot ſubſcribe.
furniſh the Subject with ſome larger Power taken He makes the Laws we have been ſpeaking of to
out of the Stock of Natural Liberty. For the be founded on this Bottom, that the Legiſlators ,
Lawgivers of Kingdoms and Republicks have not hereby intimated, no Man ought ko be killd direčtly for
always thought it neceſſary, in ordaining Penal- the ſake of our Goods. Which is more than we can
ties for Offences, to take their Standard from diſcover in thoſe Laws which treat of ſuch Thieves
what in a State of Nature the Right of War al as creep into Houſes with Deſign to carry Things
low'd to be done. Thus there are ſome States in privily away. 'Tis true in the Caſe of the Nightly
the World where Adultery is not a Capital Crime; Thief, it may happen that whilft I endeavour to
and yet the Husbands are Indemnified if they kill ſave my Goods, my Life too may be in danger.
the Adulterers upon ſurprizing them in the Act. And then the Slaughter of the Thief is permitted
Now ſuppoſing Men to be plac'd in a Natural Li me upon a double account. Nor here will it be
berty, the Performance, or the very Offer of an an Objection againſt my Innocence, that I ſeem
Injury to their Bed, is plainly a ſufficient Cauſe to throw myſelf into this Danger, by attempting
of War, and how far the Licence of War extends to retain or to recover my Matters. For I am
every one is ſenſible.
And yet theſe Laws would then engag'd in a lawful and almoſt a neceſſary
not ſtretch the Puniſhment of Adultery when Act; from which no Effe& that ariſes without my
once actually committed, to ſuch Violence as Fault, can be imputed to me. But were it not
might be allowable in a War undertaken upon lawful to kill another purely on the account of
that Score. But for their Indulgence to private Goods, how can we utterly clear him from all
Perſons of farther and ſeverer Methods, we may Guilt, who for the Preſervation of thoſe Concerns
borrow this very good Reaſon from Dr. Cumber- caſts himſelf deliberately into fuch a Condition as
land (a), that in as much as Offences of this kind makes it neceſſary for him either to kill, or to be
eſcaping the Cognizance of the Civil Magiſtrate, kill'd? As we do not allow him
the Plea of Self-de-
do frequently paſs unpuniſh’d, therefore whenfo- fence, who kills a Man in a Duel voluntarily under-
ever their Circumſtances make them capable of taken.
receiving Puniſhment, it hath been thought. The other Reaſon which Grotius aſſigns for the
proper to allow the moſt rigorous and ex- Hebrew Law ſeems not of ſufficient Strength and
treme; that the Boldneſs of wicked Men, as much Solidity. In as much (ſays he) as by Night Witneſſes
as it increaſes by Common Impunity, ſo much it of the Fact are difficult to be procur’d, therefore (1) more
may be leſſen'd and kept under by the Fear of eafy Credit is given to him who ſhall affirm (*) that he
meeting ſometimes with fo grievous and ſo terri- kill'd the Thief in defence of his own Life; as having
ble a return. That Clauſe in the Roman Law found him with an Inſtrument that might have done
giving Authority to kill a Day-Thief, Si telo ſe de- burt. For granting that the Hebrew Word in the
fenderit, If he defends himſelf (4) with his Weapon, Text cited by him fignifies an (2) Inſtrument of
plainly intimates, that I am hereby permitted to Digging or Stabbing, yet if the Intent of the Law



tors on it.
(a) L. 5. ſ. 26. (6) L. 2. c. 1. f. 12. (*) If the Affirmation or Word of every particular food for a legal Evi-
dence in this caſe, this great Inconvenience would follow, that any malicious Perſon (tho* lus Credit be no berier than his
Temper) might, with Impunity, deſtroy his Neighbour, if he would but give his Word his Neighbour firſt affaulted him.
(4) See the Authorities alledged in the firſt Nore of this $. and chiefly Cicero's Orat. pro Milons, Ch. 4. and the Commenta-
§. XVIII. (1) Then (ſays Grenovius the Father in his Notes upon Grotius) here is only a bare Fiction of Law, as in the Caſe
of Preſcription and Poftliminium. But can ſuch a weak Foundation be of force fufficiens to give one Right to ſay a Man whoſe
Life he ought to have preſerved? We ought rather to hold, that he ought to call for the Affiftance of his Fellow-Citizens a-
gainſt the Actempts of an unjuſt Aggreſſor, and more, that the Laws grant us an extraordinary Prorection and ſpecial Privileges.
Among the ancient Scythians, as Juſtin relates, L. 2. C. 2. Robbery was a Crime puniſhed with the greateſt Severity and greateſt
Reaſon, becauſe if that had been permitted, what could they have enjoy'd whoſe Goods conſiſted in Herds of Cattle, which
could never be ſhut up? For this Reaſon che driving away of Cattle (Abigeatus) is puniſhed more ſeverely even by the Law of
God, chan Theft, Exod. xxii. I. altho' the Thing ſtole be of much greater Value than the Beaſt. (See Mr. Le Clerc's Notes upon
chat Text.) So that in the Night, while Men ſleep, the Law's awake, as we may ſay, and when the Proprietors of Goods are
leſs able to take care of themſelves and defend their Goods, it deterrs Thieves by making them apprehenſive of a greater Pu-
niſhment than if they rob in the Day-time. Moreover, there is a great Preſumption that a Night-Thief comes armed, and
Lawgivers ſuppoſe it as a thing undoubted; for all things being commonly made faſt in the Night, can a Thief be ſuppoſed with
his Hands only to break thro' a Wall,
force open Gates, Cheſts and Cupboards ? Wherefore for this Reaſon, becauſe all things
are ſhut faſt, we can't believe that a Thief will come in the Night without Arms and Engines to enter by force a place which
he ought to look upon as a thing Sacred. See Cicero's Orat. pro Domo. Chap. 41.
(2) Our Author hath Reaſon to doubt, whether Mp3 Bammakhtereth, ſignifies, with an Inſtrument to break thro', 'cis
more probable it means, in breaking thro', as the LXX and Vulgar tranſlate it. But Mr. Le Clerc has very well obſerved, that it
comes much to the ſame, fince none can break thro' a Wall but with an Inſtrument. We may add with the ſame Commentator,
that this
Expreſſion is founded upon the Eaſineſs of breaking thro’ Walls, for it appears, that heretofore, as well as at this day,
chat moſt of the Houſes in the East, as well in the Country as Cities, were built with Clay, ftruck upon Laths placed a-croſs, and
whited over with Lime. Hence Job, Chap. iv. 9. alludes to it, when he ſays, That Man dwells in houſes of Clay.
had

CHAP. V.
Of the juſt Defence of oneſelf.
201
And they
. .
had been as he makes it, 'e would have been much to confeſs, that a Man who in defence of his
plainer to have ſaid, If be be found with a We.pom. Goods only lays hold on the Night-Robber, (if
Nor indeed is ir, after all, a good conſequence he can with Safety and Convenience) and carries
to ſay, that becauſe the Thief was found arm’d him before the Magiſtrate, acts much more gene-
with a Weapon, therefore he came certainly to , souſly than if he had unneceſſarily depriv'd him
alfault the Life of the Perſon who kill'd him. No of Life (b).
more doth it follow, that becauſe by the Law of
the Twelve Tables the Day-Thief could not be XIX. The laſt Point uſually diſputed on this
kill'd unleſs he defended himſelf with his Weapon, Subject is, whether the Party who firſt gave and
therefore there lies a fair Prefumption againſt the begun an Injury, may fairly reſiſt the other Man
Nightly Thief that he actually made uſe of his when he endeavours to return or to revenge it.
Weapon in the ſame manner. For that Law gave Many here take the Affirmative ſide, upon this
Commiſſion to kill
Conditions, and by any Means poſſible. In after felves by their own Pleaſure and their own Force,
the Nightly Thief (3) without Reaſon, that whilft Men undertake to right them,
Ages indeed, (4) this farther Clauſe was added they are ſeldom very exact in proportioning the
to it, Si parcere ei fine periculo fuo non potuit, dum ren Puniſhment to the Crime. But we conceive the
ſervare
e conatur (a)if whilst be endeavours to save Queſtion ought to be determin'd with more Cau-
bis Goods he cannot fare this Robber's Life 2018 bout ma tion and with more Diſtinction. The Law of Na-
nifest Danger. But before this Addition it cannot ture then commands, that he who has Injur'd an-
be prov'd, that a Perfon ſtood guilty of Homicide other ſhould offer him Satisfaction : And at the
who had kill'd a Nightly Thief, tho' there were ſame time it obliges the other Party to pardon the
Witneſſes to prove that the Party Alain never Offender, when he intreats him with Signs (1) of
brought him into danger of his Life. The Ex- Penitence, offering Reparation for paft Damages,
ample of a Maid Raviſh'd in the Field, which and Security for his future Good Behaviour (6)
Grotius here alledges, is nothing at all to his pur- He therefore that refuſes to make Satisfa&tion, and
poſe : For in thac Caſe, the Law expreſly com- hereupon reſiſts the Perſon demanding it, mani?
mands us to preſume that Violence was offer'd her. feſtly heaps one Injury upon another. But when
But in the Matter we are now concern'd about, we á Man refuſes to accept fair Satisfaction when of-
cannot diſcover that any Preſumptiim of Mortal fer'd him, and reſolves to profecute his Revenge
Danger is made or ſuppos’d by the Laws. As indeed by open Arms, in this Cafe he practices unjust
it is not the Buſineſs of theſe Purloining Raſcals Force, and conſequently it can be no Fault to make
Fight, but to Run. Yer after all we are ready Reſiſtance againſt him (d) (2). **ulle bus o quan
10 Tabor ed
(a) In l.9. D. ad L. Cornel. de Sicar.
(b) Add. Groenewgen de Leg. abrogatis, ad L. Aquil. where he obferves, that the Dutch Laws do not require the Sign of Cry.
ing out in the diſpatching of a Night-Thief. Comp. Leg. Wijogoth L. 7. tit. 2. cap. 16. Leg. Burgundion. addit. I. tit. 16. c. 1, 2.
Leg. Friſiorum, Tit. 5. Conſtitut. Sicul. Tit. 13. Capital, Carol. & Ludovic. L. 6. c. 19.
***) Quintilian Declam. 5. There's nothing more honourable than the concluſion of a Quarrel, But whilſt the Parties are bot with
ſecret Delives of Miſchief, 'tis in vain to pretend an outward Reconciliation. M. Antoninus, L. 1. f. 7. vejviceth in this Happineſs of
bis own Temper, that he was eaſily placable, and willing to be reconciled to thoſe who had given him any Cauſe of Offence, ſo soon as they
deſired it. Add. & L.9.1. 8. & Senec. de Trâ, L. 2. C. 34. L. 3. C. 25, 27, 42. Amongst the Chineſe, who prefer Moral Philoſophy
to all other Parts of Knowledge, there is ſcarce any one fo cruel as to deſire to revenge an Injury with the Death of him that offer'd it :
any. In
clination to harm the Author. Neuhof. Deſcript. Chin. c. 1.0 Ons Svirs 5W 23150 TOT DIL
(d) Comp. Liv. L. 9. & Grot. L. 2. C. 1. f. 18. & Bacler ad loc. See the Story of the Private Combat in Davila, L. 15. p. 1027.
(3) Duşdecim Tabula nočðurnum furem, quoquomodo ; diurhúm autem, ha fet
fi ſe telo defenderit, interfici impunè woluerunt. Cicero " Pro
Milone, cap. 3. oldal ory
Santa
011
(4) Furem no&urnum fi quis occiderit, ita demum impunè feret, fi parcere ei fine periculo ſuo non potuit. Digeft. Lib. 48. tit. 8. ad
Leg. Cornel. de Sycar. Leg. 9. But Mr. Noodt hath Mewed very well, that that Law is ill placed, and that Tribonian had taken
no more care than Vlpian, from whom 'cis taken. Lib. 37. ad Edi&tum, where he ſpeaks of the
Reparation of the Damage to
which the Aquilian Law condemned him, and not of the Puniſhment ordered by the Cornelian. See his Probabil. Jur. Lib. 1.c.9 8.6.
S. XIX. (1) The Philoſopher Arrian ſays, That the only way to attone for a Crime, is, in his opinion, to confeſs it, and
Thew Repentance, for, adds he, the Fault appears not ſo great to him that has received it, when the Offender acknowledgech
that he hath done ill, and he hath realon to hope that he will ſo no more
, becauſe he ſeems ſo much troubled for what he has
done. Μόνη και η μοιγε δοκά "Ιασις αμαξίας, ομολογείν τε αμαρόντα, και δήλον ε7επ' αυτο μελαγινώσκονία, ως Τοίς παθόσον η
άγαει και πανί» χαλεπα τα παθήμαlα φαινόμενα, εί ο δράσας αυτά ξυγχωρότη, όπ και καλά έδρασεν αυτώ π τίνι ες το μέλλον ταυ-
τίω ελπίδα αγαθω υπολειπομένων, μη ποτε αν παραπλήσιον τι αμαρτιν, ί τοίς είσθεν πλημμελεθείσιν άχθόμεν, φαίνοιτο,
De .
(
two
they will not take a ſlender Reparation for a fufficient Satisfaction, or ſome Signs of Repentance for Recompence. But as to
thoie Damages which Fellow-Citizens do one to another, and for which the Laws preſcribe a Sacisfaction, it is more eaſy to de.
termine which of the Contenåers ſhall paſs for the Aggreffor. Obſerv. on Pufendorf, before I end this Chapter,
we ſhall fupply a conſiderable Omiffion of our Author, which neither 'he nor Grotius ha taken norice lor, and that is, el chaine for
which every one hath to defend his Liberty. Mr. Lacké hach proved the Juſtice and Extent of chat Right which all have to de-
fend themſelves; Whoever, ſays he, endeavours to usurp an Abſolute Power over any one, puts himſelf into a state of War with him;
fo tbat this last can't look upon the Proceedings of the former but as a plain Attempt against his Life. Indeed, from the Moment that
a Man labours to bring me into Subjection to him againſt my Will
, I may preſume, that if I fall into his hands he will treat me
as he pleaſes, and make no ſcruple co flay me in his Humour. Liberty, if I may ſo ſay, is the Balwark of my Preſervation,
and the Foundation of all Things that belong to me; ſo that he that will make me his Slave, authorizes me to repel him all man-
ner of ways, that
I may ſecure my Perfon and Goods
. But here we muſt carefully diſtinguiſh the State of Nature from the Civil
State ; for 'cis upon this that the extent of our Right, that we have to defend ourſelves againſt them who would bring us into
Subjection to them, depends. Man's Natural Liberty confifts in acknowledging no Superior Authority upon Earth, and follow-
ing the Laws of Nature without any dependance upon any other Man. Liberty, in a Civil Society in not ſubmitting to any Le-
gillative Power but that which is eſtabliſhed by the general Conſent of the whole Body, nor to any other Government than what
they acknowledge, nor to any other Laws than thoſe which the ſame Legiſlative Power may make according to the extent of the
Righe which ic hath received. But of this I ſhall ſpeak more largely elſe where. See that Engliſh Author's Treatiſe of Civil Go-
vernment, whoſe Notions I have mentioned Lib. 2. Chap 3,84. S. 17, & 22. liogge ind 0010 001016/11
Dd
C H A P.

(a) la 1.9 d. ad L. Corneli'de Sien
arer cani
two
that
oil
202
Book II.
CH A P. VI.
Of the Right and Privilege of Neceſſity,
The CONTENTS.
1. How many kinds of Neceſſity there is.
IV. And what indirectly.
II. Wherein the Right and Privilege of Neceſſity V, VI, VII. What Right it confers over other Mens
conſiſts.
Goods.
III. What Right it gives every One over himſelf, and VIII. What we may do to Others Goods to preſerve our
directly over others.
own Goods.

|
Pity.
T
THE Caſe of Neceſſity is a thing in every Body's the Excuſe which we allow to Human Infirmity,
Mouth, and the Force of it generally ac- and on the Indulgence of our Mercy and
knowledg’d in the World : Hence we commonly But that Neceſſity of Convenience is ſtill much wea-
ſay, that it hath no Law, that 'tis a ſuppos’d or pre- ker, and weighs very little either in the Defence
fumptive Exception to all Human Ordinances and or the Excuſe of Actions ; unleſs when the Cauſe
Conſtitutions; and that therefore it gives a Right comes before ſuch a Judge, as hath more regard
of doing many things otherwiſe forbidden (a). to his own partial Inclination, than to the Sug-
Now whence this Force or Power ariſes, and geſtions of Wiſdom and to the Demands of
how far it extends, we ought with the more Ac- Right.
curacy to examine ; becauſe ſome Caſuiſts ſeem Now our Buſineſs on this Subject lies chiefly in
to allow it none, or very little Efficacy, as to the examining and ſtating the Neceſſity of Safety, and
Morality of Human Actions. But before we in conſidering what force it hath to exempt any
proceed to this Enquiry, we may obſerve in ge- Action from the Obligation of Common Laws:
neral, that (1) Tully in his Second Book of Inven- that is, Wherher we may not ſometimes do things
tion, C. 57. 58. makes a twofold Neceſſity, the one forbidden, and omit things commanded by the
ſimple and abſolute, which can by no poſſible means Laws, when we are (not by our own Fault') (2)
be reſiſted, alter'd, or abated; and the other Con- caſt into ſuch Straights, that we cannot otherwiſe
ditional or Reſpective. This again he divides into ſecure our own Preſervation. And here it is
ap-
three Kinds, with regard either to Honeſty (b), to parent, that the Favour, the Right, the Leave, or
Safety, or to Convenience. Of which, he ſays the whatever it is that in ſuch Cafes we attribute to
firſt is by many Degrees the higheſt, the ſecond Neceſſity, doth ſpring from this ſingle Principle,
of next Moment and Confideration, and the that it is impoſſible for a Man not to apply his
third very much inferior, and not able to ſtand utmoſt Endeavour towards preſerving himſelf;
in Competition with the reſt. He proceeds to and that therefore we cannot eaſily conceive or
give it for a Rule, that altho' Honeſty be better ſuppoſe, ſuch an Obligation upon him, as ought
than Safety, yet in ſome Cafes we may give the to outweigh the Deſire of his own Safety.
Preference to the latter ; when what we take
from Honeſty in the conſulting our preſent Safety II. No Good and Pious Man can queſtion, but
may be recover'd and made up by our future that God Almighty, who is the abſolute Maſter of
Vertue and Integrity : When this cannot be done, our Lives, and whoſe free Bounty gave us the pre-
Honeſty is abſolutely to be prefer'd and embrac’d. carious Enjoyment of them, may impofe on us fo
Others chuſe to ſay, that when the Neceflity of ſevere a Law, that we ought rather to die, than
Safety is prefer'd to the Neceſſity of Honeſty, ſuch a to recede the leaſt degree from it. Of which
Fact cannot be defended in a direct way, and by kind the Jews took their Law againſt eating
any Preſcription of Right, but leans wholly on Swine’s Fleſh to be ; as we find in the Hiſtory of




es
(a) M. Senec. L. 4. Controv, 27. Neceſſity is the great Patronage and Shelter of Human Infelicity. Callimach. Hymn. in Del,
Neceſity's a Mighty Goddeſ. Add, Orat. Lentul, in Liv. L. 9. C. 4.
06) To which belongs that Saying of Pliny. L. 1. Epiſt. 1 2. The Beſt and Higheſt Reaſon paſſeth for Neceſſity with Wife Men.
Barbeyrac's NOTES on Chap. VI.
$. I. (1) Tully's Words are ; Atque etiam hoc mihi videor dicere, eſſe quaſdam cum adjun&tione neceſſitudines, quafdam fimplices do
abſolutas.
Puto igitur effe banc neceffitudinem, cui nullâ vi refifti poteſt ; que neque mutari, neque leniri poteft. -
Quod adjungitur omni tempore, id pertinebit aut ad boneſtatem aut ad incolumitatem --- aut ad commoditatem.
. -
Ac ſumma quidem neceffitudo videtur effe boneſtatis; buic proxima incolumitatis, tertia, ac leviſima, commoditatis : quæ cum his nun-
quam poterit duabus contendere. Hace autem inter se sæpe neceſſe eſt comparari, ut quamquam præftet honeſtas incolumitati, tamen
atri potiffimùm conſulendum fit, deliberetur. Quâ in re fieri poterit, vt cum incolumitati conſuluerimus, quod fit in præſentid
de boneſtate delibatum, virtute aliquando do induſtriâ recuperetur, incolumitatis ratio videbitur babenda : cùm autem id non poterit,
honejtatis. Farther, we muſt obſerve, that Neceſſity which we muſt fuppofe always happens without this Fault, who is reduced
co it, begers a Conteſt not only becween Self-love and Sociableneſs, but alſo between Self-love and Religion; as alſo between
the divers Duties of Self-love. The Conteſt between Self- love and Sociableneſs happens when the Perions with whom we
ought to have dealt otherwiſe, have no part in the Neceſſity to which we are reduced : For our Author hach ſpoken in the
foregoing Chapter of the Conteſt produced by the Reaſon of another's Fact, whether Malicious or not. S:e the Notes on the
following Paragraph. 20 A 31 de
Lingua e letos
(2) Either in his Perſon or Goods, as it appears from the following part of this Chapt:ren en team of

the
CHA P. V.
203
Of the Right and Privilege of Neceflity,
the Maccabees. And their Judgment was then in- the Nature of Man, that the Caſe of Neceſſity is
deed right; becauſe as the Caſe ſtood with them, not comprehended under the General Terms of a
to eat that ſort of Fleſh was look'd on as an open Law. An Inſtance of this our Saviour himſelf
Denial of the True Religion. Whereas, were hath been pleas'd to give us, in David's eating
they under no ſuch hard Circumſtances, it was the Shew-bread (2), intimating, that the Matter
no Sin for a Man to keep himſelf from ſtarving and the Reaſon of the Law which forbad that
by feeding on this forbidden Meat, when no other Action in general, could not be ſuppos’d to have
could be procur’d. Sometimes too by the Autho- any ſuch rigorous Deſign, as that a Man ought
rity of a Civil Sovereign, Men may receive fo rather to die with Hunger, than to touch the
ſtrict and rigorous Commands, that they muſt ra- Confecrated Food (2).
ther part with their Lives, than omit the Duty It is plain then, that as to Poſitive Laws this
enjoin’d them. But the Obligation of Poſitive Privilege of Necelity is admitted and allow'd :
Laws is not always preſum'd to be ſo harſh and But 'cis a Point much more difficult to determine,
ſevere. For in as much as the Authors of theſe, whether the ſame Favour can take place in (3)
or of any other Rules and Conſtirutions in the the Laws of Nature: that is, Whether in Necesſary
World chiefly deſign’d by them to promote the Caſes we may fairly omit what is Naturally com-
Safety or Convenience of Mankind, we may ſup- manded, or perform what is Naturally forbidden.
poſe them, generally ſpeaking, to have had before As for the firſt Queſtion, it appears from the Na-
their Eyes the weak Condition of Human Nature; ture of Affirmative Precepts, that whenever they
and to have reflected on the Impoſſibility which oblige a Man to the actual exerting of ſuch a Per-
every Man lies under, not to avoid, and to drive formance as is enjoin'd, they at the ſame time
off
, all things that aim at his Deſtruction. Upon fuppoſe him to have Opportunity, Subject, and
this account then, (1) moſt Laws, eſpecially thoſe Power of acting ; But now we may fairly judge
which we call Poſitive, are judg’d to except the theſe Conditions to be wanting, when I cannot
Caſes of Neceſſity; that is, not to oblige, when the do a thing without the Loſs of my Life. Since to
Obſervance of them muſt be attended with ſome throw off the Love and the Care of ourſelves, is
Evil, deſtructive of our Nature, or exceeding the juſtly rank'd amongſt impoſſible Attempts; or
ordinary Patience and Conſtancy of Human however amongſt ſuch as furpaſs the common
Minds : Unleſs when this very Caſe is included Strength of Mens Souls. Therefore, unleſs it
plainly in the Injunction, either by expreſs men either be exprefly and particularly provided by
tion, or becauſe the Nature of the Buſineſs cuts the Law, or deducible from the Quality of the
off all Exception and Reſerve. Hence it is clear, Buſineſs to be undertaken, that I muſt rather lay
that no ſuch Power ought to be attributed to Ne- down my Life than omit the Duty, all affirma-
ceſſity, as that it ſhould give us the Privilege of di- tive Edicts of Nature may be underſtood to ex-
rectly violating a Law, or of committing a Sin; cept the Caſe of extreme Neceſſity : Eſpecially
but we only preſume from the favourable Intenti- when a Man hach not fallen under ſuch Neceffity
on of Legiſlators, and from the Conſideration of through his own Neglect and Default. Thus Í

(a) See Matt. xii. 4. Add. Caſaubon Exercitat. ad Baron. 1. n. 9.
S. II. (1) Otherwiſe, as Mr. Thomaſius obferves, the Publick Good redounds from the Good of Private Perſons; and for the
moft
part, the Preſervation of a Private Perſon is more advantageous to the State, than the Obſervation of any Human Law.
Inftit. Juriſpr. Div. Lib. 2. Chap. 2, S. 131.
(2) We muſt ſay the ſame thing of Prohibitions to keep Days of Feſtival, to which our Author's Words referr, Neceſit as feriis
caret, out of Pallad. de re Ruſtic. Lib. I. Chap. 6. Neceſſity makes no Holidays.
(3) Theſe Principles are more exact, and proper to decide all Queſtions which can be propoſed in this matter; They are bor-
rowed from Mr. Titius's Obſerv. CXLI. and partly from Thomaſius's Inſtit. Juriſpr. Divin. Iib. 2. Chap. 2. S. 130, doc. but we
muſt diſtinguiſh between the Laws which concern God, and thoſe that relate to Men. As to the firſt of theſe, we may lay
down theſe two Rules ; 1. That always in doing or not doing a certain Action, we ſhew directly, or indirectly, ſome Contempo
of the Divine Majeſty, the Law which' forbids, or orders this Action otherwiſe, admits of no Exception in Caſes of Neceſſity;
for in this laft Caſe, the Nature of the Thing itſelf makes it evident, that no Man ought to preſerve his own Life by any thing
whereby God is diſhonoured. 2. But if in doing, or not doing a certain Action, we do not directly, or indirectly, ſhew any
Contempt of the Divine Majeſty, the Law which forbids, or orders that action otherwiſe, does not indiſpenſibly oblige, in a
Caſe of extreanı Neceſſity, for then the Glory of God nor ſuffering any Affront, his Infinite Goodneſs will not allow us to pre-
ſume that he will nor oblige us to expoſe our Lives needleſly, or our Goods. So that as we cannot commir any Action poſitive-
ly forbidden by the Law of Nature, without the wing at leaſt indirectly fome Contempt of the Supream Legiſlator, thele fort of
Negative Laws admic of no Exception in the Caſe of Neceſſity; and ſo much the more, if we do not find ourſelves reduced to
this Dilemma, either to die, or break fome Negative Maxim of the Natural Law, which thro' the Violence of him that propoſes
it, either formally, or by Interpretation, may
make us contemn the Authority of the Supream Legiſlator. Wherefore we muſt
reſolve rather to die, than lie (for Example) with our Mother, or ſlay a Perſon whom we know to be Innocent. See what we
have ſaid upon Lib. 1. Chap. s. S. 9. Note 2. Bue we may, to avoid a great Evil, with which we are threarned by an unjuſt Ag-
greffor, promiſe fomething, even with an Oath, without Intention of Swearing, or Contracting by ſuch a forced Act, any valid
Obligation ; for in that Cafe 'tis neither a true Oath nor Promiſe, and he that forces us unjuſtly, does it only becauſe he thinks we
have a greater Reſpect to the Deity,
otherwiſe he would not
value it
, fo far is he from engaging us to violate our Duty,that he would
vine Law, as they are otherwiſe indifferent in themſelves, the Exception of the Caſe of Neceffiry hath place, or not, in that re-
(pect, according as in doing of them ive thew, or not, ſome Contempt of the Divine Majeſty, which muſt be judged of by
Circumſtances. The firſt is ſeen in the Example of David, and the other in the Seven Brethren ſpoken of in the History of the
Maccabees, upon which our Author reaſons well. As to the Natural afirmative Laws, which concern the Divinity, Mr. Titius
believes with Mr. Thomaſius, that they do not indiſpenſably oblige to an outward poſitive Worſhip, whoſe Omiſſion may be a
dgn of ſuch a Contempt. See what is ſaid upon Chap. IV. of this Book, S. 3. Note 2! But alcho' ſome Acts of Ourward Worſhip
are exprefly commanded by ſome Poſitive Law, we are not obliged to practiſe them in the Caſe of Extream Neceſſity, unles
the Omiſſion paſles for an open, or tacit Abjuration of the Religion which we eſteem true, as in the Caſe of Daniel, chap. 16.
or when it Thews a Contempt of the Divinity directly or indirectly, which doos nor commonly happen. I ſhall ſpeak in Nore s.
of the Privileges of Neceſſity, with relation to the Duties which concern Men themſelves.
D d' 2

am
204
Of the Right and Privilege of Neceſſity. Book II.
o deliver out of Danger, whereas in the other 'tis the Malice of Man,
am not bound to furniſh an hungry Perſon with violated a Law, unleſs the A&t can be rightly im-
Bread, when I want it for my own Suſtenance puted to him. Now an Act may proceed from a
(a)(4); Or to help a Man that is drowning, Man two ways, either as he is the Principal, or as
when I cannot ſave him without loſing my ſelf. he is the inſtrumental Cauſe of it. And this Inftru-
Seneca's Reſolution is good in both Caſes, I will mental Cauſe is again of two kinds, either as it
give (ſays he (b) to thoſe that are in need ; but ſo as exerciſes no Motion but what is impreſs’d on it by
not to put myſelf in the same needy Condition : i will the Principal Cauſe, and againſt its own Natural
ſuccour thoſe who are ready to perish ; but ſo as not to Inclination, if it have any; or, as it applies itſelf
expoſe my ſelf to certain Ruine.
upon its own proper and internal Impulſe to ſuch
As for the Negative Precepts, or the Prohibiti- a Performance, tho' the Influence and the Di-
ons of Natural Laws, this in the firſt place is moſt rection of the firſt Cauſe do likewiſe aſſiſt in the
certain, that no Neceſſity can make it allowable for Operation. If then a Man be, according to this
us to undertake an Aétion directly diſhonouring latter way, Inſtrumental in an Act, the Aat may
Almighty God; as ſuppoſe, to blaſpheme or to not only be imputed to the Principal Cauſe, but alſo
deny him, and renounce his Worſhip and Service, to him, as his true and proper Work. But if he
tho' for the avoiding of preſent Death. For in as be Inſtrumental or Concurrent only in the former
much as God is able to inflict on a Man a much manner, the Act ſhall not be imputed to him, but
more grievous Evil than Natural Death can be only to the Principal Agent. What farther Con-
imagin'd to be, our Reaſon doth with good Pro- ditions are requiſite to this Caſe ſhall hereafter
bability aſſure us, that he will requite us with a be (6) more largely explain’d.
much more noble Happineſs, when we part with
our Lives for his Sake : On the other hand, it
III. Thus much being premiſed, we may go on
would be abſurd, as well as impious, to ſin againſt to diſcuſs the particular Caſes, and Queſtions uſu-
the Divine Honour for the eſcaping of a leſſer ally diſputed on this Head. In reference then to
Evil, than what he incurs by ſuch an Offence (c). a Man's felf, tho'otherwiſe he hath no ſuch Right
Yet the unhappy Caſe of thoſe who yield to the and Power over his Members as to deſtroy, to di-
Force and Violence of Tortures, is not altogether ſtort, or to maim them at his Pleaſure; yet it
unworthy of our Pity.
ſhall be lawful for him to cut off a Limb, that is
Concerning thoſe Laws which contain the mu- either poſſeſs’d by an Incurable Gangrene, or that
tual Duties (5) of Men, it may be firſt obſerv’d, is rendred uſeleſs by a Wound; in the former
that ſome of theſe Natural Precepts do preſuppoſé Cafe (1), to keep the whole Body from periſhing,
ſome Human Deed or Inſtitution; which, as may or the ſound Parts from being infe&ted, and in the
be gather'd from its End and Purport, not extend- latter, that the uſe of the other Members be not
ing to the Caſe of extreme Neceflity; the ſame hindred by the Clog of an unſerviceable and cuma
Exception may be fairly underſtood in the Law. berſome Appendage. Whether the extreameſt
And then we may remark farther, that a Man Neceſſity doth farther give a Man any Right over
cannot be ſaid by his own Act immediately to have his own Life, that is, whether for the eſcaping a
(a) See 1 Corinth, viii. 13. (b) De Benef. L. 2. C. 15.
(c) Carpyllod. in Antholog.
* *He dordeong
Good Men, whatever Scenes of Fare they fee,
'Ανδρέαν ευσεβίης απόλαλε χάρις.
Shall ne'er be Loſers by their Piery.
(4) This Paffage is quoted Chap. III. S. 18. Note 2. of this Book.
(s) As often as in doing any Action otherwiſe forbidden, with relation to another, or ourſelves, we find a ſure way to avoid
ſome great Danger, without falling into ſome greater Evil, or equal to that from which we keep ourſelves, the Law permits an
Exception of the Caſe of Neceffity. 2. But if the Performance of the like Action is no furer way of eſcaping the Danger and
the Evil which may redound from it, appears greater, or equal, the Law does not allow the Exception of a Caſe of Neceſſity.
By ſure means we underſtand thoſe which have a Natural and Neceſſary Power to remove the Danger wherewith we are threat-
ned, and not a pure arbitrary Force, which depends upon the Fancy of hiın who has brought himſelf into that Neceſſity; for in
'
and ſuch a Malice as incends either directly, or indirectly, to oblige us to diſobey the Magiſtrate. We may add, that the Cer-
tainty of the Means of which we are ſpeaking, is not an abſolute and infallible Certainty, and ſuch as ought to be underſtood
in a Negative Senſe, rather than a Poſitive, i. e. inſomuch that withont ſuch a Means we are loft, and are not ſure we ſhall eſcape
if we put them in practiſe. A Man, for Example, who is purſued, may be at length Convicted, but to make his Eſcape runs in
hafte upon a Cripple who ſtands in his way, this is no hindrance but that he might make his Way, altho' he did ſome great
Damage to him who was not able to retire, for Nature allows every one to maintain his Ground as long as he can. As for the
great Injury which may ariſe from that to which Neceſſity leads us, it ought alſo to be meaſured phyſically, for we neither can,
nor ought to compare the Moral Evil which may be on the one ſide, or the other, becauſe that's the Thing in Queſtion. Pro-
vided therefore that there be no Fault in him who is in danger, which muſt always be ſuppoſed here, the Circumſtances ob-
ſerved, are ſufficient to enable us to make a probable Conjecture of the Will of GOD, for the Law of Nature, which without
Contradiction tends to the Happineſs of Mankind, when we can be probably delivered from a great Evil by expoſing ourſelves
to a Jeffer, we have Reaſon to chooſe the latter. But if the Evil which we embrace is equal to that from which we ty, and we
cannot otherwiſe promiſe ourſelves any Certainty, to avoid the Danger by that means, in this caſe nothing can diſpenſe with
our Obedience. See Mr. Titius's Obferv.CXLI. "As to the Affirmative Precepts of the Law of Nature, which referr to another,
our Author has treated of them well enough.
(5) See Lib. VIII. Chap. 1. 5. 6. and what I ſhall ſay upon it contrary to our Author's Notions
.
S. III. (1) We may in this place apply the Principles laid down in Note 4. of the precedent Ş. Indeed the loſs of a Member
is withour Contradiction a leffer Evil than the loſs of Life, and is alſo a ſure means to keep ourſelves from Danger. The ſame
Thing hath place, as any one may ſee, in the Caſes where to ſave a more noble and neceſſary Member, we are contented to be
deprived of one leſs conſiderable and uſeful. But we ought to obſerve, 1. That it is ſufficient here to ſuppole a bare Permiſſi-
on, there being but few Men who have Courage ſufficient to bear ſuch a painful Operation as the Cutting off a Member dange-
roully affected is
, and therefore had rather die of their Wounds in eaſe. 2. That Neceſſity to which we are reduced ought not
to be underſtood in its utmoſt rigour. So that when we have in ſome manner contributed by our own Faule to put ourſelves
into ſuch an Extremity, we may not lawfully, to retrieve our Affairs, reſolve upon a thing otherwiſe unlawful. See Mr. Titius's
Obſerv, CXLII.
1

Death
CHAP. VI.
205
Of the Right and Privilege of Neceſity.
Death of Ignominy or of Torture, he may lay third place, doth there lie any Objection of Cru-
hold on more gentle Means of leaving the World, elty, when the Perſon dying for the Safety of his
we have enquir'd and ſtared in the preceeding Companions, receives the Inſtrument of Death
Chapter. We may proceed therefore to examine with leſs Grief and Reluctancy than the others
what Right Neceſſity can give us over others, To apply it. There is another Cafe worth examin-
feed on Man's Fleſh in the deſperate Extremity of ing, (3) ſuppoſe in a Shipwrack more Men leap
Famine, when no other Suftenance can be pro- into the little Boat than it is able to carry, and
cur’d, is a lamentable, indeed, but not a ſinful, the Boat belongs to no one by a more peculiar
Expedient. But as for thoſe Inſtances, when in Right than to the reſt ; whether they may not
Diſtreſs and Want of all Proviſions, Men have fairly draw Lots who ſhall be caſt over-board;
been kill'd to preſerve their Fellows, either by and whether if any one refuſe thus to take his
Compulſion and againſt their Conſent, or elſe by Chance, he may not be thrown out without far-
the Determination of Lot, the Deciſion of them ther Deliberation, as one that ſeeks the Deſtru-
is a Point of ſome Difficulty and Uncertainty. ction of the whole Company. But theſe Caſes
In as much as whatever the Law againſt Murther being ſuch as very rarely fall out, (4) we chooſe
ſuggeſts on one ſide, the Sharpneſs of Hunger at preſent to ſuſpend our Poſitive Judgment con-
pleads as loud on the other, and the Belly, that cerning them.
Advocate without Ears: Eſpecially, conſidering
that unleſs this unhappy Means was made uſe of, IV. This may more frequently happen, that
the whole Company muſt have inevitably periſh’d. two Perſons being under imminent Danger of
This is one of thoſe Caſes in which a Man ought their Lives, both muſt unavoidably periſh, unleſs
to die rather than commit the Fact, it being di- one of them, for his own Deliverance, haftens,
rectly contrary to the Laws both of God and by ſome Act, the Fate of the other, which would
Nature (a) (2). To this purpoſe we have a Story however have ſoon arriv’d. Or, that upon Ne-
of Seven Engliſh-Men, who being toſs'd in the ceflity we may bring on another, indire&ly, the
Main Ocean without Meat or Drink, killd one Danger of Death, or of ſome grievous Hurt;
of their Number, on whom the Lot fell, and who not deſigning to harm him, but only to exerciſe
had the Courage not to be diſſatisfied, afſwaging, ſuch an Act as may probably prove miſchievous
in ſome meaſure with his Body, their intolerable to him ; at the ſame time defiring any other way
and almoſt famiſh'd Condition : Whom when to get rid of our Neceſſity and Streights, and en-
they at laſt came to Shore, the Judges abfolv'd of deavouring, as far as lies in our Power, to make
the Crime of Murther. Ziegler upon Grotius (6), the Damage fall light on the Suffering Party.
giving this Relation, is of Opinion, That the Men Now this kind of Hurt, as we judge it not to cauſe
were all guilty of a great Sin, for conſpiring against the any Sin in the Giver, ſo we think the Receiver
Life of one in the Company, and (if it ſhould ſo happen) ought to look on it as purely an Accidental Evil,
every one against his own ; thus regarding Bodily Peril upon account of which he has no reaſon to be
more than the Danger of their Souls. That no one ought angry at the Author. Let us conſider an Inſtance
to have ſet ſo little a Value on his Life, as to loſe it for or two of both Caſes. If I, being a Skilful Swim-
ſatisfying the Hunger of the rest : And that the rest mer, fall into deep Waters with another utterly
ought not to have been ſo cruel to their Fellow, in Com- ignorant of that Art, and he, as the uſual way is,
pliment to their own Stomachs. But to this it might clings faſt about me, who am not able to drag
be anſwer'd, that 'tis too harſh and rigorous a out both Burthens; who will blame me for uſing
Cenſure, to ſay that thoſe Men conſpire against all my Strength to get rid of him, and ſo to pre-
the Life of another, who agree to take the Chance vent my own Death, tho' perhaps I could, with
of dying one of them, for preſerving the Lives hard ſhift, have held him ſome few Minutes above
of all the reſt (c). And conſequently they could Water ? so in a Wreck (1), if I have taken Pof-
put their Souls into no Danger by this Unfortu-' ſeſſion of a Plank which will not hold two, and
nate Reſolution. Nor is the Charge of underva- another ſwimming towards me, ſhall endeavour
luing their Lives any better grounded ; ſince he to throw himſelf upon it, to the Deſtruction of
only can fall under this Imputation who throws us both; there ſeems to be no Reaſon why I
himſelf away without Neceſſity. Nor, in the ſhould not apply the utmoſt Violence in keeping

(a) Homer Odyſ. 8.
Oj 78 77 sogeçñ, &c.
The Belly, like a Bold Pecitioner,
Breaks rudely in, and forceth you to hear.
(b) Ad Grot. L. 2. C I, from Nich. Tulpius Obſervat, Medicin. (c) See Jonah, 1. 7, &c.
(2) Mr. Titius's Obferv. CXLIV. thinks it neither unlawful, nor of an indiſpenſible Obligation, but he ſays, “ That they who
are reduced to this Extremity, ought not nevertheleſs to reſolve upon a thing ſo ſad and inhuman; for altho' commonly the
ci Affections of Men one to another, eſpecially ſuch as are neither Parents nor Friends, are very cool, yet when they are involved
si in any common Danger, the ſenſe of that naturally awakens our Thoughts of Humanity and compaſſion, which make
us chooſe
s rather to die ourſelves, or wait the unforeſeen Events of Divine Providence, than have recourſe to ſuch an irkſome and barba-
" rous Expedient, by which we are not yet ſure that we fall ſave our Lives.
(3) In truth, the Maſter of the Shallop doth not ſeem to be obliged to draw Lots with the others, which he permitted lo-
pingly to come into it, and conſequently he might make them caft Lors to ſave himſelf,
(4) Our Author determines it by ſaying, it ſeems fo to me, in his Abridgment of the Duties of a Man and Citizen, Lib. I.
Chap. 5. 6. 2.
him, becauſe he brings upon me as great an Evil directly, as that he faves 'himſelf from. Moreover, I am here the firſt in
S. 1V. (1) But if that other being ſtronger than I, drive me from my Plank, the Neceſſicy of ſaving his Life will not excuſe
time, the Plank belonged to me by the Right of the firſt óccupant, and ſo he could nor drive me from it without Injuſtice.
We muft ſay the ſame thing of a Man who, when an Army is routed, will ſeize upon an Horſe which belongs to a Wounded
Perſon, and leaves him infallibly expos’d to the Fury of the Enemy, to ſave his own Life the more certainly. Theſe are the
two Caſes mention'd by Laftandins, in the place above quoted, Chap. 3. S. 11. Note 2.
him



206
Of the Right and Privilege of Neceſſity.
BOOK II.
much more in a Caſe of Neceſſity, in which we can't practite
him off. And thus likewiſe if two Men are pur- Curtius, L. 4. C. 16. when things were not brought
ſued hard by an Enemy, bringing Death in his to deſperate Excremity, bravely refus’d to break
Hand, if both cannot be ſaved, one of them may, down the Bridge of the River Lycus, which he
for his own Security, either by breaking down had paſs’d with ſome part of an Army in a Re-
a Bridge, or ſhutting a Gate after him, leave the treat; making this Generous Declaration, That he
other in imminent danger of being kill’d. This bad rather give a Pusſage to thoſe that purſu'd, than
kind of Neceſſity often happens in War ; where take it from thoſe that fled.
tis a Rule, that at any time ſome few are to be An Inſtance (3) of the other Caſe which we
left in Diſtreſs, for ſecuring the Main Body. mention'd in general, may be this : Suppoſe a
Arrian de Expedit. Alexand. L. 6. It was neceſſary to Perſon of more Strength than myſelf, follows me
ſet aſide the care of ſingle Perſons, in Proſecution of the cloſe with Intention to kill me, and I meet one
Common Safety. Virgil Æn. IX. v. 722, &c. in a narrow Paſſage, thro' which I muſt take my
Flight, if upon my Requeſt he will not get out
PANDARU S ut fuſo germanum corpore cernit, of the way, or if he has not time or room to
Et quo fit fortuna loco, qui caſus agat res;
ſtand off, I may throw him down and run over
Portam vi multa converſo cardine torquet,
him, tho' the Fall, in all probability, will be very
Obnix is latis humeris : multoſque ſuorum,
grievous and hurtful to him: Unleſs he be ſuch
Manibus exclufos, duro in certamine linquit. an one as, by virtue of ſome peculiar Obligation,
I am bound at any time to ſerve voluntarily with
When Pandarus beheld his Brother kill'd,
my own Danger. And if the Perſon who thus
The Town with Fear and wild Confuſion fill'd. ſtops my Flight be not able to look to himſelf up-
He turns the Hinges of the heavy Gate, (Weight. on my calling to him, as ſuppoſe a Lame Man
With both his Hands, and adds his Shoulders to the or a Child, I ſhall certainly deſerve excuſe, if I
Some happier Friends within the Walls inclos’d; attempt to leap over him (either being on Horſe-
The reſt Thut out to certain Death expos’d. back or a-foot) rather than to fall into my Ene-
Mr. Dryden. mies hands by my Delay. As for that other Ex-
ample, which ſome give, it plainly appears not to
And again, L. XI. v. 884, &c. after the Defeat be without Fault: The Caſe is this, (4) A Captain
of the Latin Horſe,
flying from a Battle, and being cloſely follow'd by the
Enemy, one of his Men happening to be got just before
Pars claudere Portas,
him in the Crowd, be runs him thro' to get off with
Nec Sociis aperire viam, nec manibus audent the more Expedition. Now here the Captain was
Accipere orantes.
ſtrong enough to have made his way only by
puſhing down the Fellow that ſtop'd him, and
Then in a Fright the Folding Gates they cloſe, therefore ought not to have us’d ſo violent Means.
But leave their Friends excluded with their Foes. Yet if in getting by him he had undeſignedly hurt
Mr. Dryden. him with his Arms, the Miſchance would have
been very pardonable. But in caſe a Man either
Compare Livy, L. 26. 15. Where the Thurini made out of a Frolickſome, or a Cruel and Barbarous
a wicked and treacherous uſe of this Pretence. Humour, ftops me on purpoſe, and refuſes to
Florus (L. 2. C. 18.) ſays of the Numantines, At make room for me to eſcape, I may preſently
length they entred into a Reſolution of Flight : But this uſe him as an Enemy, and thruſt him down by
their Wives prevented, by cutting in pieces the Harneſs any means I can, how much foever he is like to
of their Horſes ; committing a baſe Cruelty through an ſuffer by the Bruiſe (a). To conclude this point,
extremity of Love. Tacitros (Ann. 14. C. 32,33.) cen as the declining Death any way admits of much
ſures it as the Effect of ill Conduct, or of Trea- Favour and Excuſe, ſo if the Danger offer'd be
chery, that when the Romans were beſieg'd in Ca- no more than a Maiming, or a Grievous Wound,
molodunum, Non motis ſenibus eu fæminis juventus fola and we fly from it with the Hurt of thoſe that
reftiterit : the Young and Able Men did not throw chance to ſtop us, the Fact will bear much the
out the Women, and Perſons ufeleſs through Age, fame Apology or Defence. For he who offers
and ſo clearing the Place make it more capable ſuch a Violence may be refifted, as much as if he
of Defence. (Add. Livy, L. 5.c. 40.) On the directly attempted to murther us; and when we
contrary, he tells us in the fame Story, that Sue are compellid to conſult our Safery by Flight, the
tonius reſolu'd to hazard the Loſs of one Town for the Confternation we muſt needs lie under vindicates
Security of the whole Province ; and therefore he would our Innocence, as to any ſudden and unfortunate
not be mov’d by the Cries and Intreaties of thoſe who Accident that we chance to treſpaſs in.
begg’d him to ſtay and protext them : But giving the
Sign for Marching, be receiv'd all into his Troops that V. Let us enquire in the next place, whether
were willing and able to follow him ; and as for thoſe the Neceſſity of preſerving our Life can give us
whom either the Weakneſs of their sex, or the Burthen any Right over other Mens Goods; ſo as to make
of their Age hindred from ſtirring, they were left to
it allowable for us to ſeize on them for our Re-
the Mcrcy of the Barbarians. Yet Darius in Quintus lief, either ſecretly, or by open Force, againſt
(a) Comp. La&ant. Inſtitut, l. 5.c. 17. which some have vainly oppos’d to the Opinion here deliver’d.
(2) Theſe fort of Caſes have no difficulty in them, for he treats of che affirmative Precepts of the Law of Nature, which
chem, but at the Expence of our own Preſervation. See Mr. Titius, Obferv. CXLV.
(4) It is eaſy to fee, that the action here alledged is not innocent, This Officer might have made way for himſelf forci-
bly, by thruſting the Soldier aſide, but if he had hurt him with his Arms undeſignedly, he was excuſed.
the




CHAP. VI. Of the Right and Privilege of Neceſſity. 207

the Owner's Conſent. For the more clear and ſuch Alms as was proper for him, could force him
folid Determination of which Point, we think it to it by an Action at Law. 'Tis no Wonder
neceſſary to hint in ſhort on the Cauſes upon therefore, that they ſhould forbid their Poor on
which Diſtinct Proprieties were firſt introduc'd in any account to ſeize on the Goods of others, en.
the World; deſigning to examine them more at joining them to take only what Private Perſons,
large in their proper place (a). Now the main or the Publick Officers, or Stewards of Alms
Reaſons on which Proprieties are founded, we take ſhould give them on their Petition. Whence the
to be theſe two, that the Feuds and Quarrels ſtealing of what was another's, cho' upon extreme
might be appe:as'd which aroſe in the Primitive Neceflicy, paſs’d in that State for Theft or Ra-
Communion of Things, and that Men might be pine. But now ſuppoſing under another Govern-
put under a kind of Neceflity of being Induſtri ment the like good Proviſion is not made for Per-
ous, every one being to get his Maintenance by ſons in Want, ſuppoſing likewiſe that the Cove-
his own Application and Labour. This Diviſion tous Temper of Men of Subſtance cannot be pre-
therefore of Goods was not made, that every Per- vaild on to give Relief, and that the Needy Crea-
fon ſhould ſit idly (1) brooding over the Share of ture is not able, either by his work or Service,
Wealth he had got, without aſſiſting or ſerving or by making Sale of any thing that he poffefles,
his Fellows ; but that any one might diſpoſe of to allift his preſent Neceflity, muft he therefore
his Things how he pleas’d, and if he thought fit periſh with Famine? Or can any Human Inſti-
to communicate them to others, he might at leaſt tution bind me with ſuch a force, that in caſe a-
be thus furniſh'd with an Opportunity of laying nother Man neglects his Duty towards me, I muſt
Obligations on the reſt of Mankind. Hence rather die, than recede a little from the ordinary
when Proprieties were once eſtabliſh'd, Men ob- and the regular way of acting? We conceive
tain'd a Power not only of exerciſing Commerce therefore, that ſuch a Perſon doth not contract
to their mutual Advantage and Gain, but likewiſe the Guilt of Theft, who happening, not through
of diſpenſing more largely in the Works of Hu- his own Fault, to be in extreme Want, either of
manity and Beneficence; whence their Diligence neceſſary Food, or of Cloaths to preſerve him
had procur’d them a greater Share of Goods than from the Violence of Weather (2) and cannot
others: Whereas before, when all Things lay in obtain them from the voluntary Gift of the
common, Men could lend one another no Ali- Rich, either by urgent Intreaties, or by offering
ſtance but what was ſupplied by their Corporal ſomewhat equivalent in Price, or by engaging
Ability, and could be Charitable of nothing but to Work it out, fhall either forcibly or privily Re-
of their Strength(b). Farther, ſuch is the Force of lieve himſelf out of their Abundance ; eſpecially
Propriety, that the Proprietor hath a Right of deliver- if he do it with full Intention to pay the Value
ing his Goods with his own Hands; even ſuch as of them, whenever his better Fortune gives hini
he is oblig'd to give to others. Whence it follows, Ability. Some Men deny that ſuch a Caſe of
that when one Man has aay thing owing from Neceſſity, as we ſpeak of, can poſſibly happen.
another, he is not preſently to ſeize on it at a ven But what if a Man ſhould wander in a Foreign
ture, but ought to apply himſelf to the Owner, Land, Unknown, Friendleſs and in Want, ſpoil'd
defiring to receive it from his Diſpoſal. Yet in of all he had by Shipwreck, or by Robbers, or
caſe the other Party refuſe thus to make good his having loſt by ſome Caſualty whatever he was
Obligation, the Power and Privilege of Propriety worth in his own Country; Mould none be found
doch not reach ſo far as that the Things may not willing either to relieve his Diſtreſs, or to hire
be taken away without the Owner's Conſent, ei- his Service, and ſhould they rather, (as it com-
ther by the Authority of the Magiſtrate in Civil monly happens) ſeeing him in a good Garb, fu-
Communities, or in a State of Nature, by Violence ſpect him to beg without Reaſon, muſt the Poor
and Hoftile Force. And tho' in regard to bare Creature ſtarve (3) in this miſerable Condition?
Natural Right, for a Man to relieve another in It may be objected indeed, that in Proverbs vi. 30,
Extremity with his Goods, for which he himſelf 31. he is call'd a Thief, and pronounced obnoxi-
hath not ſo much Occaſion, be a Dury obliging ous to the Penalty of Theft, who ſteals only to
only Imperfectly, and not in the manner of a Debt, fatisfy his Hunger. But whoever cloſely views
ſince it ariſes wholly from the Vertue of Humanity; and conſiders that Text, will find that the Thief
yet there ſeems to be no Reaſon why by the ad- chere cenſur'd is neither in ſuch extreme Neceſſity,
ditional Force of a Civil Ordinance, it may not as we are now ſuppoſing, nor ſeems to have fal-
be turn'd
n'd into a ſtrict and perfe& Obligation. len into his needy Condition meerly by ill For-
And
this Selden obſerves to have been done among tune, without his own Idleneſs or Default : For
the Fews : Who, upon a Man's refuſing to give the Context implies, that he had a Houſe and
(4) Lib. 4. C. 4.
(6) See Ephef. iv. 28. der The State. The idea of the
920 1919 190
S: V. (1) Aut qui. Divitiis ſoli incubuere repertis,
Nec partem poſuere fuis, &c. 13 Virg. Æn. VI. 618, 611.
(2) If in a Caſe of Neceſſity a Man may innocently do ſome Wrong to another in his Perſon, ſo far as to put him in Dan.
ger of his life to ſave his own, by a much Aronger Reaſon will he be permitted, in like Cafes, to take away or deſtroy the Goods
of another, which are of much leſs Value than Life and Members. Tbomaſ
. Inſtit. Juriſprud. Div. Lib. 2. Ch. 2. S. 168. Note 1.
and Titius's Obferv, CXLVII.
bat
(3) Mr. Hertius has alledged an Example here, which is this; When the Magiſtrare, in a grcat Scarcity of Proviſions, con-
ſpires with thoſe that will
not open their Granaries, that they may fell their Corn the dearer, or at leaft he neglects to hinder
Monopolies
, and puniſh the Barbarous Cruelty of thoſe who to enrich themſelves, care not how many Men they bring to
sd nuppur odo delamos o DITU VUC
Goods
Beggary

208
Of the Right and Privilege of Neceſſity.
BOOK II.
-וע
to fome Perſon of the Country,2,be Danger.
own him , ,
Goods ſufficient to make (4) Sevenfold Reſtituti. Neceſſity? Yet this Grotius doth by no means al-
on; which he might have either Sold or Pawn'd; low. Again, Grotius requires Reſtitution to be
a Chapman or Creditor being eaſily to be mer made in theſe Caſes : But I am oblig'd'to no ſuch
with in Times of Plenty and Peace. For we have Duty, when I take a Thing
no Grounds to think, that the Fac there menti- Right. Beſides, he forgot to mention how dif-
ond is ſuppos’d to be committed, either in the ferent the Caſe is, when a Man falls under ſuch
Time of War, or upon account of the extraordi- Neceflity by his own Sloth or Negligence, and
nary Price of Proviſions. Beſides, this Thief was when it comes on him without his Fault. Which
faulty on another Account : For if he had not Diſtinction being omitsed, a Right ſeems to be
wherewithal to maintain himſelf, the Laws oblig'd given to idle Knaves, whoſe Vices have brought
him to ſell himſelf for a Slave (a). 9; 1013
SIT E them into Want, to ſeize forcibly for their own
W the Uſe the Fruits of other Mens honeſt Labours
VI. Grotius (b) propoſes another way of ſolving and ſo continuing their Poverty and their Lazi.
the Difficulty under our preſent Debate: He ſays, neſs together, to put a Neceflíry on Induftrious
that the firſt Introducers of diſtinct Proprieties muſt Perſons of feeding ſuch uſeleſs Bellies for No-
be underſtood to have done it with this Exception thing. But all Wife Men, as they allow ſuch as
and Limitation, that the Right of this Propriety are innocently Miſerable to deſerve Aliſtance
excluding others from the Uſe of every Man's and Relief; ſo they adviſe us to pack off Mendi-
proper Goods ought then to expire and to give cant Drones and Lubbards, with the old Anſwer
place, when another cannot poflibly without that the Ant gave the Graſhopper in the Fable (c!
making uſe of them, be ſuſtaind or preſervd : Since then it is lawful for every Proprietor
r to di
And conſequently, that in ſuch a Caſe of Neceſſity ftinguiſh between fuch as are Indigent out of
a thing poſſeſs’d in Peculiar, when another Man's Misfortune, and ſuch as are reduc'd to the fame
Life cannot be fav’d without it, is turn'd again Condition by their own Demerit and Neglect;
into Common. Or, what amounts to the fame 'ris plain, that he has ſuch a Right over his own
Purpoſe, that when Men originally inſtituted-ſe- Goods, as ſhall in ſome meaſure prevail even a-
parate Proprieties, they agreed by Mutual Cove- gainſt a Perſon in extreme Neceſſity : So far at
nant, to forbear uſing the particular Goods of leaſt as that he ſhall have the Privilege of judging,
each other, any farther than the Owner ſhould whether the Man be an Object worthy of his Re.
give leave : Yet fo as to make it allowable in lief or not ; that it may be in his power to oblige
extreme Neceſſity, for a Man to ſeize on any and win a neceſſitous Perſon by his ſeaſonable
thing abſolutely-requiſite for his Preſervation, as Succours : For nothing raiſes the Value of a Kind-
if it ſtill lay in its primitive Iridifference and neſs ſo much as its being done for the Removal of
Community. For ſince in Written Lows, that In an extreme Diſtreſs? But all this Merit and Ob-
terpretation is to be follow'd which recedes the ligation is cut off, when we give another, only
leaſt from Natural Equity, he preſumes this will what he might otherwiſe, as his own Right and
hold more ſtrongly in regard to Cuſtoms, which Due, violently take from us. q po e
obtain only by tacit Agreement. And ſurely it We think therefore, that this point of Diſpute
muſt be in the higheſt Degree Equitable, that will be more clearly determin'd by the Principles
a Man be permitted to ſave this Life, by uſing and the Method which we have laid down: that
any Thing at hand, when all other Means failis, By ſaying, in fore, that the Wealthy Perfon
him.
oothieu is bound to relieve him who Innocently wants,
But this Expoſition lies open to ſeveral Ex- by an Imperfect Obligation ; to the performing
ceptions and Difficulties : For if Neceſſity gives a of which though regularly no Man ought to be
Man a Right of ſeizing on the Goods of others, compelld by Violence, yet the force of Extreme
as if they lay in Common, what hinders but Néceſſity is ſo great,
, as to make theſe Things re-
that, if he have ſufficient Strength, (1) he may coverable by the ſame Means 'as thoſe which are
take them from the Owners, when they theme truly and rightfully due : that is; ' By making
felves are at the fame time pinch'd with the like Complaint (2) to the Magiſtrate, or when the
Joia) See Levit. xxv. 39. Selden L. 6. C.7. Nothing can be drawn to the contrary from Prov. xxx. 7. Other Authors give this
Example of Extreme Neceflity. A man being in an unknown Country, is attack’d' by an unjust Aſſailant, and cannot otherwiſe fave
himſelf than by freedy Flight. He band, o Herre
which he ſees no means of
reſtoring, aus wed becauſe he is Ignorant of the owner, as becauſe he may be obligd to ride far to eſcape the
(6) L. 2. c. 2. 1.6. (c) And thus in Plutarch, Apothegm.) when a Captain of Coafting Robbers ma
made an Inroad
into the Territories of Lacedemon, and being taken; urgd in his own Defence, That he was neither able of himſelf to pay his
Companions, nor could prevail with thoſe that had Money to fupply him; and therefore he ventur’d to take it hyrForce
. Cleomenes
call'd this Proceeding, our top G ni moyneid, A very compendious Wickedneſ. Add. Pandulf. Collenut. rer. Neapoldit. l. 5. p. 373.
(4)-Grotius in his Nores upon this Text a firms that it ought to be rendred, If he be taken-in-the-Feet-he thali reſtore feverfold.
i. e. He ſhall not be oblig'd to any thing but Reftitution, according to the Law_preſcribed, which ſuppoſes always, that the
Thief hath ſomething, ſince he muſt reſtore out of it what he has taken. See Exod. xxii.
S. VI. (1) I do not perceive how this can follow from Grotius's Hypotheſis, It is certain, that when a Proprietor can't ſpare
the Bread, for Example, or Corn, which he hath for his preſent Uſe himfelf, 'tis not permitted to any other, tho? he be in
never ſo great Neceſſity, to take them away from him by Force. But yet the Maxim is no leſs true, which ſuppoſes, that in
one is for
only who is in actual Poffefsion of it, altho" the
is his
, and we can't take any thing from him but when he hath an Overplus, and we can't otliér wife find any Means to lupply
our Wants. See what is ſaid Lib. 4. Chap. 4. Note 2. So that our Author has done well to depend upon other Reaſons, which
he alledges afrerward, and which are ſufficient for his purpoſe.
-fi(2) This is the only Refuge that they have, who believe that the greateſt Neceflity caffor"authorize any Mañ ro take another
Man's Goods, of himſelf; but as Mr. Thomaſius has obſerved, Inſtit. Juriſp. Diu. Lib. 2. Chap. 2. $. 171, they acknowledge ta-
citly, that'he thae is reduced to that troubleſome Neceſſity, has a full Right to require what he wants for only thoſe things
which are due by virtue of a compleat Obligation, can be the Subject of the Magistrace's Deciſion.
Urgency
He finds ready at
belonging
an inrost

Property
V1
;
Chap. VI. Of the Right and Privilege of Neceſſity. 209
As
Urgency of the Diſtreſs cannot allow time for is much more proper and more agreeable to che
ſuch an Expedient, then by ſeizing what is ready Point; Melior est cauſa ſuum non tradentis, quam
ac hand, either in a ſecret or in an open manner. poſcent is alienum. He who refuſes to deliver what is his
Now the chief reaſon why we affirm thoſe things own, has a fairer Cauſe than be who demands what is
which proceed purely from the Virtue of Huma- another Man's.
nity, to be owing only by an Imperfect Right, is Thirdly, We lay it down as an indiſpenſable
that Men may be allow'd both an occaſion of Condition, that Reftitution is to be made if pof-
ſhowing their voluntary Propenſion to the Dif- fible ; eſpecially if the Thing taken were of great
charge of their Duty, and likewiſe of endearing Value, and ſuch as the Owner could not well
others to them by their voluntary Benefits. But part with without ſome Conſideration. But if
now if a Man ſhould deſpiſe theſe conſiderations, the Thing were ſmall and inconſiderable, and
mult a poor neceſſitous Creature be familh'd be the Loſs ſo light that the Owner's Fortune could
cauſe he cannot prevail on the Unmerciful Miſer? not feel it, 'twill be ſufficient, when opportunity
Certainly ſuch an Inflexible Churl ought rather ſerves, to ſhow that we ſhould not have been
to be depriv'd of his Gift and of his Merit toge- wanting in Graticude, if his Greedineſs would
ther; ſince he had not Heart enough to venture have given us leave to be obliged to him.
on an Act of common Humanity.
for Grotius's requiring (s) Reſtitution, it ſeems
From what has been hitherto offer'd it is eaſy not to ſuit with his Hypotheſis. For if upon a
to gather the Reaſonableneſs of thoſe Exceptions Caſe of Neceſſity the Right of Primitive Commu-
which Grotius ſubjoins to his and our main Aſſer- nion returns, ſo as to give a Man a juſt Title to
tion. For ſince nothing but inevitable Neceſſity the Goods of others, then Reftitution can on no
can juſtify the taking by force what is owing only account be deſir’d or demanded. But ſince this
upon an Imperfe&t obligation, in the firſt place it is is neceſſarily to be made, it appears that the Right
clear, that all fairer Courſes are firſt to be tried, of the Owner doth not expire thro' the Necef-
as complaining to the Magiſtrate, begging and fity of the Petitioner ; but that he ought volunta-
intreating, promiſing Reſtitution if we are ever rily to have given Relief, either gratis, or upon
able, or offering to diſcharge the Debt by equi- Receipt of the Price of the Thing, or any other
valent Labour and Service. Secondly, This Li- Compenſation. Which Duty when he neglects
cence can by no means take place, when the to perform, then indeed the Neceſſity of the Di-
Owner of the Thing which we want, lies under ſtreſs’d Perſon gives him a Right of taking the
as great a Neceſſity as we ourſelves: On the con- Thing by Force, but ſtill with the ſame Burther,
trary, we ſuppoſe the Owner to abound. This or under the ſame Condition which the Owner
Caution or Exception may be extended farther, might have impos'd on him; that is, either to re-
and we may ſay, that a diſtreſs’d Perſon cannot fund the Value hereafter, or at leaſt to make a
fairly take a Thing from the Owner without his grateful Acknowledgment of the Benefit.
Conſent, if it be only manifeft, that upon the
Loſs of that Thing the Owner will hereafter fall VII. If we look on other Authors, we ſhall
into the like Indigent Condition. For in theſe find them much divided about this difficult Point.
Caſes 'tis fit Charity ſhould begin at home. That The fourth Chapter of the fifth Book of the De-
Rule of Civil Law which Grotius applies to the cretals (b), enjoining Penance to Thieves who ſteal
preſent Buſineſs, that when the Confiderations on both out of Neceſſity, is by the Gloß expounded of little
fides are equal, the Caſe of the preſent Occupant (3) is to and indifferent Neceſſity, not of ſuch as is Extreme
be preferrd: doth not ſeem ſo exactly to hit the and Inſupportable. Covarruvias (c) delivers his
Purpoſe. For that Maxim only imports, that Opinion almoſt to the fame purpoſe as Grotius.
Judgment ought to be given for the Poffeſor, The Reaſon (ſays he) wby a Man in extreme Neceſſity
whilſt the Claimant's Title and his are alike dil- may, without incurring the Guilt of Theft or Rapine,
putable. But in the Matter before us, the Poffef- forcibly take Goods of others for his preſent Relief, is
;
ſor's Right and Title are granted, and the only becauſe this condition renders all things Common. For
Queſtion is, whether I am obligʻd by the bare it is the Ordinance and Inſtitution of Nature itſelf,
Law of Humanity, to periſh myſelf for the fake that Inferior Things ſhould be deſign d and directed to
of preſerving another : which is a Paradox that ſerve the Neceſſities of Men. Wherefore the Diviſion
no Man will pretend to maintain. The other of Goods afterwards introduc'd into the World, doth not
Sentence which Grotius applies out of Cürtins (a), derogate from that Precept of Natural Reaſon, which

(a) L. 7. C. 1.
(b) Cap. fi quis X.de furti. (c) P. 2. f. 1. n. 3.
(3) But this is only an Accomodation which Grotius makes of a Maxim of the Roman Law, In pari causâ poffesor potior haberi
debet. Digeſt
, Lib. 1. Tit. 17. De diverſis Regulis furis. Leg. 128.
(4) Mr. Van der Muelin (in his Commentary, Tom. 2. p. 88.) affirms, that Grotius pretends to ſpeak of the Right of Vlage,
and not of the Right of Property, which, according to him, are ewo diſtinct things ; ſo that a Man may have a Right to uſe a
Thing, which for all that may properly belong to another. But this doth noç take off the Difficulty for the Queſtion is to
know upon what the Right of Uſage is founded ? Grotius delivers himtelf fully, (num. 2.) “ That the Ancient and Original Right
which every Man hath to the uſe of all Things revives in the Caſe of Extream Neceffity, as if they remained in common; for ſo
as long as a Community of Goods continued, no Man was obliged to reſtore what he had taken for his Uſe, becauſe nothing
belonged to one more than to another, and every Man had an equal Right to uſe every thing, inſomuch, that if a Man were
s ſeized of a greater quantity of Things than he had an abſolute need of, by himſelf, every other Man had a full Right to take
"s from him by force whatever was ſuperfluous, and neceſſary for his Support in extream Want.” On the contrary, Grotius
alſo openly rejects the Opinion of them who eltabliſh the Right of taking the Goods of another in the like Cafe, upon this
Foundation, " That every Proprietor is obliged, by the Rules of Charity, to impare to ſuch as are in Neceffity.
»
(num. 4.)
So that I see not how the Hypotheſis of that Great Man can be made good, and preſerve itſelf from falling in with the Princi-
ples of our Author, who has produced a Solution more natural and coherent.
Еe
Suggeſts
210
Of the Right and Privilege of Neceſity. BOOK II.
1
ons.
Suggeſts that the extreme Wants of Mankind may be determining it, include no other Turpitude or
in any manner remov'd by the uſe of Temporal Polleji- Indecency than ſuch as Perſons of Breeding and
There is alledgʻd a Paſſage of St. Ambroſe Quality are guilty of, when the Severity of Fa-
from Gratian, Decret. c. Sicut. hi. diſt. 47. It is the mine compels them to feed on the baſeſt and moſt
Bread of the Hungry which you detain : It is the Rai- filthy Meats. And then the Rule about Conve-
ment of the Naked which
you
lock
up. Perefius (a), niencies and Inconveniencies is beſide the Que-
arguing on the ſame fide alledges, that in this ftion, which only ſuppoſes fome little Matter to
Caſe a Man is compell’d to the Action by a Force be taken from a wealthy Perſon, who doth not
which he can't reſiſt ; and then, that the Owner's feel the Loſs, to keep another from periſhing by
Conſent may be preſum'd on, becauſe Humanity the Extremities of Hunger or of Weather. The
obliges him to fuccour thoſe who are in Diſtreſs. fame Author obſerves, on (2) the Lex Rhodia de
Beſides, he obſerves, that the Neceſſitous Perſon jaetu, that tho' for the Publick Benefit, in a time
doth not properly take the Goods which were of Scarcity, every Man is oblig'd to bring what
another Man's, but which lay in common: And Corn he has by him into the Common Market,
yet he is bound, when he has obtain'd delive- yet People are not hereupon impower'd to carry
rance from his Want, to make fair Reſtitution. off what they pleaſe, becauſe they are in Want,
Anton. Matthæus (b) is of Opinion, that a Diſtincti- and others abound; but the whole Buſineſs is to
on ſhould be made in this Cafe between the Crime be left to the Care and to the Direction of the
and the Puniſhment ; the Crime of Theft, he ſays, Magiſtrate. But muſt the Poor therefore be con-
is not taken off even be extream Penury, but he tent to ſtarve, when the Magiſtrates neglect to
would have the Puniſhment either wholly remitted, make due Proviſion for their Suſtenance ?
or conſiderably mitigated and abated. Now that As to what ſome urge, that there doth 110t ap-
the Crime of Theft is committed even under pear any Diffenfation of the Law in this Matter, 'tis
theſe Circumſtances, he endeavours to prove from an Objection that may be eaſily ſpar'd. For fuf-
the Definition of Theft in the Civil Law, which ficient Reaſons have been given why we may well
he makes to reach this Action : Theft, the Em- preſume, that the Law which forbids Theft is not
peror Juftinian tells us, is a fraudulent ſeizing on to be extended to the preſent Caſe.
the Goods of others, for the ſake of making a Gain of
them. But we may fairly plead, (in Oppoſition VIII. Laftly, The Danger or Neceſſity of our
to Matthæus ) that neither of theſe Imputations own Goods ſeems to allow us the Privilege of
can fall on the Fact which we defend. For how deſtroying or of invading thoſe which belong to
can this be term’d a fraudulent ſeizing on another other Men: Yet with theſe Proviſo's, that the
Man's Goods, when both the Owner lay under an Danger did not happen thro' our Fault; that we
imperfe&t Obligation of giving the Thing deſir’d, cannot find a more convenient way of (1) remo-
and the other Perſon had a Right, by Virtue of ving it ; that we do not ruine a more valuable
his preſent Condition, to poſſeſs himſelf of it by Thing of our Neighbour's, for ſaving one of our
the moſt convenient means he could ? Nor can own, inferior in Price and Conſideration : that,
he well be ſaid to take a thing of another Man's in caſe the other Thing had not been loſt but for
for the ſake of making a Gain of it, who deſigns our fake, we pay the Price of it ; and laſtly, that
it purely for the Relief of his extream Diſtreſs, if what belong’d to our Neighbour muſt have
with full Wiſhes and Reſolutions to reſtore, or to otherwiſe been deſtroy'd, together with ours, if
repay it as ſoon as poſſible. That part of his Ar we had not preſerv'd (2) the latter by making a-
gument is meer Bravado, where he tells us, that way with the former, that then we conſent to
no Violence can compel a Wiſe and a Good Man bear a part in the Damage. On this Foundation
to defile himſelf wilfully with any uncomly Adi- is grounded the Equity of the Rhodian Law de
on: And that in theſe Caſes every one ſhould, as jactu, by (3) which it was provided, that if for
Tully (c) (1) adviſes, rather patiently endure his own the lightening of a Ship the Men were compelld to
Inconvenience, than treſpaß on the Conveniencies of others. throw any Goods overboard, the Loß ſhould be made up by
Now beſides that 'tis an eaſy matter to talk Philo- general Contribution, ſince it happen'd upon account of
fophically, whilſt we do not ourſelves feel the the general Safety (e). Thus too if my Veſſel
Hardſhip any farther than in Speculation (d); the driven upon the Cables, or the Nets belonging to
Fact under Debate can, according to our way of another, I have Liberty to (4) cut them in Pieces,


be
1.
(a) Ad Tit. Cod. de furtis, f. 3.
(b) Ad. 1.47. D. tit. 1. f. 7. (c) Ofic. l. 3: (d) Vid. Oppian Halieut.
3. V. 197. (e) Vid. Tot. titul. together with the Commentators on that and on the Naval Laws.
S. VII, (1) Tully's Words are; Suum cuique incommodum ferendum est potius, quam de alterius commodis detrahendum.
(2) The Digeſts have alſo another Law, commanding, that if Proviſions fail at Sea, every one fhould bring out their Store
and leave it in common, Eo magis quod, fi quando ea [Cibaria) defecerint in Navigatione quod quiſque haberet, in Commune conferret.
Lib. 14. Tit. 2. De Lege Rhodia de Jałtu. Leg. 2. S. 2.
S. VIII. (1) We muſt take care that the Way appear ſure. Titius's Obſerv. 148.
maya add, That the Proprietor nor foreſeeing, or before he foreſaw that Neceſſity, did not conſent to the Loſs of
(3) The Words of the Digeſt are, Lege Rhodia Cavetur, vt fi levanda navis gratiâ jałtus mercium fa&tus est, omnium contribu-
tione ſarciatur, quod pro omnibus datum est. Lib. 14. Tit. 2. De Lege Rhodia de jału, Leg. 1. See the Treatiſes of divers Au-
thors. De Legibus Nauticis, as alſo Mr. Daumat's Civil Laws in their Natural Order. Part 1. Lib. 2. Tit. 9. Se&t, 2. $.6, doc.
(4) Item Labeo fcribit (ſays the Digelt) ſi cum vi ventorum navis impulſa eſſet in funes Anchorarum alterius, & Nauta funes pre-
cidiffent, fi nullo alio modo, niſi præciſis funibus explicare ſe potuit, nullam actionem dandam. Idemque Labeo G Proculu's, o circa
Retia Piſcatorum, in qua navis inciderat, aſtimarunt. Planè fi culpâ nautarum id faftum effet, Lege Aquilia agendum. Lib. 9.Tit.2.
Ad Leg. Aquil. Leg. 29. $. 3. See Mr. Noodt's excellent Treatiſe, Ad Leg. Aquil. Chap. 18. in fin, and Chap. 29.
(2) We
his Goods.

if
CHAP. VI.
Of the Right and Privilege of Neceſity. 2II

to
his own
if I cannot otherwiſe get clear. And if my own that it is lawful for him who wages a Just War,
Neglect did not bring me into that Trouble, I to poffeſs himſelf of a Place ſeated in a Country
am to anſwer but for half the Coſt. Thus in a that is at Peace with him ; if there be certain
Fire, I may pull down my Neighbour's Houſe for (and not only imaginary) Danger, that the Ene-
the Security of inine, if I am willing to make my will otherwiſe ſurprize it, and from thence
good all that he ſuffers by the Miſchief. For tho' annoy him with irreparable Miſchief:
in (5) one of the Roman Conſtitutions (a), ir is he take nothing but what is neceſſary
determin’d, that in caſe the Fire had actually Security, as the bare Cuſtody of the Place, leaving
reach'd to the Houſe that was pulld down, the both the Juriſdiction and the Profits to the right
Perſon who procur'd it ſhall not be Reſponſible ; Owner; and fully purpoſing to reſtore the Cuſtody
yet the common
Opinion inclines more to Equi- too, ſo ſoon as the Neceflity that brought him
ty (b), which aſſerts, that upon ſuch Demoliſh- thither ſhall ceaſe. To theſe Conditions it ſhould
ment of one Houſe for the Security of many, the be added, that the Lord of the Place is firſt to
Damage ſhall be repair’d by thoſe Neighbouring have frequent notice given him, and to be deſir'd
Inhabitants who thus eſcap'd the Danger; though that he would himſelf ſecure and defend the Place,
the Houſe which they in this manner ruine hath upon a Promiſe from the other Prince to defray
not been touch'd by the Flames. For it would be the Charges; or that he would demoliſh and ren-
indeed unreaſonably hard, that when (6) I have der it untenable, if he thinks that the moſt pro-
ſav'd my own Concerns by deſtroying thoſe of per Method. And another equitable Caution is,
another Man, the whole Loſs ſhould be thrown that in Caſe the new Poſſeſſor has expended any
upon him, whilſt the whole Advantage lights on Sum in raiſing Works and Fortifications, the pro-
Rules and Principles the per Lord is not oblig'd to refund, unleſs he in-
Roman Lawyers deduce moſt of their Doctrine tended to have built the fame Defences himſelf ;
concerning that kind of Damage which they call in as much as the other did not make it his Aim
Damnum Infectum (c) (7). Thus, for Example, if purely to improve the Place, but chiefly to ſecure
my next Neighbour has a Ruinous Houſe, very his own Territories.
his own Territories. Becler, in his Notes on this
likely to tumble to the Prejudice of my Effects, Paſſage of Grotius, well obſerves, that it is appa-
he ſhall be oblig’d to give me Security for an rent from the Uſage of all Ages and of all Nati-
ſwering all Damages that I ſuſtain ; and if he re ons, that no one thinks himſelf oblig'd to allow
fuſe this Condition, upon applying myſelf to the another thus to ſeize on any Fort or Place of his,
Prætor, I obtain (8) an Edict, impowering me to (10) if he be able to hinder his Attempt. And
enter the Ruinous Place. On the fame account that therefore if the other do actully take Por-
they affert, that (9) in caſe a Man has a Field feffion, the Fact is ſuch as may admit of eaſy
ſurrounded in ſuch a manner on all ſides, by the Pardon, but not ſuch as can be fairly and ſtrictly
Lands of others, that he cannot get to it without defended on the Grounds of Natural Law. To
ſeemingly committing a Treſpaſs ; the Borderers which purpoſe we may conſider farther, that 'tis
Thall be compell’d by the Judge to grant him Paf- very probable the Enemy may hence entertain a
ſage, at leaſt upon the offering of a reaſonable Suſpicion, that the Lord of the Place is in ſecret
Conſideration.
Confederacy againſt him; and ſo the whole
Grotius (d) makes this farther Deduction from Burthen of the War may be eaſily devolv'd on
the Do&rines we have been now laying down, the third Party. And tho' the Enemy be well

1
XXXIX. tit. 11.
(a) L. 7. 1. 4. D. quod vi aut clam. (b) Add. L. 49. f. 1. D. ad L. Aquil. (c) De Damno Infe&to. Vid. Digeſt.
(d) L. 2. C. 2. f. 10.
(5) The Words of the Digeſt are; Si perveniſſet [ignis, eo uſque ] abſolvi eum oportere quoniam nullam injuriam aut
Damnum dare videtur, æquè perituris edibus. Lib.43. Tit. 24. Quod vi aut clam, Leg. 7. $.4. See Lib. 9. Tit. 2. Ad Leg. Aquil.
Leg. 49. $. I. and what Mr. Titius ſays in his Obſervations in Compend. Fur. Lauterbach. Obſerv. 420, as alfo Mr. Noodt. Al
Leg. Aquil. Chap. 19.
(6) Mr. Titius hach reaſon to ſay, that theſe Rules are good in Speculation, but the Application is very hard, and almoſt
impracticable in Civil Societies. Indeed, we can't for the moſt part be affured, that he who hath beat down his Neighbour's
Houfe, had reaſon to think that he could ſave his own that way, and that he was obliged to it by Neceſſity; for without this
how can we determine, whether he ought to make good the Damage? Moreover, Burnings almoſt always happen by ſome
Fault, or at leaſt by Imprudence and Negligence, and
very often we know not whom to charge them on, or how they began;
and if the Author be ſometimes diſcovered, 'tis found uſually that he is unable to make up the Damages of ſuch as have ſuffered.
Laſtly, when the Fire is come by meer chance, we can't exactly tell how the Neighbouring Houſes can be preſerved from the
Fire by the demoliſhing of one already beat down, and fo'tis impoſſible to ſtate exactly who are bound to make good the Da.
mage, and how much each ſhall contribute. Experience alſo proves, that upon theſe fad Occaſions, they who received the
Damage are conſtrained to bear it themſelves, unleſs the way of Reparation be fixed beforehand by fome Agreement, or Order
of State, or the Bounty of others affords them a voluntary Relief. The Order therefore eſtabliſhed in ſome places, that the
Damages that come by fuch Accidents ſhould be ſatisfied by the Publick, and ſo every one is obliged to contribute to the Relief
of the Miſerable, is highly commendable, Obſerv. on Pufendorf Cl. and on Lauterbach CCCCXX, It is alſo a wife Eſtabliſhment,
and will be of excellent Uſe if it be well managed, which has been lately made in Pruſſia, where all ſuch as have Houſes are
obliged to pay ſome ſmall Annual Rent to the Directors of the Fire-Cheſt, where there is a Bank made up of ſuch Contributi-
ons, which are deſign’d to make good the Damages of ſuch Owners of Houſes as are burnt, according to the Valuation made of
them, and according to which they pay that Rent.
(7) See Mr. Daumat's Civil Laws in their Natural Order. Part 1. Lib. 2. Tit. 8. Sect.
(8) So the Digeſt ſays, Si intra diem d Prætore conſtituendum non caveatur, in posledionem ejus Rei mittendus eſt. De Damno
infecto
, doc. Leg. 4. S. I! See Titius's Obſervat. on 1. auterbach. 989.
(9) They build upon this Law, to which I have elſewhere referred, Lib. 3. Chap. 3. §. 7. Si quis Sepulchrum habeat, viam
autem ad sepulchrum non habeat, do à vicino ire prohibeatur Præſes compellere debet, juſto pretio ei itur preſtare. Digeft.
Lib. 11. Tit. 7. De Religionis, &c. Leg. 12. init.
(10) This has place no leſs, when the Owner of the Place has no Power to defend himſelf, for if he can and doth not, 'cis
the Sanie as if he gave Paſſage to his Neighbour's Enemy; fo that this laſt may look upon him himſelf as a new enemy.
ſatisfied


3.
212
Воок II
Of the Right and Privilege of Neceſſity.
facisfied that the Place was ſeiz'd without the caſe, it can never be adviſable for a Man to
Leave or Concurrence of the Lord, yet if he admit more Strangers into his Houſe, than he
reſolve and endeavour to diſpoſſeſs thoſe who can conveniently get rid of when he pleaſes:
hold it, the Innocent Prince cannot but feel Since otherwiſe he is under a Neceſſity of ber
ſome part of the Calamities of Arms; which if ing at their Diſpoſal; and muſt perhaps be con-
he keeps off by any Means, he cannot juſtly fall tent to walk out of Doors, and to leave all to
under Reprehenſion. And thus too in a leſſer his New Maſters (11).
(11) There is not the leaſt difficulty in the Example alledged by Grotius, in the ſame place, concerning them who having
need of a Veffel to ſave themſelves, or defend themſelves, take the firſt they meet, and uſe it upon the Conditions required.
See Xenophon de Expedit. Cyri. Lib. 5. Chap. I. and Mr. Hertius's Diſcourſe de Colliſione Legum. Se&t. II. S. 14. in Tome 1. of
his Opuſc. and Comment.
Воок
Samuel Puffendorf
OF THE
L AW of NATURE
AND
NATION S.
BOOK III:
CH A P. I.
That no. Man be burt ; and if a Damage be done to any Man, that
Reparation be made.
1. That no Man ought to do any Da. VI. How many ways a Damage may be
image to another, or his concerns.
done.
II. That if any be done, it ought to be VII. An Example of Reparation in a
Repaired.
Murderer.
III. What a Damage or Hurt is. VIII. In one that has maimed another.
IV. Who are they that do an Hurt. IX. In an Adulterer,
V. How ſuch as hurt others are obliged. X. In a Raviſher.
XI. In a Thief.
7
HAT Duties the Law of Nature en- of abſolute Duties, or ſuch as oblige all Men antes
joyns a Man to Exerciſe towards cedently to any Humane Inſtitution, this ſeems
himſelf; and what Indulgence, what with Juſtice to challenge the firſt and nobleſt Place,
Licence or Favour it allows him in that no Man hurt another; and that in Caſe of any
the Preſervation of his own Perſon or Goods, we hurt or damage done by him, he fail not to make Re-
have hitherto endeavour’d to ex- paration (1). For this Duty is not only the wideſt
(*) B. II.
plain (*). We may now paſs on to of all in its extent, comprehending all Men, on
thoſe other Natural Precepts which the bare account of their being Men; but it is at
contain the Duties we are to practiſe towards other the ſame time the moſt eaſie of all to be perform’d,
Men. Theſe we have formerly divided into Abſo- conſiſting for the moſt part purely in a Negative
lute, and Hypothetical or Conditional. In the Series Abſtinence from Acting; except that its Asliſtance
Mr. Barbeyrac's NOTES on Chapter I. p. 292.
(1) Par. $. 1. Not that they are always independent upon every Humane Act or Eſtabliſhment. Our Author incimates the con-
trary clearly at the end of this Paragraph, in numbring up the things to which this Maxim extends. No Man can be ignorant, that
we ought not to neglect ſuch Duties of Humanity, as concern Bargaining, as for Example, to refuſe to ſell any Man what he
Stands in need of. But the Reaſon why he calls thoſe Duties, which he treats of in this and the following Chapter, Abſolute, is
becauſe thiey are the Natural Conſequence of the Univerſal and Original Conſtitution of Mankind, and ought to be paid to all Men,
though they have no other Relation to us, but a bare Similitude of Nature. Whereas conditional Duties always ſuppoſe ſome Hu-
male Act, Agreement, or other Accident, and oblige only under certain Circumſtances, and with relation co certain Perſons.
Nefas eſt nocere Patria, &c. It is a Crime to injure ones Country, and conſequently a Citizen, who is a Member of it.
Then we muſt injure no Man, becauſe every one is our fellow Citizen of the Great City of the World. Do the Hands endeavour
to hurt she Feer, or Eyes the Hands? As therefore the Members of the Body keep a fair Correſpondence with one another for
the Preservation of the who'e : So Men ought to deal Friendly one with another, becauſe they are born for Society, which
can't be preſerved, unleſs all the Parts, of which it is compounded, love one another, and endeavour mucually their own Preſervation-
Sen de Ira, 1. 5. c. 31. Beſides this Pallage, which our Author refers to a little lower, pleaſe to Read, Epift. 95. p. 464. &c. Edit.
Luga Bat. 1672. ard Epiſt. 103.
All Ducies which relate to Society may be comprizid under theſe three Generals. 1. To do evil to no Man. 2. To hin-
decathers from do ng the Miſchie?, which they threaten to do. 3. To do all the good we can fincerely. Theſe three Principles
Field an infinite Nuniber of par icular Conſequences according to the difference of Subjects
. Qur Author ſpeaks here of the firſt,
and of the other civo cogether in Chap. III of this book. "Titius 151.


C. 3.

+ A
is
2
That no Man be hurt
Book III .
;

ز
$ is no
tranſact with me in the Common Offices of
ty; engaging Men to keep thein Sacred and Invis to refer only to Šamage (1) which ſeems properly
the Propriety of any thing is made over to us; lines in an extended Senſe, ſo as to make it take in like-
is ſometimes neceſſary in reſtraining the Lufts and tage all he meets, would be more willing to find the Mo-
Paſſions, when they fight and ſtruggle againſt Rea. ney by Chance, than to take it lng
fon, amongſt which Rebellious Delires, that bound- one who wonld not be letter plens d to enjoy the Fruits
leſs Regard which we ſometimes Thow to our own of his Wickednejs, without the Practice of it (4) (b)
private Advantage, ſeems to be the Principal, and Tully ſays excellently to the faine purpoſe, that for
the Ring-leader. Beſides, it is the moſt neceffary a Man to rob and injure another to promote his own
of Humane Duties, in as much as a Life of Society Advantage, is more againſt Nature, than Death of
cannot pollibly be maintain’d without it
. For fup- Poverty, or Pain (c).
poſe a Mant to do me no good, and not ſo much as to II. Farther, it follows froin this Precept, that in
Caſe a Man be hurt or injur'd by another, in any re-
yèt provided he do nte no harın, I can live with hiin Jpeet
, the Perſon who ſtands juſtly chargʻd as Author of
under ſome tolerable Comfort and Quiet. And in- the wrong, ought, as far as it lies in his Power, to make
deed this is all we deſire from the greateſt part of Reparation (1.) For otherwiſe it would have been
Mankind ; a mutual Intercourſe of good Turns ly- & vain Command not to harın another, if the Party
ing only between a few. But what poſſibility is who actually ſuffers ſuch a Harın, muſt be content
there of my living at Peace with him who hurts to put it up without farther Notice, and leave the
and injures lince Nature has inplanted in e- Offender to enjoy in Peace the Fruit
of his Injury,
very Man's Breaſt fo tender a Concern for himſelf, never obliging him to refund or to reſtore. Fur-
and for what he poſſeſſes, that he cannot but apply thermore, were not Reſtitution made a neceſſary
all means to reſiſt and repell him, who in either Duty, neither would wicked Men ever abſtain from
reſpect attempts to wrong him (a)? Now as the wronging others; nor would thoſe who have been
ſtrength of this Precept is a Guard and a Fence to injured, find it an eafie task to compofe their Mind
thoſe things which we receive from the immediate in ſuch a manner, as to maintain Peace with the
hand of Nature, as our Life, our Bodies, our Mem- Other Party, ſo long as they have obtain'd no Re
bers, our Chaſtity, our Reputation and our Liber- compence or Conſideration for their Sufferings
.
III. The Word
it be it
Goods and
thro' all thoſe Compacts or Inſtitutions, by
wiſe all manner may be offer'd to a
without it they could obtain no Force or Effect
. Man's Body, his Chaſtity, or his good Name. In
Whatever therefore we can on any good Title call this Latitude then, it implies all Hurt, Spoil or Di-
our own, Men are by this Precept forbidden to take minution of whatſoever is already actually, our
away, to endamage or to impair, or any way to own; all Interception of what by a perfect and ab-
withdraw it from our uſe, in Whole or in Part. folute Right we ought to receive, whether ſuch
The faine Duty is virtually contain’d in many Af- Right be the Original Gift of Nature, or whether
firmative Commands, which enjoyning ſome one it be allow'd us by Humane Inſtitution and Law.
poſitive Practice, remove and reſtrain the contrary And laſtly, all Omiſſion or Denial of any Duty, or
Enormities. How plainly the neceſſity of this Law Performance, which others by a perfect Obligation
inſinuates it felf into the Minds of all Men, let ſtand bound to pay us (2). We ſay by a perfect
Seneca's Obfervation inform us. Ask a Common Obligation ; becauſe if the Obligation in the other
Rogue (ſays he) whether he had not rather obtain Party be only Imperfect, and we conſequently have
by honeſt Means, what he now gets by Theft and Vil- only an Imperfect Right, the with-holding of any
Liny: He who makes it his Gain to aſſault and pil- ſuch Due, cannot really be eſteem'd a Damage.

(a) Seneca of Anger. B. II. 6. 31. It it a Sin to injure ones Country; and therefore to injure a Fellow Subject, in as much
as he is a Member of our Country: The Parts ought to be held Sacred, if the whole deſerve our Veneration. And hence like:
wiſe, the Perſon of every Man ought to be inviolable, becauſe every Man is our Fellow-Citizen in the Great and Univerſal
Society. What a Diſtraction would ariſe, ſhould the Hand practiſe Miſchief againſt the Feet, or the Eyes prove Treacherous to
the Hands? As all the Members conſpire in an exact Union and Agreement, becauſe the ſafety of each in particular is the Intereſt
of the whole Body , to particular Men ought to ſpare each other, becauſe we are all born for Society. And no Society can re.
main ſecure, without a firm Love and Concord amongſt the Members of which it is compoſed.
(4) Nay, Cicero further ſays, That there is no Man, who had not rather ſatisfie his deſires without incurring any Guilt, though
he were ſure to go unpuniſhed. For ſays he, Lib. De fin. 3. c. 11. who is there, or ever was of that coverous Temper, or excrd-
vagant Deſires, who had nor much father obtain that, which he is reſolved to get by fomc wicked Means, without making uſe
of them, though he were affured of Impunity.
(b) Sen de Benef. 1. 4. C. 17. (c) De Offic. I. 3. C. 5.
Mr. Barbeyrac's NOTES on §. 2. p. 293.
(1) That a Man be obliged to make Satisfaction for any wrong done to another, it is neceſſary, 1. That the injury done be
forbidden by ſome Law, either Natural or Poſitive. 2. That it was done through our Fault, and that the Will did either directly
or indirectly concur in char Action, by which the Injury is done. 3. Laſtly, That he who has ſuffered no Damage, is no way
conſenting to it. For if he give his Conſent, either directly or indirectly, though with ſome Reſtrictions, the Prohibition of the
Law ceaſes, and conſequently fo does the Obligation to Reſtitution. Our Author ought to have taken notice of. Three Condicions
diſtinctly, becauſe they are the Foundation and Key of all the Chapter.
Mr. Barbeyrac's NOTES on §. 3. p. 294.
(1) In the Roman Law the ordinary ſignification of Damage is this, ſome hure done to our Goods, or Poffeffions, produced in-
mediately by the l'erſon, who is the Author of it. This suppoſition is founded entirely upon the aquilian Law, and ſerves only
to diſtiaguilh the different forts of Actions, which are brought to Juſtice, by their ſeveral Circumſtances. Titius 155. Juftin.
Inft. do Digeft. 1. 33. tit. 2. leg. 3.
(2) From hence it appears by this firſt Law of Natural Right, vir. That we ought to do evil to no Man, that all ſorts of A-
&tions in general
are forbidden, by which any Wrong or Injury is done to our Neighbour in reſpect to all things, to vvhich he has
an undoubted Righr, viz. Murder, Wounds, Blows, evil words, Affronts, Calumnies, Rapine, Extortion, Theft, Pillaging,
Fraud and Force, either direct or indirect, mediate, or immediate, doc. as this Author expreffes himſelf in his Abridgment of the
Duties of a Man and Citizen, 1. 1. c. 6. §. 3. Ic ought alſo further
to be obſerved, that a Damage or Hure may be done to the
Soul by neglecting to inform the Mind, or regulate che Paſſions of ſuch, as we are obliged to inſtruct or reform, and much diora
by leading them on purpoſe into any Error or Vice, from which we ought to reſtrain chem,

proceed
CHAP. I.
3
Or, Reparation to be made.

Perſon whom he thus ſendo o
For ſince all Performances of this kind ought to or Fraud ſhall prejudice or obſtruct him, he may
proceed from the voluntary Motion of ſome vertu- demnand Satisfaction ; tho' not to the full value of
ous Principle in the Giver, and ſince I have no the Office deſired, yet to the value of his uncer-
Power or Licence to exact the Payment of them by tain Expectation (5). And now we are ſettling the
force, it would by no means be convenient that I Notion of Damage, we are farther to remark, that
ſhould think my ſelf Damaged, in not receiving it affects not only the thing it felf, which being ei-
ſuch things as I could not otherwiſe expect, than ther our Poffeflion or our Due, is hurt, deſtroy'd
in the way of free Gift and Benefit. And as I can or intercepted, but likewiſe the Fruits or Profits
not reckon thoſe things amongſt my own which I accruing from the thing, whether they have been
have only a Fitneſs or Capacity to poffefs, ſo I have already received (though then indeed they inay be
no reaſon to complain of injurious Practice, it they valued as particular Goods or Things) or whether
happen to be kept from me. Ariſtotle ſays elegant- they are yet only in Hope and Proſpect
, if the
ly to this purpole, he who out of a narrowneſs of Spi- Owner had a Right of receiving them (a), provi-
rit refuſes to allift another with bis Wealth, doth not ded ſtill a Deduction be made of the Expences, he
bereby increase it, and ſince he has not more, the would have been put to in ſecuring and gathering
leſs. On the ſame Principle is founded the Argu- Charge of the other Party. Now the value of Fruits
ment which Cicero makes uſe of in his Defence of in Expectation riſes and falls according as the time
Plancius, that altho' the other Gentleman Latera- of receiving them is more or leſs diſtant, and con-
nenfis might perhaps be the more worthy Compe- fequently the Iſſue more or leſs uncertain. Thus
titor, yet it was in the Power of the People to paſs the loſing a Field of Corn in the Blade, will not be
him by, and to chuſe Plancius into the Office of rated ſo high as if it had been deſtroy'd in the Ear
Ædile, in as much as neither of the Candidates had Some Conſideration too is allowed for what we call
a Perfect Right to that Honour. It is a Privilege, Civil Fruits. Thus he who fets on Fire another
ſays he, belonging to the very Condition and Conftitu- Man's Houſe (b), is not only bound to rebuild it
;
tion of free States, that they be able by their votes, but likewiſe to make good the Rent, which it
to give to a Perſon, or to take from him what they will. would in the mean time have brought to the Own-
Yet in the ſame place the Orator diſtinguiſheth be- er, Philo Judaus (c) informs us, that in his Nation,
tween what the People could do, and what they ought when a Man had any way damaged his Neighbour,
to do; the Term ought implying that lefs perfect Ob- and done Penance for the fact, he was obliged, be-
ligation, by which we ſtand engaged to the Exerciſe ſides paying to the full Value, to add one filth part
of every Vertue. But here * Grotius more, as a Comfort to the Perſon who had ſuſtain’d
* Lib. II. c. well adviſes us to take heed of confound- the wrong.
17. S. 3.
ing Points which belong not to the ſame Laſtly, it is a clear Point, that all Evils or Mif-
head. For the People in a Commonwealth, who chie's following by a Natural Conſequence froin a-
are obliged to confer Honours on the moſt deſer- ny Damage given, ought to be adjudg’d Parts of it
ving, only by the Rules of State-Prudence, yet in (d) (7). Strabo (e) relates of King Ariarathes of Cap-
caſe they intruſt any perſon with this their Power padocia, that having ſtopt up the little Paſſages,
of chuling Officers, if he prefer thoſe who are leſs by which the River Melas emptied it ſelf into the
worthy (), the others who are paft by, cannot bring Euphrates, that fo covering the greateſt Part of the
an Action of Injury or Damage againſt the Elector. Neighbouring Plain, he might divert himſelf with
Yet the People, by whoſe Deputation he acted, have the Childiſh play of making little Iſlands ; at length
a Right of calling him to an Account for his Pro- the Damms all giving way on a ſudden, the Flood
ceedings, and may require Reparation for any Da- Pour'd it felf fo violently upon Euphrates, as not on-
mage which the Commonwealth hath fuſtain'd by ly to make it carry off part of the Cappadocian
his unworthy Choice (4). And thus to a Citizen Country, and ſome of their Houſes, but to cauſe
endued with Arts and Abilities ſufficient for the great Waſte and Miſchief in the Lands of their
diſcharge of an Office, tho’in reference to obtaining Neighbours, the Galatians : Whereupon the matter
it, he has no Right which will hold good againſt being refer'd to the Arbitration of the Romans, they
the State; yet he has an equal Right with others condemn’d the King in Damages of thirty Talents.
to ſue for it; in which Right if any Perſon by Force (f) (8).
(3) That is to ſay, as Grotius expounds it, He doch nothing contrary to Juftice, properly ſo called. See l. I. C. 7. S. 11, 12.
(4) See Juſtinian's Novels, 128. c. 16. in fine, & 124. of Julian's Abridgment, c. 556. which is quoted and corrected in Gro-
novius's Nores upon Grotius,
(5) Grotius maintains (S. 3.) that the ſame thing takes place when any one hinders another from giving a Legacy, either by
Violence or Fraud, for it being a kind of Right to be capable of a Legacy, it is a real Injury to deprive a Teltator of the Li-
berty or Will which he hath to give any Perſon a Legacy, which he is in expectation of.
(6) Grotius adds, or for the Improvement of the thing. See for the diſtinction of the Fruits, what is ſaid, I. 4. C. 7. §. 3.
(7) So Libanius Pergamen fays, He that gives the Occaſion, muſt be anſwerable for all the conſequences. See Exod. 22. 6.
Digeſt
. I. 9. t. 2. ad leg. Equil. leg 7. S. 7. leg. 27. . 8. leg. 30. $. 3.
(8) The Lasvyers here diſtinguiſh between damnum emergens and lucrum ceſſans, (i.
e.) an emergent Damage, and a ceaſing Pro-
fit. The firſt is the Lofs which one fuffers by the diminiining his Gocds in preſent. The other is the Damage one receives by the
Lors of that Gain which he might make. But we ought alſo to obſerve, that there are ſome Events which are the direct and
immediate Conſequents of the action, from which the Damage proceeded, in ſo much that it may be ſaid, it was the Cauſe
of it, others there are that have a parricular Cau'e independant on that Action, that was the Occaſion of it, or at leaſt had no
relation to it, but by ſome mere Accident. See concerning this the Civil Laws drawn up in their Natural 'order by Daumatius
Part 1: 1b. 3. tit s. where you'll alſo find in the Prefaces to thoſe Titles fome Obſervations very important about the difference
there is between the Damage that ariſes from ſtoppage of Payment, and other forts of Damages and Intereſts.
$a) Vid. 1. 62. f. 1. D. de rei vindic. (6) Vid. l. 5. C. de rei vindic. Add. 1. 22. f. 1. 1. 23. princ. D. ad L. Aquilian. (6) De
(d) See Exod. XXII. 6. I. 27. 1. 8. 1. 30. 1 3. D. ad L Aquil. M. Seneca, 1. 5. except. Controverf. s. (e) L. 22,
() Liban. Progyin. To rapizor thv dipogulis veronzoso mwv xori calde ris nógov. That which gave the Occafion is esteem'd
the Cauſe of al Accidenis that follow. Adil. 7. D. ad L. Aquil. Lex Wiſigothorum, 1. 8. Tit
, 2. c. 1, 2, 3, do tit. 3. C. 3.
FA 2
IV. In



above.
Viltimis.
4
Book II
That no Man be burt;

IV. In ſtating who are to be eſteemid Authors of and who are not, that when any one did not give
Damage, it will be neceſſary to recollect from our real Afliſtance in the Act of Dainage, nor by any
firſt Book, Chap. 5. how many ways the Act of one antecedent Motion or Default, caus'd it to be un
Man may be imputed to another. A Perfon then dertaken, nor came in for any part of the Advan-
may damnifie his Neighbour, not only immediately tage, ſuch a Perſon tho’ by giving any the leaſt occa-
by himſelf, but likewiſe by the Miniſtry of others. fion to an ill Action he contracts a Sin, yet ſhall
And farther, a Damage immediately done by one not be obliged to Reſtitution (2). And hence 'tis
Man, may be chargeable upon another, (who is con- eaſie to conclude on the other ſide who Thall be ob-
fequently obliged to make Reparation, in as much lig’d. Thoſe who inſult over their afflicted Neigh-
as he contributed fomewhat to the Action, either beurs, and rejoyce in their Calamities brought on
by doing what he ought not, or by omitting what them by wicked and injurious Men, are fintul 110
he ought to have done (a) (I). He may ſtand guil- doubt in an heinous manner (b); and yet it would
ty of this Charge in three ways and degrees; for he be abſurd to affirm, that they are bound to repair
may either be the Principal Cauſe, or he niay be ſuch Damages as they delight to ſee. The ſame muft
equally concern’d with the Actor ; or laſtly, he may be ſaid of thoſe who defend, excuſe or praiſe a
be only an Acceſſary, and an Inferior Cauſe of Treſpaſs already committed, provided they do not
all which Caſes this may, in general be obſerv’d, hereby hinder the Duty of Reititution, as likewiſe
that the Perſons thus chargeable are bound to Re- of thoſe who either with Succeſs to ſuch a Fa& be-
Hitution, according as they were either the real fore it is comunitted, or entertain a filent Joy and
Cauſe of the Damages, or contributed to it in whole, Satisfaction during the performance. There is no
or in part. For it otteni happens, that Perſons may ground to build a contrary Opinion on the Paſſage
concur leſs principally to the Fat of another Man, of Cicero (c), which ſome would make uſe of to that
by fome Omiſſion or Commiſſion, and yet that he purpoſe (3). What difference is there, ſays he, be
would moſt certainly have done the ſame Damage, tween him who perſwades a Man to an ill Action, and
whether they had thus concurr’d or no; ſo as to ren- him who afterwards approves of it? Or what ſignifies
der their Concurrence altogether ſuperfluous. Now it whether I would have a thing done, or whether I
here tho they are juſtly puniſhable for the Will rejoyce when it is done? For the Orator imploys
and the Endeavour, yet ſince no part of the pre- this Sentence, not to expreſs his Mind ſeriouſly (4),
fent l'amage flow'd from them, they cannot be re- but to refute an impertinent Objection. And had
quired to make Reftitution. Some indeed are for it been ſpoken never fo gravely, it could not be
bringing off all Acceſſaries at a venture ; becauſe ſtrain’d to high, as to affert the Neceſſity of Repa-
fay they, if theſe had not lent their Counſel or Af ration in theſe Caſes. And therefore Ammianus Mar-
fiftance, there would not have been wanting others cellinus (d) ſeems not very properly to apply this ſay-
to help forward with the Miſchief, and confequent- ing of Tully to the buſineſs of Probus, Præfectus Pra-
ly the Damage had been done without their Means. torio to the Emperor Valentinian, who, as he re-
But this Argument is of no Weight, 'tis fufficient lates, did indeed never command any of his Clients
, on
to make them guilty, if their Aid had any real Et- Servants to undertake an unlawful Action ; yet it be
ficacy in producing the Treſpaſs ; and had thoſe found them to have committed
any Crime, he protected
other Perſons join’d their Hands to the Buſineſs, they and defended them in ſpite of Juſtice it Self, without
too would have been proportionably reſponſible. ever enquiring into the Fact, and without the leaft re-
This Rule then may be fix'd as an Univerſal Stan- gard to Honefly or Truth. For here the dependence
dard, to know who are bound to make Reparation, on ſo great a Patron, added Strength and Boldneſs
a
Mr. Barbeyrac's NOTES on S 4. p. 296.
(1) This ſeems to be contrary to what our Author proves in other places, viz. lib. 4. C. 13. $ 6. For though one does not
what he ought to do, he does not do any ſuch real Damage, as to be obliged to Reſtitution. It is ſufficient that a Man have a
Right to do a thing, to ſecure hin from a juſt Imputation of any ill Conſequences, that may reſult from it to another. The Ro-
man Lawyers maintain che truth of this Muxim, char no Man does wrong to another, unleſs it be he that does that which he has
no right to do, Digeft. I. 50. Tit. 17. de diverſis reg. Fur. Leg. 151. If in cheſe Caſes any one receives a Damage through our
means, 'cis his Misfortune, but ſince 'uis none of our Fault, it can't be reaſonably expected that we ſhould make any amends.
(2) By the Roman Law the Approvers and Authors of any Miſchief are liable to the fame Puniſhment. Imo & fi erat ſervus,
dc.' It a Servant be about to run from his Maſter, or rob him, and another commends his Deſign, he is guilty, for he ought
not to encourage his Wickedneſs by Commendation. Digeſt. I. 11. Tit. 3. de ſervo corrupto leg. 1. $4. Mr. Bayle in his Diſcourſe
about Defamatory Libels, and Grotius before him, approve of this Law, which they lay, is built upon this ſure Maxim, That
they who approve an Action, 'cis very likely, would do it if they could, (i. e.) if ſome reaſon of Self-Love did not hinder them
from engaging in it. The firſt alſo approves of the Law of Valentinian and Valens, which make thoſe Men liable to a Capital
Puniſhment, who accidentally meeting with a Libel, diſperſe it, whereas they ought to have torn it, or barnt it. Vide Cod. I. 18.
Tir. XXXVI. de famoſis libeilis. For ( he adds) I can't conceive, but he who in the like Caſe diſperſes a Libel, has as great
defire to injure, as he chac compoſed it, and conſequently deſerves as great a Puniſhment, as the Author. For certainly in this
laſt Caſe there is ſomething more than a mere Approbation. To diſperie a Libel, which might and ought to have been ſuppreſ-
ſed, either afrogether or in part, is to do an Injury directly to the Party defamed, and joyn with the Author of the Libel. As to
the Law of Ulpian, if a Slave is fully reſolved to rob his Maſter, or get away from him, the Approbation given to theſe Actions,
which he is about to do, fince is neither encourages nor confirms him in this unlawful Action, does not ſeem fufficient to oblige
to any Satisfaction, as Mr. Bayle infers. For though a Man would do a thing with Pleaſure were it not againſt his Intereſt, yet
in my judgment he is not Puniſhable, unleſs he do it, by any Humane Laws, (of which he is ſpeaking) eſpecially if he never de-
fired to do it, and his Approbation did not determine, nor encourage the Actor.
(3) The Latin is, Quid intereſt inter fuaforem fa&ti & probatorem? aut quid refert, utrum voluerim fieri aut gaudeam fa&tum? Cic.
Philip. II. C. 12.
(4) Cicero does not ſeem to ſpeak any otherwiſe than he does, who ſpeaks his Thoughts ſeriouſly. 'Twere better to anſwer, as
this Author does afterwards, that he ſpeaks nor of a Reparacion of Damages, but only of the Viciouſneſs of the Intention of
ſuch as approve others Crimes.
(a) Nemo damnum facit (ſay the Roman Lawyers) niſi qui id fecit, quod facere jus non habet, Digeſt. Lib. 2. Tit. 17.
Pſalm CXXXVII. v. 7. (c) Philip. II. c. 12.
(d) L. 27.

(6) See
to
CHAP. I.
5
Or, Reparation to be made.
to their Enormities; and his Protection interpoſing, an Inſtance. Here are three Men then, who at the
hindred them from making good the Damages they ſame time, tho' perhaps in different Parts, all fet
had been guilty of (5). As to the point of Counſel- Fire to an Houſe. This Fact of burning the Houſe,
ling or Adviſing, this is moſt certain, that he who ſeems to have proceeded from each Man entire, and
ſuggeſts to another the way and nuanner of com- in whole, although not from each alone; in as much
mitting a Treſpaſs, is bound to Reparation. Where- as the ſame Miſchief would have follow'd, had one
as the fame Obligation doth not ſeem to lie on only applied the Fire. But fuppoſe ſeveral Perſons
thoſe who either perſwade a Man in general Terms join in beating, or cudgelling a Man, one of whom
to apply himſelf to an ill Courſe, as to Theft or perhaps gives him a Wound in the Head, another
Robbery, for inſtance, or joyn their approbation breaks his Arm, and a third ſtrikes out his Eyệ;
and Conſent (6) to his Reſolution, when already here each Perſon Shall not anſwer for the whole
fixt and ſettled, as is often the Caſe with timorous Hurt, but only for that part of it, which he himſelf
Counſellors
, or baſe Flatterers of Princes (a). Laſt- effected. Though in Cafe one of them eſcape, it is
ly concerning thoſe who concur to an injurious A- uſual to condemn the reſt who are taken in the
ction, by omitting ſomewhat which they ought to whole, eſpecially when it appears, that they com-
have perform’d, this inay be obſerv’d, that their bined together to execute the Miſchief: We may
Omifiion doth then only bind them to repair the ſtill ſet this Matter in a clearer light, by diſtin-
Damage, when it is of a Duty, to which they ſtood guiſhing between diviſible and indiviſible Acts
. The
engaged by a perfe&t Obligation; not if the thing latter which we are concern'd with, are ſuch in
was only a matter of Charity and Humanity. For, which many Perfons concur, but in ſuch a manner
ſince what is owing to me in this imperfect Manner that the whole Act would have follow'd from the
I cannot yet account my own, neither if it be inter- Endeavours of one only, and therefore cannot con-
cepted can I go about to recover it (7), whatever veniently be divided in Shares amongſt them all,
Ziegler in his Obſervations on Grotius (b), alledges of this kind are the firing of Houſes, the breaking
to the contrary.
down of Banks and Damms, or the like. For the
V. Where therefore many Perſons have concurr'd faine Damage would have enſued, had one only of
to one Act of Damage, in making Reparation, this the many Parties ſet his Hand to the Exploit; fo
Order ſhall be obſerv'd; thoſe ſhall be in the firſt that it is impoſſible to define and ſettle what part
place chargeable, who ſet forwards the Miſchief (1), of the Fire or of the Flood proceeded from each in
either by their Commands, or by ſome other power- particular. When many joyni in an Act of this Na-
ful Means, amounting almoſt to a neceſſary Infiu- ture, each perſon ſhall be thus far Reſponſible for
ence. And the immediate Actor of the Crime, or the whole; that in caſe they are all apprehended,
he who was thus forced to lend his Hands for its Per- they ſhall contribute equally to the Reparation ;
formance, ſhall in theſe Caſes be eſteem'd only as but if upon the Eſcape of the reſt, one only be
the Inſtrument. Where any one appears to have en- taken, he hall then be charg’d with the entire Summ.
gag’d himſelf in the Enterprize, without being dri- After the ſame manner, if ſome of the Perſons ap-
ven on it by Neceſſity, he ſhall be firſt Obnoxi- prehended, prove Inſolvent, the whole Burthen
ous, and then the Reſt who contributed their Alli- İhall be laid on thoſe who have more Subſtance
ſtance. Yet ſo, that if the former of theſe Parties and Ability. In this too the Reparation of Da-
concern’d ſhall have made good the Damage, the mage, differs from the Exaction of Puniſhment, that
others ſhall be then clear, as to Reparation, tho' not in the former, if full Payment or Reftitution be
as to Puniſhment. But what if an Act proceeds made by one of the Parties concern'd, the reſt are
from many Perſons, who are all Authors or Cauſes cleared and excus’d; ſince it is not conſiſtent with
of it in the very fáme Degree; ſhall each Party be Equity, that the ſame Damage ſhould be twice made
reſponſible for the whole, or only for an equal Share good, (though by way of Puniihinent, this is fre-
of the Damage? Grotius (c) pronounces in this Cale, quently practis’d.) But on the other hand, in Pe-
that each Perſon is to anſwer for all, if the whole Fać nal Caſes, nothing is more uſual, than that every
proceed from each, tho' not from each alone. Which particular Accomplice in a Crime be made to ſuffer
Rule is ſomewhat obſcure, unleſs we illuſtrate it by all that the Law inflicts (d).







(5) The French Tranſlator here adds, so that there was ſomething elſe beſides a mere Approbation, or defence of the wrongs done to
others, which ſeems to make our Author's reaſoning more clear.
() This Reſtriction ought to be added, Eſpecially if by the fundamental Laws of a Kingdom, the Miniſters are obliged to de-
ny their content to their Prince, as it is in England. Sce che Paſſage cited out of Dr. Bates's Elench. Mot. Nup. Angl. Part I. to
be compar'd with our Author, 1. 1. C. 5. 14.
(7) Cerca inly of the Perſon himſelf, who has refuſed to do any of thoſe Duties, but if he was hindred by ſome other Perfon,
he has a Right to require Damages of this Latter, if not before Humane Tribunals, which often ſuffer many Wrongs, yer by
the immutable Rules of Juſtice and Equicy. See $ 3. above, Note 8.
Mr. Barbeyrac's NOTES on 6 5. p. 298.
(1) For the Rule of the Law is this. He does the wrong, who commands it to be done, but he is in no Fault, who is under
a neceſſity to obey. Digeſt. Lib. L. Tit. XVII. De diverſis Reg. Jur. Leg. CLXIX,
(a) Compare Ant. Matthæus de Crimin. Proleg. c. 1. 1. 7. 89. (6) L. 2. C. 17. 1. 9. (c) ibid. f. 11. (d) Such a Cafe we have
in Quintilian Inſtitut. I. 7. c. 6. Two Thieves had ſtolen together Ten Thouſand Seſterces, they were ſued in Court, and forty
Thouſand demanded of each Man, according to the Law enacting, that every Thief thall pay Fourfold. They petition that each
may pay no more than Twenty Thouſand. Here the Judgment oughc to go againſt the Thieves, in as much as by the Roman
La ivs theſe A&tions of Reftitution are reckon'd under the Head of Puniſhments, l. ult. de Oblig. quæ ex deli&, naſc. 1. 7. 1.5. 1.8. D.
de Juriſdictione, 1.6, prin, D. arborum furtim ceſarum : 1. 34. D. de injuriis. Add. 1.11. 1.2, 4. D. ad L. Aquil, 1. 5. 1. 1. 2. ibid.
l.is. I. 2. D. quod vi aut clam. I. 2. 1. 9. D. de furtis. Hoſtman illuſi. Queft. 33.
VI, Now

6
Book III.
That no Man be burt;
* Lib. II. c.17.
66
CG
VI. Now whenever we hurt or endamage ano-
ther, we do it either out of full Purpoſe and preme- "Exlaves ã ¿Tiego e póvor. š o funcver
ditated Guilt, or by a fault of Negligence only, Aiua mencis à miegs atzpunean whoshida
and not of Deſign; (and this Negligence, as it is
more or leſs Groſs and Supine, is more or leſs Cul- -Striving to ſave your Friend, you have him ſlain,
pable.) Or laſtly, we may do it by meer Chance, fo His Blood will cleanſe your Hands, it ne'er can ftain (d)
.
that the Injury cannot rightly be imputed to us (a). Na
Among fome People, thoſe Damages are not only 2. But in Caſes of pure Chance, where the hurtful
imputed to a Man which are committed with his Action is not mix'd with any Fault of ours, (3) it
Affiftance or Concurrence, but thoſe likewiſe which is evident we are not oblig’d to Reparation. For
are cauſed by his Servants or Cattle, without his when I have done nothing that can be fairly laid
poſitive Influence. It is beyond doubt, that he who to my Charge, there ſeems to be no Reaſon why
offers Damage to another out of an evil Deſign, is the Misfortune, and the Damage of a Harm which
bound to make Reparation, and that to the full Va- I unwillingly caus’d, ſhould rather fall on me, than
lue of the Wrong, and of all the Conſequences flow- on the Perſon who receiv'd it (e). Yet if a Perſon
jug from it. But thoſe likewiſe ſtand reſponſible, of Wealth hurt a Poor Man, though meerly by
who commit an Act of Treſpaſs, tho' not deſigned- Chance, it will become him by fome Act of Libe.
ly, yet by ſuch a piece of Neglect as they might rality, to ſupport and comfort the Sufferer. As for
eaſily have avoided (1). For it is no inconſiderat thoſe Actions which lie againſt us for any Treſpaſs
ble part of Social Duty, to manage our Conver- or Hurt committed by our Cattle or Slaves and the
fation with ſuch Caution and Prudence that it do like, * Grotius is of Opinion, that
not become terrible or pernicious to others; and they owe their Riſe to Civil and Po-
$ 12,
Men under fome Circumttances and Relations are fitive Laws; in as much as the Ma-
obliged to more exact and watchful Diligence (b) fter or Owner being Innocent of the Fact, is not by
(2). Indeed the ſlighteſt Default in this point, is any Natural Obligation made reſponſible for it. Yet
ſufficient to impoſe a Neceſſity of Reparation ; un- others hold that Actions of this kind, are moſt agree-
leſs under one of theſe Exceptions, either that the able to Natural Equity, although they are not pre-
Nature of the Buſineſs was ſuch as diſdain’d a Care ciſelyſuggeſted by the Law of Nature. It is one of
more nice and ſcrupulous, or that the Party who Plato's (F) Conſtitutions, “ If a Man or Woman be-
receives the Wrong is no leſs in fault, than he who ing a Servant, ſhall injure the Goods of another
gives it; or laſtly, that ſome Perturbation of Mind
Perſon, either by an unskillful, or by an immo-
in the Perſon, or ſome extraordinary Circumſtances “ derate uſe of them, the Perſon who receives the
in the Affair, leaves no room for accurate and con Wrong, not being himſelf the Cauſe of it, the
ſiderate Circumſpection; as ſuppoſe a Soldier in “ Maſter ſhall either make him Satisfaction for the
the heat of an Engagement ſhould hurt his next Man Damage ſuſtain’d, or ſhall deliver the offending
with his Arins, whilſt he brandiſhes and employs "Servant into his Power and Pleaſure. And the
them againſt the Eneiny. To this purpoſe the Story ſame way of proceeding is obſervable in the old
in Ælian (c) is remarkable ; “ A Young Man tra- Roman Story of Evander, delivering up his Servant
velling towards Delphi, as he defended his Com- Cacus to Hercules, who had convicted hiin of ſtealing
panion from the Robbers, happen’d to kill him his Cattle (4). But why the Owner of a Beaſt ſhould
by an unlucky turn of his Weapon ;, and upon rather ſuffer Damage, than he who upon provoking
Application to the Oracle, receiv'd his Pardon a Creature (5) not Violent by Nature, has without
in this comfortable Anſwer:
the Owner's Fault receiv'd a Hurt, the Reaſon ſeems
Mr. Barbeyrat's NOTES $ 6. p. 299.
(1) See the Civil La ws drawn up in their Natural Order by Mr. Daumat. Part I. 1. 2. Tit. where you will find a great Number
of theſe ſort of Cafes decided, wherein it appears, chat there is nothiug but the indirect and interpretative Will of him that
cauſes the Damage. This
(2) Among the Laws of Mofes.
(3) This Reſtriction ought carefully to be obſerved. For when the accidental Caſe is an effect of ſome fault, which produced
it, we are indiſpenſably required to make good the Damage, the Obligation to repair being the effect of the Fault and not of the
Chance. See Mr. Daumat. Civil Laws, Part I. Lib. II. Tit. IX. We ought to remember that we may be engaged by ſome A-
greement to anſwer for ſome accidental Caſes, and then, as any one may ſee, the Obligation to make good a Damage is an Ac
of our Will, which the Accident gave us only an Opportunity to fulfil our Promiſes. See 1. 5. c. 9. following. Mr. Thomaſius
goes farther, and maintains, that a Man is bound to make good any Damage, of which he is only the Phyſical Cauſe, altho'
he does not do any wilfal Injury; but the Welfare of Humane Society does not ſeem to require, that our Obligation to ſatisfie
a Damage ſhould extend ſo far. Humane Society will be happy enough, if every Man carefully abſtains from endamaging others,
not only out of a formal Deſign, but thro' the leaſt Negligence,
(4) The Author in his laſt Edition, which this Tranſlation follows not, places the next Paragraph, and that moſt properly, here,
but then it muſt be rendred, it is clear, inſtead of, much more is it clear.
(s) This Reſtriction is made by the Civil Law only, for according to Natural Right, it imports no more than a Beaſt, that fol-
lows the diſpoſition of thoſe of its own Kind, or not, provided that it carries it ſelf in the uſual way when it does the Hurt.
Nevertheleſs, ſince it often happens through Man's Default, chat a Beaſt does Miſchief, though it follows its own Natural Incli.
nation, and thoſe Damages which happen by its extraordinary Morions, could noc elle ſo eaſily happen, this Diſtinction muſt
not be neglected. Tit. Obſ. 261. To this we may add alſo the Damages, that are cauſed by an Infant, a Madman, or one ſeized
with a Fit of a Frenzy. Mr. Thomaſius maintains, with Reaſon, that the Damage ought to be repaired out of the Infant's or
Madman's Goods: For though neither of chem are capable to do a Wrong knowingly, it is ſufficient that they are the Phyſical
Cauſe of a Damage, which they have no Right to do; For the Obligation to Reſtitution ariſes from the thing it felf, and Na-
tural Equity, and not from any Agreement or Crime. For if we may oppoſe a Madman, when he does us any Wrong, why may
we nor expeet Sacisfaction our of his Goods, whea he has done it? 'We muſt ſuppoſe ſuch a Reſtriction here. This Satisfaction
is the more juſt, becauſe it is commonly the fault of ſuch as are to take care of ſuch Child or mad Perfon,
(1) Lyſias Orat. xxx.
Ουδενί και δεν εκάσιον δυσύχμα έγινε αι
No Misfortune. happens to any Man by his Good Will.
See Exod. XXI. 28. &c, 33, &c. do Grot, ibid.
(6) Vid. 1. 6. 1. 7. 1. 14. D. de offic. Præfidis. I. 27. 1. 9. in fin. f. 29, 34, 35. 1.27, 29. 1. 2, 3, 4. ad L. Aquil
. Deuteron.
XXII. 8. (c) Var. Hiſt. 1. 3. C. 44. (d) Add. Epi&tet. Enchir. C.39. do Simplic, in eum circa fin. 8. 1 44.1.52. ſ.
Aquil. com ibi Interp. (e) Add. l. 5. 1. 2. 1. 7. 1. 3. ad L. Aquil. (f) De Leg. 1.11.
(6
4. D. ad L.
to
CHAP. I. Or, Reparation to be madë.

to be this, that the Settlement of Proprieties does fible for thoſe Damages which his Beaſts commit,
not impair or prejudice this Antecedent Natural either by his own Fault or Inſtigation, or by their
Precept of Reparation. And therefore, ſince fup natural and accuftoin'd Violence, and the common
poſing things to lie in their primitive CommunityForce of their peculiar Inſtinct. For the Owner
in cale I had been hurt by a Beaſt, I had the power pught either not to keep fuch Creatures, or careful-
of requiring, or ſatisfying my ſelf upon the Beaſt
, ly to reſtrain them from doing Miſchiel (7.)
by any ineans I thought fit; this. Power or Liberty Of Reparation in general, we have this farther
of proceeding, is 119t ſuppos'd to be taken froin ine to obſerve, that when the Hurt or Wrong is done
by the Introduction of diſtinct Proprieties. And in by an Evil and Criminal Act, there to make good
as much as the owner of ſuch a Beaſt makes a Gain the Damage, is not ſufficient to take off the Puniſh-
of him, and I ſuffer'd Loſs by him, the Reparati- ment (b). Though the voluntary Offer of Requital,
on of Damage taking place in Equity and conmon as a Sign of Penitence and Sorrow, frequently lef-
Favour before the Procurement of Profit
, it hence ſens the Severity of farther Proſecution (8) (c.)
appears, that I cani rightly demand of the Owner, It is time now to illuſtrate this Doctrine by ſuch
either to make good the Lofs fuſtain'd; or in caſe Inſtances and Examples as Grotius (chiefly) will
ſuch a Charge would riſe higher than the Value of fupply us with.
the Beaſt, then to deliver him up as a Criminal, VII. An unjuſ Slayer is obliged to defray the
to be deſtroy'd (6). The ſame Rule holds much Charge of Phyſicians and Chirurgeons, and give to
ftronger in the Caſe of a Slave, ſince he is by Na- thoſe
Perſons whom the deceas'd was by full and
ture made liable to anſwer for any Damage he ſhall perfect Duty bound to maintain, as Parents, Wife
give. But now, ſince he has no Goods of his own and Children, (not to any whom he kept out of
to repay or requite the Lofs, and ſince his very Charity and Pity;) ſo much as the hope of their
Body is his Maſter's, it follows in Equity, that the Maintenance ſhall be fairly valued at ; Regard be-
Maſter either repair the Wrong, or give him up to ing had to the Age (d), both of the Deceas'd (1),
the Sufferer. Eſpecially ſince without his Proviſion, and of themſelves (e) (2). As to Ziegler's Opinion
a Slave would be impower'd to act what Hurt and on this place of Grotius, that ſome Confideration is
Miſchief he pleas'd; whilft neither he (who is Pof- to be allow'd for the Gain which the Deceas'd might
feſſor of nothing, nor indeed of himſelt) nor his have acquired, had he lived longer, which confe-
Mafter could be obligʻd to Reſtitution. Nor, ſhould quently would have made their Portions the
the Maſter by the fevereſt Courſe of Blows, or of larger; we think it will ſcarce hold good; in as
Impriſonment puniſh the Offender, would this be much as all Advantage of this kind being yet un-
any real Satisfaction to the injured Party (a). certain, cannot be reckon d amongſt our Poſſesſions ;
Much inore then is it clear beyond the leaſt and fince future time lies equally open to Loſs as
Doubt or Diſpute, that the Owner ſtands reſpon- to Gain ; and laſtly, ſince it cannot clearly be made
Tit. 8. $ 2.
(6) Beſides this, we may obſerve with Mr. Hirtius, that it may be commonly preſumed, that the Maſter of ſuch a vicious
Beaft knows its Fault, and if when it has done a Miſchief, he will neither reſign it, nor pay the Damage, he may be thoughe
to approve it.
(7) If a Slave or Beaſt be put on by any other perſon than the Maſter of it, 'tis plain that ſuch a perſon is obliged to make
good the Damage. But we muſt then ſuppole, that the Perfchi hurt has not through his own faale occafion'd the Damage done him
by the Slave or Beaſt; For in this caſe he can blame none bue himſelt, and the Slave did nothing but what he might do in
hits own Defence.
In a Word, no Proprietor is obliged to ſatisfie a Damage, where he is guilty of no Faule, unleſs his Slave
of Beaft have done a Miſchief of their own accord. Vide the Civil Laws in their Natural Order by Mr. Daumat. Part 1. 1. 2.
(8) But there can be no true Repenrance without Reſticution.
Mr. Barbeyrac's NOTES on 6 j. p. 302.
C. But it may be objeſted, How can it be known how long the Perſon Nain might have lived? Mr. Placette in his Treatiſe
of Relicurion, 1. 3. c. 4. chus anſwers, That the length of no Man's Life can certainly be known, but it may be probably guer-
ſed at two ways. As, 1. By what the Law has determined about it, which fixes it to do Years, and ſo if the Perſon ſlain was 40
Years old, the perſons intereſted mult be ſatisfied for the Gaios of 20 Years, but then he muſt not be much above, and all De-
ductions muſt be conſidered. 2. Bur the beſt way feems to be to refer the Matter to the equitable Judgment of one or more Arbi.
trators, who are wiſe and prudent Men, who conſidering the Conſtitucion, Health and Frugality of the dead Perſon, may de-
termine beſt what is moſt reaſonable rn allow.
(2) The manner of computing the value of their Maintenance is ſer down in Digeſt. 1. 35. Tit. 2. ad Legem Falcidiam, Leg. 68.
Bur Tirius upon this Author obferves, that no exact eftimation can be made of a Damage by this and the following Examples,
and therefore in this caſe we ought to ſubmit to an Accommodation. I may add, that every one ought to conſult his own Con-
ſcience well, and conſider, that it is better always to make ſuch a Reparacion as may ſeem ſomething more than the Damage
done, than expoſe himſelf to be thought not to have done enough, for the Cauſe of the perſon damag'd is always more
favour
ed, than of him that did ir.
(a) Vid. Interp. Jur. Rornar. ad Tit. fi quadrupes, paxperiem, do ad L. Aquiliam, & de damno infe&o. (b) vid. I. 48.
furtis (9) The Fench Tranſlation puts this Clauſe inco the Text after (c), and 'cis ſo in the Original. See Luc. XIX. v. 8. Tis
remarkable, what Glycus tells us, in his Annals of Michael the Paphlagonian. But the Emperor Michael, fays he, “ Did not
forbear all his Life time to lament his villany towards Romanus III. and endeavour'd by building Monaſteries, by Charity
to the Poor, and other good works to appeaſe the Anger of God. And this Mechod might have prov'd beneficial to him, had
is le laid down the Empire (for che ſake of which the fact had been committed, and throwing off the Adulcreſs, the Empreſs,
for the love to whom he had done that Wickedneſs, tewail'd his Sin in a private Condition. But he neglecting ſuch means
of Repentance, and ſtill uſing Zoa as his Wite, ftill holding faſt the Imperial Dignity, and only making a thew of doing good
at the Publick Charge, thinking thus to obtain his Pardon, betray'd an Impious Opinion of God Almighty, as if he would fuffer
us to buy our own Forgiveneſs at the Loſs of other Men e.Valer. Mar. 1. 2. c. 8. 1.4. So much difference there is, whe-
you really ada
ginning of a Benefic, and the end of an Injury. () Sec Mr. Placetse's Treatiſe of Reſtitution,' 1. 3. 5.4. (9) The way of
any thing to another, or whether you only reſtore what you had taken from him, as there is between the be-
Teckoning the Maiarenance we learn from L. 68. D. ad L. Falcidiam.
tlier
out,
8
Book III
That no Man be burt;

cut, how much the deceas’d would have ſpent of And thoſe alſo who commit the fame Mortal Vi-
any ſuch Gain, had he been ſuffer'd to live and to olence, through their own Unwarineſs and Neglect
.
procure it (3)
Examples of which Caſe we find ſet down in the
Now he is an unjuft Slayer that kills a Man, who Inſtitutions (c) (4). As if a Soldier practiſing with
had a Right not to be kill'd by him, and who his Arms in another place, than what is ſet apart
therefore by the Act that caus'd his Death was for thoſe Exerciſes, ſhould ſay a Man who was ca-
truly injur'd. And this Right appears to belong to ſually palling by; or if one who is not Soldier
every individual Perſon, lince Nature by a gene- fhall happen to do the ſame; though in the place
ral Command binds all Men to live like fociable ordain’d for the publiek training of Military Iden.
Creatures, and to abſtain from inutual Hart. Whichi But if a Soldier in the ſame place of common Du-
Right a Man may, as far as in him lies, renounce's ty ihall undeſignedly take away a Man's Life, he
at leaſt fo as to make it fair and juſt for him to ihall ſtand excuſed; for he was performing his pro-
be hurt by ſuch or fuch particular Perſons; and this per Buſineſs
, and the other Party was in the fault
may be done either tacitly or exprefly
. He tacitly for throwing himſelf into the Danger (d). If a
diſclaims this Right, who in a violent inanner ſets Feller of Wood ſhall with the Limb of a Tree which
upon another without juſt Cauſe. For fince the o- he is cutting down kill a Servant paſſing by in the
ther has Right of repelling the Violence, by High Road, or in a Way near a Town ; without
any means he can, the Aſſailant is to accuſe him- having firſt cried out to give Warning. But in
Telt only for any harm he ſuffers in the Repulſe of Cafe he did thus cry out, and the Servant negle-
own unlawful Force. The ſame Right is ex- cted to ſave himſelt upon timely Notice, the Fel-
preſly renounced by him who enters into War with ler ſhall not be charged with his Death. No more
anuther upon mutual Appointment and Confent ſhall he if the fame Misfortune happen’d at a di-
For 'tis a Law of War, that every one have fair ſtance from the High-way, or in the middle of a
Liberty
y to uſe his full Endeavours for the Defeat Field, altho' he did not give the uſual ſign of cry-
and Suppreffion of his Enemy (a). And though in ing out; becauſe there the Stranger had no Right
ſuch War the prevailing Perſon may perhaps ſin of paſſing, and conſequently ventured at his own
againſt Charity, yet the Violation of Charity only, Peril (e).
will not oblige him to repair the Loſs he has thus If a Phyſician deſtroy his Patient, either by plain
WOW
occaſion’d.
Neglect and Deſertion, or by adminiſtring through
The Life of a Freeman does not admit of any Ignorance, improper and dangerous Medicines (5).
Rate or Valuation ; and had it any, there is no If a Muletier, through Weakneſs or Unskiltul-
Perſon to whom the Debt ſhould be paid. For his neſs, ſhall have ſuffer'd his Mules to run over any
Life does not properly belong to his near Relati- Perſon ; provided he undertook this Buſineſs of dri-
ons, it is only their intereſt that he fhould live; ving at his own Choice, or made it his Profeſſion,
and therefore the Value of that Intereſt or Advan- not if he was preſs’d and compell’d to the Service
tage being paid to them, they can demand no ſuch proteſting at the ſame time his want of Art or of
farther Recompence as the full worth
of his Lite
. Strength (8)
The Caſe is otherwiſe with a Slave or Vallal, who In the Alcoran (h), he who ſhall ignorantly kill
being entirely the propriety of his Maſter, and a Muſulman, is enjoyn’d to make good to his Rela-
lalling under Exchange and Commerce, in the tions the Damage they ſuſtain’d by his Death;
manner of other Goods, has really a Price ſet upon redeem one Perſon of his ownReligion from Slavery.
him, which, if he be wrongfully kill'd, the Malter It ſeems probable that thoſe likewiſe were obli-
has a Right to denand. if it ſeem hard and ſome- ged to ſome ſuch Method of Reparation, who by
what like Inhumanity to rate out Slave thus in the the favour of the Jewiſh Law, enjoy’d the Privi-
fame manner as we would our Beaſt, it may be lege and Protection of the Aſylums, or Cities of Re-
anfwer'd, that we do not make this Valuation of fuge (i). Since in the Caſe there ſpecified, of a
his Perſon, but only of the Work and Services Man's killing his Neighbour by the fall of the Head
which he would have done us.
of his Axe from the Helve, the Man is not entirely
Thoſe in like manier ſtand bound to Reparation, blameleſs, in as much as he ought to have ſtrength-
who kill another in their Sports or Recreations, ned his Inſtrument better, for the Prevention of
which is eſteen’d equal to deliberate Miſchief (1). ſuch a fad Miſchance (5.) But how it came to be
88.99.1
and to

༣ །
(3) Mr. Van Muelen in his Conimentary upon Grotius, I. 2. c. 17. $ 16. believes that the nature and certainty of the Gain which
the dead perſon might have made ought to be examined. If his Gain were altogether uncertain, ſo that it depended more upon
Chance than the Induſtry of the dead Perſon, no Sarisfaction ought to be made; but if his Gain were morally certain, and
would have in all appearance been produced by the Labour and Induſtry of the dead Perſon, as the Gain of ſome Traders, Mer.
chan's and Artificers is, then he ought to facisfie the Perſons concerned for the Gain loft according to the equitable Eſtimation of
an Arbitrator, who ſhall make as exact Deductions for all Expences which the dead would have been at, as poſſible, and conſider
the Circumſtances our Author mencions.
(4) See thac excellent Treatiſe upon this Subject compoſed by Mr. Noodt, Ad Legem Aquiliam.
(5) Our Author obſerves a little higher, that the Alcoran in the Chapter of Women appoints, that if a Perſon againſt his
Will, kills a Muſulman, he maſt not only make Satisfaction to the Parents of the perion Slain, but alſo redeem a Captive Muſul.
man at his own Charge.osia
(2) To this purpoſe we have a Story in Plutarch's Laconian Apopht begms; that Two Boys, one of them with a Sickle, gave
other a Mortal Wound when the Coinpanions of the wounded Boy, who had haltend to part the Fray, promis'd him to re-
venge his Death on his Murtherer; by no ineans, ſays he, this would be to act unjuſtly: For what he hath done to me is no more
than I had done to him, had I been ſtrong enough to have prevented him. Add. 1. 4, 5,7. f. 4. 1. 52. f. 1. D. ad L. Aquil.
(6) Vid. 1.4. f. 1: D. ad L. Cornel de Sicar, do 6. Godefred. 1.10. D. ad L. Aquil. Digeft. 1. 48. Tit
. 8. (c) De L. Aquil
. f. s.
&c. '(d) Add. 1.9.1.4. D. ad I. Aquil. & Antiphon. Orat. VII. (e) L. 31. D. ad L. Aquil. Add. Leg. Burgundión, Tic.46.
(f) vid. Plin. I. 29. C. 1. Leg. Wijogot hor. 1. XI. Tit. 1. c. 6. (8) Add. 1.5.1. 3. 1. 7. 1.2.5, 6, 8, 1. 8. 1. 9. princip
. 1. 31. 1,5
I. 3. D. ad L. Aquil.do confer cum c. 8. 9. Se. X. de Homicid. (b) In the Chapter of Wives. (i) Num. XXXV.do Deuteron.
the
XIX,
allow'd,
CHAP. I.
9
Or, Reparation to be made.
ged to
pay
allow'd, that the (6) Revenger of Blood ſhould diſ was the real occaſion of them, the Perſon who gave
patch ſuch an Innocent Slayer, if taken without it ſtood farther bound to pay for his ſecond Cure;
the Bounds of his Sanctuary, which ſeems not al- if they proceeded from any other Cauſe; he was not
together conſiſtent with a Regular State of Go- reſponſible
: As often as the Wound being imper-
vernient, we have this only reaſon to aſſign, that fe&tly heald broke out again, he was ſtill charged
God was pleas’d to grant ſome little Inſtances of with the Expences, but not after it had been once
Indulgence to the Cruel and implacable Genius of brought to a perfect Cure. It might be added, that
that People (a) (7).
his Obligation continued only in Caſe the Wound
VIII. He that has mained a Man, ſhall be obli- thus broke out of it ſelf; not if the thing happen'd
the Charges of the Cure, and to make thro' the fault of the Patient, or thro' the Unskil-
up
what he now gains leſs than before, by his La- fulneſs of the Chirurgeon.
bour or Calling (). On this
Head the Jewiſh Con In rating the allowance to be made the Sufferer
ftitutions are very worthy of Remark, as we find for the Ceſſation of his Work, they confider’d him
them deliver'd in Conſtantine l'Empereur (c). He as a Keeper of Cucumers. The Jewiſh Doctors thus
that hurts his Neighbour is reſponſible on five Acó enlarge on the Point; they ſuppoſe hiin already to
counts; for the Damage, for the Pain, for the Cure, have receiv'd Satisfaction for the Defect or Damage
for the Ceſſation of Work, and for the Affront or ſuſtaind in his Body, and likewiſe for the Pain he
Diſgrace. The Damage they compute in this Me- has endured. And therefore ſuppoſing him, (for In-
thod. If, for Example, he has beat out the others ſtance) to have loſt the uſe of a Hand or a Foot,
Eye, or cut off his Hand, or broke his Leg, they they do not now conſider what Gain he would have
then conſider the ſuffering Party as if he were a made, had thoſe Limbs remain’d entire; but be-
Slave to be ſold in the Market, and ſo reckon how cauſe he hath been already paid for the diſabled
much he would have yielded in Sale before the Part, they only compute what Damage he ſuffers,
Hurt, and how far his Price is now fallen. For during his Sickneſs in reſpect of ſuch Work, as he
they judged there would be no certain way of ſet- could have perform’d, though maim'd in Body, if
ling theſe Rates and Accounts, ſhould they in well in Health. And they think he may fairly
this Cafe diftinguiſh between the different Quali- demand fo much for every day of his Sickneſs, as his
ties and Conditions of Men, ſince the Profellions daily Wages had been for watching a Cucumer
of Life, and the States of Perſons admitting fo end- Garden. But becauſe it is a different thing, whe-
lefs a Variety, the Sufferer would be always throw- ther a Man loſes a Hand or a Foot; whether on-
ing in ſome new Reaſon to inhance the Damage, ly lying ſometiine ſick of his Wound, he after-
and aggravate the Hurt, and conſequently to en- wards recovers without prejudice, or whether he is
large his Demands of Compenſation. They thought actually depriv'd of a Limb. Maimonides propoſes
it convenient therefore to ſet all Men,
with regard a nicer and more exact way of rating the Cellation
to this Buſineſs, in the one general Condition of of Work, according to particular Caſes. If the Suffe-
Slaves, the juſt value of whom was diſcoverable rer ſhall not be maim’d, but only caſt into a Sick-
beyond diſpute, So that if the maim'd Perfor, neſs, and confined to his Bed, or if the affected
ſuppoſed to be a Slave, would before the hurt have Limb only ſwell for a time, and afterwards regaini
brought fifty Sheckels, and could be ſold afterwards its foundneſs and uſe, the other Party ſhall allow
for no more than thirty, the Maimer was enjoyn'd him daily for the loſs of his work, according to the
to pay him twenty Sheckels.
vi uſual Wages or Hire receiv'd by Men of the fame
As to the point of Pain, if a Man, for inſtance, Calling. But if he is maiin’d in a Limb, or has loſt
had burnt another, although in the Nails, where no a Hand, Satisfaction being already inade him for
Bliſter follows, they conſider'd how much a Perſon that loſs, or what they call Damage being before
of that State and Fortune would have taken to ſuf- diſcharged, as to the bare Ceſſation of his Work,
fer voluntarily ſuch a Pain. For one inay find a they then conſider him as a Keeper of Cucumers,
wealthy or a nice and delicate Perſon, who would and computing the Pay, generally allowed for
not be hired at any rate to endure a Slight and this work, order him ſo much for every day of his
moderate Smart ; and at the ſame time one may Illnefs. In like manner, if he has loſt a Leg, théy.
light on a Poor and hardy Labourer, who would conſider him as a Sentinel or Watchman at a City
be content to undergo foine ſharp degree of Tor- Gate; if an Eye, they ſuppoſe him to work at turn-
ture for the earning of a Penny. Farther, in rate. ing a Mill; and fo agreeably of all other Hurts
ing the Pain, they proceed thus ; they ſuppoſed, for and Miſchiefs
.
Inſtance, that a Perſon of that Condition was con- is. Laſtly, in rating the Affront or Diſgrace, they
demn'd to have his Hand cut off, and then they con- conſider the Condition and Degree of both Parties.
ſider'd how much he would give to loſe his Hand, Since an Affront is much more provoking from a
rather by ſome eaſie conſuming Application, than mean and vile Perſon, than from one of Quality
by the violent ſtroke of a Sword; and ſo much the or Power; and ſince the ſame piece of diſreſpect
Party froin whom the Hurt was receiv’d, was bound may be light and inconſiderable to orie of vulgar
to give him on account of the Pain (d).
Condition, and yet be heinous and intolerable, if
Concerning the Cure, they obſerv'd theſe Rules. offer’d to a Man of Honour. And here we may by
If after the Cure perform'd, any Sores or Tumours the bye obſerve the Diſtinction added, concerning
arofe
, in Caſe it appear'd that the former Wound the Place or the Scene of the Action, which fome-
(6) The Revenger of Blood was evidently the next Heir, or neareſt Relation of the Dead Perſon. See Mr. Le Clerc's Nocess
The Author quotes Hom Odyſ. l. 15. 1. 272. do Tacit. German. c. 21. See allo Mr. Hirtius's Differtation, entituled, De Herede
Occifi Vindice, in Tom. III, of his Comments, and ſmall Tracts, loc.
(7) Cercainly ſuch a permiſſion can't be allowed under the Goſpel See the Interpreters of Matth. V. 38. doc.
(2) Compare Tacitus German. c. 21. Homer. Odysſes, 0. v. 272. (6) Confer.1. 13. prin. D. ad 1. Aquil. I. 7. D. de his qui deject.
vel Effud. (c) In Babakama, c. 8. 1. 1.
(dj Conf. l. s. princ. col. 1. D. de injuriis
. Where fince there is this difference made between Verberatia and Pulſatio, that the
former is with, and the latter without Pain, it ſeems to follow that even Pa'n may fall under Valuation,
+ B
times


IO
That no Man be burt.
3
BOOK III.
much varies this Point. Thus if a Man the Inheritance, falls under that kind of Damage,
,
Thomafius in. Inftit. uripr, Div. 1. 2.C.
2lays, that the
times
very
ſliding down from the Roof of a Houſe,ſhall hurt one which Men are ſaid to cauſe only Indirectly, and ly
that paſſes by, and at the ſame time affront hinn, Conſequence. For as to the direct Crime of Adul-
for Inſtance, by making the Dirt fall on him, he tery, that does by no means belong to Pecuniary
fhall be reſponſible for the Damage or Miſchief, not Damage. On this point Ziegler obſerves that. Grof
for the Ignominy. Thus much we have gather'd tius is indeed in the right, when he aſſerts
, that
from the Jewiſh Laws; and on the ſame Head the the Husband ought to be ſecured from the Burthen of
Reader may conſult the Roman ; particularly, l. ult. keeping the Adulterous Off-ſpring : But that it will
D. de his qui effuderint vel dejec. & l. 3. D. Si qua- bear a Diſpute, whether Reſtitution ſhould be made
drupes. Where we muſt take notice, that when 'tis to the Legitimate Children for what they ſuffer by
ſaid Scars and Deformity are not capable of being ſuch a Partner in the Inheritance. For he ſays the
prized or rated, the Rule (1) will hold good only Queſtion here is concern’d-only about the Mothers
in the Caſe of Freemen. For ſince the debauch'd Eſtate, to which the A lulterous Children cannot
Manners of that Nation, ſet a higher Price than or- be adınitted, but by the Ordinance and Preſcripti
dinary on handſome Slaves, they might confequent- on of Law. And therefore when the Law of any
ly claim a pecuniary Satisfaction from thoſe who Nation does thus actually allow them to ſhare in
Thould rob a Slave of this Advantage, by a Wound the Maternal Inheritance with the Legitimate, the
in the Face, or any Injury of that kind. So the Damage here given proceeds from the Law it felf
,
disfiguring the Face of a Virgin or unmarried Wo- and not from the Adulterers. To which might be
ſometimes is the beſt part of added, that the Adulterers are not obliged to ſuch
their Fortune, may be reckon’d anongſt Hurts, re- Reparation for this farther Reaſon, That Children
quiring Compenſatio1). And indeed Deformity, if have not a perfe&t Right to the Goods of their Live
very remarkable, is in general a fad Unhappineſs, ing Parents; and no Neceſſity of Reparation can
rendring us diſagreeable to others, and expoſing us arife but froin the breach of a perfet Right. Thus
to the Conteinpt and Deriſion of Proud apd of Sa- a Parent cannot be ſaid properly to injure the Chil-
tyrical Men. Yet Scars receiv'd in War, paſs for dren by palling to a ſecond Marriage, though their
marks of Honour and Valour by the common Vote Hopes of Inheritance may ſink conſiderably by ſuch
of Mankind (a).
a Proceeding. But the Truth is, the Inſtance ala
As to the Compenſation after an Act of Maim- ledged by Grotius, abſtracts both from the Provifi-
ing, this is farther obſervable
, that in ſuch Cafes ons made by Civil Laws, about the Succeſſion of
the Limb it ſelf is not properly rated or valued, it Adulterous Children, to the Goods of their Parents,
being a thing really incapable of a pecuniary Price; and alſo from the Penalties decreed againſt the A-
but the deſign of theſe Proceedings is only to repair dulterers, if convicted ; and 'tis but reaſon to affirm
the Damage fuſtaind by the loſs, or by the difuſe with him, that the Adulterers tho' unconvicted or
of ſuch a Part, with regard to the difference of undiſcover d, do really owe fuch Reparation, both
Thes, of Perſons, and of Abilities; and whilſt the to the Husband and to the Legitimate Children (2).
Judge is ſettling theſe Points, 'tis neceſſary he ſhould: For by the End and Deſign of the Matriinonial
ſpeak of the Members themſelves (b) via Torre de Covenant, the Children had a perfect Right, that
IX. The next Inſtance produced by Grotius (1) no one ſhould thruſt new Co-heirs amongſt them,
of the Adulterer and the Adultereſs; who he ſays beſides the law.ul Husband of their Mother. And
are bound not ouly to ſave the Husbaud harmleſs, by the faine Covenant the Husband had a Right
us to the Maintenance of the fpurious Iflue, but of refuſing to maintain, not only out of his own
likewiſe to make good to the Legitimate Children proper and ſeparate Goods, but likewiſe out of his
any Damage which they hall-fuftain, in Cafe fo Wife's. Dowry, the baſe Progeny of his polluted
falfe a Sharer ſhould be admitted with them into Bed.
como
21.
not bewolls visi ataupun
bas
sidicimahe te them in Mr. Earbeyrac's NOTES on S 8. p. 305.
(1) And the Reaſon, which the Roman Lawyers give, is, becauſe liberum Corpus nullam recipit aſtimationem, i. e. the Body
of a Freeman is not capable of any Valuation, as the Body of Slaves is, bue Mr. Titius as well as this Author diſapproves
of ibis.Reafon, and fays that thiough Freemen are not commonly boughe and fold, as Slaves are; it is not a good Inference,
thag a Freeman chat is hurt may not reafonably require a Reparation by a certain Price of the Scars, and Deformities, which
as the neceflary Confequents of the Wounds he has received. - His Reputation, for Example, is as little capable of a Valu-
Some Men indeed through a of Soul, either real, or affected,
think it below them i to take Money in compenfation of the Blows and Hurts they have received, but this hinders nor,
shati they have righg to require ſuch a Satisfaction, if they pleafe; and that it may be made by Money, for as Grotius ſays,
Lib. II. Chap: XVil, ş. 37. Money is phe common meaſure of all things, which are profitable to Man, 91 low birobi
STO non solo. Mr. Barbeyrac's NOTES on § 9. p. 306. Ines otse omitt vad 190
(1) See upon this Head concerning the Batistaction for the Damage done by Adultery, Mr. Placette's Treatiſe concerning Re-
ſtitucion, 1.
seven botthat the Reafon prod
$: 50. !
our Author, taken from
the Contract of Marriage is tar fetched, and agrees not
of Marriage are made between the Man and Woman only, and no ways include the Children, (ſunt extra pa&ta) but our
Author affirms not chat Children are not comprehended in the Engagement of Marriage from whence they proceed, and which
were made rso they were brought forch into the World, but ſays cnly, that by virtue of the end of Marriage-contracts
the Children have a right to believe that no perſon may diſappoint them of their Hopes. Now it is certain, that if the Facher
or Mother had not
committed Adultery, the Portion of the Legieimare Children out of the Godds already gotten, had been
much greater ; lo chat all the difficulty. which remains is about the Goods, which the Father, or Mother, may get after the
Birth of an illegitimate Child. But however uncertain the. Gains are, the Jeffening of the inheritance of the lawful Children
is not leſs Real, nor a tefs neceflary Conſequent of Adultery, ſeeing they are already goeten, for the Reparation of the Damage muſt
be made firſt. And it imports, that the Damage proceeded immediately from the will of the Father (which is another Reaſon
of Thomafius's) for the Father's Will could not have acted ivithout an objection propounded to it.
() See the Example of M. Servilius in Livy, l. 456. 39. Add. Senec. de Benefic. l. 5. c. 24. 1. 13. Princ. D. ad L. Aquil
.
(6) Becleri ad Grat. 1.2. c1. 1. 6.

is
buc
27 (2) Mr.
X. If
CHAP. I. Or, Reparation to be made. :)
II

If the thing Itoin
X. If a Man has either by Force or Fraud defiled his Goods, without Remedy and Reſtitution. There-
a Virgin, he is obligd to pay her ſo much as the fore 'tis an abſurd way of proceeding in ſome States
appears to be damnified in her hopes of Marriage, where (2) the Magiſtrate claims the Goods found
by the loſs of her Honour. For pure Virginity isą on the Robber, and commands the true. Owner of
very valuable Pofleffion, and as it were the com- them to content himſelf with ſeeing the Villain
mon Portion which Nature gives her Daughters (a). brought to publick Juſtice (f). Nor is it more; a-
And therefore he who robs a Maid againſt her Will greeable to the Law of Nature, that the Charges of
of this Treaſure, ought fo largely to refund to her, Puniſhing the Thief lhould be laid on the Perſon
that the Improvement of her Fortune may hide the he has robb’d, ſince the inflicting due Penalties, be-
Blemiſh of her Body. Though indeed the true way longs entirely to the Government, to effect which
of proceeding is, that he marry her himſelf; unleſs if more Expences are requird, than the Eſtate of
hinder'd by the Difparity of their Condition,or ſome the Criminal amounts to the Remainder is to be
other extraordinary Circumſtances (b). But ihe who made up by the publick; eſpecially fince at other
by a luſtful Compliance, voluntarily parts with her times the Treaſury gains fo conſiderably by For-
Chaſtity, is to thank her ſelf for the Lofs. Yet com- feits and Confifcations, For Inſtance, if á State
monly ſpeaking, the Man in theſe Caſes is pre- engage in a War, upon account of ſome private
fum'd to be more faulty than the Woman. He who Members who have been injured, all are obliged to
ſhall entice a Virgin to proſtitute her ſelf on the contribute to the Charges, as well as thoſe whoſe
promiſe of Marriage, ſhould be bound to make good Defence is particularly undertaken. The Caſe iso-
that Engagement. Nor will the Objection hold here, therwiſe, if the Judge puts it to the injured Partjes
that Covenants about baſe or diſhoneſt things are Choice, whether he had
Goods,
invalid. For ſince the Law of Nature requires no or ſee the Thief executed; for here if he prefer the
Interval betwixt the Covenant and the Completi- latter Condition, he can lay no claim to farther
on of Matrimony (c), (all ſuch diſtance being intro- Satisfaction. Though the Judge cannot fairly pro-
duc'd by Civil Čuſtoins and Conſtitutions) (d), with poſe ſuch Terms, ſince the Puniſhment of Malefa-
regard to that Law, we can ſcarce call this a baſe ctors ought not to depend on the Pleaſure or Hu-
Condition, “ You ſhall be my Wife (1), provided mour of private Men, but on the Publick Advan-
you conſent, that I ſhall inmediately uſe you tage of the State.
as ſuch. Or if there be any thing which ſeems
foul in fo over-haſty a Match, it is not judg'd tius will have it to be paid for according to a mid-
fufficient to invalidate the Contract; becauſe Mar- dle Valuation ; not to the full Worth, nor yet con-
riage is, in this caſe, the more favourable ſide. ſiderably leſs. Which Direction Ziegler does not
XI. A Thief or Robber is bound to reſtore the without reaſon diſlike. For what Title has the
thing taken away, with its natural Increaſe or Im- Thief in this Caſe to Favour? If I can demand
provement (e); and to make good, not only the the full and higheſt Price when to oblige a Perſon,
Damage (1) actually enſuing to the Owner, but like I fell a thing otherwiſe not Vendible, why ſhould í
wiſe the furceaſing of his Gains ; and this
, although here make any Abatement to the Thief, who ſeizes
he be compelld to ſuffer the juſt Puniſhment of his my Goods againſt my Will? And is my Chapman
Crime. For'tis the injur'd Party who demands Re- only upon Compulſion (8) (3)? And in this caſe
paration, and it is the Cominonwealth which re too Reparation is due from the Thief or from his
quires Puniſhment for the Publick Good; and the Heirs (4), yet not beyond the Value of the Inheri-
Judge can by no means reckon this as a Satisfacti- tance,)
although he has ſuffer'd the Corporal Pe-
on to the private Perſon, ſo as to make him lofenalty of his Crime. For it does by no means look
66
ni
all.
Mr. Barbeyrac's NOTES on § 10. p. 306.
(1) From henceforth the Marriage is made and conſummated, in a State of Nature, ſays Thomafius, ubi fupra s. $7.
20
Mr. Barbegrac's NOTES on § 11. P: 307
(1) See S. 3. Note 11. above.
(2) See lib. IV. 6. 13. S. 4. following near the end, and what Mr. Hirtius ſays upon it there, and his Diſcourſe de ſuperioritate
temporali S. 56. Nevertheleſs Mr. Thomaſius in his Treatiſe de Stat. Imper. poteft. Legiſlat. s. 41. maintains, that ſuch a Claim,
Seizure, or Confiſcation, although it is eſteemed by ſome people to be contrary to all natural Right, may be juſtified by very good
Reaſons, if long Cuſtom, and expreſs Law has ſettled it in that country. As for Example, The intention of the People, or
Legiſlator may be to make the Proprietors more watchful to preſerve their Goods, or they may appoint ſuch ſtoln Goods, as they
have recovered to bear the neceffary charges of the Officers of Juſtice, who are to puniſh Thieves, which otherwiſe muſt be born
by the Publick. We will nor inquire how far theſe Reaſons may avail in Conſcience, but Thall only obſerve that it hath nothing
contrary to Natural Equity, among ſuch people as have conſented to ſubmit to ſuch a Law, or Cuſtom; which equally affects
Yet when the ſtoln Goods fall into the Hands of a Stranger, the Maxims of pure Natural Right ought to take place, and
then luch an uſage can be no ways Authorized. Mr. Thomafius pretends here to make uſe of the opinion of fuch as are of a
contrary Judgment, who acknowledge that ſtoln Goods may be confiſcated, and given to ſuch Subjects of the State to whom
they are of use, for he ſays, in the opinion of all our Doctors, the Right of Repriſals is not contrary to Law or Nature: Here-
upon he alledges the Example of Theft and Adultery. But it is here much the ſame to put a man to Death, or ſeize his
of Repriſal, which otherwiſe would be contrary to the Law of Nature, we do bue defend our felves againſt one
(3) The Roman Law on the contrary will have that which is ſtole or loſt to be valued at the higheſt Rate, for fo it fpeaks,
Placet tamen id tempus fpe&tandum, quo res unquam plurimi fuit, Digeft. I. 13. Tit
. I. De condi&t. ex cauſa furti Leg. VIII. S. 1
but Lib. 9. Tit. 2. ad Leg. Aquil, Leg. II. adds, qu.inti id in eo anno plurimi fuit, and Lib. 12. Tit. 3. de in litem Jurando, Leg. 9
(4) See lib. 4. ch. II. S. 19. following.
(a) Apuleius in Ap:103. A beautiful Maid, though in the Condition of Poverty, hath a fufficient Portion, ſhe brings her Huf-
band sweetneſs of spirit and Difpofition, fair Charms and honeſt Purity. And indeed Virginity alone is commonly, and
ought to be eſteemed by the other Sex, a full and juſt Recommendation. (b) See Exod. XXII. 16, 17. Deuteron. XXII. 28, 29.
(C) See Tobit. VII. 10. 18. (d) Vid. Gratian Cauſ
. 27. Queſt. 2. Cap. 39. (e) Vid. 1. 4. c. 7.1.3. (f) vid. Caroli V.Ord. Crim.
Art. 218. Add. l. 3. 8.12. D Le Peculio. I. 56. 1. 1. D. de furtis. 1. 7. princ. D. de incendii ruina. (6) Add. l. 9, D. de in litem
jurando. 1. 2. princ. D. ad L. Aquil
. verb. quanti id in ce arno plurimi fuit. 1. 8. f. 1. l. ult. D. de Condit. furtiv.
+ B 2
like

Effects by way
kind of Enmicy.
I 2
Book III.
That all Men are to be accounted

like Injuſtice or Cruelty, that the Offender after he which cleave as it were to the Goods and Poſiedl-
has thus fatisfied the Law, either by Death or o- ons, and follow them to any new Maſter. And fuch
ther bodily Pair, ſhould likewiſe recompenſe the is this Debt for Damage given.
Perſon he has endamaged. The trite Objection of The other Species of Hurt are more eaſie to be
Mors omnia folvit (a), Death pays all
, has no manner fettled and decided ; and ſome of them will hereaf-
of Force in the preſent Buſineſs. Death indeed dif- ter be particularly infifted upon in their proper
charges perfonal Performances, but not proper Debts, places (6) (6). Lair
(6) Our Author has collected ſeveral Examples more particularly in his Elements of the Civil Law, P: 453. &c. but before
we end this Chapter, let us in a few Words after the Example of Budæus, make an Application of thele Maxims, which we are
about to Eſtablish for the Right of Nations, taken in the ſenſe our Author intends it, lib. 1. ch. 3. S. 23. People then may do
ill to, or offend each other in reſpect, either of the Body, or the Eſtate, which anſwers to the Life of Man, or of the Govern
ment, or of his Reputation, or perfect Rights ; or laſtly, ſome of the Members, or Citizens, who may be damaged either in
their perſons, or their Goods, or Repucation, or their Rights. Moreover, one People may offend another, either directly, when
by the Order of their Sovereign, who Reigns
in Chief, they cauſe a Damage to be done to another in any manner; or indi
.
rectly, when a Sovereign does not puniſh the Miſchiefs done by his Subjects to another People, or if he could hinder them, doch
not, as for Example, If he does not uſe the beſt means he can, and ought to prevent or reſtrain Robberics, and Piracies; it
inſtead of paying his Troops, he reduces his Soldiers to a neceſſicy of pillaging both friends and Enemies; if he affords a Re.
ception to thoſe who have wronged and injured the Stare. (See Grotius lib. 2. c. 17. 5. 20.) In all thefe Cafes he is obliged to
Reflitution. And the other State has not only reaſon to take Arms, it the thing be troubleſome, bye to continue a War, till it
can gaia it ſelf a Security for the future, which is not allowed to one Citizen againft another. But of this we ſhall treat more
largely, when we come to ſpeak of the Rights of War.
(). Ex. Novell, 22. c. 20. (b) As for the Treſpafles done by Beaſts, which the Roman Lawyers term Pauperies, conſult their
Observations, ad Tit. D. ſi Quadrupes.
bodisi GT L city buttibu Oto Plata

ro
will miss 03 TO CHA P.
CHA P. II.
05. That all Men are to be accounted by Nature Equal.


II.
1. Every Man is to account another bis Equal. VI. Men offend againſt it by Pride.
1. What is a Natural Equality to this
VII. And by Affronts offered to others.
III, The Popular Reaſons for it.
VIII. Whether any be Servants by Nature.
IV. The Opinion of ſuch an Equality makes Men help. IX. Whence has proceeded that Inequality that is found
ful to one another.
V. How things are to be divided by it among many.
among Men.

B
every Man
ESIDES Affection which
ry Conſtitution Nature.
.
The word MAN
maintains for his own Life, and Body, and Pofa is thought to carry fomewhat of Dignity in its found;
feffions, by which he cannot but reſiſt and repel and we commonly make uſe of this, as the laſt and
whatever threatens Deſtruction to thoſe dear Con- the moſt prevailing Argument againſt a rude Inful.
cerns; we may diſcover likewiſe deeply rooted in ter, I am not a Beaſt
, a Dog, but I am a Man as well
his Mind, a moſt tender Efteem and Value for him- as your ſelf (a).
as your ſelf (a). Since then Human Nature agrees
ſelf; which if any one endeavour to impair, he is equally to all' Perſons, and ſince no one can live a
ſeldom leſs (and ſometimes much more,) incens'd, fociable Life with another, who does not own and
than if a Miſchief had been offer'd to his Perſon, reſpect him as a Man; it follows as a Command of
or to his Eſtate. This Paſſion, though it may be the Law of Nature, that every Man efteem and treat
heighten'd and improv'd by various external Cau- another as one who is Naturally bis Équal, or who is
fes, yet ſeems to lay its firſt Foundations in the ve- a Man as well as he (1).

Mr. Barbeyrac's NOTES on Chapter II. S 1. p. 308.
(1) This is a Conſequence of the Maxin, which was to be explained in the preceeding Chapter; for every one having a
perfect Right to expect, that he be regarded and treated as a Man, he thar doth ocher wiſe with another does him a real Ďa.
mage. This Dury being founded on an immovable Condition, viz. That men fhould be uſed preciſely as Men, is not only gene:
ral, but of perpetual Obligation, infomuch, that notwithſtanding all the inequality by the Changes and Diverſity of additional
Titles and Degrees, the Rights of Natural Equality always remain unmovable, and agree to every one in Relacion to another,
whatever Condition he is in. There are neverthelefs ſome Superiors ſo infolent that they plainly violate this Duty, creacing their
Inferiors after an inhumane Manner, by exacting of them exceſſive Labours, Naying them, or expofing their Lives to danger
without Neceffity, as if they were Beafts ; for though it be common for men to contemn each other, yet we ought to look upon
ſuch contemptible Perſons, as of the fame Nature with our ſelves. We ordinarily content our felves to account others as fool
.
h, and inconſiderable Perſons; in a word, as Perſons of no Merit, or accompliſhments, as we eſteem our ſelves, Titius Obſ. 172.
(a) Stacius, Thebaid. 12.
Hominuin inclyte Theſeus,
· Brave Theſeus, they were Men like all before,
Sanguis erant omnes eademq; in Sydera, eoſdem
And Humaa Souls in Human Frames they bore,
Sortitus animarum, aliment aqveſtra creati.
With Tou to take their Parrs in Earthly Feafts,
With you to climb on Heaven, and fit Immortal Gueſts.

word, de Petrons of no Metic.com
II. For
CHAP. II.
by Nature Equal.
13

vance, or
II. For the better underſtanding this Equality a• not only when a Man compares himſelf with o-
mongit Men, we may obſerve, that Mr. Hobbes (a) thers, but when he compares others amongſt
reſtrains it to a parity of Strength, and of other Hu- themſelves, and is not concernd as to his own In-
mane Abilities which attend a ripe and perfect Age; tereft, which fide carries the Advantage. Nor do
and would from hence infer, that all Men have good we always favour and commend him, who con-
Cauſe, naturally to fear each other (1). For he in- fpires with our own Thoughts and Deſigns; but
deed can ſtrike 10. Terrour into me whoſe power whom the fair contrivance and the good Succeſs of
reaches not far enough to hurt ine. But now a- his Project, entitles to our Approbation. And al-
mongſt Men, he who is inferior to another in bo- though ſuch is the Natural Temper of Man, fo gree-
dily ſtrength, inay either by Treacherous Contri- dy of Eſteem and Applauſe, that every one Dildainis
by Art and Dexterity, take away the to be upbraided with Folly or (2) Imprudence, and
Life of the ſtouteft Mortal (L). Since therefore the is exceedingly incens'd againſt thoſe who boaſt of
greateſt of Natural Evils
, which can proceed from Hu- much larger Talents, much higher Attainments
mane Power is Death, which any grown Perfon is than his Neighbours, yet it does not follow hence
able to bring upon another ; ſince thoſe may be that no one allows another to be wiſer than him-
term’d Equal, who can do equal Miſchief to each felf
. For what if we fanfie Two Men falling to
other, and ſince to kill is equally (becauſe in the gether into the ſame Danger, one of whom by his
higheſt degree) to Miſchieve, it follows hence that dexterous Management comes cleanly off, whilſt the
Men are by Nature equal (c). When he fubjoins other is baſely hamper’d, and eſcapes not without
that the preſent Inequality has been introduced by Cạ- conſiderable Hurt or Prejudice, will not the latter
vil Law, he ſeems to me very much to have forgot- here acknowledge his Fellow to have had a bet-
ten himſelf
. For he had been ſpeaking before of the ter Head-piece than himſelf? This is, indeed, a part
natural Equality of Men's Strength, to which it is of that Freedom which Men equally enjoy, that a
a great Impropriety to oppoſe the Unequalneſs, ari- wiſer Perfon ſhall have no right to challenge the
fing from Politick Inſtitutions, which does not af- Government of one more fimple, unleſs with his
fect or regard the Strength of Men, but their State Conſent; eſpecially if the latter profeſs himſelf to
and Condition ; does not make one Man ſtouter than be contented with his own little Sagacity, and not
another, but greater in Quality and Honour. Nor deſirous of the Controul, and the Direction of others.
has the ſame Author much better Succeſs, when he But although the Conſideration of equal Strength
pretends (d) to diſcover in the Faculties of the Mind, is thus far ſerviceable to our preſent purpoſe, that
a greater Equality than that of Strength. He ſays in- it may reſtrain one Man from raſhly inſulting over
deed, that all Prudence is but Experience, which Na- another, in as much as all Contention with an Equal
ture in equal time equally beſtows on all Men, in thoſe is of dubious Iſſue, and becauſe it is extreme Fol-
things they equally apply their Minds unto. But do not ly to deſire the hurting another by, undergoing our
we ſee one Man piercing more deeply than another ſelves the ſame Proportion of Miſchief: Yet the(3)
into the Conſequences of things (e), applying more Equality which we are now treating of
, if of a dif-
dexterouſly what he obſerves, and diſtinguiſhing ferent Species, and the inviolable Obſervation of
with more Perſpicacity, the likeneſs or unlikeneſs it, is in the higheſt Degree Conducible to the com-
of Caſes and Circumſtances? And hence it frequente mon Benefit and Intereſt of Mankind. And here,
ly comes to paſs, that of Two Men who have been as in all other things, may we juſtly admire the
employ’d an equal Time in the fame Buſineſs; one wiſe Contrivance of Nature, that whilft ſhe diſtri-
ſhall
grow Eminent for Management and Addreſs
, butes amongſt Men the Goods of the Body and of
whilft the other's Natural Heavineſs ſhall be little the Mind, by unequal Parcels and Meaſures, ſhe in-
amended, by fo long a Courſe and Experience of Af troduces this general Equality, to form an agreeable
fairs
. Nor does the great Diſparity of Men's Pru- Harmony amongſt all the other Varieties and Diſ-
dence ariſe only from their own faiſe and overwean- proportions. For as in well order'd Common-
ing (onceit of their Particular Worth; every one think- wealths, one Subject
may exceed another in Riches
ing himſelf to have a higher Degree of Wiſdom than or in Honour, but all are equal Sharers in the Com-
the Vulgar; that is, than all except a few, whom by mon Liberty; ſo under this Regulation of Nature,
Fame, or for concurring with himſelf, be is pont how much foever a Man may furpaſs his Neigh-
to approve and admire. For this Diſparity appears, bours, as to bodily or Intellectual Endowments, he

Mr. Barbeyrai's NOTES on $ 2. p. 309.
(7) in the Original this Paragraph is full of Miſtakes, Omiſſions and Superfluities, which fometimes render the Diſcourſe very
intricate ; I have endeavoured to unfold it, and rectifie' it, as well as I can, by following the Nocions both of the Author, and
Mr. Hobbes, whoſe Principles he recites with all Exactneſs. 7000!
ſeems to be the erue Reading.
(2) The Latin, even in the laſt Edition in 1706 hath, impudentian, but doubtleſs it is a fault in the Print, for imprudentiam
23. Mr. Titius makes our Author ſay that the Natural Equality of Men, or the Natural Equality which they have one to ano-
ther Thews it felf in Three Things. 1. Their equality of Strength. 2. Inequality of the Goods of Nacure, and Fortune. 3. The
Sanie Natural Obligations, but he miſtakes our Author's Senſe, for after he has rejected the Opinion of Mr. Hobbes, who inſiſts
upon an Equality purely Phyſical, viz. of Strength and Natural Faculties, he confines himſelf to the Confideration of our Moral
Equality, which he calls an Equality of Right, which he ſuppoſes to ariſe from our Conformity of Nature, which is made clear
by theſe words of our Author. Although Nature has beſtowed fome excellent Qualities of Body and Mind upon fome, which
the denies to others; yet all are obliged to obſerve the Maxims of the Natural Law one to another.
(a) De Cire, C, 1.1.3.
(5) Senecae de Ira, 1. 1. C. 4. There is no Man to contemptibly weak, who may not hope ſome way or other to wreck his
Revenge on the braveſt Perfon breathing. We are all ſtrong enough to do Miſchief. (c) It is the Argument of Palas in Virgil's
Totidem nobis animæq; manufq;
Our Hands are equal, and our Lives the ſame.
(.) Leitban, c. 13.
(P) See the Earl of Clarendon's Survey of the Leviathan. Loode on the Nature of Man, cap. 5.
is
14
Book III.
That all Men are to be accounted

Neigh-
is ſtill obliged to pay all Natural Duties, as readily ligation is able to make up to us fome other way
and as fully as he expects to receive them; nor do what we loſe by being more juſt than our
thoſe Advantages give him the leaſt Power or Pri- bours. But our Obligation to the practice of Na-
vilege to oppreſs his Fellows. Nor on the other tural Duty and Right, although impoſed by the ſu-
fide, does the bare unkindneſs of Nature or of For- preme Lawgiver, does thus far agree with Obliga-
tune, ſet a Man in a worſe Condition than others, tions of common Bargains and Covenants, that fo
as to the Enjoyment of common Rights. But what- ſoon as one Perſon recedes from it (6), he can no long-
ever one Man requires or expects from others, the er require the fame Offices from another; and be
faine may others (all Circumſtances being alike) de- fides, the other Party does hence acquire a Right of
mand from him, and the fame Judgment one de- compelling hinn by force to make Satisfaction.
crees againſt another, he is obliged in like caſe to Though the Genius of Civil Society makes it ne-
fubmit to himſelf (a)" (4). On this Account we can ceffary to abridge and allay this Liberty adhering
by no means admit of Cicero's Rule which he lays to a State of Nature, for the ſupport and mainte-
down in his third Book of Offices z Lex ipſa nature, nance of Government and of Peace.
&c. The Law of Nature-it jelf, which preferves and III. Other Reaſons there are Popular and Plauſi-
holds together the common Profit of Mankind, does de ble, which might give us no little Alliſtance in dif-
cree, That things neceffary for Life and Suſtenance, covering, and in illuſtrating this Equality. Amongſt
may be transfer'd from an idle and uſeleſs Perfon, to which this is not the leaſt conſiderable, that we all
a Man of Wiſdom, Goodneſs
, and Valour, who ſhould derive our being from one
Stock, from the fame com-
he be' Juffer'd to perif), would exceedingly prejudice the mou Father of Humane Race. On this conſidera-
Publick" by his Death (5). Much more unworthy of tion Boethius Checks the Pride of the inſulting No-
Approbation is that ſaying of the American, record-bility. You
ed by Montaign (b), who coming to Roan in the
Reign of Charles IX. and being ask'd what he ob Quid genus & proavos ſtrepitis?
ſerv'd t that was fingular in France, anſwer'd that Si primordia veſtra,
amongſt other things, he could not but wonder to nt Autoremq; Deum Speétas, entot Bot T1
fee ſome Perſons abounding in all manier of Plen-
of Plen- Nullus degener extat L. HILDO
ty, and others oppreſs’d with the moſt grievous"Ni vitiis pejora fovens,
Want, begging at their Doors, and not rather chu Proprium deſerat ortum.ount online
fing to invade and pillage them for their own Sup-
port. For as thoſe who excel in the Goods of the Fondly
, our High Defcent we boaſt;
Mind, of the Body, or of Fortune, ought not to If whence at firſt our Breath we drew,
treat Men of lower Condition with Haughtineſs and The common ſprings of Life we view,
Infolence, ſo neither ought theſe to envy or to rifle The airy Notion foon is loft.ru
their Superiors.
And this Equality we may call an Equality of Th' Almighty made us Equal All:
Right, the Principle from which it {prings is this, But he that ſlaviſhly complies
that the Obligation to a focial Life equally binds To do the Drudgery of Vice,
all Men, in -as inuch as it is the inſeparable Com- Diſowns his High Original.
panion of Hunan Nature, conſider'd finply as ſuch.
Mr. It chiner
Where we may obſerve farther, that between Ob-
ligations enjoyn’d by a Superior, and thoſe which Farther, that our Bodies are all compoſed of the
ariſe from Mutual Compact, there ſeems to be this fame Matter, frail and brittle, liable to be deſtroy'd
difference, that the latter imınediately ceaſe to by a thouſand Accidents of Miſchief. We all owe
a Man, when the other Party hath broken the A- our Exiſtence to the fame Method of Propagation
greement; whereas the former may ſtill engage us we are all by the ſame Degrees faſhion'd and com-
to fome Performances towards a Perſon who is want- pacted in the Womb of our Mother; and the No-
ing in a mutual return of Duty. And the reaſon of bleſt Mortal in his Entrance on the Stage of Life,
this is, becauſe the Author and Impoſer of the Ob- is not diſtinguiſh'd by any difference of Pomp or
more
TÚLI V
tur. c. 2. S. 7.
(4) Here we may apply the Determination of the Roman Lawyers. Quod quiſq; furiſ. &c. The ſame Law which we uſe againſt
othiers, we ſhould ſubmit to our ſelves, Digeſt. Lib. H. Tit. II. for the chiet part of Equity is Equality, Sen. Ep. XXX, as alſo
de Irå, lib. 1. c. 14. Phedr. 1. 1. Fab. 26. Diod. Sic. 1. 13. c. 30. Eurip, Phænisſ. v. 538. Quint. Declam. 3. Cumberland de leg. Na-
(5) Our Author ſeems not fufficiently to have attended to the Connexion of Cicero's Diſcourſe, if he imagines that the Orator
lays it down for a general Maxim, That we may always take the Goods of Fortune from them, who are not ſo worthy to en-
joy them as we are, as if a Perſon of great Meric had a ſufficient Title and Right to ſtrip a Proprietor of the Goods he is law-
fully poffetled of, whereas Cicero ſpeaks only of an extraordinary Caſe, viz. in extream Neceffity, and then,
as rigid as he ſeems
to be, builds his determination not upon thar Right which every one has to preſerve himſelt, but upon the good of Society,
whofe intereſt it is to preſerve ſuch a Perſon, for he ſays, that our of ſuch a Caſe, the moſt honeſt Man in che World, cho
he be almoſt famifhed, may not take a morſel of Bread from any Man, which may be of uſe to 'others. In a word, Cicero had
raken ſuch great Care 'to prevent any ſuch looſe interpretation of his words, that it is aſtoniſhing, how our Author could
fo ftrangely pervert his meaning.
() See Book II. c. 5. §. 1. above.
(a) As phedras ſays, 1. 1. Fab, 27. Sui quiſque exempla debet aquo animo pati. Every one ought to bear it patiently, when his
Example is curn'd upon himſelt
. Diodor, Śic. 1. 13. c. 30. 'Tis but juſt that a Man ſhould himſelf ſubmit to that Law, which
he hath preſcribed to others. Quintilian Declam. 3. We muſt needs think that every one when he paſſeth Judgment
ters approves of that which he himſelt would have done in the like Caſe. Add. Cumberland de Leg. Nat. c. 2.1.3. Senec. Epift
.
30. Equality is the firſt part of Juſtice. Euripides Phil.
’ris beſt my Son to keep Equality;
And States to Scates, and links confederate Wars.
The Mighty Band which Friends unites to Friends,
(b) B. 1. C. 30,
Paſſage,
on Mac-
CHAP. II.
soetaruby Nature Equal, da sodi
15

on the old
fer omnes.
Paliage, from the loweſt of Mankind (a). Our ought as freely to be at their Service, when they
Growth and Nourishment is perform'd alike, and want his help on the like Occaſions. One good turn
the groſs remainders of our Food are carried into the requires another, is the common Proverb. For
, he
ſame Common Shore. Laſtly, our Life haſtens to the mult certainly eſteem others unequal to hiinſelf, who
fanie General Mark; Death obſerves no Ceremony, conſtantly demands their Aid, and as conſtantly de-
but knocks as loud at the Barriers of the Court, as nies his own. And whoever is of this inſolent Tem-
at the Docr of the Cottage (b), and after Death, our per, cannot but highly diſpleaſe and provoke thoſe
Bodies are reſolv'd into the fame Duſt and Corrup- about him, and ſoon give occaſion to a breach of
tion (C). Beſides, wiſe Men are ever preſling it up- the Common Peace (1). It was a manly and gallant
on our Conſideration, that we are alike obnoxious Reproof which Cara&tacus gave the Romans, Num fi vos
to the ſports of Fortune, to the endleſs variety of omnibus imperitare vultis, Jequitur ut omnes fervitutem
Dangers and Miſchances ; or rather, that the Divine accipiant? Becauſe you deſire to be Maſters of all Men,
Diſpoſer of all things, enſures 110 Man in his preſent does it follow that al Men muſt deſire to be your Slaves (2)
State, or in the Poffeffion of unſhaken Felicity: And indeed, it as much implies a Contradiction
But according to the Secret Counſels of his Provi: to deterinine differently in my own Cafe, and ano-
dence, expoſes diverſe Men to various Changes, and thers
, when they are exactly Parallel, as to make
Troubles
, as if he pleaſed himſelf in raiſing the Poor contrary Judgments on things really the ſame. Since
out of the Duft, and cafting the High down to the then, every Man is well acquainted with his own
Ground. See (*) at the bottom of the Page. Nature, and as well at leaſt as to general Inclina-
Our Chriſtian Profeſſion ſuggeſts many Motives to tions, with the Nature of other Men, it follows that
the ſame purpoſes as that God does not eſteemn Man he who concludes one way as to his own Right, and
according to their Nobilty, their Power, or their another way as to the ſame Right of his Neighbour,
Wealth, but according to their fincere Piety and is guilty of a Contradiction in the plaineſt Matter:
Goodneſs
. And that at the laſt great Day of Judg. An Argument of a Mind unſound in no ordinary
ment, of the Diſtribution of Rewards and Puniſh Degree. For no good reaſon can be given, why what
ments in another Life, no regard will be had to thoſe I eſteem juſt for my felf
, I ſhould reckon unjuſt for
who ſwell in Port and Figure, beyond their Neigh- another in the ſame Circumſtances. Thoſe therefore
bours of this world.
are moſt properly fociable Creatures, who grant the
IV. This Equality being admitted, there flow from fame Privileges to others, which they deſire ſhould
it ſeveral Precepts, the Obſervation of which bears be allow'd themſelves (d); and thoſe the other
a very great force in the maintaining of Peace and Hand, are moſt unfit for Society who imagining
Friendſhip amongſt Men. And this in the firſt themſelves a Degree above vulgar Mortals, would
place is moſt manifeft, that he who would uſe the have a particular Commiſſion to do whatever they
Alliftance of others in promoting his ownAdvantage, pleaſe; they give themſelves a free Pardon for all
arcut.
We
Mr. Barbeyrac's NOTES on $ 4. p. 312.
6, () The French Tranſlator in this place goes on thus. For according to the Remarks of a Judicious ancient Chriſtian Doctor,
(uz: Lalantius Ift. Div. l. 3. c. 23. Nihil ſapienter fit, &c. Nothing is conformable to the Rules of wiſdom, which being
pradifed by every one, becomes Hurtful and Evil.
(2) The Author here ſets down a Speech of Cara&tacus, a great Commander of the Britains, the ancient Inhabitants of Eng-
land, which he ſpoke with much Courage to the Romans. Num fi vos, &c. but this Paffage were better placed elſewhere, ſince
he doth nor here treat ac all of the Right of commanding others, but only of requiring a Duty.
(a). See Wiſdom VII. 5. (b) Mors &quo pulſat pede pauperum tabernas_Regumque turres.
Θανάτω πάντες οφειλόμεθα. How
The World owes us all to Deatho bueno s 2 Sil bipazione anime
(c) Claudian in Ruffin. I. 2.
Bentu
vitam,
,
Deveniunt, ubi hulum-marent' diferimina fati, tot i From Earth's wide Stage, the moreal Actors
Nullus honos, vanoq; exutum nomine regem,
And here partake an undiſtinguiſh'd Doom.
Proturbat plebeius egens.
Alide their Honours with their Robes they throw
The Herald and his Trade are loft below.
48. urisht. so nav isbote The King depoſed, forgets the Duſt he made;
And the rude Pealant crouds che Royal Shade.
Phocylides, ITav)es voor vexes, the Dead are all upon a Level. Lucian 'loclipici estén ñ d'o ng Diyoso a marles, the Grave admits
no difference in Title or Degree
. Cicero de Leg. l. 2. It is moft agreeable to Nature, that Death Thould take off all Diſtinction of
Fortune. Statius. Theb. X.
-Titulique in more latentes. O gak
Ticles hid in Duſt.
Add. Sirach. x.
(4) Qui ne tuberibus propriis offendat amicum a om gic He that would have his Bötches not offend, to mojitve
poftulat, ignofcat verrucis illius : &quum est notaro Muft wink at puny pimples in his friend, odia
Peccatis veniam pofcentem reddere rui jus. dom Indulgence fhould be múcual, they that want
Hor. l. Sar. 3. The largeſt Pardon, ſhould the largeſt grant. Shou;
Valet ima summis owo Mu
Mutare, do inſignem attenuat Deus.
Obſcura promens. Hor, I. 1. Od. 34 GOD can quite change the Conditions of Affairs, and the Stations of Men. Idem 1.7.
quod quifque uiter nunquam homini faris caurum est in hot as. No Man is provided againſt the “Accidehes of the nexes
SOTOO AT 255909.500
Tanta eſt rerum difcordia in eos, pis osal
-Hence there ſprings
Et fubtenta malis bona ſunt, lacrymeq; ſequuntur
That various Diſcord which is ſeen in things:
Vita, le in cun&tis fervat fortuna tenorem, nebub 41104 In one continued ſtream no Fortune flows,
Uſque adeo fermixta fuit, nec permanet unquam,
Amifitq; fidern variando cuneta
Joy mixes Grief, and Pleaſure's urg'd by Woes:
Forced 420T inconftancy in every part appears,
Which Wiſdom never trufts, but Folly fears.
to aradaulid bin slonis going to be to
us
mind ho. Mr. Creech,
A moſt noble ſtrain ivé have to the ſame purpoſe in Séneca’s Thyeſtes, Ille qui donat diadema fronti, &c. cod
Arrian (in Epičet.) tells a Story of a poor Shoemaker, whom his Maſter Epaphroditus fold off as a'Slave of liccle uſe. In fome
fine the man got the Honour of Working at his Trade for the Emperor; and then 'twas pleaſant to ſee how Epaphroditus made
come, on
rg

0
4.9.&c.
bis 2
sum , Us
.
Hour. Manil. lib.
his Court to him.
things
16
That all Men are to be accounted Book III.
ܪ
ad nor For
things, and vouchſafe not to others the leaſt Indul- private Man (3). "Galba in Tacitus (d), gives Paſo
gence; they demand the Principal Share of com an admirable piece of Advice to the ſame purpoſe
.
mon Honours, and of common Goods ; though their Utiliſimus idem ac brevilimus bonarum malarumq; re-
Right and Title is not diſtinguiſh'd by any peculiar rum delectus eſt cogitare, quid aut volueris fub alio
Excellence or Advantage. For as in railing an E- principe aut nolueris. The beſt and the ſhorteſt rule to
difice, a Stone which by reaſon of its rough and an- obtain the true Art of good Government, is to confider
gular Figure, robs others of inore room than it fills what you would your jelf approve, and what you would
it ſelf, and upon account of its exceeding Hardneſs, condemn in another Prince ; and accordingly to pra-
cannot conveniently be cut into Regularity, and ſo etiſe the former, and to avoid the latter. And Seneca
hinders the whole Frame of Building from cloſing (e) joyns in the ſame wiſe Direction ; This (ſays he)
together, is thrown aſide by the Workman, as un is the Sum of my Advice, Jhet ſuch behaviour to-
fit for all Uſe and Service; fo thoſe uncover Ices, thoſe wards an Inferior, as you would have a Superior Joca
greedy Churls, whoſe rough and ſavage Temper in- towards you (f).
clines them to heap Superfluities on themſelves, and to V. The fame Equality teaches a Man how to car-
deprive others of meer Neceſſaries, and whoſe vi- ry himſelf, in caſe he be appointed Arbitrator of
olence of Paſſion makes them uncapable of being any Right betwixt others, namely, that be treat
reclaim'd, are indeed the great Impediments of So- them as Equals
, and give no Favour or Indulgence to
ciety, and the Plagues of Mankind. Hence it is a one above the reſt, except ſuch as he can claim by vir-
Command of Nature's Law, that no Man who has tue of ſome peculiar Right. For he that by a partial
not obtain'd a particular and eſpecial Right, ſhall arro- preference of one Perſon to another, violates the
gate to himſelf a larger ſhare than his Fellows ; but Rule of Natural Equality, is at the ſame time
ſhall admit others to an Enjoyment of equal Privileges guilty of an Injury, an1 of an Affront, by deny-
with himſelf (a). Therefore the Comınillioner in ing a Man what is his juſt Due, and by detracting
Livy (b), who came to treat with the Common Peo- from that Worthineſs, which Nature gives him in
ple in Sedition, was guilty of Infolence, when he common with his Fellow (1). It follows as a
told them, Satis fuperq; humilis eſt, qui aquo jure in Corollary from this Doctrine, that if the thing
civitate vivit, nec inferendo injuriam, nec patiendo. which is to be diſtributed amongſt many, admit
He is bumble enough, and indeed toó humble in a not of a Diviſion, the Perſons who have an equal
State, who is content to live upon equal Terms and Right to it, uſe it in common, and without ſtint,
Rights,
neither doing an Injury nor taking one. As if the quantity of the thing will allow it; if
not,
if it were a hard Caſe that the Privilege of Nobility that they then uſe it in a certain and limited man-
ſhould not be ſtrong enough to diſpenſe with that ner, and with proportion to their Number. For it
Fundamental Law of Equity, Do as thou wouldft he is not poſſible to find out any other way of obſer-
done by (c)! On this Principle is built ving an Equality in theſe Caſes. But if the thing
* Plin. Pane- that gallant Compliment of * Pliny to
can neither be divided, nor poſſeſs'd in common,
gyr. c. 2. n. 4. the Emperor Trajan, Unum ille ſe ex then the uſe of it ſhall either be taken by turns
nobis, & hoc magis excellit atque eminet quod unum (2) (8), or if this Courſe too fail of Succeſs, and if
ex nobis fe putat : nec minus hominem fe quam homi- likewiſe one of the Contenders cannot give the others
præefe meininit
. He thinks himſelf one of us, an Equivalent to ſecure to himſelf the whole Enjoy-
and 'tis this makes him more our Superiour, that he ment of the thing deſired, then one ſhall
Carry
paſſes in his own Judgment for our Equal, and remem- from the reſt, by the fair Deciſion of a Lot; which
bers himſelf to be no leſs a Man than the meaneſt Sub- is the moſt proper Remedy that can be applied to
je&t whom he governs. For that excellent Prince all Differences of this kind, in as much as it takes
when he accepted the Supreme Command, had pro- away the Notion of Contempt, by ſetting all the
miſed that private Men ſhould find him ſuch an Parties on a Level,
Emperor, as he himſelf deſired to find, whilſt a Man, yet does not in the leaſt diſgrace him (h)
Would yoni
(3) The excellent Saying of Seneca to this purpoſe is very remarkable, Sic cum inferiore vivas, quemadmodum tecum velles ſu-
periorem vivere, Deal fo with your Inferiors, as you would have your Superiors deal with you. Epift. 47. & de ira c, 28.
borbe
Mr. Barbeyrai's NOTES on 6 5.
(1) For as an ancient Author (viz. Livy, 1. 34. C. 4.) ſpeaks, Quod alii liceat, tibi non licere aliquid naturalis aut pudoris aut in-
not be , .
(2) When things are to be enjoyed by curns, the Lor muſt decide who ſhall have the firſt turn. Hobbes c. 3. $ 17.
a Thus the Tribune of the Commons ſpeaks in Dionyſius Halicarnasſ&us, Antiq. Rom. lib. 7. C. 41. With regard to the under.
written Laws of Nature, Oye Senators, we demand that the People may thus far enjoy the ſame Rights with you. We grant
that thoſe of your Number who excel in Vertue and in Fortune, ought to poſſeſs the chief Offices and Honours of the State:
But this Privilege we preſume may be fairly challeng’d by every Member of a Commonwealth, to be ſecured from Injuries, and
to obtain Juſtice againſt thoſe who offer them. Lactant. Div. Inſtit. I. 3. c. 21. He that would bring Men to an Equality, muſt
take off all the vain humour of Arrogance and Pride; and ſhow thoſe who ſwell with Power and Grandeur, that they are indeed
on the Level with their molt needy Vaffals. Add. Sen.de Ira, f. 2. c. 28. (6) Book III. Chap 53.
(c) See the arrogant manner of the Satisfaction given by the Duke of Joinville to Mareſcote in Gramond. Hift. Gal. I. 8.
(d) Hiſt. 1. 16. (e) Epiſt. 47. (f) Hence appears the intolerable Inſolence of that Saying in Lucan. I. 5. v. 340.
Nunquam ſic cura Deorum i 1911 golul
--Heaven chinks not on the vulgar Herd,
Se premit ut veſtræ morti veſtræq; faluti, poticano
Their Deaths to haften, or their lives to guard ;
Fata vacent ; procerum motus hæc cunéta Jequuntur, то на
Fortune dildains to coure ſo mean a Care,
Humanum paucis vivit genius.
genius. ti bor19110
Nor leſs than Cefar is a Mark for Her.
The Fate of Subjects on their Lords muſt turn,
And little Mortals for the Great are born.
This my Lord Bacon calls a Gygantean Temper of Mind, poſſeſſing thoſe grand Diſturbers of the World, who feem to aim at
nothing leſs than to render all Men happy or miſerable, according as they appear their Friends or foes; and as it were to
make all Nature bear their own Image; which is properly fighting againſt Heaven, De Augment. Scient. 1. 7. C. 2.
(8) Curtius I. 7. c. 6. In this hor Contencion between the two Parties of Horſe and Foor, for the Honour of carrying their
Prince, Alexander finding it would be difficult for him to make the choice, and that he could not ſatisfie one order without
diſguſting the other, commanded they ſhould bear his Litter by curos. (h) Proverb. XVIII. 18.





it
ADIOCO
bow
Hobbes
CHAR. II.
17
by Nature Equal.
CC
Hobbes (a) has divided Lots into two ſorts, Arbi ought to eſteem or diſeſteem himſelf; and then
trary and Natural. The former is ſuch as the Com be makes out, that the only juſt Cauſe of eſteeming
petitors agree upon, engaging to ſtand to the E ourſelves, ariſes from the lawful uſe of our Power
vent, whilſt they cannot by any Art govern or fore “ of free Choice, and from the Command and Autho-
ſee it; and therefore this kind of Lot with regard“ rity which we exerciſe over our Wills; ſince be-
to Men, depends entirely on meer Chance and For “ fides the Actions which depend on that Faculty,
tune. Natural Lot, he ſays, is either firſt Seizure, “ there is nothing in us that can properly, merit
by which a thing which can neither be enjoy'd in “ Praiſe or Diſpraiſe. Hence be concludes, the true
common nor divided, paſſes to him, who ſhall firſt “ Notion of Generoſity which Prompts a Man to
lay Hands on it with a deſign to keep it ; or Pri “ value hinſelf as highly as in Reaſon he ought,
mogeniture, by virtue of ſuch Paternal Goods as to conſiſt in this, that he acknowledge nothing
can neither be divided nor poffeſt in common by to be truly his own but this free Diſpoſition of
many Children, are adjudg’d to the Firſt-born. “ his Will, that he be ſenſible he cannot purchaſe
Yet if we accurately conſider things, there will Blame or Commendation, otherwiſe than by the
appear to be no proper Lot but what we may call “ill or the good uſe of this Power, and that at the
Arbitrary. For 'tis not eaſie to allign a Reaſon ſame time he feel within himſelf a full Pur-
why ſuch an Event as a Man cannot procure by poſe and Reſolution of uſing it well. He pro-
his own Induſtry, ſhould give hiin a Right which “ ceeds to obſerve, that thoſe who have ſuch a true
ſhould hold good againſt his Equals, unleſs this “ Senſe of themſelves are eaſily inclin’d to think,
Right was aflign’d or adjudg’d to this particular " that every Man judges of his own Worth in the
Event, by the Arbitrary Appointment and Agree “ ſame manner, ſince there is nothing in this No-
ment of Men. Thus a thing which no one has a “tion which hath any Dependence on external
particular Right to claim, belongs (3) by Compact Things or Perforis. That for this Reaſon they ne-
to the firſt Seizer; becauſe when diſtinct Proprieties ver deſpiſe others, but are ready to excuſe their
were introduced, there ſeems to have paſs’d this ta Faults, as proceeding rather from Miſtake, than
cit Agreement amongſt Men, that thoſe things Deſign. That as they think themſelves not much
which were not peculiarly aſſign’d to any Owner, “ Inferior to thoſe who exceed them in Wealth, Ho-
and yet could not without a prejudice to Mankind nour, Beauty, Wit, or Learning, knowing that
always left in common, ihould be the Right of theſe Advantages ought not to come into the Ac-
the firſt poſſeſſor. And thus too the Right of Pri count; ſo when they find themſelves poſſeſs’d of
mogeniture, owes its original to Humane Conſtituti “ the like Goods, they do not fanſie they are much
on and Compact. For otherwiſe, why ihould the Superior to thoſe who want them. Hence, he
younger Brothers born of the fane Parents, be pla ſays
, there is diſcoverable in the moſt generous
ced in a worſe Condition than the Eldeſt, barely up Spirits an honeſt Humility; a Vertue conſiſting
on account of an Accident or Circumſtance, which " in the Reflection which we make on the Infirmi-
it was not in their power to hinder (b)? Now the ty, of our Nature, and upon the Miſcarriages
reaſon why theſe two Claims by Primogeniture, and “ which we either have formerly been guilty of, or
fir At Seiſure, are ſometimes, though improperly calld may be hereafter, theſe being no leſs than we ſee
Lots
, is this, becauſe they cannot be foreſeen or di- “ committed by others; whence it comes to paſs,
rected by any power of Humane Induſtry, and be " that we prefer not our felves to any Perſon liv-
cauſe it reflects no real Diſgrace on a Man to loſe “ing, wiſely conſidering that all Men have the
the Preference, for want of theſe Advantages (4). “ fame Faculty of Free-will, and may all imploy
VI. This Rule of Equality is likewiſe tranſgreſs'd“ it to as good uſe. He remarks farther, that thoſe
by (1) Pride, when a Man (2) for no Reaſon, or with who entertain a good Opinion of themſelves for
out ſufficient Reaſon, prefers himſelf to others, bear any other Cauſe, are not endued with real Gene-
ing a lofty Carriage towards them, as baſe Under- “ roſity, but puffed up with empty Pride, which
lings
, unworthy of his Conſideration or Regard. “ as it is always Vicious, ſo it is aggravated the
How vaſtly diſtant this Temper is from the Ver more, the more unjuſt the Cauſe is on which the
tue of Generoſity and true Greatneſs of Mind, Des “ Self-Conceit is founded. And the moſt unjuſt
Cartes has moſt elegantly ſhewn in his Treatiſe of “ Cauſe of Pride, is the being proud without Cauſe;
“ He lays it down as a Principle, “ that is when a Man being conſcious to himſelf,
“ that it is one of the chief Parts of Wiſdoin to " that he has no real Merit which ſhould entitle
“ know how and on what Accounts every one him to Eſteem, imagines Glory to belong to

66

c
CC
the Paſions.
1. 2. c.4.
(3) We ſhall make it appear in its proper place, that this is a falſe Suppofition. See Lib. IV. C. 4. part. 4. Note 2.
(4) This Point is more largely diſcourſed of, Lib. 4. C. II. $ 8. & Lib. 5. c. 9. § 2.& Lib. 7. c. 7. $ 11.
Mr. Barbeyrac's NOTES on S 6. p. 315.
(1) Pride taken in its moſt extenſive Meaning does not always directly oppoſe the Natural Equality of Men, as may ap-
pear from $1, Nore 1.
All that our Author ſays here refers only to Mens Reputation in general. For Pride in general ſigni.
fies nothing elſe than a very high Opinion of a Man's felt. See Titius Obferv. 179, &c. and Thomafius's Inftit. of°Juriſpr. Div.
(2) When any one has lawfully gorten a Righe which gives him a Preheminence above others, he ought to value
and maintain it, provided that he avoid a'i vain Ortentation, and all Contempt of his Inferiors. And on the other ſide Inferi-
ors oughe not in this caſe to refuſe them a preference, but pay them the Honours which they may lawfully require, as our
Author ſays in his Treatiſe of the Duties of Men and Gitizens. lib. 1. c.7.9 5. Our Author cites at the bottom of this para
graph a Paſſage out of Euripides
, thewing us, that if any one is arrived at a degree of Diſtinction, he ought not to be proud,
but on the contrary have the greater Affection for his friends, by how much he ſees himſelf in a better Condition to do them
Service. Iphig. in Aulid. v. 343. He alto recites a Paſſage oue of Lucian, Tom. II
. p. 14. of Images. Ojdels 78 pgovhois, &c.
No Man will envy Perſons in Authority, if they
uſe their power with Moderation. **Tis the abuſe of Power that begers Enry.
Mr. Ablancourt delivers the ſame. What goes before, and what follows after, deſerves Reading.
(a) De Cive c. 3 f. 15, &c. Leviath. Engl. p. 78.
(6) Therefore Ariſtotle ſays, Brothers are equal, except they differ in Age, Erbic. 8. c. 52.
+ c
" every
18
Book III.
That all Men are to be accounted
06
CC
CC
every one that pleaſes to uſurp it, and that the nable, and inflames the Sufferer with the greateſt
greater Share a Man claims of it, the greater he violence of Anger and Revenge. For we find ma-
really enjoys (3). A Vice fo extreamly abſurd, ny Perſons who will expoſe their own Life to pre.
" that 'tis ſcarce credible any ſhould proſtitute them- ſent Danger, and much more break the Peace with
felves to fuch a Baſeneſs, were there not a Pack of others, rather than put up ſuch a grating Indigni-
" idle Flatterers in the World, who by their falſe ty. In as much as every Act of this Nature is a
Praiſes, ſwell Men of heavy Parts, into this moſt Wound to a Man's Glory or Reputation, of which
ſtupid Degree of Folly, which the Poet (a) calls a Goods we are more proud, and more tenderly ſen-
" kind of Madneſs.
fible than of any thing elſe we poſſeſs, and in the
Nor does a Man's Advancement to Honour or ſafe and flouriſhing State of which, almoſt the whole
Power, give him any juſt Reaſon to be Proud; on Pleaſure of our Mind conſiſts (1).
which Point Menalaus in Euripides (b), thus admira VIII. From what has been offer'd on this Head, it
bly expoſtulates with Agamemnon.
is eaſie to diſcover the Abſurdity of that Opinion,
derived from the Ancient Greeks, of ſome Men's be-
porod? To traédale, degåev Aeroidais, &c.
ing Slaves by Nature. Which if taken in the ſame
Crudeneſs of Senſe as it bears in the Expreſſion, is
You know when with Ambitious Aim you ſtrove, directly repugnant to that Natural Equality, which
To lead the Greeks to Troy, and rule the War, we have been endeavouring to eſtabliſh (e). Thus
How meek you look d, how low you ſtoop'd to reach
much indeed is moſt evident, that ſome Men are
The meanefi Hand; your Hoſpitable Gate,
endued with ſuch a Happineſs of Wit and Parts, as
Free of Acceſs, let in the Vulgar Tide ;
enables them not only to provide for themſelves and
Tou, as in order thro' the Ranks you paſt,
their own Affairs, but to direct and govern others.
With Courteous Arts of Popular Addreſs,
And that ſome again are ſo extreamly Stupid and
Salated, Man by Man, the gaping Crowd,
Heavy, as to be unfit to govern themſelves, ſo that
And fore'd your Honours on unwilling Clowns : they either do Miſchief or do nothing, unleſs others
That low Compliance might advance your Pride, guide and compel them. And farther, that theſe
And in the common Market Purchaſe Praiſe. Iaft being commonly furniſh'd by Nature, with
But Maſter of your Wiſh, and voted Chief
ſtrong and hardy Bodies, are capable of bringing
Of our united Force, lofty you grew
many notable Advantages to others by their Labour
Int Mariners as in Place; your Doors were barr’d,
and Service. Now when theſe have the Fortune to
Four Friends (once Friends, but now intruding Slaves) live in Subjection to a wiſe Director they are with-
Drove back with Scorn; your ſelf, like ſome Rich Gem, out doubt fix'd in ſuch a State, as is moſt agree-
Deeply encas’d, and veild from Vulgar View, able to their Genius and Capacity. If therefore
But a good Man, if Wealth or Dignity
theſe two Parties of Men voluntarily conſent to the
Exalt his Staté, ſhould keep his Soul unmov’d Eſtabliſhing of ſome common Government a-
From Vertue's Centre, and elude the Charms
mongſt them, it is conſonant to Nature, that the
Of ſwelling Infulence; ſhould freely ſmile
former be inveſted with the Power of Commanding,
On Friends beneath, and ſerve them with more Will
and the latter with the Neceflity of Obeying, by
When his improv'd Condition gives more Power.
which Method the Intereſts of both will be belt
promoted and ſecured. And in this Senſe we may
* Lucian (c) has left an excellent Obſervation to without Danger admit of Ariſtotle's Aphoriſin, laid
the ſame purpoſe, No Man, ſays he, will envy one
down in his firſt Book of Politicks, c. 2. Tè ugu dren
advanced to Eminence and Grandeur, if he ſee him 'Levov tý dravórą wegweěv, &c. which according to
bear his Fortune with Moderation.
(2) Heinfius his Paraphraſe, runs to this purpoſe; No-
VII. A much heavier Breach of this Equality is it, thing is more ſuitable to Nature,than that thoſe who excel
for a Man to ſhew his Contempt of others, by out- in Underſtanding and Prudence, and are able to judge
ward and open Signs; whether by Actions or Words, of things at a Diſtance, ſhould rule and controul thoſe
by a Look or a Laugh, or any ſuch Affront; one who are leſs happy in theſe Advantages; on the other
kind of which is often expreſs’d by troubling band, thoje whole bodily Strength and Vigour, enables
another with a Ridiculous or a diſagreeable Preſent them to put the Commands of wiſer Men in Execution,
(d). Which Sin is to be reputed ſo much the more
are by Nature framed and deſigned for Subjection and
Heinous as it gives the higheſt Provocation imagi- Obedience. From this Conſtitution of things, the So-







(3) This Vice is not only ridiculous in itſelf, and with relation co him that is guilty of it, being ſo fooliſh as to value Inimſelf
without any ground, but is very injurious to others; ſince he muſt at leaſt imagine, chat the reſt of Mankind are fuch Sots
and Fools, as to pay their Reſpects co Perſons of nó manner of Merit.
Mr. Barbeyrac's NOTES on 6 7. p. 316.
(1) There is a Paſſage in Mr. de la Bruyere's Characters in the Chapter, of Man, worthy of our Reading, becauſe it confirms
and illuſtrates the Notion of our Author. 'Tis this: They who take away our Goods by Force or Injuſtice, and rob us of our
Honour by Calumny, ſhew their Hacred to us fufficiently; but yet they do not equally prove that they have no Eſteem for us
On the contrary, Mockery is an Injury, which leaſt of all deſerves Pardon; it is the Language of Contempt, and ſuch an one as
is eafi'ieft underſtood; it attacks a Man in his laft Entrenchments, i.e. the opinion of himſelt; it renders a Man ridiculous in
his own Eyes, and couvinces him that he has the worſt Diſpofition to him poſſible, and ſo renders him irreconcileable.
Mr. Barbeyrac's NOTES on § 8. p. 316.
(2) There is a Letter of Dan. Heinfius's in the varions Readings of Janus Rut gerfius, l. 4. c. 3. wherein he ſhews, that Arift Atle
did not ſpeak of the Natural Condition of ſuch as are naturally diſpoſed to be Slaves, but of their Natural Servitude. And he
endeavours to reconcile the Maxims of Philoſophy with the Civil Lawyers,who ſay, that
Slavery is contrary to Nature. See Note S.
following, and Lib. VI. c. 3. $ 2.
(a) Pindar. Olymp. 9. Tè veux aetere naeg. Hargóv navícron d'horpéner. To boaſt unſeaſonably is the Character of Madmen.
(b) Iphigen. in Aul. (c) De Imaginibus. (d) Add. l. 5. 1. 1. D qui ſatiſdare cogantur, Matt. V. 22.
(e) And therefore Strabo, 1. 1. 1peaking of thoſe who adviſed Alexander to treat all Græcians as Friends, and all Barbarians 15
Enemies, wiſely obſerves, that the Diſtinction ought rather to have been founded in the Goodneſs, than Badneſs of the Perſons ;
many Grecians being wicked and cruel, many Barbarians vertuous and obliging.


vereign
CHAP. II.
19
by Nature Equal.
vereign and the Slave receive equal Advantag, the A Soul with Sage Experience fraught,
Benefits and the Conveniencies are alike on both ſides Whoſe generous Worth and ſteadfaſt Thought,
(a). Yet it would be the greateſt Abſurdity ima. Nor Frowns of Adverſe Fate could grieve,
ginable to believe, that Nature actually inveſts Nor ſmiling Happineſs deceive.
the Wiſe with the Sovereignty over the Weak A Mortal Enemy to Knaves,
and Imprudent, or with a Right of forcing them to And Gold that makes them: Gold enſlaves
ſubmit and obey againſt their Wills. For no Sove The wicked World, but owns its Charms
reignty can be actually eſtabliſhid, unleſs ſome Hu A Match too weak for Vertues Arms.
mane Deed or Covenant precede. Nor does a Natu Not Conful of a ſingle Year, &c.
ral fitneſs for Government preſently make a Man Go-
vernour over another, who is as Naturally adapted And what Plutarch reports of Pelopidas, that he
for Subjection; nor, ſuppoſing a thing to be profi- held the Supream Command longer than the Laws al-
table for another, is it therefore lawful for me to low'd of, leaſt his Succeſſors thro’Idleneſs or Miſs
force it upon him againſt his Inclination. For all management, ſhould prejudice the Affairs of the
Men enjoy a Natural Liberty in the ſame Meaſure State, muſt be look'd on as an Inſtance, not of any
and Degree, which before they ſuffer to be impair’d ftanding Right, but of an extraordinary Indul-
or diminiſh'd, there muſt intervene either their own gence (d).
Conſent, Expreſs, Tacite, or Interpretative, or ſome And here too we have an Opportunity of inter-
Fact of theirs, by which others may obtain a Right preting that ſaying of Albutius in Seneca (e), which
of Abridging them of their Liberty by Force, in is commonly cited on this Subject. By Niture a
caſe they will not part with it by a Voluntary Sub- Man is neither Bond nor Free; 'twas Fortune that
miſſion. 'Twas therefore well urged by Quinctili- afterwards introduc'd theje Names. That is, ſo long
an's Declaimer (b). What hath Nature produced a as all Men were Equal, they could not be diſtin-
mongſt all her Works which ſhe hath not ſet in a State guiſh'd in our Mind by ſuch a State as is oppolite
of Freedom? I forbear to ſpeak of Slaves, whom the to their Natural State of Equality. But afterwards,
bard Chance of War hath deliver'd up as a Prey to the when thoſe who loſt or quitted that Natural State,
Conquerours, though they were born by the fame Laws, got the Appellation of Bondmen, in like mannet
by the ſame Neceſſity, by the ſame Accidents contribua thoſe who retain'd it did now entirely engroſs the
ting to their Original. They draw Breath out of the Title of Free. The thing may be explain'd by this
Same free and common Air; and 'twas not the Decree familiar Inſtance in a like Cafe; fo long as there
of Nature which gave them Maſters, but the Unkind- are no Military Men in a State, the Subjects all
neſs of Fortune. 'Tis a Maxim of Ulpian, that all keep the ſame common Name and Condition ; but
Men by a Natural Right are born free (c); which when part of the Subjects are liſted into armed
Freedom Grotius interprets,
To be ſuch as is on- Troops, the Diſtinction of the Souldiery and the
ly a Privation of Servitude, not a Contradi&tion Country immediately ariſes. And according to this
to it; that is, it provides, á Man ſhall not be Explication may we admit of that Notion, which
by Nature a Slave, but it gives him no Right that Ariſtotle (f) cites and rejects, that Bondage and Free-
he ſhall not become a Slave afterwards; for no dom owe their Original to Law. For were not Ser:
"Man is in ſuch a Senſe Free, as that it ihall be im- vitude introduced by humane Compacts and Conſti-
poslible for him to loſe his Liberty. The ſame tutions, ſuch a Difference would be unintelligible,
Truth
may be thus explain d in other Words; ſince all Men being placed by Nature in the fame equal
Nature hath produc'd all Men Equal, and ſince Ser. State; as the Emperor ſpeaks in the Inſtitutions
vitude cannot be conceiv'd without Inequality, (for (8), whereas before all Men enjoy'd the ſame general
Servitude neceffarily brings in a Diſtinction of Su- Name, the Law of Nations brought in three kinds of
perior and Inferior? Whereas in the Notion of Li- Men, Liberti, Servi, and Libertini; Men that are
berty, it is not requiſite that we ſhould have an In- Torn Free, Menthat are Slaves, Men that being at firſt
terior, but 'tis fufficient that we are Subject to no Slaves have obtained their Freedom. Or it inay be e-
Superior;) it follows that all Men Naturally, and nough to juſtifie that Saying, which Ariſtotle dife
Antecedently to any Humane Deed, are conceiv'd likes, to give it this Senſe, the Rights of Liberty and
to be Free. But Natural Ability, or the Poffeffion Servitude, as they are conſider'd in Men living under
of fuch Qualities as are Requiſite for any State, do ſettled Governments, are defined by Civil Laws.
not immediately ſet a Man in that State. Every Many other Conſiderations there are of fufficient
one who hath Capacity enough to rule a People, or Strength, to overthrow that vain and groſs Opini-
to command an Army, is not without more adoe a
on of Slaves by Nature. For there is ſcarce any Man
King or a General. Nor can ſuch an accompliſh'd fo dull and ſtupid, but he fanſies it will be more
Man as Horace's Lollius preſently challenge to him- proper and convenient for him to live according
to
felf the Conſular Faſces; tho” he fully anſwer that his own Inclinations, than to ſubmit himſelf to the
Command, and to the Pleaſure of another. This
Natural Deſire appears more evidently in whole
Eft animus tibi
Nations, none of which are ever ſo low-fpirited as
Rerumq; pruders
, & ſecundis
to prefer a Foreign Governour to a Prince of their
own Country and Race. Laſtly, ſince Nature does
Vindex avara fraudis & abſtinens
not actually conſtitute any Superiority or Govern-
ment, and ſince thoſe Natural Slaves whom Ariſtotle
Conſulq; non unius anni, &c. L. 4. Od. 9.
fpeaks ſo much of, are commonly Men of ſtrong





fine Character,

Temporibus dubiilq; re&tus,
Ducentis ad je cuncta pecuniæ;
(a) Apuleius in Philoſoph. delivers the ſame Opinion. It is moſt agreeable, ſays he, that a Man who is neither by Nature dor
Induſtry prepared for a righe way of living, Thould not govern, but be govern'd ; ſhould be a Servant, not a Maſter; ſhould up,
Commanding (6) Declam. 13. (*) Vipote cum jure naturali omnes liberi naſcerentur, &c. Digeft. I. 1. de Juſtitia & Fure
.
(d) Add. Corne? Nep, in Epamino... Lite 1.2.3.4.2. (C) III. Controvers, 21. 05) Polit. 1.1, c.z. () Lib. I. tit. s. f. 1,
of C 2
Hands
20
Book III.
That all Men are to be accounted, &c.
Hands and alle Bodies, there would be a hard Scuf- moſt undoubted Principle, that the bare force of
fle betwixt them and their wiſer Neighbours for the ſuch a Natural Aptitude, does neither give the one
Maſtery; in which Contention the latter Party with a Right of impoſing a Condition of Servitude, nor
all their Sagacity, could not promiſe themſelves oblige the other to receive it.
any infallibie. Succeſs. Ariſtotle's Argument bor IX. It will be proper to add ſomewhat in ſhort,
row'd from the Poets, deſerves likewiſe to be concerning the other kind of Equality, which differs
thrown out as moſt Arrogant and Unreaſonable
. from the former, in that it is rather a Conſequent
,
Therefore, ſays he (a), the Poets tell us, 'tis juft (3) than an Ingredient of the State of Nature; we may
the Greeks should rule the Barbarians, as if to be a call it an Equality of Power, or of Liberty, by
Barbarian, and to be a Slave were naturally the ſame which all Men are reckon’d Naturally Equal in this
thing (b). For according to this Doctrine, if we Reſpect, that Antece dently to any Deed or Com-
had a Mind to deſtroy any Nation differing from us pact amongſt them, no one hath Power over ano-
in Cuſtoms and Manners, it were only to brand ther, but each is Maſter of his own Actions and A-
them with the reproachful Name of Barbarians, and bilities. This Equality is taken away when Men
then to invade them without farther Colour or Ex- enter into a Civil State, where whilſt one or more
cuſe. It is manifeft, that this abſurd Notion of the are inveſted with the Power of Commanding, and
Grecians aroſe chiefly from hence, that they were all the reſt enjoin’d the Duty of Obeying, there a
wholly inclin’d to a Democratical Government: riſes the greateſt Inequality imaginable between the
Whereas their Mighty Neighbours the Perſians were Sovereign and the Subject. But ſince there ſtill ap-
conſtant Maintainers of a Monarchy, whom for this pears fome Inequality, even between the Fellow
and other Reaſons they mortally hated beyond all Subjects, not only with regard to Honour and E-
Bounds of Juſtice or Humanity. On this account ſteem (d), but likewiſe as to the Power which one
Iſocrates (c) calls the Perſians çúch nodemáss, Enemies obtains over another; we may obſerve that part of
by Nature to the Greeks, “ And ſays that in the this Inequality proceeds from the State of Fathers of
general Councils or Aſſemblies, before any Buſi- Families, who being the chief Rulers before the In-
“neſs was tranſacted, a ſolemn Ćurſe was denoun- ftitution of Publick Governments, brought into fuch
“ced againſt thoſe who ſhould deſire Peace or Governments the Power which they before held o-
“ Friend hip with the Perſians; and that at the ver their Wives, their Children, and their Servants
“ Great Feaſt of the Myſteries, the publick Heralds (e). So that this Inequality being more Ancient
“ forbad all of that Nation, as Murderers, to be pre- than the Erection of Civil States, can by no means
« fent at the Holy Ceremony.
owe its Original to them ; nor do they give this
As for Araſtotle's whole Diſcourſe on this Subject, Power to the Fathers of Families, but leave it in
we ſhall put a more Reſpectful and a more favour- their Hands as they found it; though in fome Places
able Conſtruction on his words, if we ſay that by it is thought convenient very much to abridge, and
making two kinds of Servitude, Natural and Legal, to reſtrain it. If any further Inequality, as to
he means the former to be when a Man of
more Power, be diſcoverable amongſt Fellow-Subjects, it
Strength than Wit, ſerves another, whoſe Parts and is plain the Fountain and the Occaſion of it muſt
Genius diſpoſe him for Command ; in which Caſe be the ſupream Civil Authority. For thoſe whom
both enjoy a Condition moſt agreeable to their Na- we ſuppoſe to have paſs’d into a publick State, did
ture and their Neceſſities. And that the Legal at their Entrance on it, make over to their common
Servitude which he ſpeaks of, is when a Perſon of Sovereign, ſo much of the Power which they before
good Endowments and Abilities of Mind, is thro' poſſeſs’d, as was neceſſary to ſupport this new Con-
the Meanneſs of his Birth, or the Hardneſs of his For- ftitution. And therefore in caſe any Perſon had be
tune, compelld either by his own Fear, or by pub- fore this Change transfer'd to another, any Right
lick Conſtitutions to ſerve a Maſter Inferior to him- over himſelf, that Right would either ceaſe and be
ſelf in thoſe Accompliſhments of Mind; and when- extinct in the preſent Regulation, or it muſt fub-
ever this happens, 'tis ſcarce poflible but that the mit to the Pleaſure and Diſpoſal of the Superior
Vaffal ſhould hate his Lord; whereas on the other Authority. But after a Man hath once join'd hinifelf
hand, theſe Relations produce a firm Love and a as a Member to any Civil Community, he cannot
kind of Friendſhip, when each Party bears that on any Account give another ſuch Power over
him.
Character which is moſt ſuitable to his Diſpoſition felf
, as ſhall hold Valid againſt the Right, acqui-
and to his Power. But ſtill this muſt be fixt as a red by the chief Ruler ; ſince this would be to ad-
(3) This Norion proceeded partly (as our Author obſerves) from hence, that the Greeks were paſſionately in love with the
Liberty of a Democracy, whereas the Perſians were devoted to Monarchy, partly from the exceſſive and inhumane Hatred
which the Greeks had to the Perſians. Hence it is that Ifocrates ſays in his Panathen. that the Greeks are by Nature Enemies to
the Perſians. We may alſo obſerve, that the Greeks in their publick Aſſemblies, before they made any Decrees, pronounced an
Anathema or Curſe againſt all thoſe Citizens who ſhould ſeek to make Peace, or have any Friendſhip with the Perſians, and in
the Celebration of their Myſteries, the Eumolpides and publick Heralds excluded from that Ceremony, in Hatred to the Perſians,
all other Barbarians as Murderers. Panegyr. in fine, the illuſtrious Algernoon Sidney ſays, that the Natural Liberty of Man is a
Principle received by Greeks, Romans, Spaniards, French, Germans, Britains, and in a Word, by all Nations, who profeſsa
any Generoficy, long before the Nativity of our Saviour, inſomuch that the Aſians and Africans, á lazy and effeminate People,
becauſe they never attempted to preſerve their Liberty, nor were able to govern themfelves, deſerved the Name of Slaves by
Nature, a Name given them
by Ariſtotle, and the Philoſophers of his Time, who made a very little difference between them and
Beaſts. See § 1. in the Notes. Nevertheleſs
, 'cis hard to excufe Ariſtotle altogether for thoſe falſe Nocions which he had about
the manner how thoſe Nations ought to reſpect and treat one another. See the place cited in my Preface out of Plutarch, Strabo,
and Ariſtotle himſelf at the Letters (k kk) and (111).
(2) Polit. 1. C. 1. (6) Euripid. Iphig. in Aulid. Bag begwo do "Enanyes, &c.
'Tis fir Barbarians own the Grecian Sway,
Wiſe Fature made the Law; 'twas Nature form'd
Them to obey, and us to be obey'd.
(c) Panegyr. do Panathenaic. (d) of which ſee Book VIII. Chap. 4. (e) See the Firſt Chapter of the Author's Introduction to
the Hiſtory of Europe.




And not char Greece ſhould ſerve a barbarous Lord.
alul
mit
CHAP. III.
21
Of tbe Mutual Duties of Humanity.
mit two independant Maſters, who 'tis impolli- does not of it felf, cauſe any Inequality amongſt
ble to ſerve both at once. Whatever Inequality Fellow-Subjects; only as great Wealth affords Men
therefore amongſt Fellow-Subjects commences, after matter of actual Hurt or Benefit to others, on which
the Settlement of the Civil State, muſt take its Rife, ſcore the poorer fort are wont to ſeek the Favour
either from the Publick Adminiſtration, on account of the Rich, by the moſt ſubmiſſive Methods of Ad-
of which the Sovereign conveys by Delegacy, to dreſs, either to obtain Advantage, or to ſecure
ſome of the Subjects, a command over others; or themſelves from Injury (a). But there is nothing
from ſome certain Privilege, granted by the ſame in this Civil Inequality
, any ways Repugnant to
Supream governing Power. But Diſparity of Riches thoſe Precepts, which we have before deluced from
a Natural Equality (1).
Mr. Barbeyrac's NOTES on 6.9. p. 318.
(1) People are obliged the more to reſpect one another as Equals, becaufe they are always in an Eftate of Natural Liberty,
and conſequently in a perfect Equality of Right one towards another, whereas if we come to particulars, there are diverſe civil
Inequalities, which ſet Bounds to our Natural Liberty and Equality. Nevertheleſs, we may obſerve ſome Inequality among Peo
ple in reſpect to their Reputation, either fimple or with diſtinction. Simple Reputation is lefſened, or entirely loft, when any
People violate the Maxims of Civil Right with a wilful Deſign, and thereby render themſelves worthy to be treated as the Ene-
mies of Mankind. For a People that deals in fuch a manner muſt be looked upon only as a Body of Thieves and Pirates. See
Lib. 8. c. 4. 85. As to our Reputation with diſtinction, ſee what is ſaid in the ſame place at 8 15, &c.
(a) Compare Luc. Antiſt. Conſtans de jure Ecclefiaft. tit: 3.
CHA P. III.
Of the Common Duties of Humanity.
1. Every Man ought to promote the Intereſts of others. XI. Of granting a Market, .
And
XII. Whether å Man be bound to buy a Strangers
III. Or definitely by common Humanity.
.
Goods.
IV. A lejer ſort of Examples, viz.
XIII. Of permitting Marriages.
V. Of allowing a way through anothers Land, XIV. Whether any ſingle Perſon may be denyed what is
VI. And for carriage of Goods.
common to all.
VII. Whether Toll may be required for ſuch a Pufage. XV. Of Beneficence.
VIII. Of our touching upon a ſtrange Shore. XVI. Of a Grateful,
IX. Of entertaining Strangers.
XVII. And ungrateful Mind.
X. Of allowing a Settlement to Forigners.
is but a poor thing not to have hurt another, fices betwixt them (b). It was a noble Saying of
or not to have robb’d him of his juſt Eſteem (a): Plato (c). 'Exasos impôvox autą móvov zízorev, cinna' tñs glué
This Negative Kindneſs to a Man will barely lainder στως ημών το με ή η πατρί μερίζεθαι, το δεπ οι γωνήσαντες
him from having any fair Reaſon to hate, but can o dos nostoi pidon. Which Paſſage Tully has thus bor-
give him little Encouragement to love us. To knit row'd and enlarg'd upon in his Offices. Non nobis
Men's Minds more ſtrongly together, it is neceſſary ſolum nati ſumus, &c. We are not born for our felves
to add to this Forbearance of mutual Evil, the real alone; our Country, our Parents, and our Friends have
Practice of mutual Good. The Debt which I owe all a Share, and an intereſt in our_Being. 'Tis a
upon account of my being a fociable Creature I have Maxim with the Stoicks, that as the Earth and all the
not yet Diſcharg'd, whilft I have not eſtrang’d a Productions of it were created for the Uſe of Men, ſo
Man's Affection from me by any Miſchievous or Men themſelves were, for the ſake of Men, brought
Diſtaftful Deed; but I ought farther to promote into the World, that they might Alist
, and Benefit,
his actual Profit and Benefit
, that I may ſhew it is each other. In this we ought to follow the Guidance of
a Pleaſure to me to ſee others Partners of my Na- Nature, to bring common Goods together, and freely
ture, and Sharers with me in the Goods which we lay them in Common, and by an Intercourſe of giving
poſſeſs. The near Relation which Men naturally and receiving kind 'Offices, by Art, Induſtry, and by
bear one to another, is loſt
, unleſs it be cheriſh'd all our Faculties, to cement the Society of Man-
and kept up by a conſtant Commerce of kind Of kind (d).

(a) Quantulum eſt ei non nocere, cui debeas prodeje. Seneca, Epift. 95. (6) Seneca, Epift. 95. What a poor thing is it not to
hurt him whom you ought to benefit? (c) Epift. 9. ad Archift. (d) Idem off. 3. magis est secundum naturam, &c. it is more a-
greeable to Nature, for a man to undertake all ſorts of Labour and Trouble, for the Service and Conſervation (if it were poſ-
Jible) of the whole world, than to live in Solitude, not only free from Cares, but in the midſt of the greateſt Pleaſures. Add. Lały
.
Div. Inftit. l. 6. c. 10, II. phil. Jud. quod Deus eft immutab. Thoſe Wretches are worthy of the utmoſt Deteſtation who regard
only their private Intereſt
, and neglect the common Good of Mankind; as if they were born for themſelves alone, and not for
an innumerable Society, for their Parents, their Wife, their Children, and in general for all the World. Heliodorus Æthiop. 11.
acquaints us that it was one of the Maxim's amongſt the Gymnoſophiſts, 'never to neglect a Soul, when once entred into a Humane
Body, ſhould it fall into Danger or Diſtreſs. Liban. Declam. 19. When I do but fpeak the word Man, I imply Mercy, Cour-
tefy and Kindneſs, Add. Philoft. de vit. Apol. I. 5. c. 1. Marc. Anton. 1. 3. 1. 4. The good Perſon confiders, that whatever par-
takes of Reaſon is of Kin unto him; and that to care for all Men generally is agreeable to the Nature of a Man. idem l. 4. 1 3.
Men are born for the ſake of each other. Add. id. I. 4. f. 4. Seneca Epift. 95. We are all Members of a grear Body. Nature
produced us under a mutual Relation, from the fame Principles, and for the fame Deſigns. This inſpired us with a Love one for
another. She caught us the Leffons of Equity and Juſtice ; ic is upon account of her Conſtitutions, that we ought to cſteem it a
greater

22
Book III.
Of the Mutual Duties of Humanity.
;
Now if the Law of Nature engages us to concern It was a Law amongſt the Mileſians, that he who
our ſelves with ſo much earneftneſs for the good of had ſpent his Fathers's Eſtate, ſhould be denied the
our Fellow-Creatures, it muſt on the contrary con- Benefit of his Father's Sepulchre (d). Such an ex-
demn it, as a thing vile and unworthy of a Man to travagant Spendthrift, Manilius deſcribes.
rejoyce in the Amfictions and Calamities of others,
eſpecially of Innocent Perſons; or on the other ſide Ille patri, natiſq; reus, quas ceperit ipfe
to grieve and repine at the Proſperity of his Neigh Non legabit opes, cenſumq; immerget in ipſo.
bours?
Tanta fames animumq; cibi tam dira cupido
II. Now we may promote the good of other Men, Corripit, ut capiat ſemet, nec compleat unquam,
either Indefinitely or Definitely, and this either ſo Inque epulas funus revocet, pretiumq; Sepulchri (e).
as to part with ſomewhat of our own or not. A
Man Indefinitely advances the common Benefit, when
Who minds himſelf alone,
he ſo poliſhes and prepares his Mind or his Body, He wrongs his Father, and he cheats his Son :
as to render them uſeful to the Publick; particular His Race in vain with Expectation wait,
ly by Sagacity of Parts and Judginent, he diſcovers For in himſelf he buries his Eſtate.
ſuch Inventions, as may ſerve the Neceſſities or the So vaſt his Gluttony, his Luft ſo wild,
Conveniencies of humane Life. Columella (a) ob That he devours himſelf, yet is not fillid;
ferves with great Wiſdom,“ That it would be a And whilſt his Appetite proceeds to crave,
thing of the higheſt Value, and Advantage in He eats his Funeral, and he ſpends his Grave.
“ the World, if every one were ſenſible of his
own
Mr. Creech,
Ignorance, and always deſirous to learn what he
“ knew himſelf at preſent to be defective in. The Apoſtle amongſt the Reaſons, obliging a Man
Hence it appears, that thoſe Perſons are guilty to Labour, ſets down this as no inconſiderable one,
of a Sin againſt Nature's Law, who neglect to ex. "Iye é mu puslessóvai tớ xsoíar égoun, that he may have to
erciſe themſelves in ſome honeſt Art or Employ: give to him that needeth (f). And Horace could ask
ment, by living unprofitable to themſelves, and the covetous Man,
troubleſome to others, uſe their Soul only for Salt,
to keep their Body from ſtinking.
Cur eget indignus quiſquam, te divite ?
Numerus tantum & fruges conſumere nati;
Born only to increaſe the number of Mankind, and Why ſhould any one undeſervedly reduced to Po.
to help to rid, and devour the ſuperfluous Fruits of verty, continue to want whilſt you abound?
Nature. For the rooting ſuch uſeleſs Animals out Such great Churls are like Swine, good for no-
of their State, the Egyptians had a Decree, obliging thing till they are dead. The old Greek Epigram
all Men to give in their Names to the Magiſtrates, rallies them very pleaſantly, and repreſents them
and withal to intimate by what Calling or Profeſſi- very juſtly,
on every one got his Livelihood. He that brought
in a falfe Account, or practis'd an unlawful way of (1) Πλεν φασί σε πάνες, εγω ο π φημι πι εοθαι,
Gain, was puniſh'd with Death (b) (1). In the ſame Χρήσεις και πλάτη μαρυς, 'Απολλόφανες.
Rank we may juſtly place thoſe, who having a ſuf 'Αν μελέχης αυτών συ, σα γίγνεαι: αν φυλάπης
ficient Fortune left them by their Anceſtors, think Κληρονόμοις, από νύν έγνεθαι αλλότρια.
their own Induſtry would be unneceſſary Trouble,
ſince they have gain’d ſo fair a Subſiſtence by the The World
may
think you Rich, I'll ſay you're poor';
Induſtry of others; and accordingly ſacrifice their None e'er was rich but he, who uſed his Store.
Time and Thoughts to Sottiſhneſs and Sloth. Nor
Uſe it, and’tis
your own;
but if you Spare
does Virgil without good Reaſon aſſign a Station in Till Death, you're only Steward for your Heir.
Hell, to thoſe uſeleſs and unmerciful Wretches,
In my Opinion we ought not to judge more fa-
Qui divitiis ſoli incubuere paratis, vourably of thoſe uſeleſs Burthens to the Earth,
Nec partem poſuere ſuis (c).
who under the pretence of Religion, ſtudy only the
Improvement of a fat Carcaſs, and in a lubberly
Who to Lucre ſold,
Lazineſs conſume the Fruits of other Mens honeſt
Sit brooding on unprofitable Gold;
Labour. Zozimus the Hiſtorian, though in other
And dare not give, and ev’n refuſe to lend things as Profane as Paganiſm could make him,
To their poor Kindred, or a wanting Friend. , yet has paſs’d a Cenſure juſt enough, on ſome of
Mr. Dryden. theſe Mõnaſtick Brethren; they abſtain (ſays he)
greater Unhappineſs to do Hurt than to receive it : It is by her Orders that our Hands move ſo readily to the Affiftance of our
injur'd Neighbour. Ler thar good old Verſe be ever in your Mind and in your Mouth.
Homo ſum, humani nihil a me alienum puto.
I am a Man, and I eſteem nothing a Stranger to me, which is of Kin to Humanity. Let us lay our Natural Powers in Common,
Humane Society is built like an arch of Stones, which is by this means only ſupported and upheld from Ruin, that each part
hinders the fall of the other. Add Bacon's Ef. 13.
Mr. Barbeyrac's NOTES on Chap. 3. § 2. p. 320.
(1) The People of Sardis had a Law to the same effect, as Ælian relates in his var. Hift
. 1. 4.c. 1. where ſee allo Perizor. To
this we may adà, that the Senate of the Areopagus was obliged by Solon to enquire how every Man got his Livelihood, and puniſh
them who had
no Buſineſs
. The fame Lawgiver alſo made a Law, that no Son ſhould be obliged to maintain his Father, who had
nor in his Youth took care to bring him up to ſome Trade. See the Life of Solon in Plutarch.
(2) Theſe Verſes have no known Author, but they are found in the Anthologia.
(a) De re ruſtic. l. 11. c. 1. (b) Diodor. Sic. I. I. c. 77. Ælian. Var. Hiſt. 1. 4.C. I. mencions ſuch a Law amongſt the Sardians
(4) . . . (©.$(
) ef. IV28
from
CHAP. III.
23
of the Mutial Duties of Humanity.
ир
from lawful Wedlock (a), and fill City and Country capable of ſerving their Country in publick Em-
with numerous ſwarms of Men, ujeful neither for War, ployments, is an Humility, not altogether coin-
nor for any other ſervice of the Commonwealth. Tet mendable. And therefore it was too high a ſtrain of
they have purſued their Deſigns with ſo much Succeſs, Philoſophy in Similis, chief Miniſter to the Empe-
from thoſe times to the prejent Age, that they have en rour Adrian, when quitting all his Honours and
groſs’d to themſelves the greateſt part of the Lands and Offices, and ſpending his laſt ſeven Years in the
Eftates, and under Colour of communicating all things Country, he left this Sentence for his Epitaph. Here
with the Poor, have almoſt reduc'd all others to Pover- lies Similis, whoſe Life was ſo many Tears long, but
ty. To theſe we may add ſuch begging Strollers, as he lived only Seven. Xiphilin.
they tell us are found amongſt the Chineſe, who By theſe and the like Methods then may we pro-
fight with their Heads like Rams, till you part them mote the Good of others Indefinitely, and in. Ge-
with ſome piece of Bounty; or ſuch as threaten toneral; or without propoſing to ſerve particularly
lay violent Hands on themſelves, unleſs you give ſuch or ſuch a Perſon, but by laying, as it were,
them what their Lazineſs craves (6). Valerius Maxi- our Benefits in Common, and offering them to the
mus juſtly commends the Cuſtom of the old Mafi- publick Uſe (7). But ſome on this point will have
lians, who as he reports the Matter, “Uſed to ſhut the Curioſity to enquire, whether ſuppoſing a Man
their Gates againſt all ſuch who made the Plea to find ſuch a famous Secret, as what they call the
“ of Religion a Cloak, and Shelter for Idleneſs; Philoſopher's Stone, the Art of changing with little
thinking it highly worth their Care to reinove by Trouble, the meaneſt Materials into the richeſt Me-
“ all the Methods of Diſcouragement, ſuch a tals; whether I ſay, he ought to Communicate fo
“ falſe and dronelike Superſtition. (Lib II. Ch.VI. rich a Diſcovery. And if any ask ſo nice a Queſti-
S. 7.) (3).
on, we may venture to reſolve it in the Negative,
On the other Hand, thoſe worthy Perſons have ſince were it poſſible to bring this grand Invention
been ever celebrated with the higheſt Praiſes, whoſe into ordinary Practice, Trade would be ruin’d, In-
happy Parts and Study have invented new Arts, and heritances and all kind of Riches would loſe the
Advantages of living; and then have not kept the good Force and Authority which they now bear in
Benefit of them to themſelves, but communicated the World; and the whole Method and decent Or-
them freely to all Mankind. For as Horace ob- ders of Life, would be changed into endleſs Tu-
ſerves,
mults and Confuſion (8).
III. We may be ſaid to ſerve or benefit others,
Paulum ſepulta diſtat inertia
more definitely and expreſly, when we confer on par-
Celata virtus L. 4. Od. 9.
ticular Perſons, any thing that may be uſeful and
profitable to them. And this we may often perform,
Conceal'd Vertue or Worth, has little Advantage not only without our own Lofs and Prejudice, but
above the dulleft Idleneſs.
likewiſe without giving our ſelves any Labour or
Virgil has wiſely placed in his Elyſian Paradiſe, Trouble. To deny, or to grudge another a Kind-
neſs of this eaſie Nature, is juſtly cenſured as moſt
Inventas qui vitam excoluere per artes, deteſtable Malice and Inhumanity. For ſuch a
Quiq; ſui memores alios fecere merendo (c). Power by which we may oblige others, and not in-
Æn. 6. jure our felves, unlefs it be on due Occaſion, put
into Action and Effect, appears to be Vain, and
Thoſe who by Arts invented, Life improv'd, only turns to the Reproach of him that has it. Hence
Or by deſerving made themſelves remember d. it is uſual to compare ſuch unreaſonable Churls to
Sir William Temple (4). the Dog in the Fable, who refuſed that Provinder to
the Oxe's Hunger, which was ſo improper to ſatisfie
Thus Antiquity advanced many (5) to Divine Ho- his own. Therefore when we diſpenſe this kind of
nours, who had rendered humane Life more Com- Benefits, we regard only Man in general or the
modious
, by being the Authors of uſeful Diſcove- common Nature which we all enjoy. Thus Ariſto-
ties
, or of wiſe and wholeſome Inſtitutions (d) (6). tle, when ſome reproved hin for beſtowing an Alms
Hence the Retirement of great Men, whilſt they are on a vicious Perſon, wiſely anſwer’d, • * Tgónov,





1

15, as alſo c. 43.
(3) See alſo Eraſmus's Letter to Servatius, inſerted in his Life, which is allo at the beginning of his Letters, Edit. Lond. 1642.
(1) So Cicero ſpeaks, Impellimur autem natura, &c. We are vehemently inclined by Nature to endeavour the Profit of many,
chietly by teaching them, and laying before them the Rules of Prudence, and Reaſons of things. De fin. bon. do mal. l. 3. c.8.
(5) See what Diodorus Siculus alledges as the Reaſons why the Ægyptians worſhipped Iſis and Oſiris as Gods. Lib. I. c. 13, 14,
(6) Here the French Tranſlator confirms our Author's Judgement from Cicero and Seneca. Of which the former ſays, Nature
herſelf ftirs us up to do all the Service to Mankind which we are able; and above all
, to reach Men ſome new thing, and inſtruct
them in the manner how they ought to govern themſelves. De Nat. Deor. I. 1. c. 14. To which the latter adds, the moft curioas
and profitable Knowledge would be no pieafure to me if I ſhould keep it to my felf. If any one would communicate to me any
thing, be it Wiſdom it lelf, upon condition that
I muſt keep it ſecret and impare it to no Man, I would refuſe it without far-
ther thought. The Poffeffion of nothing is pleafing which we muſt enjoy alone. Epift.6. See Sophocles Oedip. Tyran. as alfo Sal-
maſous upon Spartian in Adrian. c 9.
(9) On the other fide, when any one labours to make himſelf a general Benefactor to Mankind, others ought, as much as in
ii Men can't make any other or better acknowledgement, they ſhould not forget to publiſh their commendations, and make
their Memory immorta?, which is indeed the principal Reward of ſuch as devote themſelves to the Service of the Publick, and
for which others are encouraged to imitate their Example
, as our Author ſpeaks in his Duties of a Man and Citizen, 1. 1. c. 8. 93:
beſides many curious and diverting
things. "Tis compared in the form of a Dialogue, it was printed at Hall in Saxony. A. D. 1702.
6.5(b) of whom fee Neuhof. in Legat. (c) Thoſe who inſtructed, and adorned Life by the Invention of Arts. He
Deans thoſe Philoſophers that advanced any ureful Improvement in the World. Servius de loc, Lucret. Lib. ad 5. in init
, (d) vid.

Diodor. Sic. I. 1. c. 13, 14, 15; doc. 43.
άλλα
24
Book III,
Of the Mutual Duties of Humanity.
"
adra hr@geofyov naby aaa (a). I did not relieve the Man- Plutarch (c) reports of thoſe falſe Accuſers, who took
ners, but the Man; or as fomne report it, 8x airbgawa, away Socrates his Life, “ That the Athenians think-
áraá tố drogamin. Not the Man, but Humanity. ing them the vileft Men that lived, expreſs’d fo
Thus ſuppoſing me to be unwilling to keep a high a Degree of Hatred and Averfion to them,
thing any longer ; either becauſe I am overſtock’d, " that they would neither lend them Fire, nor ſó
or becauſe the
Pofleſſion of it is ſome
way
trouble “ much as anſwer them when they ſpoke, nor bath
fome, how barbarous would it look in mne, not " themſelves in the ſame Water which they had
rather, to leave it ſafe and entire, that it might uſed, but would order their Servant to pour it a-
prove ſerviceable to others, than to embezil and way as Polluted and Defiled, till impatient of a
deſtroy it. The caſe indeed is otherwiſe in War, “ State of conſtant Reproach, the Wretches became
where we ruine what we cannot keep, leaſt the Ene " their own Executioners. In the ſame City, when
my ſhould employ it to our Prejudice.
Men were condemn’d for ſome Heinous Crimes, it was
In like manner we are to allow freely to others, held unlawful to let them light Fire, to be in their
thoſe things which they call res innoxis utilitatis, Company at an Entertainment, or at any part of
things of Innocent Profit, or of harmleſs Uſe. Let us hear Religious Worſhip (d).
Tully ſettling this point. As to thoſe things, ſays he, When Seneca fays, who will call it a Courteſie or
which Men ought to hold in Common, we may apply to Benefit, to give a piece of broken Bread, an Alms of
many Caſes, the Inſtructions which Ennius gives us in ſmall Money not worth keeping, or the favour of light-
one Inſtance.
ing a Fire; he does by no means deny the Obliga-
tion that lies on all Men, freely to diſpenſe their
Ut Homo qui erranti comiter monſtrat viam, Kindneſſes; he only ſhews how impudent and how
Quafi lumen de fuo lumine accendat, facit :
baſe it would be for a Man to value himſelf on ſuch
Nihilominus ipfi luceat cum illi accenderit,
petit Bounty, and to expect a return like ſome
To ſet a wandring Traveller in's way,
mighty Benefactor. For although theſe inconfide-
Is but to light one Candle with another :
rable Offices prove ſometimes of great Value and
Yet put not out your own; let that
no leſs
Conſequence to the Receiver, yet the Cheapneſs
Shine clear, and not be loſer by its Bounty.
of them in reſpect of the Giver, be they never fo
luckily timed, hinders them from being placed to
From this one Example, we may ſufficiently appre- Accompt (2),
hend, that whatſoever we can part with to another,
IV. For the farther Illuſtration of theſe Offices of
without any Damage to our ſelves, this it is our Duty Humanity, Plutarch will do us good Service whilft
to give, though to a Stranger. Of which kind are he diſcourſes fo admirably on thoſe old Roman Cu-
theſe cheap and common Benefits, to afford Water from ſtoms of leaving ſomething always upon the Table
,
a River, Fire from Fire, good Counſel (1) to a Man and of never putting out their Lamps. Theſe Pra-
that is in doubt or diſtreſs. All theje things are pro- ftices (ſays he) (e) Jerv'd as Lellons of Humanity.
fitable to the Receiver, without any loſs or trouble to For neither is it lawful for us when we have fatified
the Giver. Wherefore we ought both to uſe them our our own Hunger, to throw away the reſidue of our
ſelves, and likewiſe to exhibit them to the common Good. Proviſion, nor to ſtop up, or any way to conceal a Spring,
But in regard, that particular Perſons have not much when we have drank enough of the Water our ſelves; nor
to give, whereas the number of thoſe that want it is al- to remove the Marks and Directions of ſailing and jour-
moſt Infinite, in exerciſing this Duty of common Boun- nying, after they have ſerv'd our own Occaſions. But
ty, we muſt have a reſpect to Ennius's wife Caution, all theſe things are to be left behind us, that they may
NIHIL OMINUS IPSI LUCEAT; that is, we muſt afterwards prove uſeful to other Men. In like man-
keep enough to have the means of being Liberal to our ner, it is a very unbecoming Niggardlyneſs to put out a
own Relations and Dependants (b).
Candle, when we have made what uſe of it we intended;
Oftheſe Favours, then none is to be debar'd, unleſs but we ought to leave it, that thoſe who come after us may
ſuch an one, as by his Abominable Villany, has have the Benefit of its Light. Nay, were it poſſible to be
rendred himſelf deteſtable to Mankind, and un-effected, we ought to lend others our Sight and our Hear-
worthy the common Privileges of his Nature. Thus ing, and even our Wiſdom and Courage, to imploy for

If
Mr. Barbeyrac's NOTES on § 3. p. 322.
(1) Plato fays truly, that Counſel is a ſacred thing, déztai je ovu brand isgón xeñuce divas In Theagen. Tom. I. The Pythagor
reans alſo held the ſame Maxim, and obliged thoſe of their sect to give the beſt Advice they could to ſuch as deſired it. See
Jamblich. de Vit. Pythag. c. 18.8 85.
(2) For according to the Maxim of * Terence, 'tis by no means the part of an ingenuous Man to expect our Acknowledgements
without his Meric.
Nor ought we to think that we lay'a grear Obligation upon others by ſuch a Preſent as the Latin Poer f Ho-
race ingeniouſly banters. The Calabrians when they preſent their Fruits to ſuch as come to viſit them, ſay, Eat, Spare not.
dheir Friends anſwer, we have eat enough, they ſay, take them, put them in your Pockets, they'll be an acceptable Preſene.com
your Children If they reply, we are as much obliged to you as if we carried them all away. They again ſay, if you will prote
cake them, we'll give them the Hogs. Who ſees not that they can't tell what to do with that they io prodigally give? Such Pro-
digality has and does make many perſons ungrateful.
(*) Ego, Charine, neutiquam officiam liberi effe hominis puto
Cum is nibil promereat, poftulare id gratis apponi fibi.
Ter. Andr. Act. II, Scene I.
(t) Non quo more pyris veſci Calaber jubet holpes,
Tam teneor dono quam ſi dimittar onuſtus,
Tu me feciſti locupletem veſcere ſodes.
Ut libet hec porcis hodie comedenda relinques.
Jam fatis eſt. At tu quantumvis tolle. Benigne
Prodigus & Jultus donat, que ſpernat, do odit,
Non inviſa feres pueris munuſcula parvis.
Hæc seges ingratos tulit, de feret omnibus annis.
Horat. Lib. 1. Epift. 7. v. 14,
(a) Diog. Laert. !. s: (b) Idem Off. 3. Amongſt the Athenians, a Publick Curſe was denounc'd againſt him who mould re-
fule to ſet a Man in the right way. (c) De Invid. G Odio. (a) Vid. Or at, Dinarck. contra Ariſtogit. Add. Sophocl. Oedip. Tyran.
V. 44, &c. Euripid. Oreſt. v. 46, do 513. (e) Quaft. Sympos. L. VII. Q:
&c.
their
CHAP. III.
25
Of the Mutual Duties of Humanity.
to Mankind.
their Service, whilſt going to our Repoſe, we for ſome But though the uſe of Water is Common, yet
time loſe the uje of them our ſelves (a).
the Popefion of then may, no doubt bę turn'd in-
Prometheus, in Lucian, chargeth the Gods with to a Propriety. On this Account we find the Il-
Envy, and Narrowneſs of Spirit
, that they ſhould raelites offering to pay for what Water they or
reſent ſo highly his Action of communicating Fire their Cattle ſhould drink, in palling through the
“ Since this could not be the leſs for Country of Edom (c). However, if the Waters are
being made Publick, nor be it ſelf extinguiſh'd in great Plenty, what the Current throws out at
by lending its Light to others.
random, we ought freely to afford to all; ſo far as
To the ſame Head belongs the uſe of running Wa- our Indulgence brings no Trouble or İnconvenience
ter, for the ordinary Occaſions of Life. For tho' on our felves (4);
Rivers may be the Property of whole States, or of We ſee then, that Duties of this kind do origi-
private Perſons, yet Hunanity enjoyns us to allow nally belong to the Law of Nature; yet 'tis not
the Privilege of drinking,or of drawing for otherUſes unuſual to have many of them farther confirm’d and
to any one, not actually engag’d in Hoftility againſt enjoyn'd by Civil Conſtitutions
. It may not be im-
us. We think the Point is ſettled with inore Člear- proper to ſet down an Inſtance or Two. Solon's Law
neſs this way, than if we ſhould ſay with Grotius, about Wells we find thus recorded by Plutarch. Be-
that the River (1), as a River, is the peculiar Right of cauſe the Country hath but few Rivers, Lakes, or large
ſuch a People ,but as running Water(2) it remains in Com- Springs
, and moſt uſe Wells
, which have been dug, he
mon. For it ſeems leſs agreeable to call the ſame thing made a Law, that where there was a publick Well with-
in different Reſpects, Proper and Common, than to in four Furlongs, all ſhould draw at that; but when it
affirm that the uſe of a thing ought by the Laws was farther off, they ſhould ſearch after a private Well.
of Humanity to lie freely open to all, though the And if upon digging ten Fathom deep they could
thing it ſelf may be really a Propriety, or Peculi- find no Water, that then they ſhould fetch from their
ar (3). Now to impute this as a Loan, which would Neighbours to the Quantity of about ten Gallons every
otherwiſe be loſt, and will be immediately repair'd day. For he thought it prudent to make Proviſion a-
by the Springs, would look moſt ridiculouſly Sordid gainſt Want; not to encourage Idleneſs. The ſame
(6). Thus Latona argues with the Lycian Clowns « Author tells us, that Plato in his Laws, permits
in Ovid Metam. VI.
none to borrow Water from their Neighbours, but
“ ſuch as having firſt dug in their own Ground as
Quid prohibetis aquas? uſus communis aquarum eft. deep as the Clay, could find no Spring. For he
Nec folem proprium natura nec aera fecit ; would have thoſe only come in for a Share with others,
Nec tenues undas : ad publica munera veni. who could not provide for themſelves. And the Spar-
What Rudeneſs Water for my uſe denies, tan Legiſlator Lycurgus, allows a Perſon in Neceffi-
Whoſe endleſs ſtore the Common World ſupplies ? ty to make uſe of the Servant, the Beaſt, and even
Nor Light nor Air did Heaven create for one; the Food of another Man (d).
Nor gentle Streams: I crave a Publick Boon.



CC
Notes upon it.
Mr. Barbeyrac's NOTES on 6 4. p. 223,
(1) i. e. Conſidering in general the whole extent of the Shore, which is contained in the Lands of any perſon.
(2) Which changes every Moment, it properly belongs to none but him who takes it up to drink.
(1) The French Tranſlator places the following Period from the Word
Now, to Boon, becauſe he thinks it improperly placed
here, at the end of this Paragraph, and adds, This Chapter is one of thoſe which wants diverſe Amendments, as may be diſcera ,
ped by comparing his Tranſlation with the Original. See Lib. IV.C. 5. $ 2.
(4) The Laws of diverſe Nations preſcribe alſo ſometimes the ſame Offices. By the Law of Moſes the Proprietor, Lev. xix.
9, 10, 22, 23. Deut. xxiv. 19, 21. was obliged to leave the Corners of his Field unreaped, and not to glean up the Ears (caca
tered by the Reapers. He was to leave them for the poor and Strangers. The ſame thing
he was to do with the Grapes that
remained after the Vintage, upon the Tree, or were fallen upon the Ground, as alſo the Olives that did not fall from the Tree,
when ic was fhaken. It was alſo allowed to Travellers to pick a Bunch of Grapes in the Vineyard, or an Ear of Corn in the
Field, provided they eat only to ſatisfie themſelves, and carried nothing away. Selden de fúr. Nat. & Gent. 1. 6. c. 6. fol.
Arch, Jud. Lib. 4. c. 8. So alſo in the Roman Law it is forbid Fiſhers to kindle a Fire upon the Shore in the Night, for fear that
ſuch as are failing on the Sea ſhould take it for a Signal of a ſafe Port, and ſo run the hazard of being caſt away.' Digeft. 1.47.
de incendio, ruina, &c. Tit. g. Leg. 10.
(a) Idem Queſt, Rom. Or doth this Cuſtom teach us, that we ought not to loſe any of thoſe things which we have in Plenty,
as Fire, Water, or other Neceffaries ; but when we have ſerv'd our own Occafions, to leave them for the uſe of others.
Theocrit. Idyl. 26.
Mr. Creecha
Mercury of all the Gods reſents it moſt, When we deny a Stranger what is juſt.
It is one of Pythagoras's Aphoriſins in Diog.
Laert. Not to cut down nor to hurt
a Tree capable of bearing Fruit. See Menage's
(6) Plautus Trucul. Defluvio qui aquam derivat fibi niſi, Derivetur tamen omnis ea aqua aqueat in mare.
Ovid. Quis vetet adpofito lumen de lumine ſumi ;
Atque cavum vaftas in mare ſervet aquas,
(c) Numbers XX. 19, compared with 2 Chron. XXXII. 3. See likewiſe Genef. XXVI. 20, 21, 22,
(d) Xenophon de Rep. Lac.
A Stranger travelling alone, or with one Companion only, ought to have the Liberty to taſte the
Fruit which, he meets with in his way, by the common law of Hoſpitality. Add. Lex Burgund. Tit. 28. 1.1. It. Selden. 1.6.c.6.
Phocylides, "Asegov e's oi nov NEai, &ic.
Receive the Baniſh’d, and conduct the Blind ;
To lift the Weak; ſupport a Wretch undone:
And let the Ship-wreck'd Sailor move thy Mind,
Pity thy Foe, and ſave his finking Beaſt;
... For Sailing is uncertain : kindly run
Direct the Stranger, ſuccour the Diſtreſs'á, doc.
Add 1. 13, D. de incendio ruina. Quintil. Declam. S. GOD hath made us for
mutual Support and Succour ; and that each Man
ſhould endeavour to defend others from what he fears himſelf. This is not properly Love, or any Perſonal Eſteem and Revc,
rence; but a provident Fear of the like Accidents
, and a Religious Apprenſion of common Dangers. when we relieve a famiſh'd
Wretch (*), we do but as it were pity our felves. Hence in a Siege we lay our Proviſion in common. Hence in a Diſtreſs at Sea
the Food of one Paſſenger hath fupported the whole Company. And hence too ariſeth that affection which puts us on covering
with Earth (1) the dead body of a Stranger; and how haſty foever our Journey be, we never fail ftopping to perform, in ſome
fort or other, this pious Office.
(*) This is well exprelled in the ancient Verſe of Publius Syrus.
(t) See the Notes above on Chap 3. Lib. 2. $ 23. Note 9.
Homo, qui in homine calamitoſo eft mifericors, meminit ſuia
# D
V. Amongſt


26
Of the Mutual Duties of Humanity.
Book III.
16
26
OG
CC
ic
V. Amongſt the ſame Duties of Humanity, Gro- Numbers of thoſe who would enter, doth not feem
tius, L. 2. C. 2. “ Reckons the granting free Pafo a ſufficient Reaſon to deny Paſlage; fince a Multi-
Sage through any Lands, Rivers, or parts of the tude as well as a few. Perſons inay inoffenſively
Sea, which have fallen under our Propriety, ifa- uſe this Privilege, and not treſpaſs againſt the
ny have juſt Occaſion to deſire it; as ſuppoſe Law of Nature. However, the fame Law impow-
when any People expellid out of their own Coun ers us to take ſecurity of the Men, whom we admit,
try, are going to find a new Seat; or when they to engage them to do no Damage, or to repair what
“ deſire to trade and correſpond with a Nation, they do. For the common Proverb tells us, that
“ which we divide from them; or when they are Opportunity makes the Thief; and he is a very un-
marching to recover what is their own in a juſt wile Maſter of a Houſe who lets in ſo many Strang-
“ War; or when, being at a diſtance from home, ers, as to be turn'd out himſelf. Nor are there want-
they are haſtening to the Defence of their Coun- ing Inſtances of ſeveral Cities, which have loſt their
try, at preſent under ſome extraordinary Danger Liberty, by unwarily receiving too great a number
or Diſtreſs. But we ought to allow this point a of Armed Gueſts
. And what thould
make us more
fuller Diſcuſſion. Thus much then is clear beyond Cauticus is, that few Generals deſerve the Encomi-
all doubt, that in caſe the Requeſt be made by a um, which Tully (c) on this Score hath given of
ſmall Number of Men unarm’d, and willing to live Pompey the Great, that he march'd his Legions thro
at their own Charge, Paſſage is to be granted them, Aſia, in ſuch a manner, as to keep not only the Hands,
provided they ask it upon an honeſt and neceſſary but even the Feet of ſo vaſt an Army, from commit
Account. But the Caſe of great Armies is not lo ting the leaſt Treſpaſs, on any peaceful and friendly
caſily to be decided; ſince the admitting of them Perfon. When the Helvetians
, or Suiſſes in the Gal-
may create juſt Fears and Suſpicions in us, not lick War, fent Deputies to Cefar, to beg a Paſſage
only on their own Account, but in reſpect of the through the Roman Province, we find Cajar, reject
People, whither they are bound. Grotius main- ing their Petition, on this very good Account
,
tains, that notwithſtanding any ſuch Fear, their Pe “ He remembred how the ſame People had foriner-
tition is to be complied with for this Reaſon; “Be- “ ly defeated and kill'd L. Cafius the Roman Con-
« cauſe in that grand Diviſion of things, by which “lul
, and forced his Soldiers to paſs ignominiouſly
“the Primitive Community was aboliſh'd, and di “ under the Toak; and he imagined it ſcarce poli-
“ ſtinct Proprieties introduced, all may be ſuppos’d “ble, that Men who were Enemies in their Hearts,
to have reſerv'd to themſelves, ſo far the uſe “ ſhould purſue their way fairly, and without
“ of each other's Poſſeſſions, as ſhould be ſerviceable“ launching out into any Injury or Diſorder (d).
to their Wants, and not injurjous to the Owner; Many ways of taking Caution or Security in this
« and that therefore when any ſtand in need of ſuch Cafe are propos’d; as firſt, that they ſhall paſs thro'
a Uje, they have a Right to demand it. Įf any without their Arms; but 'tis very hard to get this
diſlike this Argument, a plainer Reaſon may be thus Condition accepted of by Military Men; ask them
offer'd, that the Law of Humanity obliges every to part with their Weapons, and they take it as if
Man to allow another the harmleſs uſe of his Goods you deſired leave to cut off their Hands (2). It may
or Poffeffions; which upon urgent Neceſſity, may be a more proper Expedient, that the Forces make
be challeng’d in a forcible manner, in as much as their Paſſage in ſmall and ſeparate Bodies, or that
the Denial of it is preſum'd to ſpring, either from Hoſtages be given for their peaceable Behaviour.
Groundleſs Diffidence, or from wicked Perverſeneſs For what ſome propoſe, that thoſe who grant the
of Mind, Yet in ſuch Cafes, Leave is firſt to be Paſſage, ſhall hire fufficient Guards at the Charges
ask'd fairly and peaceably, and Violenice muſt not of thoſe who deſire it, would take up too much Mo-
force a Paſſage whilſt it is yet uncertain, whether ney as well as too much Time.
the Lord of the Place grounds his Refuſal on any It is farther ſaid on the ſame ſide, that it will
juſt Reaſon, or acts only out of a Barbarous and In- not juſtifie us in denying this Favour to alledge,
hoſpitable Temper. When Cimon the Athenian Ge- that Paflage may be had elſewhere, upon taking a
neral going to alliſt the Lacedemonians, with his larger Circuit ; becauſe ſhould this Pretence always
Troops broke through the Territories of the Corin- be uſed, the Requeſt would never be granted, tho
thians, without giving notice to the State, Lachar- in the moſt Reaſonable Caſe, and ſo the Right would
tes the Corinthian gave himn that handſomne Reproof, utterly ceaſe and come to nothing. It is ſufficient
rej S Juegy rófano M07 picy, xr eineres mestregu i top therefore, in their Opinion, if without any Frau-
rúelcy measūCUI (a), That when a Man knock’d at ano- dulent Deſign, Paſſage be there deſired, where it
ther's Door, he forbore in Civility to enter, till the lies moſt ready and convenient.
Maſter bad him come in (b) (1).
Some there are who maintain the Right of free
Thoſe who take the ſame ſide of the Queſtion Puffage, on this Argument, (3) that Highways are
with Grotius, add, that a Fear upon account of the common to all Mankind, and do not come under
-
Mr. Barbeyrac's NOTES on 6 5. p. 326.
(1) The Carthaginians, to ſhew that they had a Right to a Countrey which Majinija King of Numidia conteſted about with
them, alledged among other Reaſons, that Maffiniſa himſelf had granted it ; becauſe when he purſued Ciphires, who had eſca-
ded out of his Kingdom, and cook his Rour round Cyrene with a Party of Numidians, he begged leave of the Carthaginians
paſs through that very Countrey, as then depending upon Carthage without contradiction. See farther about this Right of Paſ-
fage, as about a Right of Trading where we pleaſe. Selden's Tract, Entic’led, Mare Clauſum, Chap. 20.
(2) As Florus I. 2. c. 18. ſays, That the People of Numantia are ſaid to have looked upon ſuch a Propoſal, when it was offered
them, as a Condition of Peace. See Freinſhemius's and Grevius's Notes upon the place.
(3) Mr Hirtius cites here a Treatiſe of Adrian Beier upon this Subject. An des quatenus tranſitus pro exercitu per territorium als
terius poftulari do denegari poſit
, (i. e.) How far Paflage for an Army through another Prince's Territories may be deſired, or
denied.
(a) Plutarch in Cim. (b) And thus Telaphus in Diæys Cretenſis rightly accuſeth the Greeks, that profeſſing to come as Friends,
they ſhould give no Notice of their Viſit. (c) Pro Lege Manil. (d) Cæſar Comment, de B.G. 1. 1. C. 7, 8,






the
CHAP. III.
27
.
Of the Mutual Duties of Humanity.
the Propriety of thoſe, in whoſe Territories they this means fix the Seat of the War in our own Coun-
lie. As it at the firſt' Creation of the World, the try, For what if the other Party ſhould meet and
Roads had been Chalk' out immediately by the Di (5) ſtop his Adverſary, whilſt yet in our Bor-
vine Hand, and lett as Univerſal Benefits. A No- ders? And I do not fee how we could blame him
tion tco Ridiculous to deſerve a ſerious Refuta- for this Proceeding, ſince he is by no means ob-
tion.
lig’d to receive the Foe into his own Dominions;
On the other ſide there have been good Argu- on purpoſe to rid us of the Burthen and of the Trou-
ments ofter’d, to evince that this (4) Liberty of Pal ble. It ſeems therefore the ſafeſt way of acting in
Jage for an Army of Strangers is not owing by a this Caſe, if we can without
meer Natural Right, without any Compact or Con- judice to our own Affairs, to deny the Enemy Paf-
ceffion intervening; eſpecially when the Cafe is, ſage, and actually to oppoſe him, if he endeavour
that an Enemy to ſome of our Neighbouring States to force it without our Conſent. But it we are ei-
deſires leave to carry his Troops againſt them, thro' ther too weak to hinder his Progreſs, or inuſt on
our Territories. For it ſeems to be part of the Du- this Score engage in a dangerous War; the Plea
ty, which we owe to our Neighbours, eſpecially of Neceſſity will fairly juſtifie us to our Neigh-
ſuch as have been kind and friendly, not to ſuffer bour (c).
any Hoftile Power to march along our Country, to Ziegler in his Obſervations on Grotius aſſerts, that
their Prejudice, provided we can hinder the Deſign in this Caſe, no one can Naturally have a Right of
with no great Inconvenience to our ſelves (a). And paſſing through the Lands of another, but all ſuch
it is indeed one expreſs Article in moſt Leagues, Right muſt be obtain’d by Compact; juſt as no
that neither Party ihall grant Paſſage to the Foes Man has the Liberty of going through the Fields
of the other (b). Nor will it ſolve the Difficulty, of a private Perſon, unleſs ſuch a Service is impo-
to ſay that we ought to allow Paſſage, if the War ſed on the Fields, by Virtue of their particular
which is undertaken be juft; not it it be unjuſt
. For Tenure. He ſays this will eſpecially hold good,
there is commonly much time and much Thought, when we have juſt reaſon to apprehend Danger
requir’d to make ſuch a Judgment; and beſides it is from ſuch a Conceſſion (6). And this Point too he
lookd upon as a piece of Raihneſs, to thruſt in our illuſtrates by a Parallel Caſe between private Per-
Arbitration between two armed Parties, without fons, You may have a Right of making a Tho-
their defiring it, and to conſtitute our felves Judges rough-fare of Titius's Yard; but if you appear there
of fo great à Cauſe. But farther, ſuppoſing we often with Fire and Torches, ſo as to endanger the
grant the Requeſt, it is very poſſible, we may by Buildings, Titius's Fear cannot indeed, in this caſe,


(4) In this caſe the Benefic deſired is not a Service without hurt; for there is a preſent Damage, and a great hazard of a fu-
ture. For if an Army in its March cauſes ſometimes Waſte and Diſorder in an Allies Countrey, and among their own Coun-
trey-men themſelves, what will ic do in a ſtrange Nacion? Hiſtory, both Ancient and Modern, and preſent Tranſactions furniſh
'us with many Examples. See Tacitus's Hift. 1. 2. c. 12. $ 7. Plin. Panegyr. C. 20. numb. 4. Phil. de Comines 1. 6. c. 2. Farther, a
great Number of Men, which paſs through a Countrey, muſt-of neceffity make Proviſions dearer, by which means the greateſt
parc of the Natives ſuffer, but the Conſequences, which may be apprehended, are far more burdenſome, which we ihall here-
after diſcourſe of, when we come to ſupply the Defects of the Author, according to the Senſe of Gronovius in a large Note
up:
on Grotius. I. 2. c. 2. § 13. numb. 1.
(5) This is not the only Danger. For he to whom Paſſage is granted, may be overcome, and put to the worſt; and if ſo,
let the Cauſe of making War be juſt or not, he will certainly revenge himſelf upon thoſe who did not keep his Enemy from in-
vading him. But fuppoſing there be nothing to fear from the ſtrange Troops which are ſuffered to paſs, the Abercors of the
contrary Opinion agree, that many Precautions ought to be obſerved. The Men that are always in Arms are eaſily tempred to
abuſe them, and commit great Outrages. Moreover, if they are very numerous, and find an opportunity to ſeize on a confide.
rable Prey, how often have we ſeen Armies of Strangers ravaging or ſeizing to their own Uſe the Eſtates of a People who have
called them to their Succour; nor have their folemn oaths and Treaties been able to decer them from this foul Perfidiouſneſs. See
Juſt. 1. 4. C. 4. n. 5. & 8. 3. Tit Liv. Lib. VII. chap. 38. and what Wittikind ſays concerning the Saxons l. 1. Annal. What then
may we expect from ſuch as are under no ſuch ſtrict Engagements, but only barely promiſe to do us no Injury. Furthermore,
as in the Bodies of Living Creatures the moſt render Parts, and ſubject to be dangerouſly affected, are the inward, called the
Vitals; ſo all States almoſt have this in common, that the farther Men advance into the heart of a Countrey, they find it more
weak and unarmed. The Carthaginians, otherwiſe invincible, were conquered near Carthage by Agathocles and Scipio. Hannibal
faid he could never beat the Romans but in Italy. It is then a very dangerous thing, conſidering the Covetouſneſs of Men,
which are never ſatisfied, to lay open theſe Secrets to Strangers, who having Arms at hand, may make an advantage of our
Weakneſs
, and puniſh our Imprudence. To this we may ada, that in all States there never want Men turbulent and diſaffected,
who are ready to fir up Strangers either againſt their Fellow Citizens, Sovereign or Neighbours, as we are told by Francis Beau-
his Commentaries on the Fiench Affairs; and Phil. de Comines I. 7. c. 7. ſpeaking of the Inhabitants of Piſa, to whom
King Charles VIII. gave Liberty, when he paffed through the Kingdom of Naples, to conquer ir; and by Tacitus about the
People of Lyons, Hift. l. 1. c. 65. Theſe Precautions are always neceffary to be obſerved, unleſs where ſuch a Paffage can't be
prevented, for we may be often deceived, tho' sve ufe all imaginable Circumſpection. And whoever allows a Stranger to enter
his Countrey, he gets either a Maſter or an Equal, But if we have no Reaſon to fear any thing either from him that would paſs,
or from him againſt whom he marches ; yet he certainly deprives his Subjects of the Advantage of the Commerce, which his
Subjects might have with that Neighbour, upon whom they let in an Enemy. See what is farther ſpoken out of Gronovius,
(6) If a Prince may forbid the Inhabitants of his own Countrey to go armed in all parts of his Dominions, with much more
he hinder Strangers. See Cicero Lib. V. in Verrem, c. 3. Moreover, if a private Perſon has a Right to keep any
from coming upon his Ground to hunt ſo much as Birds, Inſtitut. 1. 2. Tit. 1. de Rerum Diviſ. 8 12. And Thall not a Sovereign
have power to deny Paſſage to an Army of Strangers. See Juſt. Lib. 9. c. 2. Tit. Liv. 1. 37. c. 7. Caſar de Bell. Gall. l. 1. c. 8. jo.
Fred. Gronov. As alſo the Diſcourſe of Mr. Bynkerſhoek De Dominio Maris, c. 4. publiſh'd A. D. 1703.
(2) And therefore 'twas unreaſonable for the Romans in Livy, B. 21. c. 20. to define the Gauls, that they would not grant the
Carthaginians a fiee Paſſage into Italy, becauſe they would thereby turn the War upon themſelves, and expoſe their own Coun,
tey to be waſted for the security of another, to which they had no obligation. We have not (ſay they) received any Advan-
Vantage from the Romans, nor Damage from the Carthaginians, which may oblige us to take Arms for the one, or againſt the
Other: (1) Šee the League of the Romans with the Carthaginians in Livy, B. 38. C. 38. and with the Ætolians; Polyb. Excerpt.
heat 28 (1) 'Tis remarkable what Plutarch reports in his Life of Lyſander, that when the City of Athens was oppreſsd by
the Thirty Tyrants, the Thebans paſsa a law, that whoever ſhould carry Arms thro" Beotia againſt the Athenian Tyrants, ſhould
be free from the Norice of the Theban Eyes or Ears.
+ D 2
abſolutely
caire in hi
Nore 9.
Reaſon may
28
Book III.
Of the Mutual Duties of Humanity.
But
abſolutely take away your Right; but he may hind- about their Borders ; and when at length they were
er you from going in fo dangerous a manner, and oblig'd juſt to touch on (8) fome part of their Coafts,
conſequently may abridge your Privilege, though they did not take occaſion froin the former moft in-
he cannot annul it. But as to this way of arguing human Treatment, to commit any Violence or Tres-
we muſt obſerve, that in the Queſtion now before paſs in their March (b). As to the ſame People
,
us, we do not by the Liberty of Paffage underſtand when Sihon King of the Amorites, not only refufed
any ſettled and conſtant Service, but only an Oc- them the like Privilege, but came out Arm’d to op-
caſional and as it were a Momentary, uſe of ano- poſe them, probably before they had reach'd his
ther's Territories or Poffeffions, to which we are Coafts
, and therefore ſet upon them without any
driven, either by Neceflity, or by the Profpect of Reaſon or Provocation, we find he was overthrown
fome extraordinary Advantage, when it would be in the Combat; but he ſeems to have ſuffer'l this
Inhumanity in the other Party, not to comply Fate, not ſo much for denying them Paſſage, as for
with our Wants, and with our Requeſt.
rafhly encountring them upon ſo little Colour or
Examples, which are of ſo great Weight in deter- Pretence. For otherwiſe it would have ſeem'd too
mining other Queſtions, have little Force as to the hard to puniſh the Neglect of a piece of Humani-
Deciſion of this. For generally as People have been ty with the Ruine of a whole Nation ; ſince it ap-
ſtronger or weaker, they have required Paſſage with pears that theſe Amorites were ſeated without the
Modeſty, or with Confidence, and have in like Borders of the (9) Land of Promiſe, the Inhabitants of
manner granted, or refuſed it to others (7). “ Agefi- which God Almighty had by a ſpecial Decree, ad-
“ laus in Plutarch, when the Trallians (a) demand, judgʻd to utter Extirpation and Deſtruction. “ Nor
“ed an hundred Talents, and as many Women for will it alter the Cale to ſay with ſome, that the A-
" the Price of his Paſſage through their Country,
s morites here to make their Fear juſtifiable, ought
" ask'd them pleaſantly, Why the
Commiſioners were not to have rejected ſo fair Conditions, but ſhould
not there ready at hand to receive them; and with “ have immediately treated about accepting and
out farther delay march'd forward, encounter'd regulating them, but that now by refuſing all
« and routed them. He ſent to the King of Ma peaceable Conference and Commerce, they had
“ cedon, to defire the fame Favour, who anfwer “ rendred themſelves liable to be dealt with, as the
ing, that he would take time to conſider of it; “ moſt unjuſt and moſt unfaithful of Men: For
« let him conſider of it, ſays Agefilaus, and in the by the common Right and Privilege of Mankind, a
mean while we will go forward. The Macedo- Breach (10) of the Law of Humanity, does not de
“ nian admiring, and fearing fuch Spirit and Reſo- ſerve the utmoſt Rigour, and Extremity of Pro-
“lution, hunbly requeſted him to paſs at his plea- ceeding.
« ſure.
VI. Amongſt theſe Matters of Harmleſs Profit
,
is that of the Iſraelites, when deſiring to paſs thro Grotius reckons the perinitting Goods and Merchan-
the Edomites Country, they voluntarily offer'd dice, to be carried through our Dominions. Ziegler
the following Conditions. “ That they would accuſes Grotius of a Contradiction on this point
,
“ march alorig the King's Highway, without turn- whilft in one place he ſays, That no one can have a
« ing into the private Fields or Vineyards, and Right of hindering any Nation from maintaining Traf,
“ would immediately tender Money for every fick and Commerce with any other (1) Nation that is
thing of theirs which they ſhould have Occaſion Remote from them; and yet in another place of the
to uſe. The Edomites rejecting theſe Terms, ſame Chapter he grants, That it is lawful for one
‘and endeavouring in a Hoſtile Manner to hinder Nation to contract with another, for all the Goods of
their Paſſage, they did not think it juſtifiable to ob one kind not to be found elſewhere; ſo that no other
tain it by Force, but took a large Compaſs round People shall have the Liberty of buying them. But

06
66

(7) To theſe Examples, which rather prove what was done, than what ought to be done, we may oppoſe ſome Examples
more remarkable, viz. of ſome People who have been badly rewarded for their Eaſineſs in granting Strangers Troops to paſs
their Countrey. So it was thar Phebidas got pofleffion of the Caſtle Cadmsa, Diod. Sic. Lib. 45. с. 20. And the City of Meſſina
was taken by the Captains of Agathocles's Army, Polyó. Hi2. Lib. I. as Gronovius obſerves. See the Diſcourſe of Buddeus about
theſe Expeditions among his Sele&ta fur. Nat. do Gen. $ 30.
(8) They never entred into Idumea, but marched upon the Borders of it, and bought their Proviſions of the Idumeans. See
Mr. Le Clerc upon Deut. 2. 29.
(9) It is a wonder that our Author, contrary to ſeveral expreſs Paſſages in Scripture, ſhould exclude the Amorites from the
Number of the Seven Nations which God had ordered to be deſtroyed, viz. Deut. 7. 1. and 20. 17. Nevertheleſs, it is true, chat
thoſe whom he here ſpeaks of were not in the Land of Promiſe properly ſo called, which contained all the Countrey becween
Jordan and the Mediterranean Sea, and conſequently if King Sihon had granted the Iſraelites a quiet Paſſage, they had not exes
cuced the Sentence which God had pronounced, upon that part of the Amorites. See Mr. Le Clerc upon Gen. 10. 16. and Numb.
21. 22.
(10) See Mr. Thomafius's Inſtitut. Juriſpr. Div. Lib. 2. c. 6.9 16. in fine. Mr. Buddeus in his Elemenrs, Phil. Pra&t. Part II. C. 4.
88. 8-16, &c. maintains, that ſuppoſing the War which that Prince, who deſires a Paſſage thro” our Countrey, makes, is juft
and neceſſary; and on the other fide we have no reaſon to fear any thing either from him that is to paſs, or him againſt whom
he marches, we are under an indiſpenſible Obligation to allow him a Pallage, and his Reaſon is, becauſe the Law of Nature obli-
ges every one to affiſt thoſe who are unjuſtly oppreſſed ; and with much greater reaſon ought we to be no hindrance to ſuch as
undertake their own Defence. See Lib. 2. c. 5. 5 6. Note 3. above.
Mr. Barbeyrac's NOTES on § 6. p. 329.
(1) Grotius ſeems to underſtand, either mediately or immediately. This appears from the Reſtraines which he pues upon the
Trafick, which he ſuppoſes to be allowed between the two Eſtates, of which the one engages to ſell the other a certain fort of
Wares which grow no where elſe, it being meant, as he adds, that the People who have obtained the Privilege of buying
theſe Wares only, are ready to ſell them again to others at Reaſonable Rates. For granting that we have Necefiaries of Life
fufficient to fatisfie Nacure, it matters nor of whom we have them. So that our Author's Diſtinction might have been ſpared.
(a) Or the Troades, as we find them called in the Lacon. Apothegm. of the lame Author.
(6) See Deut, 11, 12, 34. Numb, 20. 14.


now
CHAP. III. Of tbe Mutual Duties of Humanity.
29

now by this Contract of Ingroffinent, it is plain o- him in the Advantage? Which we ſhall be, if whilſt
ther Nations are thus far hindred from trading in the we lie thus in the midſt between two people, we
fame Country. Yet it is eaſie to bring off Grotius, take Care not tº let ſuch Goods pals from one to
by ſaying, that in the former Paffage by hindering, the other
, without going firſt through our own
he underſtands not hindering them by Virtue of ſome Hands (2). And unleſs this be admitted for fair
precedent Bargain or Covenant, but hindering them and equitable Dealing, I ſee not on what Grounds we
by open Methods of Violence. Yet on the whole can defend thoſe (3) Staples
, and other Rights which
it muſt be confeſs’d, that he has not brought the we find in foine Countries, by Virtue of which Fo-
prefent Queſtion to a full and clear Deciſion. For reign Commodities are ſtopt and carried to the pub-
truly ſpeaking, the Law of Humanity does not ſeen lick place of Sale, and Strangers are permitted to
to oblige us to grant Paffage to any other Goods, Traffick, not immediately betwixt themſelves, but
except luch as are abſolutely Neceſſary for the fup- at ſecond-hand with the Natural Subjects.
port of their Life, to whom they are thus convey d. VII. From what has been ſaid, there may well an
But as for thoſe who import ſuch Commodities, as riſe this farther Queſtion, Whether the Law of Hu-
improve and encourage Luxury; or from which inanity will permit us to require Toll, or Cuſtom for
thoſe who deal in them do not ſeek any Supply of Goods tranſported through any Land, River, or nar-
real Wants, but rather an Exceſſive Gain, and an row Sea, ſubject to our Dominion. For at firſt ſight
Indulgence to covetous Deſires, I do not fee what it ſeems Inhumane, not to grant ſuch a Privilege
Right they have to demand Paſſage through our without Price, which the Law before-mention'd, al-
Coaſts for this kind of Traffick, or on what Preten- lows freely to all Mankind.
fions they can claim ſuch a Privilege as their Fue. Now why Cuſtom ſhould be impoſed on Goods cara
I confeſs, there fcarce appears any probable Co- ried over Land, there is this manifeſt Reaſon, be-
lour on which we ſhould deny unarined Veſſels the cauſe ſuch heavy Conveyance fometimes treſpaſſes
Liberty of an open Sea, which we are Maſters of, on the Fields, adjoyning to the Common Roads, and
whilſt they are bound to a third People, with whom becauſe the Sovereign of the Country is put to
we are at Peace. And to this point, chiefly relate Charge, both in repairing the Ways, and in ſecura
all thoſe Authorities and Teſtimonies of Authorsing the Paſſengers (1). And farther, if it be necef-
uſually produced in the main Diſpute. But thus fary to erect Bridges for this purpoſe, it is plain in
much we may reaſonably do, we may ſtop the Vef- Equity that the Sovereign may ſet up a Toll to re-
fel in ſuch a Caſe, and force them to leave their imburſe himſelf for thoſe Expences; and at the
Cargo in our Territories, that we may have the Be- ſame time, he who does require ſuch Toll
, is oblig'?
nefit of the firſt Purchaſe. For beſides that the not only to let the Bridges ſtand, but likewiſe to
frequent Paſſage of Strangers may, ſome time, cre- keep them in conſtant Repair. 'Grotius on the
ate Danger, or at leaſt may give Suſpicions to our 1 Kings X. 19. obſerves, that a great Toll was paid
State, what fhould hinder us from deriving that to Solomon for the Horſes brought through Judaa
Profit on our own People, which would otherwiſe from Egypt, to the Syrians, or to the Hittites; and
be made by Foreigners; ſince in inatters of Favour, thus too no Frankincenſe was tranſported without
we ought conſtantly to prefer the former to the lat- Cuſtom. The like Impoſitions are reaſonable in thoſe
ter. And though in Strictneſs it be indeed no Da- Places, where by the Induſtry of the Natives, the
mage to us, if we permit the free Tranſportation of Roads are rendred more ſhort or more eaſie; as by
theſe Commodities, and tho’ the third Party who the filling up of Pits and Ditches, or by other uſe-
receives them, does not properly injure us by mak- ful Labours, for the Convenience of Paſſengers and
ing a Gain, which 'twas in our power to have ſe- of Goods. Thus of old, had any one cut through
cured before him, yet ſince he has no Right of ex the Iſthmus, and join’d the Ionian and Ægean Seas,
cluding us from ſuch a Gain, why ought we not to he might fairly have required fome moderate Tolí
love our felves Leſt, and to be before-hand with of the Merchants and Sailers; which they would



(2) As the Duties of Humanity are reciprocal, and he that has received a Benefit ought to make fome Acknowledgment of it,
Strangers have no juſt Reaſon to complain that they are obliged to put their Goods to Sale in the Countrey, provided they'll buy
them at a reaſonable Price, becauſe by that means they will ger by them, tho' perhaps nor ſo much as they would have done if
they had carried their Merchandices farther. But if the Merchandices or Wares be ſuch as we are well ſtored with, or trade
with our felves, we may poſitively refuſe them coming in; becauſe 'tis
evident, that ſo much Profit as theſe Traders make in
pafling through our Countrey, 'eis ſo much Lofs to our felves. But if in retuſing a Paſſage, we deprive the Strangers that demand
of that Profie they might make, without any Advantage to our felves, 'tis inhuinane to envy others the Benefic which we can't
obtain our ſelves; and ſo much the more, if the other people to whom they would carry theſe Merchandices, can't have them
any where elſe, but at an exorbitant Price. See Mr. Buddaus, as above, Ś 4, 5. Mr. Hirtius in his Note upon this Place of
our Author agrees, that nothing hinders but the Right of Staple may take place among Citizens of the ſame State, either with
relation to Strangers, who come to ſell their Merchandices and Wares in their Countrey, (i. e.) They may not allow them to fec
them to Sale but in a certain place, but he does not fee why luch Perſons as bring Foreign Commodities, whether of their own
Growth or Manufacture, to carry them into a third Countrey, ſhould be obliged to put them to Sale; eſpecially if the People
through whoſe Countrey they are carried, have no great need of them. For my pare, there ſeems to me to be no Injuſtice in it,
provided we are willing to furnith theſe ſtrangers with ſuch things as they are ſeeking elſewhere, when they have paffed our
Countrey, whether of our own Growth or Manufacture, at a reaſonable Rate. For why ſhould they go far for what they may
have near hand? And why thould they nor acconimodate themſelves among us, who are nearer than others? ſo long as they
may make a tolerable Gain, though not so great as if they were ſuffered to go farther. So that in this caſe it is at our liberty
either to allow Paffage, or not, for Foreign Commodities; and all that we are to beware of is, that in denying we do not pre-
judice the Commerce of the Inhabitants of our own Countrey, and bring ſome other Inconvenience on them; but this is a mac-
(3) Stapulu, this word comes from the German, Stapulen, which fignifies, to put into an Heap or Pile. See Mr. Menage's
Etymolog. Diction. Lo Marquard de Jur. Mercat. Lib. 2. c. 6.
Mr. Barbeyrac's NOTES 6.7. p. 330.
(1) In ſome Countries, they who receive theſe Tolls were obliged to make the Roads ſafe. So that if a Man were robbed io
the Day-cime, they were bound to make good what he had loft
. Some ſay, that this Cuſtom is uſedat this Day in ſome places
of England and Italy See Furetiere's Didition, in che Word Peage, and the Saxon Laws, Lib. 2. Art. 27.
ter of Prudence only.
not
30
Book HII,
Of tbe Mutual Duties of Humanity.
(G
CG
not have been unwilling to give, the Voyage being near Rocks and Quickſands, for the keeping of
now perform’d with more Expedition and more Se- Fires to direct Vellels in the Night, or for ſcow-
curity. And though this Project was never ſet on ring the Coaſts of Pirates. But whatever is de-
Foot, Strabo informs us, “ That the Merchants of manded farther, than upon theſe Accounts, will not
Aſia and Italy, rather than paſs out of one of theſe admit of ſo good Defence; in as much as the
Seas into the other, by the tedious and dangerous Paſſage of unarmed Ships is plainly one of thoſe
“ Coaſt of Malea, were extreamly well ſatisfied to harmleſs Benefits which Humanity lays in Common,
put in at Corinth, and ſo carry their Effects over Yet where ſuch Pretenſions are made, the Pleas
Land; notwithſtanding the Duties to be paid which ſupport them do not ſeem altogether abſurd;
“ there for all Imported or Exported Goods. Ano as that no one ought to be blamed for making the
ther Reaſon which fome bring to affert the Equity beſt of his Dominions, as for raiſing ſuch Profits
of Impoſitions on Land-Carriage, is this
, that by from his Waters as others do from their Land.
ſo perpetual Confluence of Strangers, the price of That, ſince he who enters the Territories of ano-
Proviſions is exceedingly rais’d. To which we may ther, is for that time his Subject, we may compel
add in Concluſion, that a Sovereign, on this Ac- the Ships of Foreigners, whilſt they paſs through
count, requires fome Acknowledgment from the our Sea, to let our Subjects have the firſt Purchaſe
Goods of Foreigners, becauſe he ſuffers them by paf- of their Goods; and that if we give up this Claim,
fing through his Territories, to receive ſuch Goods we may require ſome reaſonable Confideration in
immediately from a third People; whereas ſhould he Lieu of it. That although we cannot perhaps ſet up
erect a Staple, the Gain and Benefit would be fair- a Staple in ſuch a Sea, becauſe the third Nation
ly intercepted by his own Subjects.
whither thoſe Ships are bound, may not have the
As to the River Tolls, this amongſt other Ar- uſe of Sailing, and therefore cannot fetch the Goods
guments, may be offer'd to juſtifie them, that ſince from us, neither have we, it may be, the Liberty
the Water by continually preying on the adjoining of carrying them thither; yet it ought not to be
Lands, and ſometimes by overflowing them, is the thought hard if we put in for ſome little Share in
Cauſe of no inconfiderable Damage, for the Preven- the Gain, ſince we permit Strangers to fail through
tion of which it is often neceſſary to ſecure them our Water, with ſo much Expedition and Conveni-
with Banks and other Works of great Charge and ence. But upon the whole, it muſt be confeft, that
Labour, it ſeems by no means unreaſonable, that ſince this Toll by Sea is, for I know not what Rea-
towards the making up of theſe Lofles, fone mo- ſon, accounted more Odious than what is demanded
derate Confideration thould be allowed by thoſe by Land, it ought to be exerciſed with great Pru-
who gain Advantage by the River, without being dence and Moderation, and without the leaſt Ap-
concern’d in its ordinary Miſchiefs. It is true in pearance of Extortion or Avarice. And after all
the Capitularies of Charles the Great (a), one Order there inay, 'tis very likely, (3) be a Sovereign (or
forbids to take Toll in thoſe Rivers, Ubi rullum ad- Two) who ſhall claim an Exemption from the com-
jutorium præſtatur itinerantibus, where no Aſſiſtance is mon Duty, and build his Pretenſions on good Rea-
given to the Paſſengers (2) but this fon; as that his Dominions bordering on the ſame
(*) V. Lex
Conſtitution ſeems to have been made Sea (4), encloſe it ſo at both ends, as to give him
Longobard, lib.
13. Tic. 1. Leg.
in Favour of the Natural Subjects, a fair Title to its uſe; or that on ſuch a uſe of it,
and there is no neceſſity of extend- his Coinmerce with Foreign Nations, and confe-
ing it to Foreigners (*);
quently the Good and Safety of his own People al-
It is a more difficult Point, to ſtate the Equi- moſt entirely (5) depends. For in theſe Caſes it
ty of Tolls demanded in Seas. This indeed is be- would be unrealonable, that to obtain the Liberty
yond Diſpute, that the Sovereign of a Sea may of a harmleſs Paffage by Sea, he ſhould be reducid
impoſe Duties anſwerable to the Charge, which to a kind of (6) Tributary Condition; nor will any
he beſtows about it; as for the ſetting up of Marks
(2) Either in taking care that the Commodities be not indamaged, or for the Safety of their Perſons.
(3) Our Author has a principal Refpect here to the Streight of the Sound, for he was at that time Profeſſor at Lunden in the
Province of Schonen, belonging to the Swedes ſince the Peace of Ratſchild.
(4). This Reaſonſ proves nothing. The Subječts of this Prince trade together by Land, but if they will tranſport their
Merchandices by an Arm of the Sea, why ſhould they refuſe more than other People to pay an Impoſt to the Mafter of the
Streight, either as a Satisfaction for the Charge he is ac co ſecure them a commodious Navigation, or as a ſmall Acknowledgment
of the Profit they reap themſelves from an open Paffage, which ſhortens their courſe, and makes their Trade more flouriſhing ?
And though there be no other Communication between the Countries of that Prince, which are above and below the Streights,
this does not at all leffen the Right of him that has the Poffeffion of it. Otherwiſe it would follow, that he thar hath a Coun-
try ſurrounded with anothers States, ſuch, for example, as are Avignon, and Orange in the Kingdom of France, hath a Right to
aſſert, that the Lord of that Country which incloſes his muſt ſuffer 'all Merchandices and Goods to paſs backward and for-
ward without paying any Tax or Impofition, which our Author will never grant. And I can't ſee what Privilege Navigation
can pretend to more, fince the Gulphs and Streights of the Sea, according to our Author's own Principles, Lib 4. c. 5. 58. be.
long no more to any Prince, whoſe Countrey they border on, than the Highways taken out of his Lands. See Mr. Bynkerſhoeke's
Diſcourſe, De Dominio Maris, c. 4 p. 28.
(5) Suppoſe that the People be ſo poor, that a moderate Tax laid upon their Goods and Merchandices which they tranſport
,
would diſable them from trading, and providing themſelves the Neceſſaries of Life. In this caſe the Maſter of the Streight
will be obliged to ſuffer the Vefſels of that people to paſs without exacting any Cuftoms of them. But yec he may take them of
Foreign Merchants for their Paffage ; becauſe, though it ſeems to be a leffening their Profits, yet they know how to indemnifie
themſelves in ſelling their Merchandices
, without which their Fellow. Citizens, to whom they ſell them, muſt either want ſome
of the Neceſſaries of Life, or buy them at an exorbitant Price. And tho' perhaps, if the Maſter of the Streight ſhould altogether
refuſe them a Paſſage, they would be in great want of ſeveral things, yet it does not follow, that they muſt therefore be exem-
pted from ſuch Cuſtoms, becauſe that open Paffage procures a flourilhing Trade, and a great abundance of all things they have
need of, and much more.
(6) That_Prince is no more tributary to the Maſter of a Streight for paying a Cuſtom, than a Traveller in a ſtrange Country,
paying che Toll of a Bridge or River is tributary to the Lord of the Country, who receives it. It is noc (as an Engliſh Author,
viz. Mr. Maleſworth in his memoirs affirms) a servile Acknowledgement of the Sovereignty of that Prince over the Seas, o
which the Streight is a Key. We may as well ſay, that by paying the Toll over a Bridge or River, which are on the border of
a Prince's Country, we attribute to him the Sovereignty over all the Country.
(2) Lib, 3.8 , 12. Add. Lex Longobard. Lib. 3. Tit. I. Leg. 21.


21.
olle
CHAP. III.
Of the Mutual Daties of Humanity.
21

; ?
one be much inclin'd to cenſure him, if upon fo o But in Caſe the oppoſite Shore is poffefs’d by a-
dious a Provocation he endeavour by any pollible nother People, ſo that the Sea is either held in com-
Means, to free himſelf from ſuch Exaction and Op- mon by both, or elſe as a middle Point divides the
presſion. Nor will it render his Reſentments leſs Confines of the two Dominions, though here per-
juſtifiable, to alledge on the other ſide, that other haps one of the States only may by Compact or
Nations have agreed to pay the Impoſition: becauſe Conceffion require Toll of Paſſengers, yet the Sub-
their Support and Safety is not ſo immediately con- jects of the other State ſhall by no means ſtand lia-
cern'd in the uſe of ſuch a Sea, and therefore they ble to the ſame impofition, ſince they fail in their
may afford to allow the Sovereign of the Sea a ſhare own Water (10).
in their Gains, without Gruding
or Repining. As the VIII. Under the ſame Head of Common and In-
Cafe is very different, (7) whether a Man deſires a nocent Privileges, Grotius (c) likewiſe reckons the
Way through my Grounds, becauſe without this Pri- liberty of Sailers, to touch and to reſt a little on
vilege, he would be as it were excluded from the any ſhore, for the ſake of Health or of freſh Wa-
World, and confined to Solitude, or becauſe he ter, or on any other juſt Account. Thus the Tro-
could not otherwiſe carry off the Fruit of his own jans complain in Virgil (d),
Land; and whether he makes the ſame Demand,
purely to ſhorten his Paſſage, and impoſes a Bur Quod genus hoc hominum? quave hæc tam bar-
theri on my Eſtate, not to relieve his own Neceſſi-
(bara morem
ty, but to promote his Convenience and Eaſe. Permittit patria ? hofpitio prohibemur arena,
They tell us, that the King of Abyſinia, or Æ Bella cient, primâq; vetant confiftere terra,
thiopia pretended of old to a certain Tribute from Si genus humanum & mortalia temnitis arma,
Egypt ; upon account that the River Nile, to which At Sperate Deos memores fandi atque nefandi.
that Country owes its fruitfulneſs, took its riſe in
his Dominions; and that afterwards when the Turks What Men, what Monſters, what Inhuman Race;
had ſeiz’d on Egypt, and uſed great Severities to What Laws, what barbarous Cuſtoms of the place,
wards the Chriſtians, the Abyſinian Prince made an Shut up a deſart Shoar to drowning Men,
attempt to have turn’d the Channel of the Nile And drive us to the cruel Seas again!
into the Red-Sea, but without Effect. Theſe Pre If our hard Fortune no Compaſſion draws,
tenſions and theſe Proceedings, which bear fome Re Nor Hoſpitable Rights, nor Human Laws;
lation to the Caſe before us, we cannot but look up The Gods are juſt, and will revenge our Cauſe.
on as unjuſt (8).
Mr. Dryden.
Some would determine this whole Buſineſs by the
means of Compact and Covenant, which Method we But 'tis obſervable that they profeſs'd before.
think not to be altogether accurate and deciſive,
For it remains ſtill in Queſtion, what was the ori Non nos aut ferro Libycos populare Penates
ginal reaſon of theſe Covenants; and whether the Venimus, aut raptas ad littora vertere prædas;
Maſter of the Sea may deny paffage to others, until Non ea vis animo, &c.
ſuch time as they ſall enter into the ſame Ar-
ticles of Agreement. Though indeed when ſuch We come not with deſign of waſtful Prey,
a Covenant has once paſs’d without any Natural To drive the Country, force the Swains away:
Flaw or Weakneſs, which might render it invalid, Nor ſuch our Strength, nor ſuch is our deſire.
both Parts are obliged ſtrictly to obſerve it; fo
Mr. Dryden.
that the People who uſe the Paſſage deſired, ought
on no account to deny the ſettled Impoſition, and Whence we are taught that the party who deſires
the Maſter of the Sea ſhall not raiſe the Duty this Favour, ought to appear on ſuch Coaſts with
higher, than what he has been thus eſtabliih'd by moſt innocent Intention, fo as neither to create any
joint Conſent (a). Nicephorus Gregoras (b) reports, Danger to the Inhabitants, nor any probable
that the Caliph of Egypt obtain'd by Covenant of Grounds of Fear. And therefore Dido's Anſwer to
the Emperour of Conſtantinople, Licence for the this Speech, is exceedingly wiſe and proper.
Merchants of his Country to paſs through the Thra-
cian Bosphorus. Which Privilege was
therefore fo Res dura, & regni novitas, me talia cogunt
eaſily granted at firſt, becauſe it feem'd a matter Moliri, & late fines cuſtode tueri :
of little
Importance. But when in courſe of time it
appear’d to be a Point of very conſiderable Con-
My cruel Fate,
fequence; it was found impobilile to revoke the And Doubts attending an unſettled State,
Grant, after it had been by long Cuſtom enforced Force me to guard my Coaſts.
Mr. Dryden.
(7) But our Author himſelf, reciting the ſame Example above, l. 2. c. 6.9 8. ſays, according to the senſe of the Interpre-
ters of the Roman Law, that he is obliged to grant a Paffage, eſpecially if he make ſome Acknowledgement. See Digeſt
. 1. 11,
from the circumſtances he fuppofes in favour of his Prince, be well grounded, and if this Prince has any way to oblige the Ma-
ſter of the Streight to let him carry his Merchandices free of all Toil
, ficnce other People pay it willingly.
(8) This inſtance, tho’our Author paſſes a true Judgment as to the Pretenfions of the Abyſine Prince, yer has little or no rea
lation to the Cuſtom or Toll which a Mafter of a Streight exacts of the Merchandices which paſs through it.
(10) But our Author elſewhere acknowledges, viz. Lib. 4. c. 5. § 8. that whoever has ſettled himſelf firſt upon one of the
Coants of the Streight, and has taken poffeffion of the whole Streigh, he that comes afterward to inhabit on the other ſide is
Maſter only of his own Ports and Shore. So that in this caſe the firſt occupant has a Right to require Cuſtoms of the Veſſels of
the other, as if he had both ſides of the Streight, unleſs he be diſpenſed with by any Agreement,
(a) Add. Becler, ad Grot. L. 2. c. 2. (. 14. (6) Lib. 4. (c) L. 2, C. 2, f. 15. (d) Æneid. I.
For
and eſtabliſh'd (9).


(9) What does this prove?
32
Of the Mutual Duties of Humanity.
Воок III,
Philo. Jud. in his Life of Moſes, ſays, chat
For before we grant any thing of this kind, we found the ſtricteſt Relation, and the moſt facred
ought to be well aſſured whether the Perſons ap- Friendſhip (c). But to give a Natural Right to
proaching come as Friends, or as Enemies, what ap- theſe Favours, it is requiſite that the Stranger be
pearance the Fleet makes, what force and figure abſent from his own Houſe, on an Honeſt, or on a
the Men bear who are to land ; and farther whether neceſſary Account ; as alſo that we have no Obje-
they are free from all contagious Diſtempers (a). ction againſt his Integrity, or Character, which
When there ariſes no Obſtacle on either of theſe inight render our Admiſſion of him, either Dange-
Accounts as it would be then moſt barbarous Inhu- rous or Diſgraceful ; and farther, that he cannot at
manity, to deny the Liberty of harmleſs Acceſs to preſent hire Lodgings for his Money. And there-
ſhore, ſo that Favour being once granted, calls for fore in Ancient Times, when publick Inns either
one more, altogether as reaſonable, the Privilege of were not in uſe, or elſe were accounted Scandalous
,
erecting little Momentary Huts for preſent Shelter, and unworthy to receive a good and vertuous Gueſt
,
which is neither any prejudice to the
Shore, nor any the Neceſſity of this Duty was greater and more
Abridgment of our Right and Property: Indeed ftri&ly binding than it is now in moſt parts of Europe,
Reaſon forbids that any one ſhould raiſe a laſting where we meet with ſo many of theſe Houſes, ex
Structure or Edifice on the Strand, without expreſs actly fitted and furniſh’d, not only for all Uſe and
allowance from the Sovereign (1), eſpecially if it Convenience, but even for Ornament and Splen-
could not be done but by indamaging others (b). dor.
Although ſome Nations
have by formed
Compact Now although Inhoſpitality be commonly, and for
ſettled the Point of Acceſs to Shores and Ports(2), the moſt part juſtly cenſured, as the true mark of a
yet this does not hinder the like Kindneſs from be- Savage and Inhumane Temper, yet the Point will
ing due by Natural Right; ſince many Duties ari- now and then bear a Diſpute, eſpecially as to the
ſing from thoſe Vertues which impoſe only an Im- Caſe of thoſe who wander into Foreign Countries,
perfečt Obligation, are frequently ſtrengthen’d and purely on the account of Curioſity; whether or no
confirm’d by civil Covenants and Laws (3). Be- ſuch Perſons may claim free Admiſſion by any Na-
ſides, our preſent Aſſertion regards chiefly this ex- tural Right (1). The Spartans to juſtifie themſelves
traordinary Caſe, when Perſons contrary to their in driving all Strangers from their Coaſts, thought
Intentions, are driven by ſome Violence on a Fo- this one Reaſon fufficient, left the Converſe of
reign Coaſt; whereas theſe Covenants which ſome- Strangers ihould introduce a Corruption, or a Con-
times paſs betwixt Nations, uſually have for their tempt of their receiv'd Manners and Cuſtoms (d).
Subject the point of conſtant and continual Acceſs In anſwer to which it is well urged by ſome, that
on common Occaſions. Therefore for this latter In- what we practiſe at home is not always the beſt,
dulgence, it is on no account Abſurd to require ſome nor what others do abroad the worſt; if then a Fo-
moderate Confideration. But in the former Caſe it reign Cuſtom be really better, it is abſurd to
would be extreamly baſe and fordid, to charge as deſpiſe, and to reject it on the ſcore of its being
a Debt ſo ſinall a Řelief of Perſons in Diſtreſs, and Foreign. That this is the Temper and Property of
as it were to ſet a Price upon our Charity.
Curs to fawn on Domeſtick Slaves, and to bark at the
IX. Another Duty of Humanity is the Admiſſi- moſt noble and excellent of Strangers. That thoſe
on of Strangers, and the kind Reception and Enter- Men uſually contract a Roughneſs and Clowniſh-
tainment of Travellers. Some of the Ancients car- nefs of Behaviour, who never breath out of their
ried this Point to the heighth of Ambition and O- native Air, and ſee no more of the World than
ftentation, conceiving the Right of Hoſpitality to what paſſes under their Noſe (e). As to the Que-
Mr. Barbeyrac's NOTES on S 8. p. 334.
(1) See Mr. Noodt's Book called, Probabilia Juris, (i, e.) The Probabilities of the Law, Lib. 4. C. I.
(2) Sometimes, on the contrary, as our Author obſerves a little below, one People agree with another that they will not come
into the Ports, nor on the Coaſts one of another, as appears from two Treaties made long ago berween the Romans and Cartha-
ginians. Thac the Romans and their Allies ſhall not ſail beyond the Fair Promontory,unleſs they are driven farther by a Tempeſt, or by
the Purſuit of their Enemies; and if thro’ theſe means they paſſed their Bounds, they ſhould buy nothing, nor meddle with any
thing but what is either neceſſary for Sacrifice, or to repair their Veſſels, and ſet ſail again to return within five Days. Polyb. 1. 3.
This was their firſt Treaty. The ſecond was, that no Roman ſhould trade into Sardinia or Africk; that they ſhould not build any
City there, nor land, unleſs to get Proviſions, or repair their Veſſels; and if they were driven afhore with a Tempeſt, they
ſhould depart within five Days. Ibid.
(3) See s 1. above, and Lib. 2. c. 6. S. 5. where you'll find Examples of theſe imperfect Obligations, which have been made
perfect by the Determination of the Legiſlator, who has made them effectual by Law: As alſo, See Lib. 4. c. 2. below.
Mr. Barbeyrac's NOTES on § 9. p. 335.
(1) For the fame Reaſons Lycurgus forbad the Lacedæmonians to travel out of their own Country, left they ſhould learn the
bad Cuſtoms and coarſe Manners of Strangers. Plut. Inft. Lac. See Potter’s Archeol. Grac. I. 4. c. 21.
(a) Add. Plin. N. H. I. 26.c. 1. (6) Vid. I. 50. D. de atq; rer. dom. (c) Ariſtot. Mag. Moral. I. 2.C. 11. Of all kinds of
Friendſhips that ſeems to be the firmeft
' which is expreſsa in the courteous Entertainment of Strangers; becauſe the Perſons
here having nor the ſame Ends and Intereſts to propoſe, cannot ſo eaſily fall into Contention, as thoſe who are Members of the
ſame State. Homer fays, the Poor and Stranger are the Care of Fove ; and again, the Suppliant Stranger craves a Brother's
Love. In Lucian (de Dea Syria) amongſt the Crimes which brought Deucalion's Flood upon the World, we find theſe which fol
.
low. They practiſed all kinds of Injuſtice; for they neither kepe their Oaths, nor receiv'd Strangers, nor gave a pacient Hear-
ing to the Requeſt of the Miſerable. of the Humanity which the Indians (hew to Strangers, See Diod. Sic. 1. 2. c. 42. Add.
Plato de L. L. 1. 12. Ælian (V. H. I. 4. C. 1.) recices this Law of the Lucanians, if at Sun fet a Stranger arrives, and deſires Rc-
ception in a Houſe; in caſe the Maſter refuſe to admit him, let
him be puniſh'à as an Offender
againſt the Laws of Hoſpitality
:
Add. Lex Burgund. Tit
. 30. f. 1. Hemoldus (in Cron. Sclav. I. 1. c.82.) reports of the ancient Sclavi, If a Man be diſcover'd to have
denied Lodging to a Stranger (a Rudeneſs which ſeldom happens amongſt them) the People joyn in a Body to pull down his
Houſe, and to ruin his Eftate; which way of proceeding is permitted by the Laws.
Strangers have the ſame Rights as Suppliants.
(d) The Chineſe have much the ſame Conſtitutions in reference to Strangers. Vid. Nieuhof. Gen. Deſcript. Chin. c. 1.
call'a, exſecrabilis velut defertio Juris
Humani
, as it were a deteſtable Defertion of the Law of Humane Nature. 'Tis a Saying of
Periander in Plutarch ( Sympoſ.) I commend thoſe States and thoſe Magiſtrates which firſt give Audience to Strangers,
to their own Subjects.


1.
and then
ſtion

CHAP. III. of the Mutual Duties of Humanity.
33
IS
that
, . , . c§ ,
ſtion before us then, thus much is certain, that if reigners, in theſe they ought not to binder the Spa-
our People are kindly receiv’d by any Nation a, niards from their Share : For Example, If other Stran-
broad, we ought to entertain the Men of that Na- gers were permitted to dig Gold, the Spaniards might
tion with an equal return of Civility. As on the fairly claim the ſame Liberty.
other hand, thoſe who drive us from their Coaſts
, on which Point fome have judged it worth conſi-
cannot without the moſt ſtupid impudence, petition dering, firſt, whether thoſe Privileges were granted to
us for a more courteous Treatinent. But fuppoſing others, by way of Debt, or by way of free Gift and
any one Nation contented with what it finds Favour. For of thoſe things which Men cannot
at home, utterly refrains from all Foreign Travel, claim froin me as ftri&tly their Due, I may be more
it does not appear what Obligation ſuch a State can liberal to one than to another. And in the next
have to admit thofe who would viſit it, without ne- place, whether theſe new Comers will behave them-
ceſſary or weighty Cauſe. The Caſe is ſomewhat felves with the ſame Juſtice and Modeſty as the
like that of a private Man, who in his Houſe or former, who made uſe of our Goods without our
Gardens, poflefles ſome rare Curioſity, or other va- Prejudice or Inconvenience ; and whether theſe late
luable Sight; ſuch an one does not apprehend him- Gueſts propoſe no other End of their Vifit. Sup-
felf, tied freely to let in all Spectators; but who- poſe I give one or two of my Neighbours leave to
ever is thus gratified either rewards, or at leaſt ac come into my Garden, as often as they pleaſe,
knowledges, it as an extraordinary
. Favour. And and to gratifie themſelves with taſting my Fruit;
this ſeems the more reaſonable, becauſe the Grounds it may be, there breaks in afterwards a rude He-
of prudent Caution and Suſpicion are ſo numerous, ctor, who is for tearing up my Trees, and would
that we may, eaſily make uſe of one or other of kick me out, to plant his own Body in my proper
them, to juſtifie us in keeping ſuch Perſons at a di- Land; my Caſe is bad if I may not be allow'd to
ſtance, as would too curiouſly examine and pry into ſhut the Gate againſt ſuch an intruding Villain (b).
our Affairs.
But let others ſettle this Controverſie. As to our
Therefore the Spaniſh Cafuiſt (a) has not made ma- main Queſtion, it is look'd on by moſt as the fafeſt
ny Converts by the Reaſons he lays down to juſti- way of reſolving it, to ſay, That it is left in the
fie his Country-men in their Proceedings againſt the power of all States, to take ſuch Meaſures about
Indians. The firſt Right on which he founds their the Admiffion of Strangers, as they think conveni-
Title, is that of Natural Society and Coinmunica- ent; thoſe being ever excepted, who are driven
tion, which he draws up into this Aſſertion, The on the Coafts by Neceſſity, or by any Cauſe that
Spaniards bad a Right of Travelling and of living in deſerves Pity and Compallion. Not but that it is
thoſe Countries, provided they did the Natives no barbarous to treat in the ſame cruel manner, thoſe
Harm, and from this Privilege none could reſtrain who viſit us as Friends, and thoſe who aſſault us
Natural Communication does not hinder a juſt Pro- as is deduced from another Head (d) (2).
prietor from communicating his Goods by ſuch Me But having once admitted Strangers and Foreign
thods, and upon ſuch Conſiderations as he finds ne- Gueſts, to turn them out again, unleſs by good Rea-
ceſſary. And farther, that it ſeems very Groſs and ſon, is uſually cenſured as ſome Degree at leaſt of
Abſurd, to allow others an Indefinite or unlimited Inhumanity (e). From the number of theſe good
Right of travelling and of living amongſt us, with- Reaſons, St. Ambroſe and with him Grotius (f) ex-
out reflecting either on their Number
, or on the de- cludes the Caſe of Grievous Scarcity and Dearth
fign of their coming; whether fuppoſing thein to afflicting a People. To whoſe Judgment we ſubſcribe
paſs harmleſly, they intend only to take a ſhort with this Suppoſition, That there are ſtill Means
view of our Country, or whether they claim a leſt, though perhaps very hard and preſſing, to ſave
Right of fixing themſelves with us for ever
. And both Natives and Strangers, and if the latter have
that he who will ſtretch the Duty of Hoſpitality been formerly, or may be hereafter uſeful and ſer-
to this extravagant Extent, ought to be rejected as viceable to us; and of ſuch only St. Ambroſe ſpeaks.
a moft unreaſonable, and moſt improper Judge of But in caſe we are not obliged to the Foreigners a-
the Cafe
. The Second Principle he lays down is, mongſt us, and there be no Neceſſity of their periſh-
That it was lawful for the Spaniards to traffick with ing, ſhould we ſend them off, there ſeems to be no
thoſe People, and the Sovereigns on either ſide could not reaſon why the Subject on their Account, ſhould be
binder their Subjects from ſuch Intercourſe. But here content to ſtruggle with a Famine (8)
Men of more ſober and moderate Judgments, con X. In the fame Claſs of Duties, Grotius (b) places
fefs themſelves unable to find out any ſuch liberty the allowing of a perpetual Habitation to Strangers,
of Trading, as Princes may not abridge
their Sub- who being driven by Violence out of their own
jects of, for the good of the Commonwealth ; much Country, are forced to feek out a new Seat, pro-
Jels fuch as Thall force and obtrude Strangers upon vided ftill, that they ſubmit to the eſtablifh'à Go-
us, whether we will or no. His third Reaſon is vernment, and behave themſelves with ſuch Pru-
this. If the Indians bad amongſt them any Rights dence and Decency, as to adminiſter no Occaſion
and Privileges allowd in common to Natives and Fo- to Factions and Seditions (i).
DIST COTT
(a) Franciſcus a Vittoria Relejt. 5.1. 3. (6) Add the Anſwer given by ſome of the Americans to the Spaniards, in Montaigne's
Efſays, 1. 3. c. 6. (c) Vid. Diod. Sic. 1,1, c. 67. (d) Add. Ziegler ad Grot. I. 2. c. 2. 1. 23. (e) Vid. Liv. l. 2. c. 37, 38.
(f) De offic. 1. 3. c. 7. Grot. I. 2. c. 2. 1. 19. (8) Vid. Sueton. Auguft. c. 42. ebu Becler. ad Grot. d. l. () Lib. 2. c. 2. f. 16,
17. (i) Euripides Medea, Xps ģ Ekvov, doc. .
A Stranger ſhould conform
In Maners to the State that entertains him.
Socer arma Latinus, near
Imperium folenne focer mihi menia Teucri, ora qu do jogi 103
So among che Articles of Peace propoſed by Æneas in Virgil,
Gonftituent, urbiq; dabit Lavinia nomen. iv 2000170 CM
Latinus ſhall the Regal Scepter bear,
Latinus firſt in Peace, and chief in War.
of E
Humanity,
oth
we find this for one :
90781
34
Book III
Of the Mutual Duties of Humanity.

Humanity, it is true, engages us to receive a ſmall be ſo conveniently placed and diſpoſed, as to ren-
number of Men expelld their Horne, not for their der them incapable of giving any Jealouſie to the
own Demerit and Crime; eſpecially if they are e Government. "If on the whole, it appears that the
minent for Wealth or Induſtry, and not likely to Perſons deſerve our Favour and Pity, and that no
diſturb our Religion, or our Conſtitution. And thus reſtraint lies on us from good Reaſons of State, it
we ſee (1) many States to have riſen to a great and will be an Act of Humanity to confer ſuch a Be.
flouriſhing Height, chiefly by granting Licence to nefit on them, as we ihall neither feel very Burthen
Foreigners to come and ſettle annongſt them; where- ſome at preſent, nor are likely to repent of here
as others have been reduced to a low Condition, after. If the Caſe be otherwiſe, we ought ſo to
by refuſing this Method of Improvement. tenper our Pity with Prudence, as not to put our
But no one will be fond of aſſerting, that we ſelves in the ready way of becoming Objects of Pity
ought in the ſame manner to receive and incorpo- unto others. Farther, ſince whatever we beſtow
rate a great Multitude, eſpecially if now in Arms, on ſuch Petitioners, we may juſtly reckon as a
or naturally addicted to War; ſince it is ſcarce pof- matter of free Bounty in us, hence it follows, that
fible, but that their Admiſſion ſhould highly en- they are not preſently to lay hands on what they
danger the Natives. Therefore every State may pleaſe, nor to fix themſelves as it were by ſome
be more free or more cautious in granting theſe In- Right, in any ſpot of Waft-Ground they find a.
dulgences, as it ſhall judge proper for its Intereſt mong us; but that they ought to reſt ſatisfied with
and Safety. In order to which Judgment, it will be the Station and the Privileges we aflign them (a).
Prudent to conſider, whether a great increaſe in the XI. The next office of Humanity mention’d by
Nuinber of Inhabitants will turn to Advantage; Grotius, is that we allow every Man the Privi-
whether the Country be fertile enough to feed fo lege of procuring for himſelf, by Money, Work,
iany Months; whether upon Admiſſion of this exchange of Goods, or any other lawful Contract,
new Body, we ſhall be ſtraitned for room; whether ſuch things as contribute to the convenience of Life;
the Men be induſtrious or idle; whether they may and that we do not abridge him of this Liberty, ei-
Mr. Barbeyrac's NOTE on § 10. P. 337.
(1) See Parrhaſiana, Tit. 1. p. 265, es, and a Diſcourſe De conſcribendo Milité, § 18. among the Select Diſcourſes, Jur. Nat.
Gen. of Mr. Buddeus.
(a) What hath been ſaid may be illuftrated by theſe Hiſtorical Examples. Latinus, in Virgil Æn. II. offers the Trojans this
Condicion :
Eft antiquus ager Tuſco mihi proximus amni,
A tract of Lands the Latines have poffefs'd,
Aurunci Rutulig; ferunt & vomere duros
Along the Tiber, ſtretching to the Weſt,
Exercent colles, atque horum aſperrima pafcunt,
Which now Rutilians and Auruncans Till,
Hæc omnis regio do celſi plaga pinea montis
And their mix'd Cattle graze the fruitful Hill;
Cedat amicitia Teucrorum for føderis aquas
Thoſe Mountains filld with Firrs, that lower Land,
Dicamus leges ; fociosq; in regna vocemus,
If you conſent the Trojans ſhall command,
Cali'd into part of what is ours; and there
On Terms agreed the common Country Share.
Mr. Dryden.
Servius on this paſſage obferves, from Cato's Origines, that the Land here mention'd contain'd 100 Acres. He tells us likewiſe,
for fear we ſhould think that the King was liberal of what did not belong to him, thar to thoſe words Aurunci Rutuliq; ferunt,
we muſt joyn the mihi in the preceding Verſe; the Auruncans and Rutilians having that Country allow'd them in a way of free
Stipend, or elſe being placed there by the King as his Husbandmen, to manage the Crown Lands. The Scory is told more at large
by Dionyf. Halicarnaſ. L. 1.
The Cimbrians in Florus (1. 3. c. 3.) petition the Roman Senate, that ſo Brave and Warlike a People would give them a little
Portion of Land as a kind of Pay, promiſing in return, that their Hands and their Weapons ſhould be ever employd in the
Cauſe of Rome. Bur (as the Hiſtorian there reflects) what Land could the Romans give them without quarrelling amongſt them.
ſelves, on the point of ſuch arbitrary Diſtribucions? And how could the Senate without manifeſt Injuſtice diſpoſe of the Proper-
ty of private Men? Beſides, poſſeſſing ſo many things as were likely to raiſe the Appetite of needy Strangers, they judg’d it up-
ſafe to admit ſo ſtrong and ſo fierce a Nation into their Limits.
In Cafar (de B.G. 1.4 ) the Tenteri and Ufipetes perition’d in this boaſting manner : That they did not voluntarily leave their
own Country to ſeek a foreign Sear; chat if the Romans would accept of their Service, they were able to ſhew themſelves no
unprofitable Friends; only they deſire fome Lands to be aſſign’d them, or to have the Privilege of keeping what they had alrea-
dy gorren by their Arms. The Anſwer which Cæſar ſent them was to this purpoſe; That 'twas unreaſonable in thoſe Men to in-
vade another Country, who could nor defend their own. That there were no vacant Lands in Gallia ; eſpecially not to hold fo
vaſt a Multitude, without prejudice or danger. Though indeed he had ſtill another more ſecret Reaſon, why he would not
have thole new Neighbours.
In Tacitus (A. XIII. C. $5.) the Antibarii being at a loſs for a Dwelling, having therefore ſeated themſelves in ſome Lands be-
yond the Rhine, belonging to the Romans; excuſed themſelves, nor alcogether unreaſonably, in theſe Words: That the main
part of the Land was uſeleſs; being only employ'd now and then by chance in feeding Beaſts for the Army. Thar the Romans
ought to reſign a place which was filld only with Beaſts, when they might relieve the Diſtreſs of Men; and prefer Friends and
Subjects to Delarts and Solitudes. That as Heaven was poſſeſs'd by the Gods, ſo Earth was given to Mankind; and whar Parts
were void of Inhabitants, lay in common to all the World. (Which Principle Sir Thomas More eſtabliſheth amongſt his Utopians,
1. 2.) This Meffage deſervd a more favourable Anſwer than thoſe moft haughty Words of Avitus, That they ought to ſubmit
to the pleaſure of their Berters. That the Gods, whoſe Aſſiſtance they now implore, had choſen the Romans to be Commad.
ders of the World, and to diſpoſe of it as they ſhould think convenient, without ſuffering any other Judges but themſelves.
The Emperor Probus ſettled an hundred Thouſand of the Baſtarne in the Roman Territories; who all proved fruitful and
quiet. But he uſing the ſame liberty of Tranſplanting vaft Numbers from other Nations, as from the Gepidi,
* Theſe Tyrants the Gautunni, the Vandals, &c. all theſe broke their Promiſe, and whilſt the Emperor was engaged in the
were ſuch as revol. War againſt the * Tyrants, wandred by Sea and Land almoſt through the whole world, and 1pread no ſmall
ted from the Em- Cloud on the Glory of Rome. Flav. Vopiſc.
peror then reigning,
and cauſed themelues to be proclaimed Emperors by the Soldiers. See Salmaſius upon the Thirty Tyrants of Trebellius Pollio.
So likewiſe in Ammianus Marcellinus, the Goths deſerting their Seat for fear of the Huns, begg'd leave of Valens to fix them.
ſelves in Thrace, promiſing to live quietly, and to lend him their Service when he ſhould have Occaſion. Soon after other barba.
rous People put up the ſame Requeft, to whom Valens granted the like Favour, hoping that from theſe Numbers he mighe draw
Men for his Troops, without any great Charge. Yet this Indulgence proved afterwards his Ruin ; as the Hiſtorian demonſtrates
at large. Add. Socrat. Hift. Ecclef. 1.4.c. 28.

ther
CHAP. III.
35
Of the Mutual Duties of Humanity.

ther by any Civil Ordinance, or by any unlaw- not favour its own Subjects more than Strangers; as
ful Combination, or Monopoly. For that as Trade by demanding lefs Cuſtom of the former, than of
and Commerce highly promote the Intereſt of all the latter, or by giving them the Right of firſt Purs
Nations, by ſupplying the unkindneſs of the Soil, chaſe.
PA
which is not every where alike Fertile, and by XII. Though, as has been ſhown, we are oblig'd
making thoſe Fruits ſeein to be born in all places in many Caſes to ſell, yet as Grotius (8) obſerves
,
of the World, which are to be found in any one (a): no Law ties us to a Neceſſity of buying. In as
So it cannot be leſs than Inhumanity to deny any much as every Man is naturally free to accept, or
Son of the Earth the uſe of thoſe good Things, which to refuſe
what Purchaſe he pleaſes; and no one has
our common Mother affords for our ſupport; pro- juſt Reaſon to complain, becauſe another is content
vided our peculiar Right and Propriety be not in- to want ſoinewhat which he could ſupply him with.
jured by ſuch a Favour. And therefore the Megel- And therefore we find it forbidden in many places,
renjans (in Plutarch) when the Athenians had for as well Ancient as Modern, to import ſome parti-
bidden them entrance to all their Ports and Mart: cular Commodities : either left any Damage ſhould
Towns complain’d that this was done taeg. Ta xorvci by this means ariſe to the State; or tu excite the
Sirasa, contrary to the Law of Nations.
Induſtry of our own Subjects; or to hinder our Mo-
But this Affertion will admit of many Reſtricti- ney from palling into Foreign Hands.
ons. For we do not ſeem in Duty obliged to com Therefore the Spaniſh Caſuiſt lately mention'd,
municate to others ſuch Goods, as belong not to the is widely miſtaken when he aſſerts, that by the Law
Necelties, but to the Pleaſure and the Superfluity of Nations every one has a Right of Trading in fo-
of Life. And then, if Scarcity lies upon us, we may reign Parts, of importing what the People there want,
juſtly keep what we have to our felves. Could Fo- and of exporting Gold, Silver, and other Goods in
ſepb have diſcover'd that the Corn of Egypt was which they abound. For fuppoſing I declare my felf
not ſufficient to ſupport the Natives, under the ſe- well fatisfied with what I poffefs of my own, with
ven Years Famine, he might with good reaſon have what Face can another force his Things upon me,
forbid the Exportation of it to Foreigners (b). So whether I will or no?
the Athenians once decreed it to be Capital for any When the contrary is enacted, for Example, when
Subject of that State, to carry Corn for Sale, any in fome Places, every Houſholder is obliged to buy
where but to Athens (c). Beſides, we may fairly yearly ſuch a Quantity of Salt, this ariſes from the
exclude others from Trafficking with us for things Power of Princes over their Subjects, and that Ne-
not abſolutely needful for the ſupport of Life, cellity of buying, is a kind of Tax or Tribute. Thus
when by ſuch a Permiſſion, our own Country would too a Ruler may enjoyn his People, that if they
loſe a conſiderable Advantage, or ſuſtain (though want ſuch a particular Commodity, they ſhall buy
by indirect. Conſequence, ) fome notable Evil
. it only of ſuch a Perſon. Which kind of Laws are
For Example, one Kingdom ſuppoſe produ- very juſt, when they promote the Intereſt of the
ces admirable Horſes; what ſhould hinder the Commonwealth. In the ſame manner we find it
Government there from paſſing an Act to prohibit it often coinmanded by Authority, that the Subject
the carrying into Foreign Parts, any that are fit for do immediately buy up Corn and other Neceſſaries,
breed? For ſhould the fine Strain grow Common, even in remote Parts, when there is danger of a
the Country would loſe its greateſt Profit, and its Scarcity, (eſpecially upon Apprehenſion of a Siege ;)
greateſt Ornament. And this beautiful Race is af- or to bring down Proviſions to a more reaſonable
fected abroad, not for neceſſary uſe, but for Pomp. Price amongſt us. But that I ſhould go about to
and Pride, for Elegance and Éaſe (d). In one of compel a Man, over whom I have no Power to the
the old Roman Conſtitutions
, it is made Capital to purchaſe of my Commodities, this is what no Rea-
carry Wine, Oil, or Arris to the barbarous Nati- fon will juſtifie or excuſe (1). For upon what Pre-
ons. They thought the Prohibition about the Wine tence can I aſſume ſuch Authority over the Purſe of
and Oil, no leſs neceſſary than the other about the another, who is not my Subject, as to preſcribe the
Weapons
, fearing left the Barbarians by taſting ſuch Matter, and the Meaſure of his Expences, and
generous Productions of the Empire, ſhould endea- to teach him how he ſhould provide for his Necef-
vour to inake themſelves Maſters of ſo rich a Soil. fities, or for his Pleaſures? And though my Gain
And we find in Livy (e), that when Aruns of Clu- be in the mean time hinder’d or lefſen'd, yet this
fium invited the Gauls into Italy, he made them a Conſideration can by no means abridge the other
Preſent of Italian Wines, as the Encouragement and Party of his Natural Liberty. Or, if I would have
the Reward of their Expedition (f).
him thus contribute to my Advantage, I ought to
Laſtly, there lies no Reſtraint on a State why, in encourage him by mutual good Offices
, and render
Reference to the Exportation of Goods, it ſhould my ſelf worthy of the Favour. But if a Man being
(1) See the Diſcourſe of Mr. Thomaſius, Entitld, De pretio affe&tionis in res fungibiles non cadente, c. 2. S 1, 2, s.
(a) Liban. Orat. 3. God hath nor enriched every place with all his Bleſſings; but hath divided his Gifts according to the dif-
ference of Countries, that he might
incline Men to Society, by the
want of mutual Aſliftance; and he diſcover'd to Men the
way of Trading, that what was the Product of any particular soil
, might by this means be enjoy'd in common by the whole world.
(6) Quintil. Declam. 12. Whilſt we were felling to the neighbouring Nations, and urged on by the hopes of ready Gain, we
neglected a due
regard to the publick Safety, and having emptied our Stores abroad, brought a Famine upon our ſelves at home.
() Lycurg Orat. contra Lecerat. (d) In Livy (1.43.c. 5.) Upon the Requeſt of the Gallick Ambaſſadors, it was order'd, that
they ſhould have the liberty of buying Ten Horſes, and of carrying them out of Italy. (e) L. 5. c. 33.
() Add. Numb. 13. 14.
10, 20. (8) Plato de L. L. 1. 8. Let'no Man import Frankincenſe, nor other Foreign Things uſed in Sacrifices, nor Pur-
ple,
hor any Colours which are nor produced at home ; nor in ſhort, any Commodity, but ſuch as is abſolutely neceſſary; and on
they allow no Entrance to Merchants, fuffer no Wine or any other Incitement to Luxury to be imported; imagining that the uſe
of chefe Delicacies muſt needs weaken Mens Minds
, and unbend the ſtiftneſs of their Courage. The ſame Author tells us of the
Svein, that if Beaſts are brought from other Parts for their Afliſtance, they refuſe to make uſe of them; and as for Wines they
abfolutely forbid the Importation of them, being of Opinion, that thoſe Liquors Totten and effeminare the Spirits of Men, and
tender them unfit for laborious Employments.
+ E 2
ſtock'd

36
Book III.
Of tbe Mutual Duties of Humanity.

ſtock’d with ſuch particular Commodities, offers to in Race and Blood : And that when theſe Agents
vend his Abundance, where-ever he can find were diſiniſs’d after a Reproachtul manner, it was
Chapmen, it would, in this Cale, be moſt Inhuman, then at laſt thought proper to gain Relief, by the
and Unjuſt to hinder him from thus furniſhing him- joint Application of Cunning and of Force. And
ſelf with other things, which he wants for the ne what makes the thing ſtill carry a better Force is,
ceſſary Occaſions of Life (a).
That this way of catching Wives was in thoſe Times
,
XII. Another Duty of the fame Rank, is the not only a Common, but a laudable Practice; Dios
giving Licence to Men of other Nations, eſpe- nyfius calls it, An. Ancient and a Grecian Cuſtom,
cially if ſeated in our Neighbourhood, to follicite, and the molt renowned Method of obtaining Maids in
and contract Matrimony with our Subjects, when Marriages Add Judges XXI. 22. It is true, Vio-
they, are at a loſs for Women ainongſt themſelves (1). lence can feldom be neceſſary in this Cafe, ſince
As for Inſtance, if a People compos’d-only of Men, it's never difficult to find Women enough, who ſhall
either being expelld their own Country, or upon be ready of their own accords, to accept of any
fome other neceſſary Account, aſe fix'd near us, and Husbands that are not abominably Vile and Scan-
defign to forin a new State. For to live without dalous.
WOT
the Aſliſtance of the other Sex, is what the Frame To reject thoſe who ſeek our Alliance by ſuch
and Temper of few Men can bear, Celibacy in a Propofals, would be very hard Dealing. And tho'
Healthy Conſtitution, is the Gift only of excellent the denying of a Woman for a Wife, be not in it
Souls; and to ſeek other Satisfactions in this Caſe ſelf, a juft Cauſe of cominencing a War, yet is it,
that Nature adviſes or allows, would be foul and if the Refuſal were accompanied with Reproach.
brutal. Beſides, as Florus obſerves, Res tantum unze As the Inhabitants of Rhegium, when Dionyſius of
us atatis eft populus virorum (2), A State made up of Sicily fent to deſire a Wife amongſt them, returned
onle Sex, viz. Men, cán laſt but one Age. Upon this in Anſwer, That they would grant him none but
Principle, many are willing to defend, or at leaſt the Daughter of their Common Executioner. See
to excuſe the famous Exploit of Romulus, the Rape Diodor. Sic. 1. 14. C. 108. & Strab. 1. 6. like Inſtance
of the Sabine Women. Authors indeed are divided is to be met with in Paulus Venetus, 1. 1. C. 52. On
about the Reafon and the manner of this Proceed- the other hand, ſhould a Prince by Vertue of his
ing Dionyſius Halicarnaſſeus reports, that the main Sovereign Authority, compel the Women of his
deſign of Romulus was to obtain the Friendſhip Country to accept of ſuch Husbands as have no-
and Alliance of the Neighbouring Nations, by join- thing in them to deſerve Affection, this would look
ing with them in Marriage; and that, though he like Inhumanity; eſpecially in Caſe the Fortunes
began this Project in an injurious way, yet he ima- and Conditions of the Parties were unequal
. The
gind that in time this ill Beginning would produce Speech of Canuleius in Livy, where in the Name of
a good Concluſion, and that a fair Correſpondence the Populacy (3), he intreats the Senate, that they
and Familiarity, would be eſtabliſh'd ſo ſoon as would allow them the Privilege of Marriage, a Fa-
they ihould have clear'd themſelves to the new vour granted to Foreigners, and to Neighbour
Brides, by the Plea of Love, and to the Father's Nations; and that they would not exclude them
and Relations by urging that the Stratagem was ſet from the number of Mankind, does not belong to
on Foot, not out of Affront and Abuſe, but as a the Queſtion before us, although produced as an
neceſſary Relief to a deſperate Condition. Yet it Inſtance by Grotius. For the Plebeians did not then
muſt be confefs’d,this ſeems a very prepoſterous way feel a Scarcity of Women, but the Aim and Deſign
of gaining Friendſhip. See Tacit. An. 1. 1. c. 55. of this Petition, was to raiſe themſelves to an equal
What he reports of Segeftes, that when Arminius had Pitch with the Nobility, and means of Marrying in-
ſto'len his Daughter againſt his Conſent, Gener in- to Patrician Families. Otherwiſe, when Women are
viļus, &c. The Names of Son-in-Law, and Father- plenty, there is no Occaſion of winning a Bride by
in-Law, which when there is a mutual Conſent of main Force of Arins : Invenies aliam ſi te hac .fa-
Parties uſed to be a Band of Love and Endearment, fidit. As for thoſe Civil Laws which forbid Marriage
proye now the Seed of Hatred, and the Incitement with Foreigners, or between Subjects of different
to niortal Diſcord.se
Ranks,they always preſuppoſe that every one is able
Others pretend that Romulus by this Attempt, only to find out a Match ſuitable to his Condition, and
ſought an Occaſion of quarrelling with his Neigh- they are generally founded on fuch Reaſons as thefe,
bours, which feems very Improbable. The com- that the Splendour of great Families may be pre-
mon Defence of the Fact
, is to alledge the want of ſerv’d; that our Women may more eaſily get Huf-
Women, and fo to have Recourſe to Neceflity': but bands at home, whilſt our Men are not allow'd to
then Authors take care to tell us, that Commiſfio- get Wives abroad; or that the (4) Riches and the
ners were
firſt fent about to treat with the People Affections of our People, may not by the means of
on the Affair, and to beg that they would not think Inter-Marriages be eſtrang’d from us, and ſettled
it hard to let Men like themſelves mix with them on a Foreign State.

Mr. Barbeyrac's NOTES on § 13.
(1) See Mr. Buddeus's Diſcourſe, Encicld, Juriſpr. Hiſtorice Specimen, S 9. among his Sele&a Juris Nature di Gentium.
(3) Res eſt unius ætatis populus viroruin. Flor.1.1. c. 1. numb. 10.
C) Canuleius's Words are, Connubium petimus, quod finitimis, externiſque dari folet~-ut hominum
-numero fimus. Liv. Dec. S
Lib. 4. c. 3.
(4) This Clauſe in Mr, Hirtius's Edition, with his Notes, is thus rendred, nè opes aut effe&tus noftrorum in alias Civitates pune
Connubia transferantur ; whereas other Editions have it, as it ought to be, affe&us. This renders it credible, that 'tis not a faule
of the Impreffion, but, as Mr. Hirtius remarks by way of Supplement, a thing contained in the Author's Expreſſion. For fear
(ſays he) à Citizen in reſpect to the Alliance and Riches of ſome powerful Stranger, ſhould exalt himſelf above others, or on the
contrary, for fear a powerful Stranger ſhould make uſe of his Alliance to a Citizen to become a Maſter of the State. For 10
Ariſtotle obſerved, That Dionyſius the Younger, having married a Woman of Locris, found a way by means of that Alliance to
poſſeſs himſelf of the Government of that Republick, "Polit.1.5.6.7. But all this is not comprehended in the Word affectus, of
wliich Mr. Puffendorf 1peaks.
(a) Add. Bæcler, in loc. citat. Gror.
XIV. Laſtly,
Chap. III.
37
Of the Mutual Duties of Humanity.

inſtruct us, Lib. 2. 6. 6,
XIV. Laſtly, Grotius adds, that any Right com as Pliny (1) obſerves to be call’d Ambition or Oftenta-
mon to all, and conſequently any Obligation to a tion, or any thing rather than Liberality. Wiſe
Duty to be perform’d towards all, ariſes from this Men have made it their chief Buſineſs to preſcribe
Suppoſition, that we grant ſuch an Indulgence pro- Rules for the guiding and perfecting of theſe Obli-
miſcuouſly to every Strangers becauſe then, if any gations: And the ancient Books of +Morality, are
one be excluded from the Privilege, he is manifeft- not on any Subject more copious, or more clear.
ly injurd. For it is an Affront and Reproach to (2) Tull. Off: 1. Beneficentia
, qua nihil eft natura bir-
debar a Man, without particular Reaſon, from a mand accommodatius, multas habet cautiones, &c. The
common. Advantage; this being to make hiin unequal Duties of Liberality or Bounty, than which there is
and inferiour to others. Hence Grotius concludes, nothing more agreeable to the Nature of Man, fall
That if it be in any place permitted to Strangers, under many Limitations (3). For in the firſt place it
to Hunt, to Fiih, to Hawk, to gather Pearls
, to ſhould be our Care to ſee that our Bounty prove not
receive Legacies, to ſell Goods, to contract Marri- a Prejudice, either to the Perfon we would oblige,
ages
, (even without being compelld to it by Scar- or to any other Body; and then that we do not
city of Women ;), no Nation can be denied the give above our own Ability, nor above the Meriti
fame Liberties, except they have forfeited them by of the Receiver. As to this laſt Point, we are Prin-
their own Default. But this Aſſertion will ſcarce cipally to regard thoſe, to whom we our ſelves al-
hold. For the Conceſſions here ſpoken of, muſt be ready ſtand Obliged, and then others as they have
made either expreſly or tacitly. When we grant a more or leſs Need of our Aſiſtance. We are like-
thing exprefly to another, we do it either Precariouſly
, wiſe to conſider the ſeveral Degrees, by which we
or in the manner of a Paet or perfitt Promiſe. Now ftand related in the World. Of theſe the Firſt and
that any one ſhould give a perfect Right over a moſt Extenſive, is the Univerſal Society of Man-
thing of his, ( 1100 due by the Law of Nature) to kind. Nearer than this is the Alliance between
all Nations known and unknown, without Limit Perſons of the ſame Nation, of the ſame Province,
or Reſtraint, is a Caſe which I believe never did, of the ſame Language, of the fame City. There is
and never will happen. For every one is deſirous yet a nearer Tye of Kindred. And here the Firſt
to know at leaſt, on whom he beſtows his Benefit, Society is in Wedlock, the next in Children ; the
and in what meafure. But when a Man either by Relation of Brothers comes afterwards, and then of
Paft or free Favour, has granted ſuch a particular Brothers and Siſters, Children and Men, the Mat-
Privilege to all that cone under his Friendſhip or ches and Alliances between different Families
. But
Acquaintance, for a meer Stranger to pretend a the moft Excellent and Strongeſt of all Alliances is,
Right to the ſame Indulgence, would be very Im- when Good and Vertuous Men join in Familiarity,
pudent and very Wicked. As for thoſe things upon account of the Agreement of their Manners.
which we permit Tacitly, or as it were overlook, Idem de Finib. 1. 5. In omni honeſto, &c. In all the
they are reckon’d of Courſe to be of the fame Na- Compaſs of Honeſly,there is nothing fo illuſtrious or of fo
ture with Precarious Favours; and ſuch may be fair- great a Latitude, as the Conjunction and Society of Men
ly revoked, either upon the Change of our Affairs with Men, including a mutual Communication of Con-
and Circunſtances, or becauſe the Perfons who en- veniencies, and general Love for Mankind. This Dear.
joy'd them did not make ſo prudent and modeſt a neſs begins immediately upon ones Birth, when the Child
uſe of them as they ought. Becler. ad Grot. is most Affe&tionately beloved by the Parent, from the
XV. What we have hitherto touch'd on, are but Family, it by degrees ſteals abroad into Affinities,
Vulgar Degrees of Humanity, the Omniſfion of which Friendſhips, Neighbourhoods ; then amongst Members
implies a moft baſe and abject Teinper of Mind. A of the ſame State, and amongſt States themſelves, uni-
much higher, and more illuſtrious Strain of the ſame ted in Intereſts and Confederacies; and at length
Duty, is when a Man out of pure Benevolence and ſtretcheth it ſelf to the whole Extent of Human Race.
Inclination, ariſing either froin a Native Generouf- In the Exerciſe of all theſe Duties, we are farther to
neſs of Soul, or from Pity and Compaſſion to a obſerve what every Man bath moji need of, and what
Perſon in Diſtreſs, is at ſome Pains or Charge in be- with our Help be may, what without our Help he can-
ftowing freely on another, what may relieve his not attain; ſo that in ſome caſes the Tye of Relation,
Neceflity, or procure his Advantage. Kindneſſes of muſt yield to the point of Time; and ſome Offices there
this Noble Rank, are by way of Eminence ſtiled are which we would rather pay to one Relation than to
Benefits; the mamer and meaſure of Diſpenſing another. Thus you ought jooner to help a Neighbour
which are coinmoly to be adjuſted with regard to in with his Harveſt, than either Brother, or a fami-
the Condition of the Giver, and of the Receiver. liar Acquaintance; but on the other ſide, in a Suit at
And theſe are the things which open to Mankind Law, you ought to defend your Brother, or your Friend
the largeſt Field of doing Good, and of acquiring before your Neighbour. See Seneca's Treatiſe of Be-
Glory, if they are temper'd and regulated by true nefit
, which it would be tedious here to abridge
.
Prudence and Greatnefs of Mind. For to throw Piutarch (in Sympoſ.) tell us 'twas a Rule amongſt
about Favours without Reaſon and Judgment, ought, the Pythagoreans, not to take a Burthen from their
chap. 38. numb. 4.
Mr. Barbeyrac's NOTES on S 15.
(1) Ambitio eniin, Ġ jallantia, & effufio, & quidvis potius, quam liberalitas exiftimanda eft, cui ratio non conſtat. Plin. Paneg.
(2) See the Commentators upon theſe and ſeveral other Paffages, where Tully trears of Beneficence. See Marc. Antonin. Lib. s.
wherein Mr. Le Clerc gives a fine Defcription of Liberalily, and wherein he Thews excellently well the falfe Notions which Men
ordinarily
have of that Verrue. "Tis the 12th Chapter of his Book, which he Entitles, Refle&tions upon our good or ill Luck,
as me commonly call it in the buſineſs of Lotteries. A work printed at Amſterdam in 1696.
(3) Under the Nation of Beneficence we may comprehend all the Services we do to others in averting the Dangers they are
threatned witbal. Iwas a Precept of the anciene Gymnofophifts
, as appears from a Saying of Charicles in Heliodorus, which
our Author cices above, 'Oud gS bi mor deputed cvxcvdúvw Lugle orasiver Spariodoar wapidav, ev 38 xj pôTO masáy leque
Fellow,

38
Of tbe Mutual Duties of Humanity. Book III.
Fellow, but to help him bear it; and this they did liged to a certain Perſon, in this Caſe it is law.
to exclude all Idleneſs and Eaſe. Though S. Paul ful for us to refuſe the Benefit he offers. But then
could have taught them a better Reaſon, 2 Corinth. great Care muſt be taken to do this without giving
VIII. 13. Not that other Men be eaſed, and you the leaſt Suſpicion of Contempt; fince otherwiſe
,
burthen'd, but by an Equality, &c.
to reject a voluntary Favour (3), Carries in it a
1 Add Ambrof. Offic. 1. 1. c. 30. and from him Gra- manifeſt Affront.
tian Dift. 86. C. 14, &c. & Cauſ. 1. Queſt
, 2. Chap. Take away the Neceſſity of returning Kindneſſes
,
6, 7. Socrates in Xenophon ('ANOLLV.) lays down this and no Man will ever begin them; for then it woulă
as a Rule in our Aſſiſtances, to our Friends or to plainly be acting againſt Reaſon, to part with our
Strangers
, and in almoſt all the Concerns of Life, Bounty, whilſt we know it would be thrown away
.
To do according to our Ability (4). To pohys And thus all Beneficence, all mutual Truſt and good
+ +- XVI. The Vertue anſwering to Beneficence in the Will muſt be baniſh'd out of the World ; there muſt
Giver, is Gratitude in the Receiver, by which he be no ſuch thing as free Help, or antecedent Me
demonſtrates, that the Kindneſs was acceptable to rit, no way of endearing and engaging one Man to
him, and upon this Score entertains a hearty Re- another. Comp. Hobbes de Cive, c. 3. f. 8. Ariſtot, ad
fpect for the Author of it, ſeeking all Occaſions of Nicom. 1. 9. c. 2. (4). It will hold good for the moſt
making a Requital, as far as his (1) Abilities will part, that we are rather to return a Benefit, than
give himn leave. For it is by no means abſolutely to ſerve a Friend in the way of Gratuity, as we
Neceſſary, that.our Return ſhould be preciſely, as ought likewiſe rather to pay a Debt, than give a
much in Valųe as the Courteſie amounts to, but way our Money to our deareft Confident. In Gene-
good: Will and earneſt Endeavour, are frequently ral, what we owe of any kind is firſt to be made
allow'd to ſatisfie an Obligation. Ovid. de Ponto good; yet if a free Gift to another Perſon, would at
1. 3. El. 8. omilla ed ei tasd 13150
the ſame time plead more Honeſty, and more Ne.
host onio Montalt
ceſſity, it is then to have the Preference in our Dil
Sed qui, quam potuit, dat maxima, gratus abunde eft, pofal.' Add Socrates, his Diſcourſe of Brotherly
Et finem pietas contigit illa fuum. Tot Love, in Xenophon.. 'Atrouw. 2. (5). Tully is admirable
He that repays to his Extent of Power,
on this point of Gratitude : It is, ſays he, of all Du-
Were not more Gratelul with the Nobleft Store. ties, the moſt indiſpenſably Neceſjary. If Heſiod bids
Балалар се us reſtore what we borrow, if we can, in a larger
The Reaſon of this Duty ceaſes, when ever we Meaſure; what ought we to do when we are as it were
have a juſt Exception againſt the Donour, and are challeng'd by a Prior Obligation? Are we not in this
fully allur'd, that his Bounty was more in Pretence Cafe to imitate fruitful Fields, that ſtill return more
than in good Will (2). But here wiſe Men give than they receiv’d. For if we make no Scruple to ob-
us an Excellent Caution, that we ſhould not be too lige thoſe whom we hope to be the better for hereafter;
curious in enquiring upon what Grounds and Mo- How then ſhould we behave our ſelves towards ſuch
tives a Man has been our Benefactor; becauſe this as we are the better for already? Since there are two
Niceneſs of Examination will ever afford a Plea, forts of Liberality, the one of beſtowing, a Benefit
,
and a Colour to Ingratitude.
the other of returning it; it is at our Choice whether
The more apt in their own Nature Benefits are to we will give or no; but an honeſt Man is not at Li-
unite and to engage the Minds of Men, the more berty in the point of returning, provided it can be
ſtrictly does Reaſon enjoin us to apply our ſelves done without Injury.
with Vigour and Induſtry, to apply our felves with It is obſervable, that Cicero here makes Gratitude
Vigour and Induſtry, to a juſt Requital. When a a part of Liberality, and conſequently, hints, that
Man has expreſs’d ſo much Dependance upon me, it is not tied up to Laws, altogether fo ftrict as
as to confer the prior Obligation, I am bound at thoſe of Juſtice, which commands us to repay
leaſt not to ſuffer hijn to be the worſe for his Kind- we owe upon Contract, moſt punctually and pre-
neſs, and I ought never to receive a good Turn, citely (a). It may be remark'd farther, that when
but with Reſolution to hinder the Author, if pofli- he ſays the former kind of Liberality, the beſtom-
ble, froin repenting of what he has done. If uponing of Benefits is in our Choice, he ought not to be
ſome particular Reaſon we are unwilling to be ob- underſtood in an abſolute Senſe, for it is plain we

2:04
th
what
(4) To theſe rare Paſſages of the Ancients, we may add a ſmall Sentence taken out of our Author himſelf in his Abridgment
of the Duties of a Man and Citizen, I. 1. c. 8. $ 5. The manner of exerciſing Beneficence and Liberality much inhances the
Value of Benefits, as when a Man does a good Office with an air of Chearfulneſs and Briskneſs, and with all the ſigns of a good
Will.
Mr. Barbeyrac's NOTES on $ 16.
(1) 'Tis a Maxim of the Scholars of Zoroaſtres, Præceptum eſt, ut ſi quis beneficium facit alteri, tum alteri incumbit illud eadem
quantit ate rependere, quantum poterit. In Sadder. Porta. 95. We are cominanded, that if any does a benefit to another, that other
is obliged to do the like, if he be able.
(2) As for Example, If a Man keeps me from drowning, I have no manner of Obligation to him, if he threw me into the
Water, as our Author ſpeaks in his Abridgment of the Duties of a Man and Citizen. Lib. 1. c. 8. $ 6. See Seneca de Benef.l.6.c. 26.
(3) 'Our Author in his laſt Edicions interrupts the thread of his Reaſonings with this Remark, That when one refuſes a Benefit
,
we thould take care that we give no Suſpicion of Contempt to him who civilly offers us his Service, otherwiſe ſuch a Refuſal is a
kind of Injury.
(4) Ariſtot'e maintains, that as it is a greater Duty to reſtore what one has borrowed, than to lend to a Friend ; ſo it is ordi
.
narily to make an Acknowledgement of a Kindneſs, than to do one to a friend; at leaſt there is greater Reaſon drawn from
Honeſty and Neceſſity to engage us to the Duties of Gracicude, than Friendſhip, according to the Pallage our Author quotes out
of Ariftotle, και τα μεν ευεργεσίας ανταποδοτέον επί το πολύ μάλλον, ήχάeιςέον εταίροις, και άσπες δανειον, και οφείλει αποδυτήν
μάλλον, ή εταίρω δοτέον -- αν και αρτάνη η δέσις των καλώ, ή το αναγκαίο, προς ταύτ' αποκλιτίον.
(5) His Words in the Latin are, Nullum enim officium refe enda gratia magis neceſarium est. Quod fi ea, quæ utenda acceperis majore
menfura, ſi modo poſſis jubet reddere Hefiodus, quidnam beneficio provocati facere debemus? An imitari agros fertiles, qui
multò plus effe
,
runt quam acceperunt ? Eterim ſi in eos quos fperamus nobis profuturos, non dubitamus officia conferre, quales in eos esſe debemus, qui
jam profuerunt? Nam cum duo genera Liberalitatis funt, unum dandi beneficiis, alterum
reddend, demus necne in noftra poteftate eft;
non reddere viro bino non licet, modò id facere poßit ſine injuria. De Offic. 1. 1. C. 15.
(4) Vid. Ambroſe de offic. l. 1.C.31. Gell. 1. 1. C. 4.



are
Chap. III.
39
Of the Mutual Daties of Humanity.
“ ctors (b).
are under fome Obligation, even to Antecedent Be “ chance to obtain, they immediately hate the Per-
neficence, but the point is, that this Obligation does “ fons to whom they have been obliged, becauſe
not carry ſo much Strictneſs in it, as that which “ either wanting Will to make Requital, or dem
binds a Man to Gratitude ; or to endeavour the ap ſpairing of Ability, and at the fame time fanſi-
proving himſelf by all good Will, and goud Service ing all
the World to be Mercenary, and that 110
to his Benefactors.
good Turn is done without Hopes of Retribu-
It happens, 'tis true, very frequently that in the
tion; they apprehend themſelves to have exceed-
doing a Kindneſs
, there is more true Love on the ingly baulk'd and diſappointed their Benefa-
part of the Giver, than of the Receiver. The Rea-
ſon of this is enquired into, by Ariſtotle in his E Learned Men have diſputed, whether or no there
thicks, B. 9. C. 7. There being too much Ground ought to lie an (3) A&tion againſt his Vice, in Courts
in fact, for that Politick Remark of Tacitus, Bene- of Civil Judicature. Seneca (€) takes the Negative
ficia eo uſque lata funt dum videntur exolvi poſje : ubi fide of the Queſtion, and the Reaſons he proceeds
multum antevenere, pro gratia odium redditur. Add upon are chiefly theſe ; “ Firſt, That if a Benefit
Hobbes Leviathan, C. 11, &c. Where he tells us, that “ be ſtrictly to be repaid like a Sum of Money, or
the receiving great Benefits from a Superior, inclines“ as if it were let out to hire, it then loſes the (4)
to Love, but the receiving of the like from Equals or “ Name of a Kindneſs, and becomes a Loan or
Inferiors, does not, unleſs there is Hope of being able “ Debt; Secondly, That whereas the requiting of a
to requite them.
“Good Turns do ſo far yield an a good Turn is eſteemed an Act highly Vertuous,
greeable Satisfaction as we fanſie our ſelves able to it muſt ceaſe to be Vertuous, were it once made
repay them: when they much exceed this Mea “ Neceſſary: Thirdly, Laſtly, That there muſt needs
“ ſure, the Debt grows deſperate, and ſo produces “ ariſe more Cauſes on this Head, than all the
a ſullen and a ſecret Hatred, inſtead of a real (5) Courts in the World would be ſufficient to try.
< Kindneſs and Affection.
Themift. Orat. 3. By the Perſian Conſtitution, there
XVII. But though the bare Notion of Ingratitude is a ſettled Penalty decreed againſt Ingratitude; as
does not imply a real Injury, in as much as it is being the readieſt Incentive to Hatred, and Ill Will,
not the Violation of any full and perfect Right, yet And where this Vice is not puniſhable by Law, it
it paſſes in common Cenſure, for a Vice more foul, produceth more deſperate Enmity, and more fatal
more odious and deteſtable, than Injuſtice it ſelf (1). Contention. Add Xenophon Cyrop. 1. 1. Add M.
For it is look’d on as an Argument of a moſt Abject Antonin. l. 9. C. 42. & Val. Max. 1. 2. c. 6.f.6,7.&
and Degenerate Soul, for a Man to declare himſelf 1. 5. c. 3. f. 5. To theſe Inſtances and Arguments,
unworthy of the fair Opinion which another enter- other Authors have anſwer'd at large. See Becler's
tain d of his Honeſty, to be Proof againſt (2) Benefits A&tio Ingrati. Our Deſign leads us no farther, than
and conſequently paſt all Senſe of Humanity (a). to obſerve, that from every Tranſgreſſion of the
The account which (In Paffion Artic. 294.) Des Law of Nature, it does not preſently follow, that
Cartes gives of Ingratitude, is very Rational and there muſt lie an Aktion, (or the Reſemblance of an
very Elegant. “ It is the Vice, ſays he, of Men, Aktion) againſt a Man in Natures Court. This is
who are either madly Proud and 'Vain, and to certain, that the Divine Juſtice hath reſerv'd fevere
imagine every thing to be due to their Merit; Puniſhments to be inflicted on ungrateful Perſons in
or elſe ſenſeleſly Stupid, and ſo unable to reflect another Life: And in this preſent World they ought
on the Benefits they receive; or laſtly, pitifully to ſuffer the Hatred and Deteſtation of all Man-
* Weak and Abject, who when they feel their own kind, and to be adjudg’d unworthy of the leaft
"* Infirmity and Want, ſue with the meaneſt Sub- Benefit or Favour. But why a Man cannot be ſued
"miſſion for the Aſſiſtance of others; which if they in an Action, at the Civil Bar, for fimple Ingratitude,





Mr. Barbe yrac's NOTES on § 17.
(1) The Reaſon that Tully gives of the evil Eye of Ingratiude is this. Omnes immemorem beneficiis oderunt, eamque injuriam in de-
terrenda Liberalitate fibi etiam fieri, eumq; qui faciat, communem hoſtem tenuiorum putant, (i.e.) The Ingrateful is hated by all the
World, for their Proceedings diſcourage them who are inclined to Liberality, which is an Injury which every Man ſhares in ;
infomuch that the ingrateful Man is accounted the common Enemy of all thoſe who need help from powerful Perſons. Cicer.
de Offic. 1. 2. c. 18.
(2) O, και το χρυσών εκ εποιησεν ήμερον
If Benefits will not affect the Mind,
Τι δ' άν δράφιον άλλο ή πινων πότε.
There's nothing in the World will make us Kind.
Greg. Nazianz.
Lucian alſo 1peaks to the ſame purpoſe, as in (a). See alſo the Reflections which Mr. De Evremont makes upon ungrateful Pere
Tons, Tom. 3. p. 79. and in his Miſcellanies. Printed at Amſterdam 1706.
(3) This was practiſed heretofore not only among the Perſians (as appears from Xenophon Cyropæd. Lib. 1. P: 3. Álian. Hift.
Animal: 1. 8. c. 3. & Themiftius Orat. 22. de Amicitia, but alſo among the Athenians. For Valerius Maximus says, In qua urbe
(Athenis) adversus ingratos a£tio conſtituta eſt
. Lib. 5. c. 3. $ 3. extem. See allo Lib. 2. c. 6.8 6. de Petit.de Legib
. At ben. Lib. 2.
Tit
. 6. & Lib. 4. Tit. 8. which Paſſages Mr. Bayle did not remember, when he ſaid, in his Thoughts about a Planet, That
none
but the medes have made any Laws againſt ingrateful Perſons, for which he quotes Xenophon and Seneca de Beneficiis; Lib
. 3. c. 6.
in which laſt the Editions read
Macedonum for Medorum, about which, See Muret. Var. Le&t. Lib. 12. C. 3. See alſo, Briſſon. de
Regn. Perſarum, Lib. 2. p. 198, 199.
(4) Seneca's Words are thele, Primum omnium pars optima beneficii periit, ſi a£tio, ficut certa pecunia, aut ex conduło, aut locato datur.
Deinde, cum res honeftiffima fit referre gratiam, definit esse honefta, fi neceſſaria eft. -Adjice nunc, quod huic uni legi
omnia fora vix fufficient. De Benef. Lib. 3. c. 7.
(3) In fine, Beſides, that there is hardly any Man but
complains, that he has been ungratefully dealt with, it is very hard
to weigh exactly the circumſtances which encreaſe or leſſen the Value of any Benefit. See what Séneca lays of this,
(a) Lucian id Antholog, dava aynis, &c.
A Thankleſs Wretch is like a broken Sieve,
Lets out, and loſes faſter than you give.
Add Pheraula's Judgment concerning the Nature of Man in Xenophon Cyropæd. 8.
A Favour ſhould be treafured in the Soul,
A Wretch that Stifles Benefits beſtow'd
And made the Mother of a kind Return,
( De Benef. 1.3.6.6, &c.
Scarcely deſerves the generous Name of Man.
that


(6) Sophocles Ajace.

40
Of the Duty of keeping Faith;
Book III
, είτε 7
*hat is, forgetting a good Turn, or for neglecting Signedly, without looking for any farther Fruit, than
to requite it, when he had Opportunity, there ſeems the Action it ſelf. Is it not ſufficient Satisfaction to
to be this plain Reaſon; that the very Cauſe of my have relieved and aſſiſted one that is a Man as thou art?
conferring the Kindnefs (that is, of iny giving fome. Doft thou demand a Reward for doing what thy Nature
what without taking Security for its return) was obliges thee to do?
to afford the Party an Opportunity of ihewing him But when a Man is guilty of mix'd Ingratitude,
ſelf Grateful out of pure Honeſty, not out of fear or when he not only neglects to requite à Courte-
of Compulfionand on my own part to demon- fie, but anſwers it with Injuries and Abuſes ; the
ſtrate that what I beſtow'd was not done out of a Injury thus offer’d, founds an Action in Natures
fordid Deſires of Gain, but out of Humanity and Court, or a Cauſe of War,; and its being accompa-
good Nature, ſince I required no Caution, or Enfu- nied with an ungrateful Mind, as it highly aggra-
rance of being repaid (6). Antoninus will teach us vates the Fact, and renders it more Vile and Odi-
better Philoſophy. When thou accuſeft a Man (ſays ous, ſo it engages the Sufferer more ſpeedily to ſeek
he) of Falſeneſs or Unthankfulneſs; turn the Centure Redreſs; and to puniſh the Villain the more fe-
upon thy felf. For the Fault is without doubt thine; verely, in Regard, that Benefits themſelves could
that thou didſt not confer the Favour freely and unde- not reclaim him (a).
LISCALE 94
(6) "O gav
() eitis xej , ,
, msuv , esores,
της σής πράξεως ευθύς απειληφέναι πάντα και καρπών. Τί ο σλέον θέλεις, ποιησαι άνθρωπον, έκ αρκεί σοι και κατά φύσιν την
σω τι έπραξαι και τότε μίδον ζητάς και ως ει ο όφθαλμα αμοιζήν ασήει και ότι βλέπει και ή οι πόδες ότι βαδίζεσι, ώσσές ο ταύτα
ασπρός τόδε τιμονεν, άσες κατα την ιδίαν καθασκέυην ενεργεία απέχει το ίδιον, όπως και ο άνθρωπG- ευεργετικό πέφυκως,δσό-
εαν τι ευεργέικον, ή άλλως εις τα μέσα συνεργάτικον πράξη πεποίηκε, προς καθασκέυασαι, και έχει το έαυτά, Lib. 9.5 42.
(d) How far the Neceſſity of returning a Benefit is taken off by a ſubſequent Injury, Seneca teacheth us, de Benef. 1.6.c. 4,
a ,
$. & Epiſt. 81. TTC
2
78
1
VI.
VII.
IX.
is oor die het ons gelobt CHA P. IV.
1. KOT 180 pores & BDA
co
Of the Duty of keeping Faith, and the Diverſity of Obligations to it.
1. There muſt be Covenants and Agreements in all | V. A Natural or Civil Obligation.
Humane Societies.
What is the Force of each of them.
II. Covenants are to be kept.
A Perpetual and Temporary Obligation.
III. Obligations are natural or adventitious. VIII. Obligations not mutual.
IV. Atheiſm deſtroys all Natural Obligations.
Obligations perfectly or imperfetly mutual.
a suolelios
HE Dutieshitherto explain’d, are mutually ow- nite, cannot in the ſame manner extend it ſelf to all
ing upon account of that Common Relation, Perſons, it is agreeable to Reaſon, that ſuch Acts as
which Nature has eſtabliſh'd amongſt Men; altho are not already beſpoken by an Antecedent Obligation
we ſuppoſe no Antecedent Ad to have paſs’d be- lying on us, ſhould be made ſure to thoſe, who by ei-
tween them (1). But it would be unreaſonable to třing into Covenant with us, firſt obtain a Right to re-
confine within theſe narrow Limits, all the Offices ceive them (2). Therefore, that the true Fruits of
that Men are to exerciſe towards each other. For a ſocial Nature, the mutual Offices of Mankind might
the firſt place, ali are not of ſo good and honeſt be practis'd with more Frequency, and more Regu-
Diſpoſitions, as to perform every thing, whereby larity, it was neceſſary for Men to bargain, and a-
they can benefit their Neighbours, oụt of pure Hu- gree amongſt themſelves, that they would perform
manity, and Charity; without being ſecure of Re to each other, ſuch and fúch Services, they could
tribution. And then, many things which we ſhould not be abſolutely ſecure of, by the bare Law of Hu-
be glad to receive froin others, are of ſuch Value manity. So that their Buſineſs muſt be to ſettle be-
and Conſequence, that we cannot in Modeſty deſire fore
hand, what every Man ow'd to another, and what
them gratis
. Or perhaps it does not become our For- he ſhould by Virtue of his Right, accept and chal-
tune or Station to be beholden to another, for ſuch a lenge in return (3).
Benefit. Therefore unleſs an Equivalent be paid, com Hence it is eaſie to apprehend how the Offices of
monly the other Party is unwilling to give, and fre- Humanity or Charity, differ from thoſe which are
quently we are unwilling to receive. Again, others are requir’d by full and proper Right, and which are
many times Ignorant, how they might ſerve and oblige the Objects of ſtrict Juſtice. The foriner are not
us. Laſtly, in as inuch as the Power of Man being Fi- owing upon any Covenant, either Expreſs or In-
נון
Mr. Barbeyrac's NOTES on Chap. IV.S 1.
(1) See Chap. I S I Note 1. aforegoing, and Chap. 9. $ 8. with the Note on it.
3) The Period, which is placed here, and is joyned to the foregoing by the word, Deniq; Finally, ſeems deſigned for a nero
and laſt Reaſon to prove the Neceflity of Voluntary. Engagements. But, as any one may
difcern, that period ſuppoſes a Necef-
ſity of ſuch Engagements already eſtabliſhed: For it endeavours to ſhew the Right which an Agreement or Promiſe gives over
the Actions of another; and ſo has bred Confuſion in our Author's Work. This has proceeded evidently from the Negligence
of our Author in inſerting his Additions; for the Sentence, which cauſes this Diſorder, is not found in the firſt Edition,
(3) I have added the following Sentences to complear our Author's Reaſoning, as he has done himſelf in his Abridgement
a Man and Citizen, Lib. I c. 8. $ 2. This is what is done by Agreements or Promiſes: For tince our Abilities are fo limited
,
that they can't extend at the ſame time and in the Tame manner to the Neceſſities of all Men, Reafon tells us, that he that has
acquired by an Agreement or Promiſe any particular Right to the Actions of another, which were not before, as we may fay,
engaged to any other, has a Power to diſpoſe of theſe Actions according to the Agreement.
of
plicite
CHAP. IV.
41
and the Diviſion of Obligations.
Plicite, but purely by, force of that Common Obliga- tures, moſt religiouſly to obſerve and perform them.
tion with Nature has laid upon Mankind. But what For were this Aſſurance wanting, Mankind would
I owe another upon Pact or Agreement, I therefore loſe a great part of that coinmon Advantage,
owe him becauſe he has obtain'd a new Right, hold- which continually ariſes from the mutual Inter-
ing good againſt me, by virtue of my free Promiſe courſe of good Turks (1). Ariftot
. Rhet. I. 1. C. 15.
or Conſent. Farther, whatever I tranſact with ano. Take away Covenants
, and you diſable Men from
ther by way of Covenant, is deſign’d not for his being uſeful and aſſiſtant to each other (2). Tull.
Whereas in Duties of Hu- Off. 1. 2. c. 11. So great is the force of Juſtice, that
manity, the Caſe is quite otherwiſe. For, although even thoſe who live by Outrage and Villany, cannot
the Performance of theſe be in general Neceſſary, for Subſiſt without ſome Shadow and Semblance of this Ver-
the rendring the Life of Man Comfortable and Com- tue. Which he ſhews in the Inſtances of Thieves
modious, and conſequently be an Advantage to the and Pirates. Fårther, were not Men moſt ſtrictly
Performer, by giving him good Grounds to expect neceſſarily tied to keeping their Promiſes, we could
fair Treatment; yet with regard to particular Acts not with any certainty build on the Alliſtance of
of Kindneſs
, a Man does theni not for his own fake, others, in the ordinary Affairs of Life. And then
but for the ſake of the Party who receives them. breach of Faith is the apteſt thing in the World to
For a Benefit, if confer’d upon a Principle of pri- found an endleſs Succeſſion of Quarrels and Com-
vate Intereſt, loſes its Nature and its Name. plaints. For in Caſe I have actually perform’d my
Thus then the Duties of Humanity or Charity, part of the Contract, and the other Perſon fails,
and thoſe ariſing from Covenant, do afford a mutu- whatever I have done or given is abſolutely loft: And
al Aliſtance, and ſupply to each other, whilſt thoſe if I have not as yet proceeded to any actual Per-
things which Charity either cannot, or does not ordi- formance, it is, however, a Trouble, and it may
narily procure, are obtain'd by Pact ; and in Matters be a Prejudice to me, to have the Courſe of my
about which no Pacts have paſs’d, Charity comes in, Deſigns and Buſineſs overturn’d; ſince I could have
and ſerves our turn as well. And although to fix ſettled things by other Ways and Meaſures, had not
the Subject, and the Conditions of Covenants be left this Man offer'd to tranſact with me. And 'tis moſt
to the Pleaſure of particular Perſons; yet that there Unreaſonable, that I ſhould be expoſed to Scorn
fhall be ſome fuch Agreements, the Law of Nature and Cenſure, for entertaining a kind Opinion of a
does (indefinitely and in general) command ; in Perſon's Goodneſs and Honeſty. We are therefore
as much as without theſe Tranſactions, there would to eſteem it a moſt Sacred Command of the Law
be no poſſible means of preſerving Peace and Socie- of Nature, and what guides and governs, not only
ty in the World (4). So ſpeaks Ifocrates adverſ: the whole Method and Order, but the whole Grace
Callimach. So great is the force of Leagues and Co- and Ornament of Human Life, that every Man keep
venants, that ſcarce any Affairs, either of Grecians his Faith (3), or which amounts to the ſame, that
or Barbarians, are tranſacted in any other manner. he fulfil his Contracts (4), and diſcharge his Pro-
By means of theſe we traffick abroad, and bargain miſes (a).
at home. By means of theſe we terminate private Dif III. But in as much as Pacts or Covenants, thoſe
ſentions and publick Wars. Theſe we all make uſe eſpecially which are Expreſs, do impoſe an Obliga,
of
, as an Univerſal Good to be enjoy'd in Common tion on us, which Nature did not before enjoyn, at
by Mankind.
leaſt not in ſo preciſe and determinate a Manner;
II. When Men have once engaged themſelves by it inay not be here Inconvenient to run over the
Pałts, their Nature obliges them as ſociable Crea- Principal Kinds, and Diviſions of Obligations. Obli-



OD
(4) Ιocrates's Greek is this, Τοσαυτίω σ' έχεσι δύναμιν [αι συνθήκαι) ώστε το πλήκα βία, και τους έλλησι, και τους βαρδα-
μς, συνθηκών είναι ταύταις και πρέυοντες, ώς αλλήλες αφικνέμεθα, και πειραζόμεθα. ών έκασοι τυγχάνομεν δεόμενοι μετα
τέτων και τα συμβόλαια τα προς ημάς αυτές ποιέμεθα, και τας ιδίας έχθρας, και τις κοινες πολέμες διαλυόμεθα τότε νόμω κοινώ-
πίντες άνθρωποι διατελεμεν χρώμενοι. .
Mr. Barbeyrac's NOTES on $ 2.
(1) The Greek of Aritatle is this, “Ωστ ακύρων γιγνομένων των συνθηκών] αναιρείται η προς αλλήλες χρεία των ανθρώπων.
(2) Cicero's Words are, Cujus [Juſtitie] tanta vis eft, ut nec illi quidem, qui maleficio, & fcelere paſcuntur, poffint fine ulla par-
ticula Juſtitie vivere. Confule ailo plato about this matter, in a Paſſage which Grævins quotes, and Simplicius upon Epi&tetus
Chap. 58. near the end.
(3) We muſt add, of what Condition or Religion foever he be, to whom we engage our ſelves for any thing. It is a Precept
of the Scholars of Zoroaſtres, a ſort of Men in this not ſo looſe, and more honeſt, than many Chriſtians, Cum quocunque feceris
pakkum, id ne frangas._-_Nec putes tecum dicere, Quamvis paštum fregero, id mihi tamen non erit peccatum, & fibi fit cum aliquo
in Religione noſtra, five extra eam, res perinde est
, (i. e.) With whomſoever you make an Agreement, you muſt not break it
Nor muſt
you ſay with your felf, if I break my Agreement, I ủo not fin, whether it be made with a Perſon of our own Reli-
gion or not. In The. Hyde De Re'ig. Vet. Persarum, &c. In s'adder Porta. 28. See alſo the fine Thoughts of Montaigne upon the
indiſpenfible Neceſſity of keeping a Man's Word, Lib. 3. c. 9. The Pythagoreans to accuſtom themſelves to keep their words
in Matters of Importance, thewed the greateſt- Exactneſs in things of a trifling Nature. And of this they tell a pleaſant Story.
is One Lyfis, a Philoſopher of that Sect coming one day out of Juno's Temple, met one of his Fellow- Diſciples, named Eurypha
mus, going into it, who deſired him to ſtay till he had payed his Devocions. Whereupon he ſets him down before the Tem-
i ple; but
Euryphamus having unhappily fallen into a deep Meditation, forgot his Promiſe, and departed at another Door.
Neverthels Lyſis, without Diſcouragement, ſtaid paciently all that Day, the next Night
, and good part of the next Day, when
being in their school, and hearing some talking of Lyfis, as if they knew not what was become of him, he called to mind
what he had promiſed, and went to relieve this fcrupulous Obſerver of his word. f ambl, de Vita Pythag. c. 30. $ 185
Doubtleſs this is an over.nice Exactneſs ; but 'tis better to offend on this ſide, than ſuffer
ourſelves to be guilty of the leaſt Nego
(4) The Author begins here to diſtinguiſh between Agreements or Contracts, and Promiſes, whereas in other places he uſes
who makes the Promiſe; and therefore to avoid all Equivocation, and not to make things obfcure without the Neceffity, it is
better, when we ſpeak'so in general, to ufe the Word Engagement.
(a), See Dionys. Halicarn I. 2 where he tells the Story of the Conſecrating Faith amongſt the Goddeſſes by Numai Euripides
Xρή αψευδες ναι τoίσι γυναίοις σόμα. . Truch the belt Mark of Honour and of Race.
+ F
gations
Heracl.
42
Of the Duty of keeping Faith; Book III, .
gations then in the firſt place, are diſtinguiſh'd into of ruling and of puniſhing in his Kingdom of Nature
Connate and Adventitious (1). Vid. Sander. de Oblig. froin his Irreſiſtible Power : but did any one ever ima-
Jur. Prele&t. 1. f. u. The former are ſuch as all gine that an Atheiſt was able to reſiſt the Power of
Men fall under by Vertue of their being Creatures, God? And therefore Atheiſts are not, ſtrictly fpeak.
endued with Reaſon, or ſuch as neceſſarily attend, ing, God's Enemies ( as Hobbes defines Enemies, who
and accompany the rational Nature, conſider'd in are neither under a Common Sovereign, nor under each
that ſimple and general Notion. Although, in Re- other) but his Rebellious Subjects, and conſequent-
gard that all Men are born Infants, and as yet i1r- ly guilty of Treaſon againſt the Divine Majeſty, as
capable of the exerciſe of Reaſon, theſe Obligations Hobbes himſelf
, has elſewhere (d), exprefly acknow-
do for ſome time lie without Act or Force; and do ledged. And agreeably to this he defines Treaſon
then at length exert their Power, and render Men againſt human Power to be,
" When one either by
capable of contracting Guilt, when the Underſtand-“Word or Deed, does in general manifeſt and de
ing improving by Age and Uſe, makes us ſenſible “ clare, that he will no longer ſubmit to that Man
of them. And from this Period they date their In or Council of Men, in whom is lodg’d the ſupream
fluence, and produce their penal Effects, ſhould a “ Adminiſtration of the State, or when a Man whol-
Man be never fo Negligent in weighing and conſi 66 throws off the Bond of Civil Obedience. It is
dering their Authority: Therefore Ignorance of the 110 ſuch obſcure matter, therefore to aſſign the
par-
Law of Nature, is an inſufficient Plea, to excuſe a ticular Species of Sin, to which Atheiſm belongs
.
Perſon of mature Years; though he ſhould urge that Nor is the following Aſſertion built on better
it never came into his Head to reflect whether this Grounds, That Atheiſts cannot be puniſh'd any other.
Law had ſettled ſuch a Point or not. Adventitious wiſe, than by the Right of War; as the Poets repre-
Obligations are ſuch as fall upon Men, by the In- ſent the Gods, routing by force of Arms the old
tervention of fome human Deed; not without the Giants that aſſaulted Heaven. On the contrary,
Conſent of the Parties, either Expreſs, or at leaſt that Evils
inflicted in Martial Encounters are not
Preſumptive.
properly Puniſhments, we ſhall hereafter have Olin
iv. Amongſt Connate Obligations, ſuch as are portunity to fhew. A Sovereign muſt not preſently
planted, as it were, in our Being, the moſt Eminent be ſaid to make uſe of the Right of War, when he
is that which lies on all Men with reſpect to Al- reclaims his Refractary Subjects. For the bare Right
mighty God, the fupream Governour of the World; of Sovereignty includes thus much, That the Perſon
by Virtue of which we are bound to adore his Ma- inveſted with it, ſhall have the Power of reducing
jefty, and to obey his Commandments and his Laws. thoſe to Obedience by Force, who refuſe a volunta-
Whoever wholly violates and breaks through this ry Submiſſion. Much leſs are thoſe Rebellious Op-
Obligation, ſtands guilty of the moſt heinous Charge pofers of lawful Authority, to be accounted juft Ė
of Atheiſm'; becauſe he muſt at the ſame time, de- nemies, or ſuch as have a Right of making Refi-
ny either the Exiſtence of God, or his Care of hu- ftance.
man Affairs, Which two Sins with regard to their It does not excuſe Hobbes to alledge that Paſſage
Moral Conſequences and Effects, are Equivalent to of the Pſalmiſt, The Fool hath ſaid in his Heart There
each other; and either of them overthrows all Re- is no God. As if there was any ſuch Nicety in the
ligion, repreſenting it as a frightful Mockery, in- Scripture Language, to call thoſe only Fools who
troduced to awe the Ignorant Vulgar into ſome De- ſin out of Miſtake, and not thoſe who offend Wil
:
cency and Duty (a). Therefore we ought in Juſtice fully. Or, as if this too were not the higheſt Folly
,
to Diſcard and Explode, as moſt foul and ſcanda. by a wilful Sin to incur the moſt intolerable Tor-
lous, that Notion of Hobbes (b), in which he would ments, for the ſake of a very ſlender Pleaſure, or
rank Atheiſm amongſt the Faults of Imprudence or perhaps no Pleaſure at all. Again, it is by 10
Ignorance; as if it were not properly a Sin, but a means a Matter of ſuch Difficulty, to diſcover the
Miſtake or Folly, more worthy of Pardon than of Pu- Being of a GOD by Natural Reaſon, as to find
niſhment. The Argument he makes uſe of runs out the Proportion between a Sphere and a Cylinder ;
thus, The Atheiſt never ſubmitted his Will to the Will the Inſtance which Hobbes makes uſe of. It may
of God, in as much as he never believ’d there was ſuch not be indeed in the power of every unlearned Per-
a Being. But now it is impoſible any one ſhould have ſon to form, or to apprehend an Artificial Phi-
a Sovereign Power over us, unleſs he obtair'd it by our loſophical Demonſtration of God's Exiſtence ; but
he
Conſent. Therefore fince the Atheiſt was never under cannot thence claim a Privilege of ſecurely doubt-
the Kingdom of God, it follows that he is not obliged ing or denying it. For in as inuch as the whole
by the Laws of that "Kingdom. But here it is moft Race of Men in all Ages have conſtantly held this
grofly falſe, that all Sovereignty is conſtituted by Perſuaſion; whoever would attempt to aſſert the
the Conſent of the Subject; for this will hold only contrary, muft of Neceſſity, not only folidly con-
with regard to humanDominion ; where unleſs by our fute all the Arguments produced on the other ſide,
own Contract and Confent, we cannot loſe the but alſo alledge better and more plauſible Reaſons
Power of reſiſting another, who is by Nature our E- for his own particular Opinion. And farther, ſince
qual. But
who will pretend to affert that GOD the Safety and Happineſs of Mankind have been hi-
has not a Power of commanding his Creatures
, un- therto thought to depend chiefly on this Belief, it is
leſs they voluntarily agree to inveſt him with ſuch requiſite, that he likewiſe prove Atheiſm to contri-
Authority? Nay, Hobbes (c) has ſufficiently confu- bute more to the Intereſt, and the good of all Men,
ted himſelf by deducing the Right, which God has than the Acknowledginent of a Deity. Which be-






Mr. Barbeyrac's NOTES on $ 3.
(1) Arrian in his Diſſertation on Epi&etus, Lib. 3. c. 2. diſtinguiſhes alſo between Exéress pusixes xj bai#7oi, Habitudes, of
Relacions Natural and Impoſed.
(a) Ambroſ. Offic. I. 1. c. 26. Nothing hath more influence in promoting an honeſt Life, than our Belief, That we have ſuch
a Judge of our Actions, as no Secrecy can eſcape, no Indecency but will diſpleafe, no good Performance buc will delight. Add
Laltant. De Ira Dei, c. 8. (6) De cive, c. 14. 1. 19. c. 15. 1. 2. (c) C. 15. f. 5. (d) C. 15.1. 19.
ing
Chap. IV.
43
and the Diviſion of Obligations.)

ing a Task manifeſtly Impoſſible; the Atheiſts are this he only ridiculouſly confounds the Natural with
to be judg’d Offenders, not only againſt the Divine the Poſitive Divine Law. He proceeds to affert,
Majeſty, but againſt all Mankind. And they de- That Man confider'd in a state of Nature, is free
ferve the leſs Favour on this Account, becauſe theſe from all Religion, not only upon account of Ignorance,
very Men who would reverſe the Judgment of all Peo- but by virtue of that common Liberty, in which all
ple and of all Ages, do arrogantly aſſume to them are born. For, ſays he, if Men were by Nature bound
felves a deeper Sagacity, a clearer Light of Under to the Divine Law, or if the Divine Law were a Law
ftanding than the World (1) was ever acquainted with by Nature, it would be ſuperfluous that God ſhould af-
before. And conſequently, though their Unbelief be terwards enter into a Contract with Men, and oblige
indeed an Error, and a moſt fatal and deſtructive one, them by Oath and Covenant. Now it is clear that
yet it is ſuch as they did not fall into through Impru- theſe Pacts or Covenants pafs between God and
dence or Simplicity, but by a vain and impudent Men in reveald Religion, not in Natural, to which
Pretence of more than ordinary Degrees of Wif- a Man immediately ſtands obliged upon account of
dom (a).
his being created by God a reaſonable Creature. So
It will be a very eaſie Labour to refute thoſe Ar- that Spinoſa's Concluſion is moft Vain and Senſeleſs,
guments, which Spinoſa (b) has alledged in defence That Divine Law began from that time, when Men bý
of this Notion of Hobbes. The Theſis he lays down expreſs Compact, promiſed to obey God in all things,
to work upon is this, Every one who cannot govern by which deed they receded, as it were, from their Na.
himſelf by Reaſon, may by the higheſt Right of Nature, tural Liberty, and transfer’d their Right upon God,
live according to the Laws of his Appetite. And fore- juſt as Sovereignty is confer'd in Civil States. For the
ſeeing it might be here objected, That the Affertion ſupport of which Doctrine it is neceſſary to fup-
was contrary to the reveal'd Law of God, he an- poſe, that Men in a State of Nature, had not their
ſwers, That a Natural State is both in Nature and Exiſtence from God Almighty:
Time Antecedent to Religion ; which with Regard to From this Obligation, by which Men are bound
Natural Religion is as abſolutely falſe, as what he to pay Obedience unto God, ſprings the Obligation
ſubjoins, That no Man knows by Nature, any Obliga- of all Men towards all Men, as ſuch; by Virtue of
tion lying on him to obey God, and that no Reaſon which they are engaged to lead a ſocial Life. How
tan obtain this Knowledge, but ſuch as is confirm’d by this is to be diſcover'd, it has been formerly our
the Signs of Revelation. Therefore the Confequence Buſineſs to fhew.
he draws is moſt Abſurd, That before Revelation, no V. There is another famous Diviſion of Obliga-
Man was bound by any ſuch Divine Law, as it was tion, into Natural and Civil; but ſuch as is by diffe-
impofſible for bim to be ignorant of ; and, That a Na- rent Authors, differently ſtated (c). Grotius ob-
tural State is to be conceiv’d without Religion or Law; ſerves, that the Lawyers ſometimes call a thing of
and for that Reaſon without Sin or Injury. In all Natural Obligation, the doing of which Nature ſhews



59097
Mr. Barbeyrac's NOTES on 6 4.
(!) Mr. Bayle in his Thoughts about a Comet (Art. 177.) diſtinguiſhes between two forts of Atheiſts, the one, which begius
to doubt, and the other, which have paſſed all doubting. Of the firft fort are ordinarily all thoſe who bear the Name of Lear-
ned, but falſly; and glory in their Reaſon and the contempt of bodily Pleaſure; as alſo thoſe whoſe Souls are ſubject to all ſorts
of Vices, which are capable of the worſt Aggravacions; and perceiving chat che Fears of Hell cauſe them no ſmall Diſquier, and
imagining that 'tis their Incereſt that there Thould be no God, endeavour to perſuade themſelves that 'cis ſo. Others become
Atheiſts becauſe they have been great Sinners, and are full of as much Malice as can crowd inco any Man's Soul. The ſecond
fort are Infidels without deſign, and Moral Men. Mr. Bernard in his News about the Republick of Learning, November 1701.
calls them both Atheiſts by Reflections ; but he after diſtinguiſhes them thus, giving the Name of Atheiſm in Fancy to him who
begins to doubt, and of Atheiſm in Heart who are paſt doubting. According to this Author, 'tis undeniable, that there are
Atheiſts in Heart in the World, for, ſays he, Perhaps, 'tis hard to maintain, that there are Atheiſts in Mind in the World, who
are confirmed in Atheiſm, but there are fuch perhaps as labour under ſo many Scruples concerning the Being of a God, chac
they think it a thing ſo very dubious, that they can have no certainty of it. But the ſame Author fays, There are a theifts
without Reflection, who believe po God, becauſe they have never thought of it, but being ſo wholly taken up with ſenſible
objects, it never came into their minds to ſuſpect that there is any thing in the World but what they ſee, never inquiring after
the Principle of their Being. There is no doubt but there are ſuch Atheiſts, withour returning to the fabulous Relations of the
Chineſe and Caffres. In my opinion, there is nothing more
judicious than theſe Reflections, and this Syſtem of the different forts
of Atheiſts. The Notion of our Author above-mentioned is not much different from the common Hypotheſis of Divines, who
with regard to common Experience determine a matter of Fact by. Metaphyſical Reaſons. I can't then but wonder, that he
gives ſuch a careleſs Solution of the Queſtion, which he touches by the by, viz. Whether Atheiſts ought to be puniſhed ? He
maintains elſewhere (viz. in his Book,
of the Duties of a Man and Citizen) that
they ought to ſuffer the moſt ſevere Puniſhments,
Graviffimis pænis eft coercenda eorum impietas. Bút on the contrary, Mr. Titius fays, that ſuch Men ought not to be treated to
Leverely. For, ſays he, that Method of Puniſhment and Force is not proper to cure a Man of Atheiſm; the only Puniſhment
of ſuch as are in Error, if they will not
be inſtructed, is to leave them to God's Judgment, Obſerv. 95. on Puffend. For my part,
I profefs, That if an Atheiſt makes an open
Declaration of his Opinion, and labours to get himſelf Followers by miſleading ſuch
weak ludgments as are not alle to anſwer his Sophiſms and Subcilcies, or by encouraging thoſe vicious Perſons, who are ready
through the Wickedneſs of their Hearts to embrace his Teners, ſuch a perſon may with as much Juſtice be puniſhed as he that
teacheth others to thieve, murder or cheat. In this caſe our Author's Reaſons are very good: For thoſe who diſturb a Society
by endeavouring to deſtroy an Opinion fo univerſally received, and which is looked upon as one of the ſtrongeft Props of it, de!
ferve as little to be treated as Criminals, as an Atheilt
, conſidered as ſuch, for perplexing the common Belief of a God. Leo
him be content that he has found out the unhappy Secret of ſhaking off all. Tyes of Religion, and applauding his own Impiety,
advantage of Humane Society, knowing how ſtrong Impreffions the Fear of God has made upon moft Men. (See the philoſophick
hould they be puniſhed purely as Atheiſts? The Nature and End of Puniſhments as they are uſed in Humane Judicatures, does
hot in my Judgmenc, require that
they ſhould be uſed upon fuch. Their Impiety will be ſufficient Puniſhment, if they continue
par dit to their Death, bur 'tis poffible they may ſee their Error, and by Confideration remove the Sophiſms by which they are ac
pelene blinded. Theſe Arguments will have a Atronger force, as to Atheiſts, by Reflection, andtherefore need not be enlarged on
ovosud
Sa) Comp. Jean de Eſpagne de Erroribus Popularibus, f. 1. c. 6. Bacon Elſay 16. and Advancement of Learning, 1. 3. c. 2. Add
plato de L. 2. 1. 9. near the end, where he diſtinguiſheth the ſeveral kinds of Atheiſts, and directs with what Penalties they ought
to be reſtrained. (b) Traétat. Theolog, Politic, c.15. (C) L. 2. C, 14. f. 6.
+ F 2
44
Of the Duty of keeping Faith; Book III
Hence it is, that the Prærors explained and corrected
to be good and honeſt, although it be not ſtrictly a confirm’d by the Authority of Civil Conſtitutions,
Debt: As for an Executor to pay the entire Lega- This is the Diſtinction commonly made by the In-
cies, without reſerving to himſelf, what the (1) Fal- terpreters of the Roman Laws.
cidian Law allows him; to requite à Courteſie re VI. This Diviſion of Obligations into Natural and
ceiv’d; to pay Debts which the Creditor has in Law Civil, is a Subject which we ought to infiſt farther
forfeited; or to the exacting of which the Macedo- on in our preſent Enquiry; yet not ſo much to de-
nian Decree may be oppoſed (2). When any thing rive thence the Original of luch Ties, but the Ef
of this kind is voluntarily paid (3), a Man cannot cacy. or Force, which they bear in Common Life
recover it again, on Pretence that it was not due (4), So that by Natural Obligations we mean ſuch as
though he might at firſt have refus'd to pay it.
it.' binds us only by Virtue of the Law of Nature; and
Sometimes we call that a Natural Obligation which by Civil Obligation, ſuch as is ſupported and affift-
truly binds us; whether it cauſe in the other Party ed by Civil Laws, and Civil Power. The Efficacy
a Perfect, or whether only an Imperfect Right. In of both is conſider'd with Regard either to the Sub-
like manner by a Civil Obligation we ſometimes je&t, the Perſon in whom the Obligation inheres; or
mean ſuch, as is void by the Law of Nature, but the Object, the Perſon in whom it terminates, or to
depends purely on a Civil Law, of which the Obli- whom it is directed. In the firſt Reſpect, the Effi-
gatio literarum, (when a Man confeſſes a Debt in cacy or Vertue of Natural Obligation, chiefly con-
Writing, which he really never contracted;) is fiſts in this, That it binds a Man's Conſcience; or
commonly brought as an Inſtance; at other times that every Perſon at the ſame time when he fails
it ſignifiers ſuch as is grounded on both Laws, Na- of performing it, is ſenſible that he has diſpleas'd
tural and Civil ; or ſuch as will bear a good Action Almighty God; to whoſe
to whoſe Mercy as he owes
in Courts of Civil Judicature.
his Being, ſo he knows he ought to pay all
Others with more Clearnefs, aſſign Three Species poſſible Obedience to his Laws.
And although we
of Obligation, purely Natural, purely Civil
, and Mixt, cannot indeed, in the Law of Nature, diſcover any
The firſt depends entirely on Natural Equity (5); preciſe and determinate Penal Sanctions, yet we ought
and in ſuch a manner, as not to found an Action in on all Accounts to acknowledge, that it is enforced
Civil Courts. The ſecond ariſes merely from the by ſome ſuch due Fruits and Confequences; and that
force of Civil Law, in the Strictneſs and Rigour of the Author of Nature will infallibly inflict great
which it will bear an Action; though ſuch an Evils on thoſe who violate this Obligation, which
(6) Action will always in Point of Equity be inva- the juſt Performers of it ſhall as infallibly eſcape.
lidated (7) by the Judge (8), as the Obligatio lité. For the Truth of which Belief
, amongſt many
Ar-
rarum before mention'd. The third is ſuch as is at guments, one very conſiderable Preſumption is that
the ſame time ſupported by Natural Equity, and remorſe of Conſcience, which attends the Actors of
Mr. Barbeyrac's NOTES on 6 5.
(1) Which is the 4th part of the Inheritance, which the Roman Laws affign the Heir, inſomuch that if the Legacies exceed
this 4th part, the Heir is not oblig'd to pay the Overplus. See the Digeſts, Lib.35. Tic. 2. ad Lez. Falcid. and Daumat's Civil
Laws in their Natural Order, Part 2. Lib. 3.
Job
(2) Our Author adds this Sentence to explain Grotius's Words above-mentioned, which Gronovius interprets otherwiſe. For
he ſays, the Debt is diſcharged by the Puniſhment of the Creditor, when the Debtor is excuſed from paying whar he owes to
a Man who is disfranchized, or condemned to perpetual Baniſhment; but Grotius's Quoracions, and the following Diſcourſe Mew,
That the Diſcharge granted by virtue of the Puniſhment of the Creditor was made by the Macedonian Law. Now this Decree was
ſo called from a certain Ufurer, who was the Cauſe of ir, called Macedo, and for bad lending to an Heir, and declares all Obliga-
tions void thac were made by him. Inſomuch that they who had lene Money, could not in Juſtice require any thing. See the
Digeſts, Lib. 14. Tir. 6. $ 4. See alſo the Interpreters of Suetorius in the Life of Vefpafian, Chap. 11. There was alſo a Law
like it among the Lucans, 'E a'r mis erótø Daveirur zglo sxeyx Sm, ségetal duro. if any ſhall lend Money to a Prodigal, he
ſhall loſe is. Nicol. Damafcen de Moribus Gent. Voit
(3) We ought to take particular Notice of this Word Voluntarily, which
our Author adds to expound Grotius's Opinion, who
doubtleſs fuppofed it. Nevertheleſs, Mr. Hirtius, both here and in his Differtation of an Action for a Debt due naturally, but
not by Humane Laws, which is in Tom. 3. of his ſmall Tracts and Comments, criticizes upon Grotius and our Author, as if chey
had ſpoken of a Payment by Miſtake. He muſt ſuppoſe that they had forgor the Principles of Law, and did not remember what
the Roman Lawyers had laid down as an eſſential Condition of requiring again a thing not due, He that pays a thing which he
knows not to be due, muſt be ſuppoſed to give it. Et quidem, fi quis debitum ignorans folvit, per hanc aâionem condicere poteft
,
Sed fi fciens non debere foluit, ceffat Repetitio. Digeft. Lib. 12. Tit. 6. De Condi&t. indeb. Leg. 1. Cujus per Errorem Dati repetitio
eft, ejus confulto Dati donatio eft. Lib. 5o. Tit. 17. De Diverſ. Reg. Jur. Leg. 53.
tes
(4) Conditio indebiti is a Righe of requiring a thing in Juffice, which one has paid, but was nor due. See Digeft. Lib. 12. Tit.6.
But that ſuch a Right has no place by the Falcidian Law appears from theſe Words of the Roman Lawyers, Solutum verò non repes
titur. Digeft. Lib. 35. Tit. 2. Leg. 1. $ 17. As to the Macedonian Law, their Opinion is very plain, Quanquam autem folvendo
non repetant, quia naturalis obligatio manet. Digeſt. Lib. 14. Tit. 6. Leg. 9. in the end, and 10.
(5) As for example, If a Minor has borrowed any thing without the Conſent of his Guardian, the Creditor can demand no-
thing of him in Juftice, but the Minor is fill obliged by natural Right, or in Conſcience, to pay what
he has borrowed. See
Chap. 6. S 4. Nares. following. tot een
1159
Com
(6) This appears by full Reſtitutions, but in the main this Obligation being purely civil comes to bothing, as the Roman
Lawyers themfelves have acknowledged, ſaying, Ie marrers nor, if a Man has no Right, if it can be made void by an Excep-
cion. Digeft. De Diverf. Reg. Jur. Leg. 112. See Mr. Noodt, De Forma emendandi doli mali, Chap. 5.
(7) Among the Rornans that only was called a Law, which was Enacted by the votes of the People, upon the Propoſal
of the Head of the Senate. They had alfo Plebiſcita, which were
the Decrees of the People, made
upon the Propoſal of che
Officer, choſen out of their own Order. The Laws and Plebiſcita, with the Senatûs Consulta, or Decrees of the Senate only
,
the Conſtitutions of their Princes, the Edids of their Magiſtrates, and Determinations of their Lawyers, make up the Body
of the Civil Law. For every Prætor, or Judge, when he entred upon his Office, put out an Edict, in which he inſerted not of
ly, what
he thought juft and equitable in the Eicts of his Predeceffors, but he added new Conftitutions, and ſometimes made
void fome old ones. This is what is called, Jus Pretorium, the Law of the Prætor, or Jus
Honorarium, The Honorary Law, bei
cauſe the Prætor had the Ticle of Honoratus, (i. e.) a Perſon honoured.
the Deciſions of the Civil Law, and ſupplied fome Defects. See the Inſtitut. Lib, 1. Tit. 2. De Jur. Nat. Gent. do Civil. $ 3;
I can't here but advertiſe the Reader by the bye concerning the Reſcripts of the Emperors, that Mr. Skulting, Profeffor at Franes
ker, publiſh'd there nor long fince, viz. in 1708, a good Diſcourſe to thew the Force they were of
(8) See the Inſtitut. Lib. 4. Tit. 13. $ 9.


4. Tit.
GAS
oil
&c.
Wickedneſs,
CHAP. IV. and the Diviſion of Obligations.
45

race (a).
eſcaping human Diſcovery, and human Puniſhment. than by gentle and eaſie Methods; as by perſwading,
Wickedneſs
, even whilſt they are in fair hopes of and Humanity, we cannot challenge any otherwiſe,
A Difquiet, which no good and wife Man can ima- admoniſhing, deſiring or intreating. But we mult
gine to proceed from bare Simplicity, from Cư- not apply Force to the moſt obftinate Refuſer; un-
ftom, or from Fear of ſecular Juſtice; but from a leſs in Cafe of extream Neceffity (2) The Reaſon
much higher Principle, a Senſe of God's Sovereign- of which Proceeding ſeems to be this
, That human
ty, and a Dread of his Vengeance. Cicero pro S. Society cannot be preſerv'd, in a very eaſie or peace-
Rocio. Every Man that is Diſhoneſt
, lives in a ful Condition, without the conferring of thoſe mu-
perpetual Fright, every Man's Wickedneſs haunts tual good Offices; and therefore Nature ſeems to
him, his Folly and his Madneſs difturb him; his have let them aſide, as conſtant Subjects of exerci-
evil Thoughts and guilty Conſcience terrifie and di- fing Men's particular Benevolence, by means of
ftract him. Theſe are the Conſtant and the Dome- which they might win on the good 'Opinions, and
ſtick Furies, which Plague and Torture the Impi- the Affections of each other. And now it is clear
pus. Add Selden. de F. N. & G. 1. 1. C. C. 4. p. 47, that thoſe things which may be recovered by Force,
&c. Nor can I believe that any Man by flying to are not fo apt to procure the Favour, or to unite
the impious Refuge of Atheiſm, ever found there the Minds of Men, as thoſe which we give only
fo good Security againſt theſe Terrors, but that his upon our own free Motion, and which we might
wicked Mind would frequently recoil, and ſhake deny withour Fear or Danger. But what is due to
himn with more Violence than before. And we have us, upon an intervening Pact, if not voluntarily
ſcarce had an Inſtance of any ſuch bold Defier of tender’d, we may procure by forcible Means. As
Heaven, who has not at length been driven into a we may likewiſe defend by Force, our juft Poffef-
Confternation by his own Crimes, and turn'd a Pe- fions and Goods, when an Attempt is made upon
nitent in Horrour, according to that of Ho- them, by any injurious Affailant Civil Obligati
ons, or fuch as have been confirm'd by the Autho-
2. Although to bind the Conſciences of Men, berity of Civil Laws, create an Aktion in Courts of
principally the Effect of Natural Obligation, yet Juſtice, by, vertue of which I am to carry the
the fame Power is communicated to Civil Obli- Defailant before the Magiſtrate, who has a Power
gation, provided the Object of the latter, be not of compelling him to the Performance of his Duty:
repugnant to the former. And therefore, Civil Laws. But even in States
, Obligations purely Natural, or
do alſo bind the Conſcience, fo far as they are con- ſuch as have not been enforc'd by the Sanction of
ſiſtent with the Law of Nature. Both Obligations Civil Laws, are left wholly to the common Modeſty,
do farther agree in this Reſpect, that the Duties they and Conſcience of Men, and to their juft Dread of
enjoyn, a Man ought to perform Voluntarily, and a Divine Sovereign and Judge; and the Subject
as it were upon his own internal Motion.
ought not by a Courſe of Violence, to be brought
"And 'tis this which makes the chief Difference to the Obfervance of them.
between Obligation and Compulſion; by the latter, What Obligations ought to be confirm'd by Civil
the Mind is, by external Violence, driven upon á Ordinances, it is the Buſineſs of Legiſlators to deter-
thing contrary to its inward Inclinations : but what- mine; and they are to meaſure their Expediency
ever we perforin on the former Account, is ſuppos’d and Uſe according as they feem likely to con
to be done upon the Approbation of our own Judg- tribute to the inward Happineſs, and Tranquili-
ment, and the hearty Diſpoſition of our Will. ty of the State (3). As it would be ridiculouſly
If we conſider theſe Obligations again, as they re- Troubleſome,to diſturb the Judge on every petit Aca
gard the Object, or as they produce fome Effect in count, ſo it would be an Error on the other hand,
the Perfon, to whom by Virtue of them, ſomething to imitate the Cuſtom of the Seres, (in Strabo l. 15.)
is due, they have this Force Common to both, That who (4), he tells us, had no Hearings in Court, but
what being thus due, is paid or perform’d, may be upon Murther or Scandal, theſe being ſuch Mif-
fairly accepted and poffefs'd. But when the other chiefs as the Sufferer could not prevent; whereas it
Party neglects or refufes to make good his Obli- is in every Man's power not to be cheated in a Bar-
gation, there is then a Difference in the manner of gain, only by conſidering well whom he truſts.
compelling him, between the Natural and the Civil Much to the fame purpoſe, is what he reports of
Obligation, or between thoſe who live in a ſtate the Indians, That they have no Action at Law, up-
of Nature, and thoſe who are ſettled under a Poli- qn matters of Faith and Truſt, nor do they make
ty or Government. To thoſe who live in their Na- uſe of Witneſles or Seals, but believe each other on
tural Liberty, the Precepts of the Law of Nature be their bare Words. Comp. Ælian V.H. l. 4. C. I.
ing of two kinds, do cauſe the fame diſtinction in Add Senec. de Benef. 1. 3. c. 15.
the Obligation to perform them. Thoſe things which VII. Obligation may again be divided into Pera
Nature enjoyns one Man to pay to another, without petual and Temporary. The former is that which
any Antecedent Pact, as are the Offices of Charity cannot be taken off ſo long as the Perſon exiſts, in
minio antipolo de mi
Mr. Barbeyrac's NOTES on 5 6.
6) is the ſame
se with (a) at the bortom of the Page.cinora assiv to n ... Is y Borih to
3500 Jum bclis)
531 Sec Lib. 1. c. 7.5 8 and Lib. 2. c. 6. S so aforegoing,
(3) See Lib. 8. c. 1. $ 1:
(4) See Lib. 5. Chap. 2, $ 3. where the Author recites the ſame thing is said
(a) Hor. 1. 1. .
34.
Parcus Deorum Cultor, G infrequens
Inſanientis dum Sapientiæ
Conſultus erro : Nunc retrorfum
Vela dare, atque iterare curſus
Cogor reli&tos.
Theſe Words of Horace our Author ufes here without quoting him ; although, as Mr. Dacier very well obſerves, the Poet ſpeaks
whom

there in Joque only.
46
Of the Duty of keeping Faith, &c.
Book III

whom it inheres. Such is our Connate Obligation to- State of Inequality, was it in their Power, to inveſt
wards God; which, even with reſpect to the Exer- any perſon with ſuch an extraordinary and trans
ciſe, can at no time be ſuſpended or diminiſh’d. fcendent Right, as ſhould Diſengage him from all
Such likewiſe is the Connate Obligation of all Men, Obligation and Duty towards other Mortals (3).
towards all, as Partners of the ſame Nature, which IX. Mutual Obligations are ſuch as anſwer to one
no Perfon can throw off, ſo long as he makes a Part another ; ſo that the Party who on the one hand re
of Mankind; yet the Exerciſe of it may ſometimes, ceives a Due, on the other hand is bound to repay
with regard to ſome particular Perfons, be ſuſpend- it (1): Theſe again are ſubdivided into imperfet
ed. And this happens, when I devolve into a State ly Mutual
, and perfectly Mutual. The former are
of War with another. For the Obligation being Re- ſuch as anſwer unequally, one of them being op
procal, in caſe one Party break it, and return Hofti- posd to another, which is either different in kind,
lities for the good Offices of Humanity, the other of in Vertue and Efficacy. This ſeems to happen
Party is no longer bound to deal with him in a chiefly on account of one of theſe two Reaſons, ei-
friendly manner, but may maintain his own Safe-ther that the Perſons are unequal, one having a
ty, and his own Rights, although with the hurt of Right of Commanding, the other a Necellity of 8
the unjuft Oppoſer. Yet the fame Obligation may beying; or becauſe Perſons in other Reſpects equal
,
ſtill be faid to remain
perpetual in this Reſpect, That as to fome particular Buſineſs, refuſe to receive an
ſo foon as our own Safety is provided for, and en: Obligation of the ſame Strictneſs, on both ſides. For
fured, we ought to be ready to renew the Peace, it is clear that Obligations do thus differ in Force or
and to return to the exerciſe of all Courteſie and Efficacy, ſome producing a perfect Right in the Per-
Humanity, towards the Party who began the Con- ſon, towards whoin they are directed; ſo as to found
tention. Amongſt Adventitious Obligations, we com an Aktion in human Cogniſance, to be proſecuted
monly reckon Perpetual, the Obligation of Children either by War, or before the Judge, according as
towards their Parents, and that which paſſes be- the Parties live, either in a State of Nature, or un-
tween Husband and Wife; which ſhall elſewhere der a Form of Civil Government, whereas others
be explain’d at large (i).
produce only an imperfe&t Right, ſo that the Per-
To Temporal Obligations are ſuch as may ceaſe and be formance of them ought not to be extorted by
cancell’d, whilft the Perſons in whom they inhere, Violence
. From the former of theſe Cauſes, ariſe
do yet exiſt in the World.
the Obligations imperfectly Mutual, betwixt Princes
20 VIII. Farther, ſince it generally happens, that and Subjects
, betwixt States and particular Mem-
Obligations anſwer one another, it may be uſeful to bers, betwixt Maſters and Servants, Parents and
divide them into Mutual, and not Mutual
. An Ob- Children; all which will be examined in their pro-
ligation not Mutual is, when one Party ſtands bound per Places
. The latter Cauſe of making Obligations
to perform ſomewhat towards another; yet ſo that imperfectly Mutual, chiefly happen in Cafes of Gra-
the other Party ihall lie under no Correſponding tuitous Promiſes, and the Performances of them. For
Obligation, nor be tied to inake Equivalent Requi- whilft I promiſe any thing to another out of free
tal. Such is the Obligation of Meri towards God, Favour, I perfecty oblige my ſelf to give it, and the
by which they are engaged to pay him abſolute other Party has a Right of requiring it from me.
Obedience; but he on his Part is not conſtrain’d by. But becauſe I did not engage him to pay me an E-
Virtue of any ſuch external Obligation (1), to make quivalent, he is bound to me only by the Law of
any Return for their Obedience. Ainongſt thoſe Gratitude, which ties him much more loofly than if
Obligations where both Parties are Men, (if we ex- he were my Debtor upon Pact. For we cannot on
cept a few Contracts, binding only one fide,) there ſuch unlimitted Obligation build our Hopes or our Af
are none to be met with of this fort. And the Rea- fairs, and therefore ſhould the Party prove ungrate-
fon is, becauſe it ſeems Repugnant to the Natural ful in the higheſt Degree, we do not reckon our
Equality of Men, and one Perſon ſhould be bound ſelves properly to have receiv'd any Lofs or Pre-
to another, and the other Perſon lie under no En- judice: For 'tis a Miſtake in ſoine Authors to af-
gagement towards him. For we cannot (2) appre- ſert, “ That Nature gives us a perfect Right to claim
hend them to be fociable Creatures, who are not u-
a Return of our Benefit, from an ungrateful Per-
nited by a common Tie, who have not a mutual “ fon (2); though in moſt common-wealths, the
Communication of Services; but of whom one ſeems Courts of Law refuſe to admit an Action on that
to be made as it were for the fake of the other, “Score. Nor is this a good Conſequence, The Ne-
and the other is not bound in Return to contribute ceſſity of returning a Kindneſs, is greater than that of
any thing towards his Intereſt or Happineſs. Nor, giving one; therefore the latter is founded upon an
when Men by Political Inſtitutions introduced a Imperfect Right, the other upon a Perfect
. 70 gr
a
312000019
Co sdt, as no
Mr. Barbeyrac's NOTES on S 7.
(1) See Lib. 6. c. 1, and 2.
Mr. Barbeyrat's NOTES on $ 8.
(1) Our Author expreſſes himſelf thus by way of oppoſition to that which the Goodneſs of God requires of him. See Lib. 2.
c. 1. 3. and c. 3. 5 5. aforegoing.
(2) This Period, not containing at leaſt directly a Reaſon of what the Author was ſpeaking of before, I ſuſpect that the word
enim has crept into the Text inſtead of etiam, either through the Careleſneſs of the Author or Printers; althoir is found in the
laſt Edition of 1706, of which Mr. Hirtius had the Overſight.
(3) We can't maintain this, without encroaching upon the Prerogative of God, who impoſes theſe Duties on Men by the
Conſtitution of their Nature. This we ought nicely to obſerve, that we may underſtand the juſt Extent of the Rights of a King,
which are founded upon the Power which every Man can and is willing to grant to him over himſelf. See my Notes on Lib. 7.
c. 8. following.
Mr. Barbeyrac's NOTES on S. 9.
(1) See Lib. 5. c. 2. $ 5. following.
(2) See c. 3. S. 17, aforegoing.
For
CHAP. V.
Of the Nature of Promiſes, &c.
47
For, however the Caſe may ſtand before, yet rent Degrees in Obligations of the ſame kind (4) ;
wheu I once promis’d to do a Favour, there lies eſpecially when we are to compare fuch Duties, as
greater Necefity on me to perform it, than on the o-
concur in point of Time (a).
ther Party to return it (3). For there may be diffe-
(3) To perfect the Reaſoning of our
Author, we muſt remember, that the foundation of the difference between perfect and
imperfe&t Right ariſeth from the neceſſary or unneceffary influence that a thing hath in eſtabliſhing Peace and Society among
Men, and not fimply a degree of Obligation from the matter of the thing. So that though we are more indiſpenſibly obliged
to the Duties of Thankfulneſs than of Beneficence, the firſt ought not to authorize us to uſe Force or Juſtice to make us perform
them, rather than the laft; because neither of them are of that Nature, that the continuance of Peace or Society doth neceſla-
rily require the practice of them. In ſome caſes the Duties of Gratitude ought to give place to thoſe of Beneficence, as when a
Benefactor may want, or at leaſt ſpare without any great Loſs or Trouble a thing of which another Perſon has great need.
(4) See my Notes on Lib. 5. c. 12. $ 23. following.
(a) Comp. Bæcler, ad Grot. I. 1. C. 1. f. 4. See what ſhall be ſaid hereafter in Lib. 5. c. 12, f. 23.

ز
C H A P.
V.
Of the Nature of Promiſes and Pacts (or Covenants) in general.
I. Whence adventitious Obligations ariſe ?
VI. An imperfe& Promiſe obligeth, but does not
II. What is Mr. Hobbes's transferring of Right?
give another a Right,
III. No Man has a Right to all things, as Mr. Hobbes VII. A Perfex Promiſe.
aſſerteth.
VIII. Promiſes in the Future Tenſe give no Right.
IV, In what a transferring of Right confifts? IX. X. XI. Whether there be a Power of obliging in
V. A meer Affertion doth not oblige.
bare Paxts or Covenants.
ITU
now follows in Courſe, that we enquire how ligations proceed, either from a Simple, or from a
fuch Obligations as are not born with Men, ſhould Mutual At; of which the former is properly calld a
by virtue of ſome Act of theirs be laid upon them; free Grant or Promiſe, the latter a Pał or Covenant.
by which means there ariſes, at the ſame time, in II. But in as much as all acknowledge that Pro-
other Perſons a Right which before they wanted. miſes and Pacts do transfer a Right to others, before
For theſe two Moral Qualities have ſuch a mutual we proceed, it inay not be improper to examine
Relation and Dependence, that whenever there is Hobbes's Opinion (b), about the transferring of Right.
produced an Obligation in one Man, there imme- He then, from his Project of a State of Nature, hav-
diately ſprings up a Correſpondent Right in ano-ing inferrd, That every Man hath naturally a Right
ther; for 'tis impoſſible to apprehend that I am to every thing, and having farther ſhown, That
bound to any Performance, unleſs there be fome from the Exerciſe of this Right, there muſt needs
Perſon in the World, who can either fairly require ariſe a War of every Man againſt every Man,
it
, or at leaſt fairly receive it of me. Though the a State very unfit for the Preſervation of Man-
Remark will not hold vice verſa, that where-ever kind; he concludes, “ That whilft Reaſon com-
there is a Right in one, there muſt preſently be an mands Men to paſs out of this State of War, into a
Obligation in another. For Example, the Magiſtrate “ Condition of Peace, which Peace is conſiſtent
has a Right of requiring Puniſhment for Crimes ; but “ with a Right of every Man to every Thing, it
ſuch a Right as is attended with no Obligation in the at the ſame time preſcribes that Men ſhould lay
Criminal (1)(a). Unleſs we ſolve the Doubt by this “ down ſome part of this univerſal Right. A Man,
Diſtinction, That if we take Right in a ſtrict and “ he ſays, inay lay down, or diveſt himſelf, of his
cloſe Senſe, for a Power or Aptitude, to have any Right two ways, either by ſimply renouncing it,
thing, then there is always in fome other Perſon or by transferring it to another. The former is
an Obligation anſwering to it; but not if the word “ done if he declares by ſufficient Signs, that he
be taken for a Power of doing any thing. This then,“ is content it ſhall hereafter be unlawful for him
in the firſt place is clear, that all Adventitious OL to do a certain thing, which before he might have


Mr. Barbeyrac's NOTES on Chap. 5. $ 1.
(This is not abſolutely true. See my Notes on Lib. 8. c. 3. $ 4, 5. But Mr. Thomafius, to fhew thar Right and Obliga-
tion do not always anſwer to each other, alledges the Example of two Perſons, who in a Shipwreck getting upon one Plank,
which could not ſave them both, had each of them right to thruft off his Companion, and conſequently, there was no Obliga-
tion to anſwer each other, Fundam. Jur. Nat. Gw Gent. Lib. 3. c.7. $ 10. But this only proves, That there may be a Cafe where one
Man's Right becomes of no worth by the Oppoſition of an equal Right in another Perſon. In like manner, certain other Duties
1o claſh ſometimes, that one of them muft give place in certain Circumſtances, without being leſs obligatory in general. In the
example of the Plank, we muſt ſuppoſe, as I have ſaid elſewhere, that it belonged no more to the one than to the other, and
neither of them was ſeized of it alone. ' For then the Right of Property of the firſt Occupyer would lay an Obligation of giving
place on him, againſt whom any of theſe Titles could be alledged. But yet the other, who was not in the fame Cafe, be it he
to whom the Plank did appertain, might lawfully hinder him from uſing that Inſtrument to ſave his Life, which providence
had furniſhed him with, 10 tar is it from this, that he ought to help us, if he can, to ſeize it.
(a) 'Tis true, Puniſhmenes are not due to Criminals by virtue of any Compact, but fince the Right of Life and Death, or the
bisher of the Sword is conterr'd upon sovereigns, we are obliga nor to refinem
when they make use of that Right, though it
C. 2. 1. 3. 8ác. « Leviath. Engl. Book 1.C 14.
upon our own perſons. See Mr. Barbeyrac's French Tranllation of this Book, Lib. 8. c. 3. 1. 4. Nore 8, and fo S. (b) De Cive
“ lawfully

be
48
Book III,
Of the Nature of Promiſes
10
૯૮
06
16
Field; but he does not by this Act prejudice the at large in its proper place all be made out more
lawfully done. The latter, if he declare by ſuffi- all other Men have an equal Right to obſtruct or pre-
« cient Signs to another Perſon, who is willing to vent us. Thus much then we allow, That every
“ receive ſuch a Right from him, that he conſents Man has naturally a Power or Licence of applying
“ it ſhall be for the future, as unlawful for him- to his Uſe, any thing that is deſtitute of Senſe or
“ ſelf to reſiſt hijn in the doing of a certain thing, of Reaſon. But we deny that this Power can be
as he might before have juſtly reſiſted him. call’d a Right, both becauſe there is not inherent in
Hercé he infers, That the transferring of Right con- thoſe Creatures, any Obligation to yield themſelves
fifts purely in Non-reſiſtance; or that, he who in a unto Man's Service, and likewiſe, becauſe all Men
State of Nature, transfers Right to another, does not being naturally equal, one cannot fairly exclude the
give the other Party a new Right which before he reſt from poflefling any ſuch Advantage, unleſs by
wanted, but only abandons his own Right of re- their Conſent, either Expreſs or Preſumptive (1), he
fiſting ſuch a Perſon in the exerciſe of his
. Which has obtain’d the peculiar and fole Diſpoſal or En-
Affertion, according to his Hypothefis, he thus makes joyment of it. And when this is once done,
out; “ Before any ſuch Act of transferring Right, he may then truly ſay he has a Right to ſuch a
“ the Perſon to whom it is ſaid to be transferr'd, Thing. Or to decide the Buſineſs more briefly, we
" had a Right to all things, and therefore it was may make uſe of this Diſtinction, That a Right to
impoflible to give him a new one; but the Per- all things Antecedent to any human Deed, is not
« ſon transferring, loſes his Liberty of juſt Refi- to be underſtood Excluſively, but Indefinitely only;
“ ſtance, which before hindred the other, from ex- that is, we muſt not imagine one may engroſs all to
erciſmg his Right in its full Extent. Therefore, himſelf, and exclude the reſt of Mankind; but only
“ whoſoever in a state of Nature acquires a Right, that Nature has not defined or determined, what Por-
“ only gains this Privilege, To enjoy his Primitive tion of things ſhall belong to one, what to another,
Right ſecurely, and without juſt Diſturbance; till they ihall agree to ſhare her Stores amongſt 'em,
“ for Example, If a Man in a State of Nature by by ſuch Allotments and Diviſions. Much leſs will
“ Sale or Gift
, makes over his Field to another, he the fame Equality amongſt Men admit, That one
“
“ Ground, not the Right which all other Men have rather, true, That 110 Perſon will have a Right to
“ to it; or which comes to the ſame, He declares govern any other Perſon, unleſs he acquire it in a pe-
“ that he will not reſiſt, or hinder ſuch a particu- culiar manner, either by his Conſent, or by ſome
« lar Perſon, who has a inind to make uſe of the other Antecedent Deed, as ſhall be made out more
; (2
“ of Mankind, who ſtill keep their Primitive IV. The proper Notion then, of transferring and
Right, as well to this Spot of Earth, as to every of acquiring Right, will appear with more Exact-
thing elſe which Nature affords.
neſs, if we premiſe, that ſome Rights bear a regard
III. But as we have formerly made out (a), that to Perfons, others to Things; and that the latter
this Hobbefian State is by no means Natural to Man, kind of Rights is again divided into Original and
a Creature deſign d for a Social Life, ſo neither can Derivative. I acquire a Right over a Perſon, if he
we admit of what the ſame Author thus eſtabliſhes, either expreſly or tacitly Conſents, that I ſhall pre-
as the Conſequence and Reſult of it, ſuch a Right fcribe to him what he ought to do, to ſuffer, or to
of each Man to all things, as ſhall produce any Ef- forbear; by virtue of which Agreement he both ob-
fect in reference to other Men. For the clearer Il- liges himſelf, voluntarily to ſtudy Obedience to my
luſtration of this point, it is neceſſary to obſerve, Pleaſure, and at the ſame time grants me a Right
That not every Natural Licence, or Power of doing of compelling him, in caſe of Default
, to his Duty,
a thing is properly a Right, but ſuch only as in- by propoſing ſome conſiderable Evil, which I ſhall
cludes fome Moral Effect, with regard to others, otherwiſe bring upon him. A Man then acquires an
who are Partners with me in the ſame Nature. Thus, Original Right over Things, when all others either
for Inſtance, in the old Fable, the 'Horſe and the expreſly or tacitly renounce their Liberty of uſing
Stag had both of them a Natural Power or Privi- ſuch a Thing, which before they enjoy'd in Com-
lege of feeding in the Meadow ; but neither of them mon with him. This Original Right being once e-
had a Right, which might reſtrain or take off the ſtabliſh’d, by virtue of which the Primitive Com-
Natural Power in the other. So Man, when he im- munity of things was taken off, the transferring of
ploys in his Deſigns and Services, Inſenſible or Ir- Right is nothing elſe but the palling it away from
rational Beings, barely exerciſes his Natural Power, me to another, who before was not Maſter of it.
if without regard to other Men, we here preciſely Hence appears the Abfurdity of ſaying, That the
conſider it in reference-to the Things or Animals, transferring of Right conſiſts barely in Non-reſiſtance
.
which he thus uſes. But then at length, it turns In as much as that negative Term cannot expreſs the
into a proper Right, when it creates this Moral force of the Obligation, ariſing from ſuch an Act;
Effect in other Perſons, that they ſhall not hinder which properly implies an inward Inclination to
him in the free uſe of theſe Conveniencies, and inake good the Contract: Though Non-reſiſtance be
ſhall themſelves forbear to uſe them without his indeed one Conſequence of the Obligation, and with-
Conſent. For 'tis ridiculous Trifling to call that out which it cannot be fulfilled. The Inſtance a-
Powera Right, which ſhould we attempt to exerciſe, bout the Field propoſed by Hobbes, does not come


CC
16
Di
Mr. Barbeyrac's NOTES on 6 3.
(1) Our Author reaſons here upon a falſe Suppoſition, which I ſhall confute in its proper place. See my Notes on Lib: 4.C.4:
All that can be ſaid is this, That before the Property of Goods was ſettled, no Man ought to exclude another alvvays from che
uſe of any one thing, and when they had no farther uſe of it, it returned to the firſt Occupier, as if he had enjoyed it himſelf
by that Title.
(2) See c. 2. $ 7. of this book, and Lib. I. c. 6. $ 12, and Lib. 6.C. 2, 3. and Lib. 7. Ci 23.
(4) Lib. 2. c. 2. § 7, &c.
up
Chap. V.
and Pacts in general.
49

ther Men ſhould renounce the uſe of the fame Max. 1. 7. c. 8. v. 5, 6. See Grot. B. II. c. 11. f. 2.
to the point in Hand; for beſides, that it is very hood and Diilimulation. But we are by no means
up
abfurd to call that an Act of Selling, when I only obliged to continue always in this Deſign; filice the
quit my Pretenſions to a thing, whilſt all other Meninind
of Man has not only a Natural Power of chang-
till keep theirs ; even according to his own Do-ing, Opinion; but likewiſe a Right; ſo as to do it
Ctrine, Propriety of things had its riſe from Civil without Fault, when there is no particular Obliga-
Government (1), after the State of Nature was ſuppo- tion impoſing a Neceſſity of holding firmly to a
ſed to be paſs’dl and gone. Therefore during the Reſolution already taken and declared. Yet theſe
State of Nature, no Man could call the Field his ownl; Changes of Purpoſe are liable to juſt Cenſure, if ei-
and conſequently not Sell it. “ He ought indeed ther the former Judgment from which we receded,
"to have expreſs’d himſelf thus : Since in a State was better than this laſt; or if by altering our Mea-
“ of meer Nature, Things belong’d no more to one fures ſo unexpectedly, we expoſe a Perſon to Diſap-
" than to another, therefore if a particular Perfon pointment and Deriſion, who did not deſerve to un-
“ deſired the ſole uſe of any thing, to inake him kind Treatinent at our Hands. See the Paſſage be-
" Maſter of his Wiſh, it was neceſſary, that all o tween 2. Cecilius and T. Marius Urbinas in Valer,
“
" thing. If they did this gratis, the Act had ſome- Though'it be often a juft (3) Puniſhment to baſe
« what in it like a Gift; if with ſome Burthen or Flatterers and Deſigners, to balk them of their gree-
“ under foine Condition, it was then a kind of dy Hopes, and to cheat the gaping Crows, when
" a Contract (2) (a), for which we have no Name. they have prepared their Mouths for the Morſel.
“ But ſhould one Man have renounced his Power Vid. Plin. 2. Epiſt: 20. Comp. Grot. 1. 2. C. 11.
over ſuch a thing, this could have been no preju- f. 2.
“ dice to others (3), and conſequently, he only VI. We may call it an Imperfe& Promiſe, when a
“ would have been debarr’d from the uſe of it, who Man determines his Will to the doing a Favour
« had thus freely quitted all Title to it.
hereafter, with a ſufficient Sign to make it firin and
V. Let us now carry on our enquiries, and exa- lafting, or ſo as fully to declare his Willingneſs to
mine how a Man may contract an Obligation, and lie under an Obligation, but not ſo as to give the o-
confer a Right on another, by means of his own ther Party any proper Right of compelling him to
Promije. To underſtand the Nature and Effects ſtand to his Word. The like to which happens in the
of this kind of Tie, we muſt in the firſt place ob- Duty of returning Kindneſſes, where the Receiver
ſerve, That there are two ways of ſpeaking about is obliged to make a grateful Acknowledgınent,
giving, or doing a thing to another, which now is, though the Giver has not a full Right to require
or which we inagine, will hereafter be in our it. Some are of Opinion, that it is hardly polli-
Power. The firſt way is, When we barely expreſs ble to produce an Inſtance of this kind of Proinile,
our preſent Mind about a future A&t; yet ſo as to in the Law of Nature, barely conſider'd. It is uſu-
lay no Neceſſity on our ſelves, of perſevering al- al to alledge for Examples, the Promiſe of an ab-
ways in the ſame Reſolution. An Inſtance we have ſolute Prince made to his Subject, of a Maſter to his
in what Tiberius in Tacitus (1) writes to his Fa- Servant, of a Father to his Son, whilft yet under
vourite Sejanus, Ipfe quid intra animum volutaverim, his Power; by all which the Parties promiſing,
quibus adhuc neceſſitudinibus immiſcere te mihi parem, ſtand obliged to make good their Engagement;
but
omittam ad prafens referre. I forbear to tell you at the others ſeem to want a Right of demanding it
preſent, by what Fortunes, and by what Alliances I am from them, becauſe they are allow'd in no Court to
conſidering to unite you to my ſelf. Such a bare Aſſer- bring an Aktion againſt them upon Default. But
tion, neither founds an Obligation in me, nor a now the Lameneſs or Defect of theſe Promiſes does
Right in the other Party (2). And to render it not ariſe from any intrinſick Weakneſs or Invalidi-
Vertuous and Unblameable, there is only this Con- ty; but from that Superiour Quality or Station in
dition requiſite, That we ſpeak as at preſent, we re- the Promiſers, which hinders the Obligation from
ally think, and do not impoſe upon a Man by Falſe- taking its full outward Effect. Others inſtance in
Mr. Barbeyrai's NOTES on S 4.
(1) See Mr. Hobbes's Treatiſe De Cive, c.6.916. and c. 14.9 10. and what our Author ſays, Lib. 8. c. 1. § 2. following.
(2) I ſhall explain this Term, Lib. s. C. 2. $ 7.
(3) This is grounded upon a falſe Hypotheſis, as I have ſhewn in Nore I. of the foregoing Paragraph. The truth is, That till
a Man abandons a thing, of which he had poffeſfed himſelf, with a deſign to make uſe of it, it belongs to him, and no Man
may difpofleſs him of it'; but if he releaſes it to another, as from hand to hand, this latter acquires the ſame Right, and conſe-
quently excludes the Right of all others, until he again in his curn leaves to the firſt Occupier the thing which he had power to
diſpoſe of all the while he had it, becauſe the Cellion of him who was in poſſeſſion before him, gave him power to prevent any
other who would be Maſter of it.
Mr. Barbeyrac's NOTES on S. 5.
(1) Tac. Annal. Lib.4. c. 40. Numb. 9. Ed. Ricq.
(2) Nulla promiffio poiest conſiſtere, que ex voluntate promittentis ftatum capit. Digeſt. Lib. 45. Tit. I. De Verborum Obligatio-
nibus, Leg. 108.
(3) The Author plainly ſpeaks here only of thoſe wandering hopes which ſome ſuffer others to conceive, or rather give them,
to diſappoint the Coverouſneſs of thoſe who would cheat us, or deceive us of our Inheritance. So that here is no real Promiſe,
nor any real Declaration of our Will fully, but not irrevocable, as was formed at the time, when the words or other equivoca-
ting Signs were ſpoken, by which the Deceiver was deluded himfelf
, and pleaſed himſelf with Smoke. See Lib. 4. c. 10.9 3.
following. It may be convenient here to ſay ſomething of ſuch Promiſes
, which, though made in jelt, were valid among the
Romans, provided they were made in the form of a Stipulation. For if one ſay to another, Doſt thou promiſe me this or that?
And he ſay, I do promiſe, the firſt had a juft Action againſt the other, and he was adjudged to make good his Promiſe, tho' he
had no deſign to engage himſelf. But at length they found out an expedient to hinder the Effect of this fcrupulous Obſervation
of Laws, contrary to all Natural Right: It was this, Altho' ſuch a promiſe would bear a juft action, it was eluded,
and made
null by the Right of the Prætor, who found out a poſitive Exception. See upon this Subject the fulius Paulus of Mr. Noodt,
Chap. 11. and his Treatiſe, De forma emendandi Doli mali, &c. publiſhed in 1709. Chap. 11.
(4) We ſhall explain this Term in Lib. 5. c. 2. f. 7.
* G

an
50
Of the Nature of Promiſes,
Book III

on,
an imperfe&t Stipulation ; when the Civil Laws en our Pleaſure. It muſt be well obſerv'd, that what
join, that Promiſes ſhall be made under ſuch a par- we here deliver, concerns only ſuch Promiſes as are
ticular form of Stipulating Words; and will not per- made betwixt Men (1): For thoạit be impoflible
,
init a Man to ſue another upon his Promile, if it that the Divine Promiſes ſhould fail, yet it would
did not run preciſely in thoſe Terms. Here they be highly Arrogant and Indecent to ſay, That theſe
obſerye, That in caſe the Parties concern’d, fully in- ſeeming Engagements on God's Part do give a Right
tended to contract a perfect Obligation, and omit- to Man, which ſhall hold valid againſt his Maker.
ted the ſett Form of Law, only through Error or Add Grot. loc. cit. S. 3, 4.
Imprudence, the Promiſer is by Natural Equity en VIII. It is a nice Remark of Mr. Hobbes (a), and
gagʻd to perform his Word, though the other Perſon worthy our Notice, That in relinquiſhing or tranſ-
cannot force hiin to it by an Aktion in Courts of Ci- ferring Right, if we make uſe of no Signs except Words
,
vil Judicature. But neither have we in this Exam- thoſe words ought to be of the time Preſent or Paft
ple a Promiſe, which is Imperfe& upón account of For he for inſtance, who fliall ſay in the Future
,
the Law of Nature, but by Virtue of a Poſitive To Morrow will I give, plainly ſhews that he has
Law, which ties up its Effect to ſuch a punctual not given already; and therefore the Right he has
Form of Speech, a Reſtraint, which naturally it over the thing promiſed continues firm and entire
did not lie under. A true Inſtance then, of all'im- all this Day, and all the next Day too, and fo
perfe&t Promiſe is, When I expreſs my ſelf in this unleſs in the mean time he actually give it, or paſs
manner, I really deſign to do this, or that for_you; away the Right of it by a new Promiſe. Yet in
and I deſire you'd think I am in Earneſt
, and
ſpeak Truth. Caſe, beſides his Words, he made uſe of other Signs
In which caſe I am bound to perform my Word, ra- ſufficiently arguing, that it was his Will to transfer
ther by the Law of Veracity than of Juſtice; I lay the Right at preſent; then the Words, though Gram-
an Obligation on my ſelf, but I give the other Par- matically Future, ſhall not hinder the Engagement
ty no Right of forcing me to performn it. Men have from taking full Effect. But where theſe other
naturally ſomewhat of Greatneſs and Generoſity in Signs are wanting, we ought to be very tender of
their Temper, upon account of which they had putting ſo wide and forced an Interpretation on
much rather ſeen to do a good Office, purely on the Verbs
of the future Tenſe, as to make them imply
free Motion of their own Virtue, than for the ſake a preſent Act of Alienation. For ſince we are not
of any Right which another has to challenge it from wont to make over our Goods to others, without
them. To this Head we may refer the Promiſes of the Proſpect of ſome Advantage to our felves
,
Men in Favour and Authority, when not by fair which Advantage does not, in theſe Acts of Grace
Words and general Complements (1), but in a ſe- or free Gift, viſibly appear; therefore, in conſtru-
rious and particular Manner
, they engage to aſſiſt ing ſuch an Act, to which Men are commonly 2-
ús by their Recommendation, Interceffion, Promo- verſe, we ought not to preſume on any thing far-
tion or Suffrage; which yet they would not have a ther, than what is by expreſs Tokens of the Will
Man challenge from them by virtue of any Right, declar'd. Eſpecially ſince it is uſual by theſe Terms
but deſire they ſhould be imputed wholly to their to ſignifie only a Simple Mark of Good Will (1),
Generoſity and Honour. Even the Law of Nature and ſuch as ſhall, at preſent at leaſt
, have no El-
does not ſeem to allow, that a Man ſhould be com- fect. So that whilft a Man fpeaks in the Fu-
pellid to the Performance of theſe Promiſes; ſince ture (2), he is ſuppos’d to be yet under Delibera-
in the very Act of Engaging himſelf, he made a tion; and before the time prefix’d, perhaps his af
Tacit Reſerve againſt ſuch Proceeding; that his fection and the Merits of the Perſon may alter; or
Benefit might carry the more Grace and Beauty in ſome Misfortune may intervene, rendring it Incom.
it, by being remov'd as far as poſſible froin Necef- modious for him to part with what he intended. In
ſity and Conſtraint.
the ſame manner as he that makes his Will, does not
VII. A perfect Promiſe is, when a Man not only transfer his Right immediately on the Heir ; but he
determines his Will to the Performance of ſuch or is ſuppos'd ever to have this Clauſe or Condition in
fuch a thing for another hereafter, but likewiſe ſhews his Mind, Such a Perſon ſhall be my Heir, unleſs I al-
that he gives the other a full Right of challenging ter my Will before my Deceaſe. Though indeed, it be
or requiring it from him. When we engage to give look'd upon as an Argument of Levity and Incon-
away a particular thing, or to perform a particular ftancy, for a Man to cheat and delude another, with
Service, the former is a kind of Alienation of our Goods, falſe Hopes and Expectations.
or at leaſt ſomewhat in order to it; the latter is an The Caſe is very different, if I expreſs my felf
Alienation of ſome part of our Natural Liberty; in thus, I have given, or do give to be deliver'd to Mor-
as much as we are now to ſtick to the Reſtraint and row: For this is plainly, giving a Man to day the
Confinement of our Promiſe about a Matter, which Right of having a thing to Morrow; or transferring
before we might have uled, or done, or omitted at
Mr. Barbeyrac's NOTES on 6.
(1) See § 10. following.
Mr. Barbeyrac's NOTES on S 7.
(1) See Lib. 2 Chap. I. $ 3. foregoing.
Mr. Barbeyrac's NOTES on S 8.
(1.) is the ſame as (1) ar the bottom of the Page.
(2) We may obſerve here, as Mr. Hirtius directs us, what the Modern Lawyers call, Tra&tatus ineundarum Conventionum, i.C.
& Treaty in órder to an Agreement, or, Paéta contra&tuum præparatoria, i. e. Some previous Covenants in order to contracts
,
which we niay call
, Preambles or Diſcourſes, by which we feem diſpoſed to enter upon a Bargain, and teſtifie fome deſire of
Agreement, but conclude nothing poſitively for in this caſe every Man is free, and there muß be a nevy Treaty to render the
Agreement full and entire. Hence it is ſaid in the Digeſts, That if any one hath
promiſed to lend us any Money, we may receive
it, or not, as we pleaſe, Qui pecuniam creditam accepturus ſpolpandit
Creditori futuro, in poteſtate habet, ne Creditori
je obſtringat
, Lib.
12. Tit. I. De Rebus Creditis, &c. Leg. 30. Sce what Mr. Hirtius ſays there, as his Parcemia fur.German. Lib. 1. c. 8. $ 5.
(a) De Cive, c. 2. 1. 6, &c. & Leviath. Engl. Pt. I. c. 14. (1) In the laſt Editions of the Original there is effe&tum for effe.
&xm, which encirely corrupts the Senſe; and yet Mr. Hirtius has retained it in the laſt Edition of 1706.
to
CHAP. V.
and Pacts in general.
SI

to him to day the Right over a thing, which ought may lay on himſelf a Neceſſity of ſome future Per-
to morrow to be actually deliver'd to him. Nor is fornance (3) (4) (5).Tull
. Off. 1. c. 7. The Foundation
it any Objection againſt what we have been aſſert- of Juſtice is Faith, that is to ſay, a Firmneſs and
ing, That according to the ordinary form and man- Truth in our Words, Promiſes and Contracts. Hence
ner of Speech, moſt Promiſes are expreſs’d in Terms fome will have the word Fides to be call'd quia fit
of Futurity. For in the moſt folemn Engagements quod dictum eſt, becauſe that which was ſaid is done,
by formal Stipulation, or by, Oath, we uſe the ſame Ulpiah in l. 1. D. de Pactis. What is ſo agreeable to
way of ſpeaking,
ſhall have ſuch a thing of me; human Faith, as to obſerve mutual Agreements ?
I will give ſuch a thing, &c. The reaſon of which Vid. D. 1. 2. C. 14. de Pastis. It was a very wicked
Cuſtom is. That the delivering of a thing promis?d, Jeſt of the petit Prince of Bantam, when being re-
generally follows at ſome Diſtance. And indeed, proved for breach of Promiſe, he anſwer’d, His
we can ſcarce call it a Promiſe, when at the ſame Tongue had rio Bone in it, to make it more ſtiff
tiine the Intention of giving is declared, and the than was neceſſary for his Intereſt. Whether Con-
thing actually tendred; in as much as there ſeems nanus has with any Colour oppoſed this univerſal
here, either to have been no Obligation, or ſuch as Judgment, will appear, if we beſtow a little time
expired in the very minute that it was contracted. on taking his chief Arguments under Confiderati-
However, it is plain the generality of Men never on. In the firſt place then, he ſays, That he who
think they properly have a thing, till they get firm rafhly believes a Promiſe made without Cauſe is no leſs
hold and full poſſeſſion of it. If then theſe Terins to blame, than the vain Perſon who made it. Now
of Futurity occur in a perfect Promiſe, as for In- here all the Difficulty lies in explaining what he
ſtance, To inorrow I will give you an hundred Pounds, means by a Promiſe made without Cauſe. Įf he
the ſenſe of them amounts to this, I now give you a would be underſtood of ſuch Promiſes as if not per:
Right to have and to require of me the ſaid Sum; form’d, it brings no Loſs or Prejudice to the Party,
and I likewiſe oblige my ſelf on the day appointed, to to whom they were directed, and if fulfill’d, muſt
deliver it to you accordingly. We may ſettle the needs create Trouble or Damage to the Performer;
whole Point with more Brevity, by only ſaying, we are willing to allow, that Engagements of this
That Verbs of the future Tenſe, made uſe of in Pro- kind produce no Obligation. For how can a Man
miſes
, and eſpecially the Term of Giving, do either have any Right of requiring me to put my ſelf to
imply an Olligation hereafter to be contracted, and any Charges, or any Toil, in doing a thing which
then they neither transfer the Thing nor the Right to ſhall profit him nothing (6) (l)? And it is indeed
another ; or elſe they import the delivering of a thing againſt Reaſon, to undertake an Action which can
hereafter, the Right to which either is now, or has produce no Good, and may produce Evil. Thus for
been formerly transferr’d; and then they do not hinder Inſtance, fuppoſe you had got me to promiſe you
the Promiſe from being moſt Perfect and Compleat. that I would forbear eating four Days together ; up-
IX. It is requiſite, that whilſt we are engaged on on what account ſhould I ſtand to ſuch a raſh En-
this Point, we endeavour to ſettle a famous Que- gagement, if ſo long a Faſt would Prejudice my
ftion, which has been much canvaſs’d by Authors, Health, and yet would contribute nothing to your
Whether there can be a force of obliging in bare Pro- Intereſt or Advantage? Therefore in this Cafe, it
miſes, or in bare Pacts, whilſt they are no more than is alike Vain and Fooliſh in one Man to make the
Verbal Agreements, and are not ſtrengthen’d by a- Promiſe, and in the other ſeriouſly to challenge
ny actual (1) Performance betwixt the Parties (2)? the Performance of it. Beſides, ſince Promiſes are
Connanus the Civilian has been the Principal Aller- matters of Grace, or free Favour, they ought to be
tor of the Negative Side; whoin Grotius (a), and o- interpreted under this Condition or Limitation,
thers have laboured to confute. And indeed, it has Provided I can compaſs the thing I ſpeak of, without
been the fixt Opinion of Wiſe and Learned Men in any conſiderable Damage to my felf
. Nor can the Per-
all Ages, That Faith ouglit to be kept inviolably, ſon to whom I make the Promiſe be ſo impudent and
though given only in Words; or that a Man by unreaſonable, as to deſire that my kindneſs ſhould
Speaking only, without the Intervention oí any Deed, be an Injury to me, and that I ſhould enrich him
Mr. Barbeyrac's NOTES on 6.9.
(1) Euvenaayrect. See what is ſaid, Lib. 5. c. 2. $ 2,3•
(2) Comment. Jur. Civ. Lib. 5. c. 1. Bue Mr. Buddeus in his Element. Philof. Prat. Part 2. c. 4. 8 9. afferts, That this Lawyer
is fally accuſed of any ſuch Opinion. Mr. Hirtius alſo rejects the Opinion of a certain nameleſs perſon, who juſtified Connan,
and maintains, That chat perſon ſpake only of fimple Contracts, conſidered as they are uſed in the Roman Judícature. For he
Jays, We muſt here diftinguiſh
between theſe two Propofitions, The one is
, Thar Promiſes produce a Natural Obligation, and
the other, That the Natural Obligation which arifes from a Promiſe, does not produce a Civil Obligation, which is founded upon
a Maxim of the Law of Nature, which auchorizes a Sovereign Prince to declare what Obligations Thall be valid, and what null.
Nevertheleſs, according to Mr. Hirtius, we need only to read Connan's Reaſons to convince us, that he denies Promiſes to pro-
duce any, Obligations able naturally and of themſelves to give a perfect Right; without the Alfiſtance of the Civil Law.
(3) The Latin of Cicero is, Fundamentum Juſtitie est fides, (i.e.) dieorum conventorumq; conftantia do veritas, eaque de cauſa fi.
dem appellat am, quia fiat quod di&tum eft.
(4) And Ulpian's, Quid tam congruum fidei humanæ, quam ea, qua inter eos placuerünt ſervare?
(5) is the ſame with (b) at the botcom.
CO) We muſt diſtinguiſh here between Pacts of Agreements, which may be called Momentary, which are performed immedi-
ately, and leave no durable effect after them, and succeſſive, whoſe performance is accompanied with a long train of Effects.
As to the firſt, there is no neceſſity that they ſhould have any impulfive Cauſe, or ſuitable Motive; but as to the latter, they do
pot oblige, unleſs they have a fufficient impulline Cauſe, or which comes to the fame; unleſs they tend to profit. The fort of
Engagements without this are not only unprofitable, but hurtful to Society; becauſe by the duration of their Efects they may
caure Trouble and Diſorder in the Affairs of the World. As for example
, if any one promiſe nor ro alienate his Eſtate without
the Confene of his Neighbour. See the Digeſts, Lib. 2. Tit. 14. De Pattis, Leg. 61.
(and Mr Hirtius's Diſſertation, Encicled,
De Palto, ne Dominus rem ſuam alienet, Tom. 3. Opufc.). In fine, Men having establiſhed Pacts and Covenants for their advan?
tage
and not to hurt or deceive one another, every Agreement, whichaims noc at the laſt of theſe Views, may be, and oughe
to be looked upon as null by the Natural Law. Tit. obferv. in Lauterbách. Ob. 59. Sec Lib. 5.0.2. $ 3. Note 3.
(a) I 2. c. 11. f. 1. &4. (b) Vid. D. 1., 2. T. 14. Leg. 61:
+ G2
by
52
Of the Nature of Promiſes,
Book III

me it muſt be
by iny own Loſſes (7). It often falls out (8), that depend upon his Word, if he deſign’d not fully to
even not to keep ones Promiſe ſhall be juſt.
juft. For oblige himſelf to the making it good? For the de
all muſt be referr'd to the Fundamental Rules of Ju- nying of a Benefit is then only void of Injury, when
ſtice; as firſt, That no Man be wrong'd, and ſeconda Man is bound to confer it only by the Law of Hu-
ly, That the Publick good be as far
as poſſible pro- manity ; not when by expreſs Proiniſe he has given
moted. It may likewife happen, That the Perfor- another a Right to receive it.
mance of a Promiſe or Contract, would prove high X. Connanus urgeth farther, « That ſince Pro-
ly prejudicial (9), either to one of the Parties, or to “ miſes of this kind commonly ariſe from Oſtenta-
the other. For if Neptune ( as it is in the Story) tion, rather than good Will, or at leaſt from
had not made good his Promiſe to Theſeus, Theſeus “Raſhneſs and Inconſiderancy, ſuppoſing the De-
had not been ſo unfortunately deprived of his Soni ſign to be real; the Fortunes of Men would be
Hippolytus. Therefore neither are we to keep thoſe “ in great Danger, were they bound to perforin e-
Promiſes which are unprofitable to the Perſon to very thing they ſaid. It was perhaps on ſome
whom they are made; nor thoſe which are more fuch Principle, That the Ancients imagined the
hurtful to our ſelves than advantageous to him. It Oaths and Proteſtations of Lovers were invalid, and
is a breach of Duty to prefer a greater Damage to a that the Gods excuſed the breach of them, as pro-
lefs. If you promiſe to plead another Man's Cauſe, ceeding from Minds blinded with Paffion. Plato in
and in the Interim your Son falls dangerous ill, it Sympoſ. & Poetæ paflım. But indeed the Danger
will be no Violation of your Duty to recede from here mention’d is chiefly in Imagination. For we
the prior Engagement; and the Fault will be much do not attribute a Power of obliging to any Promiſes
,
greater in the other Party, if he complain of ſuch a but to ſuch as are inade upon ſerious and deliberate
Diſappointment. Tull
. Off. 1. Vid. D. L. 50. T. purpoſe; and he that miſtakes jeft for earneſt (1)
17.
ought to pay for his want of Apprehenſion. On the
Add. Senec. de Benef. 1. 4.c. 35.39. Tull
. Off
. 1. 3. other hand to proiniſe really more than one can
This Caſe is propoſed, I have a Remedy given for conveniently perform, as acknow-
the Dropfie
, upon this Condition, That if it cures me, I ledg’d a Fault, ſo it would be a much greater, and
am never to uſe that Medicine again. Within a few indeed a piece of Barbarity, ftri&ly to challenge
Tears after I have been thus cured, I relapſe into the and require it. Aurelian, in Flavius Vopiſcus, c. 35.
Same Miſeaſe, and the Perſon with whom I contracted Setting out on an Expedition, and promiſing the People
will not give me leave to make any farther uſe of it. to beſtow Crowns of two pound weight on them, if he
What am I to do here? It is Inhumanity in him to re- returned vi&torious, when the Diſtribution was to be
fuſe me, beſides, that my uſing it would do him no made, the Crowns proved only of Bread, whereas the
hurt. Í may therefore Jafely conſult my own Life and People expected them of Gold (2). And beſides, we
Health.
the ſhould take care to diſtinguiſh between ſuch Terms
But if by a Promiſe made without Cauſe, Connanus of (3) Honour and Eſteem as Perſons made uſe of to
underſtands only a Gratuitous, or free Promiſe with expreſs in an indefinite manner, their good Affedi-
out proſpect of Gain; then his Affertion will over on towards us ; and ſuch particular Engagements as
throw the whole Buſineſs of Beneficenice and Libe- they bind themſelves by, to perform ſomewhat on
rality, and make all the Offices of Humanity baſe our behalf: For Men of good Nature and good Breed-
and mercenary Performances. For why should not ing often expreſs their Kindneſs and Civility'in ve-
I credit of a Maii who knowing his own Abilities, ry ample Terms; they declare themſelves to be ena
has bid me expećt ſome free Gift from him, purely tirely ours, and offer all they have to our Service
that I may have occaſion to love and to eſteem and Diſpoſal (a) (4). Old Æolus in Virgil had this
him? And ſince if he had pleas'd, he might ſafely piece of Gallantry :
have forborn the Promiſe, why did he order me to
(7) This is contrary to Nature, according to the Roman Lawyers. Jure Nature æquum eſt, neminem cum alterius detrimento do
injuria fieri locupletiorem, Digeſt. Lib. 50. Tit. 16. De Diverſ. Reg. Jur. Leg. 206.
(8) The Latin of Cicero is this, Sed incidunt fæpe tempora, cum ea, quæ maximè videntur digna ejfe juſto homine, eoque, quem virum
bonum dicimus, commutantur, fiuntque contraria, ut reddere depoſitum, promiſa facere, quæq; pertinent ad veritatem, & ad fidem, ea
migrare interdum, do non ſervare ſit juftum. Referri enim decet ad ea, quæ propoſui in principio, fundamenta juſtitie, primum, ut nequis
noceatur ; deinde ut
communi utilitati ferviatur. Cum tempora commutantur, commutatur Officium, do non ſemper eſt idem, poteft enim
accidere promiſſum aliquod, & conventum, ut id effici fit inutile, vel ei, cui promiſſum fit, vel ei, qui
promiſerit. Nam, fi ut in fabulis
eft, Neptunus, quod Theſeo promiſerat, non feciſſet, Theſeus filio Hippolyto non esſet or batus. Ex tribus enim optatis, ut fcribitur
,
hoc erat tertium, quod de Hippolyti interitu iratus opt avit (See Eurip. Hippolyc. v. 1315,&c.) quo impetrato, in maximos lu&tus incidir
.
Nec promiſſa igitur fervanda ſunt ea, que fint iis, quibus promiſeris inutilia, nec fi pius tibi noceant, quam illi profint cui promiferis.
Contra officium eft majus non anteponi minori, ut fi conſtitueris te cuipiam aduocatum in rem præſentem eße venturum, atque interim gra.
viter agiotare filius cceperit, non fit contra officium, non facere, quod dixeris, magiſa; ille cui promiffum fit, ab officio, si se deftitutum
queratur. Cicero de-Offic. Lib. 1. c. 10. Si quis medicament um cuiquam dederit ad aquam istercutem, pepigeritq; ne illo medicamento
unquam poſtea uteretur, fi eo medicamento (anus fa&tus fuerit, & annis aliquot poſt inciderit in eundem morbum, nec ab eo quicum pepi.
ger at impetret, ut item eo liceat uti, Quid faciendum fit? Cum is fit inhumanus, qui non concedat uti, nec ei quicquam fiat injurie, vite
do ſaluti conſulendum. Ib. Lib. 2. c. 24. where there are alſo ſome other Examples.
(9) See Lib. I.C. 3. S 7. Note 1.
da ai ?
tema.109 Mr. Barbeyrac's NOTES on 10.
(1) See 65 Nore 3. aforegoing, a
(23. Mr. Thomaſius thinks that the People were beſotted when they believed the Croivns ſhould be of that weight; but on the
other hand, that the Emperor mocked his Subjects by giving his Promiſe ſuch a ſtrait Interpretation, which look'd like a
Trick. There was really cauſe to believe that the Crowns promiſed by the Emperor were nor Crowns made of Dough.
(3) Ea autem fola Dida five Promi ſa admittenda funt, quæcunq; fic dicuntur, ut praftentur, non ut jawentur, Digeſt
. Leg. 21. Tit
. D:
De Ádilitio edi&to, Leg. 19. See Mr. Hirtius's Parcemia Jur. German. Lib. 1. c. 1o. lagi
Od to
(4), is the ſame as (a).
(a) See what Ahab faid to Benbaład, 1 Kings 20. 3, &c. Tho' Joſephus in his Antiquities, 1. 8. c. 8. otherwiſe interprets the
buc Benhadad took them in a ſtrieter Meaning, for the very propriety and possession. Add. Polyb, excerpt. Leg. 13. G Liv. l. 36. cože
cerning Phanéas the Ætolian Ambaſſador.
SA
and
Tuus
CHAP. V.
and Pacts in general.
53

, a then is the
from thoſe, when
Tuus, O Regina, quid optasse
other Mens Inconſtancy and Irreſolution. The
Explorare labor : mihi juſſa capeſſere fas eft
. Law of Nature commands us to lend to another, fo
Æn. 1. v. 80, 81. far as we can do it without any conſiderable Preju-
dice to our felves. But the Obligation is rendred
o amore ſtrict and binding, if by our own free Offer
Great Queen, be pleas'd to ſay
we reduce this general and unlimited Injunction of
The thing you wiſh: my Duty's to obey. Nature to a particular Engagement, and aſſure the
Party that he may expect for certain it ſhall be
Here the Goddeſs had been uncivil, ſhould ſhe fulfild. So that this Argument is plainly falſe;
have taken advantage of his general Compliment. If I had not promis'd, it had been nevertheleſs the
Words of this Nature then, how ever ſeriouſly deli- Duty of a juſt and good Man to relieve the Indigence
ver’d, oblige a Man to no certain Performance, but of others; therefore it is laudable to ſtand to Promiſes,
only ſerve to teſtifie his hearty Reſpect and kind not becauſe we have bound our felves by giving our
Inclination towards another (a). But thoſe Pro- Word, but becauſe the Party is in real want of our
miſes by which we impower another to expect ſome Succour.
particular and determinate Service from us, ought He is willing to grant thus much, That if a Man
moſt ftri&tly to be fulfill’d, becauſe the other Par- by breaking his Promiſe, has caus’d the other Party
ty building on our word has adjuſted his Affairs ac to ſuffer Damage; (who for inſtance might depend
cordingly. So, though there now and then hap- perhaps on his Word, and ſo neglect to provide for
pens an Inſtance of a vain Prodigal, who ſhould have his own Neceſſities ;) that in this caſe he ihould be
been put under Government for a Fool or a Mad- bound to make good the Loſs ſuſtained. And from
man, that ruins himſelf by profuſe and inconſide- this Conceifion we may as fairly infer, That Pro-
rate Engagements, this ought to be no Reaſon why miſes may be challeng'd, and that we ſtand oblig’d
we fhould affirm all Verbal Obligations to be In- to perform them, left we prejudice the Perſons
lid, and baniſh them from the uſe of human Life: to whom they were directed. But it is very dana
As we don't condemn Suretiſhip in General, though gerous to draw thence fuch Conſequences as theſe ;
many have ſuffer'd fo feverely by it. Upon the That when you would not be in a worſe Condition,
whole, fince an expreſs Promiſe paſſes into a Debt, ſhould I break my Promiſe, than you was before I made
Men ought to be very cautious of engaging for more. 'it
, I may then have liberty of revoking it ; [uppofing
than they are able to compaſs. And 'tis not Mode that nothing yet been done towards the Performance.
ſty, but a vicious Weakneſs in any Perſon to be fo And it is more againſt Nature for you to require me
eaſie ard tender, that he dares not deny the moſt to make good this Engagement againſt my Will for your
impudent and unreaſonable Petitioner (5)
Gain and Benefit, than it would be for me to recal it
XI. What Connanus alledges more in defence of without your Detriment. For the Duty of Humanity
his Opinion, may be folv'd with little Difficulty, is not fulfill'd by your not hurting another; but
"Tis fit that ſome things ſhould be left you ought as far as you are able poſitively to ad-
to every Man's Honeſty and free Bounty, and vance his Good. Therefore when you have peculi-
that ſhould not be reduced to the Rigour and arly engaged your ſelf to ſuch a kind Performance
Neceſſity of ſtrict Obligation. That the ſtudy on his behalf, to repent of your deſign only with
of Integrity and Conſtancy would improve a- this Confideration, That it is not like to be the
mongſt Mankind, were there but a Field left for worſe for your Inconſtancy, looks as if it were a
thoſe Vertues to exert and exerciſe themſelves thing not worth a Man's Regard to improve the
pell’d to obſerve all the Promiſes they make fame with theſe Verbal Promiſes as with thoſe Pacts
But that otherwiſe it was a great and glorious which have receivid the farther Confirmation of
thing to perform, what by Words or other Signs fome Deed between the Parties , and no one will
" the more glorious
, the leſs it ſeeind conſtrain’d. that our change of Mind will not render the other
But indeed there is ſtill left ſcope enough for Li- Perſon's Condition worſe, but only negatively, not
berality, though you give a Man a Right (of de better. Beſides, as Grotius well obſerves from this
inanding ſomewhat from you, which at firft you Opinion of Connanus, taken in fo groſs and general
might have ſecurely denied him.iz
à manner as he expreſſes it, 'twill follow, That
And fince there muſt needs paſs ſuch a mighty (1) Articles of Agreement made between the
number of Promiſes amongſt Men, whilſt they con- Princes and the People of different Nations, ſo long
tinually want the aſſiſtance of each other, it is as nothing has yet been perform’d on either ſide,
more for the Intereſt of Humane Affairs, That there are invalid ; and eſpecially in ſuch places where
mhould be leſs Glory in the Act of keeping Faith, 10 particular forms of Leagues or Covenants have
than that fo inany perſons ſhould be deluded by been receivd into uſe. And were this true, a ge-
ette better
(5) To which purpoſe Terence ſpeaks in his Andria, A&t 4, Scene 1. v. 5, Coc.
- Imo, id genus eſt hominum pefimum
Tum impudentiſima corum ratio eſt,
Indenegando modo queis pudor eft paululum auro Quis tu es. Quis mihi es? Cur meam tibi? Heus
Post, ubi jam tempus eſt promiſſa perfici
Tum coa&ti neceſario ſe aperiunt do timent,
Proximus Sum egomet mihi! attamen, ubi fides
Et tamen res cogit eos denegare, ibi 9
90* Si roges,
Si roges, nil pudet. Hic ubi opus eſt,
Plutarch alſo in Brutus relates it thus
, Tu éro töv dverger teen die megóv|wv 57100, &c. It is unbecoming a great Man to yield
zwij u Non verentur, illic ubi nibil opus eft, ibi verentur.
to impudene Petitioners. Brutus uſed to say, They do not leem to have employed their Youth well, who are not able to deny
(1) We ſhall treat of this, lib. 8. c. 8. & 9 following:
Mr. Barbeyrac's NOTES on 11.
(«) Add. Fern. Vafq. Controver! illuftr. l. 1. c. 10,1. 20, &c.
nera)
He ſays,
86
any thing. CA 92

54
Of the Conſent required in
Book III.
cu 5. 60. in the Nores.
neral Diffidence and Jealouſie muſt reign amongſt ſerving, That the Reaſon of this Caution in the Civil
Mankind, and no one muſt believe another any Law was not becauſe ſerious Promiſes do not bind
farther than he can ſee him. Which cloſe and im- by the meer Law of Nature ; but that the Ceremony
mediate way of tranſacting the Condition and Cir- of theſe ſolemn (2) Forms might put Men on conti.
cumſtances of many. Men will not admit of; who dering throughly, whether it was expedient for
may nevertheleſs have occaſion to ſettle Buſineſs thein to enter into a. Promiſe, which it would be
with each other.
impoſſible afterwards to revoke. As likewiſe, that
The laſt Argumeitt of Connanus taken from the the things proinis’d might by this means
be expreſsa
Practice of the Roman Courts of Law, which gran- more punctually and plainly, leſt any Obfcurity in
ted an Aktion only upon ſuch Proiniſes as were that reſpect might give Occaſion to future Cavils
confirm'd by Stipulation, is eaſily anſwer'd by ob- and Diſputes (a).
(2) See Lib. 5. c. 2. $ 3. following: But Mr. Thomaſius maintains, nevertheleſs, thac they that eſtabliſh'd theſe Forms among
the Romans, had ſuch deſigns as tended more to advance their private Intereſt, than the publick Good. The Patricians labour
by this means to keep the People in a dependance upon them, and
by making the Laws obſcure, interpreted them as they pleated,
and by multiplying Forms of Law without end, open a large Field for Contentions and Diviſions. This Pomponius che Lawyer
tells us plainly in a Fragment preſerved in the Digeſts, Deinde ex his Legibus (duodecim tabularum] eodem tempore fere agiones
compofita funt, quibus inter se bomines diſceptarent, quas a&tiones, nè. Populus prout vellet inſtitueret, certas, ſolenneſq; voluerunt, &c.
Et quidem ex omnibus qui ſcientiam [Furis civilis] na&ti funt ante Tiberium Coruncanium (He was the firſt of the People
that arrived at the Dignity of Pontifex Maximus, (i.e.) The High-Prieſt) publicè profeſjum neminem traditur, cateri autem ad hunc
vel in latenti jus civile retinere cogitabant, ſolumq; conſultoribus (vacare] potius, quam diſcere volentibus præftabant, Lib. r. Tit. 2.
De Origine furis, Leg. 2. $ 6. 35. See the Navi Juriſpr. Rom. by Mr. Thomafius. l. 1. p. 12, doc. and his Divine Civil Law, l. 2.
(a) Add. I. 19. Tir. 5. D. præfcript. verb.
.
bil
CH A P. VI.
Of the Conſent required in making Promiſes and Patts.
It
IV.
SIN
Conſent is required to make Promiſes and Paesi IX. A Suſpicion of a Cheat makes Paets void.
Conſent is ſignifyed Openly or Tacitly. OD X. XI. XII: XIII. Fear makes Promiſes and Packs
III. Conſent ſuppoſes the uſe of Reaſon.
void.
: Great Drunkenneſs hinders it.
XIV. How Promiſes, null in themſelves, may be made
V. Of ſuch as are under Age,
valid.
VI. OfError in Promiſes.
Count XV. Of the Conſent of the Perſon to whom a Promiſe
VII. Of Error in Promiſes and Contracts.
is made.
VIII. Of Fraud; TOV
XVI. Of the Signs and Inſtruments of Conſent.
Hon
NCE the regular Effect of Pacts and Promiſes interpreted for Confent. Thus to be filent, is to
is to abridge and reſtrain our Liberty, and to own your Crime, Euripid. Iphigen. in Aulid. v. 1142
.
lay on us the Burthen of neceſſarily doing ſuch or vid. D. Lib. 50. Tit. 17. But in all theſe Excep-
ſuch a thing, which before we might have perform'd tions it is ſtrictly required, That the State and Con-
or omitted at our pleaſure; there can be no better dition of Affairs be ſuch as ihall on every ſide
Argument to hinder a Man from complaining of conſpire to ground the Preſumption; and that not
this Burthen, than to alledge, That he took it upon ſo much as one probable Conjecture appear to the
him by his own free Will and Confent, when he contrary. For otherwiſe it would be
very
hard
had full Power to refuſe it (1). ROMU
Meaſure to put a Man under Obligation, upon any
11. This Conſent is uſually declared by expreſs little Hint or Symptom of Agreement. And thus
Signs, as by Speaking, Writing, Nodding, &c. Yet we ſee wherein the proper Nature of a Tacit Puff
ſometimes, without the help of any ſuch Tokens, it conſiſts; That it happens, when we expreſs not our
is ſufficiently gather’d from the Nature and Cir. Conſent by the Signs generally made uſe of in Hu-
cumſtance of the Buſineſs (a) (I). And it is well mane Commerce and Tranſactions ; but leave it to
known that (2) Silence it ſelf in many Caſes, is be ſuppos'd from the Buſineſs it felf, and from the
57 ORE
197W DA Mr. Barbeyrac's NOTES on Chap. 6. § 1.
(1) The wiſe King Solomon has expreſſed this matter well in theſe Words, which Grotius has quoted, My Son, if thou haft
promiſed any thing to another, and thou haſt bound thy hands in favour of him for whom thou art engaged, thou art fnared with the words
of thy mouth, thou art taken with the words of thy Mouth, Prov. vi. 1, 2, Hence it is that the Hebrews call Promiſes a Bond,
Numb. xxx. 5. See alſo what Grotius ſays, Lib. 2. C. II. S. 4 numb. 1.
Mr. Barbeyrac's NOTES on $ 2.
(2) Qui tacet, non utique fatetur, ſed tamen verum eſt eum non negare. Digeft. 1. so. Tit. 17. De Diverfis Regulis Juris. Leg.
142. See Numb. xxx. 5. with Mr. Le Clerc's Notes, and Mr. Hirtius's Paræmia Jur. German. c. 7.
(a) Labeo ait convenire posle vel re; vel per Epiſtolam, vel per nuncium ; inter abſentes quoq, [posſe]: fed etiam tacite conſenſu con-
venire intelligitur. Digeft. 1. 2. Tit. 14. de Partis, Leg. z. Conventiones etiam tacita valent. ibid. Leg. 4. See alſo l. 13. Tic.6.
Commod, vel contr. Leg. 13. $ 2. in fin.
. . .
Circumſtances
CHAP. VI.
making Promiſes and Patts.
55

Circunftances that attend it (3). What we moſt this is not a place where Men are treated for 10
cominonly meet with of this kind is, That when thing.
fome principal and leading Contract has been entred In like manner, the Obligation between a Guar-
upon by, expreſs Agreement, ſome other Tacit Pact dian and his Ward (5), has its Riſe from a Tacit
is included in it, or flows from it, as we cannot Contract (a).
but apprehend upon conſidering the Nature of the As for thoſe Tacit Pacts which we obſerv'd to flow
Affair. In the ſame manner moft Covenants leave from Principal Contracts, and which we may call
fome flight Exceptions and Conditions to be underſtood. Acceſary, theſe Examples will ſhew the Nature and
But we muſt have a care of ſtretching theſe Indul- the Manner of them. A Man that bargains with
gences any farther than is well conſiſtent with the another to have free Ingreſs to a Place (6), is fup-
carrying on of Trade and Buſineſs in the World ; left pos’d at the ſame time to obtain Liberty of Regreſs
they fhould prove of ill Conſequence to the Vali- from it, though this be not expreſly mentioned, be-
dity of Contracts, by rendring them too flippery cauſe otherwiſe the former Agreement would be to
and uncertain.
no purpoſe. A Prince or Magiſtrate, who by Cove
Of Tacit Pa&ts, it may not be amiſs to offer theſe nant gives leave to Strangers to frequent his Mar-
few Inſtances. A Stranger comes into a State where kets, is ſuppos’d to conſent likewiſe, That they ſhall
Foreigners are treated with great Civility, and he carry home the Goods they purchaſe there. As 017
comes in a friendly manner here , though he does the contrary, it would be moſt ridiculous Madneſs
not exprefly fwear Fealty to the Government, yet for me; ſuppoſing I have ſold a Field to another,
he is ſuppos’d by the very Act of his coming, tacit- to deny him the Liberty of poffeffing it here, and
ly to have engaged, That according to his Rank to deſire he would tranſlate it to another place. In
and Condition, he will conforın to every Law of the ſame manner, he who lets out a Chamber to
the Place, fo foon as he ihall underſtand that ſuch hire, is ſuppos’d to conſent withal, that the Lodger
a Law was deſign'd to reach all manner of Perſons ſhall make uſe of ſuch other parts of the Houſe, as
who ſhould abide in thoſe Territories. And on the he cannot be without; as of the Doors, Entries and
other ſide, the Government tacitly engages to grant the like; at leaſt ſo far as to have free Acceſs to his
him Security and Protection, and the Benefits of Apartment, and free Paſſage from it.
publick Juſtice.
Inſtances of Tacit Exceptions and Conditions are
A Man is abroad at a diſtance from his Family ſo frequent, that 'tis not neceſſary to ſet down any
and his Concerns, in the inean time a Neighbour in particular. But we muſt obſerve this of them
without particular Orders, tranſacts fome Buſineſs in general,That they were ever to be interpreted with
for him; here again we muſt ſuppoſe a Tacit Pact, the greateſt Strictneſs and Severity of Judgment ;
by virtue of which the one having lent his free and that they will hold good no farther than it ap-
Aliftance and Service, the other is bound to requite pears from very fure Grounds and Preſumptions,
the Pains, and to refund the Charge. In as much that they were conſented to by the Parties
whom
as it may be fairly preſum'd (4), That had the ab- they concern. Add. 1. 22. D. de Probation. & Pre-
ſent Party known how Affairs ſtood, he would rea- ſumptionib. l. 24. For otherwiſe, it would be eaſie
dily have conſented to the whole Management. to thruſt a troublefoine Obligation upon a Man againſt
A Gueſt ſits down to a Table at a publick Houfe; his Will. And were too great a Licence given to
and though he has not exchang'd a word with the theſe ſecret and implied Reſerves, there is ſcarce
Hoft about the Price of his Dinner, yet by the bare any Covenant, which might not be either annulla
Act of fitting down to eat, he is ſuppos’d to conſent or evaded (7) (b).
to the Payment of his Scot; ſince all know that

Our Author di.
(3) A Tacir Conſent properly ariſes from certain things done, or omitted on purpoſe; but yet of themſelves do not imply
directly an Approbation of the thing that is a doing. Further, we diſtinguiſh a preſumptive or ſuppoſed Conſent, as the Roman
Lawyers ſpeak, which confifteth in this, That though a perſon be abſolutely ignorant of what paſſes, and conſequently could
aeither indirectly nor directly agree to it, yer we ſuppose he acquiefces in it, becauſe we believe, That if he knew it, he would
freely confent, or at leaſt that he ought lo to do by the Maxims of Natural Équiry: But this ſort of Conſent is of no uſe nor
neceſſity in Civil Life; and the Lawyers invented it only to found certain Obligations upon, for which they could not ſee any
true Principles. If we conſider this matter well, we Mall find that what they refer to a preſumptive or ſuppoſed Confent, may
cafily be deduced, either from a Tacit Conſent properly ſo called, or from the neceſſary Duties of Sociecy, without any other
Conſent. And hence it is, that the Terms Tacit and preſumptive are often uſed one for another in this caſe.
ſtinguiſhes neither the Terms nor Notions, as appears from the Examples he alledges of them that do another's Bufinels at his
and of thoſe who take upon chem a Guardianſhip. Titius's obferv. on Puffendorff, 105, 106. and in Compend. Lauter-
bach Obſerv. 56. See l. 4. C. 13. $ 5. Note 11. We may alſo find ſome very good Remarks upon this Diſtinction of a Tacit and
Preſumptive Conſent in Mr. Thomafius's Inſtitut. Juriſprud. Divin. I. 2. c. 7. $ 19, &c. whoſe Notions, though they ſeem diffe-
rent, may caſily be made to agree with our Authors, which I have recited and repreſented in my manner. See alſo Mr. Thoma-
faus's Diſcourſe, Entitled, Philoſophia Juris de Obligationibus do A&tionibus, with the third among his Difputations at Leipfick, c. 2.
5132, doc.
(4) see the foregoing Nore, and what is faid farther, 1. 4. C. 13. Norc 3. following.
(5) See l. 4. c. 4 sis. and 1. 5.c. 4 S 1. Note 5.
( See Grotius, De Fure Belli da Pacis, 1.3.c.21.9 16. and Mr. Hirtius's Diſcourſe, De Literis Communicatis pro Pace, $ 13.
(7) is the ſame with (b).
(a) Add Grot. I. 3. c. 24. See what we ſhall fay hereafter in Book 4. C. 4. f. 15. (6) The Roman Lawyers give this inſtance
afa Tacit Palt in 1. 2. tit. 14. D. de pa&is
, leg. 2. If I reſtore to my Debcor his Bond or Caution, it ſhould ſeen there is a Tacic
Agreement berween us, that i demand nor the Loan. Yet here according to the Simplicity
of Natural Law, there appears to be
no occafion of introducing a Tacit Palt, fince it is much plainer to ſay, Thar by the returning back the Caution the Debt is fup,
pos?d to be forgiven, and conſequently no room left for an A&tion upon it. But that the Civil Law choſe this round-about way of
proceeding, was the effect of Caution, left an Obligation really contracted ſhould ſeem to be cancelld by bare Conlent. Another
Example eney produce, and ſay, Suppoſe that in a Leale of a Karin
there be this
Clauſe, Thac in caſe the Farmer does not Till the
Land, in confideration that the Lands are Lett at a low price; but on the contrary, if it happens to be Letr at an higher price,
should come thereby to the Farmer, Digeft, 1. 19. tit. 2. Locati, condutti, leg. 51, in the beginning, Ex Lege fundum locavi, ut si

a
1

56
Book III
Of the Conſent required in
be
III. To inake a Man capable of (1) giving a ſerie to others. But if the Madneſs be judgʻd Incurable,
ous and firin Conſent, 'tis above all things neceſia- the Perſon is in all Legal and Moral Conſiderati
ry, that he be maſter of his Reafon; ſo far as to on to be accounted Dead (5). Vid. l. 1. T. 6. D. de
underſtand the buſineſs in hand, to know whether it bis qui ſui vel al. jur. ſunt. l. 8. t. 18. D. de Ofic
.
be convenient for hiin, and whether we have Præfid. I. 2. D. de Procuratoribus, l. 5. 1. 2. D. ad l.
Strength and Ability to perform it ; and when Aquil.
he has well conſidered theſe Points, to be able to tex IV. Farther (1), ſince the uſe of Reaſon is exceed-
préfs his Agreement by ſufficient Indications. Hence ingly hindred, and ſometines entirely oppreſs’d by
it follows, That the Promiſes of Infants (2), of Mad- Drunkenneſs, it is an uſual Question, Whether a Per.
inen, and of Ideots (3), are utterly invalid. But fon under that Diſorder, can bind himſelf by any
as to the Caſe of Madneſs, it is particularly eto Covenant or Proiniſe. Which we think ought to
obſerv'd, that this does not render a Man's Acti- be decided in the Negative, in caſe the intempes
ors null and void in inoral Eſteem, any longer rance were fo great, as entirely to drown and over-
tian-during the actual Continuance of it. But fo whelm the Underſtanding. For it can by no means
long as he enjoys lucid Intervals of Sence, there's be eſteem'd a real and deliberate Conſent, if a
nothing. hinders why he ſhould not be able effe&u* Man ſhould with never ſo much Eagemeſs of In-
ally to oblige himſelf for fuch time as the Diftem- clination, run into an Engagement, and expreſs his
per allows hin the uſe of his Reaſon. Yet the Fit Agreement by Signs which would at other times
jeturning ſuſpends his Power of contracting or of be Valid, whilſt his Mind lies as it were under a
performing any Buſineſs, till he again recover the ſtupifying Charm, and he is bewitch'd out of his
Government of himſelf and of his Actions. There- Reaſon. It would indeed be highly impudent for
fore the Cominon Maxim in Civil Law, That a Perſon to challenge the Obſervance of ſuch a
Madneſs coming upon a. Man deftroys not any Buſineſs Promiſe, eſpecially if it could not be perform'd
which he bad before duly perform’d, is to be under- without conſiderable Burthen or Trouble. And if
ftood of ſuch Affairs or Concerns as can be com- it farther appear, that he purpoſely took advan-
pleated and diſpatch'd at once. Of this kind is a tage of the other Man's Weakneſs, and cunningly
Will or Teftament (4), which being once rightly made drew him into an Egagement under that Diſtein-
ſtands good; unleſs it be revoked by a ſufficient per of his Brain, he ſtands liable to be puniſh'd as
Declaration to the contrary ; ſuch as a diſtracted an arrant Cheat. But when a Man after the drunken
Perſon cannot givelo But in caſe a Man lies under Fit is over, ſhall upon being put in mind of his
fuch an Obligation as is to be fulfilld by diſtant Promiſe acknowledge and confirm it; it ſhall then
Acts
, all requiring the uſe of Reaſon, it is plain be Obligatory, yet not by Virtue of what paſs’d
that if he fall into Diſtraction, the Duty is there. when he was drunk, but of what he ſince did when
by ſuſpended. Thus if a Perſon bargain with me he was fober ( 2). Yet the Merriment of a chearful
to work at my Affairs for a certain time; if he Cup, which rather revives the Spirits, than ſtupifies
happen to be ſeiz'd with a Phrenzy, the Obligation the Reaſon, is no hindrance to the contracting of
expires, in as much as he is now incapable of mak juſt Obligations; eſpecially if they be afterwards
ing it good. Although indeed, in hopes that a Per- renew'd at more fober Seafons. To this purpoſe
,
fon in this Condition may recover his Health, we the account which Tacitus, De Mor. Germ. c. 22.gives
uſually ſuppoſe him ſtill to have inherent in him us of the old Germans is very remarkable. 'Tis at
all-his former-Obligations, Powers and Rights, the their Entertainments, ſays he, that they commonly make
Charge of exerciſing which is for a tine committed up Differences, contract Alliances, chule Princes, and
non ex Lege coleretur, relocare eum mihi liceret, & quo minoris locaſſem, hec mihi præſtarétur (nec convenit, ut fi pluris locaffem, hoc
tibi præftaretur) videtur autem in hac ſpecie id filentio convenije, nequid præftaretur, fi ampliore pecunia fundus effet locatus, fi. e.) ut
hæc ex conventione pro locatore tantummodo interponeretur.
ment, it is more Naturăl to affirm, That the Conditions on which this kind of Contract was founded cannot be extended ſo far as
to benefit the Hirer, who is indeed worthy of no manner of Favour, in as much as he hath neglected to Cultivare his Land, accor-
ding to bargain. Vid. D. 1. 17. tit. 1. Mandati, vel contra, leg. 6. 1. 2. 1. 19. tit. 2. Locati, condukti, leg. 13. in fine, & 14. Cad. I. 2.
tit. 3. De Pattis, leg. 2.
Nr Barbeyrac's NOTES on 6 3.
(1) Every true Conſent ſuppoſes, 1. A Phyſical Power of conſenting, 2. A Moral Power, 3. A ſerious and free uſe of them.
Our Author treats of the firft here, and the others afterwards.
(2) Infans, & qui infantis proximus eſt non multum à furioſo diſtat. Inſtitur. Lib. 3. Tit. 20. De Inutil. Stipul. S 9.
(3) Furioſus nullum negotium gerere poteſt, quia non intelligit quid agit. Inſtitut. 1. 3. cit. 20. De Inutil. Stipul. s 8. Furioſi,
nulla voluntas eft.Digeſt. Lib. 50. Tit
. 17. De Diverſ. Reg. Juris Leg. 40.
fon(4) Nam neque testamentum re&te fa£tum, neque ullum aliud negotium rečie geſtum, poftea furor interveniens perimit. Inftit. Lib. 2.
Tit. 12. 91. See alſo God Lib. 6. Tit. 22. Qui teſtamenta facere posſunt, &c. Leg 9.
(5) We call properly a Civil Death, the State of them who are condemned to Death, perpetual Baniſhment, or any
Puniſhment, which implies an Excluſion from Society and a Civil Life, upon which account they are as if they were not. Among
the ancient Romans ſuch as loſt their Freedom, or Right of Incorporation, either both together, or the laſt only were accoun.
ted in the ſame Stare, which was called Capitis Maxima, & Media Diminutio, as the Digeſts ſpeak. Intereunt autem homines qui-
dem maxima aut media capitis diminutione. Dig. Lib. 17. Tit. 2. Pro Socio, Leg. 63. 9 10. See alſo, Inſtit. Lib. 1. Tit. 16. De capito
Mr. Barbeyrac's NOTES on S 4.
(1) I have tranſpoſed this Paragraph, and put the Author's fifth Section inſtead of it, making this my fifth, becauſe the Aur
thor after he had ſpoken of the Promiſes of fuch as have loſt their Reaſon, ought, according to his own Method, to have went
on to the Promiſes of Infants, and not have interrupred the thread of his Diſcourſe by treating of the Promiſes of Drunkards
,
which might better. make a Chapter by it felf, becauſe Drunkenneſs is a tranſient Accident, whereas Infancy and Folly are
States of long continuance. By this Tranſpolition, not at all inconvenient, I preſerve the Natural Order of things, which will
be my Excule.
Excuſe.no
(a) 'Tis a general Rule, That ſuch Agreements as are null upon the account of ſome Incapacity of the perſons making chen,
may become valid, if that Incapacity ceales, and the perſon approves or ratifies the ſaid Agreement. So if a Minor, being come
to Age, ratifies or executes a Contract swhich he made in his Minority, it becomes as irrevocable as if it were made after he
came of Age. See Digeſt. 1. 26. tit. 8. De Authoritate do Conſenſu Tutorum Lo Curatorum, leg. 5. $ 2. & Cod. 1. 2. tit. 46. si
major fačtus ratio habuerit, See alſo what our Author ſpeaks $ 14. in this chapter, and what i have ſaid in my Treatiſe of Sport,
yer
in
other
Diminutione.
t. 2. c. 1. $ 7.
CHAP. VI.
57
making Promiſes and Paits
* Crebro
nutantem.
în fine diſpatch 720ft affairs of Peace and War. They one of the Benches, the Emperour commanded
think no time ſo proper as this, becauſe the generous the Cryer to take no notice of the wor-
beat of the Liquour, as it opens their Hearts, and thy Chapman that Nodded * to the
capitis motu
takes off all Diſguiſe from their Thoughts, ſo it inſpires Price propoſed. And the Buſineſs was
them with brave Reſolutions and hardy Attempts, They fo managed, that the poor Gentleman
are Strangers to Craft and Di ſimulation, and the Li- had laid out Ninety Thouſand Sefterces before he
berty of the Table gets out all they know, and all they knew a Word of his Bargain. Vit
. Calig. Chap
deſign. But the jettling and finiſhing of Buſineſs is 38. Therefore if Drunkenneſs had no other il Et-
left to the next Day, when their Minds are cloſed and feet
, but that it made a Man ſeem to give fome In-
their Fudgments grown cool. Thus they make the right dications, which at another time would imply Con-
uſe of each Time; they conſult whilft they cannot dif- fent, it would not on this bare Account be eſteem'd
jemble
, and they refolve when they cannot miſtake. The unlawful. And ſince a Man cannot contract an Obli-
like is reported of the Perſians by Herodot. in Clio. gation by Promiſe or Pact, without agreeing to it,
1. 1. C. 133. Athenaus, 1. 4. c. 6. Curtius, 1. 7. C. 4. and at the ſame time underſtanding the Buſineſs,
Add. Plutarch Sympoſ. Qu«ft. 1. 7. C. 9, & 1o. (3). we cannot infer his Conſent to ſuch an Engagement
It is true indeed, that Faults committed in Drun- from his firſt conſenting to make uſe of a thing,
kennefs, are not on that account excuſable (4). Le- which would probably hinder the Exerciſe of his
gilators have then thought fit to puniſh even Igno- Reaſon. Eſpecially if we conſider, that Men fel-
rance, when the Perſon is the cauſe of his own Ig- dom drink meerly for the ſake of ſtupifying their
norance. And therefore a double Penalty is uſual- Brain, but their general deſign is to comfort and
ly enacted againſt drunken Offenders. For here the chear up their Spirits; and the former effect ſteals
Éxceſs, and conſequently the Ignorance, was of the upon them almoſt inſeriſibly, whilſt they unwarily
Man's own procuring, it being in his power to proſecute the latter. To make the difference ap-
avoid them. Ariſtot. Ethic. l. I. C, 5. f. 10. It pear more manifeſtly, we may add, that ſince the
was one of Solon's Laws, That a Governcur taken iroperty of a Crime or Offence is to bring fome E-
in Drunkenneſs, Thould be put to Death; and Pitta- vil upon fome Man, and of a Promiſe to bring him
cus decreed, that a Fault committed under this Dif- fome Good, which before was not his due, and ſince
order ihould have a twofold Puniſhment. Laert. I. to be poſitively hurt or injured, is more odious in
1. in Pittac. Becauſe, though a Perſon whilſt the the eyes of common Juſtice, than barely not to acă
fit is on him knows not, perhaps, what he does, quire ſome Benefit, there is much more reaſon
yet in as much as he voluntarily applied himſelf to why Drunkenneſs ſhould invalidate a Promiſe,
the uſe of ſuch things as he knew would caſt a than why it ihould cancel a Tranſgreſſion. As for
Cloud on his Underſtanding, he is ſuppoſed to have a Man's being bound to pay for that uſeleſs load of
yielded Conſent to all the Effects of that Diſorder. Wine which he pours down after his Stomach is al-
Yet it will not follow from this Conſideration, that ready overcharg'd, and which he would refuſe were
the Promiſes of Drunken Men are Obligatory; be- he in his Senſes; this Obligation ariſes from the
cauſe there is great difference between committing Contract, made at the firſt ſitting down, by which
a Crime, and contracting an Obligation. For ſince he engaged himſelf to give the Price of whatever
there lies an abſolute Prohibition againſt all Sin, he ſhould drink, though he drank it to no purpoſe.
therefore Men are to avoid all Occaſions that may If during this Fit of fottiſh Extravagance, he be
probably draw them into a Violation of their Du- guilty of any miſchievous Frolicks, as throwing, a-
ty. And how many Enorinities Drunkenneſs be- way the Liquor, deſtroying the Veſſels or the Win-
trays a Man to, is obvious to the meaneſt Appre- dows and the like, he ſtands bound to make Satisfa-
henfion. An Action then in it ſelf ſinful, can by no ction by the general Law of Reparation for Damages.
means loſe that Character by proceeding from ano V. How (1) long Children continue under ſuch a
ther Sin which led and diſpoſed a Man to it. But Weakneſs of Reaſon as Renders them incapable
on the other hand, ſince it is left to our free Plea- of contracting Obligations, we cannot univerſally
fure, whether we will contract new Obligations or determine; in as much as ſome arrive at a Maturi-
no, we are not (as in the other Caſe) bound to ty of Judgment fooner than others. Therefore in
avoid all Occaſions which may render our Conſent ſettling this point, Regard is to be had to the daily
imperfect and invalid. As we are not bound to de- Actions and Proceedings of the Perſons, from whence
cline Sleeping, out of a fear that others ſhould in- the beſt Conjectures are to be made about their Under-
terpret our 6) Nodding or Winking for a token of ſtanding; or commonly we have recourſe to the po-
Agreement to ſomewhat which they propoſed. To ſitive Laws of the Country; all States almoſt hav-
this purpoſe, Sueton tells us a jeſting
piece of Kna- ing fix'd this Period by their particular Conſtituti
very in Caligula. He inade an Auction of his ſu- ons, and ſooner or later (2), according as they found
perfluous Gladiators; and as the Cryer was per- their People to be naturally more brisk and appre-
forming the Sale, Aponius Saturninus, a Gentleman henſive, or more ſluggiſh and heavy. Amongſt the
of the Pratorian Dignity, happening to ſleep upon Jews, a young Man might oblige himſelf by Pro-





2.
(3) See Mr. Thomaſius's Diſcourſe, De Hominibus propriis, do Liberis Germanorum, S 12. Max. Tyrius, 1. 12. and Dr. Potter's
Greek Antiquities, 1. 4.C. 20. as alſo Briſſon. de Reg. Pers. 1.
(4) Some Nations in ficted a double Puniſhment upon ſuch as had committed any Crime in their Drink; and by one of Solon's
Laws it was enacted, if a Ruler or Magiftrate were found drunk, he ſhould be put to Death. The Words are, Tos "Agxovlig ay
fels Sucov anpagni, Savator Breed shiv Snpicy. Diog. Laert. in Solone, 1. 1.957. See Menage upon this Paflage,
(3) In all the Editions of the Original it is niet ando ; but beſides, that the ſhutting of the Eyes is no sign at all of Conſent,
the Páfiage of Suetonius, which cur Author quotes, Thews, that either he or the Printers ſet it down for nutando.
Mr. Barbeyrat's NOTES on S 5.
(1) This Paragraph is the fourch in the Original. See Note 1. on the former Paragraph.
(2). This Age is not the ſame tor all Contracts, for there are ſome things that they can do at 14 Years of Age, and others not
H
miſe

58
Book III
Of the Conſent required in
miſe after thirteen years of Age, and a young Wo- Not ſo much as (as Grotius fays in B. 2. c. 11. $ 5.)
man after twelve. But becauſe Perſons of tender becauſe he who enters into Contract in any place
,
Age, though they may ſometimes tolerably under- is during that Affair, bound by the Laws of the Coun
Stand Buſineſs
, yet for the moſt part act with too try as a kind of Temporary Subject, as becauſe no
inuch Vehemence and Raſhneſs, are too free and State will admit of an (6) Action in its Courts of
eaſie in their Promiſes, eager and over-confident in Juſtice, upon a Buſineſs not conformable to its Con-
their Hopes, proud of being thought Generous and Ititutions, unleſs it has particularly declared, that
Liberal, Ambitious and Hafty in contracting Friend- in judging the Cauſes of Strangers, the bare Law
ſhips, and not furniſh'd with prudent Caution and of Nature ſhall be followed. The ſame is to be ſaid
Diffidence, it has been wiſely order'd in moſt Com- of Contracts made by Letter, between the Subjects
mon-wealths, That in contracting all Obligations (3), of different States, when upon default, either of
they ſhall be ſway'd by the Authority of graver them ſues the other in the Courts of his own Coun-
Heads; till ſuch time as their Raſhneſs and Heat of try. For though here the injured Party inay not
Youth ſhall appear to be in a good meaſure abated. have made himſelf, ſo much as for a time, a Sub-
Hence in ſome places, whatever they do in their ject of the other Common-wealth; yet if he deſires
own Names, during their Minority, is declar'd Null Redreſs by its Aliſtance, he muſt ſubmit his Cafe
and Void, in others, if they have been cozen’d or to the ſtanding Laws (7). Or fuppofing two Subjects
over-reach'd, they are allow'd to recover full Sa- of the fame Nation ſhould enter into a Pact or Pro-
tisfaction (4). Vid. l. 11. ſ. 3. &c. 1. 24. f. 1. l. 44. miſe, in fone place which acknowledges no Sove-
D. de Minoribus. The Law of Nature it ſelf plain- reign, as on the wide Ocean, or in ſome Deſart I-
ly directs, that theſe Proviſions ſhould be made by jland, they muſt nevertheleſs have recourſe to the
poſitive Conſtitutions. Eſpecially ſince he would Laws of their Country, if they would obtain a full
juſtly forfeit the Character of his Honeſty, who and perfect Right to what they bargain’d for”; or
ſhould make his Advantage upon this eaſie Age, and an Action to hold good in Court upon Failure on ei-
enrich himſelf at the Coſt of thoſe, who for want ther ſide. How the Caſe ſtands with Reference to
of Judgment and Experience, either could not fore- the Acts of thoſe Perſons who are placed above the
fee, or do not rightly apprehend the Loſs (a) (5). Power of Civil Laws, it will be our Buſineſs elfe-
The ſame Law of Nature enjoins, that when any where to enquire (8).
Statutes or Cuſtoms of this kind have been eſta VI. Another thing which invalidates Conſent (1),
bliſh'd in a Common-wealth, they ſhall be ſtrictly and by Conſequence the Promiſes or Pacts that are
obſerv’d; not only by the Subjects amongſt them- built upon it, is Error or Miſtake (2); through
but in all their Tranſactions with Foreigners. which it comes to paſs, that the Underſtanding is
ſelves
the
(3) The Attick Law in this reſpect pur Women in the caſe with Minors; not allowing them to bargain for any thing beyond
a Buſel of Barley, dedi a gyáóuns a Devès, on account of the Weakneſs of their Judgment. Dion. Chrylost
. Orat. 75. If&us. Orat. 9.
(4) The Law grants this Privilege to him who hath been injured by any Act, as a Party to it, to look back to the Age he was
before that act, if there be a juft Cauſe. See Digest. I. 4. tic. 1, and what Mr. Hirtius ſays upon that Ticle in his Obſervat
. in
Compend. Juris Lauterbach, where he carefully diſtinguiſhes the Maxims which may be drawn from Natural Right, from the -Sub-
tleries which the Roman Lawyers have perplexed thar Matter with. See alſo Daumat’s Civil Laws, Part 1.1.4. tit. 6.
(5) We ought to obſerve (as Mr. La placette ſpeaks in his Treatiſe of Confcience, p 6c.) That if, for Exnmple, we meer
with ſuch a dull underſtanding at the Age aſſigned by the Law,chat there is not Sence enough to oblige them ſufficiently, we ought
nor to play upon their Simplicity, and engage them to do what we pleaſe upon that presence. Doubtleſs, ſuch an Action would
be unjuſt; and in this caſe we ought to ſay, as in many others, We ought to attend more to the Intention of the Law, than the
Terms. But here is another important Queſtion to be examined inco, and that's this, whether if a Young Man engages himſelf
before he arrives at the Age fixed by the Law, he is bound in Conſcience to do what he has promiſed ? For Example, if he has
borrowed any thing before that Age, he is bound to pay it when he comes to it? Mr. Placetre ſeems to have determined this
Queſtion very well in theſe Words, The Caſuiſts of the Church of Rome, even the ſtricteſt of them, anfwer by this Diſtinction, If
young Man has made a good uſe of what he borrowed, and in general, if the Agreement he has made be profitable and ad-
vantageous to him, he is obliged to ſtand to it; but he is not obliged, if he hath got nothing by the bargain, viz. if he has ſpent
what he borrowed upon his Debaucheries, and other Exceſſes. But Mr. La Placette adds, This is not my Opinion, and ſays,
I can't allow, thar a Man ſhould ger by an ill Action, and free himſelf from his Engagement by a Fault. We may have regard to
other things, and in the firſt place conſider whether he with whom we have contracted loſerh any thing otherwiſe by the breaking
the Bargain. For if he loſeth nothing, but all the Damage he ſuffers, is only, that his hopes are diſappointed, I believe we are
nor obliged to make good the Promiſe we have made in chat manner; but if he loſes any thing, as it ordinarily happens in bor-
rowing, we muſt look at ſomething elſe ? Hath he lent willingly and without any ill deſign? Did he foreſee the ill uſe that was like-
ly to be made of what he lent ? if he did foreſee it, and did lend with an evil Intention, he ought to loſe what he lent,
pure the Loſs to himſelt; but if he had no ill deſign, and lent freely, 'tis ny Opinion he ought to be paid ; and I am perſwaded,
to do the contrary, and take the advantage of the Law, is a Faule, which not only a render Conſcience, but an honeſt Man in
the Eſteem of the World, ought to be aſhamed of. See my Treatiſe of Sports, 1.2.C.4. $ 12. and what this Author ſays, l. 4. C. Z.
$ 11. following.
(6) Mr. Hirtius in his Treatiſe, De Colliſione Legum, which is in Tom. I. of his Comments and ſmall Tracts, proves at large,
that we often judge according to the Laws of another State, when we have made an Agreement, either where the thing of which
we have treated is found to be, or where one of the Parcies has his Dwelling.
(7) Grotius is of Opinion, 1. 2. C. II. $ 5. numb. 3. that in this caſe we ought to judge only according to the Rules of Natural
Right; and Mr. Hirtius agrees to his opinion. See the fore mentioned Diſcourſe, $ 56. and another of the fame Volume, De
Commeatu Literarum, $ 16, &c.
(8) See 1. 8.c. 10.
Mr. Barbeyrac's NOTES on $ 6.
(1) The three Conditions which are generally required in a full and free Conſent, as I have noted above, 8 3. Nore I. are
not to be met with. 1. In Promiſes made in jeſt and by way of Compliment. 2. In Promiſes made in Miftake. 3. In Promiſes
made by the Deception of others. 4. Nor in ſuch as are made thro' Fear.
(2) This the Law ſays, Non videntur, qui errant, conſentire, Digeſt. 1. 50. tit. 17. leg. 116. & 2. See alſo Leg. 76. & l. 2. tit. Is
De Juriſdi&tione, leg. 15. So Seneca, Demens eſt, qui fidem præſtat errori. De Benef. 1.4.C.36. He muſt be a Fool, who will pero
form what he has promiſed through Error. But here we muſt mean an Efficaceous Error, as this Term is expounded, l. 1. c. 3.
§ 10. Note 2, and not a Concomitant Error : For by this Diſtinction our Author's Rules in ſome places muſt be explained and re.
&tified. Titius Obferv. 213. See the Nores upon che next Paragraph.
(a) Demens eſt, qui fidem præftat errori. Sen. De Benef. 1. 4. C. 36.
and im-
cheated
CHAP. VI.
making Promiſes and Pasts.
cheated in its Object, and the Will in its Choice and Son's Death, which proving falſe, the Will became
Approbation. We ought here carefully to diſtin- Void and įneffectual; ſince it appears that his be-
guilh, whether the Cafe relate to a Promiſe or to a lief of that Report was the fole Reaſon of his al-
Pact. As for Promiſes we may lay down this for a tering his Meaſures. And hence too it is eaſie to
certain Rule, That if a Promiſe be grounded upon anſwer that over nice Queſtion of Sir Thomas Browne
Belief and Preſumption of ſome Fact (3) which in his Religio Medici ; Whether it was lawful for the
really never was, or when in making an Engage Perſon whom Lazarus had made his Heir to poſſeſs the
ment, of this kind I ſuppoſed ſuch an Action, or Goods (7), or whether the Owner upon his being
ſuch a Quality, without regard to which I lould reſtored to Life, had not a Right to challenge
never have given my Confent; in this caſe my them again. Where the latter inuft without doubt
Promiſe is naturally Null and Void, provided it be affirm’d. For the reaſon why the Goods of the
appear
evident from the Nature and Circumſtances Deceas’d paſs away to others is, becauſe they them-
of the Buſineſs, that I agreed to the Propoſal pure- felves are taken out of the World, and confequent-
ly on account of that Fact, or of that Quality, ly have no farther need of theſe. Poſſeſſions. Hence
which I took for granted. Becauſe, here I did not in many places, ſome part of the Goods are fet a-
promiſe abſolutely, but upon Preſumption of a ne- ſide to be given to the Poor, or to the Church for
ceſſary. Condition ; which Condition failing, what- the Benefit of the Soul of the Deceas’d. And in
ever was built upon it, muſt conſequently come to the Pagan Superſtition, it is uſual to bury or burn
nothing (a). Thus, for Inſtance, ſuppoſe I have ſome of the Goods with the dead Body, for the fer-
been inform'd that you have done me a Kindneſs vice of another Life.
in promoting and well ordering my Affairs, and up But in caſe the Promiſer was negligent in ſearch-
on this ſcore I have promis’d you a Gratification; ing into, and examining the Condition, upon which
you will not ſay I am bound to ſtand to my Word (4), he built his Conſent, he ihall be bound to repair
when I find the Intelligence was abſolutely falſe. any Damage, that is ſuſtain’d by the other Party,
By the ſame Rule we may decide the Caſe propoſed upon account of his idle Engagement,
by Cicero in Lib. 1. De Oratore, c. 38. A falſe If the Promiſe was not grounded upon the pre-
“ Report was brought home of the (5) Death of a fence or abſence of ſuch a Quality, as a neceſſary
a certain Souldier, abroad in the Wars. His Fa- Condition, then though the Promiſer was miſtaken
"ther believing the Story, alter'd his Will in fa- in that Point, yet his Obligation ſhall ſtand good.
of another Heir, and afterwards died. The If the Promiſe were but in part occaſion’d by an
Souldier at laſt returning fafe, ſues the Poſſeſſor Error, it may as to the reſt of it reinain valid;
“ of his Inheritance. It was here urged for the unleſs one part were included by way of Condition
Plaintiff, that the Civil Law declares ſuch Wills of in another; or unleſs the Parts cannot ſeparately
a Father to be Null (5), in which the Son is neither be perform’d; for then an Error in part deſtroys
made Heir, nor yet particularly, and by Name, dif- the whole
.
inherited; neither of which was done in the Will VII. As for Miſtakes in Palts, it ſeems neceſſary
now under Conſideration. But to this the Defen- to diſtinguiſh whether the Perſon was through Er-
dant might have return’d, that the Law cited on ror, drawn into the Bargain, or whether there proves
the other Side plainly ſuppoſed that the Father to be an Error, as to the Thing or Subject for which
knew his Son to be living, which here he knew not, he bargaind. In the former Caſe we ſhould again
but imagin’d the quite contrary. Therefore it might enquire, whether any Step is made towards Perform-
perhaps have been a more clear and eaſie way of af- ance or not. If I am prevaild with to enter into
ferting the Souldier's Title, to proceed only upon a Pa&t or Contract upon Miſtake, and I find this
the Law of Nature, and to alledge, that the Fa- Miſtake out, before any thing is done in order to
ther’s Will was grounded upon Suppoſition of his the fulfilling of the Agreement, it is but Equi-




G

vour
(3) The Lawyess diſtinguiſh between an Error of Fact, and an Error of Right, (i. e.) of Right Poſitive, and build diverſe Des
terminations upon it. See Daymat's Civil Laws, pare i. 1. 1. tic. 18. $ 1.
(4) Mr. Thomafius in his f urifput. Divn. I. 2. c. 7.8 43. ſays, That a Man is obliged in this caſe to keep his Word, eſpe.
cially if he did not exprelly inſert that Condition in his promiſe, or he in whoſe behali he is engaged, uſed no falſe pretences to
perſuade him. But from the moment that he knows in any wiſe that he promiſed upon the account of ſome Service done by him
to whom he made the Promiſe; the Condition is of the fame Nature as the ching. And ſo the Non-performance of the
Condicion makes the Promise nul, as much as if he had declared it before-hand in expreſs Terms ; ſince, as we may ſuppoſe, no-
thing elſe could incline him to promiſe. Another thing is in the Caſe of Horſes bought upon a falſe Report; as our Author fpeaks
in the following Paragragh, where read Nore 2.
(5) The Words in Latin are, De cujus [ M litis] morte, cum domum falſus ab exercitu veniſſet, & Pater ejus, re credita, teffa-
mentum mutaget, & quem
ei usum esset, feciffet Heredem, esfetque iple mortuus. Res delata eft ad centumuiros, cum Miles domum
Teveniſſet, egilletq
; lege in hereditatem paternam teſtamento exheres filius. See alſo, Val. Maximus
, l. 9. c. 7. 8 1. and Mr. Schul-
ting's Oracion De Furij prid. M. T. Cicer. p. 260.
260. Mr. Thomaſius in the place before quoted, $ 44. obferves, that this Example is
nothing to the purpoſe. For, he ſays the senſe of a Will ought to be expounded in a clear different manner from en
Agreement or Promiſe, as well becauſe a Will gives no Right to him to whom the Teſtator has bequeathed his Goods, as be-
cauſe he requires an acceptation on his pare. Belides, in Wills we ought to have ſome regard to the Laws, and above all
, to
ſuch Conſtitutions as are made in behalf of Children. But it is evident, that our Author fpeaks here only of the manner, how
the Queſtion ought to be determined by Natural Right only. I ſhall ſhew in its proper place, that a Will gives a Right to him
that is appointcd an Heit, although it be not an irrevocable Right.
(6) So the Law ſpeaks, Inter cetera, qux ad ordinanda teſtamenta neceſſario deſiderantur, principale jus eſt de liberis heredibus in-
Miruendis
, vel exberedaniis, ne preteritis ijis, rumpatur teftamentum. Digeft
. 1. 28.
tit. 2. De liberis & pofthumis Heredibus in-
(67) There was a Book printed in 1905, wherein this Queſtion was ſeriouſly handled. The Title is, Henrici Verduyn. Diſqui-
fitio Juriſprud. de Teftam. eg Heredit. Lazari
bis mortui, aliorumque bis mortuorum. In ordinem redegit __ auxit Tobias Boel, ku-
nior iekus. We may learn the Subſtance of it in a little time from the Extract of it given in the Works of the Learned printed
at Paris, Anno 1705, do 100
(a) 15. D. de Jurisdict
+ H 2
table
ſtituendis, &c. leg. 30.
60
Of the Conſent required in Book III.
table, that I ſhould have liberty to retract ; efpe- now find that he has no occaſion for his Purchaſe;
cially if upon making the Engagement, I plainly yet he cannot force the Seller to refund the Price
declared the Reaſon of my Proceedings (1). But if the and to take back his Horſes, unleſs this Condition
Error be not diſcovered till the Pact is either wholly was expreſly mention' in the Agrement.
or in part perform’d, then the Perſon who lay un But when there happens to be a miſtake about
der the Miſtake, cannot demand a Releaſement any the Thing which is the Subject of the Contract, then
farther than the other ſhall, upon a Principle of the Buſineſs is Null; not ſo much upon account of
Humanity, be content to allow him (2). For In- the Miſtake (3), as becauſe the Laws and Terms of
ftance, A Man being at a diſtance from home, re- the Agreement are not really fulfilld. In as much
ceives falſe Intelligence, that he has loſt all his as in all Bargains the Matter, about which they are
Horſes. Upon this Inforination he enters into Con- concern'd, and all the Qualities of it, good or bad,
tract for the purchaſe of new ones; but before the ought to be clearly underſtood, and without ſuch a
Money or the Horſes are deliver’d, he finds himſelf diſtinct Knowledge the Parties cannot be ſuppoſed
to have been deceiv'd in the former News. Here to yield a full Confent. And therefore upon diſ
we judge he is not bound to fulfil the Bargain, in as covery of any Defect, the Perſon who was likely
much as the Seller very well knows, that the falſe ac- to ſuffer may either draw back from the Engage-
count of his Misfortune at home, was the Reaſon ment, or may compel the other to ſupply what is
of his Purchaſe. Yet he is in Equity obliged to wanting (4); and likewiſe to make Satisfaction for
make fome Conſideration to the Seller ; at leaſt to Dainage, if occaſion’d by his Deceit or Default. And
repay the Damage which he ſuſtains by loſing the this, not only if the Defect be immediately found
Bargain. But in caſe the Money and Horſes were out, but if it appear at fome diſtance of Time.
on both ſides deliver’d, though the Buyer ihould Which Period or Interval, when it is not fix'd

and
Mr. Barbeyrac's NOTES on S 7.
(1) Provided (as our Author ſays in his Abridgment of the Duty of a Man and Citizen) that the other that makes the Contract
receives by ir no Damage, or that it be repair’d to him. The Example that is alledged a little lower, ſhews, that it is another
Condition which the Author puts. But ſee Nore 2.
(2) The Author is not conſiſtent with himſelf here. For if in the firſt Caſe there is any good Reaſon to excufe him who has
nade a Miſtake, ſo that he may lawfully retract, why ſhould not the ſame Reaſon be good in the ſecond Caſe? (The delivering
of a thing conſidered in it ſelf is a Phyſical Act, which can't deprive him of his Right, who has it; nor give it to him that has
none, Whence it comes to paſs, that when one hath paid what he ought not, he has not leſs Right to require again what he
has done, than if he had forgiven him that which he had not delivered. See Mr. Thomaſius's Juriſprud. Divin. I. 2. c. 7. $ 45,
46.] Further, if in the firſt Caſe we have Right to recant, how are we obliged to repair the Damage? The truth is, in both
Caſes we are indiſpenſibly obliged to keep our Word. For if the Error be invincible, 'cis nevertheleſs only concomitant. (Sec
1. 1. C. 3. $ 10. Note 2.) and conſequently does not exclude a neceffary Conſent in our Agreements. In fine, this Reaſon obliges
us to conclude, that the Price doth not at all influence the Engagement farther than as it is an Indication of our manner of Deal.
ing, and can't be formally inſerted into it as a Condition to render it null, ſo that the Error which is committed thereupon can
have no manner of Effect as to the validity of the Contract. The Roman Lawyers own the truth of this Principle in a like Cafe,
I mean, in the Subject of a Delegation made thro' miſtake. See Digeft. 1. 46. tit. 2. De Novationibus do Delegationibus, leg. 12,
13. The ſame thing has place in an Onerous Contra&t. For Example, in a bargain of Sale, when there is a Miſtake, as to the
perſon with whom we treat, taking him for another. For this is only an Error Concomitant, having nothing in the Contract
which neceffarily requires that he with whom we treat ſhould be certainly ſuch or ſuch a Man, or at leaſt that he ſhould declare
himſelf, and we ſhould affirm, that we dealt only with Peter, (for Example) and no other. Moſt of the Interpreters of the Ro-
man Laws do indeed quote ſome Laws, which ſeem to eſtabliſh the contrary; but if we examine choſe places, we ſhall find that
they treat of ſome Act of Liberality or Service, or ſuppoſe in the perſon dealt with ſome Care, Induſtry, or other particular
Quality; for then 'eis eſſencial to a Contract, that the Contracter be certainly he whom we believe him; inſomuch that if we are
miſtaken in char, the Error is Efficacious. Titius Obſerv. in Puffend. 214. and in Lauterbach. 513.
(3) The Author oppofech things here one againſt another, which have no appearance of Oppoſition, but are the Conſequenrs
one of another. For the Error, in which one of the Contracters was, ſhews, that he conſented to a thing that really was,
conſequently, that the other Contracter did not ſatisfie the Intention of the firſt. Titius Obſerv. 215. In fine, this hath place
alſo, when the Seller as well as the Bayer really believes, that a Baſon of Tin, for Example, is Silver and no other Metal. For
the Error of both the Contracters does not hinder, but that it is eſſential to the Bargain, char che Bafon ſold ſhould be Silver
and no other Mecal. See Digeſt. I. 18. tir. 1. De contrahenda Emptione, leg. 14. But it is not ſo, when the Thing, or the Qua-
lity of it, wherein the Error conſiſts on both ſides, doth not come into the Bargain. As for Example, if a Man ſays only,
How much will you have for this Balon or Metal? without explaining himſelf any farther, whether he is about buying a Vellel
or maſſy piece of Silver. In that caſe, ſays Mr. Thomafius, the Contract is in ſtrictneſs good and valid, although fair dealing
does require, that the Seller, to whom he has paid for Tin inſtead of Silver, ſhould give him part of the Price back again. For
we muſt lay this down as a general Maxim, That in a doubt, if a Man miſtakes, 'çis fo much the worſe for him
; becauſe it be
long'd to him to explain himſelf. See Juriſprud. Divin. I. 2. c.7.939, doc. and C. 11. $ 22, 23. and what Thall hereafter be
ſaid, 1. 5. c. 12. $ 5. Note 4.
(4) This is too much
from the purpoſe. Something more exact ought to have been ſaid to give us an idea of the Effects of
an Efficacious Error. This Maxim may be added to thoſe of our Author, If he that is miſtaken aims at that chiefly wherein the
Error lies, the Agreement is abſolutely void, and he hath liberty to recant; but if he had not the thing it ſelf in view, although he
could heartily wiſh it had been what he believed it
, the Agreement is good, and he can have a Righe only to demand ſome Satif-
faction for the Fault he overlook'd. As for Example, if à Man in a great Neceſſity buys an Houſe, which afterwards he finds to
be ſubject to ſeveral Services, as he did not principally endeavour to have it free from all Services, that alone don't break the
Bargain; but he may demand of che Seller, that he leffen the Price in proportion to the Inconvenience that thoſe Services brings
with which he did not think the Houſe was charged. It is very probable that the Roman Lawyers did follow this Principle in
their Practice. Nevertheleſs the Determinations which we find in their writings are neither accurate enough, nor conſonant one
with another, as this Reaſon will thew. That they may build the Efficaciouſneſs of Error upon the Connection of the thing in
which
they are miſtaken, with the Effence of a Bargain, they only Conſider the Natural Conſtitution of the thing in it ſelf
. Hence
they diſtinguiſh the Error which hath for its Subject the Subſtance or Matter of a thing about which they treat, from that which
falls only upon the Qualities of the thing. But here we are not examining what relation the object of Error hath to the Macer
of an agreement, we only enquire upon what foot the Bargainers conſidered it; and if it appear that they had only fome
certain Quality in view, 'eis the Error alone that reſpects that Quality, that can make the Bargain null, as much as if it fell ap-
on the thing it ſelf, Titius ob/erv. in Puffend, 216. and in Lauterbach. 511. See Nore s. ac che bottom of the following Pages

1
by
CHAP. VI.
61
making Promiſes and Patts.


by the Civil Laws, is to be determin’d by the Art of Cookery, and the Man whom I receive proves
Arbitration of ſome honeſt Referee; that no In- utterly Ignorant of the Buſineſs, and incapable of
dulgence may be given, either to Fraud of the ſerving me in that Condition (6)
one Party in concealing, or to the ſupine Negli VIII. Much more ought a Miſtake to render a
gence of the other in examining the Buſineſs
. And Promiſe or Pact Invalid, if it were occaſion’d by the
the larger ſpace of time is to be allow'd, if the De- (1) Fraud of one of the Parties, who by that means
fect were ſuch as did not appear to external View, drew the other into the Engagement. What force
or could not be diſcover'd but by Men of extraor or effect , the Practice of Deceit in theſe Mat-
dinary Sagacity and Skill.
ters will bear, may be clearly ſtated by making
As to that Common Maxim with the Civilians, theſe Enquiries ; firſt, as to the Author of the Kna-
That an Error in the Eſentials of a Pue, diſannuls very, whether he with whom we bargain’d, or a
the Agreement (a), but not an Error in the Acci. third Perſon. And in the next place, whether the
dentals or Circumſtances ; we are ſo to interpret Deceit was really the Cauſe of our Engagement,
it, as by the Eſentials to underſtand, not only what without which we had not ventur'd upon it, or whe-
makes up the Phyſical
Eſſence of the thing bargain’d ther it was only accidental to the Buſineſs
, which
for, but likewiſe thoſe "Qualities of it, to which the we had nevertheleſs undertaken, but were now
Contracter had an eſpecial Eye and Regard (5). cheated in the Thing and its Qualities, or the true
For it frequently happens, that in a Bargain fomne price and value of them. If the Trick was put
Quality of the thing Mall be chiefly eſteem'd and upon us by a third Man, the Party with whoin we
valu’d, and the Subſtance or natural Conſtitution tranfact, not having been acceſſory to it, and the
be only look'd on as a neceſſary Adjunct or Ve- Thing for which we bargain’d 'proves without
hicle (6). Thus my Contract will not only be Fault (2); in this caſe the Agreement ſhall ſtand
void if I buy fuch a particular Slave of a Merchant, good (3), but we may recover of the Knave what-
and he ſends me a different Perſon (7): But like- ever we loſe by his contrivance. If the Party him-
wiſe if I bargain’d with him for one skilful in the ſelf with whom I Contract, by fome Deceit draws


(5) The Intention of the Contracters muſt be known by the Circumſtances. Here's an Example taken out of the Determina-
tions of the Roman Lawyers, wherein yet they do not expreſs exactly the difference between the two Caſes propounded, Quod
fi me virginem emere putarem, cum effet jam mulier, emptio valebit, in ſexu enim, non eft erratum. Cæterum fi ego mulierem venderem.
tu puerum emere exiftimafti, quia in ſexu error eft, nulla emptio, nulla venditio eft. Digeft. 1. 18. rit. I. De contrahenda Emptione, &c.
leg. II. $1. The Reaſon, why, If a Slave which is bought prove a Woman, whereas he thought it a Man, the Bargain of Sale
is pot void, is becauſe there is no other apparent Mark of a Woman from a Man, but the bigneſs, he had no cauſe to think he
bought a Man rather than a Woman, but that he did not ſufficiently explain himſelf; ſo that the Error is only Concomitant,
and can't turn to the prejudice of the Seller. But 'eis not the ſame as to the Sex, which are ſo differenced by the Habits, that
they can't be miſtaken, unleſs by ſome Fraud or Diſguiſe. And ſo the Buyer muſt be ſuppoſed to make his Markets for the Sexes
according to their Habits, and then the Error is efficacious, and conſequently the Bargain is null
. Titius in Lauterbach. Obs. 514
If the Buyer believing that he purchaſes a Man, the Seller, who knows his intention well, leads him into an Error, and ſells him
a Woman without declaring it, the Contract is void as the Law fpeaks, Si quis virginem ſe emere putaset, cum mulier veniſſet, la
fciens errare venditor cum paffus fit, redhibitionem quidem ex hac cauſa non ese, verum tamen et empto competere a&tionem ad reſolven.
dam emptionem do pretio reſtituto mulier reddatur. Digeft. 1. 19. eft. I. De A&tion. Empt. di Vendit. leg. 11. S. s. See what Mr
Noodt lays upon this Law in his Treaciſe, De forma emendanda Doli mali, &c. c. 9.
() Plerafque res aliquando propter acceſiones emimus, fi cum Domus propter Marmora, do Statuas, Tabulas pistas ematur. Di.
geft. 1. 18. tic. 1. leg. 34. in initio.
(7) Vid. l. 18. princ. D. de Contrah. emptione. Cicero (pro Qu. Roſcio, c. 10.) ſpeaking of a Slave who was at the ſame time
claim'd by Fannius and Roſcius; what belong?d to Fannius (ſays he) his Body; what to Roſcius, his A&tivity
: Nor his Face but his
Skill was valuable. The ſhare which Roſcius had in him was worth double to that which Fannius could challenge, &c.
Obs, Mr. Barbeyrac's NOTES on § 8.
(1) By Fraud, (which the Civilians call Dolus malus, or Dolus only) is underſtood any ſort of Surprize, Deceit, Craft, Cheat
or Diffimulacion. In a word, any corrupt Methods, direct or indirect, pofitive or negative, by which Men maliciouſly deceive
others. For there are innocent Érrors, as that of a Medicine, which inftead of curing enrages the Diſtemper. Itaque ipſe [La-
beo] fic definit, Dolum malum efle omnem calliditatem, fallaciam, machinationem, ad circumveniendum, fallendum, decipiendum alte-
cum adhibitam, Labeonis definitio ver a eſt. Digeft. 1. 4. tit
. 3. De Dolo malo, leg. 1. $ 2. Non fuit autem contentus Prætor DOLUM
dicere, sed adjecit, MALUM, quoniam veteres dolum etiam bonum dicebant, & pro Solertia hoc nomen accipiebant, &c. ibid. 5 3. See
Mr. Noodt's Treatiſe De forma emendandi Doli mali, c. 1. & 2. In fine, tho' where there is a Fraud in the one part, there is always
An error in the other; yet ordinarily the Invalidity of a Contract is entirely founded upon the evil intention of the Contracters:
For that Reaſon alone is in che main fufficient to make an Engagement void.
2) The Lawyers call a Damage without Deceit, Dolus in reipsa, which is grounded on this Law of the Digefts, 1. 45. tit. 1. De
Verbor
. Obligation. leg. 36. Si nullus Dolus interceſie ftipulantis, ſed ipſa res in je Dolum habet, &c. But we ought rather to call
it the Vice or Fault of a thing, than a fraud. For the word Fraud agrees properly only to a Perſonal Cheat (as we ſay)
which ſuppoſes an ill Deſign in one of the parties, or a third, and an actual performance of ſome Deceit. Fraudis interpretatio
as the Roman Lawyers themſelves ſpeak) ſemper in jure civili
, non ex eventu duntaxat, ſed ex confilio quoque deſideratur. Digeft.
ipferred, is commonly miſunderſtood, as Mr. Thomaſius obſerves in his Diſcourſe De Equit ate Cerebrina leg. 2. Cod. de reſcindend.
Vendit. c. 2. $ 4. See l. 5. c. 3. $ 9.
(3) It being underſtood that the Motive which by the Deceit of a third Perſon, inclined us to promiſe or treat, hath a nie-
ceffary Relation to the Foundation of the Engagement, i. e, that the Error is purely concomitant. For if (for Example) any ode
makes me believe that all
my Horſes are dead, and I declare to him that ſells me others, that I did not buy them, but upon this
Suppofition, that the News is true. The moment that I diſcover the Fallhood, the Bargain is void, by virtue of the Condicion
which was formerly mentioned, and the Seller to take care of him that hath deceived me. See 57. Note 2. before-going.
(1) Vid. 1. 57. D. de Oblig. LAT. (6) Add. 1.9, 10, 11, 14. 41. f. 1. D. de Contrah. emptione.



me
62
Of the Conſent required in
Book III.

mono
piece
eſt mibi;
201
Code, which imports, that after a Marrer concluded, if he who has ſome way been guilty of a Cheat, re-
me into the Buſineſs (4), I am then free from all Ob- World, and reckons every piece of Knavery a
gation to performance (a). If the Deceit were not of Wit (1); or if as to the preſent Buſineſs I find
Antecedent to the Contract, but happend in it, he has a manifeſt Deſign upon me; I ſhall be a ri-
with reference to the Thing bargain’d for, its Qua- diculous Fool, if by truſting to his Faith, I expoſe
lities, &c. The Agreement ſhall be ſo far void, as my ſelf to his Fraud, and to his Scorn. For he that
that it ſhall be at the pleaſure of the ſuffering runs into a Share with his Eyes open, falls not on-
Party, either to reverſe the whole Buſineſs or to ly without help, but without pity (2).
require Satisfaction for his Damage (5). A Matter
not eflential to the Agreeinent, nor expreſly confi (**) Promiji lingua, cadem nunc nego ;
der'd in it, ſhall not prejudice its Validity; tho’ Dicendi, non rem perdendi gratia hæc nata
perhaps one of the Parties might have a ſecret and in Curcul. Act. 5. Scen. 3. verſe 27, 28.
Ny Refpect to ſome ſuch thing in the very Act of
driving the Bargain (6). Upon what Right a Man 'Twas my Tongue ſaid it; and my Tongue unſays
may proceed, in Caſe he be egregioufly cheated, it. Nature never gave me a Voice to be the Inſtru-
as to the Price of any thing contracted for, we ſhall ment of my own jundoing. And again in Rudent:
hereafter examine and declare.
Act. 5. Scen. 2. verſe 68. and Scen. 3. verfe 17,
IX. It comes now in Courſe, that we conſider the 18.
Point of FEAR, what Power it has in rendring hu-
man Acts incapable of producing an Qbligation, Que hoc faftio eft? non debes? non tu juratus es mihi?
There are two Species of Fear, which eſpecially fall Juratus film, & nunc jurabo fi quid voluptati eft mihi.
under this Enquiry. The former ariſes from ſome Jusjurandum reiſervanda non perdenda conditum eft
.
Vice or ill Dipofition in the Perſon with whom we
Leno.
tranſact, or elſe froin his ill Will to us in particu What a ſtir's here? don't you owe it? did not
lar; whence we entertain a probable Suſpicion, that you ſwear Payment?
he will deceive us. The other denotes a vehement Pimp. Yes, I ſwore and I'll ſwear again, when-
terrour of the Mind, caus’d by the threatning of ever it pleaſeth my Fancy. Oaths were invented
fome grievous Miſchief, unleſs we engage in the to preſerve Mens Goods and Eſtates, not to ruin
Promiſe or Pact deſired. As to the firſt fort of Fear, them. mit
this is evident beyond diſpute, that if I ſee a Man The Character which Polybius in B. 6. p. 498. A.
who makes it his coinmon practice to cheat all the Ed. Wech. Caſaub. gives of the Grecians is not much
boy on
* (4) Indeed 'tis abſurd to imagine that a Man can by a deſign'd and wicked Chear, lay a valid obligation upon anether on our
account. Nemo 'ex ſuo deli&to meliorem fuam conditionem facere poteſt (lay the moſt judicious Roman Lawyers.) Digest. I. 50. tit. 17.
De Divers. Reg. Jur. leg. 134. $ : Nevertheleſs, theſe Lawyers, as Mr. Titius obſerves (Lauterbach. Obſerv. 116, 117.) deliver
here many vain Diſtinctions. For they affirm, that a Fraud, which has been the Cauſe of a Contract, does render it null in it
ſelf, and by Right, (ipso Fure) unleſs when Sincerity may be pretended, (i, e) when a favourable Conſtruction can be put upon
Rules of Equity, if we do not infift rigorouſly upon the Terms. But in an Act of Rigorous Right, where we muft frict-
ly obſerve what is faid or written, the Fraud does not hinder the Contract from being valid, although it may be reverſed by a
full Reftitution. For the Laws in this caſe always allow the benefit of Reſtitution, which comes to the ſame thing as to the Da.
mage of the perſon cheated. But according to Natural Right, a Fraud does no leſs diſannul a Contract of Rigorous Right, than a
Faithful Contratt
. Mr. Titius ( in Lauterb. obferv. 1148,&c.) maintains a 'ſo with Reaſon, that this ditinction of Acts of good Faich
and Rigorous Right is not conformable to Natural Right by the Principles which ought to take place in all ſorts of Acts, which admit
of an equirable Conſtruction, as Mr. Noodt acknowledges, De Forma emend. Dol. mali, &c. c. 4. where he obſerves that before
the Prator Caius Aquilius Gallus there was no regard had to Contracts of Rigorous Right, unleſs there were ſome formal Agree-
ments, and the perſon cheared were a Minor. See l. 5. c. 2.5.8. infra. bud.
(5) The In:erpreters of the Roman Law have hitherto affirmed, that in this laſt Caſe a Contract is neither null by Right, nor
ſubject to be made void by a full Reſtitution, when it is tranſacted by a Contract of good Faith, and has no other source than
an Adion done in good Faith, beſides the Exception of Deceit. But the famous Mr. Noodt, who has made admirable Diſcove-
ries in the moſt knotty parts of the Civil Law, undertakes to prove in his Excellent Treacife De Forma, emendandi Doli mali in
contrahendis negotiis adm Ji apud Veteres, printed in 1709, That
this Diſtinction of the Modern Lawyers has no Foundation in the
Writings of the Ancients, and that every Fraud, whether it conſiſts in the way of treating, or be found in the thing it ſelf, or
the Price renders the Contract made in good Faith always null in it ſelf, and by the Civil Law, inſomuch that the perfon cheated
being ſummoned by the other Contracter to anfwer is, has no more to do
but prove the Cheat on his part, without oppofing co
him the Exception of a Fraud, and the Prætor or Judge muſt declare the Contract null by Right. But if he who is damaged be-
comes the Plaintiff, he may either declare the Contract entirely null by Right, or ſuffer it to be in force, if he judges it con.
venient, ſaving to himſelf in both Caſes to require a Reparation of the Damage, which comes to him by the Cheat, when the
Defendant hall demand a Ceffation of the Contract. This laſt Circuinſtance is remarkable, and I cook the more notice of it,
becauſe it confirmed the Norion I had delivered in my Treatiſe of Sports, where I had ſaid (before Mr. Noodt's Treatiſe appear-
ed) following my own Reaſon, 1.2.c. 1. $ 11. That there is this particular in all Contracts made by Force or Error, or in a word,
which are not perfectly free on the part of one of the Contracters, that it is lawful for this laſt to make what advantage he can
of it, but the other hath no Righę to eaſe himſelf of the Damage done him contrary to his intention, &c. Mr. Noodt hereupon
quotes a Law of the
quires a Nullity of the Contract, ſuch a Demand, which is fhämeful
, ought not to be granted to its Author. Tranſaktione finita
quum ex partibus suis imagis dolum intercefise, quam eorum, contra quos preces
fundis, confitearis
, instaurari grave, nec non crimingum
tit
(6) Altho', adds our Author in his Abridgment of the Duties of a Man and Citizen, 1. 1. c. 9. $ 13. the other Contracter has
Mr. Barbeyrac's NOTES on
on $ 9.
__(1). Plautus has given us a good Charáťter of theſe fort of Men in the perſon of a Seller of Slaves, who demanding if he had
noc promiſed to pay the Money for which he had fold a Boy, in caſe any one would warranc him to be free, anſivers, as in
the Latin Quotation at (**) in the Text.
(2) Our Author leaves us here to gueſs at his Meaning about the validity of an Agreement, which notwithſtanding the know.
ledge of the ill deſign of the other Contracter, we have engaged our ſelves in with him for ſomething, but he explains himſelf in
his Abridgment of the Duty of a Man and Citizen, I. 1. c. 9. $ 14. where he lays down this Rule, He that crufts to the Promiſes or
Agreements of a perſon who makes no ſcruple of violating his Faith, and breaking his moſt íacred Engagements, acts with a
great deal of Imprudence, but that is not a Reaſon ſufficient to render the Engagement null and of no effect. The Reaſon is plain,
he' ought to have taken care not to engage, and if he be deceived 'tis his own Fault, he can blame none but himſelf.
(a) Vid. Diodor. Sic. l. 2. C, 28.
v the
it by
.
v12
3:
better.

CHAP. VI.
63
making Promiſes and Paits.
better. The publick Bankers of Greece (ſays he ) deal with ; and in general, all Faith and Truſt be
if you
lend them only a ſingle Talent with ten baniſh'd froin amongſt thoſe who are not fubject to
Bonds, as many Seals, and twice as many Witnef- a common Ruler or judge. For ſince we cannot be
fes, yet will never be prevaild upon to be honeſt. infallibly certain of any Man's Honeſty, and ſince
But whether this Fear or Suſpicion of being deceiv'd, the World is for the moſt part inclin’d to Wicked-
can render invalid a Pa&t already made, and can ab- nefs; and farther, fince in a State of Nature, every
ſolve the ſuſpecting Party from a neceſſity of Per- Man orders his Buſineſs according to his own Opi-
forinance, will appear when we ſhall have confi- nion, and is Judge of the Fuftneſs of his own Fears,
der'd the Opinion of Mr. Hobbes, on this Point. He it will follow that a Suſpicion, though Vain and
then lays it down for a Rule, that a Covenant where- Groundleſs, ſhall render a Contract Invalid ; and
in neither of the Parties perform preſently, but truſt therefore that Pacts are of no manner of uſe except
one another, in a State of Nature, becomes void, if on under Civil Governments
. And it is an exceeding
either ſide there arije a juſt Fear (a). Which Aller- hard Cenſure, to think the greateſt part of Men fo
tion we cannot admit of, but under this Conſtructi- groſly vile and Wicked, as that (ſetting aſide the
on; that one Party after the Covenant is made has Čivil Power) the Fear of God, the Regard to Faith
juft Reaſon to fear, that when he has perforin'd the and Truſt, and the Force of found Reafon ſhall
Engagement on his fide, the other perſon will fly have ſo little Influence on their Minds. Whereas,
off. And by a juſt Reaſon to fear, we mean ſuch as on the contrary there feems to be ſtampt on the
is grounded on plain Indications and Proofs
. For Souls of all Men, in indelible Characters, a juſt
it is highly Injurious to queſtion a Man's Fidelity Senſe of the Duty of keeping their Faith Sacred
without good Evidence, when we have experienc'd and Inviolable; an Argument for which Truth, we
it in former Inſtances. And indeed Mr. Hobbes him- may draw this eaſie and natural Reflection, That
felf by a ſubjoyn’d Note, brings his words to this we can find no Man who will openly profeſs Per-
qualified Senſe; unleſs (ſays he) there ariſe ſome fidiouſneſs, but every one who recedes from his Word
new cauſe of Fear from ſome Fact, or other ſign of the or Bargain, pretends to have done it on very Juſt
Will
, in one Party, tending to Non-performance, the and weighty Reaſons. A Common-wealth which
Fear cannot be eſteem'd jujt
. For that which could not breaks its Faith with one of its Neighbouring States,
hinder a Man from promiſing, ought not to be admitted immediately engages its Faith again, to procure
as an hindrance of performing. That is, tho' before the Alliance and Confederacy of another; and thus
the entring into the Covenant, one of the Parties endeavours to avert the Danger it lay under from
might entertain fome Suſpicion, that the other that Baſeneſs and Treachery, by the Help of the
would impoſe upon him; yet by the very Act of fame Duty which before it violated. We ought
Covenanting with ſuch a Perſon, he as it were re- therefore to preſume, that every Man will do what
nounces this Fear,and declares it inſufficient to hin- is Juſt and Honeſt, till his contrary Practice forces
der his believing and truſting him. And otherwiſe, us to change our Opinion (4). To diſtruſt every
no Engagement could paſs between them. But at Body, ſays Lucian, is a moſt ridiculous Folly. From
firſt this feeins to have been Hobbes's Judgment, all which we may venture to conclude, That this
that a Pa& thus made would be void, though there diſtruſt of Men's Faith ariſing from the general Pra-
Should no ſuch fear ariſe after the Concluſion of it. vity of human Nature, is not ſufficient to juſtifie the
As appears both from his Work of a Body Politick (3), Non-performance of Contracts (5). And therefore
written in the French Tongue, where we do not the Excuſe of the Mitylenians for deferting the Con-
meet with this Reſtriction; and from the reaſon af- federacy of the Athenians, was Vain and Ground-
figned by him in the Latin Treatiſe, for that Rule leſs, as it is given by their Ambaſſadors in Thucy-
of his ať preſent under our Examination. And the dides, B. 3. C. 12. Edit. Oxon. Pag. 154. When they
reaſon he gives for it is this, Becauſe he that perc had War, they for Fear courted us; and when they
forms firft, betrays himſelf to the covetous Deſigns of had Peace, we for Fear courted them. Thus our
the other Party
, upon account of the ill Diſpoſition of Faith on both ſides was not preſerv'd as is uſual
moſt Men, inciting them to ſtudy and advance their by mutual good Will, but by mutual Diſtruſt;
own Intereſt ly right or wrong. But it is againſt Rea- and they who could be firſt encouraged by Securi-
fon, that one ſhould perform now, whilſt it is impro- ty were likely to be the firſt that ſhould break the
bable that the other will perform bereafter. Whence Union.
it is plain (6), That he derives the Cauſe of this Suf Nay, ſhould we diſcover ſome particular Vices
picion, and Diffidence from the general Pravity of in a Perſon, this is not always a good Reaſon for
Mankind. And by this means inult the greateſt us to recede from an Engagement made with him (6).
number of Mortals
, be branded as Perſons unfit to For there are many Vices which have no ill Influ-
(3) This is a Miſake of our Author, for 'cis only a Tranſlation into French, as Mr. Barbeyrac obſerves.
T(4) The Author here cites a Paſſage from Lucian's Dialogue of the Liar or Incredulous, Tercia mies, ipn : "Twv, em öv do magi.
Theſe are the words of a Man very credulous in Matters of Magick, who reproved another that did not believe his Relations
concerning it, but if our Author had minded the Connection of the Diſcourſe, he would have found that he had mil.apply'd
theſe words, to which the judicious Maxim of the Philofopher Seneca had been more pertinent, Utrumque enim vitium eft, loin
omnibus credere, & nullis, sed alterum horeſtius dixerim vitium, alterum tutius, (i. e.) We muft neither truft all the World, 'nor
diftruft them, both of thele things are faulty; but the firſt in my opinion is moſt honeft, and the other moſt fafe, Epift. 3. Sec
Hefiod in his Book De Oper
. & Diebus. And as to the following Maxim of our Author, See 1.8.c. 4. 3. following.
(5) The Greek is, Και οι μεν ημάς εν τω πολέμω δεθλόπς έδεράπευον, ημείς και εκείνες οι ησυχία το αυτι έποιέμες, ο π τοις άλ-
λοις μάλισα έννοια, πίσιν βεβαίοι, ημίν τέτο φός έωegν παρείχε σέει τε το πλέον η φιλία κατεχόμενοι σύμμαχοι ήμεν, και όποτε
και θα σου παρόσοι ασφαλεία θράσο επι πεοπρgι τι και παραβάσεται έμελλον.
(6) Mr. Hirtius here quotes to this purpoſe certain Words of Terence, which he makes a Buyer of Slaves to ſpeak, Leno fum,
fateor
, Pern'cies communis adoleſcentium, perjurus
, Peſtis ; tamen tibi a me nulla eft orta injuria, (i. e.) I own, I am a Buyer of
Slawes, the Ruin of young Men, a Perjured perſon, a common Plague; but for all this I have done you no Injury. Adelph. Act. 2.
Scene 1, v. 34, 35.
drine is thus deliver d. If a Covenant be made, &c. p. c. 68.
(a) De Cive, c. 2. f. 11. (6) And much more plain from his expreſs Words in the Engliſh Leviathan, where the fame Do-
ence

64
Book III,
Of the Conſent required in
ence on the Duty of keeping Faith. Thus ſuppoſe Add. Polyb. 1. 8. C. 1, 2. 1. 10. C. 34. Cicero in Verr.
a Man to be inclin’d to Luft, Drunkenneſs, or Cruel- He who hath proved falſe to his own Party is the
ty, thoſe ill Habits conſider'd barely in themſelves, common Enemy of Mankind. No wiſe Man ever
do not hinder but that he may be a ſtrict Obſerver truſted a Traytor. Idem pro Rabir. When a Man
of his Word, and a conſtant Performer of his Co- hath been once Perjur’d, he ought to be no more
venants
. And farther ſtill
, ſhould we find a Per- believºd, though he ſwear by all Heaven together,
ſon addicted to ſuch Vices as do commonly preju- Add. Senec. de Benef. 1. 4. c. 27.
dice Fidelity and Truſt; as if we obſerve in him a Thus much we willingly allow, that in caſe a
deſultory Lightneſs and Inconſtancy of Mind, an Man openly diſclaims ali Religion, or if he enter-
inſatiable Deſire of Riches, or a violent Strain of tain ſuch Opinions as amount to the ſame, we ought
Ambition ; yet even theſe Qualities do not give us to place no tarther Truſt in his Pacts or Promiſes
,
an abſolute Liberty of refuſing to make good our than as either his manifeſt Advantage, and Intereſt
word, when we have paſs’d it on his Account. For obliges him to ſtand to thein; or as we can by force
in the firſt place, it may often happen that a Man reduce him if he fly off. Such Perfons are thoſe pro-
out of a particular Inclination may practice Diſho- fels’d Atheiſts (9), who either deny the Being or the
neſty towards cthers, and yet may live fairly and Providence of God; and nearly related to them, are
juſtly with me. And then, (as has been lately ob- the Maintainers of the Mortality and Impunity of
ſerv?d) by my very Act of bargaining with a Per- human Souls. For 'tis impollible, but that Men of
ſon whoſe Diſpoſition I am acquainted with, I de- theſe Principles ſhould meaſure all Right, and all
clare thoſe Vices which I know him Guilty of, to Juſtice by their own Profit and Convenience. Into
be inſufficient to hinder me from truſting him, and the ſame Herd we inay pack all thoſe who practice
fo renounce all my Privilege of making Excepti- ſome Villany or Vice for their ſet Trade and Em-
on againſt his preſent Morals, after the Buſineſs is ployment; as Pirates (10), Thieves, Murtherers,
concluded between us. For otherwiſe nothing would Pimps
, Courteſans and other profligate Wretches who
have been firmly tranſacted, ſuppoſing one Party take Perjury for a Trifle, and make a Jeſt of ſacrel
at firſt to have made ſuch a Reſerve as ſhould Obligations (11). Thus Tacitus ſpeaks upon the Oc-
when he pleas'd overthrow the whole Proceedings (7). caſion of one Gannaſcus, who having ferved the Ro-
Though indeed when I have been once deceiv'd by mans a long time run over to the Germans. Nec ir-
a Man, I ſhall act very imprudently if I engage in rite aut degeneres infidiæ fuere adverſus transfugam
any Contract with hiin again, without requiring & violatorem fidei, i. e. (AN. 11. C. 19.) The Treache-
particular Security. And the very Proverb will ry ceas’d to be diſhonourable by being practis’d
tell me, That if ſuch a Knave cheats me once 'tis againſt a perjur'd Renegado.
bis Fault, but if he cheats me a ſecond time 'tis
my
And this we are farther ready to acknowledge,
own (8). Add. Senec. de Benef. 1. 4.C. 27. Cic. de Tui- that although the Argument of Mr. Hobbes, which
vent. I. 1. C. 39. Or even after the Pact is conclud- we have here endeavour'd to refute, does not per-
.ed: Suppoſe I find by evident Tokens, that he is form the Service he intends it for ; that is, does not
contriving to play me a Trick, I ſhall be an en- take off the Validity of Pacts in a Natural State; yet
gregious Fool if I betray my ſelf Voluntarily to his is in ſome meaſure capable of good uſe, in as much
Deſigns. Cicero de Invent. 1. 1. c. 39. It's the high- as we may draw from it the following Rules of Pru-
eſt Pitch of Madneſs to rely on their Fidelity, whoſe dence. Never to depend inuch on a Covenant, but
Perfidiouſneſs you have often experienc'd. Hence when we know that the Intereſt of the other Party
Menelaus cries out in Homer. 1. 3. Iliad. v. 105, is conceru'd in the Performance of it, as well as our
106.
own; and that upon Default he is likely to ſuffer
fome greater Evil or Inconvenience, than he can in-
*Αξεγε δη Πριάμοιο βίον όφρ' όρκια τα μνη
cur by ſtanding to the Agreement.
Aúris, étoi oi maides Kaspianos rj žmsos.
That he who enters into a Contract with his Sue
perior ſhould fo order Matters, as that his Superior
Bring Priam's ſelf to ſee the Contract made, Thall be oblig'd to be the first Performer. For if
For Priam's Sons are Faithleſs and unſtaid. the weaker Perſon diſcharge his Part firſt, the Effect
will probably be, either that he ſhall be diſappoint-
ida
(7) There is a Paſlage in Cicero very pertinent to this purpoſe, Nam illud quidem neque dedi, neque do fidem infideli cuiquam,
circo re&te a Poeta, quia cum tra&taretur Atræus perſone ſerviendum fuit, ſed ſi hoc ſibi ſumunt, nullam esſe fidem, quæ infideli data fit
,
videant ne quæratur latebra perjurio, (i. e.) When the Poet makes Atreus ſay, I never have, nor do believe a faithleſs Perſon, he
had reaſon to make that wicked King ſay ſo, to make up his Character. But if we lay down this as a general Rule, That Credic
given to a faithleſs Man is void, I fear that under this pretence an Excuſe will be found for Infidelity and Perjúry. De Ofic.
1. 3. c. 29.
(8) Cicero's Latin is, Primo quidem decipi incommodum eſt, iterum ftultum, tertio turpe---ſumma igitur amentia eft in eorum fide
Spem habere, quorum perfidia toties deceptus fis. De Invent. l. 1. C. 39. See allo Homer's Iliads, 1. 3. v. 105. Cicero, 1. 1. in Verrem,
C. 15. Sen. de Benef. 1.4.c. 27. Polyb. I. 8. c. 1, 2. and 1. 10. C. 34.
(9) Mr. Vander Muelen in his Commentary upon Grotius, Tom. 2. will not agree to the Opinion of our Author. For he ſays,
Experience ſhews, that theſe ſort of Men have not fo altogether put off Humanity, but are uſually conformable to the Rules of
Honeſty and good Senſe eſtabliſhed among Men, and if they do not act with any fear of a Deity, yet they do it with the Pro-
ſpect of their own Advantage and Preſervation. So that though we know thar a Man is infected with thar dereftable Opinion, we
have no Right under that pretence to break our Word with him, and neglect to perform the Agreements made with him. We
were at our liberty to agree with him, or nor; but from the Moment that we have conc'uded an Agreement with him, we are ne.
ceſſarily obliged to perform it. It is a clear different thing when we deal with Traitors, Thieves, Pirates, &c. Mr. Bayle has alſo
proved at large in his Thoughes upon a Comer
, and the Enlargement of that Work, that Atheiſts are not always wicked and
faithleſs, and that they may through a Principle of Honour or other Humane Motives abſtain from groffer Vices.
(10) The Author here ſpeaks only of that Circumſpection that we ought to uſe in treating with ſuch Men. For he denies not
but we are obliged to obſerve what
we have freely promiſed. See what he ſpeaks a little lower, s 11. in the place whøre he ex;
amines the Maxim of Cicero. D? Offic. l. 3. c. 29. See alſo 1. 8. c. 4. & 5.
(11) We may eaſily diſcern that this Paſſage is not very pertinently alledged.
ed
CHAP. VI. . making Promiſes and Pacts.
65

O.
Ayer dia
*
may
ty (12).
our Author ſays here is not contrary to the Maxim which we have defended above after him, l. I, c. 6. § 14. For though in
nor
ed and deluded; or that he muſt depend entirely looks upon as good. Now it appears. no leſs Good,
on the Favour and good Grace of the other, for what and deſirable to the Will, to avoid an imminent E-
he expects in return.
vil, than to acquire an abſent Benefit; and towards
Thus Socrates of Achaia, replied to the Demands the attaining of both theſe Ends, we employ the
of King Artaxerxes; the King deals moſt unreaſo- moſt likely Means, although they be ſuch as we
nably by us ; what he deſires to receive from us, he ſhould not barely on their Account chufe or em-
would have to be immediately deliver’d; but what brace. For we commonly make uſe of Methods
he is to give us in return, he expects we ſhould af- in themſelves ungrateful and troubleſome for the
terwards humbly ſue for. Diod. Sic. 1. 14. C. 24. For eſcaping of a Danger, as for the acquiring of a Plea-
the fame Reaſon, facilior fides Speratur ex pari, we ſure(1.) Though indeed, the Hopes of compaſſing a
truſt more ſafely to the Faith and Honeſty of Good does more ſweeten the Grievouſneſs of theſe
an Equal, Quintil. Declam. 312.
Means or Methods, than the Care of preventing an
And laſtly, That he expoſes his Safety to mani- Evil. For which Reaſon Ariſtotle (a) calls thoſe
feft Danger, who by performing a Covenant wea- only mixt (that is, partly voluntary, partly invo-
kens himſelf, and ſtrengthens the other Party ; upon luntary) Actions (2), which are undertaken for the
hopes that in Requital, and according to the Agree- fake of declining ſome Miſchief which we are like
ment
, he ſhall afterwards receive the like Alliſtance to ſuffer; as in that trite Inſtance, of throwing
and Succour. For 'tis a piece of Folly to give a Goods over-board in a Storm. Though as great
real and ſubſtantial Good, in exchange for Words, Hardſhips as any of this kind, are undergone by
Writings or Seals, when we have nothing to oppoſe the Wreſtlers, and other Engagers in the publick
to the Charins of Ambition and Covetouſneſs, but Games, to prepare their Body for thoſe Exerci-
the ill-grounded hopes of Honeſty and Fideli- ſes (b). What we would obſerve then is this, That
although Actions perform’d upon Fear of a greater
Maurocen. Hift. Venet. l. 5. p. 193. Ed. Ven. I dare Evil, ought to be accounted Spontaneous, and tho'
not venture to place the Security of our Affairs in a the leſſer Evil, which in thoſe Caſes we chuſe, is as
League. For ſuch is the Nature of Confederacies, that Things then ſtand, the real Object of our Deſire;
they are frequently hindred, and interrupted by the yet all this is not ſufficient to found an Obligation
various Events of things; different Ends proposºd, in us towards another. For ſince every Obligation
draw the Strength and Minds of the Allies diffe- is directed towards ſome other Party, to whom it is
rent ways; and whilſt each State purſues its own to be made good, and whọ thereby obtains a Cor-
ther ſent in equal Proportion, nor at the time agreed one Perſon has in him the due Grounds or Princi-
upon; hence ariſe Suſpicious, and Eſtrangement of ples of an Obligation, but it is requiſite, that there
Affections, from this open Quarrels, and from Quar- be in ſome other Perſon Principles fit to create à
rels utter Deſertions, and Violations of the main Con- Right. For we can have no Notion of an Obliga-
tract ; and thus at length, thoſe of the Confederates tion, unleſs a Right anſwer to it, or be confequent
who are leaſt able to make Reſiſtance, become a Prey upon it. As I can owe nothing, if there be no Per-
not only to their Enemies but to their Allies. ſon who can rightly demand any thing from me.
X. We are now to proceed to that other Species Therefore ſuch Fear alone invalidates and deſtroys
of Fear; ariſing froin the Approach or the Appre- an Obligation, as is caus’d by ſome Vice or Imperfe-
henſion of ſome grievous Miſchief. And in ſtating ction in the other Party, rendering him incapable
this Point it is neceſſary, that we go back to fur- of acquiring a Right (3.) And ſuch a Defect is e-
niih our felves with ſome clear and fundamental very injurious Action; which cannot be ſaid to
Principles. And ſuch is this undoubted and original produce a Right without a manifeſt Contradi-
Truth, That our Will naturally inclines to what it &tion (4). For to pay what another has a Right to
20voldo ใน
(12) This Quotation is not very neceffary, becauſe that Hiſtorian there creats in general of the Inconyeniencies which ariſe
by Alliances of one State with another.
5d voile 108 ob
Mr. Barbeyrac's NOTES on $ 10.be
(1) As for Example, The ancient Wreſtlers, as our Author obſerves a little lower, undergo chearfully the Regimen.of a very
duftere Life, and great Farigues, that they may win the Crown of the Olympick Games. See Epi&et. E nchirid. c. 35. in fine. What
general Man is more ſenſible of Evil than Good, that hinders not, but that ſometimes he may reſolve to do ſome things dif-
agreeable in themſelves upon ſome Occaſions, to obtain a Good which he looks upon as much more conſiderable, or to avoid an
Evil more troubleſome. And then the Hope of Good makes us think the Means leſs troubleſome, than the Deſire of avoiding
the Evil does, as well becauſe we embrace theſe Means with an entire Liberty in the firſt Cafe, and not in the latter, as becauſe
the Acquirement of Good is ſomething poſitive, which produces a new Pleaſure and Advantage, whereas a Deliverance from
Evil leaves us in the ſame Eſtare we were.
to bigo motoarelo motiv
(2) See l. 1. C. 4. $ 9. before going.
13. Nihil conſenſui tam contrarium eſt, qui ac bone fidei judicia ſuſtinet, quam vis & metus, quem comprobare contra bonos mores eft.
Digeft
. I. 50. tic. 18. De Diverſis Reg. Jur. leg. 116. See tit. 2 1.4. Quod metûs cauſa geſtum erit, and Mr. Daumat's Civil Laws
in their Natural Order. Part 1. I. 1. tic. 18. § 2. We may add alſo what Cicero ſays, fam illis promiffis ftandum non effe, quis non
?
. I.
rently, but of thoſe only that were given freely without any Violence, and without a Mind corrupted with the Potions,
* Charms, or Fawnings of a Woman, being juſtly perſuaded that there is no difference between Seducement and Force; and
placing in the ſame Rank, Surprize and Force, Pleafure and Pain, as the things which equally cloud our Reaſon. Et arrive
και προσηκόν τως τα πειθαι παρά το βέλτισον έλεν ηγέμενα τα βεαθώαι διαφέρουν, αλλ' ας ταυτό και απάτίω τη ανάγκη, και το
πάνω τον ηδονίω εμενΘ, ως εκ ήταν εκείναι λογισμών ανθρώπε δυνάμένων.
(4) See the Law of the Digeſts, cited $ 8. Noce
(2) Ethic
. 1. 5. 6. I. See what we have faid of theſe in l. 1. c. 4. f. 9. (6) Vid. Epiftet. Enchir. c. 35.
+ I
demand,
130
21009
as
4.
Nuo

66
Of the Conſent required in
Book III,
tract. Titius's Obferv, 224:
demand, is a Precept of the Law of Nature ; and ger I apprehended from another Quarter (2). Thus,
fhould an Injury (that is, a Deed or Fact directly it I hire a Guard of Souldiers to defend me againſt
contrary to that Law) be able to cauſe any ſuch Ef- Robbers, I am no doubt oblig?d, ſtrictly to pay them
fect
, the Law of Nature would lend Strength
and Af- the Price of their Service. And a Man who being
fiftance to its Enemy, and manifeſtly contribute to reduc'd to a low Condition, procures by large Pro
its own Deſtruction. 'We may as well ſay, that a miſes, the Help of others, and having by their
Law which forbids Thieves, may at the ſame time Means eſcap'd the Danger, is afterwards backward
reckon their Trade and Practice amongſt the honeſt in performing, contracts the double Guilt of Perfi.
ways of Gain (5).
diouſneſs, and of Ingratitude.
XI. But, before we apply theſe Remarks more A Promiſe is likewiſe Valid, if made to a third
cloſely to the Point, it is neceſſary that
we make Perſon, through our Awe and Dread of a lawful Sum
farther Enquiry, whether the Author of the Fear perior (3); who had a juſt Right of Commanding
was the Party with whom we are engaged in Bufi- us, and of denouncing a Penalty upon Default. For
pels, or ſome other Perſon. And then again, whe- here
the Party to whom I make the Engagement is in
ther he had a juft Power and Authority of preſent. no Fault; and I can only blame my ſelf for being
ing ſuch a Fear to our Mind or not. For this is true driven to a thing through Fear of Puniſhment, which
beyond Diſpute, that in caſe I have taken an Obli- I ought voluntarily to have undertaken. Thus
gation upon me through Fear of Miſchief, threat ſhould a King lend a Body of his Souldiers for
ned by a third Perſon, neither at the Inſtignation, Guards to a Foreign Prince, and for the greater Se
nor with the Confederacy of the Party, to whom the curity, command them to ſwear Obedience to the
Engagement was made (1), I ſtand firmly bound to Stranger ; they ſhall not afterwards fly from their
perforin what I promis' him. For there appears new Obligation, upon pretence that they were
no Fault in him, which might render him incapa- brought to it by Fear; ſince the Fear proceeded
ble of acquiring a Right upon me, and on the con- from him, who had a Sovereign Right of laying
trary, he ‘inay juftly challenge a Requital, in that this Injunction on thein, and of forcing them by any
he lent me his Alfiftance, in warding off the Dan- Methols to their Duty.
Methods to their Duty. In the ſame manner,
(5) To clear this Matter, it is neceſſary to make ſome Reflections. I. The Reaſon which our Author alledges taken from the
Incapacity made by the Cauſe of Fear, to acquire any Right from the other Contracter, is very good, but there is another drawn
from the perſon in whom the Fear is, That his Conſent is not ſo free as is required in all Promiſes and Agreements, which ought
to be perfectly
voluntary. 'Tis not here as it is in Actions criminal and evil in themſelves, which ought not to be committed for
fear of the greareft Menaces, though the Force yielded to may leffen the Crime. Becauſe as we ought and may obey the Law
that forbids then, we are thought to be free
fo far as is neceffary
to make us culpable, though we have nothing in view but the
Trouble which we are immediately threacned with. But in the matters of Promiſes and Agreements all that is not done without
Artifice and Conſtraint from him with whom we engage, is looked upon with Reaſon not to have a good ground of Confent, and
confequently is void in it felf, becaufe we act about things indifferent, which we need not determine farther than we ſee con-
venient. The Law thar leaves us ac liberty to do them or nor, lays no Necefficy upon us to keep what we are engaged to contrary
to our Will and Intereſt. Reafon and Prudence will oblige us rather to depart from our Righes, than expoſe our felves to the il
effect of Force; but if there be no Damage to us, nothing can oblige us to make good an Act which is null in it felf, unleſs we
fear a worſe Conſequence than appears in doing it. Mr. Daumat, who has uſed (in his Civil Laws reduc'd to a Natural Order,
Part 1. Lib. 1. tit. 18. 92.) this Reaſon to fhew the Nullity of forced Engagements, but explains them obſcurely, has not forgot
the other Reafon taken from him who is conſtrained to promiſe or treat. 2. Our Author ſeems to think that the Evil, which be
ing apprehended, is fufficient to make forced Promifes and Agreements void, ought to be very terrible, whoſe Proſpect may af
.
frighe the moft courageous perſons. "Tis certainly the Opinion of the Roman Lawyers, who confine chis Fear to the danger of
loling Life, or ſuffering lome violent bodily Pain. Metum accipiendum Labea dicit, non pro quolibet timore, fed majori malitate
---qui merito do in hominem conſtantiſſimum cadat. Digeft. 1. 4. cit. 2. leg. 5, 6. Talem metum probari oportet, qui ſalutis periculum,
vel corporis cruciatum contineat. Cod. I. 2. tit. 4. De Tranſactionibus, leg. 13. Bur ſuppoſing always, that the Fear is unjuſt, i
do not fee why the Apprehenfion of a ſmall Evil is not ſufficient to make Promiſes and Agreements void, if that be the prin-
cipal Motive, and wichow it Conſene had not been given. The leaſt Injuſtice in my opinion gives no more Right to the Author
of ic than the greateſt. But the Fear muſt not be a vain one, for he that refigns himſelf up to Parick Fears, muſt blame him-
felf, Vani timoris non eft jufta excufatio, Digeft
, t. so. cit. 17. De Diverfis Reg. Jur. Leg. 184. Otherwiſe, as Mr. Daumat obſerves,
all the world would not have the ſame Reſolution to refift Force and Menaces. There are ſome Men ſo very weak and timorous
that they yield to the leaſt Impreſions ; fo that the leaft Force prevails as much on them, as the greateſt on the moſt courageous
,
and 'tis principally for their fake that the Laws puniſh Matters of Fact and Oppreſſions. But if the fame Laws do not allow the
Fear of a ſmall Evil to be ranked among the Cauſes of nulling a Contract, it proceeds from hence, according to the judicious Re-
flection of Mr. Placette in his Treatiſe of Reftitution, that the Lawgivers would prevent the Multiplication of Suits, which are
without Contradiction a great Evil; but they have left, adds he, the Rights of Conſcience entire, and their Authority hinders
not but that we may obſerve exactly what thar inward Law prefcribes upon that and the like Subjects. We muſt then conclude,
chat by Natural Rigắr all Force, and every kind of Violence, direct or indirect, all Menaces, and in general all unlawful Influences
which oblige Men, contrary to their Inclination, to give their Confent, which otherwiſe they would not, takes away that Liber-
ty which is neceflary to make an Engagement valid, and confequently renders all Promiſes and Agreemenrs in ſuch caſes null and
void. I ſhall farther add only one Paflage is Plato, wherein that Philoſopher afferts, That the Agreements to which a Man is
obliged by an unjuſt Force, ought to be valid no more than thoſe which are contrary to the Laws, or are not in our power to
execure, by reafon of Rome unforefeen Accident, “Όσα πς αν ομολογιών ξυνθέθαι, μη ποιή κασει τις ομολογίας πλίω ών αν νόμοι
απείργων, ήψήφισμα ή τίνΘ- υπό αδίκε βιαθείς ανάγκης ομολογήση, και έων από πύχης απροσδοκήτε τις άκων κωλάθη σίκας είναι η
ásam citeañis opcorozices in Tcūs quasancion dingus, c. De Legibus, 1. 1. Tom. 2:
Mr. Barbeyrac's NOTES on Su.
(1). Whether the Evil be at a diſtance and uncertain, or ir be according to all appearance juſt ready to happen. In the firſt
Cafe it is plain, that Fear from a third perſon can't invalidare a Promife or Agreemenr.. In the other, though the Fear be pre-
fent,it has,
no manner of influence upon the Nature of a Promiſe or Agreement. All that it does is, that it gives the perſon engaged
a Right to accuſe the third perſon, by whoſe unjuft Force he made the Engagement, and without which he had made no con-
magis te de vi koſtium vel latronum, vel populi tuerer, vel liberarem, aliquid à te accepero, vel te obligavero, non debere
me hoc edi&to teneri, nifi, iple banc tibi uim ſummiſi. Ceterum fi alienus fum à ui, teneri me non debere, ego enim opere potius meæ mer-
cedem accepiffe videor. Digeft
. 1. 4. cit., 2. leg. 9. 9 1.
(3) Non eam vim quam Magiſtratus intulit, fcilicet jare licito, Go jure honoris, quem ſuſtinet. Ibid. leg. 3.51. This Author in
his Abridgment of the Duties of a Man and Citizen, 1. 1. c.9. is. adds, with Reſpect or Deference to a perſon to whom we
have great Obligations. And 'tis for this Reaſon that he reports an Example of a Child who married againit his own Inclinacion
co pleaſe his father, although he could have abſolutely freed himſelf. See l. 6. C. 2. $ 14. following.
(2) Si
quo
Should
CHAP. VImaking Promiſes and Paits.
V
.
67

gitur ut deſignet, quis ei metum, vel vim adhibuit, do ideo ad hoc tantum Aston
paliw facientis.
fhould we ſuppoſe that a Father might betroth his ment in the Party who ſuffer'd it; becauſe ſhould
Daughter to a Man, quite againſt her Inclination; he offer to do (6), or to give what in the Agree-
in this caſe, when ſhe, out of fear of her Father's ment he promis’d, he ought in common Juſtice, im-
Authority, has given her Faith to the leſs agreca- mediately to receive full Recompence; or full Rem
ble Spouſe, ſhe cannot afterwards diſappoint him. ftitution (7). And 'twould be a fooliſh and idle
For there is no Fault in him, to prejudice his Right, way of ačting, when we are once gót clear of the
accrujing from that Promiſe; and the Daughter ought Danger, to pay voluntarily what we promis d upon
freely to have obey'd her Father's Pleaſure; and Force, and then to require Reparation of the Da-
fo cannot plead Compulſion, when ſhe had no Right mage (8). Martial. L. XI. Epig. 59.
to reſiſt. Thus far then it is a Point of Moment to
conſider, who was the Author of the Fear. But in Quid ſi me tonſor cum ftri&ta novaculà ſupra elt,
other Caſes, the Rule of the Roman Lawyers holds Tunc libertatem divitiaſq; roget?
good, That it makes no difference from what Perſon Promittam : Nec enim rogat illo tempore tonfor,
the Fear proceeds; that is, when no one has a Right Latro rogat; res eft imperioſa timor.
of putting us into fuch a Fear; and when the Fear Sed fuerit curva cum tuta novacula theca,
is actually the Cauſe, not the bare Occaſion only of Frangam tonſori crura manuſq; fimul.
the Promiſe or Pxet, conſequent upon it (4).
Thoſe Promiſes then, or Pacts we take to be Inva My Barber with his Razor on my Throat,
lid, which a Man is compell’d to engage in, by the
Asks me for Wealth and Freedom, and what not:
unjuſt force of the Party, to whom they are made. I promiſe all, whilſt Danger ties my Hands,
For ſince he who extorts any thing from another, byt For not the Barber but the Rogue demands;
uſing unjuſt Terrours, is by the Law of Nature But when fierce Razor to ſafe Sheath withdrew,
bound to reſtore it; and muſt conſequently make I'd ſpoil his Dancing and his Fiddling too.
good what the other Perſon loſes by fuch a forced
Bargain. So (5) Seneca l. 4. Coritrou. 25. The Que- Eſpecially ſince the other Party, when he dernánds
ſtion is whether Force and Neceſſity render a Bu- or accepts our Promiſe, does by that very Act de-
fineſs Invalid, when they did not proceed from the clare manifeſtly, that 'tis far from his Thoughts and
Party contracting? What Influence, (will he ſay) Deſigns to make us any Satisfaction. Beſides, how
“ Can your Compulſion have on me when it was not I ridiculous would it be in you to reckon it a piece
" that compell’d you? The Puniſhment cannot be of Merit, when you forbear a Miſchief which the
mine, unleſs the Fault were mine. But the other Laws forbid you to commit; to pretend that you do
denies this way of arguing. The Laws, ſays he, as a Man a Kindneſs
, by refraining from fome noto-
to the preſent Caſe, doth not profecute him that ricus Villainy. And therefore Cicero (a) utterly
“ offers the Violence, but alliſts and relieves him denies himſelf to have been obliged to Antony,
that ſuffers it; it ſeeming unreaſonable, That a for not killing him at Brundufium. What Benefit
,
“ Man ſhould be bound by an Engagement thruſt what Favour is it ſays he) that you with-held your
upon hiin againſt his Will. Whence the Necefli- Hands from the fouleft Wickedneſs? What Kindneſs
“ ty proceeded, is a Point of no Weight in the Dif- can Thieves boaſt of bút that they ſpared a Man's Life,
pute. That which renders the Contract unjuſt, is when it was in their power to have murther’d him?
the hard Fortune of the Sufferer, not the Perſon
of the Doer. Idem Controverf. 1. 4. Ç. 8. If it be Horat. 1. 1. Epiſt. 16.
ſaid it was not I that applied the Force but ano Non furtum feci nec fugi ſi mihi dicat
ther; the Anſwer is, That Man who makes his Ad Servus, habes pretium loris non ureris aio.
vantage by Violence, offer'd by ſome other Hand; Non hominem occidi ; non paſces in cruce Corvos.
is no leſs Guilty, than if he had been himſelf the
actual Performer.
(9) Id. de Arte P. DOO
The Neceſſity of Reparation in the Party who of godt
revitavi denique culpam
fer'd the Violence, takes off all Obligation to pay-
Non laudem merui.
(4) In hac ultione non quæritur is qui convenitur, an alius metum fecit, fufficit enim boc docere- metum ſibi illatum, vel vim, do ex
hac ve eum qui convenitur, etfi crimine caret, lucrum tamen fenfiffe. Nam cum metus habeat in ſe ignorantiam, merito quis non aſtrin-
acceptam pecuniam faceret, vel rem traderet, vel quid aliud faceret. Digeft
. l. 4i tir. 2. Quod metus cauſa, leg. 14. $ 3.
(5) The Latin of Seneca is, An fi eft in re vis & neceſſitas, ita tamen refundantur, quæ per vim do neceſitatem gefta funt, fi vis com
neceſitas à paciſcente adhibita eft? Nihil, inquit, meâ an tuâ cogaris, fi non à me cógeris, meam culpam oportet effe, ut mea pæna ſit. Non
inquit, neq; enim Lex adhibenti vim-iraſcitur, sed-paſſo ſuccurrit, do iniquum illi videtur, id ratum effe, quod aliquis
, non quia voluit
admota ad lucrum fuum utitur. See alſo Mr. Noodt, De Juriſdi&t, do Imperio.
(5) There is no Neceſſity here to have recourſe to this Fiction of Law; and our Author ought the more to have avoided it,
becauſe he condemns it himſelf, when he criticizes upon Grotius's Opinion, at the end of 'S 12. in this Chapter. He had better
have infifted upon the Principle he laid down above, viz. The Incapacity that the Author of force ſhould obtain any Right by
ſuch extorted Engagemenes, and the want of Liberty in the perfon, which gives ſuch a forced Conſent. See $ 10. Note 3. The
Argument'our Author ufes here can only be ad hominem againſt
the Roman Lawyers, who having ſearched into the idle Fallacies
have done in other Matters, maintain, That the Contracts of Rigorous' Right extorted by an unjuſt Fear are
valid in Equiry, altho” they ought afterwards to be diſannulled by the Prætor. See Inſtitut, l. 4. tit. 13. De Exceptionibus, $1.
and Mr. Noodt, De Forma emendandi Doli mali, c. 16.
(). This is a Term of Law by which is underſtood a Diſcharge which two perſons Debrors to one another, give one another.
of this our Author will treat in Lib. 5. c. 11.9 5. Vid. Digeft. 1. 44. tit. 4. De doli mali do metus Exceptione, leg. 8.
(8) This Note is put into the Text.****
(9) Horace is there treating of another Marrer, and ſo the Quotation is not proper.
(a) Philip. 2,
+ I 2
Speak
front
,
Tv
of this Head, as

68
Of the Conſent required in
Book III
Speak Slave your Merits, I ne'er fled nor Stole; one of them make their eſcape, the reſt are obliged
You've 'ſcaped the Scourge, and ſtill your Hided to pay the Price he was valued at. Whether an
keeps whole:S Oath added to Promiſes of this kind, does more con-
I've done no Murther; and you feed no Fowl. firm and eſtabliſh their Force, we ſhall hereafter
examine.
I merit Pardon, but I win no Praiſe.
It is a noted ſaying of Tully in his third Book of
Offices, C. 2.9. (12). If you have agreed with Thieves to
Add. 1. 7. f. 3. D. de pactis
. Seneca, 1. 2. Controv. give them ſuch a Sum to ſave your Life, it is no De
13. Not to do a Villainy will never paſs for a Be- ceit to recede from your Promiſe, though you have
nefit
. Quin&ilian. Declam. 330. To make an end given your Oath too for the Performance. For Roba
of an Injury is by no means to begin a Kindneſs. bers or Pirates are not in the number of any particu-
No more is a Man bound to perform his Promiſe, tar and lawful Enemies, but ſhould be look'd on as the
who in a Cafe of this Nature (10), gives Security Adverſaries of Mankind; and therefore no true Faith
for the Perfon in Diſtreſs; although his own Fear or Oath can properly paſs between us and them. Which
is not the Cauſe of his entring into the EngagementAffertion we thus far allow holds good, that a Pro-
For ſince Suretiſlip is a kind of Inferior Contract, miſe made to ſuch Men through the Compulſion
admitted to confirin and ſtrengthen the main Buſi- of Fear ſhall not be binding. But the reaſon on
neſs; it would be abfurd (at leaſt with regard to which Tully proceeds, is not ſatisfactory to many
Natural Law) to attribute more Efficacy to the for- Perſons; eſpecially, if extended to ſuch Pacts or Pro-
mer than to the latter; to make the Principal miſes, as we commence with the ſame Villains,
Debtor lefs ftri&tly obliged, than he who comes into without being brought to it by Violence. For tho
the Buſinefs purely for his Aſſiſtance (a). The by the common Cuſtom of Nations (13), a lawful
Caſe is otherwiſe, if this third Party for the relief Enemy and a Robber are treated in a different
of the Sufferer, contract an Obligation, in which he Method, yet the latter cannot be ſaid immedi-
himſelf is the Principal, 110t the Surety, or the Ac- ately to loſe all Rights of Humanity; at leaſt, if
cellary. For Inſtance, if a Man out of Kindneſs he ſtill deal with ſome Perſons in a fair and
peace-
and Pity, ſhould promiſe fome Reward to a Villain, able Manner. For when he tranſacts with me,
upon Condition he will ſet a poor Wretch at Li- without influencing my Conſent by Fear, he bar-
berty, whom he has got under his Power (11). For gains not as a Robber, but like any other Man, Now
here the Contracter himſelf is not properly put un a Robber is call’d a common Adverſary, becauſe
der Fear, nor can he uſe thoſe Exceptions, which he does not like other Enemies, offer War pecu-
might be made by the Perfon he delivers ; in as liarly to any Party, but practiſes hoſtile Force
much as he engages upon his own Score, not in the upon all, without Diſtinction, that fall into his
name of the other; and cannot be ſaid to build his Hands. Upon which account, in order to quell
,
Bargain on a primary Obligation; fice indeed, and to ſuppreſs him, there is no need of the For-
none paſs’d but what he freely fet on Foot, and of malities of denouncing War, and liſting Souldiers
which he took the whole Burthen on himfelf
. And againſt him ; but Nature Commiſſions every Manto
he ought to eſteem it a thing well worth his proſecute him in a military way. But it may
ſtill
Pains or Coſt, to have faved the Life of an inno- be affirm'd, that as by Tully's own Confeflion, a
cent Man, and to have acquired the Glory of Bene- State of Hoftility does not hinder us from being
ficence, in ſo extraordinary a Degree.
bound to obſerve Faith with an Enemy; fo neither
But if a Perſon in this Čaptive Condition, upon is this common Hoſtility of the Robber an Hindrance
making Terms for his Liberty, ſhall leave Hoſtages to our performing a Covenant made with him; eſpe-
to continue under the power of the Villains, till cially if, as we have all along ſuppos’d, he lays aſide
ſuch time as he ſhall have perform’d what he pro- the Part of an Enemy, in the Act of Covenanting,
miſed; he is then indeed bound to make good his Grotius forms another Objection to this purpoſe;
Word; yet not by Virtue of his Contract with the “ Such as are notoriouſly Wicked, and are no part
Rogues, but of that whereby he ſtands engaged to “ of any Civil Society, inay, if we regard the Law
the Friends whom he has left in his room. In Mo “ of Nature, be by any Man puniſh'd. (This
rocca, and other parts of Africk, the whole Body (14) Hypotheſis we ſhall examine in another
of Chriſtian Slaves paſs their Faith for each parti place.) Now they who may be puniſh’d, and even
cular Man of their Number, that he ſhall not go “ with Death, may likewiſe be diſpoild of their
off; and by means of this Security, they are allow'd “ Goods,may be difpoffefs'd of their Rights. But,
to walk the City without their Chains, and in caſe
and in caſe « mongſt their Rights, that which accrues to them
a
(10) This is the Deciſion of the Roman Lawyers, who ſay at the ſame time, That if the Surety has engaged thro' Fear, and
he for whom he is Surety engagech himſelf volunrarily, the Engagement of this latter is good, but of the other null. Labeo ait,
ſi quis per metum Rens fit conſtitutus, & fidejuſſorem nolentem dederit ipſe do fidejuſor liberabitur. Si folus fidejuſor metu acceffit,
non etiam Reus, Solus fidejufor liberabitur. Digeft
. l. 4. tit. 2. Quod metus caufa, leg. 14. $ 6. See l. 5.C.10. $ 9 following.
(11) Mr. Hirtius maintains, that in this laſt Cafe the Engagement is not valid, unleſs there be an open Donation of what is de
livered or promiſed on that account. For, ſays he, though he be engaged in perſon, 'tis only to ſave another, who is unjuſtly
oppreſſed. The Author himſelf in the following Chapter, $ 9. puts the like Engagement among ſuch as are extorted by Fear, or
gotten by Surprize, and in Sport. This Criticiſm is well grounded, altho' in the Caſe he is ſpeaking of the Engagement be free,
he to whom it is made can acquire no more Right by our Promiſe, than by thoſe for whom the Engagement is made.
(12) Cicero's Latin is this, ut fi prelonibus paftum pro capite pretium non attuleris, nulla fraus eſt, ne ſi juratus quidem id non feceris.
Nam Pirata non eſt perduellium numero definitus, fed communis hoftis omnium, cum hoc nec fides debet, nec jusjurandum effe communi.
See alſo what is ſaid, 1.4.c. 2. S 8.
(13) Heliodor. Ethiop. I. 1. c. 3. p. 56. When we make War upon Thieves, we do not finiſh it with the uſual Ceremonies of
Articles and Leagues. The Greek is, Ου και επι ρητοϊς πότε λήξεικG- έληξε πόλεμG- έδε ό σπόνδαις έχει την τελευτών. Bur fee
Grotius, l. 3. c. 19 § 2, Numb. 2.
(14) See l. 8. c. 3. & 4. following.
(a) Vid. Inſtit. l. 3. tir. 21. De Fidejuſſor. $ $.
6 from
CHAP. VI.
69
making Promiſes and Pacts.
« from our Promiſe is one, and therefore that too “ Promiſe through Fear, is therefore naturally ob-
may by way of Puniſhment be taken from them.
lig'd to perform it, becauſe he plainly gave his
But Grotius anſwers this Argument with great Eaſe.“ Conſent, and fuch Conſent as was
full and abſolute
For he that voluntarily bargains with a Thief, know- “ according to the preſent poſture of Things (3). For,
ing him to be ſuch, does by that very Act renounce as Heliodorus ſays, 1. 5. c. 15. p. 253. Edit. Lugd.
all Exception againſt his Perſon, which might other “ Life is ſo precious, that we feldoin think we buy
wiſe render the Promiſe Invalid. Elſe the Buſineſs < it too dear; though he had never paſs’d his Con-
Was Vain and Inſignificant, and nothing really ſent, had he been ſecure from the Danger. But
paſs'd between them. Should I be got out of my Anſwer to this
, 'tis ſufficient to repeat what we for-
Road, and promiſe a Thief fome Reward for fet- merly obſerv’d, That ſince every Obligation ariſing
ting me right again, there is no doubt to be made, from a Contract
, fuppoſes a Correſpondent Right in
but I ought freely to pay it. And thus too the Ro- the other Party, it is not enough that I have in me
man Lawyers, rightly maintain , That what- the neceffary Cauſes, and Principles of an Obligati-
« foever is depoſited with us by a Thief, ought to on; but 'tis Requiſite, That the Perſon with whom
« be reſtored to him (15), if the true Owner of it I deal, be free from all ſuch Defects as might hin-
* does not appear. To which, they ſhould add this der him from obtaining a Right upon me. And
farther Condition, That the Man who receives the therefore my having the power to give a thing, does
thing in Truſt, does not know the Fraud of the not preſently make another have a Power of receiv-
other. For in Caſe he is ſatisfied, that the Perſon ing it. Since then an Obligation without a Right,
is a Villain, and that the Goods are ſtoln, I do anſwering to it, is of no uſe or purpoſe; it cannot
not ſee how he can take them in Charge, without be imagined, that my bare Conſent ſhould bind me
bringing himſelf in as an Acceſſary to the Crime. to a Performance, which the Law of Nature for-
XÌI. But many indeed there are, who maintain bids the other Perſon to receive at my Hands. And
that Pafts and Promiſes, though extorted thro' Fear, this is manifeſtly the preſent Caſe. For the fame
have yet the Force and Power of Obliging (1). Law which prohibits the Application of Violence
Some urge the Authority of the Roman Law, and Terror, muſt needs at the ſame tiine prohibit
which by giving full Reſtitution (2), ſhould ſeem the Acquirement of any Right, or any. Gain, by
to ſuppoſe, that thoſe Engagements are in ſtrict fuch wicked Means. What Grotius ſubjoins appears
Juſtice binding, but ought to be reliev'd and correct- not altogether agreeable, " That if he to whom
ed in Courts of Equity. But 'tis eaſie to vindicate “ the Promiſe was made, did obtain it of the other
the Practice without drawing any ſuch Concluſion Party, by putting him in a Fear, though never
from it. For ſince the Parties are Members of a « fo Night, he is oblig'd to releaſe the Promiſer if
Civil State, the Court does not preſently take it for " he deſire it; not becauſe the Engagement was In-
granted, that one of them offer'd Violence to the “ valid, but by reaſon of the Damage which he un-
other; and ſince that Point may bear a Diſpute, it juſtly occaſion'd. Now if I can at my Pleaſure
ſeems convenient, fo long to keep up ſuch a Con. “ or Deſire be freed from my Obligation, I am al-
tract, and to ſuppoſe it good, till the Judge ſhall“ ready actually quit of it. What need is there then
receive manifef Evidence, That the Allegation of of this round-about way of Application? You ought
Fear, on which the Aktion was grounded, was really to releaſe me from my Obligation, if I requeſt it? Is
juſt and true. But it does not follow hence, That it not more Faſie, and more Natural to ſay, Since
Contracts of this kind, or other Buſineſs which may you compelld me by Force to make the Promiſé, I owe
be difannull’d,
by a peremptory Exception at Law, are you nothing; and 'tis idle in you to demand that of me,
in themſelves Firm and Obligatory, ſince the For- which ſhould I pay, you are oblig’d immediately to re-
mality of that way of Proceeding, though proper ſtore (4). Add. Senec
. Controverſ. 4. 26.
Civil Judicature, yet is not agreeable to the Sim XIII. The ſame Opinion is defended by Mr. Hobbes
plicity of the Law of Nature; at leaſt, when the (b), though by different Arguments. He ſays, Co-
Caſe happens between Perſons who do not acknow- nenarts entred into by Fear, are not therefore Invalid,
ledge a common Judge.
becauſe they proceed from Fear ; for then it would fol-
Grotius afferts (a), « That a Man who makes a low, that thoſe Covenants by which Men unite in Ci-

2
(15) Quod fi ego [cui ſpolia abſtulit Latro] ad Petenda ea non veniam, nihilominus ei reſtituenda funt, qui depoſuit, quamvis male
quafita depoſuit. Digeft. 1. 16. tit
. 3. Depoſiti vel contra, leg. 31. 91. See 1. 4. C. 13. $ 5. following.
Mr. Barbeyrac's NOTES on S. 12.
This is the Opinion of Mr. Montagne in his
Eſſays, 1. 3. c. 1. who thus delivers himſc'f, what my Feat has once made me
reſolve, I am obliged to make good without Fear; and though nothing forces me to it bür my Tongue without my Will, yet I
am obliged to make good my word. As for my felf, whenever I have inconfiderately deliver'd my Thoughts, I have made a
Conſcience nevertheleſs of diſowning them. Otherwiſe we ſhall come by degrees to aboliſh all the Right which a third perſon
obrains by our Promiſes
. Quafi vero forti viro vis posſet adhiberi (Cicero de offic. 1. 3. c. 30. upon which ſee Grevius's Notes.) In
this alone hath the Law a Secret Interelt to excuſe us in the Non performance of our Promiſes, it we have promiſed a thing wica
ked and unjuſt in it felf, for the Right of Vertưe ought to prevail above the Right of an Obligacion.
(2) This hath only place in Contracts of ſtrict Right, for thoſe of good Faith would be null in themſelves, and by the Civil
Law. It is true
, that according to the Roman Lawyers
, the Word annul
, make void, reſcind, make god fully, may be indifferent
them, the Judge may declare them
null one way or another, either as having no Force in themſelves by the Tenure of the Civil
ww, or being void by fome Exception made by the Defendant. Scc $ 6. Nore 5. foregoing, and Mr. Noodt's Treatiſe, De Forma
emendandi doli mali
, &c. c. 15, 16. where it will appear that our Author's Reaſon to excuſe the courſe of Proceedings in the
Roman Coure is no ways folia,' fince the Judge had always time to know the Force, whether the Contract were in it ſeli good or
(3) Heliodorus’s Greek is, 'Aragó mois afegy may TV TE971 pórteg. A trivial Sentence.
(4) Here we may apply the Maxim of the Roman Lawyers, Non videtur quiſquam id capere, quod ei neceſſe eſt alii reftituere,
He ſeems not to receive any thing, that mult of acceſſity reſtore it. Digeft. De diverſ. Reg. Juris, leg. si. on which ſee
the Nore of Dion. Gothofred.
(a) Lib. 2.C.11.87. (b) De Cive, c. 2. $ 16,
vil
70
Of the Conſent required in
Book III

We may do many
te luch a
vil Life, and make Laws, muſt be Invalid; for the the latter part of the Agreement, it is no good Con-
Fear of mutual Slaughter, is the Cau;e of one Man's ſequence to ſay, 11. It is lawful for me to promiſe
ſubmitting himfelf to the Government of another. It and to pay the Villain; therefore he has a Right
would follow likewiſe, that a Man a&t's Irrationally; of requiring the Performance from me ; or there
who believes bis Captive, bargaining with him for his fore I ſtand bound towards him by ſome inward
Ranſom. Now in the firſt of theſe Reaſons “ Tie upon my Conſcience.
there is a plain Ambiguity in the Term of Fer. things luwfully, which we cannot be engaged to do
For that Fear which engages Men to enter into Cia by any Obligation. I may lawfully throw away iny
vil Societies, is of a quite different kind from that Goods ; but does it therefore follow, that another
which we are now conſidering (1) The former is a can oblige me to ſuch an Extravagance. So that
Caution againſt ſome Evil which may happen in- the Rule which the ſame Author lays down on this
definitely, I know not when, nor which way. The Subject in his Leviathan (a), is likewiſe falſe; What
latter is a dreadful Apprehenſion of grievous Evil, foever I may lawfully do without Obligation, the same
juſt now coining upon me, and which I am not able I may lawfully Covenant to do through Fear; and what
to refift
. Therefore the Covenants which we inake I lawfully Covenant, I cannot lawfully break. For he
for the Procurement of mutuali Aſiſtance againſt ought to have added this Condition, Provided the
a common Enemy, are entirely of another Nature, other Party can honeſtly demand it of me,
from thoſe by which we promiſe fome Reward, to XIV. There is on this point, ſtill one Queſtion
free our ſelves from a Danger, which ao Villain un- behind, which requires our Examination ; Since Pro-
juſtly brings upon uis (2). As to the latter Reaſon; miſes made through Miſtake, or through Fear, are
we readily acknowledge, that a Rogue acts very void; ſuppoſe the Party after he gets rid of his Mi,
irrationally, when having firſt extorted a Promiſe ſtake, or of his Fear, is inclin'd to ſtand to his Bar-
by Force, he afterwards yields Credit to the Per- gain, What muſt be the way of ratifying ſuch Pro-
fon, as if the whole Buſineſs had been honeſtly and miſes, and of putting them in full Force? For an
fairly tranſacted. For that Wickedneſs and Folly Obligation that was at firft Invalid (1), may after-
ſhould meet together, is no Contradiction. Onwards recover its Strength, by the Intervention of
the other ſide, we inay venture to ſay, That he ſome new Cauſe, fit to create a Right; which in
would not act very rationally, who being got ſafe the preſent Café, muſt be a clear and voluntary
from a Miſchief, with which he was unjuſtly threat- Conſent. Some then are of Opinion, That for the
ned, ſhould freely pay the Ruffin the Price of his Confirmation of ſuch a Promiſe, no more is Requi-
Villany (3). 1*(**) Dionyf. Halicar. 1.18. p. 509 in fin. ſite, than an internal Act of the Mind, or a full
Edit. Lipſ. Whatever is extorted from private and free Agreement to the Buſineſs, though it be
Men, or from publick States. by Force and Neceſſi- not expreſs'd by any outward Sign. For the out-
ty, holds no longer than the Neceſſity it ſelf con- ward Sign, they ſay, has paſs’d before ; and this
tinues. To
being now enforced by the clear and free Determi-
He adds, 'tis univerſally true that Pacts oblige, nation of the Mind, nothing is wanting to the Pro-
whenfoever a Good is receiv'd, and when the Act of pro- duction of a firm Engagement. Others diſlike this
mißng, and the Thing promis'd are both lawful. But way of deciding the Controverſie; becauſe they
it is lawful for me both to make a Promiſe for the re-t conceive that the Internal Conſent, and the Exter-
fóuing of my Life, and alfo to give what I will of my nal Sign, ought to exiſt together, and that therefore
own, even to a Robber. But indeed, what the Rob-all antecedent external Act, cannot be a Token of
ber in this Caſe performs for the Traveller, in for- a ſubſequent internal Act, which perhaps was not
bearing to take away his Life unjuſtly, cannot be then thought of. And upon this Account, they to
call’d a Good. The abſtaining from an Injury, ought make ſuch a Promiſe Valid, require a new Verbal
not paſs for a Benefit:And we are then onlyſaid to have Promiſe and Acceptance. Grotius (b) offers a inid-
done fome Goud to a Man, when we have conifer'd dle Judginent, that 'tis indeed abſolutely neceſſa-
red and preſerved fome which he before enjoy’d; ſubſequent internal Conſent; becauſe, the other
of-have deliver'd him from fome Evil or Danger, Party would elſe have no Aſſurance of his Right;
which fell upon him without our Fault (4). As to but there is no Neceſſity the Signs ſhould be Verbal
,
HT
...no
ola
Mr. Barbeyrac's NOTES on S 13.
(1) See Lib. 7. Ć.11. S 7.
1 cdo
(2) For, as our Author adds, nothing hinders but that a Man may be both wicked and imprudent at the ſame time, accord:
ing to the Saying of Menander recorded by Stobąus, Serm. 2. 'Acuraózesón ésiv mouneia, Wickedneſs is a thing that always wants
Reaſon and Conſideracion,
(3) The Words of the Roman Ambaſſadors ro Marcius Coriolanus make to our purpoſe as they are cited by Dionyſius Halicar-
naſſenfis, as at (**) in the Text.
(4) And therefore it was a fooliſh Excuſe ailedged by Polycrates in Herodotus, 1.3. p. 112. Thal. Edit. Græc. H. Steph. when
he pillages his Friends and Enemies without diſtinction, that to reſtore to his Friends what he took from them, would be a greaca
er Obligacion, than if he had altogether forborn the Injury.
99341girio
600 Mr. Barbeyrac's NOTES on S. 14.
(1) There is among the General Rules of the Roman Law a Maxim, which appears quite contrary, Quod initio vitiofum eft, non
poteft traktu temporis convaleſcere
, Digeft. le so. civ. 17. De Diverſis Reg
. Jur. leg. 29. And this Maxim is afterwards applied
to the making of an Heir, Quæ ab initio inutilis fuit inſtitutio, ex post-fatto convaleſcere non poteſt, Ibid. leg. 210. But we may
cern from
divers examples of the Roman Law, that this Principle has not always been followed, even in the matter of Wills
.
See Digeft
. I. 12. tit
. 1. de Rebus Creditis, &c. leg. 12, &c. and Diony). Gothofredus upon the Rules quoted above, as allo Mr. Dau.
mats Civil Laws in their Natural Order, Part 2. 1. 1. tit. 16 Set. 2. $ 31.
(a) Cap. 14. (b) Lib. 2. C. II, $ 20.
boilags
ſince
CHAP. VI.
71
making Promiſes and Pacts.

fince others may ſerve as well to the purpoſe; as lieceſſary; in as much as this leſſer Sum may per
luppoſe the (2) Promiſer underſtanding his Error, or haps no ways anſwer his Occaſions, or turn to his
being deliver'd from his Fear ſhall voluntarily give Profit; and therefore unleſs this expreſs Acceptance
what he engaged for, or if the thing be already given, intervened, he ſhall be reſponſible only for ſuch a
Thall not endeavour to recover it, when he has con- Sum as he firſt ask'd me to ſupply him with (3).
venient Means; or ſhall treat afterwards with the It may not here be amiſs, to conſider Plutarch's Ob-
other Party, about the ſame thing as he would a- ſervation, Sympoſ. 1.9. 4. 13. p. 742. B. Edit. Wech.
bout any thing elſe, which the faid Party lawful. That the words of the Perſon that propoſeth the
ly poſtéſſes
. To which Decifion we readily Sub- Conditions, have much more Power and Authority,
fribe.
than his to whom they are offer'd, in as much as he
XV. We are farther to obſerve, That to the ren- has no Liberty of adding to them.' That is, becauſe
dring of a Promiſe good and valid, there is requi- the latter can obtain no Right, but what reſults
red, not only the Conſent of the Perſon who makes froin the Conſent of the former. If the Promiſer
it(1), but likewiſe of him to whom it is made (a)(2); fhew his Agreement to the Requeſt of the other
and this latter Conſent too (as well as the former, Party, barely by Nodding, or any other Sign of the
muſt be expreſs’d by Signs ſufficient; and for this a like Nature, it ſhall be ſuppos’d that the Requett
bare Nod will ſerve, if the thing offer’d, either be a was tacitly repeated (4). Add. Grot. 1. 2. c. 16.
matter of free Bounty,or have been before requeſted. f. 32.
For if the other Party do not Conſent,or do abfolute Add. l. 3. D. de pollicit. Vid. D.1. 50. tit. 12. de pol-
ly reject the Propoſal, the thing promiſed ſtill re- licit. Whence ſome have concluded, That to render
mains in the power of the Promiſer; though he had a Promiſe Valid, the bare Ac of the Promiſer is fuf-
Sworn to part with it; for even an Oath cannot ficient. Grotius (1. 2. C. 11. f. 14.) anſwers, That a
transfer a Right before Acceptance; and has only Promiſe once made cannot indeed be revok'd; ſo as
this effect, That it makes it unlawful for me to re always to lie ready for Acceptance,tho’ before Accep-
voke my Offer, till I am aſſured of the other Man's tance, the Obligation is not fully contracted.But thoſe
Refuſal. For he that proffers any thing of his own who look more cloſely on that Paſſage in the Civil
to another, does neither intend to force it upon him Law may find, That Ulpian teacheth no more than
againſt his Will, nor quite to give it over, and this (5), a Covenant is the Conſent and Agreement
throw it away at a Venture; and therefore he loſes of two Perſons, but a Promiſe is only on the part
nothing of his Right and Title to it, in caſe the o- of the Offerer; where it is not denied, but that Ac-
ther Perſon refuſe to take it. If a Requeſt paſs'd be- ceptance makes even the latter Firm and Obligato-
fore-hand, it ſhall continue in Force, unleſs it be ry. And indeed the State or City, of which Ulpi-
exprefly revoked ; and in this caſe the Acceptance an ſpeaks, had before ſignified its Acceptance, in
is ſuppoſed to have been made in the very Petition; caſe the Promiſe were made on the Account of Ho-
provided ftill, That what is offer'd, be equal to nours, already granted or now deſired ; and only
what was deſired. For if a Man ask me to lend refuſed it when the Promiſe was made without
him a greater Sum, and I proffer a leſs to make Cauſe (6), Vid. 1. 1. f. 1. d.t. 1. 19. D. d. donat, And
ſuch an Engagement good, his expreſs Acceptance is again, l. 3. f. 1. d.t. Things thus deliver'd without
(2) This is determined in the Code on the account of a perſon who complained that a Bill for a Sum of Money was excorted
from him, which he upon that account paid. Quum te non ſolum caviſſe, verum etiam ſolviffe pecuniam confitearis, qua ratione, ut
vim paffus reftitui, quod illatum eſt, poſtules, perſpici non poteft, quando verifimile non fit, ad folutionem te proper age amiſa querela de
Chirographo, utpote per vim extorto, nifi do in folvendo vim te paffum dicas, (1. e.) Seeing you confeſs that you did not only give Se-
curity for, bue paid the Money, we can't ſee how you can obtain a Reftitution, as if it were forced from you, becauſe you
have complained of the Bill, as exrorted, unleſs you can aver that you were alſo forced to pay it. 1. 2. tit. 20. De his, qua vi, &c.
leg. 2. It is alſo ſaid in leg. 4. of the ſame Ticle, that Conſent after the Force offered makes the Contract valid. Si per vim aut
metum mortis, aut cruciatûs corporis venditio à nobis extorta eſt, eo non eam poftea conſenſu corroboraſtis, &c.
Mr. Barbeyrac's NOTES on $ 15.
(1) Non poteſt liberalitas nolenti acquiri, Digeft. I. 39. tit
. 5. De Donation. leg. 19. 82. Liberality can't be ateribured to a per-
ſon unwilling. And again, Invito beneficium non datur, l. 5o. tit. 17. De Divert. Reg. Jur. leg. 69. A Kindneſs can't be done to a
Man againſt his Will. See 1. 44. tit. 7. De Obligat. do A&t. leg. 55.
(2) The French changes the Order of the Author here to render his Reaſonings more clear.
(3) Ρlutarch's Greek is, Κυριότερον έται και τα προκεκλημένε λόγον οι 5 δεξάμενοι και υπακέσανες έχει κυριοι προσπθέντες.
-Farther, Mr. Hirtius obferves here, chat there is this difference becween Engagements advantageous to one Party only,
and ſuch as are for the advantage of both, that in this laſt the Promiſe muſt exactly anſwer to the Demand, whereas in the firſt
no ſuch thing is required. For if any one (as the Roman Lawyers exprefs it) ſays thus, Wilt thou give me ten Crowns ? and I an-
fiver, Tweney; I am engaged for Ten only. Bat on the contrary, it he ſays, Wile thou give ewenty Crowns and I anſwer,
Ten, I am engaged for no more than Ten; for Ten is included in Twenty, but twency is not in Ten. But in a Contract of Hire,
for Example, it the Leafor require Ten Crowns, and the Leaſee thinks he has hired for Five, the firſt is not obliged to paſs it
over for that, tho' Five be contained in Ten. on the contrary, if the Leafor believes he has Lett for Five Crowns, and the Lea-
sce underftood him Ten, this laſt is obliged to pay no more than the former meant, as the Laws following direct
. Si ftipulanti
mibi decem, tu viginti reſpondeas, non effe contrast am obligatiònem, nifi in decem conftat, contrario quoq; fi me viginti interrogante, tu
decem reſpondeas, obligatio niſi in decem non est contra&ta, licet enim oportet congruere
fummam, attamen manifeſtifimum eft viginti di
decem inege. Digeft
. 1. 45.tit
. 1. De verb. Obligat, leg 1. 84. Si decem tibi locem fundum, tu autem exiſtimes quinque de conducere,
nihil agitur. Sed etfi minoris me locata Jenſera, tu pluris te conducere, utique non pluris erit condu&tio, quam quanti ego putavi, Lib. 19.
(4) For Example, if one fays to another, Wilt thou lend me a thouſand Crowns, and I will pay thee s per Cent. Inrereſt, and
repay it in five months and he only anſwers, Yea, or, I will ; 'tis as much as if he had faid, Yea, I will lend you a thouſand
Crowns, for which you ſhall pay me intereſt at 5 per cent and repay me in five Months; and to he engages himſelf under thoſe
Conditions, and he can require no more of him, and on the other fide he can do no leſs lawfully to oblige us.
9. Vlpian's Words are theſe, Paltum eft duorum confenfus, atq; conventio, Pollicitatio
autem offerentis folius promiffum, & ideo
of illud conftitutum, ut fi ob honorem pollicitatis fuerit
falta (municipibus ] quaſi debitum exigatur
. Digeft. 1. so. cit. 17. De Pollici-
*) Si quidem ob honorem promiferis, decretum ſibi vel decernendum, vel ob aliam juſtam caufam tenebitur ex pollicitatione, fin very
fine caufa promiſerit, non erit obligatus, (i c.) If one promiſe for fome Honour conferred or to be conferred,
or for ſome other
ist Caule, he hall be obliged by his promile; but it he promiſes for no Caufe, he is not
obliged, Ibid. leg. 1. L. See alco,
Lib. 39. cic. 5. De Donat. leg. 19.
(a) Lib. 19.8 2. Digest.de Donatione.
Cauſe,
2
ſhould
cit. 2, Locati conduli, leg. 52.
$ationibus, leg. 3. in princip.

72
of the Conſent required in
Book III.
The uſe of Teſtimonies is uſual and neceffary to prove Matters of Fact. We ſhall treat of the uſe of Wir-
See alſo Pollux, l. 9. c. 6, $ 70, and Mr.
Caufe (7), are forbidden to be claim'd; becauſe the bition on himſelf of the like Nature; all which
Propriety of the things being already transfer'd on Perforinances fall under ſome general Vertue, tho
the Community, they could not properly be deli- the determinate Manner and Proportion of them
ver'd without the Publick Acceptance.
are not matters of ſtrict Precept. On the contrary,
Since in all Obligations whatſoever, there is re- ſuch Vows as only create trouble to the Undertaker
,
quired the Conſent of the Perſon to whom they are and no Benefit to other Men; we eſteem no better
directed (8), or who obtains a Right by them; de- than Idle and Superſtitious, eſpecially if they
claring (by himſelf or Deputy,) that he accepts prove an hindrance to other Duties.
the Obligation, and the Right which it transfers to A Scruple has been moved ſometimes, whether
him; and this with Signs fuíficient, to expreſs the the Obligation in the Promiſer begin at the very Mo-
inward purpoſe of his Mind; we may hence un- ment, when the Offer is accepted by the other Par-
derſtand ſomewhat as to the (9) Firmness of Religious ty; or whether it is farther neceſſary, that the Ac-
Vows, or Engagements voluntarily undertaken with ceptance be formerly made known to the Proiniſer
.
regard to Almighty God. And it ſeems impoſſible And here it is certain, a Promiſe may be deſignd,
to make theſe with any Forcé, unleſs God has by and be expounded two ways, either thus, I
engage
Revelation declared his Acceptance of them; or myſelf to do the thing if it ſhall be accepted; or thus
,
unleſs he has conſtituted ſome Vice-Gerent upon I engage my ſelf to do the thing if I ſhall underſtand
Earth, to judge of their Validity. For otherwiſe that it will be accepted. Now which of theſe two
a Man cannot be certain, whether it is the Will of Senſes the Promiſer intended, is to be gather'd and
God, he ſhould, or ſhould not bind himſelf in this preſumed from the Nature of the Buſineſs
. If the
manner; whether his Vows are pleaſing or diſplea- Promiſe were a matter of pure Generoſity, without
ſing to Heaven. Efpecially ſince the Subject of Reſtriction or Limitation, we are to believe it was
Vows muſt be ſuch matters as God has not by way meant in the former Senſe; becauſe here the Pro-
of Command, punctually and preciſely required at miſer haſtens as it were to lind himſelf, without
our Hands. For 'tis abſurd and contradictory to ſtaying for any Formality in the other Party. But
reckon that an extraordinary Performance which thoſe Promiſes are to be underſtood in the latter
is a inatter of ſtrict and neceſſary Duty; and how Senſe, which expreſs ſome arbitrary or mixt Condi
,
can we be aſſured except by Revelation, That any tion eſſential to the Engagement (10). Compare
Act which God has not enjoyn’d will be accepta- Grot. l. 2. c. 11. f. 15.
ble to him? And to engage in Vows without know XVI, It remains that we add a Remark or two
ing whether they will be receivid or not, is idle about the Signs of Conſent, which are abſolutely ne
and uſeleſs. But may we not in many caſes, rea- ceſſary to the producing of any Obligation, in as
fonably preſume on the Divine Conſent and Appro- much as the bare Acts of the Will can have no Ef-
bation? This we think can only be done in thoſe fect amongſt Men, unleſs manifeſted and declare)
things which are Indefinitely agreeable to the Law by ſome external Tokens. Of Signs, the more im-
of Nature, and therefore to the Will of God; but perfect are ſome particular Motions and Geſtures,
in which the Application to Perſons, Places and neceſſary to be uſed in Commerce, when the Par-
Times, and the Allotment of the particular Quan- ties tranſacting are unacquainted with the Language
tity are left to the Pleaſure, and the Judgınent of of each other. The more perfect are Words, and
Men. Thus we take thofe Vows to be good and juſtifi- ſuch Words as are underſtood on both ſides (1). See
able, by which a Man binds himſelf to beſtow ſuch 1 Cor. 14, 11. And to make theſe declare the Will
a Sum of Money in Charity to the Poor, or on o more clearly and more firmly, it has been a con-
ther pious Uſes; provided that ſuch an Act of Boun- ſtant Practice, both to make uſe of Witneſſes in Con-
ty be no hindrance or prejudice to any Duty abfo. tracts of Weight and Moment (2), to whoſe Memo-
lutely neceſſary. Or if he enjoyn himſelf ſet Days ry and Conſcience Appeal might be made, in Cafe
of Faſting; or reſolve to abſtain froin ſome parti- either of the Parties denied the Engagement,
cular Meats and Drinks, within a fixt Meaſure and vild at the Expreſſion, and allo (as a higher Degree
Quantity ; or if he deny himſelf the uſe of ſome of Confirmation, ) to ſet down the Terms of the
ſuperfluous Ornaments ; as the wearing of Jewels, Covenant in Writing (3). Inſtead of which the Gre-
Pearls, and Gold; or lay any Command or Prohi- cians ſometimes uſed Talies. v. D. L. 22, Tit. 4. de fide
- (7) Si quis, quam ex pollicitatione tradider at rem Municipibus, vindicare velit, repellendus eft à petitione, Ibid. leg. 3. If any
Man require a thing which he hath given to his Freemen, he is to be denied his Petition.
(8) Mr. Thomaſius in his Fundament: Jur. Nat. & Gent. 1. 2. c. 7. 8 15. draws a Conſequence from hence to ſhew the Vanity
(palliat am ambitionem he calls ic) of ſuch Authors, who ſay in their Prefaces, that 'tis to make good their Promiſes to the Publick
that they put out this or that work. And Mr. Bayle had before ſaid in his Advertiſement of his Continuation of divers Thoughts
about a Comet, that the Promiſes of ſuch Authors is not looked upon as an Engagement by Contract, nor is the Publick cong
cerned it they break their word. isitno
(9) See Mr. Le Clerc's Notes upon Gen. xxviii. 21. and Numb. xxx. 3.
(10) Theſe Terms will be more fully explained, c. 8. of this Book, $ 4.
eloping sites vp ibu tip reit Mr. Barbeyrac's NOTES on S 16.
(1) Hence it comes to paſs perhaps, (as our Author adds in his later Editions that the Turks do not think themſelves obliga
to keep thoſe Contracts or Treaties which are nor written in their own Language and Characters. See Marſelaer Legat. l. 1. c.30
has judicioully
determined, 'Utrum autem Latina, an Greca, vel qualibet alia lingua stipulatio concipiatur, nihil intereſt, fcilicet, fi
uterq; ftipulantium intelle&um ejus lingua babeat. Nec neceffe eft eadem lingua utrumq; uti, fed fufficit congruenter ad interrogatare-
Sponderc. Quia etiam dico Græci Latina lingua obligationem contrahere poſſunt. Inftit. 1.3. tit. 16. De Verborum obligat. SI.
(2) Teſtimoniorum uſus frequens do neceſſarius eſt. ad fidem rei geste faciendam. Digeft. 1. 22. tic. 5, De Teſtibus, leg. 1. in
princip. leg. 11.
zieffes, 1.sc.
C. 13. 89.
ute
(3) Fiunt enim de bis Scripture, ut quod a&um eft, per eas facilius probari potest. Writings are made in Covenants, that the
Matters of Fact may be more eaſily proved, Digeſt. 1. 22. tit. 4. De Fide Inſtrumentorum, &c. leg. 4. See Mr. Daumat's Civil Laws
in their Natural Order, Part 1. l. 1. tit. 1. Sect. 1. § 1o, doc. and 1. 3. cic, 6. Sect. 2.
Hemſterhuis's Note on it.
or ca-
TOON
lanan ito:
2393
inftrum.
CHAP. VI.
making Promiſes and Patts.
73
inftrum. For the Memory of Witneſſes may be priv'd of them by ſome Misfortune. And for this
Treacherous, or their Integrity capable of Corrup- reaſon it will become a careful Man to ſecure his Bu-
tion (4); but Writings are a much ſtronger Security, ſineſs by good and legal Inſtruments; and not to re-
both againſt Forgetfulneſs
, and againſt Unfaithful- ly too much on the bare Words, or Faith of thofe
neſs. And as for bare Words
, it is an uſual way to he deals with. Thus King (7) Perſeus (in Plutarch
elude them, by pleading that they were utter'd thro' de vitiofo pudore, p. 533. B. T: 2. Éd. Wech.) lend-
Raihneſs, before the thing had been conſider’d. But ing a Friend Money, required Security in the com-
Writings do exclude all ſuch Prevarication ; whiļſt mon Form. The Gentleman deſiring the reaſon of
they are drawing up, they ſet the Buſineſs clearly his Strictneſs; I lend according to Law, (replied
and leiſurely before the Eyes of the Contracter; fo Perſeus) that I may receive without Law; in a fair
that if he once declare his Approbation of them, and friendly manner. Juvenal, Sat, 13.
he muſt be judg’d to have yielded full Conſent to
the Engagement, and cannot afterwards pretend that Tam facile & pronum eſt Superos contemnere teſtes,
he was drawn in by Palfon or Precipitancy. Nor Si mortalis idem nemo ſciat.
are Writings liable to ſuch violent and crafty In-
terpretations as are often put upon Men's Diſcourſe; When Murena (in Appian. Mithridat. p. 214.
in which one Particle artificially inſerted, and thro' C. Ed. H. Steph.) made War upon Mithridates, and
the quickneſs of the Pronunciation palling undiſco- was accuſed by that King's Commiſſioners of Act-
ver’d, ſhall unravel and overturn the whole Affair
. ing againſt the League, he ſophiſtically denied, that
And there it is not without good Reaſon, That more he ever ſaw any League. The meaning of which
Credit is given to Authentick and Unqueſtion’d In- was, that Pompey had not indeed left Articles of
ſtruments, than to the Depoſitions of Witneſſes; ſince Peace in Writing, but thought it fufficient to fhew
what a Man teſtifies againſt himſelf, is much ſtronger his Agreement by Fałt, and accordingly had drawn
Evidence than what can be offer'd by others; and off his Army. Richerius reports of the Turks, that
ſince the Charge never lies ſo heavy upon him, as they are ſo conſtant to their Promiſe, fo ſecure of
when his own Authority is produc'd againſt him: mutual Fidelity, that in their Bargains they uſe no
Yet the Force of unqueſtionable Witneſſes muſt then Bond or Writing; but the whole Buſineſs depends
be admitted as Superiour, when they make out by on the Word of the Parties, if preſent; if not, on
fufficient Proors, that the Inſtruments produced, are the bare mentioning of their Names. Garcilaſs de
Suppoſititious or Corrupted.
la Vega teſtifies the like of the old Inhabitants of
Farther, although the Strength and Firmneſs of Peru. Royal Comment. 1. 8. c. 16. It is vulgarly
Covenants does not abſolutely depend on ſuch Wri- known, that if a Creditor ſhall reſtore the Inſtru-
tings or Deeds, in as much as they may rightly be ment of Obligation (8), or ſhall cancel or deſtroy it
made without them (5), and may as to the Law of with his own free Conſent, and with the Pri-
Nature ſtill hold good, though theſe Tokens ſhould vity of the Debtof, it ſhall be fuppos’d that the
by any Accident be loſt (6); yet in Courts of Ci- Debt is forgiven; but not if the Debtor got the
vil Judicature, where they proceed on full and ma- Writings out of his Hand by Stealth, or any other
nifeſt Evidence, the greateſt Regard imaginable is unlawful Means. . And from all this it appears that
had to Credentials of this kind. And commonly Seneca (a) (9) carries his Philoſophy a Strain too high,
if ſuch are not produc’d, the Party who ſhews ano- when he calls Bonds and Papers of Contract, by na
ther upon a Debt or Promiſe, loſes his Cauſe; better a Name than, Inania habendi fimulachra, Vain
unleſs he can make it appear, that they were once and idle Images of Title and Poffeffion.
actually in his Cuſtody, and that he ha been de-


(4) Writings on Parchment were inverted to put Men in Mind, or convince Men of their Word, the Diſgrace of Mankind,
(as Mr.de la Bruyere ſpeaks in his Characters, Chap. Of Man) which 'tis likely he took out of Seneca, (De Benef. 1. 3. C. 15.) Ad
bibentur ab utraque parte teſtes, ille per tabulas plurium nomina, interpoſitis parariis facit turpem humano generi fraudis, do ne-
quitiæ publice confeſſionem! Annulis noftris plus quam animis creditur in quid imprimunt ſigna! Nempe, ne ille neget accepiffe, quod
accepit, (i.e.) Witneſſes are produced on both ſides, the one produces a Scroll of many Names drawn up by the Scrivener.
Oh horrid Confeſſion of the publick Fraud, and Wickedneſs of Mankind! We truſt more to our Seals than Souls! Why do we
impreſs our Seals ? Left ſuch as we deal with ſhould deny what they have received. See Juvenal, Sat. 13.
(5) Si Res geſta (ſay the Digeſts, l. 22. cit. 4. De fide Inſtrumentorum, &c. leg. 5.) ſine literarum quoq; conſignatione, veritate fa-
&um ſuum prabeat, non ideo minus vilebit, quod inſtrumentum nullum de ea intercepit. See lo 5. c. 13. 9 8. following, (i. e.) If a Mat-
ter of Fact were duly and truly done without any Writings Sealed, 'tis not of leſs Force becauſe there is no Inſtrument made
concerning it.
(Nec oberit tibi amiſſio inſtrumentorum, ſi modo manifeſtis probationibus eos debitores apparuerit, (i. e.) The lofs of a Bond is no
prejudice, if the Debt can be fully proved. Cod. 1. 4. cit. 21. De fide Inſtrum, leg. 1. See alſo, leg. 4, 5, 7, 8, 10, and l. 4. cit.
19. De Probationibus, leg. 20, 21.
(7) This Nore is in the Text.
(8) See $ 2. Note 7. above.
(9) Seneca's Words are, Video iſtic diplomata, & lyngraphas, o cautiones, vacua habendi fimulachras
(2) Benef. 1. 7.C. TO.
+ K
CHAP

74 Of the Matter of Promiſes and Covenants. Book III,
C H A P.
E
of our of free Tacit Condition of the
VII:
Of the Matter of Promiſes and Covenants.
I. We are obliged to things poſſible to be done only. | VII. Diſhoneſt Bargains do not oblige, though in our
II. Promiſes of things impoſſible are void.
Power.
III. Impoſſibilities which ariſe about Covenants. VIII. Nor ſuch as can't be performed, but by ſome
IV. Whether our utmoſt Endeavour is ſufficient?
foul A&tion.
V. Whether a Man be obliged to bear Juch Afli&ti- IX. W bether things diſhoneſtly given can be recovered.
ons as are above Man's Courage and Strength? X. Other Men's Goods are promiſed in vain.
VI. There is no Obligation to things unlawful. XI. Tea, and our own, if they are under any Obliga.
tion to another,
W
are in the next place to enquire into the invincibly Ignorant; I ſeem in this caſe, neither
Mattter or Subject of Promiſes, and of Co- obliged to make good my Word, nor to repair the
venants; or to what things only we can bind our Loſs, which the other Party fuffers by the Diſap-
felves by our Word or Bargain. In this reſpect then, pointment. Eſpecially if the Posſibility of the
it'is indiſpenſibly Requiſite, that we have both a thing, were either expreſly mention’d as a neceſ-
Natural and a Moral Power of doing what we engage fary Condition, or tacitly pre-ſuppoſed on both
för ; or that the Performance be neither above our ſides (a). For Inſtance, I promiſe to lend a Horſe,
Strength, nor forbidden us by any Law. For when which at preſent is at ſome diſtance from me; and
a thing is placed within my Reach and Ability, the Horſe dies before he gets to ine ; as I cannot
and I have likewiſe a Liberty to diſpoſe of it, there here be bound to make the Horſe forth coming, fo
is no Reaſon why I ſhould not voluntarily oblige neither am I reſponſible for any Damage the Man
my ſelf to conferit on another, ſo often as I can ſuſtains, who was to have uſed him. For he muſt
by this ineans contribute to the Uſe and Advantage conceive me to have built my Promiſe on this Ta-
of human Life. On the other Hand, it would be cit Condition, provided the Horſe arrives ſafe at my
Vain and Impertinent to contract an Obligation a- Hands; which Condition failing, without my De
bout ſuch Matters, as either exceed our Strength, fault, the Force of the Promiſe links and is Ineffe-
or are prohibited by a ſtronger Obligation lying ctive
. If both the Promiſer, and the other Party
upon us; in as much as, directly and lawfully, it know the thing to be Impoflible, and know each o-
could produce no Effect.
thers Conſciouſneſs as to this point, the Engage-
II. It follows evidently from hence, That no ob- ment ſhall paſs for no better than a Jeſt
. But if
ligation can lie to Impoſibilities (1); a Sentencecom- the Promiſer only knew the Impoſſibility, and not
monly in the Mouths of all ſorts of Perſons, but the other Party, he ſhall pay to him what he loſes,
fuch as cannot fully be underſtood without a clear by being thus impoſed on. If the Proiniſer was
and accurate Examination. In order to which it careleſs, and neglected to examine and weigh his
be, in the firft place, convenient to diſtinguiſh own Strength, ſo as to promiſe an Imposſibility,
between thoſe Obligations which we voluntarily which upon due Conſideration, he might have found
bring on our ſelves by our own Act, and thoſe to be luch, the main Obligation ſhall be void;
which are laid on us by the Command and Autho- becauſe he ſuppoſed the thing to be poſſible, as a
rity Superiours. He that his own
Agreement. Yet upon ac,
Motion, binds himſelf to perform a thing which he count of his Neglect and Default, he ſhall be bound
knows to be impoſible, cannot be reckon’d well in his to anſwer the Damage which befalls the other Par-
Wits (2): For he reſolves and Engages to do that, ty, through the Diſappointment; but then it muſt
which at the failie time he foreſees he thall never be be obſervd, That the Hope and Expectation of
able to Compaſs.
Advantage from ſuch an Inſignificant Promiſe,
But it does not always follow, That he who by ought not to come under the Notion of Damage
.
Pack or Promiſe undertakes an Impoſſibility, ihall be The ſame Rule holds good in Covenants, ſo that
entirely free from all Necefſity of Perforinance, tho' he who through Negligence has bargain’d to per-
the thing it ſelf cannot ſtrictly be accompliſh'd. In- form what is impoflible, ſhall be free upon paying
deed if I have promis'd a Man ſomewhat, which I what the other Party ſuffers ; but then he muſt like-
had then good Grounds to think would be in my wiſe releaſe the other Party, from any Obligation
Power, but which is now above my Power, or will made on his ſide; or if the thing be already given
be rendred fo before the Day of Performance, by an or perform’d, he muſt either reſtore it, or offer an
Accident of which at the time of the Bargain I was Equivalent.
may 1
Mr. Barbeyrac's NOTES on Chap. VII. § 2.
(I) See l. 1. c. 5. 5 8. aforegoing.
(2) Or he deſigns to banter him to whom he is engaged. Mr. Thomaſius in his Inſtit. Juriſpr. Div. I. 2. c. 7. $ 8. diſtinguiſhes
here two ſorts of Impoſſibilities: The one of things abſolutely impoſſible to all Men, as to fly, to touch the sky with the Hand,
c. the other of thoſe which are impoſſible to certain Men only, as to have Children, to pay two thouſand or an hundred
thoutand Crowns, &c. The Rules which our Author gives hereafter about the caſes wherein one is bound to fulfil his Promiſe,
tho' of a thing impoſſible: Theſe Rules, I ſay, reſpect the laſt ſort, and not the firſt. For hethar will believe that a Man may
fly, or drink up the Sea, is as great a Fool as he that engages to do it.
(a) Vid. I. 2. 1. 3. doc. Digeſt. Si quis cautionibus, &c.
III. But

Chap. VII. Of the Matter of Promiſes and Covenants.
75
diſannull’d, if nothing has former Caſe the Pałt is reaſon Merchants and other great Traders, though
III. But farther, when the thing, at the time of through what Cauſe or what Neceflity the Man con-
making the Promiſe or Pact appearl Poſſible, and tracted fo deep Scores. And he deſerves inore or
afterwards becoines Iinpoilible, we muſt enquire leſs Commiſeration and Favour, as the Cauſe was
whether this happen'd by meer Chance, or by De- inore or leſs grievous and unavoidable. For this
fault and Deceit. In the
been perform'd on undone by meer Accident and Misfortune, are rec-
either ſide. If any thing have been already donekon'd to be in a Condition leſs capable of Mercy,
towards it by one of the Parties, the other ſhall give than others who have been driven by ſome particu-
it back, or pay the value of it (1); if neither of lar Urgency, to the like Inſolvent State. For the
theſe can be done, he is to uſe his beſt Endeavours, former took up ſo large Sums on Truſt, purely for
that the Man be not a loſer by him. For in Con- the ſake of making farther Gain and Advantage by
tracts, the firſt Regard is had to the thing expreſly them. And in as much as they profeſs the Art of
mention’d in the Agreement; when this cannot be growing Rich, as their peculiar Calling, they are to
obtain’d, it is ſufficient to give an Equivalent ; but be blamed for not foreſeeing and preventing even
whatever happens, all imaginable Care is to be u- Caſualties ; ſuch as the loſing all they are worth at
fed, that the other Party ſuffer no Prejudice. But one ſudden Stroke;
ſince they ought not to have ven-
when a Man ſhall by Trick and Deſign render him- tured their whole Effects in a ſingle Bottom. This
ſelf incapable of performing his Part, he ſhall not is contrary to the Judgment of Pliny, who thinks
only be bound to do the beſt he can, but he ought it the ſafeſt Courſe to try the Uncertainty of For-
likewiſe to have ſome Puniſhment inflicted on him, tune by Variety of Poſſeſſions. Epift. 19.1. 3. numb. 4.
as it were in ſupply to his Defect.
Ed. Cellar. King Philip (in Juſtin. l. 9. c. 1. in fin.)
Theſe Principles well applied, might determine beſieging. Byzantium without Succeſs, at the ſame
moſt of the Doubts in the Caſe of Inſolvent Debtors: time made an Inroad into Scythia; for the ſake of
A Man that falls into ſuch a Condition by Misfor- Plunder ; ſeeking ( according to the Policy of Mer-
tune, and without his own Default, is obliged only chants and Dealers) to defray the Expences of one
to uſe his utmoſt Endeavour, to give every one War with the Spoils of another.
their due. And here Equity and Humanity (2), Livy (1.40. c. 21. p. 661. in fin. Ed. Gronov.) re-
engage us to make an allowance of Time, ſo much ports of Antigonus, That being in great Diſtreſs at
as thall be neceſſary for him to look about him, Sea, when he had all his Friends with him in the
and to ſeek out all honeſt ways and means of Pay Ship, he call'd his Children about him, and ſtrict-
ment (a). For to ſeiſe immediately on all he pof- ly charg’d them both to remember themſelves, and
ſeſſes, and to ſend him and his Family a Begging, to caution their Poſterity, That they never enga-
would be a moſt unmerciful Barbarity (3). The ged with their whole family together in Difficul-
Roman Laws were ſo favourable to certain Perſons, ty or Danger.
in Caſes there ſpecified, as to order that they ſhould Yet it is plain the Ancient Romans had little re-
be condemned in no deeper Sum than they were a- gard to theſe different Circumſtances. For thus Sea
ble to make good (1). Yet unleſs the Creditor ſhall ca argues ; (Benef. 1.7. C. 16.) (5) Can you imagine our
have forgiven all that exceeds their preſent Abili- Forefathers were ſo imprudent, as not to apprehend
ties, they ſhall be bound to pay the Reſidue, upon how unjuſt it muſt be to put a Man who had waſted
the Improvement of their Fortune and Condition. a Loan in Dice or Lewdneſs, in the ſame Caſe with
Thoſe who have turned Bankrupt out of Knavery, him, who by Fire, Thieves, or fome fadder Misfor-
or ſome other way by their own Fault, may be juſt- tune, had loſt other Men's Money with his own?
ly compell’d to undergo ſome painful Puniſh- They allow'd no Excuſe, that Men might learn in
ment (4),; that their Body may in ſome meaſure all Caſes, moſt ſtriatly to keep their Faith. And it
pay for the Defect of their Purſe (c).
were more ſafe to reject the juſt Plea of a few, than
In the Caſe between the Creditor and the Debtor, to admit all to a Privilege of offering their Apolo-
there is another Point that ought to be conſider'd; gies. In Muſcovy, inſolvent Debtors are firſt found-
Matrimonio
Mr. Barbeyrac's NOTES on § 3.
(1) This is true in ſuch Agreements where the transferring Property is not concerned, as in Contracts of Hiring ; but it is noc
ſo in them, where a Right of Property is acquired, as for Example, in a Bargain of Sale. For if a thing ſold periſh by miſchance,
the loſs is the Buyer's, who has the Property and the principal Right in him, if we conſider the Principles of Natural Right.
Hence it is that the Seller keeps the Price of his Goods, or cauſes the Buyer to pay it, tho' he has never received them. Titius
Obferuat: 230. See what is ſaid, l. 5. c. 5. $ 3.
(2) See what I have ſaid in my Treatiſe of Sport, 1. 3. c. 5.833
(3) Such were, for Example, the Husbands who were obliged to pay back their Wives Portions. Maritum in id quod facere
poteſt condemnari exploratum eſt,'(i.e) It is a known thing to condemn the Husband to do what he can, Digeſt. I. 24. cit. 3. Soluto
Dus quemadmodum petatur, leg. 12. The Men of War, l. 42. tit. 1. De Re judicata, &c. leg. 6. Dlvers Relations,
as Father and Mother, Patrons, their wives and Children, as alſo their Fathers and Mothers, Givers, Fathers in Law, Ibid. leg.
16, 17, 19, 21. See alſo leg. 49, 50, and l. 42. tit. 3. De ceſſione Bonorum, leg. 6, 7,
(4)-
Cujus Fortuna laborans
Whoſe deſ p'rare Fortune, ſince it can't by Gold
Non potis eſt au o venales ſolvere noxas,
Redeem ics Crimes, Bonds therefore it muſt hold.
Ar&tatur vinclis
Gunther. Ligurin. l. 8. near the End. See Mr. Hirtius's Paræmia fur. German. I. 1. c. 89.
(5) Seneca's Latin is this, Quid tu tam imprudentes judicas majores noſtros fuiffe, ut non intelligerent iniquiffimum efle, eodem loca
eum haberi, qui pecuniam, quam à Creditore acciperet, libidine, aut alea inſumpſit, & eum, qui incendio, aut latrocinio, aut aliquo caſu
triftiore, aliena cum ſuis perdidit? Nullam excuſationem receperunt, ut homines ſcirent fidem utrique præftandum, fátius enim erat :
paucis etiam juſtam excufationem non accipi, quam ab omnibus aliquam tentari. De Benei. l. 7. c. 1o.
(a) See Matth. xviii. 25, 26. (6) Vid. I. 12. Digeſt. De Soluto Matrimonio, 1.6. I. 16, 17, 19, 21. Digeft. De Re judicata,
1.49, so. d. t. 1.4. 1.6.1.7. Digeft. De ceffione Bonorum. (c) vid. Gell. 1. 20.c. 1.circa fin
, as likewiſe Appius's Diſcourle in Dio
nyf. Halicarn. 1. 5. p. 330, doc, Edic. Lips. in fin. compared with Livy, 1. 8. c. 28.
+ K 2
1y

76 Of the Matter of Promiſes and Covenant s.
Book III
.
ly whip’d, and then compelld to be Slaves to their Condition of returning the like. But now the Will of
Creditors (7).
him who offers the preſent Good, has for its abſolute
IV. It is proper for us on this Subject to examine Object; any return of good equal in Value to the thing
the Notion of Mr. Hobbes (a), which he ſeems to exprefly promis’d by the other Party; but the thing it
lay down in too general a Manner, That Covenants Self is affected, not ftri&tly and abſolutely, but under
do not oblige to the thing it ſelf, but only to the utmoff Condition of its Poſſibility. Yet on the contrary, I
Endeavour. That is, ſince we not obliged to Im- would chuſe to ſay, That whoſoever exhibits to ano-
poflibilities, and ſince nothing is in our power but ther any preſent Good, does abſolutely and directly
our utmoſt Endeavours, what we cannot by its means bend his Deſire towards that particular future Good,
obtain, is to us impollible, and conſequently is ex- expreſs’d in the Bargain ; and this as well in Contract
cluded from being the Matter of Obligation. But of giving, as in Contracts of doing. For the Law of
he ought indeed to have inſerted this Condition, Nature doth not feein to afford Ground for that Di-
Provided we have not by our own Fault or Frand, In- ftinction which fome make, that in Bargains of giv.
capacitated our ſelves for ſuch a Performance. For if ing, a Man is preciſely obliged to give (1), whereas
this be our Caſe, the Obligation is not ſatisfied by in the Bargains of doing, he is not preciſely obliged
our utmoſt Endeavour ; but when our power of Pay- to do the Work, but may be releas'd by a Commu-
ment ceaſeth, our Puniſhment muſt come in to make tation. But when he cannot obtain what was pe-
up the reſt. Therefore the Affertion ought to be li- culiarly promisºd, he then to keep himfelf from luf
.
mited to thoſe Covenants
, in which upon account fering Loſs, deſires ſomething of equal Value. And
of fome Thing or Aktion at preſent reach'd out un- if this too cannot be paid him, nor the thing reſtord
to us, we promiſe fome future Labour or Aſliſtance. which he firſt gave on his Part, the other Man ful-
For here, ſince fuch Futurities are uncertain to hu- ly ſatisfies his Obligation, by offering what his A-
man Foreſight, ſo that either our ſtrength may bybilities will admit of.
fome Accident be impair'd, or ſome unaccountable But, in Contracts of Lending, and others of the
turn of Things may render it extreamly difficult, if fame Nature, it will not hold that the Debtor is
not utterly impoflible for us to meet with an Op- freed from his Obligation, by uſing his utmoſt A-
portunity of Performance; and farther, fince our bility and Endeavour. For when ally thing is taken
Sagacity may be miſtaken either in rating our own in way of Loan, (eſpecially if it be not in a caſe
Power, or in weighing the Difficulty of the Un- of extream (2) Neceſſity) the Creditor ſuppoſes
dertaking, the Contractors muſt for theſe Reaſons that the Creditor is both willing and able to pay,
be ſuppos'd to have been mindful of their own frail and the Debtor himſelf pretends as much; and on
Nature, and conſequently not to have agreed on a- this Suppoſition, the whole Contract is founded. If
ny future Action or Work, but with this Condition then at the time prefix'd for Payment, the Debtor
and Proviſo, That their Abilities and Opportuni- with all his Stock and Effects cannot make up the
ties remain'd the fame, and that they had not over- Suinın; though here it be at preſent impoſſible to
rated their preſent Strength. In theſe Caſes then, ſqueeze more out of him; yet he ſhall ſtand
enga.
he who has us’d his utmoſt Endeavour, inay be right- ged to make good the reſt hereafter (c).
ly ſaid to have done his Duty; eſpecially when in In ſimple Promiſes, when he engages to do a thing
the very midft of the Performance
, fome croſs Ad- which is not, as to the Event, fully and abſolutely
venture which we could not poſſibly have prevent in our Power; ſome ſuch Condition as this ought
ed falls in, and either quite intercepts, or wreſts a- always to be underſtood, if Fortune favour. me, if
ſide the Fruit of our Labour.
no croſs Accident intervene, or what better becomes
That the Rule will hold good, only in this kind the Piety of a Chriſtian, if it pleaſe God (d). But
of Covenants, is farther evident from what Mr. Hobbes poſitively to ſwear or vow that we will accom-
diſcourſeth immediately before. We very frequent. pliſh ſuch an uncertain Enterprize, is not only moſt
ly, ſays he, contract about ſuch things as then indeed extravagant Rafhneſs
, but moſt wicked Preſumpti-
feem pojille, but which afterwards we find to be im- on. Such was the Oath of Labienus and his Party,
poffible (1), yet this does not free us from all Obligati- recorded by Cafar, by which they engaged them-
on. And the reaſonis, becauſe he who promiſes an Un- ſelves not to return into their Camp without ob-
certainty hereafter, receives a preſent Good, on the taining the Victory (e).
(7) Among the Athenians alſo inſolvent Debtors were given to their Creditors to be made their Slaves, or to ſell them into
Foreign countries, and many were forced to ſell their Children ; but Solon aboliſh'd that inhumane Cuſtom. See Plutarch in his
Life. Some alſo have thought, that among the Romans there was a Law of the 12 Tables, which allowed Creditors to cur thelr
Debrors in pieces, and part them among them, which Opinion is ſupported by the Authority of Quintilian, Inſtit. Orat. I. 3. c. 6.
Aul. Gell. No&t. Attic. 1. 20. C. 1. and Tertull. Apologet. c. 4. But Mr. Bynkerſhock proves fully in his Obſervations, I. 1. c. 1, that
it allowed only the Sale of his Perſon to his Creditor by way of Auction. We may compare with this Book a Memoir found in
the A&ta Eruditorum at Leipſick, Febr. 1710.
Mr. Barbeyrac's NOTES on S 4.
(1) It is a Principle of the Roman Law, Si minus, quia non facit, quod promiſit, in pecuniam numeratam condemnatur, ficut evenit
in omnibus faciendi obligationibus, (i.c.) If a Man performs not his Promiſe, he is fined a certain Sum, as is uſual in other Obli-
gations of doing a thing. Digeſt. I. 42. tit. 1. De Re Judicata, &c. leg. 13. $ 1. Secundum quem Celſus ait poffe dici, juſta aſtia
matione fa&ti dandam elle petitionem, (i e.) According to whom Celfus fays it may be affirmed that the Defire may be anſwered
by the Value of the Deed, 1.45. cit. J. De Verbor. Obligat. leg. 72. in init. But this is obſerved at this day more in many places,
and in the Roman Law there are divers Limitations about it, as Mr. Hirtius obſerves, with others before him, that the Reaſon of
this Maxim was, That the Romans eſteemed it a kind of Slavery to be conſtrained to do any thing for another. Et ſunt quidem be
Pæne, fi quis generaliter tra&tare velit, inciviles, invitum hominem jubere facere, quod facere non poteſt, (i. e.) They are Puniſhments
,
generally ſpeaking, unfit for Sociery, to force a Man to do that againſt his Will which he cannot do. Digeft. 1. 48. tit. 19.
De Pænis, leg. 9. $ 10. See Vinnius upon the Inſtit. I. 3. cit. 16. De Verbor. Obligat. $ 7. And Mr. Thomaſius's Diſcourſe De Pres
tio affe&t. c. 2 8 4. roos
(2) See my Treatiſe of Sport, 1. 3. C. 5. $31.
(a) De Cive, c. 2. 1. 4. (b) It muſt be ſuppoſed that we have not had Opportunity of making Tryal. (c) See Matth. xvii.
25, doc. (d) See James iv, 15. (e) Caſar de Bel. Civ. 1. 3. c. 87. n. 6. Add Afts xxiii, 21.6 Selden. de J. N. & G.1.4. c. 7.
V. There

CHAP. VII.
77
of the Matter of Promiſes and Covenants.
V. There is another knotty Queſtion propoſed of Mankind, eſpecially of the military Sex, to ſu,
by Mr. Hobbes (e), which we ought here to diſcuſs, ſtain a probable Danger of Death, ſtill joyn'd with
Whether a Man can by Covenant oblige himſelf to a Power of reſiſting to the laſt. And there farce
fuffer ſuch Evils, as exceed the ordinary Strength, ever happens ſuch a Caſe in War, that ſome Per-
and Conſtancy of human Minds; for Inſtance, whe- fons muſt be thrown away, and offer’d up as Victims
ther he can bind himſelf not to reſiſt another, who to the Enemy, without a Liberty, and an Oppor-
ſhall go about to kil or to wound him. Now who, tunity of defending themſelves by Courage or by
ever cloſely and carefully conſiders this point, will Craft
. So that it appears from the Neceſſity of pre-
be able to diſcover on what account Mr. Hobbes ferving Commonwealths, and from the uſe and pra-
thought good to take the Negative Side; Namely, ctice of all Nations, That whenever it is Requiſite,
to ſhew that bare Pacts, are not a fufficient Guard a Commander may lawfully enjoin a Souldier, to
and Caution, to the Security of Mankind; and oppoſe the Enemy in ſuch an aſſign'd hiin Station
that 'tis not enough for a Man to engage by Cove- to his laſt Breath, though 'tis probable he may die
nant, that he will freely undergo due Puniſhment, upon the Spot; and may as lawfully inflia Capital
fo often as he ſhall commit an Injury; but for the Puniſhment on thoſe who ſhall quit their Poft, after
preſervation of Peace in the World, it is farther ſuch an expreſs Order to the contrary. For he that
neceſſary that Civil Governments ſhould be eſta- liſts himſelf in the Number of armed Men, does by
bliſh'a, which may bring Offenders to Juſtice, tho' that Act lay aſide all Claim to the Excuſe of Natu-
againſt their Wills. Which Principle we acknow- ral Fearfulneſs
, and is bound not only to enter the
led to be moſt juſt and true, and ihall enlarge upon Field, but likewiſe, not to leave it, without the
it in its proper Place. At preſent it may be worth Order of his Leader. Neither is there any Abſur-
our while to examine more nearly the Arguments dity in that Martial Puniihment of killing a Man,
which he produces. He ſays then, No Man is by any becauſe he declined being killed. For is it not much
Covenant which he ſhall make, obliged not to reſiſt a worſe to ſuffer ignominiouſly under the Hand of the
nother, when he offers mortal Violence, or Wounds, or Executioner (1), than to fall with Honour under
any bodily Miſchief. For here is implanted in every the Sword of the Enemy (2). Add. 1. 1. f. 28. De
one the higheſt degree of fearfulneſs, by which he ap- Senatuſconſulto Silaniano & Claudiano, &c. By one
prehends the threatned Evil, as the
greateſt Imaginable, of the Roman Laws, Servants who preferr’d their
and therefore by a Natural Neceflity
, flies and avoids own Lives before their Maſters were puniſh'd with
it as much as poſible ; and is ſuppos d incapable of do- Death, D. B. 29. t. 5. We muſt add, That in Caſe
in otherwiſe. When he is arrived at ſuch a beight of a Perſon be of ſo weak and cowardly a Temper,
Fear, it cannot be expe&ted but that he will conſult his as to ſhrink at thoſe Dangers which the common
own Safety by Flight or by Combat. Since then no Hardineſs of Men is able to ſuſtain ; his peculiar In-
Man can be obliged to an Impoffibility, thoſe to whom firmity of Mind ſhall by no means abſolve him
Death, or Wounds, or other corporal Pains are pre- from his Obligation.
fented, and who have not Conſtancy enough to bear them, Mr. Hobbes proceeds to obſerve, That ſince we
are not bound to venture the Tryal. Upon this Argu- dare truſt him, who is bound to us by Covenant, whilſt
ment, we may remark, That to ſuffer Death with we lead Criminals to Execution in Chains, and under
out Reluctancy, is not a thing abſolutely beyond Guards; it ſhould ſeem that they are not by Covenant
human Strength. And therefore if God has Com- ſuficiently obliged to Non-reſiſtance. The Remark in
manded us to lay down our Lives, rather than com- moft Caſes is true (3), yet ſometimes Perſons really
mit ſome particular Action, no doubt but we are bound by Covenant to us, are not ſo abſolutely
ftri&tly bound to yield a ready Obedience. But thus truſted but that we think it expedient to provide a-
much we are willing to acknowledge, That ſince ſuch gainſt their Perfidiouſneſs, by a Security of armed
a Degree of Conſtancy is beyond the Strength of the Men (b). He adds, A Covenant of this kind would
generality of Men, no one ſhall be preſumed to be uſeleſs
, a Man indeed may Covenant thus, Unleſs I
have bound himſelf by his own free Covenant to do this or that in the appointed day, kill me; that
ſuch a rigorous Task. For human Laws and hu- is, you ſhall have a Right of proceeding to Capital Pu-
man Contracts, ought all to be made with an Eye niſhment againſt me upon my Default ; but to Covenant
and Regard to human Infirmity.
thus, unleſs I do ſo or ſo, I will not reſiſt you when
Yet this Conſideration ought not to be drawn ſo you come to kill me, is a thing both unpractiſed and
far as to prejudice the Force of Military Diſcipline; infignificant. He proves his Point after this man-
asif a Souldier under imminent Peril of Death might ner. “ Such a Covenant inuſt be made, either be-
defert his Poſt, upon Pretenice, that a Man cannot be tween ,a State and a Subject, or between two
obliged to undergo Death, as being a thing Impofíble
. « Subjects of the fame State, or between two Per-
For we deny that it is a thing above the Fortitude “ fons living in a Condition of Natural Liberty.
Mr. Barbeyrac's NOTES on 6.5.
(!) This proves, that when a Puniſhment is once fixed, it is better to die fighting courageouſly, than run the riſque of the
Scaffold or Halter, but this doth not prove, that there is nothing abfurd or unjuſt in eſtabliſhing ſuch a Puniſhment. To clear
this we muſt affirm, That it is ſometimes neceſſary that a Man expoſe himſelf to Dangers, yea, to Death, for the Preſervation
and Defence of many others, the Safety of the Publick being to be preferred before our Private. And when one is engaged, as
in this caſe of which we are ſpeaking, and many others, we have no reaſon to complain of him that inflicts the Puniſhment, to
which we have Openly or Tacitly confented, if we perform nor our Engagements. See what is ſaid 1. 8. c. 2. following:
(2) Servi quoties Dominis fuis auxilium ferre poffunt, non debent eorum faluti ſuam anteponere --Ultimum itaque fupplicium pati de-
bet [ Ancilla, cui Percusſor Domine mortem minatus erat, li proclama let) vel hoc, ne cateri servi credant, in periculo Dominorum fibi
quemq; conſulere debere.
(3) See what is ſaid I. 8. c. 3. & 4. Note 8.
(a) De Cive, c. 2. f. 18. (6) Senec. Thyeſt. v. 644, 645, 646.
Arx urbem premit,
A Caſtle awes a Town,
Et contumacem regibus populum ſuis,
And holds a People, ſtubborn to their Kings, under the ſtroke.
11
Habet ſub i&tu.
In

78
HUL
CC
co
CC
CO
૮૮
(C
6,
In the firſt Caſe it would be uſeleſs, becauſe 'tis applied to the Caſe of two diſhoneſt Evils, or of two
enough to ſecure to a State the Power of puniſh- Evils, the one diſhoneſt, the other unprofitable
. For
ing Offenders, if each particular Subject engages of two Evils of Commiflion, we are to chuſe nej-
by Oath or Fealty, that he will not forcibly de- ther (5). But
it ſometimes happens, that we cannot
“ fend or reſcue any Perſon, who ſhall be thus led fulfil two Affirmative Precepts
, the Omiſſion of
to fuffer Juſtice. In the ſecond Caſe it would be which feparately conſider’d, would be ſinful, yet
“ alike impertinent; becauſe in Civil Governments upon their meeting together the Omiſſion of one of
private Men have not the Right of killing. In them is look'd upon as lawful. And in this Caſe of
the third and laſt Caſe, it would be of no more the two Evils of Omiſion, the leſſer is to be choſen;
“ uſe or force than in the former ; becauſe if the or rather the interfering with a more noble Pre-
“ Parties covenanted, that one of them ſhould be cepț, ſhews the Omiſſion of the leſs noble Precept
“kill’d upon Non-performance, a preceding Cove- to be no Evil or Sin. For in all inferior and fub-
nant muſt be ſuppos’d to have paſs’d, importing ordinate Laws, this Reſtriction is ever underſtood,
" that he ihall not be kill'd before the Day fix'd So far as we can comply with them, and not intrench
“ for Performance. For according to his Hypothe- on Engagements of a higher Nature. Thus not to
ſis, in a State of Nature, before any Pacts have been obey God, and not to obey the Civil Magiſtrate
,
introduced, each Man hath a Right of killing each if taken afunder, are both notoriouſly Sins ; and
Man elſe. “ Therefore upon default of Perfor- yet, ſuppoſing both the Obligations cannot at once
mance,on the ſet Day there returns a Right of War, be anſwer’d, as when the Magiſtrate commands any
or a Hoſtile State, in which it is lawful for any thing contrary to the Divine Law, in this Cafe
,
“ Man to attempt what he pleaſes againſt another; Diſobedience to our earthly Governours ceaſes to be
" and conſequently the Right of reliſting will re- Evil; becauſe that Law which binds us to conform
turn at the ſame time. I would rather chuſe to to the Will of human Sovereigns, is always under-
eſtabliſh the Truth of the 'Aſſertion another way, ſtood with this Proviſo and Condition, that they en-
by ſaying, that the Force of Covenants if ſtrain'd join nothing repugnant to the Laws of God.
to the higheſt, does reach ſo far, as not only to lay We are in many Caſes likewiſe permitted, rather
on the Parties an intrinſical Neceſſity of performing to chuſe the bare Execution of another Man's Sin (6),
the Conditions, but likewiſe to give each of them or a Concurrence by way of Inſtrument, than fome
a Right of compelling the other to a Compliance (4), Evil, very prejudicial, or very grievous to be born,
in caſe he draw back, by propoſing and preſenting with which we are threatned upon Refuſal. Which
fome Evil. And that therefore every Covenant may Point we have elſewhere more Iargely diſcufs’d.
be reſolv'd into this Senſe, I engage to do this or this Neither is it allowable, as was juſt now hinted,
for you, if I fail,you ſhall have a power of compelling me to make any ſuch Compariſon between an Evil,
by violent Means
. Now to add a ſecond Covenant Troubleſome or Damageable, and a Sin, ſo as to
about Non-reſiſtance, would here be uſeleſs and ab- chuſe the latter rather than the former; as for 11-
ſurd. For then this ſecond Covenant muſt be en- ſtance. If a Man ſhould rather act contrary to his
forc'd again by a third, including ſome Penalty, as expreſs Duty, than ſlip the Opportunity of ſome
if I relijt you, when you attempt to compel me to Per. Advantage, or ſuſtain ſome real Loſs; how poſitive
formance, you ſhall have a power of offering Violence foever his corrupt Judgment may be in concluding
or Evil to me. Thus it is plain, the ſecond Cove- the Sin to be the lefler Evil. For, were this ad-
nants add nothing at all to the firſt; for the firſt mitted, the Force and Efficacy of Obligations would
gave a power of reducing the Defailant by Violence; depend upon every Man's Opinion; and conſequent-
and 'tis as eaſie to break this as that. "What need ly would vaniſh into nothing, if I were not bound
s there then of backing one Covenant with ano to an Action, when the Omillion of it upon account
ther, when ten may as well be broken through as of ſome external Regard, appear'd to me more de-
fireable than its Perforinance. Thus it would be
The laſt Argument urg'd by Mr. Hobbes, runs but a poor Excuſe for a Thief to alledge for himſelf
,
thus, Could there be ſuch a thing as a Covenant for That he thought it a leſs Evil to lay Hands on the
Non-reſiſtance, we ſhould by it be obliged out of two Goods of his Neighbours, than to get his Livelihood
preſent Evils, to chuſe that which appeard the greater. by his own Pains and Labour. Indeed Obligations
For certain Death is a greater Evil than Reſiſtance are ſo far from loſing their Force in theſe Cafes,
and Combat. But of two Evils it is impoſible for us that they never exert it more vigorouſly; for 'tis
not to chuſe the lejjerç therefore by ſuch a Covendnt the very Nature of ſuch Engagements to produce
we fiould be tied to an Impoſibility, which contradicts in Men an intrinſical Neceflity of ſuch Performan-
the whole Nature of mutual
Engagement. Now hereces, as they would otherwiſe
be averſe to, upon out-
it is neceſſary, that the Rule about chuling the leſſer ward Conſiderations and Reſpects.
Evil, be accurately ſtated and explain'd. And this VI. To make a Promiſe or Paet truly Obligato-
properly ſpeaking, can take place only in two un- ry, it is farther Requiſite, that we have a Moral
profitable or hurtful Evils, conſider'd as ſuch. In Power of performing the thing agreed upon.
which Caſe it looks like a kind of Gain, to ſuffer if the thing be unlawful, and we conſequently want
only a Part of an inevitable Loſs or Damage: But this Power, we cannot tie our felves by any ſuch
the faine Rule muſt by no means be extended and Engagement (1) (a). For every Promiſe receives its
(4) And by conſequence the other is obliged not to refift, till he ſhall obtain his Right, otherwiſe his Right will do him do
good. See concerning this Mr. Thomaſius's Juriſprid. Divin. l. 3. c. 7. $ 88, doc.
Mr. Barbeyrac's NOTES on § 6.
(1) Palta que contra Leges, Conſtitutioneſq; vel contra bonos Mores fiunt, nullam vim habere indubitati Juris eft. Cod. de Pactis
,
leg. 6. See alſo the Digeſt. 1. 28. tit. 7. De Conditionibus Inſtit. leg. 15.1.45. tit. 1. De Verborum Obligat. leg. 35. $ 1.& leg. 123
& Inftit. I. 3. tit. 20. De inutil. Stipulat. $ 24.
(a) 'Tis indiſputably certain, that Pasts againſt Laws, Conſtitutions and good Manners, have no Power of binding Men.
C. de Paris, leg. 6. Vid. D. 28. tit. 7. de Condition. Inštitut.
one?
tarde
.
.
HOME
Force
Chap. VII. Of the Matter of Promiſes and Covenants.
79
pro.
en ;
Force from the Ability of the Promiſer (27)and never Abſurd and Contradictory, that an Obligation which
reacheth farther, or a Man cannot bind himſelf derives its Vertue from the Law, ſhould put us un
with any Effect to a Buſineſs which he wants Abi- der a Neceility of doing ſomewhat which the Law
lity to compaſs. But now the Law by forbidding abſolutely prohibits? And when we are once plac’d
any Action, takes from us the Moral Power or Abi- in Subjećtion to Laws, the bare Act of our own
lity of ſetting about it, and of entring on any Ob- Will is not ſufficient to repeal or to evade them.
ligation to perform it. For would it not be moſt Therefore he who promiſeth a thing unlawful, fins,
(?). The validity of unlawful Agreements not being ſufficiently explained by our Author, who has created of it too generally,
and without regard to ſuch true Principles as the Solution of divers Caſes contained in it depends on, I have thought fit to pro-
pound ſuch Medications as I have had about this Subje&, ever ſince the Firſt Edition of this book, under theſe Heads:
1. That every Act which is attended with ſomething, contrary to the Rules of Vertue, is not invalid upon that account
barely, provided that the thing in which we are engaged be innocene in it felf, it implies, that one or other of the Concra
åters, or both of them, offend in certain reſpects, viz. the Engagement, without conſidering the Parties, is not accompanied
with all the Qualities of Right. Not to ſpeak of ill Motives, which render the moſt innocent Actions criminal. As for Example,
A Merchant who deals in contreband Goods, may act againſt his own and Families intereft, without being obliged to perform the
Bargains he has made for them. A Vintner, who ſpends all his time in drinking with Drunkards, certainly does ill, as well as
Treatiſe of Games, but that does not hinder, that ſuch as have gained by fair Play, may lawfully take their Winnings, and ré
quire what is due to them. Further, we oughe to conſider that the End of a Law which forbids certain things, is not only
to make void all that may be done upon that account, but to hinder their Commiſſion, and, above all, to ſtrip them of their
per and immediate Effects, eſpecially if they are of any continuance. So, for Example, if a Judge, who is corrupted, gives an
unjuft Sentence, he, in whoſe Favour je is given, may in Conſcience take the benefic of the Judgment; but if the effect of an
Engagement contracted by means of ſome unlawful thing, exiſts entirely, the Law will not authorize it, but leaves the things in
the State they were, and denies the Contracter irs Protection, as not deſerved by him. This being laid down, we muſt
II. Diſtinguiſh becween that which is contrary to Natural Right, and that which is unlawful only, becauſe it is forbidden by
ſome Civil Law. As to thoſe ſorts of Agreements which proceed from the firſt ſort of things unlawful, I ſhall reduce them to
thele following Rules. 1. If after any one has engaged himſelf in a thing unlawful in it felf, he will not perform it, he to whom
he is engaged can't force him, and he can't reaſonably complain that he has broke his Word, whether he hath got any thing by
The Reaſon of it is not only becauſe (as our Author ſpeaks very well) the Lawgiver by forbidding it takes away all
liberty to do it, and by conſequence alſo all Right of requiring it of any perſon whatſoever, but alſo in every Matter wherein he
is engaged contrary to his Duty, it may be preſumed that he did not give his full and free Conſent, eſpecially if he be to act
any enormous Crime, as if a Man promiſe to blafpheme, or commit Sacrilege, or Perjury, or murder a Man, 'doc. When then
he comes to repent of his Criminal Engagement, 'tis not a bare Preſumption, though that be ſufficient, but 'cis an infallible fogu
that he did not think that he promiſed ſuch things, and he to whom he promiſed them ought to acquit him for that Rcaſon,
fince 'tis the very ſame which we all make uſe of in not keeping our Word. If he has got nothing by it, he has loft nothing, tho
he deſerves it. But if he hath given any thing, as it was under a Condition, and that ſuch an one as is thought morally impoſ-
fible, he muſt reſtore it, becauſe it was not given with any regard to him, and ſo much the more, becauſe he can't keep it with.
out giving ſome Reaſon to believe that he does really repent; and that to his fault in promiſing he adds another of having a dea
fign of making an advantage of his Error, and cheating him of his Şubſtance. Reftitution is in this caſe indiſpenfibly necef-
fary, fince he that gave it thought he did well in promiſing a thing upon a bad Foundation; as it a blind perſon through
a falſe Zeal ſhould promiſe another to change his Religion againſt the Dictates of his own Conſcience. 2. If he whom we have
engaged to commit a Ctime, doch actually execute it, we are not obliged to pay him what we have promiſed him. This were
to reward a Crime, and encourage thereby not only him that has already broken che Law, but others to break it hereafter for the
like Motives. On the other ſide, he to whom the Promiſe is made, may and ought to know, chat he does not think it a thing
to which any Man would engage himſelf with mature Deliberation, and if he pretends certainly to enjoy the Reward of his
Crime, he is a Fool to truſt to a bare Promiſe. The only reaſonable Foundation for hopes that a Man's Word will be kepr, is
the Honeſty of him that gives ir ; and can we repoſe any Confidence in that Man, who requires things contrary to Honeſty?
How faithful foever he may be believed, who expects us to keep our Engagements, in that he has ſollicired us to do an ill thing,
have we not Reaſon to think that he will no more fcruple to break his Word, chan to require what he propoſed, when we gave
him ours? He certainly offends againſt Charity, who will oblige any Man co do an ill thing for a Reward ſake. But ſince it be-
longs to us to reject his Propoficion, and we are indiſpenſibly obliged ſo to do, he can't require the performance of our Promiſe
upon a presence that we do him an Injury, or fruſtrate his Deſign; becauſe, tho' he ſeems to be injured, he muſt blame himſelf
for it. As he ought to repent that he hath attempted with too much Succeſs, ſo he muſt preſume that we promiſed but looſely,
and are left to hearken to our own Paſſions. 3. But when we have given any thing on the occaſion or proſpect of an evil Action,
we can demand nothing again from him who hath received it. For when the Wickedneſs is done, there is no help; we do noc
render our felves more culpable by leaving that which is not in our power to take away. When there is only a bare Promiſe,
the Will of transferring the thing promiſed upon that account,muſt not be thought full and entire: We promiſe much eaſier than
perform, and when we have promiſed on the view of ſome Criminal Action, there is a ſpace before the Execution following to
prefume he may recant his ralh Engagement; but the fame Moment that he delivers the thing agreed on, he ſtrips himſelf abſo
lutely of the Right of Property, and he to whom he gave it, acquires ic, by a Title diſhoneſt indeed, but not unjuſt in relation
to us; becauſe it ſhews the ſame Conſent of the Proprietor as if he had done ſomething honeft or indifferent. The validity of an
Alienation conſidered in it ſelf doch nor depend on the Nature of the Subject for which we pare with a thing in reſpect to another,
Let the Morive be good or nor, we are Maſters of our own Goods, and may diſpoſe of them as we pleaſe ; all the abuſe of them
is
, when we beſtow them not with a proſpect of ſomething honeft, or at leaſt indifferent. If a transferring of Property becomes
null only becauſe there was ſomething diſhoneſt in the ſubject
, we Thall eaſily find a thouſand Pretences to elude the moſt lawful
Contracts. A Man, for Example, who has borrowed Money at the moſt reaſonable Intereſt
, may refuſe to pay any Intereſt, or
require what he hath paid, under a presence that he believes paying of Ufury unlawful, and contrary to Natural Right. Buç
fays Mr. Titius Obſerv. in Lauterbach 354) one of the Contracters gains, and the other loſes; and why ſhould either of them
have any advantage, fince they both fin? 1 anſwer with our Author, $ . That he that hath given, believes himſelf to have re.
ceived a thing of equal value. As is the Price, fuch is the Pay. 'Tis not material, whether in the main there be any advantage
eis fufficient that the pleaſure of Satisfaction is reputed for a real Gaie. Further, tho' if we conſider him who hath received,
that he deferves no Reivard for his Crime, no more doth he deſerve to recover what he hath given. For he that rewards ano
ther for committing a Sin, is commonly eſteemed, and that with reaſon, more to blame than he who ſuffered himſelf to be cor,
fupted, becauſe he commitred the wickedneſs with more deliberation, and bribed a perſon to do Evil, who perhaps would not
have been guilty of ſuch a foul Action. To deprive a Man then of all Right of recovering what is actually given for an Action
evil in its own Nature, it may ſuffice, that the Acquirement was made near to the Rules of Contracts uſed in Cafes honeſt or inno-
cent, that is to ſay, There was no Fraud nor Force practiſed on the pare of the Receiver, and the Price was not exorbicant. But
be further ſaid, Can any Man in Conſcience retain the infamous Reward of the Crime he has committed? No; without
doubt. If we fuppofe a perſon to examine himſelf, and conſult his own Conſcience, the Queſtion is needlefs : For fuch an one
can't buc repent
, and then he will neither regard nor demand the Reward of Iñiquity, nor keep it if he has received ic already.
But if it be reſtored, it will not fol'ow that he has any Right to require it; and if he knows that he may require what he has gi-
men on this occaſion, he may have recourſe to thoſe Means which are proper to recover what another refuſes to give. The Care
has place chiefly in the independence of the State of Nature; and it Teems to me that then the Reſtoration is not more juft in
reſpect


it may

80 Of the Matter of Promiſes and Covenants.
BOOK III.
.
Queſtion,
but he fins doubly, who performs it (a). Whence in the Effects conſequent upon it; and becauſe fres
this farther Conſequence may be drawn, that thoſe quently the Inconveniencies attending a Difan
Promiſes are not to be kept (3), which would prove nulment would be greater than the Act it felf, if
hurtful to the Perſon, to whom they are made; it permitted to ſtand Valid, would produce (c) (4).
being a general Command of the Law of Nature, VII. To proceed diftin&ly in a cloſer Examina-
that we do no harm to another, knowingly and wil- tion of this point, it is firſt mov'd as a
fully, though he out of Folly ſhould delire it. whether an Obligation for the Performance of an
Moreover, ſince a good and valid Obligation can- Act in it ſelf Vicious, be Good and Valid, whilft
not be contracted about unlawful Matters, it fol- things ſtand as at firſt, and no ſtep is made towards
lows that Acts undertaken againſt legal Conſtituti- the Execution. And here it is certain, That fuch a
ons, are by Vertue of the fame Law Null and Void, vicious (1) Agreement does produce an Obligation
or the Magiſtrate is ſuppoſed to have already de- on neither ſide, and that Parties ought in Honeſty
clar'd them ſo (b). Yet in many caſes, it is a con to recede from their Bargain (2). Senec, Hercul.
ſtant Practice in Common-wealths, to impoſe a Finé Oet. V. 480, 481.
on the Perforier of ſome unlawful Act, and not to
diſannul the Act, becauſe there was perhaps, more Præſtare fateor pofle me tacitam fidem,
Indecency in the Momentary Performance, than Si fcelere careat ; interim ſcelus eft fides.
reſpect to him that gave, than the Approbation of the Subject for which he gave, can be a Commendation to him. 'Tis upon
this that we muſt ground the Maxim of the Roman Law, which imports, That if an Agreement be diſhoneſt, both in respect to
him that gives and receives, the firſt can't require any thing again, but in this caſe the Poffeffor has the advantage. Porro ax.
tem, fi & dantis Go accipientis turpis cauſa fit, possesſorem potiorem inje, Go ideo repetitionem ceffare, tamet fi ex ftipulatione folutum
eſt, Digeſt. l. 12. cit. 5. De Cond Stione ob turp. & injuſt. cauſam, leg. 8. Io which nevertheleſs the Roman Lawyers do not always
follow cheir own Principles, ſince when Men play at the Game call'd Hazard, which was forbidden, and look'd upon as diſhoneſt
,
they allowed the Loſer to require his Money again, even beyond the ordinary Term of Preſcription. Bue as I have Thewed in
my Treatiſe of Gaming, 1. 3. c. 9. $ 15. in this laſt Caſe the unhappy Gamefter can have no recourſe to Juſtice to recover his
Money, becauſe in taking upon him to game, he renounces the Benefit of the Law. The fame thing may have place, in my
Judgment, and for the ſame Reaſon, in all other diſhoneſt Engagements, ſuppoſing that the Law permits Men to recover again
what they have given on that account. Thus much of things evil in themſelves, and contrary to the unchangeable Rules of Na.
tural Right, after which it will not be hard to ſtare the validity of ſuch Agreements as are not unlawful, otherwiſe than as they
border upon ſuch things as Civil Laws forbid. But here we muſt diſtinguiſh between a Stranger and a Fellow-Citizen. 1. If we
treat with a Stranger about things forbidden in our Couptrey, he either knows them forbidden or not. If he knows them, he has
either ſearched out the Agreement or not; if he has ſearched out the Agreement, we are obliged neither to do the thing, nor to
make good the Damage he may have by it, but only to reſtore what he has already given. The Reaſon is, becauſe in this caſe
he may and ought to ſuppoſe that we are but ſlightly engaged, and that we are tempted by the advantageous Propofitions that he
made us. Beſides we often expoſe our ſelves to great Mulats, or other Puniſhments more troubleſome, of which we can't fuppoſe
that any perſon would run the riſque. But if we our ſelves have ſearched the Agreement, we are not really obliged to execute
the ſame thing, but we muſt indemnifie him with whom we are engaged. I ſay, we are not obliged to execute the ſame thing,
for tho' Strangers are not ſtrictly obliged to inform themſelves of what paffes among us, and may behave themſelves as they fee
convenient, without enquiring into the particular Laws of our Srate, yet they oughe in Equicy to preſume, thar a Citizen who re-
cants an Engagement which he has entred into contrary to his Dury, did nor engage with mature deliberation, or at leaſt did
nor foreſee the Obſtacles that oppoſed the execution of his Promiſe. But ſince he has ſearched the Agreement, and ſeems to
have paſſed all theſe Confideracions upon it, 'tis juſt that ſome way or other he ſhould indemnifie him that has truſted to him.
Bnt if the Stranger knows not of the Prohibitions, whether he has ſearched the Agreement or no, then we have a more indi.
ſpenſible Obligation to render to him all that he hath ſuffered by truſting to our Word; and we ought to think our felves happy
that he doth nor impute it to us as an Injury that we were filent, and let him take other Meaſures than he would have done if we
had ſpoken our Minds freely. But if the Prohibitions come only when the Market is made and concluded, then we are not ob-
liged to make good any Damages. For in this we ought to be ſuppoſed nor to have conſented but under a tacic Condition, that
there was no Obſtacle from the Sovereign. 2. But if thoſe that creat together about a thing forbidden by the Law are Members
of the ſame Scare, they are both ſubject to the Puniſhment really, becauſe they could not be ignorant of the Law, and upon that
account they are looked upon to treat together as if there were no Law about it, and ſo to renounce the Benefits which mighe
accrue thereby to either of them. So, though they did ill to engage themſelves, they ought, as far as in them lies, ſuffer their
Engagement to continue in force, and neither of them break it without the Conſent of the orher ; yer if we can't execute che
thing to which we are engaged without ſome great prejudice, he to whom we have promiſed ſhould content himſelf with an Equi-
valent. I ſay, every one ought, as far as in him lies, to ſuffer the Engagement to take effect, for ſo long as there is nothing
done on either part, each of them is free to recant, as if they had done a ching evil in its own Nature, becauſe in chis Caſe we
may be thought to have conſulted well, or acted with mature deliberation. As for Example, if I have promiſed any Man to
game with him contrary to Law, I am no more obliged to meet him, than to preſent my ſelf in the Field to that Man who has
challenged me to a Duel, which I have accepted; but when I have actually play'd and loft, I cannot have a recourſe to Law to
recover my Money, nor uſe any forcible way to regain it; eſpecially if there was no Cheat put upon me by him who has won
it of me. See my Treatiſe of Gaming, l. 3.c. 9. 15, 16. So again, If a Merchant has promiſed another to furniſh him with
certain contreband Goods, when they liave agreed for the Price, the one may refuſe to ſtand to the Bargain that he ought not
to have made, and the other, with whom he has not kept his Word, ought to repent him that he had promiſed ſuch a thing,
and be eaſie that it took nor effect; but if the Merchandize be actually delivered, or any thing be received as an earneſt of Deli.
very, which is therefore hoped neither the Buyer can lawfully refuſe to pay the Price agreed on in the firſt Cafe, nor the Seller
himſelf to deliver the Bargain without ſome prejudice to himſelf, and incurring a great Puniſhment: For then 'tis fufficient to
reſtore what he has received, or an Equivalent. With theſe Limitations nothing hinders but that an Engagement contrary to
che Laws purely Civil may be of Force between one Bargainer and another. There are Agreements which the Laws forbid, bue
they ſuffer them nevertheleſs to ſubfiſt contrary to their Prohibition, for they may be valid between the Parties, altho' che Law
nulls them, in as much as that and the Magiſtrate allow no Action for the Relief of either of them after they have conſented
with full and entire Liberty.
(3) See what is ſaid, 1. 5. c. 12. $ 22, in the End.
(4) Șee Grotius, l. 2. c. 5. § 14. 16, with the Notes of Gronovius the Father, and what our Author ſays above about Imperfect
Laws, I. 1. c. 6. $ 14.
Mr. Barbeyrac's NOTES on § 7:
(1) This is the determination of the Roman Law, Generaliter novimus turpes džipulationes nullius esſe momenti, veluti ſi quis bo-
micidium vel ſacrilegium ſe fa&turum promittat. Diget. l. 44. tit. 1. De Verbor. Obligat. leg. 26, 27.
(2) Thus Apollonius Tyanaus (in Philoftrat. l. 3. c. 7, p. 130. Ed. Morel. Parif.) having promiſed to bring a Vellel richly laden
into the Hands of Pirates, led 'em a quite contrary Courſe, and deluded their Expectation of Booty.
(a) Add. 1.15. D. de Condition
. Inſtitut. I. 35. f. 1. 1. 123. D. de Verb, Obligat. (b) Lex Wiſigothorum, 1.2 tit. 5.c.7. (c) Thus
in Apollonius Rbodius, Argon. 1. 4. Alcinous being conſtituted Umpire between the Colchians and the Argonau, gave Judgment as
dows, “That if Medea had been acquainted with Jaſon's Bed, ſhe ſhould ſtill remain in his Pofleffion, if not, ine ſhould be re-
“ ſtored to her father. We have the Same Story in Hygin. Fab. 23. Apollodor. Biblioth. l. 1. 1. 25. Orpheus in Argon.
Thus
CHAP. VII.
81
Of the Matter of Promiſes and Covenants.
Thus for Inſtance, if a Man hire an Aflalline to which was not at firſt entirely wanting, (in as much
commit a Murther, and the Aſfaſline upon better as the thing was done by mutual Confent,) but
Thoughts reſolves againſt the Villany, the Hirer was only hindred from diſplaying it ſelf by that Vice
cannot compel him to fulfil his Covenant. And on
or Defect, with which it was attended; namely, its
the other Hand, if the Hirer repenting of his wick- contributing to the Commiſſion of a Sin. But ſhould
ed Deſign, orders the Affaffine not to proceed, the we admit this Doctrine, the Edict of Natural Law
Affafline ſhall not force him to continue in his Re- forbidding us to enter into Covenant about unlaw-
folution for fear of loſing the promis’d Wages. Nei- ful Matters, would be void, if when the wicked
ther ſhall he in this caſe demand the Money of Terms of the Covenant on one ſide were put in
the Hirer, as on whoſe account purely he now de- Execution, the other Party muſt by the Law of Na-
fifted, and was hindred from earning it. Nay, if ture be bound to ſtand to his Agreement. What
after he has been thus countermanded he go on, and an inſignificant Order would it be to prohibit Theft,
accompliſh the Miſchief,the Hirer ſhall not be guilty if the Act of ſtealing being once over, the Goods
of the whole Fact, but ſhall be condemn’d, only in to were to remain in the Poſſellion of the Thief, with-
much as ſhall ſeem a proportionable Penalty, for out Blame or Danger? And that Remark is very
conceiving a Murther in his Imagination, of which falſe, “ That there was not Originally wanting to
he repented before it was put in Execution. “ the Vicious Covenant, an internal force of oblig-
Grotius (a) obferves, That a Promiſe of this kind ing; but that it was only kept in Suſpence upon
is therefore Vicious and Void, becauſe it is made to account of the attending Wickedneſs, till ſuch
excite a Man to do a wicked Act (b).
“ time as it ceas'd to be ari Incentive to Sin. For
VIII. It is a ſecond point of Enquiry, whether to give a Pact an inward Obligatory Force, it is
in Cafe ſuch a Villany having been once commit- not enough that it be made with the Conſent of
ed, according to the Bargain, the other Party be both Parties, but the Subject of it ought to be ſuch
obliged to pay the Price agreed upon. Which Gro- a thing as Men have a Right and Power of diſpo-
tius affirins ; becauſe, ſays he, the Price or Reward fing of at their Pleaſure. Otherwiſe if mutual Con-
before the fact was accompliſh'd had indeed a Ble- fent were ſufficient to produce an Obligation, it
miſh and Imperfection, as being the Incentive to would be eaſie to overthrow all Laws, ihould Men
Wickedneſs
, which blemiſh ceaſeth, when the Wick- but enter into a Covenant to break them; and thus
edneſs is once paſt, and the Crime perform’d. But the Law of Nature would manifeſtly contribute to
we cannot but declare our ſelves of a contrary O- its own Deſtruction. It is our Judgment then, that
pinion ; for a Bargain of this kind is ſo far from with regard to the Law of Nature, neither the Actor
ceaſing to be Vicious, when the Deed is over, that of a Villany, can by any proper Right demand the
it ſeems then to arrive at its higheſt pitch of Baſe- Wages promis’d him, nor is the Perſon who hired
neſs, as having gain’d its end. Unleſs it be a ſinaller him bound to pay the Reward by any inward Tie
degree of Sin to have ſtollen, than to think of ſteal- affecting the Conſcience. And that therefore the
ing; to receive the Wages of Villany, than to hope Court of Natural Juſtice, does not think it ſelf con-
for and expect them; to pay the Reward, than to cern’d to enquire, whether or no a Man has coin-
promiſe it. Indeed if the promiſe be in its ſelf mitted -a Wickedneſs, gratis, or to trouble it ſelf in
Vicious, becauſe it is the Incentive to Wickedneſs, giving him Relief. Indeed, if the Cut-throat here,
the fulfilling of the Promiſe will certainly be Vi- or any other Man retain’d for the Execution of
cious, as being the Recompence of Wickedneſs
, and ſome unjuſt Violence, ſhall upon the other Parties
an Encouragement and Invitation to new Miſ- refuſing to pay him his Hire, do him fome Miſchief
chiefs. And on this account fome ſecret Stain or in Revenge, no body will pity the Sufferer, nor
Blemiſh is commonly thought to ſtick on ſuch Re- think that he has been treated injuriouſly, but on-
wards, even a ter they have paſs’d to a third Pof- ly that he has been dealt with in his own way.
feffor by a juft Title; becauſe they were at firſt the This then we muſt obſerve, That although Cove-
Wages of Iniquity. Thus the Fews were forbidden nants in themſelves Vicious, are not Obligatory by
to bring the Price of Whoredom, as an Offering, any Intrinſical Force or Vertue, nor fit to produce
into the Houſe of God (). Thus when Judas (d) an Aktion in Courts of Juſtice, yet they have forne
brought back the Wages of his Treaſon, the chief kind of Effect upon a Man, who having at firſt
Prieſts thought it not lawful to put it into the Trea- freely conſented to them, refuſes afterwards to make
fury. And thus it is a known Proverb, That a Fa- then good. For they hinder him from having a-
mily ſeldom thrives on an ill-gotten Eſtate (1). Therefore ny Right to complain of hard Uſage, in caſe the
we can by no means aſſent to what Grotius deli- other Perſon violently bring him to a Compliance,
vers, That till the time of performing the Villany, or inflict ſome Evil on him for his Refuſal. It is true
the Force and Efficacy of a Vicious Promiſe, remains the Law of Nature forbids
, that a Man ſhould have
in Suſpence; juftas doth the Efficacy of conditional forfeited his Claim, by another's dealing injuriouſly,
Promiſes till the Condition be made good, and of or be compelled to pay what he does not juſtly
Promiſes about things at preſent Impoflible, till the owe, or ſhould be puniſh'd for denying ſo unrea-
things do really fall under our Power, as we have fonable a Demand. But he who agrees to a vici-
probable Hopes they will
, at our firſt makinig the ous Covenant, does by that very A&t quit all claim
Bargain : But that when the fact is once is committed to the Favour of this Law, in as much as he en-
the Obligation then breaks out, and exerts its Force, deavours, ſo far as he is able to give another an un-



og 300 bb Mr. Barbeyrac's NOTES on 6 8.
(1) This Proverb, as any Man may perceive, makes noe much to out Author's purpoſe ; becauſe it is deſigned to few, that
ill-górten Goods will noc profper, and that they vaniſh as they came.
Sa Lib. 2. c. 11.8.9. (b) Thus Apollonius Tyanaus (in Philoſtrat
. I. 3 C 7 p. 136. Edit. Morel. Pariſ.) having promiſed to bring
a Vettel
richly laden into the Hands of Pirates, led 'em a quite contrary Courſe, and deluded their Expectations of Boocy. (-)
(C) Deuteronom. xxiii, 18. 7oſeph. Antig. 4. 8. (d) See Matth. xxvii. 6.
+ L
juſt

82
Book III.
Of the Matter of Promiſes and Covenants.
Juſt Power over him. And thofe Evils are adjudg’d accuſed theſe Bargains of Injuſtice upon another
to fall very deſervedly on Perſons, to which they Score.
give Occaſion by their own Fault (2). For In Sola viro mulier Spoliis exultat ademptis:
ſtance, the Law of Nature forbids, that a Virgin Sola locat noctes, Jola locanda venit,
ſhould be rob’d of that Title and Character againſt Et vendit quod utrumque juvat, quod uterque petebat;
her Will; yet if ſhe once conſents to her own Dif Et pretium, quanti gaudeat, ipfa facit.
honour, the has ſuffer'd indeed an irreparable Loſs, Que Venus ex aquo ventura eſt grata duobus ;
but ſhe cannot complain of any Injury that has been Altera cur illam vendit & alter emit?
done her (3). And thus too in Common-wealths,
Amor. Lib. I. Ep. 10. V. 29, &c.
where Duels are prohibited by Law, a Man who has
receiv'd a Challenge, is not bound to come into the 'Tis the Nymphs Privilege the Spoils to win,
Field, though he has given his word to appear. Yet To let her Nights to hire,and traffick with her Sin.
if he freely meets his Antagoniſt
, and happens to be She ſells what
both enjoy, what both invite,
wounded in the Incounter, he cannot ſay, that he And ſets the Price upon her own Delight,
has ſuffer'd Wrong, or demand the Charges of his What both with Pleaſure doth alike ſupply,
Cure.
'Tis hard if one muſt fell and t’other buy.
Grotius in favour of his Opinion, urges the Ex-
ample of the Patriarch Judah in the Scripture (a),
This ſtill remains true, That a Man cannot
who appear’d very earneſt and follicitous to fend fairly pretend to be diſpleas’d with a piece of Wick-
Thamar the Price of her playing the Harlot. To edneſs, which has been undertaken with his Confeit,
this Mr. Selden (b) anſwers, " That in the Juug- and for his Service.
ment of thoſe times it paſs’d for lawful, for a
“ Woman free from Marriage, and other Reſtraints, Medea to Jaſon, in Ovid's Epiſt. Ep. 12. 131, 132.
to beſtow her felfupon a Man, without any con Ut culpent alii, tibi me laudare neceſſe eſt,
“ dition of living together; and this either Gratis, Pro quo fum toties eſe coata nocens.
or for a Reward. And that therefore this Agree-
“ ment was able to produce a Good and Valid Ob-
Others may blame, you muſt of Force commend,
ligation, being made about a Matter, which if
For whoſe ſweet fake I dared ſo oft offend.
not Naturally, yet was civilly Lawful, or accord-
"ing to Opinion of States and People in thoſe Niſus to Minos, Metamorph. 1. 9. v. 130, 131.
Days. We may ſay farther, That moft Men think
Scclus hoc patriaque, patrique, Oficium tibi fit.
they ought in point of Generoſity to pay fomething
for the purchaſe of their Pleaſures. And beſides,
What's to my Country, and my Friends a Sin,
Judah might not expreſs ſo much Care and Con- to you's a Kindneſs.
cern (4), leaſt the Harlot ſhould loſe her Wages, but
Jeaſt he himſelf ihould loſe his Staff and Ring, the
Senec. in Medea. v. 5oo. 503.
Pledges he had left in her Hands. Another Argu Cui prodeſt Scelus, is fecit.
ment on Grotius's fide, may be alledged in that Paf Tibi innocens fit, quiſquis pro te eſt nocens.
ſage of the Roman Laws (c) (5), What is given to a
Strumpet cannot be recoverd; yet not becauſe bothParties The Gainer by a Villany is deem'd the Actur;
are in a Fault ; for indeed the whole Offence, as to he that fins for you, ſhould in your Eyes be ſpotleſs
this Point is on the ſide of the Giver. 'Tis vicious in Innocence.
the Strumpet, to practice ſuch a Profeſſion, but ’tis
not vicious in her to rececive the Fees of her Profeſſion. Though it be a very uſual, and a very good Cu-
The ineaning of which Determination is no nioreftom of Princes, to take the Benefit (in fome Ca-
than this; though to make an open Trade of Lewd- fes) of Men's Treaſons and Villanies, and to puniſh
neſs
, and to own as much before the Ædiles, did not the Traytors and the Villains, that the Infection may
fall under the Penalty of the Laws in the Roman not ſpread by Encouragement. Of this Proceeding,
State, yet all Good and Vertuous Men, thought it we have a very remarkable Inſtance, recorded by
inoſt Bafe and Scandalous to engage in fuch a way Paulus Orofius in his Hiſtory (d), Sulpitius having
of Life. However, when Perſons had once fix'd been voted in Senate a Publick Enemy, was brought
themſelves in ſo vile a Calling, they contracted no into their Hands by the Treachery of his own Slave;
new Vileneſs, by making the uſual Gain and Ad- the Conſuls, with a wiſe Diſtinction, order'd the Fel-
vantage of it. Or to ſpeak more conciſely, the low to be preſented with his Freedom, as a Reward
Buſineſs was thus; the Romans granting Toleration for his Service to the State, and to be caſt headlong
to Courteſans, the Bargains and Contracts made on down the Tarpeian Rock, as a Puniſhment for be-
the Score of that Profeflion, were in their Law ad- traying his Mafter. Add Zonar. Tom. III. in Theo-
judg’d to hold good and valid. Ovid indeed, hath phil. ab initio.
1
(2) It is a Maxim of the Roman Lawyers, Quod quis ex culpa fua damnum ſentit, non intelligitur damnum ſentire, He that brings
a Loſs on himſelf by his own fault, is not fuppofed to ſuffer any. Digeft. I. 50. tit. 17. $ 203.
(3) Though in this Caſe Ovid's Rule commonly holds true.
-Ipfo
Crimine dotata eft, demeruitque virum, Epift. Heroid. 6.137, 138.
She brings her Portion in her Crime, and wins the Husband in the Spark.
(4) He mightily feared, and that with Reaſon, that if his Pledge were known to the World, his Wickedneſs would be divulged,
and himſelf expoſed to the Scoffs of the Inhabitants. And for this Reaſon 'twas that he did not go himſelf to find Thamar.
Sed quod. Meretrici datur
, repeti non potest, ut Labeo & Marcellus ſcribunt, ſed nova ratione non ea, quod utriuſque turpitudo
verfatur, fed folius dantis; illam enim turpiter facere, quod fit Meretrix, non turpiter accipere, cum fit Meretrix. Digeft
: 1. 12. cic. So
De Conditione ob turp. vel injuſt. cauſam, leg. 4. $ 3.
(a) Gen. xxxviii, 20, loc. (b) De 7. N. & G.1.5 C.4. (c) Lib. 4 1. 3. D. de Condit. ob. turp. Cauſ. & 1. 12. tit. 5.
(d) L. 3. C. 18.

IX. The
Chap. VII. Of the Matter of Promiſes and Covenants.
83

IX. The third Queſtion moved on this Head is, perhaps coſt me no Trouble, yet if I bargain to re-
whether a Reward given for Villainous Service, may ceive fome Confideration on that Account, I may
be redemnanded or recover'd. And here the Law of fairly demand the Payment, and the other Perſon
Nature affords 110 Pretence for ſuch a Recovery, fro- cannot recover what he thus parts with; unleſs I
vided the Receiver has not dealt deceitfully with the forced him to make a large and unreaſonable Pro-
other Party. And the other has not ſuſtained a miſe, by filling his Head with falſe Frights, or
great Damage (?). In as much as the Giver by de- any other Stratagem of Knavery. Thoſe Promi-
livering up the thing promis’d, intended no doubt ſes are likewiſe Valid, which we make to incite
to transfer the Propriety of it: and this too in way another to the more read, and the inore exact Per-
of Debt, in Confiderttion of a Service perform d formance of his Duty. For theſe paſs for matters
for him, which he himſelf valued at this Rate. Now of free Bounty and Gratuity. But if the thing was
we know that when any thing is given, even Gratis, before owing to us in a perfe&t Manner (b), and yet
all Right of Recovery ceaſeth. Nor will it alter the Perſon who is to perform it, refuſes Compliance,
the Cale to urge, That the thing was here obtain’d unleſs upon our Promiſe of a new Reward, we take
on an unjuſt Title, and by Ways and Means ex- this Cale to be the ſame, as in Engagements made
preſly forbidden by the Laws. For this Allegation through Fear or Guile; and therefore to require the
cannot with any colour be made by the Perſon who ſame way of Proceeding. If then in a State of Na-
gave the Reward; in as much as he voluntarily tural Liberty, a Man refuſe to pay me my due, it
bargain'd for the wicked Service, and when that is plain he does it upon Preſumption of his own
was perform’d for him, thought himſelf to receive Strength, and becauſe he believes it is not in my
ſomewhat equal in value to the Price agreed upon; power to compel him. And conſequently, if he
nor can he complain of a Villany, of which he deny to fulfila Covenant fairly made, without a
himſelf was the Principal Author. Indeed the Il new Supplemental Condition, he immediately gives
legality of the Means by which the Reward was ac me juſt Cauſe of uſing Hoſtility to reduce him,
quired, if conſider'd in regard to the publick Au- And if my preſent Affairs will not permit me to
thority, ſhall produce this Effect, That it ſhall be engage in a Method of War, but incline me to a-
in the Magiſtrates Power, to take the thing from gree, though on hard Terms (2), I may afterwards
the Receiver by way of Punishment, and (if he require Satisfaction for the Damage I now ſuffer;
ſees fit) to reſtore it to the firſt Owner. For In- unleſs I end the Matter by an Act of voluntary For-
ſtance, if a cunning Strumpet ſhall chouſe an un- giveneſs. Yet it quite alters the Cafe, if his denial
wary young Man out of a conſiderable Sum of Mo- did not proceed from meer Unfaithfulneſs and Wick-
ney, the may fairly be obliged to refund, ſince e edneſs,but from his being able to fhew that he was ex-
ven in the moſt vicious Bargains, fome Shadow of ceedingly injured in the former Covenant, to which
Juſtice is kept up, and the Laws of Contracts in he now demurs. As for the Members of Common
ſome ſort obſerv’d.
wealths, if they refuſe to anſwer an old Bargain
But farther, ſince it is accounted moſt baſe and without ſome additional Reward, they will be
vile in a Man, to demand a Reward, for doing a compellid to be honeſt by a Courſe of publick Ju-
thing which it is his Duty to perform Gratis, it is ſtice.
made another Queſtion, whether what he have pro To this we may add the Diſtinction of the Ro-
mis’d or given for a thing before juſtly due to us, man Lawyers (c) in Caſes of Vicious Service, whe-
may be with-held or recover'd. Some anſwer abſo- ther the Fault or Wickedneſs was on the part of the
lutely (a), That if we reſpect the Law of Nature, Receiver only, or of the Giver only, or of both. In
Promiſes of this kind are Good and Valid, ſince the firſt Inſtance, they allow an Action of Reco-
thoſe likewiſe are fo, which we make without any very ; but not in the other two.
particular Reaſon or Proſpect
. Yet that at the ſame Ř. We are likewiſe Morally unable or uncapable
time whatſoever Damage is ſuſtain’d by violent Ex- to perform any thing (1), or to oblige ourſelves to
tortion, ought to be fully repair'd. Perhaps the ſuch Performance,about the Goods or Actions of other
Buſineſs may be more clearly ſettled, if we diftin- Men; which are not ſubject to our Pleaſure and Dif-
guiſh whether the thing which we ſay was before poſal. And being thus independent from us, we
due to us, was due upon an Imperfect, or upon a cannot by any Act of ours, whether of Promiſe or
perfect Obligation. If the foriner, our Promiſe of of Bargain, give another a Right over them, by Vir-
a Reward for it ſhall hold good, and we cannot tue of which he ſhould claim them as his Due. Hence
fue for Recovery. Thus for Inſtance, although the 'tis a Rule with the Civilians (2), " That in caſe
Law of Humanity obliges me to ſet a Traveller in one Man promiſe that another ſhall give or ſhall
his Way, and though ſuch a piece of Service may “ do fuch or ſuch a Thiag, neither of them ſhall
CC
50 od
9V8 01 vi
010 3V
Mr. Barbeyrac's NOTES on S 9.
Nismod
(1) See what I have ſaid about this Matter in my large Nore on 96. And 1. 4. C. 13. $ 16.
(2) Mr. Hirtius affirms the contrary, and
his Reaſon is, that by ſubmitting to a new Treaty, tho' upon hard Condicions, he de:
prives himſelf of his Right. And if one
ſuch Agreement, adds he, made after War be valid, why ſhould it not be ſo when Men
think by that Means to avoid it. But ſee 1. 8. c. 8. $ I.
UST 11 sr 11
Mr. Barbeyrac's NOTES on S 10.
(1) Add alſo the things which are not in our Diſpoſal, alcho' otherwiſe they really belong to us. See what I have faid in
my Treatiſe of Games, 1.2. C. 4. $4, doc.
(2) The Words are, Si quis alium daturum fa&turumve quid promiſerit, non obligabitur, niſi ſi Spondeat, Titium quinque aureos datua
rum. Inſtitut. 1. 3. tit. 20. De inutil. Stipulat. s 3. See Cujas's Obſerv. 12. 36.
(a) See Grotius, 1. 2. c. 11, ſ. 10. (6) Add. 1. 12. tit. 5. D. de Condi&t. ob turp. cauf. (c) Liban. Orat. s. I receive only thoſe
Advantages which the law allo ivs me and where is the Favour in this caſe. He thar hath been obliged with a Kindneſs, ought
to make Requital to his
Benefactor. Buc we can owe no ſuch return to a Judge, who doth not act out of favour to us, bue as
the Neceſſity of the Law directs him.
& ftand
+ L 2
1110

84 Of the Matter of Promiſes and Covenants. Book III
.
.
my
“ ſtand obliged (3). Which is very juſt and true, But if the third Perſon be one placed under
if we ſtick to the bare Words of ſuch a Promiſe. Governance and Command, his Things or Actions
Fut becauſe it ſeems inconvenient, that an Act fe- are not accounted anothers, but my own; ſo far as
riouſly undertaken ſhould produce no Effect, we are my Authority over him extends
. And thus far 1
apt commonly to interpret Promiſes of that kind in can by Promiſe or other Engagements effectually
this Senſe, That the Perſon Promiſing, will take the diſpoſe of them, ſo as not only to bind my ſelf to
care to bring the other Party to Performance (4), in ſee the Agreement made good, but to cauſe that the
whoſe Name he now ſeems to inake the Engagement. Perſon in whoſe behalf I tranſact
, ſhall as ſoon as
But if I make a Promiſe to a Man in fo expreſs and he is acquainted with my Pleaſure, be obliged by
direct Terms as theſe, that I will endeavour to pre- vertue of my Power over him, to perform the Con-
vail on a third Perfon, to do for him ſo or ſo; I am dition. Though the common and regular way of
then obliged to labour by all means morally poſſible, proceeding in theſe Caſes, is to apply to the princi-
to move that Perſon to a Compliance. We ſay by pal Promiſer, and to require him to force the Per-
all means morally poſſible, That is, ſo far as the other ſon under his Care and Direction to a Compliance;
Man can honeſtly deſire me, and ſo far as is confi- and upon the Obſtinacy and Default of the governá
ſtent with the Nature and Method of Civil Life. Party, the Action at Law ſhall lie againſt his Go-
And if in this Cafe, I omit nothing on my Part (5). vernour, unleſs he has reſign’d his Charge, and left
See Grotius, Book II. c. 11. ſ. 22. and Book III. c.21. him wholly to his own Diſpoſal
.
f. 30. And yet the third Perſon refuſe to grant the XI. Laſtly, I am Morally incapacitated make a
Requeſt, I am not bound to make good the De- Promiſe with any Effect, to a third Perſon, about
fault; unleſs this was an expreſs part of my Pro- ſuch Things or Actions of mine, to which another
miſe, or was implied in the Nature of the Bufi- has already acquired a Right; unleſs perhaps this
neſs (6). But if I promiſe in this manner, Un- other Party be content to wave his Claim (1)
leſs a third Perſon do ſo or ſo, I will forfeit thus much, For he who by a former Engagement has made
it is manifeſt that if the third Perfon fail, my En- over his Right, can have no power left to dif-
gagement will ſtand good againſt me. Somewhat poſe of it anew. And all Pacts and Promiſes
like this we meet with in the Roman Conſtituti- might be cancelld and eluded with very little
ons (7), which decree that in caſe a Perfon diſpoſes Trouble, were we allow'd to enter into new ones, ei-
in way of Legacy, a thing which belong’d to ano- ther directly contrary to the former, or any way
ther Man, and which he knew ſo to belong, the inconſiſtent with them, as to the Performance. In
Heir ſhall be obliged to redeem, and to reſtore it, this caſe therefore, the latter Contract is diſannuľa
or if it cannot be redeemed, to give the value of it and render'd ineffectual by the former, or as we
to the Owner. Yet certain it is, that a Promiſe ſhould rather ſpeak, the former ſhews that the lat-
of what kind foever, cannot lay an Obligation on ter can be of no Force or Uſe. Hence for inſtance, are
the third Perſon, nor give the other Man a Right all thoſe Covenants void, which Subjects make either
of requiring any thing immediately from him. among themſelves or with others, in prejudice of the
hin-
(3) So alſo the Digeſts direct, Qugiunq; gerimus, cum ex noſtro contra&tu originem trahunt, niſi ex noftra perſona obligationis initium
Sumant, inanem a&tum efficiunt, & ideo, neque ftipulari, neque emere, vendere, contrahere, ut alter suo nomine re&te agat, poffumus
,
Digeft. De Obligar. & Action. 1. 44. tit. 7. leg. II. Certiſſimum enim eft ex alterius contra&tu neminem obligari, Cod. 1. 4. tit
. 12.
Ne Vxor pro Marito, &c. leg. 3.
(4) In this latrer Cafe the Roman Lawyers themſelves affirm, That the Promiſe obliges. Qui fi effe&turum ſe at Titius daret,
Spoſponderit, obligatur, (i. e.) If he promiſed to procure that Titius ſhould give, he is obliged, Inſtitut ubi fupra. See Mr. Hirtius's
Differtation, De Oblig. alium datur, fa&turumve in Tom. 3. of his Commentaries and ſmall Tracts, printed in 1700.
(5) So Livy, l. 2. c. 31. He ſeem'd to have ſatisfied his Obligation, in as much as he contributed nothing on his fide to
der the buſineſs from being perforn'd.
(6) This hath place only in ſuch Engagements where both Parties are concerned, and not in ſuch as are the pure effect of the
Liberality of one of the Parties. See the Examples cited by Mr. Hirtius in the Diſcourſe laſt mentioned, Sect. 1. $ 8.
(7) Theſe are the Words, Non folum autem Teſtatoris vel Hæredis res, ſed etiam aliena legari poteſt, ita ut Heres cogatur red
mere eam, & præftare; do fi non poteſt eam redimere, aſtimationem ejus dare -Quod ita intelligendum eſt, ſi defun&tus ſciebat ali.
enam rem esſe, non fi ignorabat. Inftic
. I. 2. tit. 20. De Legatis, 94. Idemque Juris est, ſi potuiſſes emere, & non emeres. Dig. 1. 32.
leg 30. $ 6. The Reaſon of this Law, which appears at firſt fighe very harſh and rigid, is, That the Teftator is preſumed un-
willing to do a thing fo ridiculous as to give away what he had nothing to do with. So that he is accounted to have bought the
thing bequeathed, if it can be, if not, the Legatee muſt have an Equivalent. See Mr. Daumat's Laws in their Natural Order,
Part 1. Lib. 4. tit. 2. Sect. 3. & 3, doc.
Mr. Barbeyrac's NOTES on S 11.
(1) This Author in his Abridgment of the Duties of a Man and Citizen expreſſes himſelf after a more general way, I. 1. C. 9.
$ 19. Unleſs the other waves his Claim of Right, (Niſi forte in eum caſum quo alterius jus expiraverit) which may fiely be added
here: Mr. Thomafius in his Inſtit. f uriſprud. Divin. l. 2.c. 7. $ 95, 96, 97. adds another Reſtriction to the words recited, Un.
Jeſs he that hath promiſed may fairly hope that the Caſe may happen. So a Servant may ſafely engage himſelf to ſerve another
Mafter, when the time which he is hired to ſerve his preſent Maſter is expired. And the Owner of an Houſe may promiſe to
ler an Apartment of his Houſe to another when the time which the preſent Occupier is to enjoy it is expired. But it is an un-
lawful Promiſe, and conſequently null, to engage himfelf to become a Subject of another Prince or State, upon Condition that
the State of which he is a Member be ruin'd by a Civil War, or deſtroyed after ſome other manner. By the Roman Laws no Man
can proiniſe faithfully to give a Man a Freeman, when he is made a Slave, nor a publick Thing, upon ſuppoſition that it may
become our private Poffeffion. Nec impendenti erit ftipulatio ob id quod publica res in privatum deduci, do ex libero ſervus fieri po-
teftim-Sed pretinus inutilis eft. Inftit. 1. 3. tic. 20. De Inutil. Stipulat
. § 2. And 'cis nor without Reaſon, adds Mr. Thomaſius,
That Chriſtian Princes declare a Promiſe of Marriage made by a perſon married, in cafe his Wife or her Husband die, to be
null, and puniſh both Parties that have made fuch a Promife. Nevertheleſs, the ſame Author in his Fundam. Jur. Nat. da Gent,
and his Notes upon Huber. De Jur. Civ. ſays, That the Puniſhment inflicted in this Cafe ſeems to be very rigorous, and favours of
Popiſh Principles about Marriage as a Sacrament. But Grotius thinks luch a Promiſe invalid in its own Nature. 1.2.c. 11. 8 8.1.3.
WS
I Duty
Chap. VIII.
Of the Conditions of Promiſes.
85
Duty and Allegiance they owe to their lawful So- his own Maſter
, beſides the general Obligation iin-
vereignis (a) (2)
plied in that State and Condition of Servitude, and
It is a cominon Rule, That he who has the Prece- the Reaſon of this was, becauſe his Maſter had be-
dency in Time, has the Advantage in Right. Not that fore a full Right over all that he poſſeſs’d, and all
Time conſider'd barely in it ſelf can make any ſuch that he could do to any advantageous Purpoſe.
Difference; but becauſe the whole power over a If a Man, contrary to theſe Duties, ſhall have de-
thing being formerly ſecur’d to one Perſon, bars all ceived and prejudiced another by promiſing a thing,
others from obtaining a Title to it afterwards. And which either was not his own, or was before other-
hence too it coines to paſs, that a Servant cannot wiſe beſtow'd and ſecur’d; he ſhall be oblig'd to
diſpoſe of his Labour (3), otherwiſe than his Ma- make good the Damage,
and in many Cafes, ſhall
fter pleaſes, to whom by Virtue of a former be liable farther to luffer the Penalty of Cozen-
Contract it entirely belongs. By the Roman Laws, age (4).
a Slave could not enter into any Obligation, even with
(2) See Mr. Hirtius's Parcemie Jur. German. I. !. C. 49, 50. The ſame Author in his Notes upon this place of our Text, ob-
ſerves, that the Maxim takes place chiefly in Conditional Bargains, which by the Roman Law are contracted by a ſingle Agree-
ment, but as to other Engagements, 'tis not always true. Whereupon he alledges an Example of a thing ſold to two Buyers,
bue deliver'd to the laſt. But ſee what our Author further ſays, 1. 5. c. 5. 5. againſt Grotius, whoſe Principles Mr. Hirtius
follows, tho' here he ſays nothing in defence of them.
(3) Our Author obferves here, that according to the Roman Laws a Servant can't oblige himſelf to his Maſter, Sed Servus qui.
dem non folum Domino ſuo obligari non poteſt, ſed ne quidem ulli alteri. Inſtitut. I. 3. cic. 20. De inutil. Stipulat. s 6. And the Rea-
fon is, adds he, That the Maſter has a Right to all the Goods, and profitable Actions, or Labour and Service of his Slave, as he
is fo. so that á Slave can'c oblige himſelf to his Maſter, but by the general Engagement he is under as his Slave.
(4) Thus Cheats and Tricking is called in the Roman Law, which have not a proper Name; but chiefly that ſore which our
Author is ſpeaking of, as when one engages for a thing that belongs to another, or one thing for another, eſpecially if the firſt
be of more value chan the laſt. As for Exaniple, If one gives Copper gilt for Silver gilt. See Digeſt. I. 47. tit. 20. Stellionatus,
And Mr. Daumat's Civil Laws, &c. Part 1. l. 1. tit. 18. Sect. 3.
(a) Gramond. Hiſt. Gall. 1.5. He that is born under a Prince, doth originally engage his Faith and Allegiance to him; and
whoſoever artem prs to draw them away, is a moſt unjuſt Invader of another's Rights ; nor will any ſuch Covenant hold good,
being made contrary to the Laws and Conſtitution of the Kingdom. He chat gives his Promile againſt his Prince, is by the
Ad releas'd from che Obligation.


very
CHAP. VIII.
Of the Conditions of Promiſes.
1. How many ways is a Promiſe made?
1 Vi.
An Impoſſible and unlawful Condition.
II. What is a Condition?
The Addition of Place.
III. A Condition refers to the time preſent, or the VII. The Addition of Time.
time to come.
VIII. The difference between Bargains and Conditional
IV. A Condition is either Caſual, Arbitrary or Mixt. Promiſes.
Concerning Engagements by Promiſe, this is fara oblige our felves abſolutely to fuch or ſuch a Per-
or fimply, and ſome under Condition (1). The Roman tion, till certain Clauſes or Proviſo's are made
Lawyers add to this Diviſion, the Determination of good.
the Time and Place of their Performance. Vid. In II. A Condition is an Appendage ( 1 ) added
fit. B. 3. tit. 16. f. 2. & 5. Or that ſometimes we to ſuch Acts, as are productive of Rights and Obli-

Mr. Barbeyrac's NOTES on Chap. 8. $ 1.
(1) Our Author himſelf alſo ſpeaks of thele two Circumſtances a little farther. The words in the Inſtitutes are, Omnis ftipu-
latio aut pure, aut in diem, aut fub conditione fit --- - Loca etiam inſeri ftipulationi folent. Purè veluti QUINQVE AVREOS
DARE SPONDES ? Idque conteſtim peti poteſt.
Mr. Barbeyrac's NOTES on 6 2.
(1) Sub conditione ſtipulatio fit, cum in aliquem caſum” differtur obligatio, ut ſi aliquid fa&tum fuerit, vel non fuerit
, committatur
fipulatio, veluti, si TITIOS CONSUL FUERIT FACTUS, QUINQUE AUREOS DARE SPOŃDES? Inſtic
, ut fupra, $ 4.
We ought alſo to obſerve that there are Tacit Condicions included in an Agreement, which are not expreſſed. As if a perſon
felling his Eftate makes a Reſerve of the Year's Profics, this Reſerve ſuppoſes a Condition that there ſhall be ſome Fruits on its
Interdum pura ftipulatio ex reipſa dilationem capit, veluti fi id quod in utero fit, aut fructus futuros, aut
domum edificari ſtipulatus fit.
Digeft. 1. 45. tit. 1. de verbor. obligat, leg. 73. in princip. See what is ſaid above c. 6. 5 2. Further, Mr. Hirtius
oh ſerves here, that
we muſt diſtinguiſh Conditions properly ſo called, viz. what the Lawyers call a Modus, and what we call a Condition. For ex-
ample, I have Land engaged, and I fell ic upon Condition of freeing of it at ſuch a time.
the Buyer to have an Adtion againſt the seller to force him to free his Land at the time appointed, or let him into Poſſeſſion.
Nam ſi id a&tum eſt, ut omni modo intra Kalendas Julias venditor fundum liberaret, exempta erit a&tio, ut liberet, nec ſub conditione
imptio falta intelligetur, veluti ſi hoc modo emptor interrogaverit, Erit mihi fundus emptus, ita ut intra Kalendas Julias liberes? vel
ita, intra Kalendás a Titio redimas. Si vero fub conditione emptio fa&ta eft, non poterit azi, ut conditio impleatur
. Digeft. I. 18. tit. 1.
De contrahend. empt. &c. leg. 41. init. So that ſuch a Claufe does not ſuſpend the Obligation, nor diſannul it, that it has no ef-
the dy but only prevents the exaction of the Engagement till it takes place. This ſort of Agreement
may be referred to the Laws
Conterpreters upon the Digests, 1.35. tit. 1. De Conditionibus & Demonſtrat. &c. Hence it is that Mr. Hirtius calls the like
Clauſe
confidered in mutual Promiſes and Engagements, Causa finais, propter quam aliquid fit vel praſtatur, which implies, that it is
hoc altogether juſt, fince in the Example that I have alledged after him, we may clearly ſee that there is no final Cauſe of mo.
In this caſe the Roman Law allows
tive,

86
Book III
Of tbe Conditions of Promiſes.
66
gations, by Virtue of which their whole Force and muſt be made evident from the Authority of Credi-
Efficacy is made to depend on ſome particular E- table Hiſtorians (2), that ſuch an Adventure was
vent, proceeding either from Fortune, or from hu- actually perform’d. Again, if I promiſe in this
man Pleaſure (2). So that to the true Nature of a manner, I will give ſo much Money, in cafe
Condition, theſe two things are requiſite, firſt “ Mavius, who is Travelling abroad, be ſtill alive;
that it have the Power of deferring and ſuſpending the other Perſon can then only require the Money,
the Force of the Obligation, and ſecondly that the when I have receiv'd certain Aſſurance of Me
Event expreſs’d in it do not as yet appear; at leaſt vius's Life. But if we take a cloſer View of theſe
that it be at preſent uncertain, as to our Under- Matters, we ſhall find that the above-mention’d Pro-
ſtanding.
miſes, and the reſt of the ſame Nature, ought to be
III. Hence we may conclude, That thoſe additio- interpreted in this Senſe, I will give you ſo much
nal Clauſes are not properly Conditions, (though if you prove to me that Cæfar paſs’d the Rhine, or that
they ſeem to be ſuch in a Grammatical Senſe) which Mavius the Traveller is now living; and thus they
refer to the Time preſent or paſt. For Futurities on- become truly Conditionel ; but then the Condition is
ly are dark and obſcure to Mortal Apprehenſions, not the Truth and Certainty of the preſent, or paſt
but as for things which are now before us, or have Act conſider'd in themſelves, but the future Proof
already gone over our Heads, we have uſually a of it to the promiſing Party. It is certain therefore,
clear Knowledge of them; and therefore they can that if the Truth of the Matter inſerted, was known
include no power capable of ſuſpending our Af on both ſides, and the Perſons were in earneſt, the
fent. And therefore it is given as a Rule in Promiſe is not Conditional but Abfolute. Again, if
the Inſtitutions (1), That Conditions which regard both knew the Matter to be Falſe, the Promiſe ſhall
the time preſent, or the time paſt, as ſuppoſe paſs for a Jeſt, and conſequently produce no Obli-
I ſhould ſay, I will give ſuch or ſuch a Thing, ligation. If a future thing be added which they
if Titius has been Conſul
, or if Mævius be ſtill alive; knew muſt infallibly come to jaſs, or ſuppoſe, if
do either immediately cancel and annul the Obli- the Sun riſe to Morrom, 'tis generally agreed that
gation, or elſe do not put it off at all, nor hinder ſuch a Clauſe ought not to be reckon'd a Condition ;
it from being pure and abſolute. For if the things in as much as the future Event being already known
annex’d for Conditions, are not as they are ſuppos'd to be moſt Certain and Neceſſary, does not delay
to be, the Engagement is to no purpoſe; but if they the Obligation, nor hinder it from taking place
are ſo, the Promiſe is valid as ſoon as it is made, this very Inſtant. Yet becauſe we ought not
and begins abſolutely to oblige. Yet here it muſt be eaſily to preſuine that the Clauſe is addeł for 110
obſerv'd, That a Condition regarding the time pre- Reaſon, it is worth while to conſider, whether in
ſent or paſt, may be added to an Obligation, in ſuch a Promiſe, the Particle if be not put for the
caſe both or either of the Parties tranſacting, be un- other Particle when (3); ſo that the Engagement
certain of the Thing. And Promiſes of this kind ſhall not be Conditional, but only made for a Day
ſeem to imply a convenient Space of Delay. In as hence; as ſuppoſe thus, I will give ſuch or ſuch a
much as nothing can be demanded by vertue of them, thing to Mórrow when the Sun riſeth.
until it ſhall be made clearly apparent to the Pro And thus we find that every Condition properly
miſer, that the Matter inſerted as a Condition, has ſo call’d, includes ſomewhat which is at preſent
really happen’d; and the Proof of this muſt necef- uncertain, at leaſt to one of the Parties, between
ſarily take up ſome time. For Inſtance, a Man un- whom the Buſineſs is tranſacted ; and the Obligation
skilld in Hiſtory, may be drawn in to promiſe ano- remains in Suſpence (4), till the thing ſhall hereaf-
ther Perſon Ten Pounds, if Cafar ever paſs’d the ter come to paſs, or ihall be demonſtrated by good
Rhine. Now here before the Sum can be claim'd, it
tive, but only a Stipulation, by which the Seller puts off the Delivery of the thing ſold, till he can redeem it, which he engages to
do át a certain time. Theſe ſort of Promiſes may be referred to thoſe which are made for a certain Day, becauſe the time is al-
ways prefixed, or which will come ſooner or later, though it be not appointed. Mr. Hirtius maintains with Reaſon, as ſome
others do, that where there is a doubt, a Promiſe ought to be thought purely conditional rather than made on a ſure foot,
(2) Our Author here includes fully the effect of Conditions, for they nor only ſuſpend the effect of an Engagement, but diſan-
nul or change them where they are already. Mr. Daumat in his Civil Laws, &c. Part 1. I. 1. tit. 1. Sect. 4. 56. ſays well, That
Conditions are of three forrs, according to the different Effects which they produce. The firſt is, ſuch as accompliſh the En-
gagements that depend on them, as when 'tis ſaid the Sale ſhall take place if the Goods be delivered on ſuch a day. The fecond
is, ſuch as diffolve a Bargain, as when 'ois faid, in cafe ſuch a perſon comes at ſuch a time, the Hire of the Houſe ſhall be void.
The third is, ſuch as neither accompliſh por diffolve an Agreement, only making ſome change in it, as if one agree that in caſe
an Houſe that is Lett be refigned to the Tenant withour certain Moveables which are promiſed him, the Hirer ihall have it to
much the cheaper. Read the fore quoted Section of Mr. Daumat.
Mr. Barbeyrac's NOTES on $ 3.
(1) Conditiones que ad præſens aut præteritum tempus referuntur, aut ftatim infirmant obligationem, aut omnino non differunt, veluti,
SI TITIUS CONSUL FUIT, vel, sí MÆVIUS VIVIT DARE SPONDES ? Nam fi ea ita non ſunt, nihil vilet ftipulatio, ſin autem
ita fe habent, ſtatim valet, Inftit. 1. 3. tit 16. De verbor. obligat. $ 6. See Mr. Bynkerſhoek's Obſervat. Fur. Rom. I. 4.
(2) I know not on what our Author grounds himſelf here, fince in the Moment which Men treat, the Fact, either preſent or
future, on which the effect of a Promiſe depends, is poſitively true or falſe, the Obligation from that inſtant ſeems either abfo:
lutely null or valid, and conſequently, no Condition properly To called can fufpend the Engagement. All that reſults from ſuch
a Clauſe is, Thac the Promiſe can't be claimed till the truth of the Fact be proved; for as the Roman Lawyers ſpeak very well
, que
per rerum naturam ſunt certa, non mor ant
ur obligationem, licet apud nos incerta ſint, Inſtitut. I. 3. tit. 16. De verbor. obligat. $ó.
Theſe fort of Promiſes pats for Conditional only, when we treat about a matter of fact, of which there is no certainty whether
it will be true or no. For then the Uncertainty produces the ſame Effect as if the Clauſe depended upon a future Accidenc.
(3) The Latin Conjunction, Si, which can't be expreſſed in our Language, is elegant in the Latin.
14) Quia quæcung fub conditione traduntur, ita demum fieri poſſunt propria peculiaria, ſi conditio conſummat a est. Quintilian Doors
clam. 336. Mr. Hirtius, who quotes this Patíage, obferves at the fame time, that the diſtinction made by the Roman Law about
this
Matter agrees not with the Natural Law. The Lawyers ſay that there is a difference between Engagements upon Condition, and fuch
as depend on a Promife at a certain time. In the firſt nothing is due before the thing ſuppoſed exiſts
, whereas
in the other there
is a due from the Moment the Promiſe is made, tho’ the perſon can't demand any thing till the time is come Cedere diem fignis
c. 15.
ficat
CHAP. VIII.
Of the Conditions of Promiſes.
87

Evidence, to have already happen'd. When the and Efficacy of the Promiſe lies in ſuſpence ; for it
Condition appears true, the Obligation begins to have muſt then be ſuppoſed to have been made conditionally,
a pure and abſolute Force; if the Condition fail, the That is, in caſe the Promiſer, ſhould bave it in his
Obligation expires with it.
Power. Now this Rule we allow to hold good, pro-
IV. Conditions are commonly divided into Poli- vided that the other Party knew the thing not to
ble and Impoffible. The former are ſuch as make an
be at preſent in the power of the Proiniſer. For o-
Obligation depend on ſome Event, which may. Na- therwiſe it looks like Knavery, when a Man expects
turally or Morally happen. And are again ſubdivid- an abſolute Promiſe, which ſhall begin to bind im-
ed into Caſual, Arbitrary and Mixt (1). A Ca- mediately, to put him off with a Conditional one,
Jual Condition is ſuch as depends, either on the plea- which cannot take place till hereafter. He adds, if
fure of a third Perſon, not obnoxious to our Power the Condition whereby the thing promiſed, may be brought
and Authority, or elſe on ineer Chance and Fortune into our Power, be’ it felf in our Power (1), we are
in reſpect of us, as ſuppoſe in ſuch a Promiſe as obliged to do whatever is Morally
fit and jull
, for the
this, I will give you Ten Pounds if Caius marries Ti- Performance of it. That is, if I promiſe you any
tia; or if it don't rain within theſe three Days, &c. thing, which at preſent it is impoflible to me, but
an Arbitrary Condition is ſuch as depends as to its may bị my Pains and Care be hereafter rendred
being or not being on the Will and Power of him, poſſible
, I am bound to uſe all my endeavours
, that
to whom a Promiſe is made under that Limitati- I may become able to diſcharge my Engagement (4).
on (2). But ſhould a Condition be annexed, de- For Inſtance, a young Student in the Law, promi-
pending on the Pleaſure of the Promiſer (3), the ſes a Man to plead all his Cauſes in the Court, if
Engagement would be inſignificant ; as if one he arrive at any good skill in his Profeſſion. Here
ſhould fay, I will give you Ten Pounds if I think fit. according to Grotius's Rule, the Student is under
For the Senſe of ſuch a Speech amounts to no more an Obligation to ply his Buſineſs with his utmoſt
than this: I make you an abſolute Promiſe that at Strength and Diligence, that he may make himſelf
preſent, and hereafter too, it ſhall be at my Chaice, fit for the Bar. But this will not hold, unleſs the
to promiſe abſolutely or not. And
therefore the o- Perſon promiſing, has exprefly declared or given fair
ther Party can hence require no Right, unleſs the Preſumption, that he will ſet himſelf in earneſt to
Offer be afterwards improved to a full and perfect the acquiring ſtrength for the Performance. Other-
Engagement; ſince the Condition here inention’d wiſe the Condition may be delay'd in infinitum. We
may be perpetually ſtopt, or eluded by the Promi- may obſerve too, That Grotius here uſeth the Term,
fer. So that we may reaſonably fay, That what is Conditio Poteſtativa, quite contrary to that Senſe, in
perfe&tly in our Power, ought not to be confounded with, which we have above defined it; he makes it to be in
or thrown among/t, matters of Chance and Accident. the power of the Promiſer, we in the power of him
If the Condition be indeed in the power of the Pro- to whom the Promiſe is directed.
miſer, and yet ſuch as he is not able or is not willing Laſtly, A Mixt Condition is that, the fulfilling
always to elude, it muſt be enforced by ſuppoſing of which depends partly on the Power of him, who
a particular Time, beyond which it cannot be de- receives the Promiſe, and partly on Chance;
ferr'd; as if I ſay, I will give you ſuch a Summ of Mo- thus for Inſtance, I will give you a Sum of Mo-
ney if I Marry, That is, when I Marry.
ney, if you marry ſuch a Gentlewoman. Now, this
From what has been hitherto offer’d, we may be is not purely at your Pleaſure; for the Gentle-
able to explain more accurately, the Aſſertions of woman may refuſe your Suit, or may die before the
Grotius (a) upon the ſame Head. He ſays, That if Match is finiſh’d.
the thing promiſed, be not at preſent in the Power of We have only this to add, That a Condition is
the Promiſer, but may be hereafter, then the Strength then look'd upon as perform’d, when the other Par-




as

ficat, incipere deberi pecuniam. Venire diem ſignificat, eum diem veniffe, quo pecunia peti poſſit. Vbi pure quis ftipulatus fuerit, do
ceffit, & venit dies ; ubi in diem ceſit dies, ſed nondum venit, ubi fub conditione, neque ceßit, neq; venit dies, pendente adhuc conditi.
one, Digeft. 1. 50. tit. 16. De verbor. fignif. leg. 213. Hence they infer, that what Men pay through Miſtake, before the Condi-
tion is fulfilled, may be recovered, as if it were not due; and 'tis not ſo in Payments made before the time. In diem Debitor;
adeo Debitor est, ut ante diem (olutum repetere non pofīt ſub conditione debitum, per errorem folutum, pendente quidem conditi-
one repetitur, conditione autem exiſtente, repeti non poteft, 1. 12. tit. 6. De Conditione indeb. leg. 10. 16. See Laws 17, 18. But Mr.
Hirtius thinks, that if we judge by the light of Reaſon only, we may require our Due as well in the laſt as firſt Caſe. For
(ſays he) in both, according
to the Roman Law, neither of the Parties can recant without the Conſent of the other, before the
exiſtence of the ſuppoſed Fact, or the Term agreed on. In both the Obligation deſcends upon the Heirs, in both Caſes there
can be no Action at Law. All the difference then that can be is this, That the Condition may fail ſometimes, whereas the
Term, either fixed or uncertain, will come certainly. Hence Mr. Hirtius concludes, contrary to the Opinion of many Doctors,
that when we promiſe a thing which is not in Nature, and which can't take place, but on the account of a future Engagemene
regulated by the Laws, the Promiſe is really Conditional, tho' there be a time fixed; as if a Man
promiſes any one the Fruits
of
a Year, and to give ſuch a Porcion with his Daughter. For it ſuppoſes that there will be Fruit, and that the Marriage will be
compleated. Vid. Digeſt. I. 23. tit. 3. De Jure Dotium, leg. 21.& 1. 45. tit. 1. De Verb. Obligat. leg. 63.
Mr. Barbeyrac's NOTES on S 4.
(1) We find this Diviſion in the Code, 1.6. cit. 51. De Caducis tollend. S 7. Sin autem aliquid ſub coditione relinquatur, vel cda
Suali, vel poteſtativa, vel mixta, quarum eventus ex fortuna, vel ex honor at & perſone voluntate, vel ex utroq; pendeat, &c.
(2) Theſe ſort of Conditions, as our Author obſerves here, are alſo called promiſcuous in the Digeſts, 1.35. tit. 1. De CoR.
ditionibus do Demonſtrat. &c. leg. II. S 1.
(3) Stipulatio non valet in rei promittendi arbitrium collata conditione, Digeſt. 1. 45. tit. 1. De Verbor. Obligat. leg. 17. Illam
autem ftipulationem, SIVOLIERIS DARI? inutilem effe conftat, Ibid. leg. 46. & 3. See alſo, the 108 Law, s 1. &1. 18. tit. 1.
De contrahenda Emptione, &c. leg. 7. princip. & 1. 44. tit. 7. De Obligat. do A&tion. leg. 8.
(4) Probably (ſays Mr.
Thomaſius in his Inſtit:* Juriſpr. Divin. 1. 2. c. 7. $ 112.) Grotius had ſome Example in his Mind, as
this, I'll marry you if I commence Dostor. From whence Mr.
Thomaſius infers, that as he had not a ſtock
of Learning great enough
to commence Doctor in an Univerſity, a young Man who promiſes Marriage on chat Condition may eaſily diſengage himſelf.
(a) Lib. 2.C.11. 1. 8.n. 2. (6) si conditio fit poteftativas
ty

88
of the Conditions of Promiſes.
Book III.
other Party accept of this vile Condition (3), and a-
ty concern'd, does himſelf hinder it from being the ſame, as if it were Naturally fo. Should the
perform'd (5).
V. Impoſſible Conditions (1), are either Naturally ctually fulfil it
, how far he may then clain the Per-
or Morally" fo; That is, foine inatters by the Nature formance of the Pronife (4), is eaſily to be gather'd
of things cannot be done, others by the Laws ought from the preceding Chapter, 9.8.
rlot to be done. Such Conditions annex'd (2), elpe In Commonwealths, Proviſion may be made by
cially if both Parties knew them to be ſuch, do ac- Civil Ordinances, that in a Promiſe utter'd under
cording to the plain and ſimple Conſtruction of the a Condition Naturally impoſſible, eſpecially if the
Words, render the Promiſe Negative, and therefore Party to whom it is directed, kuows not that it is
Null. In Buſineſs tranſacted between thoſe who Impoſſible, the Condition ſhall be Null, and the
live in a State of Natural Liberty, a Condition na- Man reſcued from the Cheat and Deluſion. As for
turally impoſible, does plainly thew that the whole thoſe Pacts and Promiſes, to which vicious Condi-
thing is void. Only with this difference, that to tions are annex'd (5), the Laws of all Countries moſt
deny fome Requeſts, in ſuch a round about way, wiſely declare them void ; leaſt the Contracts of
by making the Anſwer run Affirmatively, but private Men Should tend to the Subverſion of the
clogg’d
, with an impoſſible Condition, is uſually Publick Eſtabliſhment. And thus the Roman Laws
,
reckond an Affront, when a plain Denial might diſannulld all Impoſſible, Vile or Jefting Conditi
not have been taken ill (a). And as to this
point, ons inſerted in Wills (6); becauſe it was thought
if the Condition be Morally impoſſible, the Caſe is moſt abſurdly unreaſonable, that Men in a Buſineſs
(5) The Author ſays here, the other Contracter. (Si per alterum ftet, quo minus conditio impleatur.) But the Law to which
he refers us ſhews thae 'ris badly expreſied chro. Inadvertence. This is the Fact. A Man buys a Library upon Cordicion char
the Magiſtrates ſhall allow him a place to ſet it in; but he is the Cauſe himſelf why they deny him a place. Hereupon the Law-
yers determine that the Seller may force him to take away the Books, and pay the Price agreed on, becauſe the Buyer prevented
the Performance of the Condition. Labeo (cribit, Si mihi Bibliothecam ita vendideris, ſi Decuriones Campani locum mihi vendidiſſent
;
in quo eam ponerem, & per me ftet, quo minus id à Campanis impetrem, non eſſe dubitandum, quin prafcriptis verbis agi poffit. Ego eti
am ex vend to agi poſje puto, quaſi impleta conditione, quum per emptorem ftat, quo minus impleatur, Digeſt. 1. 18. tit. 1. De contra-
hend. Emptione, dico leg. 50. Further, it is certain, and it is a Maxim of the Roman Law, That if either of the tivo Contracters
,
hinder the Accompliſhment of a Condition which 'tis their Intereſt not to be fulfilled, whether the thing depend upon his own
Fact or not, the Condition is accounted as fulfilled in reſpect to him, and the other has a full Right to require the performance
of his Promiſe. The Lawyers extend this to the Promiſe of Enfranchiſement, and to a Legacy by which a perſon is made an Heir
upon certain Conditions ; iníomuch that when the Slave, Legatee or Heir ſo made have performed what is expected on their
part, they have gained their Liberty, Legacy and Inheritance. In Jure civili receptum est, quoties per eum cujus intereſt conditio-
nem non impleri fiat, quo minus impleatur perinde haberi, ac fi conditio impleta fuiffet, quod ad Libertatem, do Legata, & ad Hæredum
inſtituciones perducitur, quibus exemplis ftipulationes quoque committuntur, cum per promiſorem fa&tum effet, quo minus ftipulator condia
tioni pararet, Digeſt 1. 50. tit. 17. De Divers, Regul. Jur. leg. 161. See alſo leg. 39. 174. of the ſame Title, and I. 35.cit. 1. De Condit,
do Dem. leg. 24. where we muſt read with Hotman, Obſerv. 4. 28. Cujus intereſt conditionem NON impleri.
Mr. Barbeyrac's NOTES on 6 5.
(1) Impoſſible Condicions are not, properly ſpeaking, true Conditions. For they neither ſuſpend an Engagement, nor diſ-
annul and change an Agreement which is already valid. For they either cauſe the Promiſe to be abſolved from the beginning,
or cancel the Engagement forthwith, or hinder it coming to an iffue. Before we defined a Condition, we have diſtinguiſhed
the different Significations. Titius Obſervat. 237. Further, the Clauſe which contains an Impoſſible Condicion, is either Affira
mative or Negacive. Our Author ſpeaks only of the firſt fort. As for the other, 'tis evident that ic abſolves from an Engage.
ment, as if we promiſe a thing to any one on Condition that he will catch the Moon in his Teeth, or commit Parricide. See
the ſame Mr. Titius Obſerv. 239. We may alſo find ſeveral things about Conditions in General in Mr. Thomaſius's Diſcourle, De
Filio ſub conditione, ſi filium probaverit hærede inſtituto, and principally Chap. 2. It is the Ioth in thoſe printed at Leipfick.
(2) Sub Impoffibili Conditione fa&tam ftipulationem conſtat inutilem eſſe, Digeſt. I. 44 cic. 7. De Obligat. c AEtion. leg. I $ 11, Non
folum ſtipulationes fed etiam cæteri quoq contr 1&tus, veluti emptiones, locationes--quia mea re, quæ ex duorum pluriumve conſenſue
agitur, omnium volunt as spe&tetur, quorum proculdubio in hujuſmodi a&tu, talis cogitatio eſt, ut nihil agi exiftiment appoſita ea conditio-
ne, quam ſciunt es: impoffibilem, Ibid. leg. 31. See alſo the Inſtitutes, 1. 3 tit. 20 De inutil. Stipul. S. 11.
(3) Generaliter novimus turpes ſtipulationes nullius esſe momenti, veluti ſi quis homicidium vel ſacrilegium ſe fa&turum promittat,
Digeſt 1.45 tit. i De Verbor. Obligat. leg. 26, 27. Item quod Leges fieri prohibent-veluti ſororem ſuam nupturam fibi aliquis fti-
puletur, Ibid. leg. 35 S 1. The ſame Lawyers ſay, with Reaſon, that it hach place, when likewiſe the thing is afterward allow
ed by the Laws, becaufe we muſt judge of a Promiſe according to the time it was made in. Nullius momenti fore ftipulationem,
perinde, ac fi ea conditio que natura impoſibilis eſt, incerta efet, nec ad rem pertinet, quod jus mutari poteft, & id quod nunc impoffi
.
bile est, poſtea poſibile fieri, non enim ſecundum futuri temporis jus, ſed ſecundum præſentis debet æftimari ftipulatio, Ibid. leg. 13756
.
(4) 'Tis plain, nor.
For every Promiſe made on ſuch a Condition is null in it ſelf, inſomuch that none hach Right to require
the Accompliſhment. 'Tis another Queſtion, whether we may require a thing actually given by virtue of a Promiſe made on ſuch a
Condicion already executed ? See what is ſaid Note 2 upon s 6 of the foregoing Chaprer.
(s) See the Texts quored in Nore 3, and Digeſt. 1. 7. tit. 8. De uſu do hibitat leg. 8 S 1,
(6) That is to ſay, the Legacies which the Teſtator makes to depend upon ſuch a Condition, were not allowed to be effectual
.
Sub impoſibili Conditione, vel alio modo fa&tam inſtitutionem fa&tam non placet vitiari,Digeft
. I. 28 tit
. 7 De Conditionibus, Inftit. leg. I.
Conditiones contra Edi&ta Imperatorum, aut contra Leges, vel que Legis vicem obtinent ſcripts, vel contra bonos mores, vél deriſorie aut
hujuſmodi, quas Prætores improbaverunt, pro non ſcriptis habentur, at perinde ac ſi conditio Hereditati
, five Legato adje&ta non effet, ca-
pitur Hereditas Legat umve, Ibid. leg. 14 See Mr. Daumat's Civil Laws in their Nacural Order, Part 2 1.3 rc. Sect. 8 $ 18, &c.
Tis eaſie to diſcern the difference as to Validity, which the Laws make here berween Promiſes and Agreements made between
Men when they are alive under an Impoſſible Condition, or Diſhoneſt, and the Diſpoſals of a Teſlator attended with the like
Condition. In the firſt che condition is inipoſed by the Conſent of both parties, who knowing it, ſaw the Impoſſibility or Tur-
pitude of it. They ought to be ſuppoſed to treat in ſport, ſo that if either of them make any account of ir, 'ris ſo much the
worſe for him, becaule he knows how things were managed, and could have no reaſon to look upon it as a ſerious Action. See
leg. 31. of the D geſts, De Obligat. do Action, quoted Note 2 a foregoing. But 'tis not ſo in Wills. The Legatee has no knowledge
of the Teftator's Deviſes, and lo is 10 far from looking upon his Declaracion as a Trifle, that he believes he acted ſeriouſly in his
laſt Moments, although the Condition ſeemed to infinuate the contrary,
(a) When Miltiades in Corn. Nep. c. 1, 2. ſummond the Lemnians to yield up their Iſland to the Athenian Power, they anſwer'd
in a ſcoffing manner, that they'd then ſurrender, when the North-wind, which was directly contrary to Athens, brought him from
home to Lemnos. The General took no more notice, but failing by them, pofſefled himſelf of Cherſonelus, and there fix'd his
Seat and Command; and ſoon after return'd to Leranos, whither now the North-wind directly carried him, and claim'd their
Promiſe ; his Home, as he ſaid, nor being now Athens, bur Cherſoneſus. The Inhabitants nor daring to make Reſiſtance, fairly
quitted the Iſland; but it was, non di&to, led ſecunda fortuna adverſariorum capta, nor won by the force of their Word and En.
gagement, but by the good Fortune of their Enemy. Such was the Promiſe of Lefdeguier made to Mapheo Barberini about pro-
fefſing the Romiſh Religion, which we find Gramond. Hift. Gal. l. 16 p. 708.
fo

Chap. IX.
89
Of the Miniſters or Agents, &c.
fo very ſerious and grave, ſhould be put upon with from his Obligation. But as little Indulgence as
trifling and impertinent Clauſes (a).
pollible ſhould be granted to this Exception; as
VI. It in Promiſes
, mention be made of a certain well left Men ſhould abuſe it by applying it to the
place, without mention of a certain time, it is taken Principal Articles, as becauſe it is not to be pre-
for granted, that ſo much time ſhall be allow'd fum'd, that perſons would clog a ſerious Covenant
for performing the Promiſe, as will ſerve to bring with Clauſes impertinent and unneceſſary. Gra-
a Manconveniently into the place of Action (1). mond. Hift. Gal. 1. 16. obſerves of the ſecret Arti-
VII. But in caſe a limited Time be expreſly ad- cles of Marriage between Charles the Firſt, when
ded, this
will cauſe that the Obligation ſhall not Prince of Wales
, and Henrietta of Bourbon, that
exert its Effect till ſuch a Space be expir’d, or that they were added by the moſt Chriſtian King in
no Demand ihall be made before the appointed Complement to the Court of Rome; neither Party
Day (1).
imagining that they were intended to be kept.
VIII. It may be convenient in the laſt place to Promiles under a Poteſtative or Arbitrary Condi-
examine in what Points theſe Conditional Promiſes dif- tion, do in this agree with Pacts, that in both a
fer from Pacts, and in what Points they may be re- Man muſt perform ſomewhat on his ſide, before he
ſembled to them. In this then both thoſe kinds of claim the Promiſe or Bargain of the other Party.
engagements ſeem to agree, that as the former do But in this they differ, that in the former the per-
not bind, unleſs the Condition be made good, fo ſon promiſing does not think it much his Intereſt
the latter, when one Party forbears to perform the whether the thing be perform'd or no ; at leaſt he
Articles, do by no means oblige the other (1). And does not intend to oblige the other Party to a
hence it is a common Remark, that the particular Coinpliance, but leaves him to uſe his own Plea-
Heads of a Contract are in the manner of ſo many ſure. But in Pafts, as the Reaſon why I have un-
Conditions. Some indeed make one Exception to dertaken any Performance, is the proſpect of fome-
our Rule about Fasts; That in caſe any Article what to be done for me by the other perſon; ſo
ſhould be added, not for Uſe, but perhaps out of if he fail in his part, I am not only releas'd at pre-
Gallantry or Complement, the Non-performance of fent from mine, but I may oblige him by force to
ſuch a Matter ihall not releaſe the other Party ſtand to the Agreement.
Mr. Barbeyrac's NOTES on § 6.
(!) Loca etiam inſeri ſtipulationem ſolent, veluti CARTHAGINI DARE SPONDĒS?. Qua ftipulatio licet pure fieri videtur, tamen
Teipſa babet tempus adje&tum, quo promiſſor utatur ad pecuniam Carthagini dandam, Inſtit. 1. 3 cit. 16 De Verbor. Obligat. S s. See
Digeft. I. 45 tit. 1 leg. 73 in princip. & leg. 137 S 2. As alſo Mr. Daumat's Civil Laws, &c. Parc i l. tic. I Sect. 3 $ 6. And
Digeſt. Tit. De eo quod certo loco dari oportet, 1. 13 tit. 4.
Mr. Barbeyrac's NOTES on S 7.
(1) Id autem quod in diem ſtipulamur, ſtatim quidem debetur, fed peti prius quam dies venerit, non poteſt, Inftit. 1. 3 tit. 16 $ 2.
See Mr. Daumat in the place above cited, $ 7. Farther, it is certain that whenever there is no time fixed for the performing,
of the thing engaged, the Promiſe is forthwith to be executed, and will admit of no other delay than the Nature of the thing
requires. Quotiens autem in obligationibus dies non ponitur, præſenti die pecunia debetur, niſi locus adje&us Spatium temporis inducat
quo illo poßit pervenire, Digeft. 1. 45 cit. 1 De Obligat. do Adion. leg. 41 $1. See alſo Lib. so tit. 17 De Diverſ. Reg Jur. leg. 14.
And Seneca's Excerpt. Controv. 3, 5. fub fin.
Mr. Barbeyrac's NOTES on $ 8.
(1) See what is laid Lib. 5 C.11$ 9.
(a) Thus Eumolpus’s Will runs in Petronius, “Let all thoſe to whom I have given Legacies, beſides my Children, receive
" them upon theſe Terms and Condicions, That they cut my Body in pieces, and eat ic amongſt them before the People. Of
the ſame kind is Tireſias's merry Scory in Horace, 1. 2.f. 5, 84, doc.
Me Sene, quod dicam, fa&tum eſt. Anus improba Thebis, Scilicet elabi ſi posjet mortua : Credo
Ex Teſtamento fic eft elata : Cadaver
Quod nimium inſtiterat viventi...
Vn&tum oleo largo nudis humeris tulit Heres :
Which place the Scholiaft thus interprers, « The old Gentlewoman order'd by will, that her officious Heir ſhould carry her Bo-
5 dy naked, well oil'd, upon his Shoulders to the Grave, with this pleaſant Thought, that ſhe might at leaſt flip from him now
" Mhe was dead, though he had ſtuck ſo cloſe to her during her Life, that ſhe could never before eſcape his Importunity. See
more on this point in the Civilians, in Lib. 7. tit. 8. D. de uſu do habit.


CHA P. IX.
Of the Miniſters or Agents concernd in contracting Obligations for
other Men.
1.
II.
We may Promiſe and Bargain for another. | V. How far another may accept a Promiſe for us,
How many ſorts of Commiſſions there are? VI. Heirs can't accept a Promiſe for a perſon dead.
III
. How if a Deputy die before he has finiſhed? VII. Of a Burden annexed to a Promiſe.
IV. The difference Letween a Deputy and Mediator. VIII. The
General Diviſion of Paets or Bargains.
IT is very uſual for us to confirm and ratifie
Paets fineſs to explain. This then is certain, that a Man
and Promiſes
, not immediately by our felves
, is oblig’d, not only when he makes known his Con-
be obſerv'd in ſuch Proceedings
, it is now our Bu- is directed, iminediately from his own Mouth, but
alſo
M

90
Book III
Of the Miniſters or Agents
alſo when he ſignifies the ſame to another Man, Matters be inſerted in them, as are diſagreeable to
whom he has impower'd to tranſact on his behalf. the Nature of the Affair given in Charge, and luck
The Agent in ſuch an Affair is to be look'd on as as we cannot be preſumed to have conſented to (3)
a kind of Inſtrumental Cauſe; in as much as he not We have a famous inſtance of ſuch a Cheat in
only does all by another's Authority (1), but like- Blanks recorded by Zonaras, Tom. 3. and by Gly.
wife acquires no proper Right, brings 10 Obliga- cas, Tom. 4. in Roman. Lacaper. circa princip. The
tion on himſelf, referring to the perſon with whom Patriarch Tripho being accus’d of extream Ignorance
,
he is appointed to treat; but obtains a Right only and as one that was not ſo much as capable of
for the perſon who has employ'd him, and to him Writing, to confute the Cenſure, wrote down his
indeed he ſtands under an Obligation to manage Name in a fair Paper, before the Judges appointed
.
his Concerns with Honeſty and Faithfulneſs. For This Paper Theopbanes of Caſarea fiild up with a for-
thoſe Actions of another do produce an Obligation mal Reſignation, and ſo brought it to the Emperor
;
or a Right in us, and are conſequently to be eſteemd who, as the Plot had been laid, took hence an occaſion
ours, for the performing of which we have inveſted to eject the Patriarch. A Latin Poet, as our Au-
the other perſon with full power, and have openly thor obſerveş
, ſharply reproves the Pope, who by
profeſs’d that we will acknowledge them for our ſigning Blank Papers, hath been the Cauſe of a
own. But before a third Man can treat to any ef- thouſand Forgeries.
fect or purpoſe with ſuch a perſon, 'tis neceſſary he
be well aſſur'd that we have choſen and conftitu An pulchrum fatis eft, & fummo Præfule dignitat
ted him the Interpreter of our Will, and that we Impreſſas Jigno vacuas emittere chartas,
will account whatever he acts as perform’d by our Quas poffit Lator variis inſcrivere nugis,
ſelves. On this Foundation depend moſt of the Cum volet & miſeris falfas afingere culpas, abr
Rules of the Roman Law concerning Deputations
Gunthen. Ligurin. v. 656,
againſt the (2) Maſters of Ships for the Facts of
their Deputies againſt (3) Merchants, for the Tranſ If I depute a Man with limited Orders, he can-
actions of their Factors, and againſt the (4) Maſter not lay an Obligation on me beyond the Bounds of
of a Family for the Deed of his Slave, or his Son. his Inſtructions.
II. Now we are wont to depute another to Co If any Aſſent be ſent with a double Commiſſion,
venant in our Name, either by a general Commif- one Open, to ſhew the perſon with whom he is to
fion (1), impowering him to do whatever he thinks tranſact, the other Secret, preſcribing what Steps
moſt convenient for our Affairs; or by an expreſs he ſhall take, and how far he ſhall proceed; it
and limited Form, preſcribing him both the Sub- may be made a Queſtion, Whether the Agent ſhall
ject and the Manner of his proceeding. In the for- oblige his Principal
, if he exceed his private and
iner Caſe I ſtand oblig'd by whatſoever he has con- fecret Orders, yet ſo as to keep within his open
cluded about the bulineſs in hand, Honeſtly, or Commiſion, where the Affirmative ſide ought to be
Bona fide. It is neceſſary to add this Reſtriction ; maintain’d (a). For by my open Inftructions I bind
for he cannot bind me by what he does treache- my ſelf to the third perſon, with whom the Con-
rouſly and with a knaviſh deſign of circumventing tract is made, that I will ratify and make good
and abuſing me, in as much as when I conferr'd what my Agent ſhall conclude on. And by my
ſuch Authority upon hiin, I muſt be thought to ſecret Orders I bind my Agent not to recede from
have fuppos’d his Integrity as an eſſential Condi, ſuch poſitive Terins; in which point if he tranſ-
tion. Nay, the acting bona fide, or uprightly and greſs, he ſtands accountable to me for ſo much as I
faithfully implies this farther, that what the Suh- loſe by his Miſmanagement. But I am ſtill tied to
ſtitute performs, ſhall not derogate from the Honour perform to the third perſon, what was thus granted
and Advantage of his Principal ; at leaſt ſo far as in iny Name. For otherwiſe there could be no
the preſent poſture of things will bear, For to be manner of Safety in treating by Commiſſioners, it
ignorant of theſe Points, is almoſt as groſs a Fault, being ever to be fear’d left their ſecret Direčtions
as open Diſhoneſty (2). The ſame muſt be ſaid of ſhould differ from their open Powers; neither could
thofe Blank Papers with our Names ſubſcrib’d at there be a more ſpecious pretence made uſe of to
the bottom, which we often deliver to our Agents overthrow all Affairs tranfacted by Mediation, and
to be fill d'up and turn’d into Inſtruments of Ob- to deceive and abuſe Men with vain Treaties (6).
ligation. Theſe ſhall not bind us at all, if any ſuch But it muſt be obſerv’d, we ſuppoſe here, as in the
Sect. 2, 3.
Mr. Barbeyrac's NOTES on Chap. IX. § 1.
(1) Urus autem procuratoris per quam necesſarius est, ut qui rebus ſuis ipſi ſuporeje, vel nolunt, vel non poffunt, per alios posſint, vel
agere, vel convenire, Digeſt
. Lib. 3 tit. 3 De Procuratoribus, leg. 1 $2. Poteſt quis per alium, quod poteft" facere per ſeipsum, Decre;
tal. Lib. 6. De Regul. Jur. c. 68. Qui facit per alium, eft perinde ac fi faciat per ſeipſum, Ibid. c. 72.
(2) It is called Attic Exercitatoria, which is created of Digeſt. Lib. 14 cit. .
3) AElio Inſtitutoria, lee Digeſt. Lib, 14 tit. 3. Code, Lib. 4 cit. 25. And Mc Daumat’s Civil Laws, doc. Part 1 Lib. I tit. 16
(4) See Inſtit. Lib. 4 tit. 7. Quod cum eo qui in aliena poteſtate eſt, negotium geſtum eſſe dicitur, and Digest. Lib. 15 tit. 4. Quod
juſu.
Mr. Barbeyrac's NOTES on 6 2.
(1) Procurator autem vel omnium rerum, vel unius rei eſſe non poteft, Lib. 3 tit. 3. De Procuratoribus, $ 1.
2) A Procuratore dolum, & omnem culpam, non etiam improvi[um caſum præftandum elle Juris auétoritate manifeſte declaratur
,
Code, Lib. 4 tit. 35 leg. 13. See alſo leg. 21. and upon this whole Matter, Mr. Daumat's Civil Laws, doc. Lib. I tit. 16 Sect. 1, de.
(3) In fine, 'tis certain that a Man is bound by his own Hand, althohe to whom the Blank is committed fills it up other-
wile than he intended, provided there be no talle Dealing between the third perſon and him. This appears by the Example
which Mr. Hirtius brings of a Man of Buſineſs, who being employed by his Maſter to borrow a thouſand Crowns, took up two
his blank Bond; for here was no faule in the Lender, but in him only who imprudently incrufted his Deputy.
(a) See Grot. I. 2 c. 5.12. (6) Vid. Memoires touchant les Ambaſſadeurs, p. 582, 583, 588.
thouſand
upon
former
Chap. IX. concern’d in contracting Obligations, &c.
90

former Caſe, that the Agent when he thus tranf: Party, my Revocation ſhall ſtand good, although
greſſes the Bounds of his private Inſtructions, did the Meſſenger being unacquainted with it, ſhould
it not out of a diſhoneſt and treacherous deſign (4). go on in fignifying my firſt Reſolution. But if a
III. If we make uſe of a Deputy in tranſinitting Man acts for another in the latter way of Deputa-
a Promife to another Man, and the perſon employ'd tion, unleſs the Change of Mind be notified to him,
happen to die before he have declar'd our Propoſal it ſhall be void, and his Principal ſhall ſtand oblig’d,
to the other, or obtain'd his Affent, it is plain his if he proceed to ſettle the Buſineſs (1), as he was
Promiſe may be revok'd (1). For my expreſs Will at firſt coinmiſſion’d. For the Principal when he
in this caſe was to contract an Obligation by the choſe to offer his Promiſe
by ſuch an Agent, lodg’d
Words of this perſon only whom I intruſted with the obliging Power in his Perſon, and not in his Poc-
the Affair. And therefore although he may have ket; that is, he intended him not barely for the
declar'd his Meſſage to a third Man, whence it may Meſſenger of his purpoſe, but for one that ſhould
come to the Ears of the Party to whom it was dire- employ his own Judgment as well as his Bodily
Eted, yet this way of communicating the Matter Service in the Affair (2). The fame Diſtinction
can lay no Tie upon my Conſcience. For it was the Civilians apply to the Queſtion, Whether a
neither my deſign in the leaſt to render my ſelf Grant ſhould hold good, in caſe the Donor die be-
oblig’d by the means of this third perſon, nor is he fore it be accepted. Which they affirm, If the per-
fo fully acquainted with my Will, as to give ano- fon deputed to carry the Grant were of the former
ther any good aſſurance of it. But the Caſe is o- kind, becauſe then nothing would be wanting on
therwiſe as to a Bearer whom I intruſt only with the Donor's part. But they deny it, if the Agent's
Letters of mine, expreſſing my Pleaſure to a per- was of the latter fort ; becauſe the Donor did not
ſon at a diſtance. Though the Bearer die before fully make the Grant, but only order'd it to be
he reach the perſon, and the Letters are deliver'd made; or had not yet actually offer'd the thing,
by another, yet this is no hindrance to the contra- but only given Commands for its being offer d.
cting of a firm Obligation. For here the Letters, Yet ſee Ziegler on Grotius, Lib. 2.C. Ji. f. 17. where
and not the Bearer, are the inſtrumental Cauſe of he delivers it as his Judgment, that the Donation
the Engagernent; and it ſignifies nothing to either inay be accepted, in caſe the perſon deputed made
of the Parties concern’d, by what hands the Deeds offer of it during the Donor's Life. But one would
were convey'd and preſented.
wonder how the other Party ſhould make any ſtop
IV. On inany other Accounts there is great dif or delay at Acceptance, if the Donation be ſup-
ference, whether a Man act by my Deputation pos’d to have been thus communicated, Grotius
purely as a Meſſenger, and a Bearer of my Opini- fays, that the ſame Rule is to be follow'd in deci-
on and Pleafure, or as an Agent and Mediator, ding the Controverſie, Whether a perſon thus acting
with a liberty of interpoſing his own Judgment in by a Commiſſion, can bring an Action againſt the
fome Points of the Buſineſs. Which Grotius in l. 2. Heir of the Principal or Donor, for Recovery of the
c. 11. f. 17. thus expreſſeth in other words, Whe- Charges he hath been at ſince the Donor's Death,
ther the perſon be pitch'd on to ſignifie the Promiſe I in executing his Orders (3). In which Caſe the
make, or whether be be authorizd to make the Pro- Author of the Books to Herennius, 1. 2. c. 13. in-
miſe himſelf. In the former Caſe, if I revoke my forms us, that two Roman Judges gave a quite con-
Promiſe before it hath been accepted by the other trary Sentence.
(4) That is to ſay, There was no Tricking between him and the third Party, otherwiſe he is to make good the Damages of
him whoſe Buſineſs he manages ; but the Engagement it ſelf it nor leſs valid in reſpect to the other Contracter dy virtue of his
Orders, which are the Foundation of the Treaty, as I ſpake in the firſt Edition of this work. Nevertheleſs I have obſerved
that Mr. Hirtius maintains the ſame thing, and ſends us to his Diſcourſe, De Obligatione mandantis; do mandatarii contemplatu
tertii, $ 2. which is in Tom. 3. of his ſmall Tracts and Comments printed in 1700.
Mr. Barbeyrac's NOTE on $ 3.
(1) Si adhuc integro mandato mors alterutrius intervenit, i. e. vel ejus qui mandaverit, vel illius qui mandatum ſuſceperit, folvitur
mandatum, Inftit. Lib. 3 cit. 27 $ 10.
Mr. Barbeyrac's NOTES on . 4.
(1) The Lawyers apply this Law here, Si mandaſem tibi ut fundum emeres, poſtea ſcripiilem ne emeres, tu antequam ſcires me ves
tuiſſe
, emiſſes, mandati tibi obligatus ero, ut damno afficiaturis qui ſuſcepit mandatum, Digeft. Lib. 17 tic
. 1. Mandati vel contra leg.
15: See alſo Lib. , tit. 18 De Officio Præſidis, leg. 17. Clementin. Lib. I tic 4. Chap. De Renunciatione, and Costalius on Digeſt.
Lib 3 cit. 3. De Procurat. do Defenſoribus, leg. 65.
(2) Mr. Thomaſius in his Jurisprud. Divin. Lib. 2 c. 7 $ 118. ſays, That we muſt diſtinguiſh ſeveral Caſes here, and examine
chiefly whether the Revocation of an Engagement be addreſſed to the Meſſenger, or to him to whom we are engaged by his
Means? And further, whether the Revocation be ſent before the Promiſe was accepted ? If the Revocation be addreſſed to the Mef-
lenger, and he to whom he is to deliver his Commiſſion has accepted the Promiſe
before he knew of the Revocation, the Promiſer
is obliged to make good his Engagements
, tho' he who was
obliged to let him know it received the Countermand either before
or after the acceptation. And ſo all that can be done is this, if the Meſſenger has given it contrary to order, he may be char-
ged with an ill Management of his Commiſſion But if the Revocation be addreffed to him to whom our Engagements are made,
and he has accepted the Promiſe before he received the Revocation, we muſt then obſerve whether we had a deſign to engage
our ſelves in caſe the Promiſe were once accepted, or we were only ſuppoſed to have notice of an Acceptation ? For it is clear,
that we may revoke our Word by means of ſuch a Suppofition. But if he to whom we are engaged has received our Revocation
before he accepted
our Promiſe, the Engagement is null, whether it be addreſſed to a third perſon or himielf. For in this laſt
Caſe there is a Fraud in reſpect of the latter.
(3) 'Tis a Rule of the Civil Law, That a Commiſſion is of no Force, when he that gave it is dead before the Execution; and
that altho' he has expreſly ordered his Proctor to do ſuch or ſuch a thing after his death, unleſs it be to build him a Tomb, or
buy a piece of Ground for that End. This Mr. Noodt has ſhewed very well
, againſt the opinion of ſome famous Lawyers
, in
But if we conſider the Law of Nature, we may decide it by other Principles, viz. by examin-
ing whether the Nature of the thing or the Circumſtances do probably niake it appear, that he that gave the Commifîon inten-
ded it fhould be executed after his Death. For in this caſe the Proctor ought to execute it
, and all perſons concerned ought to
Field to it. We muſt alſo ſuppoſe that the Proctor knows of the Death of him that gave the Commiſfion ; for if he were igno-
rant of it, whatever he did in that time is valid by the Civil Law, which here follows the principles of Equity. Nam Mandatum
Carritur morte [ Mandatoria] ſi tamen per ignwantiam impletum est, competere actionem utilitatis cauſa dicitur, Digeft. Lib. 17. Man-
dati vel contra, leg. 6 20 princ. See a' ſo the Inſtitutes, Lib. 3 tit. 27 $ 10.
* M 2
V, As
his Oblervat. Lib. 2 c. 1, 2, 3, 4;

92
Of the Miniſters or Agents
Book III,
do not
NO
V. As we may declare our Conſent to an En- to paſs to a third Man, he who obtains the Proiniſe
gagement by an Agent or Miniſter, ſo it is a far- does not ferve his own Intereſt, nor is himſelf con-
ther Queſtion, Whether a third perſon may accept cern’d in the Gain. But if I make a Penal Stipula-
in our behalf, a Promiſe inade to us by another. tion, that is, if I procure ſuch an Engagement as
And here the Diſpute is not about thoſe perſons this
, Unleſs you give Seius an Hundred Pound, you
whom we have commiſſion'd to make acceptance in Jhall by pay of Puniſhment pay me Fourſcore, I then
our Name; for what we do by them we are ſuppo- acquire thus much Right at leaſt, that if
you
fed to have done our felves
, and when we have in- make good the firft Sum on my Friend's account
,
truſted a Matter to another Man's pleaſure, our I can demand the latter on my own. This Rule
Willand Content is included in his. But the Doubt of the Roman Courts ſeems to have been introduced
regards only thoſe whom we have not in this man- for the lefſening the Number of Suits. For the
ner authorized. And here Grotius obferves (@}Judge might well rebuke the Importunity of fuch
« That we ought to diſtinguiſh, Whether he who a Complainant, who ſhould give him and others a
“ makes us a Promiſe on behalt of a third perfon, publick Trouble, without being himſelf concern'd
“ does addreſs and bind himſelt immediately to us, or intereſted in the Affairs. And though it can-
or whether he proiniſes directly to the abſent not indeed be faid to be no advantage to us, when
Party, and uſeth us only for Witneſſes of the Act. by our Means we derive a Benefit on a third
per-
That is, whether the words run thus, I promije you fon, in as much as we thereby oblige him to a
that I will give Seius such a thing, and you are Wit- grateful ſenſe of our Service; yet it was thought
nefs of this my Reſolution. In the former Cafe, ac- very improper to grant a Man an Aktion for the re-
cording to the Natural Senfe and Import of the covery of a thing in another's Name, which that
Promiſe, ſo foon as I have accepted it, I acquire a other Party could not demand in his own; and con-
Right of taking care that the thing mention'd be fequently to give a Man the privilege of purchafing
transferr'd to the third perſon, if he too will accept the Friendſhip of a third perſon at the Charges of
it; ſo that the Proiniſer in the inean time cannot a fecond.
revoke his Engagement. Yet he to whom the Pro But in the other Caſe, when the Promiſe runs af
miſe was immediately directed, may remit it be- ter this manner, I engage, or I declare before you,
fore the third Man has declared his Acceptance. that I will give Seius Juch a thing, if you are not
The Promile then ſeems on the whole, to amount cominillion'd-by Seius to accept the Offer (2), your
to this, I will give Seius ſuch a thing, if you pleaſe. Agreeinent to it will have no Force or Vertue ;
And conſequently it is in your Power and Choice, you neither acquire a Right for your ſelf, nor for
whether you will tranfer the Promiſe on Seius, or Seius, who does not acknowledge your Aćt for his
whether by refuſing the Offer, you will hinder it own. And therefore it ſignifies nothing, whether
from coming to him by your Means. And this is the Witneſs here yield his Conſent to the Promiſe
all you can do; for if I am abfolutely reſolv’d to or not; ſince it is not directed to his own proper
confer the Kindneſs, I may perforin it without perfon. And the Promiſer, in as much as Seius ob-
your Mediation or Áthſtance. But if you declare tains no Right by the Witneſſes acceptance of the
your Approbation of the Propoſal, I am not then Propoſal, may revoke it without Injury; tho' not
at liberty to repent, before the inatter had been always without a breach of Conſtancy and Truth.
made known to Seius; and if he joyn his Accep VÍ. It is farther certain, that it any Offer be
tance to yours, the Promiſe ihall by the Law of made to a perſon yet living, by Letter, Meſſenger,
Nature be good and valid. Indeed the Roman
Indeed the Roman or the like, and he happen to die before he has ac-
Laws declar'd all thoſe Stipulations to be Null (1), cepted of it, his Heirs cannot accept of it for him;
which were made for the Benefit of a third Man, and conſequently that ſuch a Promiſe may fairly
without having a Penalty annex’d to them. And be revoked. For the Promiſer ſeems plainly to
the reaſon they gave for their Judgment is this, have refer’d the Acceptance to the choice of the de-
That the original deſign of inventing Stipulations
, ceas'd Party, not to his Heirs. Nor is he preſumed
was to enable a Man to obtain fornewhat for his to have thought of this Accident, or to have been
own advantage; whereas if the thing promiſed be willing that his Proniſe ſhould ſtand good upon
Mr. Barbeyrac's NOTES on S 5.
(1) The Words are, Alteri ſtipulari_--nemo poteſt. Invent & enim ſunt hujuſmodi ſtipulationes five obligationes ad hoc, ut unuſquiſque
adquirat fibi, quod ſua interest. Cæterum fi alii detur, nihil intereſt ſtipulatoris. Planè fi quis velit hoc facere, pænam ſtipulari conve-
niret, ut nifi fit ita fa&tum, ut eſt comprehensum committatur, pene ſtipulatio etiam ei, cui nihil intereſt. Poenam enim cum ſtipulatur
quis, non illud infpicitur, quid inter ſit ejus, red que ſit quantitas in conditione ſtipulationis
. Ergº ſi quis ita ftipuletur, Titio dari nihil
agit, sed ſi adjecerit pænam, NISI DEDERIS, TOT AVREOS DARE SPONDES ? Tunc committitur ftipulatie, Inſtit. I. 3 cit. 20
De Inut l. Stipulat. $ 19.
(2)Mr. Thomafius in his Inſtit. Juriſprud. Divin. Lib. 2 c. 7 $ 119 obſerves, That we muſt carefully diſtinguiſh whether he whom
we take to witnefs have any Inrerett or no, That we give to a third what he accepts in his own Name, altho’ without his Confede;
A diſtinction which the Roman Lawyers have not forgotten, and of which they alledge an Example of a Guardian, who making
over the Management of the Eſtate of his Pupil to another, engaged that he ſhould manage his Affairs well ; or of a perſon who
obliged himſelf to give ſuch or fuch a thing to his Commiſſioner, or of a Debtor, who engaged ſomething for his Creditor, chat
he may not be obliged himſelf to pay, what he is engaged to give him, if he do not diſcharge him at the end of a certaia Tern,
or to hinder him from ſelling a thing engaged till a certain time. For in this and like Caſes the Engagement is as valid as if the
Promiſe had been directly made to him to whom we have promiſed. Sed et fi quis ftipulaturalis cum ejus intereſſet, placuir ftipa:
lationem valere. Nam fi is, qui pupilli tutelam adminiſtrare ceperat, ceſſerit adminiſtrationem contutori suo, lo ſtipuletur rem
falvam fore, quoniam interest stipulatoris fieri, quod ftipulatus est, cum obligatus futurus fit Pupillo, fi male res geferit, tenet obliga.
tio. Ergo do ſi quis Procuratori ſuo dari ftipulatus fit, quod fua intereft, ne forte vel pæna committatur vel prædia diftrahantur, que pien
Hori data erant, va'et ftipulatio, Inftit.
Lib 3. tit. 20 De Inutil
. Stip? $ 19. In fine, this Remark of Mr. Thom afius is delivered in
ſuch a manner in the Edition of this work, which I have, which is the laſt printed in 1702. that he ſeems to have falln upon
another fort of Promiſe, which is accepted by a third perſon without his Conſent, for having made mention of this after the
other, he adds, sed in poſteriori caft, &c. But this, doubtleſs, is a Miſtake in the Impreſſion for Priori; for the Correctors have
over paffed a great number of others.
(4) Lib, 2 C, II f. 18.
pupilli
ſuch
CHAP. IX.
concern’d in contracting Obligations, &c. 93
ti
ſuch a Suppoſition. We are often inclined to make tance; before which it does not of Right belong to
a Grant to a perſon, to be afterwards by him tranf- him.
fer'd to his Heirs, which we are by 110 means dif VIII. The moſt general Diviſion that can be ap-
poſed to give to his Heirs immediately, it being a plied to Pucts, ſeems to be this
, all of them create
very material Point to conſider on whom we be- a Right, but in ſome that Right extends it ſelf to
ftow our Favours (1)
the common uſe of Mankind, in others it is limit-
VII. It may be in the laſt place be enquired, ed to the particular Benefit of certain Perſons. For
whether a Man can add a Charge or Burthen to his "the Life of Men would have proved too plain and
Promiſe
, after the Words have been once deliver- fimple, had they not to the Ordinances of Nature,
ed (w). For that he may before annex what Condi- added their own Inſtitutions; by means of which
tions he pleaſeth, is true beyond Diſpute. This their Proceedings were regulated, not only with
then may be done, ſo long as the Promiſe more Convenience, but with more Comelineſs and
yet perfected by Acceptance, nor made irrecovera- Grace. Of this latter kind, the Principal are (1),
ble, by the plighting of Faith for his Performance. Speech or Diſcourſe, the Propriety, and the value of
For the other Party before he accepts of the Prof- Things, together with Sovereignty or Command; all
fer, can adquire no Right to it; and therefore in which preſuppoſe fome Univerſal Palts, Tacit or
the mean time, as the Promiſer may, if he thinks fit, Expreſs, by Vertue of which they have been tied
utterly withdraw it, ſo he may load and clog it up to certain Forms and Rules. And the introdu-
with new Conditions. But when a Grant is compleat- cing and ſettling of theſe Engageinents, was what
ed by the Act of both Parties, no farther Terms Nature her ſelf, Juppoſing the increaſe of Mankind
can be annex'd to it (1). Vid. Cod. lib. 4. De Do- to a great Nuinber, directed and adviſed; as con-
nat. quæ fub modo.
ducing in the higheſt degree to the Peace, and to
'Twill be ask'd, What if the Burthen be added the Ornament of hunan Life. Having therefore
for the ſake and benefit of a third Perfon; as ſup- finiſh'd our Enquiries about Covenants in general,
poſe I ſay, I'll give you ſuch a Sum of Money, pro- we will proceed to examine theſe Inſtitutions, tó
vided you´ll ingage to maintain Seius a Tear at the diſcover on what Pacs they are founded, and what
Univerſity? We anſwer, that he who binds himſelf Precepts of the Law of Nature, ſuch as we have al-
under this Burthen, may recall it ſo long as Scius ready term'd Hypothetical or Conditional, do ariſe
has not yet confirm'd the Promiſe by his Accep- from them.




Mr. Barbeyrac's NOTES on S. 6.
(1) The Law is this, Neratius conſultus, an quod beneficium dare se, quaſi viventi, Cafar reſcripſerat, jam defun&to dediffe exiſtima-
retur? Reſpondit, non videri ſibi principem, quod ei quem vivere exiftimabat, concepisset defun&to conceſije, quem tamen modum ejfe benes
ficii fui vellet, ipſius eſtimationem effe, Digeft. I. so tir. 17 De Diverſ. Reg. Fur. leg. 191.
Mr. Barbeyrat's NOTES on S 7.
(1) The Words ade, Perfe&ta donatio conditiones non capit.
Mr. Barbeyrac's NOTES on S 8.
(1) Mr. Titius in his Obſervat. 141. reproves many things here, of which I thall mencion ſuch only as to me appear well groun,
ded, viz. 1. All the Duties of Society, of which our Author treats hereafter, and which flow from thoſe three Generals
, which
I have ſpoken of above, Chap. 1 § 1 Note 3. and are only the Conſequences applied to divers Objects which are preſented to
us in a Civil Life; Conſequences from whence reſult ſuch Maxims, which have a place either without ſuppofing any other thing
than the Quality of a Man, or ſuppoſing fome Deed or Humane Eſtabliſhment. So thac the Eſtabliſhments of which our Author
ſpeaks make the matter of the Duties of Nacural Right as well Abſolute as Condicional. 2. All the Eſtabliſhments of which our
Author treats are not founded upon an Agreement. The Introduction and Uſage of the word in general depends not upon any
Agreemenc, either Expreſs or Tacit, if by Agreement we mean an Obligatory Confent. See what is ſaid, Chap. 1. of the follow.
ing Book, 95 Note 1. The Property of Goods is not originally founded upon any Agreement, as ſhall be thewo, c. 4. of the
ſame Book, $ 4. Note 2.
(a) Vid. Grot. 1. 2 C. II f. 19.
SAMUEL

Samuel Puffendorf
LAW of NATURE
N A TIONS
90 GN
σημαίνειν αλλήλοις, και ο λόγο επι πω δηλόν εςι το συμφέegν, και το βλαβερον, ώςε και το δίκαιον, και τη δικον, τέτο το πρG
94
word
OF THE
THES
A N D
19 202
IDOLA
BOOK IV.
T Blog
ESCU
CH A P. I.
Of Speech, and the Obligation which attends it.
I. of the Uſe of Speech.
XIII. Of Ambiguous Speech.
II. Of the Diverſity of Signs.
TOXIV. Of Mental Reſervations.
III. of the Origin of Speech.
XV. How far we may be allowed in ſpeaking fully
IV. Words ſignify according to Impoſition.
to Infants.
V. Impoſition is attended with a Compact. XVI. It is lawful to ſpeak what is falſe, for the
VI. This Compact is either General or Particular.
Preſervation of others.
VII. W bence the Obligation of diſcovering our Mind XVII. How far the Governours of States may be in-
to another
dulg'd in giving out falfe Reports.
VIII. What Truth is, and what a Lye.
XVIII. In what manner it is lawful to deceive an ill-
IX. Every Untruth is not a Lye ; and therefore not deſigning Curioſity.
Criminal.
bu XIX. It is lawful to ſpeak falſe to a profeſs’d Enemy.
X. Of the Right which is violated by Lying, and XX. Whether a Guilty Perſon arraign'd may deny
whence 'tis deriv'd.
the Charge.
XI. How far Part of the Truth may be honeſtly con- XXI. What the Advocates or Counſel may, in this
ceala.
respect do for their Client.
XII. Simulation in Things how far lawful.
HAT Man was deſign’d by Nature for Senſe and Underſtanding of what the Words in.
a Life of Society, this alone might be a port. By means of which one may be able to teach
ſufficient Argument; That he only of another, one may in the moſt convenient manner
all Living Creatures is endued with the command another, and the other apprehend his
power of expreſſing his Mind to others by Articu- Commands; without which alliſtance there would
late Sounds: A Faculty which, abſtracting from ſcarce be any ſhadow of Society, Peace or Difcit
this Social Condition, we cannot conceive to be pline among Men; or at beſt, ſuch only as would
of any uſe or advantage to Mankind. "Tis well be in the higheſt degree rude and unpoliſh’d. For
obferv’d by Ariſtotle (1), Nature doth nothing in (as the Philoſopher goes on) Voice (or a certain
vain, and Man
is the only Animal whom ſhe hath in- kind of inarticulate Sound) is no more than an indir
veſted with the Privilege of Speech : Not ſuch as con- cation of Pleaſure or Pain, and is therefore to be
fifts in the bare Repetition of borrow'd Sounds, like found in other Animals
. Nature having in them pro
the Talk of Parrots, but ſuch as is joyn’d with a ceeded ſo far as to give them a jenſe of what is agret-
Mr. Barbeyrac's NOTES on Chap. 1. S 1.
(1) Ουδέν , ως φαμεν, μα τίω ή φύσις ποιεϊ, λόγων και μόνον άνθρωπο έχει των ζώων ή μενών φωνή σε ηδίας και λυπισε επίσης
μειον, διό και τις άλλοις έχει ζώοι" μέχρι και τότε η φύσις αυτών ελήλυθεν, ώε αιθανέθαι λυπηρά, και το ήδέως, και τα
ท
Tole oixiar ij zónev, Ariftot. l'olitic. I. 1 c. 2.
able
Chap. I. Of Speech, and the Obligation which attends it.
95

able or diſtaſteful; and an ability of lignifying in ſome reported to have driven the Gracians, in a Tem-
fort theſe Affections amongſt themſelves. (Whence it peſt, upon the Rock of Caphareus, to revenge the
appears,
that the Sounds utter'd by Brutes, of what- Death of his Son Palamedes (b). As likewiſe thoſe
foever kind, are determin’d by Nature, not by Cu- other Marks ſet up to guide Ships by Day, and to
ſtom and Inſtitution, like Humane Diſcourſe.) But point out the Rocks and Quickfands; together with
Speech was given to ſignify farther what was uſeful or the Mercuries, pointing Hands, and other Conve-
prejudiciel ; juft or unuft: It being the Prerogative niencies for information of Land-Travellers. And
and Property of Men above their Fellow-Creatures
, to thus heretofore the Perſians by lighting Fires all
have a jenſe of Good and Evil, of Juſtice and Inju- along on the tops of their Hills, uſed in a very lit-
flice, and the like ; lince from their Society and Com, tle time to fpread fome Reports or Alarms through
munication, proceed the united Bodies of Families and every part of the Kingdom (C). An infinite variety
Commonwealths. (a) And ſince that want and Weak- of theſe Signs are met with in Commonwealths em-
nefs which particular Men lie under, may by the ploy'd for the acquainting the Subjects with ſome
alliſtance of others be conveniently remov'd, and particular Matters. To which Head belong Clocks,
yet another cannot apply himſelf to my aid, unleſs Bells, Spears ſet up at Auctions, Buſhes, Signs be-
he firſt underſtand what I deſire ; which he may fore Houſes, and the like. In War, the Sound of
do moſt readily by means of fome Signs and To- Trumpet, Beat of Drum, Diſcharge of Cannons,
kens, and eſpecially by Articulate Words; there- Waving of Colours, &c. And fo too, certain Ge-
fore, that the moſt uſeful Inſtrument of Humane ſtures and Motions have been taken up amongſt
Life may duly obtain its End, in uniting Men in moſt people to denote ſuch or ſuch intentions of
Society; and left by the abuſe of Speech Man the Mind : To go out of the Way, to Riſe up, to
ſhould be rendred leſs fociable, than it he were Bow, to Kiſs the Hand, are Signs of Honour and
dumb or ſilent, it muſt be ſuppos'd a Precept of Reſpect with the greateſt part of the World. To
the Law of Nature, That no Ivian deceive another uncover the Head in the Cereinony of Saluting, or
by thoſe Signs which have been inſtituted to expreſs our to pluck off the Shooes in ſome places is interpre-
Meaning and our Thoughts.
ted as a Mark of Honour, in others of Contempt.
II. Now, to trace this Point from its firſt Head, It is in ſome Countries look'd on as reproachful to
we muſt underſtand, that the Nature and Ability point with the Finger, to bend the Noſe, to bid,
of thoſe Objects which affect our Senſes is fuch, A Fig for one, (fare le fica, as the Italians call it)
as not only gives us notice of their own Prefence with many the like. Motions. To take by the
or Approach, but likewiſe affords our Reaſon an Beard is in ſome Nations the higheſt Affront, with
opportunity of attaining the Knowledge of other others it paſſes for a Token of Veneration; as with
things. And this either becauſe there is a Natural the Tartars, with ſome of the Indians, and, as ſome
Alliance and Connexion between thoſe Objects and think, with the ancient Gauls (d). 'Tis
likewiſe a
the things with which they thus bring us acquainted; cominon Practice to expreſs by fome Geſture our
or becauſe Beings endued with Senſe and Under- deſire of performing ſuch an Action as would re-
ſtanding have, without this Natural Relation, fix'd quire that particular Motion of the Body, by
ſuch Notions upon them, as to make them capable which in ſtrange Countries we, after a fort, fup-
of repreſenting continually the Images of certain ply our Ignorance of the Language. To affirm a
things to the Mind. Hence ariſeth the diſtinction thing by gently bending our Head ; to deny by
of Signs into thoſe which are Natural, and thoſe throwing it on our Shoulders; to refuſe by turning
which owe their Force and validity to Cuſtom and our Back, are Cuſtoms almoſt univerſally receiv'd.
Compact
. Of the former kind we are on every As for our pointing out a certain Thing, or Place
lide ſupplied with inſtances from the frame of by ſtretching our Hand or Finger towards it, this
Nature ; as the Day-break is the ſign of the Sun's perhaps ought to be reckon'd amongſt the Natural,
riſing quickly after; Smoak is the Sign of Fire and rather than amongſt the Arbitrary Signs. What
the like. By Coinpact Men have impoſed the uſe Diſcoveries may be made by Nods, winks, Moti-
and
power of Signifying, on certain Things, Acti- ons of the Fingers, or of the Feet, when particular
ons and Motions, and above all, on Words, or Ar- Men have once agreed on thoſe ways of Intelli-
ticulate Sounds form’d by the Tongue, and alter- gence, is vulgarly known, and need not be farther
wards reduced into Letters : And all theſe are inſiſted upon in our preſent Deſign (e). Lucian (f)
found to be in uſe, either with ſome certain Per- tells ur of a Famous Artiſt in Nero's Court, who
fous, or with the greateſt part of Mankind, cr in expreſs’d the Amour of Mars and Venus
as well by
general
, with all the World. Under the firſt of Dancing, as he could have done by Narration;
theſe Claſſes may be ránk'd the Light-Houſes and whom for this rerfon a certain barbarous Prince
Nightly Fires on the Coaſts, for the direction of begg’d of the Emperor for an Interpreter
. And the
Veſſels: By the abuſe of which, Nauplius of old is Sieur De Sancy, the French Ambaſſador at the Otto-




(a) Add Iſocrat ad Nicocl. paulo poft princip. Plin. N. H. 1. XI C. 51. Thar Power of explaining our Mind, which hath diſtin-
guiſhed us from the Beaſt, hath cauſed another diſtinction between Man and Man, no leſs conſiderable than that between Map
and Beaſt. Quintilian is large on this Subject, Inſtitut. Orat. 1. 2. C. 16.
Sophocl. Oedip. Colon. p. 310. Edic. H. Steph. The Wiſe Inventions which our Mind conceive
Our Speech declares
Pling (N. H. !. 76. 1) expreſíc th the neceſity of Speech in a very ſmart Sentence, when he obſerves that, Externus alieno non
eft hominis vice; One Foreigner is not a Man to another. Add. Garcilas de la Vega, Comm. Reg. 1. 7 c. 1.
6) Add, 1. 10. D. de incend. ruin
. Naufrag. So Lib. 47 tit. 9. (c) Which Cuftom is deſcribed by Barclay in his Argenis, l. 1
sed Polyb. I 10 c. 39, &c. magi ruptias ej epox Teeles, Caſaubon." Epift. 112. Edit. Græv. Jul. African. sesãv, !. 2 c. penule
See likewiſe Ferdinand Pinto, c. 61. Where he i peaks of the Horn, which amongſt the Japoneſe every Man keeps in his Houſe
for a Signal upon occaſion.' (d) From that place in Livy, 1.5 c. 41.
(e) Æſchyl. Agamem.
- Barbarian, let your Hand
συ" αντί φωνής φραζε κουβαν» χρε:
Supply your want of Speech
(1) De Sallatione, Tom. I p. 807 Edic. Amſterd.
man

96 Of Speech, and the Obligation wbicb attends it.
Book IV.
ther ;
Mr. Creech
man Court, gives an account of two Mutes whom Beſides, if others us’d not Words as ſoon,
he ſaw there, one by Nation a Turk, the other a How was their Uje, and
how their Profit known?
Perſian, who by reaſon of their uſing different Or how could He inſtruct the Other's Mind,
Signs and Motions, could not underſtand each o- How make them underſtand what was deſign’d?
till at length a third Mute was found out, For His, being ſingle, neither Force nor Wit,
who was able to perform an Interpreter’s Part be- Could conquer many Men, nor they ſubmit
tween the two former.
To learn his words, and practiſe what was fit.
III. But that which we are chiefly concern’d a- How He perſwade thoſe fo unfit to hear?
bout in our preſent Enquiries, is Specch or Diſcourſe, Or how could Savage they with patience bear
the moſt common and the moſt uſeful Sign amongſt Strange Sounds and Words ſtill ratling in their Ear?S
Men, and introduc'd for the ſake of cominunicating
Notions and Thoughts. Of the Riſe of which Dio-
dorus Siculus, Lib. 1. p. 8. Edit. Rhodom. through He concludes, That ſince Brute Creatures could
his Ignorance of the true Origin of Mankind, gives by different Sounds expreſs different Motions of
this Fabulous Account: The first men who were their Mind,
born into the World, led a Savage Life, without Cul-
ture or Refinement ; going out in Herds to the Paſtures, Quid in hac mirabile tantoperè eſt re,
and feeding on the moſt juicy Plants, and thoſe Fruits Si genus humanum, cui vox & lingua vigeret,
which plain Nature produced. Beirg infeſted with the Pro vario ſenſu varias res voce notarent (a)?
wild Beaſts, Uſe taught them to alijt each other, and
Fear compelld then into Society; by means of which Since Organs fit, ſince Voice and Tongue,
they grew acquainted, by degrees
, with the reſem- By Nature's Gift beſtow'd to them belong;
blance of their Shapes and Features
. And bav- What wonder is it then, that Men ſhould frame,
ing from Confus’d Voice, and without ſignification, ar- And give each different thing a different Name?
rii'd by Jlow attempts to pronounce Articulate Words,
Mr. Creech.
fhewing every thing by Signs, that they had occaſion
to objerve, and to communicate ; they at length gain’d The chief Deſign of Lucretius in theſe Argu-
ability to inform one another of all Matters by Dil- ments, ſeems to have been to oppoſe Cratylus in
courſe. But, inaſmuch as there were many of theſe Plato, who celebrates the firſt Inventor of Words,
Communities eſtabliſh'd in different parts of the World, and the firſt Author of the Names of Things, as a
and every Man join'd his Words together meerly as it Perſon of the higheſt Wiſdom: An Opinion which
happen'd, all did not ſpeak in the Jame manner. And we ſhall examine by and by. And indeed thoſe
hence aroſe the number and the variety of all forts who believ'd the firſt Mortals to have crawld out
of Languages. Lucretius's Deſcription is exactly of of the Earth,
a piece with this. 1. 5. v. 1027, &c.
Mutum & turpe pecus,
At varios lingua fonitus Natura ſubegit
Mittere, & utilitas exprefit nomina rerum ;
A Dumb and Dirty Herd,
Non alia longe ratione, atque ipſa videtur
Protrahere ad geſtum pueros infantia lingus,
could not eaſily hit on any other Account. For
Cum facit uit digito, quæ fint preſentia, monftrent. 'tis manifeſt, that no Languages are born with a Man,
Proinde putare aliquem tum nomina diſtribuiſſe but all are learnt by Uſe and Experience. Whence
Rebus, & inde homines didiciſſe vocabula prima, it comes to paſs, that Perſons born Deaf, are like-
Defipere eft: nam cur hic poflet cuncta notare wife Dumb. And 'tis look'd on almoſt as a Pro-
Vocibus, & varios Jonitus emittere lingua,
digy, when ſuch an one is taught to ſpeak; as hath
Tempore eodem alii facere id non polje putentur ? been in the preſent Age perform’d on the Brother
Præterea, fi non clii quoque vocilus uji
of Velaſco, Conſtable of Caſtile; who having been
Isiter le fuerant, unde incita notities eft
Deaf from his Cradle, was made to ſpeak, to write
Utilitatis ? & unde data eft huic prima poteftas,
to read, and to underſtand Authors. And an 11-
Quid vellet, facere ut ſcirent, animoq; viderent? ſtance of the like wonderful Operationi,
Cogere item plures unus victofque' domare
long ſince given by Dr. Wallis at Oxford. Nor doth
Non poterat, rerum ut perdiſcere nomina vellent ; it look probable, That ſome one Man in the Begin-
Nec ratione docere ulla ſuadereq; ſurdis,
ning ſhould have fram'd a whole Language, with
Quid ſit opus facto: faciles neq; enim paterentur ; an exact Contexture of Words, and a juſt Agree.
Nec raiiona ulla fibi ferrent amplius aures
ment and Conformity to the Things which they
Vocis inaudita Jonitus obtundere fruſtra.
were to repreſent. But 'tis the general Opinion of
Chriſtians, founded on the Authority of the Holy
Kind Nature, power of framing Sounds affords Scriptures
, That the firſt Language was by Almigh;
To Man, and then Convenience taught us Words ; ty God immediately infus’d (b) into the Original
As Infants 110w, for want of Words deviſe Pair, which their Children eaſily learnt, by the
Exprelive Signs, they ſpeak with Hands and Eyes; Uſe and Cuſtom of hearing. And that, as for the
Their Speaking Hand the want of Words ſupplies. Diverſity of Tongues, this was miraculouſly produ-
That One the various names of things contriv'd, ced by the Confuſion at Babel. Yet ſome have
And that from Him their knowledge All deriv’d, doubted, whether even the Language which Adam
-Tis fond to think: For how could that Man tell? ſpoke, was at firſt compleatly full and perfect
, and
The Names of Things, or liſp a Syllable,
rich enough to expreſs all manner of Conceptions ;
And not ancther Man perform't as well ?
inaſımuch as the Scripture directly mentions only
was not
(a} Add. Ding. L.airt. I, 10 p. 754 Edit. Steph. Vitruv. Architect. I. 20.1. (6) See Mr. Le Clerc upon Geneſ. II. 23. and his
Remarks upon the Critical History of Father Simon, p. 422. See likewiſe the Preliminary Differtation upon the Bible, by Mr.
Dipin, p. 122. Edit. Hulle
the
we ſhould grant that the Names ſet on Animals, and Barbarians : Which Aſſertion is likewiſe
CHAP. I. Of Speech, and the Obligation which attends it. 97
the Names which he ſet on living Creatures. As it nius and Diſpoſition, or their principal Affection ;
is certainly true of moſt Tongues, that they were yet thoſe very Primitives whence theſe Names were
at firſt but very poor, and very plain, but were deriv’d, ſignifie merely at Pleaſure. For Inſtance,
enrich'd in time with Copivulners and Elegance: though Adam gave this Reaſon for the Name of
As likewiſe that they have in a long courſe of Eve, Becauſe she was the Mother of all Living; yet
Years, undergone very fignal Alterations; and that that the Word hava ſhould import to live, is abfo-
from their Corruption and Confuſion, many new lutely owing to Impoſition: And though in all Lan-
ones have within the compaſs of a few Ages, ſprung guages, Things allied by Nature, are uſually allied
up in the World (a).
in Name, there being obſerv'd in moft Words of
IV. But this is moſt clear and evident, That the this kind, ſome Conforinity of Structure, and which
power of fignifying determinately, thus or thus, the Grammarians term Analogy; yet this is by no
That is of raing ſuch certain Ideas in our Mind, doth means conſtant and regular, many, Words having
not belong to Words by Nature, but ariſeth pure- very particular ways and methods of Variation:
ly from the Pleaſure and the Impoſition of Men (1); And even this Analogy it ſelf, inaſmuch as it con-
for otherwiſe no Reaſon could be given, why diffe- fiſts in a certain Inflexion and Combination of
rent words thould in different Languages, be ap- Words, is it ſelf eſtablith'd by human Appoint-
plied to expreſs the ſame thing. Which is like- ment. This is the Judgment of Quintilian him-
wiſe true concerning the different Forins and Cha- felf (c); We muſt remember (3), ſays he, That the
racters of Letters. St. Auſtin. (de Do&trin. Chriſtian. Rule and Method of Analogy cannot univerſally be
1. 2. C. 24.) hath made this Obſervation on the drawn, fince in many places it is apparently inconfi-
Point; That one Letter faſhion'd like a Croſs ſtent with it ſelf : For Analogy was not at the firſt
(X) imports one Thing amongſt the Greeks, and Production of Mankind, fent down immediately from
“ another amongſt the Latins; not by the Appoint- Heaven, to teach them the due Form of Speech, but
ment of Nature, but by the Pleaſure and Conſent was invented after they had accuſtom’d themſelves to
“ of Men, in fixing ſuch different Significations ; diſcourſe, and had obferv’d the particular Cadences of
" and a perſon who underſtands both Languages, every Word. It is not therefore built upon Reaſon,
“ when he would expreſs his Mind in Writing to but Example; nor is it the Law, but the Experiment
a Grecian, uſeth this Character differently from and Remark of Speaking ; Analogy being indeed the
“ what he doth when he writes to a Roman. Thus Effeet of nothing but Cuſtom.
to the Word Beta, under one and the fame Sound In Plato's Cratylus (4), the Opinion of the Perſon
“ in Greek, is the Name of a Letter, in Latin, the whoſe Name the Dialogue bears, is to this pur-
“ Name of a Pot-herb: And when I ſay, lege, theſe poſe; That every individual Being includes in its Na-
“ Two Syllables are by thoſe different People un ture the true Reaſon of its Name, which is vain and
“ derſtood in different Senſes. See the Art of abſurd : And that that is not properly the Name of
Speaking, by Father Lami, B. 1. c. 14. Edit. Amji. Thing, by which Men agree to call it, by uttering ſuch
1699. Nor is it any Preſumption to the contrary, or ſuch a Portion of their Voice : Which in one
that we believe Adam (2) to have given Names to ſenſe may be admitted for true; that is, when ſome
the Creatures, not as it tell out by Chance, but particular Men, contrary to common uſe, impoſe
with the higheſt Reaſon and Deſign ; ſuch as were odd Names on things for the Deception of others :
taken from the peculiar Nature of the Things, and As in the Caſe of Jugglers, Strowlers and Gypſies :
fully and accurately expreſs’d their diſtinguiſhing With regard to which, feign’d Names are oppos’d to
Properties, ſo as that upon the firſt found of the true; being fix'd Perſons or Things, contrary to
Words
, the Nature of each Thing might be under- the publick Impoſition. But that there is one and the
ſtood ; as Philo the few
Reports (l). For although Same true Reaſon of Names, innate alike to the Greeks
and ſome other Things, ( for no Man can eaſily falſe. Hermogenes in the fame Dialogue, Thus de-
prove this of all,) were ſuch as denoted their Ge- livers his Opinion on the other ſide; I can never

Mr. Barbeyrac's NOTES on $ 4.
(1) See the Art of Speaking by P. de Lami, Lib. I c. 14.
(2) This is the Opinion of philo the few in the Creation of the World. For Mr. Hirtius quotes another Paſſage here very un-
firly, where he treats of the Suitablenets of the Seventy's rendring the Original Hebrew into Greek, as Philo affirms, who ſays,
τηat they have found proper Words to exprets the Seafe of the Law of Moles, Και οι σωτρέχοντα τοις πράγμασιν ονόματα
Esüesv. From which lant Word Mr. Hirtius might
hiave obſerved, that he ſpeaks of more than one
perſon, and that it ought
not to be tranſlated adinvenit, he found out, but they, ſeeing the Sequel of the Diſcourſe can't otherwiſe be clear. The Paſſage
is in the Life of Moſes, Lib. 2.
Several of the Rabbins, and moſt of the Chriſtian Interpreters follow Philo's Judgment ; but no
shing is worſe grounded. See Mr. Le Clerc on Gen. ii. 19. and F. Malbranche in his Enquiries after Truth, p. 387.
(3) The Latin of Quintilian is this, Sed meminerimus non per omnia duci analogia poſſe rationem, cum & fibi ipsi plurimis in locis re-
pugnet
Non enim cum primum fingerentur homines, Analogia dimiſa cælo formam loquendi dedit, ſed inventa eſt, poſtquam loque-
bantur, o notatum in Sermone, quid quoque modo caderet, itaq; non ratione utitur, fed exemplo; nec lex eft loquendi, fed obferuatio, uk
ipſam Analogiam nulla alia res fecerit, quam conſuetudo. But here demi ſa is
But here demiſa is falſly printed for dimiſa, which is doubtleſs a Fault
in the Princing, though it is not fer down among the Errata.
(4) Our Author gives himſelf liberty in theſe four firſt Paragraphs of this Chapter to enlarge upon things very evident in them-
felves, and well known; and therefore ought rather to be fuppoſed than proved in a work of this Nature; and here is particu-
have left it quite out, buc nor daring to allume that Power, have thought it fufficient to let the Reader Know that it is an ufelets
Plato's Words are, Ονόμα)G ορθότητα είναι εχάσω των όντων φύσει πεφυκυίαν, και το έναι όνομα ότι αν ήνες συνθέμενοι κα-
λοίο, καλώσι, η αυτών φωνής μόeιον επόφθεγγόμενοι
αλλα ορθότητα τίνα ονομάτων πεφυκέναι, και έλλησι και βαρβάροις τίω οσαυ-
των αστισι, Herm. 0, ύναμαι πιναι ας εςιν ορθότης οιόμαχο, συνθήκης και ομολογία, εκ φύσει όχόσο πεφυκέναι όνομα έδιν
εδέναι, αλλα νόμω και έθει των εθισάντων, και καλέντων.
(a) Comp. Hebbs's Leviathan, c. 4. (6) This Opinion is ill founded, as Mr. Le Clerc makes appear in his Nores apga Gen. ii.
lg. Bce Malebranches Search after Truth, p. 387. (c) Inſtit. Orat. l. 1. c. 6.
+ N
be
Digreffion.
98
Of Speech, and the Obligation which attends it. Book IV.

26
ир
,
the Theme of Anima? And the
to con
be perſwaded that there is any other Rule or Standard ſtions or Anſwers, about Reaſons and Derivations,
for the Names of Things
, than Compact and Conſent : when we are once arriv'd at the firft Element of
my Judgment, that the Name which a Man fix- both. Though he afrerwards is very Ingenious to
eth on any thing, whatever it be, is true and proper : no purpoſe, in tracing out the Reaſons even of pri-
And that if be afterwards alter'd that Name for a mitive Words: And yet after all, when he hath ar-
910ther, the laft is no leſs true and right than the for- gued ſo long, in all Appearance, for Cratylus's O.
mer; as 'tis uſual with us to change the Names of our pinion, he at laſt fairly doubts on the whole Mat-
Servants: (Which will hold good, provided no Pre- ter.
judice be hence done to the Common Agreement.) Sofipater Chariſius (*) (b) the Grammarian thus dif-
For nothing Naturally hath ſuch or ſuch an Appélla- courſeth out of Varro, The Latin Tongue is made
tion, but derives it purely from the Law and Cuſtom of Nature, Analogy, Cuſtom and Authority. The Na-
of Speaking. Wlrat Socrates diſputes on the ſide of ture of Verbs and Nouns is immutable, and delivers
Cratylus, doth by no means turn the Cauſe, thus for to us neither leſs nor more than what is receiv’d. Thus
Inſtance, when he ſcouts it as an Abfurdity, If I if a Man Should ſay ſcrimbo inſtead of fcribo, be
ſhould give the Name of a Horſe to what we commonly would be convinced, not by the power and virtue of
call a Man, it would follow, that the ſame thing might Analogy, but by the very Conſtitution of Nature (c).
be truly ſtiled, A Horſe and a Man. It may be an. But we muſt confeſs our felves at a loſs to find out
ſwer’d, in ſhort, That words of publick Uſe derive this Neceſſity of Nature, unleſs it be ſaid, that the
all their Force from publick Impoſition, which pri- Latin Tongue having in it an extraordinary ſweet-
vate Perſons ought not, to its Prejudice, to contra- nefs, wonderfully agreeable to the Ear, it muſt
dict; as we ſhall fhew more at large hereafter. A- hence come to paſs, that we reject at the firſt hear-
gain, That Arguinent of his is no better than a ing, any harth and untunable Conjunction of Let-
Fallacy ; If a whole Propoſition may be falſe, there- ters in that Language (d). Arnobius (+) (e) ſpeaks
fore a part of it, as suppose, the Noun, or Name of excellently to this point; No way of Speaking, ſays
a thing may be likewiſe falſe. For a ſingle Word is he, is by Nature either true and right, or falje and
not capable of that Falſity which we ſometimes improper : For what Natural Reaſon can be given,
diſcover in entire Propoſitions. The long Diſcourſe he or what Law, in the general Conſtitution of the World,
afterwards makes about the Propriety of Terms, will that we ſhould ſay, hic paries, and hæc fella? Since
only hold in ſome Derivatives, but not in Primitives
. neither do thoſe things admit of different Sexes, ſo as
And ſince the ſame things are in different Coun- to be diſtinguiſhed by the Maſculine and Feminine
tries expreſs’d by different Words, it likewiſe fre. Genders; nor can the moff Learned Critick infurm
quently happens, that words which fignifie the ſame me of the Original Reaſon and
Meaning of theſe Terms,
thing, have an Etymology utterly diftinct. Thus hic and hæc ; or why the first fould be applied to the
Oeds the Greek Name for Gud, is deriv'd' froin Olev Male, and the ſecond to the Female Sex. All this
to run; becauſe the Stars which are perpetually proceeds from the Arbitrary Appointment of Man-
running their Courſe, were look'd on as Gods by kind. 03
the Ancients : But what Affinity is there in the Grotius (f) rightly rejects the Opinion of thoſe
Latin Tongue between Deus and Curro? So Man is who make this to be the difference between Things
int Greek term'd évbgwao quafi dvargāv à ©70]e froin and Words, that the latter are naturally the Signs
conſidering or contemplating the Objects which he of our Thoughts, the former not. Indeed if the
Beholds. But muft we therefore Tay, That Homo meaning of the Aſſertion be no more than this,
in Latin comes froin Contemplatio ? The Soul in that Words were inſtituted for no other end, but to
Greek is named Yugh from svefúzery to cool or re- be the Signs of our Conceptions, and that therefore
freſh: But is refrigeratio in Latin for this reaſon their whole Nature and Eſſence conſiſts in their
in
any Perſon may be in tracing Etymologies, and af- to them: We ought then by all means to admit it
ſigning the Reaſons of Words, yet when he hath as true. But if it be intended in this ſenſe, That
gone as high as he can, to the Primitive and Sim- the power of ſignifying ſuch or ſuch a particular
ple Terms, he will be forc'd to acknowledge, that Matter inheres Naturally in Words, but not in
they are purely owing to Impoſition (a). What Things, the Poſition is falſe and groundleſs.
can be
more ridiculous, than that of Socrates, when on the contrary it is true, that words Naturally,
in the Difputation which we have been ſpeak- and without reſpect to human Impoſition, ſignifie
mūp and ideas, he can ſay nothing elſe, but that they Inarticulate Sound as we make uſe of in Sorrow, or
owe their Original to the Barbarians? Indeed he in Laughter, which ought rather to be call’d Noiſe
,
himſelf confeffeth, that there can be no farther Que than Speech. If the ſaid Notion be thus explain’d,
And
a
(*) His Words are, Latinus ſermo conſtat natura, analogia, confuetudine, authoritate; natura verborum nominumq; immutabilis eff,
nec quicquam aut plus aut minus tradidit nobis, quam quod accepit. Nam ſi quis dicat ſcrimbo, pro eo quod eft fcribo,
tute, fed nature ipfius conſtitutione convincitur.
(t) Arnobius's Words are, Nullus fermo nature eſt integer, vitioſus ſimiliter nullus, Quanam enim eft ratio naturalis, aut in mun.
di constitutionibus Lex feripta, ut hic Paries dicatur, & hæc Sella? Cum neque ſexus habeant femininis generibus, maſculiniſque diſcretos
;
neque quiſquam docere dosti limus me toffet ipſum hic G hac quid fint, aut cur ex his unum sexum virilem deſignet, femininis generibus
id quod fequitur applicetur. Humana ifta funt placita.
(a) To this we may add the Remark of Quin&tilian, Inſtit. Orat. I. 1 c. 6 p. 64. Edit. Ludg. Bat. Shall it be affirm'd likewiſe
that
Man took his Name of Homo, becaufe he was, Humo natus, Born of the Earth?
As if all Animals
had not the ſame Original!
Or, as if those Primitive Mortals firſt fet a Name upon the Earth, and then upon themſelves !
(b) Inſtitut. Grammat. I. 1. ex Varrone. (c) we meet with the ſame in Diomedes, 1. 2. (d) vid. Huart. Tryal of Wits, c.in
The
Reafon alledgʻa by P. Nigidius, to prove that Words fignify according to Nature
, in Aul. Gell
. I. 10 c. 4. is altogether vain
and frivolous. (e) Lib. 1. adverſ. gent. p. 45 Edit, Parif. 1605. (f) Lib. 3c, 11. 8.
that

CHAP. I.
99
Of Speech, and the Obligation which attends it.
9.
that ſuch is the Nature of Man above all other A- nour.
niður. In caſe this Office be omitted by thoſe Su-
nimals, that he can fignifie to others the Concep; periors who have fuch a right to perforin it; or in
tions of his Mind, and that words were invented caſe many have been inveſted with the ſame Title,
to be the inſtruments of Communication, then the it ſhall be lawful for every Perſon to take upon
Affertion is true, but not compleat : For it ſhould himſelf ſome term and note of Diſtinction : But as
be added, that theſe Diſcoveries are conveyed not 110 Man ought to aſſume another Name (5), when
by words alone, but by Nods and other Motions. by ſuch an Act of his, the general End of impo-
As we find ſeveral Dumb Perſons who are able to ſing Names may be intercepted and hindred; or
expreſs their inward Conceptions after a very fur- when upon this alteration, any damage or preju-
priſing and artificial manner. Hence, in the Ro- dice, or any probable Danger and Suſpicion of it,
man Law, (a) thoſe who have not the Gift of Speech, is likely to accrue to another Perſon; ſo neither
are yet ſuppoſed to ſay thus or thus, By that ſtriv- ought any Man to hide or diſſemble his true Name;
ing and ſtraining which they uſe, and that Sound and unleſs in ſuch a Caſe, when by this concealment
Inarticulate Voice which is utter'd by them. And 'tis we do not prejudice the Rights of others, and yet
a Rule in the ſame Law (b), That Dumb Perfons procure ſome advantage to our felves, or effect our
may contract Matrimony, by Mutual Conſent with- deliverance from Loſs or Danger; according to thoſe
out Words : That is, it ſhall be ſufficient if they Rules which we ſhall hereafter deliver about the
expreſs their Agreement by Dumb Signs. Nay Obligation to ſpeak Truth. Add. Valer. Max. 1.
Pliny (c) tells us of ſome Nations of Æthiopia, who c. ult. and 1. 7. c. 3. n. 8, 9, See the Oration of M.
had no other Speech amongſt them, beſides theſe Ge- Anton. Majoragius on the fame Subject; and Caſau-
ftures and Motions of the Body (d),
bon ad Baron. Exercitat. XIII, 1, 13.
To the fame Head belong thoſe Marks and Cha V. As all Signs, except thoſe which we call Na-
racters which do not denote Voices or Words, but tural, denote ſome determinate thing by Virtue of
iminediately the very Things themſelves. And human Impoſition, ſo this Impoſition is attended
this, either upon account of ſome agreeableneſs with a certain Agreement, Conſent or Compact,
which they bear to the things repreſented; as in Tacit or Expreſs; from the force of which (1),
moſt of the Ægyptian Hieroglyphicks; or becauſe the there ariſeth a Neceſſity of applying ſuch a Sign to
Impoſition of Men hath inveſted them with ſuch a ſuch a particular Thing, and to none elſe. The
Power, as in the Chineſe Characters, by which they like Covenant muſt be ſuppoſed in relation to all
expreſs entire Notions and Sentences,
thoſe Things which we uſe for Signs, whatever ac-
It
may not be inconvenient to remark ſomewhat count we follow of the Origin of human Speech.
concerning that kind of Impoſition, by which ſuch For although we conceive the Primitive Langua-
a peculiar or proper Name is affix'd to Perfons, ges to have been immediately infuſed into Men,
Places, and ſome other Things ; the deſign of which yet ſince each Perfon ſeparately enjoy'd his power
is, that one Man, one Place, ane City or Country, of Diſcourſe, and could uſe it freely as he pleas’d,
may be diſtinguiſhed froin another; and that by by applying any Words to any Things; this Facul-
theſe Marks there may be a mutual underſtanding tý would not have obtain’d its proper End and Uſe,
between Men, in determining their Words or Acti- unleſs an Agreement had paſs & between Men, that
ons. Now as the proper Terms of other things fol- each Party ſhould exerciſe their Talent in the fame
low the manner of Appellative, or common Nouns, uniform manner, and conſtantly expreſs the ſame
ſo with regard to the proper Names of Men, it is things by the fame Words (2). For ſince he who
to be obſerv'd, That the power of impoſing them is placed in a state of natural Liberty, doth not
uſually belongs to thoſe who have others under hold his Powers at the beck and controul' of others,
their Authority and Government: Thus Parents are but hath the Privilege of uſing them as his own
wont to give Names to their Children, Maſters to Judgment ſhall direct, another Perſon would have
their Slaves and Vaſſals, and Princes to thoſe of no manner of Right to require of me, that I ſhould
their Subjects, on whom they confer any Signal Ho- apply my Powers in ſuch a particular way (3), and


(5) Nor Sirname, which may have the ſame effect: For both of them are forbidden by the Roman. Law under pain of ſuffer-
ing the ſame Puniſhment, as they who are found guilty of Fraud. Falfi numinis vel cognominis adreveratio pæna fal ſi coercetur, Dig.
1.48 tic, 10. De Lege Cornelia de falſis, &ic. Leg. 13. princ. See the Nores of Dion. Gothofred. on it.
Mr. Barbeyrac's NOTES on 6 5.
(1) It is more probable, that the ſignification of Words is ſettled by a bare Content, where there is no obligation to conſider
it in it felt
. For, 1. Men'never mer together to agree upon the preciſe ſignification of Words, or Rules of Speech. It came
to
paſs inſenſibly, and without any Reflection ; neither was there any Tacir Agreement properly ſo called. We may every day diſ-
cera new Words, Expreſfions, and Turns of Speech to come into uſe, which put a new ſenſe upon the Terms already received,
And how comes it co paſs that chey are practifed by others ? No Man pretends to lay any Obligarion upon them, farther, than as
they ſerve to convey the Truch from one to another in Converſation. 2. If the fignification of Words were ſeccled by any obli.
acory Agreement, either Expreſs or Tacit
, the leaſt Change, contrary to common uſage, would niake it Criminal, though no
Man received any Damage by it, which none will dare to maintain, and which is daily confuted by our uſual Pra&ice, which all
own, and which on the contrary ſerves marvellouſly to ſet off and enrich all Languages. This is what Mr. Titius ſays very
(2) This proves well enough the neceſſity of a bare Conſtitution, but nor of an obligarory Conſent. The Obligation, which
reſpects the uſe of a Word, depends upon other Principles, as will appear from what is ſaid, $ 7, &c. both in the Text and
Notes. Whenever we are'obliged to ſpeak and manifeſt our Thoughts clearly, we ought to follow the common
uſage, and chuſe
the moft ſuitable Terms; but in any other Caſe we may pur a different ſenſe upon Words, which is not uſed, and ſpeak in
Terms clear contrary to what we think, which could not be done, if there were any Agreement, either Open or Tacit, which
accompanied the Inſtitution of Language.
(3) It is in the Latin, the fame Faculties or Po:vers. But good Reaſoning, and what the Author adds, That their Thoughts
may be underſtood by that Means, Thew, that he would, or ought at leaſt to have placed that Word at the end of the Sentence,
which he ſpeaks at the beginning of the Faculties of Man ia general, although, in my opinion, he expreſſes himſelf unfitly in all


near Obſerv, 245.
the
(6) Lib.
33 tit
. 10 D. de Supell. leg. (6) Cap. 25. X. de Sponſa!. (c) N. H. 1.6 c. 30. (d) Add Quintilian, l. 11 C. 3. Inſtit.
Prat. Of the Marks or Signs uſed by the Peruvians under their Incas. See Garcilafs de la Vega, 1.6.c. 9.
* N 2
no
100
Of Speech, and the Obligation which attends it. Book IV.

no otherwiſe, ſo as to enable him to apprehend my
Thoughts and Intentions, unleſs we had before ſet- Uſe may revive the Obſoleteſt Words,
tled this Point by ſome Pact between us : The full And baniſh thoſe that now are moſt in Vogue;
extent and force of which Pact is this; That altho' Uſe is the Judge, the Law, and Rule of Speech.
Signs do not inform us of the Minds of others by
My Lord Rofcommon (O).
an Infallible, but only by a Probable, Certainty,
Men being Naturally capable of Diffimulation and There are, ſłys Sextus Empiricus (c)(1), and were,
Diſguiſe. To this purpoſe the Saying of Archida- and ever will be, various Alterations and Revolutions
mus in Plutarch ( Apophth. Lacon. p. 219: B. Edit. of Words ; for the Age is fill delighted with Change
Wech.) is obſervable: A Sheep always uſeth the Jame and not more in Plants and Animals, than in Speech.
Tone (*); but a Man hath the Art of varying his And the famne Author (d) hath this admirable Re-
Expreſion and Addreſs, till be carries his Deſign. mark to the ſame purpoſe (3): As in a City or Coun-
Moſchus Idyll. 1, v. 8, 9. Kardiogéves, &c. ty, he who is contented to take the Money that com-
monly paſſeth, may live under that Government, and
The Fouleſt Heart, the Faireſt Tongue : buy and jell, drive Bargains, and Trade without Mo-
His Mouth belyes his Mind
lsſtation or Hindrance; but he who will not comply
with the Coin ordinarily Current, but frames a Nem
Yet that which any Perſon hath expreſs'd by theſe kind according to his own Fancy, and offers it in Pay-
Signs, ſhall be preſumed to his ſerious purpoſe. ment, is manifeftly out of his Senſes; Jo in Life, he
And therefore as to matters of Right, the Effect ſhall who will not follow the common Speech, (like the com-
follow the Conſent of the Party, as by Signs de mon Coin) when eſtabliſh'd by Uſe and Cuſtom, but in-
clar'd; though perhaps his inward Thoughts and vents a new Language peculiar to himſelf, is not many
Reſolutions were really different from theſe out- Degrees remov'd from a Madman. Indeed, That
ward Indications (a): For otherwiſe the Uſe and ſuch a Compact is abſolutely Neceſſary, appears
Deſign of ſuch General Marks would be utterly from hence; That Men could receive 110 manner of
fruſtrated. But the Mutual Communication of good Uſe or Benefit from Speech, unleſs the Parties
Offices amongſt Men could not be exercis’d, unleſs ſpeaking were mutually underſtood. We are all
they had ſome certain information of the Wants Deaf, ſays Tully (e), in thoſe Languages with which
and Wiſhes of each other ; and fince the Condition we are not acquainted. And ſo (f) Ovid complains in
of human Nature would not allow this to be con- his Baniſhment,
vey'd in any other way than by Signs ſtriking up-
on the Senſes; therefore the uſe of thoſe Signs was Barbarus hic ego ſum, quia non intelligor ulli
,
by fome ſettled Compact to be ratified and circum-
ſcribed, that every Perſon might clearly apprehend Not underſtood, I'm a Barbarian here.
what Service or Alliſtance was deſired of him by
Others (4).
We may obſerve farther, That as moſt Tongues
VI. This Compact and Agreement about the Uſe are varied by Dialects, fu it often happens that
of Signs, and eſpecially of Words, is either Gene- Words of the ſame Tongue have in different Places
ral or Special: The former is ſuppos’d to paſs be- different Significations: The Meaning and Impor-
tween Men who ſpeak the fame Language, engag- tance therefore of ſuch Words ſhall be determind
ing them to expreſs particular Things, and prin- by the Cuſtom of the Place where the Buſineſs is
cipally thoſe which belong to daily Intercourſe and tranſacted; unleſs it ſhall appear that the Stranger
Commerce, by ſuch certain Words as the Uſe of the hath not yet agreed to quit his own Native Phraſe
,
preſent Times ihall approve and authorize: For ’tis and to conform to the Idiom of the other Party
.
this Uſe,
And thus too there are ſeveral Words which in
ſome Places and Times are look'd on as ſcandalous
Quem penes arbitrium eft & jus & norma loquendi, and reproachful, in others not. Of this the Name
of Tyrant is a known Inſtance. In the ſame man-
And at the Will of which,
ner, the Term of Barbarian, which the Greeks and
Romans held to be ſo diſgraceful, the Gothic King
Multa renaſcentur que jam cecidere, cadentque, Theodoric frequently applies to his own Nation. And
Que nunc ſunt in honore vocabula
in the Law of the Burgundians, Barbari is very of-



(*) The Greek is, Πρόβατον μεν αει την αυτίω φθέγγεται φωνω, άνθρωπG- σε πολλας, και ποικίλας, έως αν το δόξαν επιλέσεις
(4) On this Occaſion we may obſerve by the bye, that we find the People of Cuma obtaining leave to uſe the Latin Tongue
in common Talk, and to have their sales proclaim'd in it, after their humble Pecition for this Privilege, Liv. I. 40 C. 42. Though
generally the Romans appear to have been very ambitious of ſpreading their own Language, without beir.g ſollicited to that pur,
poſe. Vid. Valer. Max. I. 2 c. 2 ſ. 2.
Mr. Barbeyrac's NOTES on § 6.
(1) His Words are, Και μεν παντοϊαι γένονlαι τών φωνών μεταβολαι, και προς τα αρνασι, και όσαυθις γενήσονται, φιλομετάξολο
δε εςιν ο αιών, εκ ές φύτα μόνον, και ζώα, αλλα και ας ρήματα.
(5) The Greek is, "Ωσπερ δον πόλει νομίσμα7G ανά προχωρών/G κατα το εγχώριον, ο μέν τέτω τοιχών δύναται και τας ο
εκείνη τη πόλει διεξαγωγής απαραποδίσως ποιάθαι, οοε τοτο μεν μη παραδεχόμενα αλλο και η καινόν χαράσων εαυτό και τύτο νομις
τεύεθαι θέλων μάταιο καθέςηκεν, έτω κάν τω βίω και μη βελόμενα τη συνήθως παραδειχθείση, καθίσερ νομίσματα, ομιλία
τακoλεθών, αλλ' ιδίαν αυτώ τέμνειν, μανίας εγγύς έσιν.
(a) Add. Grot, I. 2 c. 41. 3. (6) Horat. A. P. v. 70, &c. Quinctilian, Inſtit. Orat. I, I c.6 p. 6o;
ct) The Author's Words Edic. Ludg. Bat. (t) To retain Words that have been long aboliſhed and abrogated, is a Mark of
are, Sed abolita atque abro- Inſolence, and of vain Boaſting in things of no Importance. Add. Gell. I. 1 c. 1o.
gata retinere inſolentiæ cujuſ- Mathemat
. I. 10.3 p. 17 Edit. Genev. (d) Ibid. c 10. (e) Tuſc. Queft. 1.5 0,40. ( Trift.
dam eſt, do frivole in parvis El. 10 V. 37.
jaitantie.
(c) Adver.
ten
CHAP. I.
Of Speech, and the Obligation which attends it.
101
ten the Style which thoſe People beſtow on thein Thoſe words are grounded on Special Compact,
felves. It is here likewiſe worthy to be conſider'd, which either have been inveſted with a peculiar
that moſt Terms of Speech beſides their Principal, Signification, different from what they bear in com-
a kind of acceſſory (4) or additional Signification, non uſe, or which are utterly unknown to the or-
by which we at the ſame time expreſs our Judg- dinary Methods of Speech. Of which kind are all
ment, Paílion or Eſteem. And this is the reaſon, thoſe Terms of Art, uſed by Mechanicks and o-
that of many words which as to their main Impor- thers; which on account of either the Multiplicity
tance exactly fall in with each other, ſome are Op- and Confuſion of Things, or the meer Pleaſure of
probrious and Injurious, others not; becauſe this the Authors, have either been invented a-new, or
additional Signification is found in ſome and not applied to another Meaning than what they ob-
in the reſt. Thus if I give a Man the Lye, I not tain'd in Vulgar Diſcourſe. Now, that no Man
only ſignifie that his speech is diſagreeable to his may be deceivd by theſe Terms, amongſt perſons
Thought, but farther denote, that he did this with who underſtand the particular Art, the very Na-
an ill Intention, and on account of procuring my ture of the buſineſs in hand will be a ſufficient
Prejudice or Hurt
. And 'tis on the ſcore of this Caution and Security. And amongſt the Unskilful
latter Indication that the Words are look'd upon they ought to be explain’d and limited by common
as contumelious and injurious. So if I call any Words. Which Explication and Settlement is like-
perſon an Impoſtor, or an Ignoramus, I affront him; wiſe neceſſary, when either Artificers differ about
becauſe thoſe Names, beſides their proper meaning, the uſe of their Terms ; or when any perſon for
include by the Bye, ſomewhat of Contempt and ſome particular Reaſons thinks fit either to coin
Reproach: Whereas there are many other Words, new Words, or to fix a new ſenſe on old ones (d).
by which I may, without any ſuch Affront or A. Some few perſons in Confederacy may, and often
bufe fignifie my ſelf to have been hurt by another, do frame to themſelves peculiar Words and Marks
or to thew that another is ignorant of ſome things of things, or put a different fignification on Vul-
and which conſequently ſhall only declare the di- gar Terms, ſo as to be underſtood by each other,
rect ſenſe, without any ſuch Indication of Diſgrace, and by none beſides. (And how far this Practice is
Sometime this additional Mark arifeth, not from lawful, will appear from the Sequel of our Enquiry.)
the General Impoſition of Men, but from the Tone In which Point it is enough, if thoſe words or
of the Voice, (which is different according as we Marks rightly diſcover my Mind to thoſe, with
either teach and admoniſh, or flatter and court, or whom I have thus entred into a particular Cove-
chide and reprove,) from the Lines of the Face, nant about their Uſe: And this holds too in other
from particular Geſtures, and other Natural Signs, Signs, determin’d by the peculiar Impoſition of
which are wont very conſiderably to alter, dimi- certain Men. Amongſt theſe the Principal are the
niſh or increaſe, the principal ſignification of Military Tokens and Signals of War of which
Words. And thus too a figurative Speech very of Silence it ſelf hath been ſometimes uſed for one.
ten denotes fome Paſſion in the Speaker, whereas a Thus in Polyanus (e) the Arcadian General under-
plain Expreſſion barely imports the thing aſſerted : taking by Night to furprize the Spartans at the
Ufque adeone mori miſerum eft (a)? denotes no more Tegaa, gave his Soldiers no other Sign but this,
than if we ſhould ſay barely, non eft ufque adeo mi- That they ſhould kill all who ask'd for any Sign.
ſerum mori ; becauſe it includes a Contempt of The Arcadians therefore were ſilent; but the Spar-
Death. From the ſame acceſſory Meaning it comes tans not knowing their Fellows in the Dark, and
to paſs that ſome Words are accounted obſcene, fo demanding the Word, were ſlaughter'd by the
others not ; though as to the main they ſignifie Enemy. And ſo Pammenes in the fame Author (f),
the ſame thing ; nay, though the thing be not re- put a Cheat upon his Enemieś by altering the
ally in it felt foul or indecent. The reaſon of Signal of the Trumpet, and quite inverting the
which Difference ſeems in part to be this ; That ordinary Method and Uſe; commanding his Men
fince fome Words expreſs a Thing or an Act more to fall on when a Trumpet founded a Retreat, and
loofly and generally, others in a more diſtinct to retire when it ſeem'd to call them to a cloſe
Manner, and with particular Circumſtances; there- Engagement.
fore he who makes uſe of the latter fort, at the VII. But we muſt carefully obſerve, that al-
fame time betrays his Luft, with regard to ſuch a though by this general and ſpecial Compact we
Thing or Act, and diſcovers a Satisfaction and Ap- are bound to uſe our Words and other Signs in the
probation which a Man of Vertue and Breeding manner that hath been agreed upon ; yet we are
would be aſham'd of : Sometime too the Obſcenity not hereby in the leaſt obligʻd to open and diſcover
of Words proceeds from hence, that they either de- our Minds to all perſons. To which may be ap-
note a Contempt of the thing ſignified, or elſe are plied the Saying of Apollonius Tyanaus (in Philo-
uſed only among the baſer People, or towards ſuch Jtrat
. l. 4. c. 11. p. 191. Édit. Par. Morel
. Àn. 1608.)
to whom we owe no Reverence or Refpect (b). Ca- Palamedes invented Letters, not only for the ſake of
ſaubon in his Cominent on Perſius (c) hath diſputed Writing, but likewiſe that Men might come to the
at large, whether it be allowable to apply Obſcene Knowledge of thoſe things which were not to be writ-
Words
even to the Reproof and Correction of Vice, ten. But to effect this, it is neceſſary that ano-
which is the ordinary Practice of Satyrical Writers. ther Obligation be added, ariſing either from ſome






(4) Our Author hath taken all this from the Art of Thinking, Part I. c. 14. where we may find the Reflection better managed.
I do not know why he did not quote the Book, ſince he is not ſparing of Citations.
(a) Virgil. Æn. 12 v. 646. (6) Vid. Ciceron. Epiſt. ad Famil. IX. 22. (c) Sat. 4 p. 342. (d) Add Bacon's Advancement
of Learning, 1.30.4. in the beginning. (e) Stratagem. l. 1 c. II & 1.5C, 16. (f) Lib. 5 c. 16.
particular

IO2 Of Speecb, and the Obligation which attends it. Book IV.
particular Covenant, or from the general Com- preſent to be tranſacted by Speech (1). Thus, for
mand of the Law of Nature : Or laftly,, from the inſtance, if I undertake to be an Inſtrucior to any
Quality and Condition of the Buſineſs which is at perſon, I am engag’d (by the Contract of Letting
and
ture.
Mr. Barbeyrac's NOTES on S 7.
(1) To explain this Matter diſtinctly, we are to obſerve, that Speech, as all other Actions of an indifferent Nature, is to be
governed by three grear Principles of Duty, of which we have ſpoken before, but muſt now repeat them, viz. Religion, Self-
Love and Society. I. When we ſpeak to GOD, we muſt always ſpeak the Truth freely. This is evident of it ſelf, though our
Author proves it briefly in the beginning of sio. Nor may we ever abuſe our Speech, when we ſpeak to Men, to the Diſho-
nour of God. See what I have ſaid after our Author in Nore 2 upon Lib. 2 Chap.4 $ 3. II. When we make use of Speech in
behall of our felves, either to ſecure or defend our ſelves, or to procure our ſelves Tome innocent advantage, which neither en.
trenches upon the Glory of God, or the Rights of our Neighbour. In this caſe 'eis not only permitted, but exprelly ordained
by the Law of Nature, either to ſpeak the Truth, or be ſilent; or to feign and difíemble, as a lawful Defence of our felves, or
our innocent Advantage requires. III. The Duties of Society oblige us alſo, either to ſpeak the Truth plainly, or be filent, or
feign and diſſemble, it by that Means we can either do good to others, or avere the Danger which threatens them, without de.
ing any thing contrary to the Glory of God, or to the Damage of any Man. Thus, as our Author ſpeaks, Lib. 2 c. 3 $ 4. we
muſt give Counſel faithfully to them thar deſire it, and ſhew chem the right way, who are out of it. But on the contrary, we
muſt be filent in things which may be prejudicial to any perſon when ſpoken, either as to their Perſon, Goods or Reputation,
Thus if a Madman running after another with a Sword in his Hand to ſay him, asks us which way he went, we may not only, but
we ought to thew him another way than that which the perſon purſued took to ſave himſelf. And I can't think that any Man
will dare to maincain the contrary. By the ſame reaſon the wiſe Midwives of Ægypt did very well to find our ſo good an excuſe
to Pharaoh, as we may ſee by the Reward God gave them. In thore, the greateſt abuſe of Speech is, without contradi&tion,
this, To make it an inſtrument of Damage to another. See $ 15 following. Hence it follows, that Men ought above all things to
act fincerely in Bargains, and keep their Word inviolably when they have made a ſerious Engagement. Moreover, ire ought to
remember what I have elſewhere obſerv'd, that when the Daries of society and Self-Love are equally concerned, theſe laft ought
to be followed, and ſo we may lawfully uſe our Speech for our own advantage rather than any others. This is grounded upon
Mr. Titius's Obſerv 248, &c. cho' his Opinion is not a whit the leſs fingular. It is certain, That, as Grotius has obſerved, Lib. 3
C. I, S 9. moſt of the Heathen Philoſophers and Ancient Chriſtians believed with St. Auguſtin, That whatever may be called a
Lye, is always unlawful, although that Matter be not well explained, as our Author has done after Grotius. And ſince theſe two
famous Works have appeared in the World, very few, who have been converſant in the Study of Natural Right, but have em.
braced their Notions. See for example Mr. Thomaſius, Juriſprud. Divin. Lib. 2. c. 8. Mr. Budda'is, Elem. Phil. Praft. Part 2.
Sect. 6. $ 3, doc. Mr. Fabricius in a Nore upon the falſe Abdias, which makes a part of the Apocrypha of the New Teſtament;
Mr. No dt De Firma emend. doli mali, &c. c. 3. and ſeveral other famous Writers. I might alſo alledge a great Philoſopher of our
Time, who had nor occaſion to explain this point in his writings, but he does not treat of it with Authority, wherefore I ſhall
come to examine their Reaſons. Thoſe that maintain, That all Speech which is utter'd contrary to our Thoughts, is eſſencially
faulty, ought to alledge good Proofs for it, taken either from the Nature of the thing, or from ſome convincing paſſage of Scrip-
1. As to the Nature of the thing, I have no yer ſeen any thing ſatisfactory produced. Our Author proves it well; and I
will examine in a few Words the new Hypotheſis of a Modern Author in Nore 2. on 8 10. All that has hitherro been ſaid with
any ſhew of Reaſon, may be reduced to theſe two or three Difficulties, which are not hard to be reſolved. The firſt is this, If
the Opinion, lay they, that allows Men to feign and diffemble upon certain Occaſions, either in Deed or Word, be once received,
all Confidence in one another inuſt be baniſhed from the Earth, and by conſequence all Society deſtroy'd. For a Man can't open
his Mouth, or do the leaſt thing, but it will be firſt demanded of him, whether he does not believe, that he may in that caſe do
otherwiſe than he thinks. But this Argument ſeems to be built on a Suppoſition entirely falſe, viz. That the Confidence by
which our Dealings in this Life are maintain’d, is grounded only on this Perſuaſion, That they who ſpeak, ought to ſay or do
nothing but what anſwers exactly to their Thoughts, their own Conſcience being Judge. For Experience and the Knowledge
of the World prove the contrary evidently. I own, thar Profeffed Lyars, Natural Difſemblers, Falſe Dealers, or Slaves to vile
Intereſt, in a word, all thoſe whoſe Honeſty is dubious, are not proper Objects of our Confidence, and we ought not to truſt
them, but with very great Caution, if they ſhew that they believe that one may lawſully ſometimes ſpeak contrary to Truth,
or profeſs, that they believe it always allowable. But when we have to do with Honeft Men, we put not the leſs Confidence in
them becauſe we know they may uſe an innocent Feint or Diſſimulation, and becauſe we have ſeen them uſed ourſelves in
certain Cafes with good Rcaſon for their own particular Advantage, or that of their parents and Friends. As every one is
willing to have that Liberty, ſo he readily grants it to others; and he can't refuſe it them, or inpute it to them as a Crime,
without being accounted, and that juſtly too, unreaſonable and fooliſhly nice. But, ſay they, the Benefit which may be obtained
by a Lye will vaniſh into nothing, if we once reach that a Lye is allowable. For a Lye can be of no advantage but upon this
Suppofition, that they to whom we Lye, believe that we do not Lye, and that we make a Conſcience of ſpeaking the Truth.
If there be an occaſion offered wherein tis lawful to Lye, 'cis co adminiſter a Medicine to a fick perſon that may fave his Life.
But fuppofing that we are taught that Phyſicians are exempted from ſpeaking Truth upon that occaſion, it will happen that
they will not be believed, tho they ſpeak Truth; and ſo we ſhall fall into Inconveniencies infinitely greater than thoſe which we
endeavour to avoid, by allowing them ſometimes to Lye. Either the fick perſon believes that the Phyſician will nor Lye, of af
Jeaſt that he may as well ſpeak the Truth; but how can he believe the firſt, if he knows that upon fuch occaſions he may Lye!
And will not the doubt keep him from taking the Medicine preſented to him? To this I anſwer, That all this is made evidency
falſe by Experience. Whatever rigid Divines and Caſuiſts may ſay, 'cis certain, that there are a thouſand little Lyes
, which
almoft all the world believe allowed, and which nevertheleſs fail noe'to produce their effect. When one is in general perſuaded
that others are innocent, he is not always upon his guard to examine upon every occaſion particularly, whether the perſon we
have heard may not have reaſon to perſuade us that a thing is falſe, which is not. We are not to ready to diſtruſt one another
when we have no cauſe of Suſpicion ; and there is ſcarce any Man, who, though he has been innocently deceived by his Phy,
lician or Friend, wiil nor nevertheleſs believe them again upon the like occaſion, if they know how to take him aright, and
behave themſelves well. He may perhaps doube a while after, but the firſt Impreſſions, and the innocent Artifice, when it has
had effect, is ſoon forgotten; but if ſometimes it is not ſucceſsful, it only proves that there were not good Meaſures taken, or
that ſome Circumſtances rendred the thing unprofitable, but that proves nor that it was unla iv ful and criminal in it felf. Some
object farther, Thar if to ſpeak contrary to a Man's Thought is an action of like Nature with local Morion, and other ourward
Actions, which having nothing unlawful in themſelves, may become good or evil, according to the different' Intentions by which
they are done, there will be no evil to make uſe of that means for our moſt vile and crifling Intereſts, as if I deGre a Pín when
it is neceſſary, or ſtoop to take it up when I ſee it lie upon the Boards of my Chamber, nothing hinders but that I may tellet
1.ye to get it, provided I do no Man any wrong by it. But this Conſequence does not feems to be well drawn. For the uſe of
Speech is not only guided by Juſtice, Humanity and Charity, but alſo by Maxims of Prudence. For no wife Man will have re-
courſe to the least Di'guiſe, but in caſes of Neceffity. Ler ús hear a pleaſant ancient Writer upon this Subjeét, whom nether
Grotius nor our Author have quoted. Ou di mei te to nejpelen özóval Kpeias évend, fsu dovlev, oczys cóuns Torze sãy &res
, peuvedo
πέλλα, και υδύσευς επεία, την ταυτα ψύχω αρνύμενω-κή νομεν των εταίρων, αλλά περί εκείνων
, και άρισε, φίμι, οι αυτό αγέν
η χρείας το ψεύδο- περί πολλά και αληθείας τηλεθαι, ήδόμενοι το πράγμα, έλατείζονες έα έθιμία προφάτι αναγκαία
1. fliey are to be excuſed, and Tome commended; as for Example, Tuch as Lye to deceive their Enemy, or theni who make use
" I ſpeak not, ſays the Diſcourſer in the Dialogue, of them who lye for their Profit,
os of it as a Remedy to eſcape fome great Danger, as Vlyses often did to ſave his Life, or to procure the return of his Compa:
“ nions;
Chap. I. Of Speech, and the Obligation which attends it.
103
and Hiring) to explain and communicate to him a perſon with a Commiſſion to ſearch into the
all that belongs to that Art or Profeſſion. If I ſend State of ſuch or ſuch an Affair, he is bound by

“ nions, but that which ſurprizes me moſt, is to ſee ſome Men, without any advantage to themfelves, to delight more in Lying
" than ſpeaking the Truth, and continue in it all their Days without Neceffity. Indeed, when Men Lye in Bravery, and make
a Trade of it, they loſe all Credit with the Wiſe. Otherwiſe, though an honeſt Man believes he may innocently, for ſome good
Reaſon, by his Diſcourſe and Actions, make another underſtand him of a thing he thinks not, yet he does not therefore neglect
a Correſpondence between his Words, and Actions, and Thoughts, as the moſt Natural Ule of the Tongwe, and other outward
Motions, so that this Agreement is difturbed againſt his Will, being forced to it by the Conſtitucion of Humane Affairs, and by
the Indiſcretion, Imprudence and Malice of the greateſt part of Mankind, at leaſt
, if he be not engaged in a thing that brings
Trouble, his Candour and Freedom, which are the Character of a truely good Man, will hinder him from ſpeaking or doing any
thing which may make his Sincerity and Fidelity be ſuſpected in the leaſt. But there is another thing which ought to keep us
from uſing any Equivocation, but with much Reſerve and Circumſpection, which is, that we ought not only to avoid all Evil,
but every thing that tends to it. For it is certain, that by Lying, Feigning and Diſlembling upon flight Occaſions, Men ger á
habit of Diffimulation and Counterfeiting, which degenerates into a Vice, becauſe it will incline us co be inſincere with thoſe to
whom we ought faithfully to diſcover our Thoughts. For this Reaſon it is, that
we ought to take very great Care to keep Chile
dren from Lying. See montagne’s Eſſays upon this Subject, !. 1. c. 9. and the Treatiſe of Educating Children by Mr. Locke,
$ 134, Loc.) becauſe this artifice can ſerve only to hide their Faults, and they are not of Age ſufficient to diſcover the Occafi.
ons, when Diffimulation and Counterfeiting is innocent, and ſo they'll come in time not to ſpeak one word of Truth, but always
have a Lye ready for the leaſt thing. But as to ſuch as are become Men of Underſtanding, 'tis not to be feared but that they'll
be able to fer due Bounds to this Permiſſion of Feigning and Diſſimulation, provided they feriouſly labour to regulace their con-
duct by the light of right Reaſon, without which they may abuſe the leaſt diſputable and commonly received Moral Principles,
and by which they'll be full of Reverence toward God, Lovers of Juſtice, careful to give every Man his Due, averſe to all frau
dulent Dealing, and in a word, a truly good man; and I dare anſwer for him, will never be guilty of any unlawful Diffimulation,
and as far as is poſſible, he will ſo order himſelf, that his words and Actions ſhall exactly agree with his Thoughts. I ſay, as
far as is poffible
, for as the famous Engliſh Chancellor, the Lord Bacon, judiciouſly obſerves, « Serm. fidel.c. 6. Diffimulation
“ is a neceffary Conſequence of Silence and Secrecy, (Taciturnitatis) inſomuch that whoſoever will conceal a thing, muft dif.
“ femble, do what he can. In truth, Men are too cunning to ſuffer us to remain in a perfect indifference, without ſhewing any
“ Inclination to one or other of the things, which they deſire to know. They'll attack you, examine and pump you with a
6 thouſand Queſtions, lo cunning, that unleſs you maintain an obſtinate and ridiculous Silence, you muſt diſcover ſomething of
“ your Sentiments; and if you do nothing to diſcover them, they'll make ſuch Conjectures upon your Silence, that it will be all
one as if you had ſpoken. You may guard your ſelf a long time by Equivocation, and dark Expreſſions, bur, in a word, there
“ can be no perfect Concealment, if ſome degree of Diſſimulation be not allowed, and fo Diſfimulation is nothing elſe but a ne-
“ ceffary Dependant upon Silence. To keep a juft Temper, every Man muſt get him a Reputation for Sincerity and Veracity, an
" habit of Silence and Secrecy, and an Ability to feign and diſlemble, when it is neceſſary. It is eaſie to anſwer all the other
Difficulties raiſed againſt the Opinion of our Author, and to oppoſe greater to the contrary. It ſhall contenr me to obſerve, thae
if this laſt be true, thouſands of Actions, which the world accounts innocent, muſt be condemned, and are practiſed every day
with deliberation. I do not ſay, by moſt of them who are zealous Defenders of this Opinion, but by all Men generally, we may
fay, that the Queſtion comes to this, Whether (for example) a Man may fay, that ſuch a one is not at Home,
or find out ſome
Trick to free our ſelves from an indiſcreer and importunate perſon? I do not believe that any Man of Senſe will deny himſelf to
have committed ſuch Faults, tho' he is forry for them. Nevertheleſs, there is no Medium ; either we muſt condemn our felves
for it, or reſign our ſelves to the Indiſcretion, Imprudence, and otten to the Malice of another, by a general Sincerity, and
without Reſerve, or we muſt allow a Permiffion to ſpeak and Act contrary to our Thoughts. Further, to Thew the Weakneſs of
the Opinion I am now oppoſing, I defire it may be conſider'd, what Abſurdicies they engage themſelves in, who maintain the
contrary Opinion: For theſe are three Maxims of St. Auguſtin, which Mr. La Placette approves in Part 1. Moral Eſays, 1. That
if all Mankind were at the point of Deſtruction, and 'cwere poſſible to ſave them all by a Lye, the Lye muſt be avoided, and
all Mankind perifh. 2. That if by telling a Lye we could prevent one or more of our Neighbours from finning, we ought rather
to fuffer our Neighbour to fin, than tell a Lye. 3. If by Lying we could keep our Neighbour from Eternal Damnation, we ſhould
father leave him
to periſh, chan ſave him by the lofs of Truth. In fine, it is in no wiſe neceſſary to determine, when and how
many times we are permitted
to Lye, that depends upon Circumſtances, which are infinite, and every Man's Judgment. Here,
as in many other Moral Subjects
, we can give general Rules only. As often, as they to whom we ſpeak have no right to require
of us to ſpeak freely what we think, we do them no Injury if we conceal the Truth from them. And to the diſguiſing of the
Truth has nor che principal Property of a true Lye, which is to give them with whom we treat reaſon to complain, that we have
not deale ſincerely with them. But it does not follow, that we may always ſpeak or act in a manner different from our Thoughts,
when a perſon harh a Right to require the contrary of us. I have alledged the Reaſons that concern our felves above, or che
Conſequences of taking too large a Liberty. I own that this Permiſſion may be eaſily abuſed, and therefore the fureſt way is to
uſe it as little as poſſible; but a good uſe may be made of it, and in what a bad Cafe ſhall we be, if we muſt condemn and dif-
uſe all thoſe things, by which Men take an occaſion to excuſe or juſtifie their Irregularities ? Buc, II. If it be true, as we have
fhewed, that the Principles of Natural Right afford nothing to prove, that all Diſcourſe, and in general, every exteriour Sign
differing from our Intentions and Knowledge, is criminal of it ſelf.' There is no evidence to prove that the Holy Scriprures
condemns it abſolutely, at leaſt, if we may fay (what indeed I don't believe) that the Law which forbids Lying and Diffimula-
tion, is a poſitive Law only. Thus we can't alledge any Text, either in the old or New Teſtament, where Lying or Diſfimula-
tion is mention’d, but it is accompanied tvith ſome Fraud or Cheat, and by which at leaft fome Duey of Charicy is broken. No-
thing is more common in the Writings of the Hebrews and Helleniſts, than to underſtand by Truch, Fidelity in keeping our En-
gagements ; and by Lying, Perfidiouſneſs, Deceir
, an Injury done our Neighbour, after ſome manner or other. The Reaſon
that St. Paul gives for his
Exhortation, To'avoid Lying, and speak the Truth every Man to his Neighbour, infinuates plain enough,
that
he did not extend his
Prohibition to Lyes profitable, and altogether innocent. See Velthuyſen De Princ. Jufti Decori, where
we may find Reflections which I have omitted. Farther, we may obſerve in the Scripture ſeveral Examples of good Men, who
are not blamed for having uſed Diſfimulation, and an innocent Lye. See Mr. Le Clerc on Gen. 12. 13. Moreover, there is one
that proves plainly, that it is ſometimes commendable to ſpeak contrary to what we think, and that is, of the Ægyptian Mid-
wives mentioned before by the Bye. See Exod. 1, 20, 21. As to my felf, I think an unanſwerable Argument for niy Opinion
may be drawn trom it, Tis evidenr, chefe Women' did not ſpeak the Truth to Pharaoh, and if any one doubt of it
, he will be
convinced, if he reads what Mr.
Le Clerc ſays about it in his Remarks upon the 17th Queſtion of his Uncle ; and moſt of our In-
ferpreters and Divikes agree with
him. Nevertheleſs, God hath greatly
rewarded that Lye, and conſequently not only excuſes
is, but approves it. For it is an empty Meraphyfical Subclety to ſay, That God rewarded not the Lye, but the act of Mercy,
which thoſe wiſe women thewed; as if one and the fame Adion could be good and evil in divers reſpects, or as if a good in-
tention could render an Action, in its own Nature evil, good. But if this Example do not ſatisfie, behold another, which will
make it plain, that God permirs
, yea
, reguires Tametimes, that Men ufe an innocent
Deluſion, Tis of the Prophet who is ſpo-
where King Ahab was to paſs
, and cover'd himſelf with a Veil, that it might not be known that he waited for him; when he
perceived him coming, he cried out, and implored his Help;' and he tells him how he came in that Condition by an Accident,
which he had feigned. He ſays, That being in the middle of the Battle, a cerrain Man brought a Priſoner to him, and charged
upon to keep him late upon pain of lite
, of paying a Talent; bue while he was bufic up and" totvn, his Prifoner go away. Here-
u on the King fends to the Propher that he had condemned himſelf ; and then the l'rophet unveiling himſelf, declared to him
My God had ordered him to uſe tuch an artifice, wie. That Ahab might condemn himſelf by judging in the like Caſe. See
Mr. Le Clerc's Nores upon the place.
Covenant
ati

104
Of Speech, and the Obligation wbicb attends it.
BOOK IV.
unu
way of
See the Story of Capell. Bafus in Tacit. Ann. 1. 16,
Covenant to acquaint me with all the Diſcoveries confifts in a Conformity between Words and Things,
and Informations he hath gain’d about that Matter, this Ethical or Moral Truth, of which we are now
If I am to exerciſe towards another any Duty of treating, fuperadds the Intention and Obligation of
Humanity, which muſt be pertori'd by Speech, it the Speaker: On which Score, he who declares the
is manifeft my Words muſt be agreeable to my Truth out of Error or Imprudence, hath barely re-
Thoughts and Intentions. If a Man undertake to cited the Logical Truth, but hath not exercis'a
to write an Hiſtory (2), he is to deliver nothing the Moral. And he who blabs out any Matter
which he knows to be Falfe, by virtue of that ge- without any Obligation in himſelf, or any Right
neral Obligation by which we are bound to pro- in the other Party, ought to be eſteem'd rather an
mote the Ŭſe and Benefit of others. As we are idle Pratler, than a Speaker of Truth. And hence
likewiſe by a common Engagement tied to expreſs 'tis eaſie to gather, what muſt be the Nature of a
our Minds by the cleareſt and plaineſt Signs, in all Lye; namely that it is, when our Signs or Words
ſuch Caſes, when if we do otherwiſe, we may bring bear a different Senſe from our real Conceptions ;
ſome hurt or prejudice on innocent perſons. So, whereas the perſon to whom the Signs were directed
,
Laſtly, in all Commerce and Buſineſs between Men, had a Right to underſtand, and to judge of thoſe
in which, by the Conſent of the Partjes, ſome Right Conceptions; and we on our part lay under an
or Obligation is to be produc'd, we are to declare Obligation to make him apprehend our Meaning,
our Meaning openly and clearly to the Perſons with I take this to be a more clear and diſtinct
whom we deal. For otherwiſe there could be no fhewing the Necellity we ſtand under to declare
pofſible way of rightly adjuſting thoſe Concerns. our real and undiſguiſed Intentions, than if I ſhould
But, ſince it doth not always fo happen, that I am
derive the Sin and the Bareneſs of Lying, barely
bound by any of theſe Rules to open my Thoughts from that General Rule of Natural Law, that No
to another about any, Affair, eſpecially ſuch as is Man is to be hurt ; as if the whole Nature of a Lye
private and particular; it is evident from hence, conſiſted in its power of hurting. For ſtrictly
that I am not under an Engageinent to unfold all ſpeaking, we do not hurt another by with-holding
my Opinions and Intentions to Men alike, but from him what he hath only an Imperfect Right to
thole only which they have a right (either perfect receive ; and yet the Violation of ſuch an Imperfed
or imperfect) to underſtand; which Right Suppo- Right is fufficient to conſtitute a Lye. For the ſame
ſeth a correſpondeut Obligation on my part : And reaſon Philoſtratus's Notion of a Lye is confus’d and
that therefore I may fairly conceal and diffemble unaccurate, when he reports ), That amongit
thoſe things, which another hath no Right to know, ſome of the Indians, any Student in Philoſophy
and which I my ſelf have no Obligation to dif- who was found guilty of this Vice, was renderd
cloſe (a): Nay, 'in ſuch caſes, where no body elſe incapable of bearing any Magiſtracy or Honour,
is injur'd in his Right, and where the Advantage Becauſe he had by Lying cheated the Common Society of
or the Safety of my ſelf, or of fome other perſon, Mankind. But, as in all Acts by which we recede
Cannot otherwiſe be procur’d, it ihall be allowable from Law, Error, Imprudence and Raſhneſs are
for me to apply the common Signs in ſuch a man- diſtinguiſh'd from Malice, or Wicked Deſign, fo
ner, as to expreſs what is really contrary to my neither is any Man properly ſaid to Lye, but he
Judgment. For ſince the Compact about applying who with evil Intention, and pre-conceiva Ma-
Signs in ſuch a certain way, bears a regard to o- lice, tells another what is really different from his
ther Obligations, which are by the means of theſe Sentimeuts or Reſolutions, either to prejudice
Signs to be fulfilld; therefore when thoſe Obliga- to delude him. And hence, he who having been
tions ceaſe, there appears no reaſon why I may deceiv’d by another Man, delivers things which
not make a different uſe of the Signs, if I injure he himſelf takes to be true, reports a Lye, but is
no Man, and at the ſame time have no greater not hiinſelf the Lyar. Yet a perſon, who catch-
Convenience of benefitting my ſelf or others. ing up things with too haſty a Credulity, after-
VIII. Froin theſe Principles and Fundamental wards diſperſeth them amongſt others, expoſes him-
Rules, it is eaſie to underſtand both the Nature of ſelf to the Cenſure of Raſhneſs and Folly. Nay,
Truth, which Men are obliged to ſpeak and the ſpreading of another Man's Lye, or of a Mat-
profeſs; and the Nature of a Lye, which is ſo ab- ter not certainly known, may in ſome Cafes bring
Diſgrace (b)(1). The former then conſiſts in this
, fuch a Publication approacheth near to that Tref-
That the Signs which we make uſe of, and eſpeci- pafs which the Civilians term culpa lata (d) (2).
ally our Words, do in a proper and convenient IX. Having thus difcover'd the true Source, and
nianner repreſent our Thoughts to another, who the Genuine Foundation of Truth and of Lyes, we
hath a Right to underſtand then; and to whom we may aſſure our felves, that thoſe Authors are mi-
are boun:1, either by a Perfect or an Imperfect Ob- ſtaken, who aflert, That a Lye and an Untruth are
ligation to diſcover thein: And this to the end, really the fame thing, and that he deſerves to be
that he by apprehending our Meaning, may obtain branded with the Name of a Lyar, who ſays any
fome Benefit, or may eſcape fome undeſerv'd E- thing differing from his Judginent, and that con-
vil, which would have follow'd upon our decei- fequently to ipeak otherwiſe than we think, is in
ving himn. So that beſides that Logical Truth, whirh
(2) See what our Author has ſaid in his Diſcourſe, De Obligatione erga Patriam, $ 23.
Mr. Barbeyrac's NOTES on S 8.
(1) See $ 10. following. See Lib. 3 c. 1 8 4 Nore 2. before going.
(a) Æschyl. Cæphor.orgqv 0678, &c. v. 58o.The Art of Silence and of well terni'd Speech.
16) Sophocl. Tracbin. p. 347. Edit. H. Steph. as ir eu. Jego feudã rarbetal, &c.
What Face ſo grievous to a Free-born Man
As to be callid a Lyar
Add Montaigne's Eſſays, 1. 10.91. 2 c. 18. (c) Apollon. Tyan. I. 2, (d)
col, doc.
or
2
Otterboid
1 to na
(2) ,
10
boyish
of
?
its

Chap. I. Of Speech, and the Obligation which attends it. IOS
likewiſe belongs the ſleight of the Old Fox in Terence Heautontimor. Act.
its own Nature baſe and finful. An Untruth is proclain his Reſolutions, for which reaſon the Ene-
when you apply Words in ſuch a manner, as that my is not wont to believe what is given out in this
another ſhall conceive from them a Senſe not a- free and ſecure manner, Ageſilaus by this piece of
greeable to your inward* Imaginations. But now, Subtlety preváild on the Perfian Nobleman who
If the other Party have no Right, by Virtue of oppos’d him, to march his Army quite another
which he ought clearly to underſtand my Mean- way than what he had thus publiſh'd that he would
ing; and if I do not hereby prejudice any Man take himſelf (/).
without cauſe, there ſeems to be no reaſon, why, But as no Man will preſume to condemn the
if I find it convenient for me, I may not uſe thoſe wiſe Gravity of Epaminondas (c), who could not
Words rather according to my own pleaſure
, than bear to utter a Lyė, tho' in jeft? So, on the other
the pleaſure of another. Hence every Lye is an hand, it is very weak to believe, that a perſon al-
Urtruth, but every Untruth cannot come under the ways incurs a heinous Guilt
, when, without inju-
Name of a Lye : And if we take Ariſtotle (1) in ring any one elſe, and for the advantage of himſelf
this Senſe, when he affirms, That a Lye is in it ſelf and others, he delivers Words differing from his
foul and diſgraceful
, there will be no need of Gro: real Thoughts
. It were therefore to be wiſh'd with
tius's Limitation, who explains reb' autè, in it felf, Cicero (5), That all Simulation and Diſimulation were
by Generally
, or without regard to the Circumſtan- utterly banifd from Human Life
, and that Men
cés (a). For ſuch an Untruth as eſcapes Cenſure, were arriv'd at ſuch a happy Temper, as that no
by virtue of fome particular Circumſtances, ought, one ſhould envy the Goods of another, or plot to
on no account, to fuffer the odious Character of a rob hin of them, that no one ſhould abuſe the
Lye. And, on the other ſide, that every Lye, pro- Simplicity and Credulity of others to their preju-
perly ſo called, is in its own Nature baſe and ſcani- dice or deception: And, Laſtly, that no one ſhould
dalous, ſeems to be beyond diſpute.
in any inſtance reſiſt the Command of right Rea-
It is worth remarking on this Head, that the ve- fon: Such a ſtrict and accompliſh'd perſon Achilles
ry ſpeaking what is true inay ſometimes create and pretends to be in Homer (d); it is his Brave De-
conftitute a Lye : Which not only happens when a claration,
perſon affirins the Truth with the Air and Addreſs
of a Lye, and by his (2) Manner, his Geſtures, and his
'Εχθρός και μοι πίνω ομως αΐδαο πύλμαν,
Actions, which uſed to be as it were the Life and “Ό,γ έτερον μεν κεύθτι νι φρεσιν, άλλο και βάζει.
Soul of Diſcourſe, makes his Hearers believe the
contrary to what he delivers ; as Quintilian ſhews Like Hell I hate the Man, whoſe Tongue reveals
us how 'tis poſſible to be guilty of a Lye, as well as A different Tale from what his Heart conceals.
of a Solæciſm, by a baſe Action, when we ſpeak one
thing, and hint another, by a Poſture or a Nod; But ſince he, who is ever freely publiſhing and de-
but it chiefly takes place in thoſe, who by a pra- claring his own Concerns, lays himſelf open to the
étice of frequent Lying, have depriv'd themſelves Fraud of wicked Men ; and ſince moſt perſons are
of all Credit and Belief. Now ſuch perſonis as they inclined rather to be won upon by Artifice and
are not eaſily regarded, how willing foever they Shew, than to be convinc'd by folid Plain-dealing;
may be to deliver ſerious Truths; ſo they have an therefore it may not be adviſable for us to exclude
opportunity of abuſing the diffidence of a Hearer (3), from Human Society, the Art of innocent Diflimu-
to his deception and deluſion ; who thinking them lation, till all the Wickedneſs, and all the Folly
to be always like themſelves, may eaſily be cheated of Mankind is turn’d into Probity and Wiſdom.
by believing quite the contrary of what they averr. Pindar's Remark is excellent to this purpoſe, Nem.
The inſtance in the Fable is well known, where the Od. 5. v. 30, &c.
Boy ſo often tricked the Countrymmen with a falſe
Alarm of the Wolf, that at length when the Wolt (6) Not Truth with open Face and open Heart
really appear’d, he could not gain Credit enough Is ſerviceable always, always wife:
for their Aſliſtance. Ageſilaus (4) turn’d this Fetch But often 'tis in Life the Nobleſt Art,
into a Stratagem of War. For in as much as ’tis To know the prudent Uſe of Silence or Diſguiſe.
reckond moſt impolitick in a General openly to
Mr. Barbeyrac's NOTES on S 9.
(1) His Words are, Kab' autó ý tò mis teúdo paviov, xj foxlov, Eth. Nicom. 1. 4. C. 13.
(2) According to the Judgment of Quintilian, Inftit
. Orar. l. 1. C. 5. In geſtu etiam nonnulli putant idem vitium ineffe, cum aliud
voce, aliud nutu, vel manu demonftratur, which is the ſenſe of our Author.
(3) 'Twas upon this Principle that the judicious Conduct of John de Vega was grounded, when he advis’d Diego de Mendoza,
who ſucceeded him in his
Embaffage, I hat he would not find the leaſt Truth in the Miniſters of that Court
. Mendoza replied,
Then they have met with their Match, for if they tell me one Lye, I'll tell them an hundred. But, ſays Vega, I took another
courſe ſometimes, for I anſwer'd their Lyes with as many
Truths; and I found that it turned to as good an account : For they
never believed me. Thus we ſee how Lyars may be deceived. This is related by John Anton. de Vera in Diſc, 2. concerning an
Ambaffador, quoted by Amelot de la Housſaie upon the 13th Letter of Oſat.
(4) Here we may add ſome Verſes of Horace, Epiſt.). 1. Ep. 17. v. 55,
Nota refert Meretricis acumina, fæpe catellam,
Sepe periſcelidem raptam fibi flentis, uti mox
Nulla fides damnis, veriſq; doloribus adfit, &c.
(s) offic. 1. 3. C. 15. Quod Aquilliana definitio vera est
, ex omni vita ſimulatio, diſinulatioque tollenda eſt. Cicero ſpeaks here on-
y of Feigning and Difimulation, accompanied with injuſtice and Falle-dealing ; although in the manner our Author exprefles
it in the Original, he leems to take the Orator's Words
in a general ſenſe, as Grotius has indeed done in 13. of the Chapter
often quored. See Mr. Noodt, De Forma emendandi doli mali in contra&tibus admiſſi apud Veteres, c. 2.
(6) Pindar's Greek is this, oſ TOLá Treou regdiwr
Και το πγαν πολλάκις οι σοφώ- Πο
Φαίνουσα πρόσωπον αλάτες ατρακής τατον, ανθρώπων νοήσαι
(a) Lib. 3 c. 1 f. g. (b) Xenophon Rer Græcar. I. 3. p. 292. Edit. H. Steph. Cornel. Nep, in Ageſil. c. 3. To this Head
4. Scen. 3. (c) See Cornel. Nep. c. 3. 6. I.
† O
Theſeus's
(d) Iliad. 9. v. 312, 313.

106 Of
Speech, and the Obligation which attends it.
Book IV.
every
C6
Theſeus's Wifh in Euripides, Hippol. Coron, v. 925, in explaining. Some conceive, that ſince both God
&c. is but vain and fruitleſs. Though 'tis certain and Men have a Natural Ability to underſtand the
at the fame time, that he who makes uſe of theſe Truth,which is obſtructed by the contrary Speeches
,
practices of Concealment and Cunning, farther therefore they have on this very account, a Right
than is neceſſary for his own Defence, renders him- of requiring others to expreſs themſelves in an in-
ſelf unfit to be truſted, and uncapable of being telligible manner. Now with regard to Almighty
dealt with in any honeſt Affair or Bulineſs ; in as God, the thing is beyond diſpute: For to uſe any
much as 'tis impoflible, but that ſuch a perſon muſt kind of Falſity in our Addrelies to him, is not on-
be ſuſpected in all that he ſays or does.
ly extremely irreverent, as if bare and open Truth
The Arguments by which fome attempt to prove were not as prevalent with the Divine Majeſty, as
that Untruth is in it ſelf odious and ſinful, Colours and Fictions, but alſo in the higheſt de-
are of no weight. They tell us, “ That the Falſe gree fooliſh, ſince God doth not ſtand in need of
Speaker defileth and diſgraceth his Tongue, that the Information of Men. And therefore Cain ()
“ moft Noble Member, by ſuch an abuſe : That he was not only impious, but ſtupid, in endeavouring
deprives himſelf of Credit, to the great ſtop and to conceal his Brother’s Murder from God, eſpeci-
“ hindrance of many good Offices amongſt Men; ally by fo impudent and ſo rude a Reply. And
“ ſince he never fails to gain this amongſt other thus far that of Sophocles (b) will hold good, I hate
Advantages, not to be believed though he Jpeak the a Man, who being taken in Wickedneſs, attempts to
“ Truth. But this Charge holds good only againſt make his Excuſe. But otherwiſe, this is no good
a ſtrict and proper Lye, not againſt fuch Falſities Conſequence; a perſon is naturally capable of un-
as Prudence oiten adviſeth and recominends. They derſtanding a matter, therefore he hath a Right to
add, “ That to falſifie, argues a Man to be of a underſtand it; nor doth a Phyſical Ability always
“ low and abject Spirit; ſince he who could relie infer a Moral. As for that which ſome add to what
upon ſolid Plainneſs and Truth, would have no we are now ſaying, That he who hears an Untruth,
neen to ſeek Refuge in Tricks and Shifts. But doth yet underſtand the Words; and therefore that
thoſe Untruths which are both innocent and unne- Falfe-ſpeaking doth not take away the Right of
ceſſary, do not always proceed from meanneſs of Underſtanding; this is nothing at all to the purpoſe
.
Soul : And ſometimes, amongſt wicked Men, Ho- For ſuch an one underſtands indeed; but he un-
neſty and Truth it ſelf cannot be ſupported, but derſtands only a Shadow and Fiction, inſtead of
by indirect and artificial Methods. Others are the Truth which he deſires.
more fond of this Argument ;“ Speech is given to Others there are which derive that Right which
“ be an Interpreter of the Mind; ſince then every is violated by Lying, not from Nature, but from
“ Untruth is contrary to this End, it ought like- the Art of Men; that is, from ſome facit Com-
“ wife to be eſteem'd repugnant to the Order of pact: For, ſay they, ſince Diſcourſe, and other the
“ Nature: And farther, that to have the Tongue like Marks and Tokens were introduc'd by Hu-
“ differ from the Mind, quite diſturbs that Har, man Inſtitution, Men at the ſame time laid a
mony which ſhould appear in the Powers and mutual Obligation on each other to uſe theſe ſigns
“ Faculties of Man. In Reply, we willingly al- in ſuch a manner, as to be able hence to make a
low, that Speech is the Interpreter of the Mind; Judgment of the perſon's Sentiinents, with whom
but 'tis in ſuch a manner, as that it ought not to they ſhould confer (2): Becauſe, without ſuch an
blab out more than the Mind gives it commiſſion Obligation, and if every perſon were allow'd to
to diſcloſe, the Mind being to judge what is con- apply Words how he pleas'd, and to hinder others
venient to be declared, and what to be concealed. from apprehending his Meaning, this invention of
X. We have aſſerted every Lye to be a Viola- Signs had been altogether vain and fruitleſs. This
tion of ſome Right; but what kind of Right this is, is the Opinion of Grotius (), on which we inay
and how acquired by Men (1), all are not agreed make this Remark, That there is not ſufficient
Mr. Barbeyrac's NOTES on § 10.
(1) Our Author (in s 8. before going) recites the words of Philoſtratus, De Vit. Apoll. Tyan. Lib. 2. C. 12. That among the
Indians, if a Student in Philoſophy was taken in a Lye, he was condemned not to be capable of any Office or Dignity, becauſe
by Lying he would deſtroy the univerſal Society of all Mankind, as muegmýcvla Biov áuggér. The Reaſon which our Au,
thor makes uſe of upon this occafion is very improper to diſcover diſtinctly the Foulneſs of Lying; but he had done becter, if
he had ſaid, that Philoſtratus fpeaks nothing of it: For this is one of the places where our Author miſtakes the ſenſe of the
Writer he quotes. For theſe are his Words, When any Indian is dead, there is a Magiſtrate appointed to go to the dead
“ perſon's Houſe, and enquire how he hath liv’d. If that Magiſtrate Lye, or ſuffer himſelf to be deceived for want of making
os an exact Enquiry, the Laws put him out of his office, and render him incapable of all Offices. Becauſe he has repreſented
" the Man's Life otherwiſe than it was. This is all Philoſtratus ſays, I. 2.C. 30.
(2) Mr. Plecette in his Treatiſe of Lying, c. 6. affirms, That chat which makes a Lye evil, is the Sin commitred, and nor the
Original Compact, which is much eaſier to imagine than prove; but a New and Particular Compact, which is made with them to
whom we ſpeak, every time we ſpeak to them. For indeed, adds he, when I ſpeak to any Man, I do ewo things, I oblige my
Telf to ſpeak what I think, and require that he ſhould believe me. If he to whom I ſpeak believes what I ſay, the Bargaia is
not only made but executed on the part of him to whom I ſpake. If I Lye on my part, I break the Treaty L'am making with
him, and conſequently I ſin againſt the Law of Nature, which requires, that all Agreements be faithfully executed. When he
to whom I ſpeak retuſes to believe what I ſay, and ſo accepts not the Agreement i propound, he ſtill appears to diſcredit my
Proceedings, as if I deſigned to make an Agreement which I would not keep. So that whether a Man believes whar 1 ſay,, or
not, I am always obliged to ſpeak Truth. But I fear that this New and Particular Compact of Mr. Placette will be more hard to
prove than the Original Compact, which he rejects. For in both theſe forts of Agreements the Confent is implied only. There
ought to be ſomething to secure it by a clear Conſequence. And ſo it lies upon Mr. Placette to prove that this New and Parti-
cular Compact reſults from the very Nature of the Action, which we always do when we ſpeak to any other, (i, e) from the
Nature of Speech, conſider'd barely as ſuch. I own, chac the Natural Intention of Speech is to communicate our Thoughts one
to another, but it is ſufficient that we do it on all occaſions when any one hath right to require it. The ettablith'd Cuſtom and
Good of Society require no more. Farther, as I have already ſaid in Nore 1. Men never pretend to engage to ſpeak always, and
to all the world, whatever they have in their mind; ſo that they never reſerve to themſelves a liberty of thewing a contrary in-
tencion by their 'Actions or words, and no Man may reaſonably require the like of others.
(a) Genef. 4. 9. (b) Antigone. p. 234. init. Edit, H. Steph. (c) Lib. 3 c. 1f. 11.
Care

Chap. I.1 Of Speech, and the Obligation which attends it. 107
(1) ’Agroãv, on Tó feudo ex vit7ov 11. Barbeyrac's NOTES on
(Clerc to could
Care taken in it to diſtinguiſh between thoſe two Sign equivalent to Speech ; yet our Silence may on
Obligations, one of which regards the applying another account become Criminal: As ſuppoſe we
Signs in general in ſuch a due manner, that ano- hinder by it fome Good which we were obligd to
ther may underſtand our Thoughts; and the other procure ; or cauſe ſome Evil, which we were bound
engageth us to di cover by thoſe Signs our real to avert. This is what the Poet calls
Meaning to ſuch or ſuch a particular perſon ; which
two are very different, and proceed from diſtinct -----animumque nefás Scelerare filendo, Sil. Ital. 1. 16.
Principles : For in as much as Words borrow their
Signification from the Force of Impoſition, we The Soul with ſilent Miſchief to defile.
muſt ſuppoſe fome (3) Agreement to have paſſed
between Men who ſpeak the ſame Language, that Thus a Watchman who is ſet to give notice of the
in cominon uſe they would apply ſuch Signs to Enemies Approach, ſhall incur the fevereſt Puniſh
expreſs ſuch things. But the Obligation which ties ment upon Neglect of Information. Polybius (a) (1)
me actually to addreſs thoſe Signs to another, or ſays, That an Hiſtorian who profejeth to give an ac-
to open my Mind to him about ſuch a certain Affair, connt of Affairs, is no leſs a Lyar, if he ſuppreſs and
ariſeth either' from ſome general Command of the conceal what really happen'd, than if he relate what is
Law of Nature, or from a particular Covenant, as falje. But in a matter which I am not obliged to
has been above explain'd. Hence it appears what declare to another, if I cannot with Safety conceal
Judgment we ſhould make of their Notion, who the whole, I may fairly diſcover no more than a
deny the Nature of a Lye to conſiſt in the Viola- part. An inſtance of this is uſually given in the
tion of a Pact on this Principle, “ That whatever Caſe of Jeremiah, who in the 38th Chapter of his
« is conſtituted, not by Nature, but by the Com- Prephecy, v. 25, &c. (b) being conſulted by the
pact of Men (eſpecially, Tacit) is to be derived King concerning the iſſue of the Siege, prudently
“ and to be valued from the point of Profit, and hides that Particular from the Princes, as the King
from that alone. Whereas that Men ſhould under- exprefly order'd him; aſſigning another Reaſon of
ſtand all that others ſay, doth not ſeem to be a thing the Conference, which notwithſtanding was alſo
ſo very profitable and beneficial
. On the contrary, it really true. Here the Prophet told only a part of
is much for our Intereſt
, that we ſhould have a full the Truth, being no wife obliged to diſcloſe the
liberty of covering either with Silence or proper Co- whole
. To the ſame purpoſe the Story of Athana
lours, ſuch Matters as may be kept ſecret without the fius is produced, who meeting himfelf with thoſe
Prejudice of other Men, and with our own Advan- who were ſent to apprehend him, and being ask’d;
tage
. Here thoſe Points are confounded, which Whether he had ſeen Athanaſius, anſwer’d, That he
ought to have been with Accuracy diſtinguiſh'd. saw him lately paſs by this way, and that he was now
For in this, That a Man fhould underſtand the gone on Board. For here he was under no Obliga-
Thoughts of all others; or that all others ſhould un- tion to betray himſelf. As to the Example of
derſtand his, there is indeed no Profit ; nor did Men Abraham in Geneſis 20. 12. ſome queſtion whether
by introducing of Speech, lay any ſuch mutual Ob- that moſt Holy Man acted prudently in calling
ligation on themſelves. But we have already Sarab his Siſter, and concealing their Marriage :
ſhewn how far any perſon is bound to declare hiin- For he knew her Beauty to be ſuch, as might kin-
ſelf to another, and how far the other hath a Right dle a Pallion in the Beholders, and at the ſame time
o underſtand him. Suppoſing then an Obligation that Unmarried Perſons are reckon’d more capable
in us to communicate our Thoughts to ſuch or ſuch of Addreſſes than others (2). Nor, ſay they, was
a Man, upon this the other Obligation which at- Abimelech’s Expoſtulation with him unjuſt: And
tended the Introduction of Speech falls in, and ex on the contrary, it was moſt inhuman in A-
erts its Force, engaging us ſo to apply our Words, braham to ſuppoſe that there was no Piety, or Ho-
that the Party may apprehend our Meaning. And neſty in a State, before he arrived to be their In-
of this the Profit or Advantage is ſo very great, ſtructor. Others excuſe the Patriarch on this
that without it there would be no manner of uſe Argument, That the hope of Life commonly bends
the greateſt and moſt ſtubborn Souls, and that
XI. Thus much being premiſed, it will not be ſcarce any thing is look'd on as baſe and infamous
difficult to judge how rightly thoſe ſeveral Cafes which is undertaken on the ſcore of declining
in which the Truth is not preciſe
ſpoken, are yet Death. But this point we leave undecided.
in common Eſtimation, exempted frum the Chara XII. Grotius diſtinguiſhes likewiſe between thoſe
cter of Lyes. And here firſt of all ſome diſtinguiſh Signs which have been invented and determin’d
between ſpeaking what is Falſe, and not ſpeaking were cursinns or with a mutual Obligation, and other
or diſſembling ſome part of what is True ; affirm- things about which no ſuch Agreement hath paſs’d:
ing the former to be unlawful, but the latter to (For no doubt when a Compact hath been made
be often innocent. On which point we are to know concerning the uſe of any thing, we are exactly to
that although to hold our Tongue cannot properly conform to that ſpecified Uſe.)" And as to the lat-
be term’d a Lye, eſpecially if we uſed 10 other ter ſort, he is of Opinion, that 'tis allowable to
(3) This is true; but, as is aboveſaid, that Confenc has no Obligation in it felf; and if there were no other Reaſon to lay a
Neceflicy upon us to make known our senciments
, nothing would hinder but chat every one might fignifie what he pleaſed by all
Terms, To that of the two Obligations,
of which our Author (peaks, one is only a Condition neceſſary to acquit us of the other.
Mr.
ix baina
7.200őla regoorlas ir
ä сais isdeidrs, 1. 12. c. 7.
.
hot be his wife
, or to put off his Anſwer about his Marriage, till he could get out of Ægypt. Whereas, had he owded her for
his wife, he had laid Snares for his own Life to take him off, and get rid of him; becaule he was the only obſtacle that hinde-
red the Enjoyment of Sarah.
(4) Lib. 12 c. 77.660.B. Edit. Caſdub. Wech. (6) Sce Grot. I. 3 c. I f. 7.
+ O 2
miſapply
to
in Speech.
od
101 Sow
biuo

108
Of Speech, and the Obligation which attends it. Book IV.
LG
CG
miſapply them, even when we foreſee that the o only juſtifiable when they ſerve for the Inftru-
ther Party will thence be led into a falſe Judgment, étion of one committed to our Care; or for the
provided either that no farther hurt follow this de avoiding fome pernicious and inſnaring Queſti-
ception, or that the hurt which follows it is (ſetting on (b); or for the procuring fome Benefit to our
aſide the Confideration of the Deceit) lawful; and “ ſelves, without the Damage of others (c): For
when we might fairly have hurt him in an open elfe, if you are under an Obligation to diſcover
manner: And to this we willingly ſubſcribe. For your Mind clearly to me, 'tis the fame thing whe-
ſince no Agreement, either general or particular, ther you deceive
me by a plain Lye, or by a doubt
is ſupposd to have paſs’d, which might have laid ful Expreſſion : Eſpecially ſince the latter muſt
, to
a Neceſſity on me to aprly the thing in ſuch a ſerve your purpoſe, be fo frain’d and contriv'd
,
manner, and no otherwiſe, to the end that the ſaid that I may lay hold on the more obvious and vul
Party might gather my Meaning from it; there- gar ſenſe, whilſt the more abſtruſe and uncommon
fore I am preſumed
to be left at full liberty as to anſwers to your inward Conceptions : Otherwiſe
,
its Uſe, ſo long as I hurt no Man injuriouſly, or if both Significations are alike probable, ſcarce any
without Cauſe. The Party may thank himſelf for perſon will be fo fupinely negligent, as not to ask
the wrong Notion he hath form’d; and attribute it you which way you would be underſtood ? But to
to his over curious Impertinence in paſſing Judg- ſpeak ambiguouſly or obſcurely to one whom we
ment on other Mens Buſineſs
. Whilft I am exerciſing intend to inſtruct, or whoſe Proficiency we would
my proper Right I am not always obliged to hinder thus try and examine, is on no account faulty; if
another from taking up a falſe Opinion in other re the good End we propoſe may by this mean be
{pects harmlefs. For inſtance
, if a Man to keep him- better obtain'd, than by more plain and direct Ap-
felf from being frighted in the Night, or to have a plication. To this purpoſe is the inſtance in St. John
Light always at hand for ſome occaſion, should 6. v. 5, &c.(d). So if I am not obligd to declare
ſleep with a Candle in his Chamber ; he is not my Mind at all to ſuch or ſuch a perſon, nothing
bound to put it out, how deeply ſoever his Neigh- hinders but that I may as well let him be miſta
bour may fanfie that he ſits up at his Buſineſs. The ken, as let him be ignorant, if beſides that Miſtake
,
Example of our Saviour, Luke 24. 28. is a Caſe of he incur no other undeſerv'd Prejudice. And there
no Difficulty. For every Man inay at his plea fore no one will cenſure Athanaſius (1) for the De
fure uſe the Geſture there repreſented:1 And no- ception he put on his Purſuers, which we have
thing is in common Life more frequent, than to already recited (e).
feign our felves in a readineſs to be gone, that It is hence evident, that we ought to interpret
we may diſcover whether or no we are welcome Grotius with fome Caution, when he ſays (7)
Gueſts : We being ſeriouſly reſolved to depart, un It is requiſite to the general Notion of a Lye
,
leſs we are follicited and importun'd to ſtay: The “ that what is either ſpoken or written, or by any
Caſe of St. Paul in Acts 16. 3. ſeems a Matter of “ Marks and Tokens expreſs’d, cannot otherwiſe
higher Confideration (1). But as to the other in “ be underſtood, than in ſuch a ſenſe as is different
ſtance alledged by Grotius, of deceiving an Enemy, “ from the intention of the perſon thus declaring
.
by counterfeiting Flight, Cloaths, Colours, Sails
, For in Caſes where a Man is bound clearly to diſ-
Arms, and the like; this Practice is allowable be- cover his Meaning, he ought ſo to frame his Ex-
yond diſpute; ſince we might lawfully have done preſſions, as that the ſame ſenſe which either the
him what Miſchief we could, by the moſt plain Nature of the Buſineſs in hand, or the common
and open Means.
Uſe and Cuſtom of Speech ſuggeſts, ſhall be like-
XIII. It is the Judgment of the fame Author (a), wife agreeable to his real Thoughts: Nor can he,
« That we do not always contract the guilt of with the leaſt reaſon, bid the Hearer thank him
« Lying, when we uſe an ambiguous Word or Ex- felf for the Miſtake or Damage he ſuffers, only on
preflion, which admits of divers Significations, the account of not diving into all the remote Quirks
“ either in common Speech, or by the Cuſtom of and Terms of Expreſſion utterly foreign to the pre-
Art, or by fome Figure unuſual or not intelligible, ſent Affair; that is
, for not being a Conjurer
. And
* provided our inward Meaning is agreeable to the Remark of Iſocrates (8) muſt be own’d for a
any one of theſe Significations ; although we be certain Truth (2), That to uſe ambiguous Sayings in
I lieve that the perſon to whom we ſpeak will un- Fudicial Contentions about Bargains , and Matters
“ derſtand it in a different ſenſe
. But he very of Intereſt and Moment, is ſcandalouſly baſe, and
rightly adds, That fuch Equivocal Speeches are fliews a very high degree of Wickedneſs.
not rafhly to be approv'd of and allow'd , being liustin
osad
Mr. Barbeyrac's NOTES 01 $ 12.
(1) We may be well ſatisfied with whar Grotius hath ſaid about this Matter, which I ſhall ſet down. . St. Paul was not igno-
rane that the Jews went this way, that the Command to be circumciſed, which was then aboliſhed, did yet oblige the Poftericy
of the Iſraelites, and as even St. Paul and Timothy himſelf were once perſuaded. But this was not in St. Paul's intention, buc
his Deſign was thereby to gain a familiar Converfe himſelf with the Jews, and procure it at the ſame time for Timothy. In truth,
che very fame Moment that the Divine Law which commanded Circumciſion was abrogated, Circumciſion could no longer be a
ſign of the Inſtitution which every one was indiſpenſably to bear. But the Evil, which the Error in which the Jews were for
some time, and which chey ought to be deliver'd from, was not to conſiderable as the Good which St. Paul labour'd to draw
from it, I mean the Eſtablithment of the Doctrine of the Goſpel The Greek Fathers ofeen give the Name of Oeconomy or Wife
Management to this Diſfimulation, doc. See Gataker upon Marcus Antoninus, l. 11. $ 9.
Mr. Barbeyrat's NOTES on § 13.
5 (1) See the News of the Republick of Learning, March 1699.
2) ΤΙς Greek is, Oής χρήξει λίρις αμφιβόλοις πρ μεν συμβολαίον, και πλεονεξίας αρνιζόμενον αισχρoν, και πονηρίας και μικρός
Pustov.
(a) De Æquivocis, l. 3 C. I $ 10 n. 1, 2. (6) Vid. Senec. Troad. v. 597, Gr.
(c) 1 Sam. 27. 10. (d) Vid. Grot.
ubi fupra.
(e) Vid. Theod. Hift
. Ecclef. 1. 3. c. 9. (f) Lib.3. C. I . 11 n, s. (6) Panathenaic. 486 Edit. Par
. 1621.
XIV. Much

Chap. I. Of Speech, and the Obligation mbich attends it.
iOS
XIV. Much more ought we to abhor and deteſt will make an entire Propoſition; which taken in
thoſe Mental Reſervations (1), which the wicked that united ſenſe, ſhall not be falſe. As for in-
Artifice of ſome Men hath invented, by wreſting ſtance, if I ſay, I am not a Prieſt; keeping this
Words to a quite contrary Senſe to what they out- Clauſe in my Mind, ſo as to be under any Obligation
wardly and plainly import, and this even in of telling you that I am ; this whole Propoſition ta-
Caſes where there was an Obligation to ſpeak the ken together ſtill be true, I am not a Prieſt
, ſo as
Truth, and in Affertions confirm'd by Oath. The to be under any Obligation of telling you that I am.
Effect of which is that a perſon ſeems outwardly to But in as much as Diſcourſe was invented with re-
affirm what he inwardly intends to deny, and ſo gard to others, not that every Man ſhould talk to
vice verſa
. A Practice by which the whole Uſe himſelf; fo the Truth or Falihood of it is mea-
and Deſign of Speech is utterly perverted, 10 Man ſur'd according to that which we openly declare
being ſure in what ſenſe he ought to take the words to thoſe with whoin we converſe.
of another. Nor is the Invention leſs abſurd than XV. That we are not guilty of Lying, tho' we
it is pernicious. For ſince Diſcourſe was originally ſpeak a thing which bears a wrong Signification (1),
introduced as a Means, of declaring what we con to Children or Perſons out of their Senſes, is gene-
ceive in our Minds; and ſince our Thoughts, ſo rally aſſerted; and therefore 'tis thought very al-
long as they do not come abroad, are of no manner lowable. The Reaſon allign’d by Grotius (*) is;
of Uſe or Effect in Humane Life ; by what Autho- Becauſe fince ſuch Perſons have not the liberty of
rity can theſe ſecret Reſerves, fo repugnant to the Judging, they cannot Juffer Injury with reſpect to that
common Cuſtom of Mankind, take away that Ef- liberty which they want. This Principle we do not
fect which the uttering of Words would otherwiſe take to be ſufficient: For to ſpeak chiefly of the
naturally produce ? Thus much indeed is uſual Caſe of Infants, it is plain indeed, that they ſo
with us, to annex to a General Expreſſion ſome far want the Faculty of Judgment, as ſimply and
Tacit Condition or Reſtriction, taken from the rafhly to catch at any thing, ſpoken or repreſented
ſubject Matter, or ſome other Circumſtances; by to them in a wrong manner; not being able by
Means of which we dextrouſly adapt our Speech to Reaſoning to diſtinguiſh Truth from Falfhood:
the Buſineſs under Debate, and free it from Confu- Yet ſince they make a part of Mankind, and on
fion or Inconvenience. But where would be the that account have a Right not to be hurt by others,
Reaſon, or where the Subtlety of my Proceeding? as they have likewiſe to receive the common Office
If
, for inſtance, being ask'd, whether I have done of Humanity, and to be furniſhed with good No-
ſuch a thing, I ſwear I have not done it, meaning tions, particularly by their Parents, and thoſe who
another thing, or the fame at another time? Or, if have the Care of their Education (b), and are at
when a Man deſires Money of me, I tell him, I leaſt capable of apprehending what is eaſie and fa-
bave none ; that is, none to give him? Or, if I pro- miliar; we are by all Means to hold, that they
miſe that I will give it him; that is, meerly for have thus far the ſame Right with Perſons of ad-
Form and Faſhion's fake, ſo as to take it immedi- vanced Age, that what ought to be ſhewn or de-
ately again? 'Tis a fooliſh Argument which is ur- clar'd to them, ſhall be propoſed in ſuch manner
ged to excuſe ſuch perſons from the Sins of Lying as that they may underſtand it. But for as much
and of Perjury, That they do not indeed ſpeak that as through the weakneſs of their Reaſon, and the
particular determinate Truth which the Hearers ap- ſtrength of their Paſſions, they have ſcarce any Re-
prebend, and which the Words imply, yet they Speak liſh for plain Truths, therefore 'tis convenient to
another Truth of a different kind. As if it were at inſtruct them by Fables, and to keep them in Awe
all ſatisfactory to my Queſtion, to be told a Truth by falſe Terrors, till ſuch time as they grow weary
of any other different kind, and utterly foreign to of Trifles, and are able to apprehend and to value
the Buſineſs which I ain now upon : Or, as if a the real Solidity of things. And thus we addreſs
Man did at all promote my Purpoſe, or the Rea- to them by Fiétion and Diſguiſe, not to ſport with
ſon of my Enquiry, if when I ask of Chalk, he an- their Ignorance, or to procure their Harm; but on-
ſwers me of Cheeſe (a).! No leſs ridiculous is that ly becauſe they cannot well be applied to in any
other Plea, that if in theſe Caſes we put the open more ſerious Method of Information (2). Strabo is
Speech and the Mental Reſervation together, they slot mai
Mr. Barbeyrac's NOTES on 6 14. ok
(1) See Mr. Placette in his Treatiſe of Lying, doc. c. 8. DO DIA
Mr. Barbeyrac's NOTES on $15.
( For the ſame Reaſon we may invent ſomething falſe to deceive an Infant innocently, and to accommodate our ſelves to
its Capacity: As alſo, we may ſo behave our ſelves towards ſuch as uſe feeble Reaſonings, either becauſe they think them well
grounded, ſince they are ſuitable to their Underſtandings, or they are pre poffeſs'd, and there is no other way to make them re
ceive the moſt profitable Truth. Hence it is, that we find in the New Teſtament ſeveral Texts of the old deliver'd in a ſenſe in
which the femos commonly underſtood them, tho’ they did not agree to the Original; and ſeveral Arguments ad hominem foun.
ded upon them, or upon other Opinions of the Jews, which were falſe and uncertain. See the Latin Notes of Mr. Le Clerc up-
on the New Teſtament, and particularly upon the Epiſtle of the Galatians, and his Parrbafiana, Tom. I. of the firſt Edition,
pag. 82. doc.
So
(*) Grotius's Words are, Quia cum illis non fit Judicii Libertas, non poteft eis circa illam Libertatem injuria fieris
(2) Lucretius expreſſeth this by a fine Similitude, 1. 1. V. 935, &c.
RTSed veturi pueris abfinthia tetra medentes
Phyficians uſe
Cum dare conantur, prius oras Pocula circum
In giving Children Draughts of bitter Juice
Contingunt mellis dulci flavoque liquore,
To make them cake it, cinge the Cup with Sweets
Pe puerorum etas improvida ludificetur,
To cheat the Lip: this firſt they eager meet,
tenus ; interea perpotet amarum
Abfinthi laticem, deceptaque non capiatur,
And then drink on, and take the bitter Draught,
And ſo are harmleſly deceivd, not caught :
Sed potius tali fa&to recreata valeſcat.
For by this Cheat they get their Health, their Eaſe,
So the Mother in Theocritus, Idyll. 15.4.40
Their Vigour, Strength, and baffle the Diſeaſe.
Mr. Creeche
-έκ άξώ το τέκνον· ωσμω, δεκγei ίππο.
You muſt not go, my dear Delight,
(a) Add Mr. Pascal's Letters Provincial, Lett. 9.
For there are Bug-bears, and the Horfes bice.
(6) Add Mat. 18.10.
admirable

ΙΙΟ
Of Speech, and the Obligation which attends it. Book IV.
CC
CG
J
(2) She knew that
the four de la Fontaine, and the Diſcourſe of Mr. Buddeus, Entitled, Philoſophus Fabularum Amator, among his Analetta Hi!
CC
place.
atly yo 2017
I. p. 13
admirable on this point (3) (a): “ Not the Poets their Medicines to the Patient's Strength and Con-
alone, ſays he, but long before them Publick So- ftitution. Since then 10 Perſon can be ſaid to have
< cieties and States made choice of the Art of Fa- had a Right of hearing Words under ſuch a Form
bles; and the Lawgivers themſelves, in regard as would have prov'd fatal to him, it cannot be
to the common Advantage, when they had firſt properly affirm'd, That there is any waving or re-
“ reflected on the Genius and Temper of Rational mitting of Right in the preſent Cafe. And then
“ Creatures
. For Man is led on with a moſt gree- for the Speaker, ſince he was in his part obliged to
dy Deſire of Knowledge ; and our earthly Ac- perform this Office through the mediation of Speech,
quaintance with theſe feigned Relations, is the either by the Law of Humanity, or by fome ftri-
firſt ſtep this Pasſion makes towards its own Sa- cter Engagement, 'tis manifeft, that he cannot be
“ tisfaction. Here Children begin their Informa- bound to apply his Speech in ſuch a manner as
tion, and willingly improve their Stock, for the ſhall make it loſe its End and Effect
. Therefore
fake of communicating it to others. The Reaſon all ſuch feign’d Speeches, as either ſave and protect
“ of all this is, becauſe Fables do ever carry fome- Innocence, appeaſe Rage, afſwage Grief, or pro-
“ what of Novelty in them, whilſt they report cure any Benefit or Convenience to others
, which
not common and conſiſtent Things, but what is could not have been obtain'd by direct and open
very ſtrange and unuſual. But now whatſoever Expreſſions, are not only to be exempted from the
“ is thus new and ſurprizing, and what Men never number of Lyes, but to be applauded as ſo many
“ head of before, cannot fail to be ſweet and agree- Inſtances of Wiſdom, Vid. Exod. 1. 17, 19. 1 Sam.
“ able: And 'tis this which breeds in them a cove-19, 12, & c. 20. 5. 28, 29. 2 Sam. 14.4, & c. 2 Cor.
tous Sollicitude, and an Eagerneſs after farther 9.2, 3, 4. Plin. l. 3. Epiſt. 16. Of Arria, Hor.
“ Delight. In caſe the Story be wonderful and pro- Od. 1 3. 11. v. 35, 36. Of Hypermneſtra:
digious, this Delight is highly increas’d; which
Froita
“ is the Bait that tempts the Young Learners to Splendide mendax & in omne virgo
Induſtry and Study. It is fit therefore that they
Nobilis ævum.
“Thould at Firſt be thus caught and inſnar'd with
« Pleaſures but when they have attain’d to a
more mature Age, they are to be diſciplina and Gallantly falfe, and prais'd in Endleſs Fame.
< inſtructed in the Solid Knowledge of Things; Euripid. Phæniſs. v. 998, &c. Sadi Roſar. Perfic
.
" their Mind and Judgment being now ſtrengthned c. 1. A beneficial Falſity is better than a deſtructive
« and confirm’d, and they no longer ſtanding in need Truth. Heliodor. Æthiop. 1 1. c. 3. p. 52. Edit
.
“ of being flatter'd and humour'd in their Good (b). Ludg. Bat. Feigned Speeches are then good and com-
In the ſame manner it is very lawful to apply Fi- mendable, when they turn to the advantage of the Hea-
ctions to Perſons out of their Senſes, in all ſuch rer, and do not prejudice the Speaker (1). We have
Caſes where they are not capable of apprehending a famous Example of this proceeding in the Story
true Reaſon.
of (2) Rahab the Harlot, Joſh. 11.4. And though
XVI. And indeed, all in General,upon whom we Grotius obſerves on this place, that before the Go-
cannot by plain Speech obtain the good end we de- Spel
, a Lye which contributed to the preſervation of
fign, we may, without the Cenfure of Lying, by "Good Men, was not eſteem'd faulty; and that therefore
feign’d Addreſſes, lead into a Miftake, for their this A&t is commended by the Apoſtles, Heb. 11. 31.
own Intereſt and Safety. Nor is it needful to draw and James 2. 25. as agreeable to the Times in which it
the Reaſon of this Practice from hence; That was perform’d; yet ’tis our Judgment, that the ſame
we may 1
preſume, in fuch a Caſe, the other Par- thing may even now be lawfully done, provided
ty will not think hard of our Treſpaſs on his Li- no Civil Obligation be prejudiced by it (e). To
“ berty of Judginent; nay, That he will give us the fame Head belongs the Caſe of thoſe Comman-
“ thanks for the Advantage he receives from it: ders, who in the heat of an Engagement raiſe the
“. And therefore what is done with his Conſent and drooping Spirits of their Men by ſome falſe Inſinu-
« Approbation, can be no Injury to him. For heation or Report, on the ſtrength of which Encou-
had indeed a Right, That our Speech ſhould pro- ragement they may force their way to Victory and
care him foine Benefit, or deliver him from fome Safety : Or thoſe, who before a Battle, leſſen and
Miſchief; but not that it ſhould produce the quite undervalue the Number of the Enemy. Vid. Cor:
contrary Effect; which it would have done, had he nel. Nep. Eumen. C. 3. The like Inſtances are fre-
underſtood the plain Buſineſs without Art or Co- quent in all Hiſtories. Xenoph. Apomn, 1. 4. p. 462,
lour. And therefore in theſe Cafes, we ought as 463. Edit. Græc. H. Steph. If a General obſerving
much to accommodate our Diſcourſe
to the Tem- bis Men to be in a Confternation, falfly tells them that
per and Condition of the Hearer, as Phyſicians do there are freſh Succours ready at band, for their Re-
bib yororonor poorly
(3) The Greek is, Και πρωθον ότι τες μύθος ανελέξανθο, έκ οι ποιηται μόνον, αλλά και αι πόλης πολύ πρότερον και οι νομοθέται,
σε χρησίμα χάeur
, βλάψαντες εις το φυσικόν πείνα τα λογικά ζών. Φιλολίμαν και ο άνθρωπG, προοίμιον και τότε το φιλόμυθος
ντεύθεν έν άρχεται τα παιδία ακροάται και κοινωνείν λόγων επί πλείον. "Αιτιον σε όη καινολογία της επιν ο μύθο και τα καθεσικολα
Φράζων, αλλ' έπεα παρ' αύτα, λούσε το καινόν, δ μα πρόπρον έγνω της: τύτο δ' αυτό έσιν, και το ποιες φιλειδίμονα. Όταν
με προση και το θαύμασον, ο πεφτώδες έπτείνει την ηδονήν, ήπις εσι τα μανθάνειν φίλτρων. Καταρχάς μενών ανάγκη τοιύτοις δε
λέασιν χρήθαι πε5ιέσης σε ηλικίας έπί τήν τών όντων μαθησιν άγαν, ήδη διανοίας έβρωμένης, και μηκέπ δεομένης κολάκων, 1. 1 p. 19,
aniu( 730 id to erigun Mr. Barbeyrac's NOTES on $15.
(1) The Greek 15, Καλόν και πότε και το ψεύος, όταν αφελών τες λόγωνίας, μεν καλαζλάθη τις ακέονlας.
the part of a good Citizen in hiding the Spyes of a People who came to invade their Country. See Mr. Le Clerc's Nore upon that
13. George 8) See
See the Fables of Æsop, peculiarly recommended by Philoftratus, Apollon. I. 5.c.5. As alfa
ftoriæ Philosophica. sid(e) Add Socrat. Ecclef
. Hift. I. 3. C. 12.
19 dbA lief;
aldsitas

Chap. I. Of Speech, and the Obligation which attends it. . III
Shail
lief
, and by this Stratagem compoſeth their Fears, and Erafiftratus, Phyſician to King Seleucus, in making
keeps them'in beart; under what Species of Actious him believe that his Son Antiochus was in Love
we reckon it? In all appearance under thoſe that with his Wife, may be admitted into this Number,
e juſt and good. In Sophocles (Philo&tet, v. 108, 109.) Vid. Lucian, De Dea Syra. The Conduct of Joſeph
when Neoptolemus asks Ulyles
, (*) Don't you think is juſtifiable on the like account, who to work his
it baſe to affirm a Faljity? His Anſwer is, No, in cafe Brothers to a ſerious Repentance for their Crime
the Falſity be a means of Safety. Add Frontin. Stratag. in ſelling him, and to judge how they ſtood affe-
1. 1. c. 11. 1. 2. c. 7. Polyan. 1. 1. C. 33. Stratag. Of cted towards his Father, and towards Benjamin, held
Leotychydes, Maxim. Tyrius, Differt. 3. p. 29. Edit them a long tiſne in Conſternation and Suſpence
Ludg. The bare telling the Truth is no ſuch brave and by feigned Accuſations (l). Laſtly, that the Fa-
comely thing, unleſs it be done to the benefit of thoſe bles of the Poets, by which they inſinuated Truth
we are to infruct. Thus a Phyſician often deceives under a taking Diſguiſe, are not to be condemnd
his Patients, a General his Soldiers, a Maſter of a for Criminal Falſities, every one will eaſily ad-
Ship his Crew, and we cenſure neither of them upon mit (c). And thus far the Saying of Sophocles will
this account. For in fome Cafes, a feigned Story doth hold good,
Men good, when the plain Truth would do them
harm (3). Though I know not whether Ageſilaus's Δοκώ με έδέν ρήμα συν κέρδει κακόν (α).
Stratagem of this kind deſerves Commendation; I judge no Speech amiſs that is of Uſe (5).
who when he ſaw his Soldiers in ſome Fright and
Concern at their being like to be over-power'd by, XVII. The Governors of States may ſometimes
the oppoſite Forces, wrote in his Hand the Word tco very lawfully uſe a manner of Speaking not
VICTORY; and taking the Beaſt's Liver out ſtrictly true (e); in as much as their Counſels and
from the Sacrificer, printed thoſe Letters upon it, Reſolutions, if divulg’d, frequently come to no-
and then thew'd it to the Troops, as a Divine Pro- thing, or perhaps turn to the prejudice of the Com-
miſe of Succeſs (a). For the ſame Reaſon Phyſici- monwealth. And therefore when bare Silence is
ans are not to be accounted Lyars, when they per- not a ſufficient Covering, they may veil their De-
fwade a nice or a froward Patient of the Sweetneſs ſigns with feigned Speeches to divert the Curioſity
or Mildneſs of what they apply for his Cure. Liban. of inquiſitive Men. Lying, ſays Plato (1) (f), is
Declam. 29. p. 664. D. Edit. Pariſ. Morell. We ſee uſeful to Mankind only in the way of Phyſick; and
the Phyſicians beguiling their Patient's Appetite with therefore ſhould be allowed to Publick Phyſicians, but
harmleſs Deceits.
The ſame we ought to practiſe to- ought not to be touch'd by Private Patients. Princes
wards thoſe that are in Health, ſo often as ’twould be and Governors (if any Perfons elſe) may be permitted
better for thein to be deceiv'd, than to be truly in- to uſe the Same Stratagem (2), either for the Ruin of
form’d. (4) Yet I queſtion whether the Artifice of the Enemy, the Preſervation of the Subjects, or any
that it
may
by my
(*) The Greek is, Neopr. Ουκ αισχρον ηγα ολα τα ψεύδη λίγων. Uly fes, Ουκ εί το σωθίώαι και το ψεύδο φέρε.
(3) The Greek is, Ουδέν και στεμνόν τ' αληθή λέγειν, ει μη έγνοιτο επ' αγαθό τα μαλύντος, έτω και ιατρός νοσένα εξαπατά, και
Κρατερός ερατοπεδον, και κυβερνήτης ναυλας ; και δείγον έδεν, αλλα ήδη ψευδG ώνησαν ανθρώπες, και το αληθές έβλαψεν.
(4) The Greek 15, Και μεν και της ιατρες δρώμεν τας των καμνόνων επιθυμίας απάσαις αναβάλλονίας ή διπε και πρG υμαι όνας
TXTO Tošusy, ota ġ ugætlov, ti s' dange's drãoul TÒ Tagxgx añoad. But our Author, who quores this Paffage, alſo obſerves,
be doubted, whether we may uſe that as an innocent Chear, which Erafoſtratus made uſe of to cure the Prince Anti.
ochus, who was in Love with his Mother in-Law Stratonice. We may find the Scory in Lucian's Work, De Dea Syriaca, and Mr.
Fontinelle's Dialogues of the Dead, both Ancient and Modern, Dial. 5. Our Author a liccle higher alſo diſallows a piece of
Craft which Ageſilaus made uſe of to encourage his Soldiers: Without doubt, becauſe it contain’d an Affront to the Deity:
. (5) Buc thele Words do not ſignifie what our Author ſuppoſes, following the Latin Tranſlation (not excepting the Oxford Edi.
tion in 1705. of the two Tragedies of this poet.) There is nothing that one may not ſpeak innocently, if it tends to our Advan-
tage. Mr. Dacier tranſlates them differently, but perhaps to no better purpoſe. He gives us the whole train of the Diſcourſe, to
thew us that theſe words ought to have a different Senfe. At length, faith Oreſtes, what evil is it to me if I paſs for Dead, if
Ifhew
Adions that I am full of life, and I have gain'd an Immortal Name? As for me, I am perſuaded there can be no
tad Preſage, where there is lo much Profit. But there
may be, as I believe, a better Tranſlation given, more agreeable to o e.
ftes's Thoughts, and to the Greek thus, I am perfuaded that no Report can tend to our Diſhonour, and hurt our Reputation, when
ſo much Profit may ariſe from it. This appears from what follows. How many of the Sages, who were for a long time taken
for Dead, have returned to Life again, and were the more honoured by all the world ? I hope I (ha I have the ſame good luck,
and after the Report of my Death is ditperfed every where, I ſhall of a ſudden appear again to my Enemies, &c. In theſe
latt
Words the Original thus imports, a ne or çhuns a te, &c. From whence it appears
, that põua is the ſame as gørin. In fine
,
We may compare this Expreſſion, piñuel sexov, with
a like one in the New Teſtament, Happy are ye, when Men Shall speak all
manner of evil (zão cornega põuce) againſt you falfly, Macch. 5, II.
Mr. Barbeyrac's NOTES on 17.
) The Greek is, 'Aragamois så faüst zsúmuov, as cv paquára eider Süno", % 71 73 74 torstoy ialegas obrtov, idratals
Tois da does müav o* anleov iš toi678. We ought to obierve, that Plato treats here of ſuch Lyes only as concern a State, as
inpears by what
follows, and does by no means condemn ſuch innocent Lyes as private Men uſe one with another. This Philofo.
pher at the End of the foregoing Dialogue owns, that there
is a profitable
Lye, which is not to be hated. As for Example, when
of Speaks
a falſe thing to ones Enemy, or well to thoſe Friends who agree not, to hinder fome Miſchief. This is a Medicine
which we ought to uſe. Here Plato keeps to the
Notion of a Medicine, and repreſents the Sovereign and his inferior Magi.
frares as to many Publick Phyſicians, who alone confequently may make uſe of a Lye for the Benefit of the State. But he al-
Ways ſuppoſes, that in Matters that do not concern the Government, whoever can procure an advantage to another by a Lye,
Or fome other innocent Fallacy, he is really a Phyſician to whom it belongs to adminiſter that Medicine, Ti Se dh; to ev teis
λόγους ψεύδο, πότε και τι χρήσιμον, ώστε να αξιον είναι μίσος αρ και προς τα τές πολεμίες, και των καλυμένων φίλων
, όταν δια
Por Leg bus, Lib. 2. & Lib. 11.** Soehnle Grotius had not throughly examined the fence of plafo, when he ſays, That that Philo-
fopher ſeems ſometimes to allow, and ſometimes to deny Phyſicians properly ſo called, a liberty to ſpeak contrary to their
Thoughts ; and Gronovius, who criticizes on Grotius
, does not much mend the Matter, 'affirming, that Plato allows it only to
(2) See what our Author ſays in his Diſcourſe, De Concordia Vere Politice cum Relig. Chriſtiana, $ 10.
(a) Plutarch Apoth. Lacon. p. 214. E. T. 2. Edit. Wech. (6) Gen. 42, &c. Joſeph. Antiq. Jud. I. 2. C. 3. (c) Vid. Plutarch
(d) Electra, v. 61. (e) Vid. Grot, 1. 3. C. 1 $ 15, (f) De Republ. I. 3 p. 611 Edit, Wech,
way
४
34
Magiſtrates and Phyſicians.
de audiend, Poet,

I I 2 Of Speech, and the Obligation wbich attends it.
Book IV.
a
way for the advantage of the Community : But all third Man, I do not contract the Guilt of Lying in
other's ought ſtrictly to abſtain from this Practice. A reſpect of Him, becauſe I have no buſineſs with
famous Instance we have in Solomon's Judgment, him, and conſequently he hath no Right to under-
1 Kings 3. 25. And fo Claudius in Sueton (a), brought ſtand my Sentiments. So that if he take up a falſe
Woman to own her Son, whom ſhe firſt, on pro- Notion, from Expreſſions applied to another Per-
bable Arguments, deny’d, by commanding her to fon, not to himſelf, he is to lay all the blame on
marry him. Thus a Father and a Son being ar- his own Curioſity and Impertinence. But leaft
raign’d together for Murther of a Prieſt, when it this Poſition ſhould be abuſed to ill purpoſe, we
could not be made out which of the two had com are to add as a neceſſary Caution, That 'tis by no
mitted the Fact, each refuſing to accuſe the other; mean, allowable for two Perſons to make uſe of
Charlemagne, as we are told, gave Sentence of Death ſuch Occaſions as theſe by way of Stratagem to
upon them both; upon which, the Father confeſs’d delude or expoſe a Third. For although it
himſelt the Murtherer. So, it being a Law in Spain; never ſo true, that this Third Man hath not a per-
That in caſe a Female Slave be with Child by her fect Right to know my Judginent, yet the Law of
Maſter, ſhe ſhall be iminediately reſtor’d to Li- Humanity and Charity requires that my Speech do
berty: Once it happen’d that a Nobleman's Maid not occalion his undeſerved Prejudice. Therefore
was diſcover'd to be in this Condition; the Noble- we ought on all accounts to make this diſtinction,
niran denied the thing, and the Proofs alledg’d not whether the Third Party overhears our Diſcourſe
being evident, King Alphonſo order'd the Child to without his cwn Fault, or whether either out of a
be publickly ſold into Servitude ; the News of bulie or a malicious Huinour, he purpoſely intrudes
which Sentence inov’d the Father to diſcover himſelf
. into our Secrets. And therefore this Allertion chiefly
So when Neleus, being about to lead abroad a Colony, holds good againſt thoſe Inquiſitive Goſliping
was commanded by the Southſayers to purge his Knaves, who make it their employment treache-
Army of all polluted Perfors; he pretended that he rouſly to catch up what other Perſons drop in pri-
himſelf had murder'd a Child, and ſo ſtood in need vate Company. Now when we apprehend our
of Expiation; and by this means perſuading others felves to be watch'd by ſuch fly Deſigners, and
to confeſs themſelves guilty, he left all thoſe be- yet are not inclin’d to be altogether filent, we
hind him, whom he had thus convicted of Impu- are wont to diſappoint their bufie Curioſity, by
rity (b). Tis a Proverb with the Spaniards, Tell throwing in a ſett of Talk quite impertinent to the
a Lye, and you'll get out the Truth. To the fame Affair which we were before debating; or by agree-
Head belongs the Diffimulation and Concealment ing to tell ſome Story, which our Politick Eves-
about the Sickneſs or Death of Princes, for the pre- dropper hugging as a mighty Diſcovery, may, up-
vention of Tumults. Though we are not willing on his communicating it to others, be ſufficiently
to extend this Liberty ſo far as to juſtifie the Po- laugh’d at for his Pains; provided neither he nor
litick Devices of Numa (c). Nor will the ſame Pri- any Perſon elſe ſuffer any farther damage by this
vilege hold at all in the caſe of Promiſes and En- Contrivance.
Contrivance. We know very well 'tis a general
gagements (d).
Duty, not to leſſen the Honour and Reputation of
XVIII. But farther, Grotius (e) having thus af- others, nor to ridicule and expoſe them. Yet, as
ſerted, “ That every Lye ariſeth from the im- we do not think our felves guilty of any Sin, when
pairing of fome Right which one Man may have we diſcover the Miſtake of another, fuppoſing it
to underſtand the Mind of another ; concludes to be done without either Bitterneſs or Infolence
,
“ from hence, That we cannot be charg’d with (things ſo unworthy of Men of Senſe and Breeding)
of this Fault (1), when we direct a feigned Dif- although we ſhould hereby rather diminiſh, in ſome
courſe to one who is not deceiv'd by it, though reſpect, than improve his Credit : So what ſhould
a third Perſon ſhould thence happen to enter- hinder us from correcting a Fault in a Man's Mo-
“ tain a wrong Opinion. For 'tis to be ſuppos’d rals, when it proves troubleſome to us, even by
that I, and he to whom I addreſs’d my felt
, are Sport and Ridicule, that we way incline him to
tranſacting fome private Buſineſs, which doth not leave off the Habit ? For to amend and reform o-
at all belong to the Perſon who overhears us. thers cannot therefore be judg’d unlawful, becauſe
Therefore the Man with whom I ain dealing is it tends to the Diſparagement of their Worth and
certainly not deceiv’d with my manner of Speech, Excellency. Thus, ſince 'tis the common Intereſt
becauſe he well apprehends my Meaning by it; of Mankind, that each Man ſhould not underſtand
juſt as if I ſhould relate a Fable, or uſe an Irony the Secrets of all, it is eſtabliih'd as 'twere by the
or Hyperbole to one who krew, how to put the general Conſent of Nations, that (2) ſeal'd Letters
right Conſtruction upon the Words. And as for the ihould be open'd by him only to whom they are
directed
ſeri-
(a) Cap. 15. (b) Ælian 1. 8. c. 5. (c) Add Polyan. Stratagem. 1. 2. in Epaminond. n. 6, & 12. Polyb. 1. 16. C. II.
(d) Add Bacon's Eff. 6. (e) Lib. 3 C.I$ 13 n. 1.
Mr. Barbeyrac's NOTES on $ 18.
(1) Some of the Fathers of the Church, as Grotius obſerves, recite here the Cenſure which St. Paul paſs’d on St. Peter, who
being at Antioch, withdrew himſelf from the Company of the new converted Gentiles, becauſe he would not offend the Jews,
Gal. 2. 11, Goc. For fay St. Chryfoftome and St. Jerome, St. Peter knew very well that St. Paul did not cenfure him in carneft,
but did it ſeemingly only to comply with the Weakneſs of the Brethren preſent. But 'tis plain, that St. Paul ſpoke very
oufly, and blames St. Peter's Carriage, as attended with inexcuſable Hypocriſy, becauſe by withdrawing from the Gentiles, he
gave an occaſion to believe that the obſervation of the Ceremonies of Moſes's Law were abſolutely neceffary to render them ac.
ceprable to God; and this is contrary to the End and Deſign of the Goſpel. See the Interpreters on the place.
(2) See Mr. H rtius's Diſcourſe, De Commeatu Literarum, 63 in Tom. T. of his Comments, and finall Tracts, where he alſo
oblerves, that it has always been taken for a great Incivility and an inhumane Baleneſs, to publiſh the Letters we receive from
others, becauſe it may produce ſome Prejudice to the Writer. Upon which occafion it may be reaſonable to rehearſe the brisk
Reproof which Cicero gave Marc Antony long ago. He alſo read a Lerrer, which he ſaid he had received from me
“ without Humanity; and who knows not what it is to live! For is there any Man, who has convers'd fo little with honeft Meas
« O Man
Chap. 1. Of Speech; and the Obligation which attends it,
II3
directed: Therefore if I find any Perſon intercep- haps the foriner do not hereby ſuffer any particular
ting and ſearching my Letters, it can be no Crime Hurt: For indeed to be thus made the Inſtrument
if I contrive to let foine Writing fall into his Hands, of deceiving another, is in it ſelf mean and un-
which ſhall give hiin no great Satisfaction in the worthy: And as for our part, 'tis the ſame thing,
reading. As a greedy Boy who hath got a trick of whether we abuſe a Man immediately by our own
plundering the Cupboard, fuffers no Injury, ifamongſt Act, or by the Intervention of ſome Perſon elſe,
the other Proviſion he meets with a Bait not very whom we have ſuborn’d for that Service. Though
ſweet or favoury. It was a pleaſant piece of De- 'tis an Art which many practiſe; firſt, to cheat
ception, that which Herodotus (a) reports of Nito- thoſe whom they intend to make uſe of for the
cris or Semiramis, who order’d the following Words cheating of others. Vid. Senec. Thyeſt
. v. 320. As
to be engraven on her Sepulchre, If any Babylonian Davus obſerves (6), there's a great deal of difference,
Prince happens to be in great Diſtreſs for Money, let ex animo, omnia, ut fert Natura, facias, an de indu-
bim open this Tomb, and take out as much as he plea- ftria? Whether a Man acts according to real Inten-
feth. 'King Darius (3) afterwards removing the tion and the plain Guidance of Nature, or accord-
Stone, found no Treaſure, but only this Rebuke, ing to the Affectation of Art and Deſign, Terent.
If thou hadft not been inſatiably Covetous, thou wouldji Andr. Act. 4 Scen. 4. Add Gell. 1. 12. C. 12.
never have plunder'd Cöfins to enrich thee: Or, as XIX. This is manifeſt, that ſince the Obligation
Maximus Tyrius (6) gives the Story, All Curſes fol- to diſcloſe our Mind ceaſeth with regard to Ene-
low thee, thou moſt greedy of Mankind; who for the mies, it cannot fall under the Sin of Lying, to give
Jake of Gold boji preſum’d to diſturb and violate the them a feign'd Relation (e), to terrify them with
Dead (*). To give Credit to ſuch Inſcriptions is falſe Rumours, or any way to procure their Preju-
no more an Arguinent of Avarice than Folly. In dice, provided no undeſerved Loſs or Damage en-
the Story of Papyrius in Gellius (4) (c); the Sena- fue to a Third Party who is our Friend. For why
tors rightly commend the Cauſe of the Young Gen- may not we by Stratagem and Subtlety, and with-
tleman's Fiction; that is; the Wit and Secrecy of out endangering our own Perſons, hurt him whom
fo unexperienc'd Years; but adjudge the manner we have Licenſe to attack with open Violence ?
of it to be a little undutiful and diſreſpe&tful to The Reaſon why ſome have diſdaind this Method
his Mother ; eſpecially ſince the Jeft occafion'da of Hoftility (f), was not becauſe they thought any
Petition not much to the Honour and Credit of Right to be violated by it, but becauſe among the
the Ladies, That one Wife ſhould rather have two moft Fierce and Martial Souls no Action again an
Husbands, than one Husband two Wives. Nor Enemy is look’d on as Glorious, but ſuch as carries
could I ever prevail with my ſelf to be heartily in it fome ſort of Vigour and force of Body and
angry with that Senator in Plutarch (d), who to di- Mind. But what we ſpeak about deceiving and
vert his Wife's Importunity in asking about the Se circumventing an Enemy, is by no means to be
crets of the Houſe, told her a ſtrange Tale of a extended to any (1) Pacts or Treaties ſet on foot
Quail (s), faid to be ſeen fly through the Forum about concluding or intermitting the War. For
with a Golden Helmet. Though he ought indeed ſince the Law of Nature commands us to maintain
at the ſame time to have taken care that this bab- Peace as far as may be done with Convenience,
bling. Dame ſhould not put others into a ground- and to repair any Breach that may happen in it,
lefs. Fright by her Report. For then the preſent we muſt ſuppoſe our ſelves commanded at the ſame
Miſtake, which laſted but an inſtant, would have time to uſe thoſe Means without which this End
been ſufficiently recompenced by the Diverſion and can ne'er be obtain’d. But now Enemies cannot
Satisfaction which follow'd it. Now if we are poſſibly come to an Accommodation, unleſs there
bound to uſe Caution, that the Perſon whom we be on both ſides an Obligation to the clear Diſco-
have juſtly and deſervedly impos’d upon, ſhould very of their Mind, in reference to what is tranſ-
not deceive others; much leſs will it be allowable acted between them; and conſequently unleſs their
to perſuade one Man of what is falſe, with deſign Mutual Diffidence be remov'd by a Neceſſity and
that he may delude a third Perſon; although per- Engagement to ſpeak the Truth in all Articles and

as upon a llttle bangle with a Friend to make no ſcruple to publiſh and read the Letters he has received from him before all
& the World? Is it nor to baniſh all Friendſhip out of the World, to take away the liberty of Friends writing one to another
when they are abſent? How many Trifles do we put into our Letters, which being divulged, will appear ridiculous ? And how
many ſerious things, which ought not to be made publick ? At etiam Literas, quas me fibi miſisje diceret, recitavit. Homo, do
bumanit atis expers, &* vite communis ignarus! Quis enim unquam, qui paululum modo boriorum conſuetudinem nôfſet ? Literas ad fe ab
amico miſ as offenfione aliqua
interpofita, in medium protulit, palamq; recitavit ? Quid eft aliud tollere è vita vite ſocietatem, quam
tollere amicorum colloquia abſentium? quam multa fica folent else in Épiftolis, qua prolată
fi fint, inepte videantur . quam multa feria,
neque
enim ullo modo divulganda, Philip. 2. 4. See an Example of this indiſcreet Rudeneſs in the News of the Republick of Ler-
ters, December 1665, where Mr. Bayle cenfures
the Author of the Dialogue between Photinus and Ireneus; doc. which was the
tamous Mr. Gautier a Miniſter.
(3) This Example ſeems not much to our Author's purpoſe, relating only the manner how Darius was cheated by the Inſcrip-
tion which Nitocris Queen of Babylon had caufed to be engraved on her Tomb. For, ſays he, he muſt be a ſimple and covetous
Man to believe ſuch an Inſcription.
* The Greek 15, Ω παιων ανθρώπων απληκότατε, ός έτλης νεκρά θίγον δι' έρωτά χρύσε.
(4) Mo
But fome Men ſuſpect it to be more a Fable. See Mr. Thomaſius's Nevi Juriſpr. Rom. p. 126.
Bouhours relates this Story alſo in French in his Diſcourſes between Ariſteas and Eugenius, Diſc. 3. concerning a Secret.
$5) Our Author calls it a Quail, but the Original is Kógus G, a Lark.
Madam Dacier gives us in, is, Do you think that there is but
ſmall difference in things done by Natural Inftinet, and on a ſudden, and
I cane ſee whac the Paflage here alledged by the Author makes to his purpoſe. For the true Tranflation of them (as
fucb as are done by Premeditation and Conſult at ion?
Mr. Barbeyrac's NOTES on § 19.
(1) See what is ſaid, I. 50.98 3. And 1. 8. c. 7, 8.
(a) Lib. 1. p.48. Edit. H. Sterh.
(b) Diſertat. 10. in fin. Vid. Olearii Itin. Perfic. 1. 4. c. 7. (c) Lib. I. c.
23.
(4) De Garrulitate, p. 507. Tom. 2. Edit. Wech. (e) See Grof. I. § c. il. 17, 18. ( ) Vid. Grót. ubi fupra do 1. 2o.
+ P
Conditions

114 Of Speech, and the Obligation which attends it.
Book IV.
ώσπες
Τρέχοντα εαν και δεσμε, δεν έαν και ξημίας αποτίγονία: έαν 3 φυγής, φεύρνα: έαν και θανάτε, αποθνήσκολα. Ια Gor-
Conditions of Peace. And when 'tis afferted as Due: And, Secondly, that fit Puniſhments may
Lawful to delude or miſchief an Enemy by any be inflicted for the Correction and Reſtraint, both
feignºd Report ; this ought on no account to be car- of thoſe who have dared with wicked purpoſe
,
ried ſo far as to juſtifie the ipreading of falſe Crimes actually to violate the Rights of others; and of
and Imputations, in order to the impairing his thoſe too, who by reaſon of their cold Affection to
Honour and Credit. The ſtate of Hoftility doth wards Juſtice, would have proceeded to the fame
indeed licenfe me to conceal my Meaning from Commiſſions, did they not dread the ſuffering thoſe
my Foe, or by ſcattering falſe News to open my Evils, which they have ſeen fall ſo heavily on
way to his Hurt. But he that goes about to charge other Offenders. Now, to decline the Severity of
an Enemy with any grievous Crime, and would this Proceſs, ſome think it by no means allowable
have his Accuſation believ'd by thoſe who are at to make uſe of falſe Speeches. Firſt, becauſe the
peace with him, muſt lay aſide all the Stratagems Judge hath an eſpecial Right to underſtand the
and Deceits of War; and ſet up for an Affertor of Truth. Wherefore, neither the Sanctity of the
plain Truths ; and therefore with regard to thoſe Magiſtrate, who preſides in the Name of God, nor
Perſons who are ſuppos’d to be his Hearers, he is the Neceſſity which the Subject lies under to Obe-
to play the part of an Hiſtorian, or ordinary Rela- dience, will give the leaſt place or countenance to
tor. Whence, if he voluntarily recede from the Contumacy or Circumvention. Beſides, they ſay
,
Truth and Reality of things, he cannot avoid the this Permillion appears rather dangerous than need?
double Guilt of Lying and Slandering. Again, to ful or beneficial; in as much as conceald Crimes
charge an Enemy falily to his Face, is a Mark of do the more Miſchief. Eſpecially if what is deli-
a low and impotent Reviler. To return Lyes for ver'd in excuſe, be not only falſe in Faet, but in
Lyes, is to imitate the Folly and Vanity of the Theory; every ſuch Untruth being of ill Confe-
Adverfàry (a). As for the Notion of Lipfius, in quence, not only conſider'd by it ſelf, but likewiſe
his Treatiſe of Politicks (b), who reckoning up the in regard that one Error gives Occaſion and Riſe
Perſons towards whom we may be allowed to pra- to an infinite Train of others. Yet the contrary
&tiſe Simulation or Diffimulation, joyns Foreigners Opinion is by many preferr’d; who ſay, we ought
to Enemies; this ought no farther to be admitted, to diſtinguiſh in every Crime between the Damage
than as it is for our Advantage to hide our Deſigns done, and the baſe Guilt or Commiſſion; to the
or our Affairs from their Notice. For that we former of which Reftitution properly anſwers, and
ſhould by feign'd Speeches procure their Harm or to the latter Puniſhment. By the Law of Nature
Loſs, is what Nature it felt will not bear; on ac- every Man ought to make Reſtitution for Damage
count of that Nearneſs of Blood by which all Man- occaſion’d by his Fault ; and at the ſame time the
kind ſtand related and allied to each other. ſuffering Party ought, upon his Sorrow and Repa-
XX. 'Tis a Queſtion of more Difficulty, Whether ration, to admit him to Pardon. Therefore every
a Criminal or an Offender arraigud on any, Ac- Guilty Perſon is, by an Obligation ſtrictly fo call'd,
count may deny the Fact (1) with which he is bound to be always ready to repair any Damage
charg’d, or endeavour to elude the Accufation by he hath caus’d.
feign d Arguments, and yet not incur the Guilt of But no Man is tied to offer up himſelf freely
Lying. And here we do not ſpeak of the Divine to Puniſhment, and to be an Informer againſt him-
Tribunal, in reſpect of which the ſafeſt Courſe is, felf. So that if the Fact be not known, and an
to fly immediately to humble Confeſfion, and an open (2) Reſtitution would be a Confeffion of the
earneſt imploring of Pardon : Since it would not Guilt, in this Cafe the Reſtitution is to be made
be leſs Impiety than Folly, to uſe Excuſes or De- in ſome indirect and ſecret manner. All Puniſh-
nials before an Omnipotent Judge. And 'twas on ment muſt be inflicted upon Men againſt their
this Principle that Foſhua made the Exhortation Wills; otherwiſe it could never obtain its due End,
to Achan, which we have in Joſh. 7. 19, 20. For which is to deter the preſent Offender, and all o-
there the Criminal was before detected by the ther Perſons from Sin. But whatever we lay under
Hand of Heaven. The preſent Enquiry therefore an Obligation to perform, is to be undertaken by
is confin'l to Humane Judgments; which are prin- our own free and voluntary Motion. Since then
cipally deſign'd for theſe two Ends and Uſes : Firſt
, no Perſon is properly obliged to invite and call
that every Man
Man may obtain what is his Right and down Puniſhment on his own Head (3) (c), but
Mr. Barbeyrac's NOTES on S 20.
(1) Plato without doubt took the Negative Part here. For he will not allow a Private Perſon to Lye before a Magiſtrate
,
and ſays, 'tis a greater fault, than for a Sick Man to Lye to his Phyſician, a Scholar co his Mafter, doc. His Words are, Anna
πρής γε τοιύτες άχνίας ψεύστώαι, και μείζον αμάρτημα φήσομω, ή κάμνονλι προς Ίαθρον, ή ασκει προς παιδο-
Jeibny, migi tev še euro wuslo na dnud TWD uħ thv dalgarv, doc. De Repub. 1. 3. p. 389. Nay, he goes farther, and main-
tains, that every one of his own accord is to accuſe himſelf and Relations, that they may ſuffer the Puniſhments which the Law
his Words imporc. μ τις υπολάζος κατηρεάν , μάλιστα μεν εαυτό
έπειτα 3 και των οικείων, και των άλλων, ός αν αει των φίλων υγχάνη άθικών, και μη αποκρυπεθαι, αλλ' εις το φανερόν άγειν το α-
κημα, ένα δω δίκίω, και υγιής γενεθαι, 'Αναγκάζειν και και αυτόν, και τις άλλες μη αποδελιών, άλλα παρέχειν μύσαλα και ανδρείας,
for, car si
,
gia, p. 480.
(2) Mr. Thomaſius, who in his Treatiſe, De Juriſpr. Divin. 1. 2.C. 8. $ 85, doc. is of a contrary Judgment to our Author, ob
jects, that the Condition of making good the Damage, cauſes
, that the crime can't be concealed, as is ſuppoſed; becauſe by
& Gent, where he changes his opinion, and ſays, That the guilty Perſon may, either by way
of Accommodatiou, or by Friends
,
ſatisfie the Perſon injured in ſuch a manner, that he hall not know who it was that wrong á him, or if he has ſome knowledge
of him, the thing ſhall not be ſo nocorious as to bring him to Puniſhment.
(3) 'The words are, Ignoſcendum cenſuerunt Principes, ei qui ſanguinem ſuum qualiteo, qualiter redemptum voluit.
(a) Add Mr. Paſcal's Epiſt
. 15. cum Annotat. (6) Lib. 4 C.540. 32.
(c) Vid. Digeſt. 48. cit. 21. de bonis eorum qui ante
ſentent. dc. leg T.
muſt,

Chap. I. Of Speech, and the Obligation which attends it.
115
nd Al- make ufe of feign'd Arguments and falſe Colours;
muft, indeed, as he is a Man, Naturally abhor it or to embrace the Ingenuity of an Open Acknow-
in the higheſt degree ; eſpecially if it tend to Death, ledgment, is a Point which belongs to another kind
or ſome other grievous Evil; there appears no rea- of Enquiry, not to that which we are now engag’d
ſon why he may not decline it any way pollible, in, and which confines it felf to Matters of ſtrict
provided he do not hereby injure a third Party (a). Duty, what a Man is bound to do, and what not (7).
Nor can it much conduce to the Intereſt of a Com- Which of theſe two Opinions ought to be choſen
monwealth, that after Reparation hath been made rather than the other, any Man will apprehend,
for the Dainage, any ſuch Fact, as we nuw ſpeak who hath Judgment enough to weigh the Argu-
of
, ihould be punilh'd ; that is, a Fact not open ments offer'd on both ſides. 'Tis very remarkable,
and notorious, and which conſequently might be that which Haythor reports in his Hiſtory of the
diſguis’d or excuſed by ſome Colour or Plea. There Tartars, c.48. That although in other reſpekts they
fore, as none but a Fool will deny inanifeſt Faults
, are moſt notorious Lyars
, yet in two things they ſtrictly
lo from what hath been here alledg’d, it ſeems 'al- obſerve the Truth : Firſt, That no Man among them
lowable for a Man to wipe off an Imputation by a arrogates to himſelf the Glory of an Exploit which he
Falſe Defence. Tho' for a Priſoner to urge Falſe really hath not perform’d: And, Secondly, That who-
Opinions, can ſeldom turn to his advantage, the ever
ever hath committed a Crime, though ſuch as he knows
Court being ſuppos’d well skill'd in Right and E- will coſt him his Life, when examin'd by his Lord, nei
quity. A Judge indeed hath Power and Liberty ver conceals the Matter. And amongſt the Japoneſe
to get out the Truth by any pollible Means (4) to be diſcover'd in a Lye before the Judge is a Ca-
in caſe the Fact be of ſuch Conſequence, that the pital Offence.
Safety of the Publick abſolutely requires it ſhould XXI. But 'twill be ask'd, What liberty may the
be puniſh’d. And therefore he cannot be tax?d with Council or the Advocate fáirly take in this Čaſe ?
Lying, if to bring the Party to a Confeffion, he Our Opinion is, that we ought here to diſtinguiſh
make uſe of ſome Stratagem of Fiction : As ſup- between Civil Caſes and Criminal. In the former
poſe, by pretending that he hath receiv'd full in- it doth not appear that the Advocate can with a
fortation ſome other way, or by threatning that fafe Conſcience hinder the injurd Party from ob-
he will proceed to ſuch or ſuch Severities, if the taining his Rigħt as ſoon as poſſibly he may. And
Perſon accus'd perſiſt in his Obſtinacy, and the like. therefore in fuch Controverſies, we condemn, as un-
But it cannot hence prefently be concluded, that lawful, not only falſe Allegations and feign'd Rea-
the Criminal himſelf is bound to own the Charge: ſons, but likewiſe all dilatory Exceptions and De-
Becauſe neither doth every Power which denotes murs ; in as much as all theſe are a Let and Hin-
the bare exerciſe of ſome Act, infer an (5) Obliga. drance to the one Party from paying what he owes;
tion in the Object towards which it is directed : and to the other from receiving what is due to
And beſides, there are other ways for the Judge to him (c): But in Criminal Caſes, where the Dif-
penetrate into the Buſineſs, as by Arguments and pute regards only the Puniſhment, we judge it
Witneſſes, which Witneſſes, when examind about ought farther to be conſider’d, whether the Council
the Crimes of others, are obliged, though unſworn, be aſſign?d by the Publick Authority, or by the
to declare the Truth, in Obenience to the Com- particular Appointment of the Priſoner. If by the
mand of Authority. Farther, Self-preſervation is former, it doth not ſeein allowable for them to
much
lowance, that 'tis reckond odious to puniſh the fince the Deſign of the Court in deputing them,
moft Notorious Offenders, without giving thein a was only, that they might wipe off any Calumny
Hearing.
g. On whịch account, no Perſon is blained thrown upon the Priſoner, and take care that he
for caſting any Veil or Colour over his Fault (6) (b). fuffer no Injuſtice. Which End is ſufficiently an..
The Divine Tribunal and the Hunane are not in fwer'd by a bare Refutation of the Proofs offer’d
all reſpects alike; nor doth a Mortal Judge preſide by the Accuſer. But he whom the Priſoner parti-
with ſuch Majeſty and Authority as Almighty God. cularly chooſeth and retains to plead in his behalf,
And if a Priſoner be not bound to make a volun- ſince he only acts as his Client's Interpreter, may,
tary Confeffion, his Denial cannot in the leaſt im- in our Judgment, lawfully uſe the ſame Method of
pair that Obedience which he owes to the Civil Defence which the Priſoner might have uſed, had
Power
. 'Tis true, a Crime which hath been reſo- he anſwer'd for himſelf. He is under a very great
lutely and ſtubbornly
diſown’d, coinmonly meets Miffake, ſays Tully (1), that fanfies he hath got our
with the ſeverer Puniſhment; becauſe free Confef- real Opinion and Authority for all that he meets with
Tuon is generally a ſign of Penitence, which much in our Fudiciary Orations. Whatever we deliverd on
Jeffens the Malignity of the Offender': Yet whether thoſe Sutjects is to be aferib'd to the Cauſes
, and to
it be more advantageous cunningly to deny a Fact
, the Times, not to the Man, or to the Pleader. And
(4) Yet Grotius on Deut. 13. 8. obferves, thắt the Jews were allow'd to uſe Artifice in the Diſcovery of Criminals, only when
the Party was accuſed of enticing others to Idolatry
(5) There is always fome Obligation, though it is not always ſo far extended as Right. See 1. 30.5 In. 1. And I. 8 c. 3
$4 n. 8.
(6) The Words are, Neque enim inaudita cauſa quenquam damnari æquitatis ratio patitur.
(7) We may eaſily difcern that our Author embraces the laſt Opinion.
Mr. Barbeyrac's NOTES on $ 21.
(1) Tully's Words are; Sed errat vehementer, fi quis in orationibus nostris, quas in Judiciis babuimus, authoritates noſtras config-
natas fe habere arbitratur. Omnes enim illa orationes cauſarum do temporum ſunt, non hominum ipſorum Lo Patronorum. Nam fi caufa
ipfe pro fe loqui pofſint, nemo adhiberet Oratorem, Orat. pro A. Cluentio, cap: 1. In truth, Cicero explains this Maxim but forrily,
and extends it to things which our Author approves not of
. See Mr. Le Clerc's Queſtions taken out of ferom. Quæſt
, 8 $ 14.
(a) Yer compare l. 13. D. de cuſtodia do exhibitione reorum. (6) Vid. 1.48. tit. 17. Princ. D. de requir, vel abſent. demande de
( Comp. 1. 9. 9 ult. D. ad L. Cornel. de falſis.
Grotii Annorat, in Flor. Sparfionib.
+ P 2
in

116 Of
. Speech, and the Obligation which attends it. Book IV.
of a
in his Second Book of Offices (2), he maintains, ſome- and preſerve his Sovereign to his utmoſt Ability.
times to defend a guilty Perſon, is not contrary to Whereas the deſire or endeavour of theltering a
any Duty of Religion. Nor is Juſtice in any great Conſpirator from juſt Puniſhment would be utterly
danger of fuffering by this Permiſſion: For, lince inconſiſtent with that Obligation. He proceeds to
the Judge is fuppoſed fully to underſtand the Law, urge, What if a Judge ſhould be about to condemu a
the Advocate by producing falſe Laws or falfe Au- Man for ſome goud Actions, unleſs we can prove the
thorities, is not likely to prevail to any purpoſe: Actions not to have been perform’d, ſhall not the Ora.
And he is never credited upon his bare Afferti- tor who appears in his behalf be allow'd the uſe of
on, but obliged to produce fufficient proof. Such Means to preſerve this Innocent, and what is
And therefore, if a guilty Perfon do by this means more, this worthy and commendable Member of the
ſometimes efcape unpunjihed, the Fault is not to be State (2)? But indeed ſuch a Cafe as this can hard-
charged on the Advocate, or on the Priſoner, but ly be ſuppos’d. For nothing ought to be honour'd
on the Judge, who had not the Wiſdoin to diftin- with the Name of a good Action, but what is a-
guiſh between Right and Wrong: Yet Plato (@) greeable to the Laws of the Commonwealth. And
would not grant even this degree of Indulgence in it doth not appear how any Man ſhould be brought
his Commonwealth. And the Ancient #gyptians into Judgment for ſuch a Performance. Let us
held it for a certain Maxim, That the Harangues of imagine therefore, that a Perſon by fome good and
the Lawyers very much darken’d and perplex'd the noble piece of Service hath incurr'd the Envy of
Law (b).- Eſpecially, fince, as Euripides (c) ob- Wicked Men, and that theſe Wicked Men have
ſerves, Truth always ſpeaks plain; and therefore afterwards got poffeffion of the Seat of Juſtice. Here
th not ſtand in need of the Windings and Turn- if the Fact were openly known, and an Accuſation
ings of Interpreters : Whereas, (*) Unjuft Speeches brought againſt him for it, 'twould fignifie nothing
being always fick and weak in themſelves, require ſtrong to diſown it. As 'twould have been idle for Cicero,
a good Caufets And
Ifocrates amongſt his other Rules the Fact may ſtill be diſſembled with ſome colour
to nenionicus, adviſeth him, Never to undertake in and probability, there's no reaſon why an innocent
Court the Defence of a Wicked Man · For, ſays he, Priſoner may not be defended by feign'd Arguinents
People will think you are inclined to thoſe Practices before a wicked Judge. As for the other inſtance
your ſelf, which you defend in others (D). Ford 2 of Quin&tilian, W ben a Man is to diſſuade ſome Un-
It is herice evident how far we may admit of dertaking, Fuſ indeed Naturally, and in it Self
, but
Quintilian's Affertion (3) (d), A Wife Man, ſays he, in the preſent Juncture of Affairs diſadvantageous to
is on fome Occaſions allow'd the privilege of Lying: the State (3): There's no need he ſhould endeavour
aud-an Orator, if he cannot otherwiſe bring the fudge by falfe Reafons to prove thoſe Juſt Things to be
to Reafon and Equity, muft neceſſarily apply himſelf Unjuft; but 'tis fufficient for him to ſhew, that
to the moving his affections. And again, That which what may juſtly be done, is not always neceſſary
at the firft Propoſal appears ſo harſh and ſtrange, may to be done, and that the Tines now require us to
however be maintain's upon reaſonable Grounds; chuſe what is Uſeful and Profitable, rather than
namely, that a Good Man in defending a Caufe may what in ſtricnefs may ſeem more Commendable and
ſometimes go about to perplex the Truth, and decerve Right; and all this may be urged without receding
the Judge (4) (e). But the inſtances which he offers from the Truth. Another Cafe propos’d by Quin-
requires a more ſtrict Examination. Firſt
; he af- &ilian is, when an Orator bath good Hopes of the
firms, That a Parfon arraign'd for plotting againſt a Criminal's future Reformation (4). And this indeed
Tyrant may be defended by falle Allegations (5) (1). niay
, prevail with him to be the more willing to
And this is built upon the Grecian Hypotheſis, lend the Priſoner all his Parts and Cunning in or-
which makes the killing of Tyrants lawful. Other- der to his Deliverance, becauſe he is aſſurd that
wiſe, to defend by feigud Arguments, a Perſon twill not be to the prejudice of the Publick, that
guilty of Treaſon againſt the Prince to whoin we ſuch a perſon ſhould go unpuniſh’d. But to reſcue
have our felves ſworn Allegiance, is therefore un a good Commander from ſuffering for a manifeſt
lawful, becauſe every Subject is bound to guard Crime, when his Life is neceſſary for the Honour
eligioni, morcon
(2) His Words are, Nec tamen habendum eſt Religioni, nocentem aliquandı, modo ne nefarium impiumque, defendere. Vult hoc multi-
tado, patitur conſuetudo, fert etiam humanitas. Our Author reflects upon the beginning of this Sentence, and falls thereby into a
pleaſant Miftake. For having read theſe words of Cicero, Habendum eſt Religioni, he ſuppoſes him to mean, that 'cis not con-
crary to Religion; and ſo ſays of him, Religioni non contrarium tradit; whereas Boys know, that habere Religioni fignifies only,
To make a ſcruple of a thing.
(*) His Words are, “Ο ε άδικος λόγος Νοσων εν αυτώ, φαρμάκων είται σοφών.
(+) The Greek is, Ευώνυμον ας δίκαν τρία έπια διαρκέσει.
(4) Iſocrates's Words are, Mnd svi merupă regudri pure regisooo, luhte ourn zoget, NEAS 38
' xj cutòs tusaīTa nejslev, dia-
περ άν τοις άλλοις πράθεση βοηθής.
(3) His Words are, Et mendacium dicere etiam ſapienti aliquando conceſſum eft :- do affe&tus, fi aliter ad equitatem perduci Judex
non poterit, neceffario movebit Orator.
(4) The Latin is, Verum ( illud quod prima propoſitione durum videtur, poteſt afferre ratio, ut vir bonus iu defenſione cauſe velit
auferre aliquando fudicii veritatem.
(5) The Latin of this long Sentence of Quin&tilian, which our Author examines in the following part of the Chapter, is this
,
(1) Sit aliquis inſidiatus Tyranno, atque ob id reus: utrumne ſalvum eum nolet is qui à nobis finitur Orator ? an ſi tuendum fufceperit,
non tam fallis defendat, quam qui apud Judices malam caufam tuetur? (2) Qund ſi quædam bene falta damnaturus eſt Judex, miji
ea non effe fa&ta convicerimus : non vel boc modo fervabit Orator non innocentem modo, fed etiam laudabilem civem ? (3) Quod ſi quedam
juta natura, fed conditione temporum inutilia civitati
ciemus; nonne utemur arte diændi, bona quidem, fed malis artibus fimili? (4). Ad
hoc nemo dubitabit quin fi nocentes mutari in bonam mentem aliquo modo poffint, ficut pore interdum conceditur, Saluos effe eos
Republica fit, quam puniri. Si liqueat igitur Oratori, futurum bonum virum, cui vera objiciantur, non id aget, ut ſalvus“ ſit ? Da nunc
ut crimine manifesto prematur Dux bonis, do fine quo vincere honeſte Civitas non poffit : nonne ei communis utilitas Oratorem advocabit?
(a) De LL.1. 11. Sub fin. (b) Diodor. Sicul. 1. 1 c. 6. (c) Phæniſs. (d) Inftit. l. 11. C. 17.
.
magisé
(e) Inftit. I. 12, C. 1.
and

CHAP. H.
117
Of an 0 ATH.
and Succeſs of the State, the beſt Expedient is, which Tully (f) tells us, was us’d by Antoninus
not to have Recourſe to Falſhood and Fiction, the Orator, in his Defence of M. Aquilius (6).
but rather to take that plain and open Method
no
(6) This Aquilius being accuſed of cruel Extortion and Oppreſſion, M. Antony the Orator opened hi Breaſt to ſhew the judges
the horrible Wounds he had received in the Defence of the Commonwealth.
(f) In Verrem, l. 5. c. 1. circa fin. infot
Situbo
DHONE
90
UNT
Schwinde
CHA P. II.
Origanu
I ainnot
Of an O ATH.
en tus A D
otse
I. * The Sanctity of an Oath.
XIII. But is not always to be interpreted ſtrictly.
II. What art Oath is?
XIV. Or without Some Tacit Conditions and Limia
III. It muſt be taken only by the Name of God.
tations.
IV. And according to the Religion of bim that XV. An Oatb is to be explained by the intention of
stong ſwears.
the Imposer.
V. Of the Intention of him that ſwears.
XVI. Of an Oath made in another's ſtead to oblige
VI. An Oath is an Additional Bond of an Obliga-
bim.
tion.
XVII, How an Heir is obliged by the Oath of the
VII. Of Oaths obtained by Deceit.
Dead.
VIII. Of Oaths, obtained by Fear.
XVIII. A Diviſion of Oaths, as, 1. For Confirmation
IX. Oaths to perform things unlawful bind not. stis live 2. In bearing Witneſs. 3. Deciſive of a
Nor thoſe, which binder a greater good.
Controverſie. 4. Suppletory or Clearing,
XI
. An Oath doth not alter the Nature of thoſe XIX. Whether every breach of an Oath is Perjury
Actions to which they are joyned. 50 XX. Of the ways of difpenfing with Oaths.
XII.
An Oath excludes all Cavils.
ho
E proceed to examine and ſtate the Nature of lus (2) (b) reports of the Ægyptians, That by their
an Oath, which is judg’d to add great Strength Laws Perſons who had forſworn themſelves, were ad-
and Confimation to our Diſcourſe, and to all our judg’d to Capital Puniſhment ; as guilty of the two
Acts which have any Dependance upon Speech: greateſt Crimes, in violating that Piety which they
which though we might have treated of very pro- ow'd to God; and in deſtroying Faith from among
perly and conveniently hereafter, when we come Men, the ſtrongeſt Pillar of Human Society.
to explain the Enforcements of Pacts and Cove II. An Oath then is a Religious Aſſeveration, by
nants; yet we choſe to aſſign it this particular which we either renounce the Mercy, or imprecate
place rather than any other, becauſe the Cuſtom of the Vengeance of Heaven, if we ſpeak not the
Swearing is usd for the Eſtabliſhment and Security Truth. That this is the Senſe and Purport of Oaths,
not only of Covenants, but of bare Aſſertions. (To appears from thoſe Forms of Words in which they
which purpoſe it may not impertinently be obſer are commonly expreſs’d, as, So help me God, God
ved, that amongſt the Jews no Oaths nor Vows be my Witneſs, God be my Avenger, and other equi-
were eſteem'd Obligatory, but ſuch as were openly valent Terms, which amount to much the ſame.
deliver'd in (a) Words.)
For when a Superior, who hath a Right of Puniſh-
An Oath the very Heathens look'd on as a thing ing is appeald to as a Witneſs, his Vengeance is
of ſo great Force, and of fo facred Authority, that likewiſe invoked in caſe of Breach of Faith, and
they believ'd the Sin of Perjury to be purſued with God who knows all things, being ever a Witneſs,
the ſevereſt Vengeance; ſuch as extended it felf to is ever an Avenger. Plutarch, Quæft
. Roman. 44.
the Poſterity of the Offender, and ſuch as might be obſerves (1), That every Oath terminates in the
incurr’d by the bare Thought and Inclination with- Curſe of Perjury; or, that is the Ground and Bot-
out the Act. Vid. Grot. 1. 2. c. 13, 5, 1. Philo tom upon which all Swearing depends. In the ſame
Jud. de Sacrificiis Abel. & Cain. p. 113. E. Edit. place enquiring into the Realons why the Flamen
Genev. Our Aſſertion derives its Force from the Dialis amongłt the Romans was not allow'd to
Outh, the Oath from God (1). Thus Diodorus Sicu- ſwear, he delivers himſelf to this purpoſe: Was it
81
Mr. Barbeyrac's NOTES on Chap. II. 1.
(1) The Papage of Philo the Jex, which our Author quotes, reſpects the difference between Oaths made by God, and ſuch as are
made by Men, which conſiſts in this, Thar an Oach adds a Force to our words, whereas God's Oath takes all its Force from his word.
Σε το his words, Και συμβέβηκε την μεν ημετέρων γνώμίω όρκο, ή όρκον αυτόν Θεώ πεπσώθαι. I am nmittaken, if our Author
did not think, that Philo meant by theſe laft words, That the Force of Oaths made by men proceeds from the Fear they have of God.
The Impropriety of the Latin Tranſlation, conſider'd with the following part of the Diſcourſe, was apparently the Cauſe he ſo un-
derſtood it, otherwiſe he could not have quoted this Paſſage, which had been nothing to his purpoſe.
(2) Dio forus's Words are, Πρώτον μεν άν κατά των επιόρκων αναλος ήν παρ' αυτοϊς Αίγυπτίους το πρόστιμον, ως δύο τα μέγιστη
ποιόν των ανομήμαία, Θεές τε αστένων, την μεγίσω την παρ' ανθρώπους πισίν ανατροσόνων. Γεveral other Authorities
Mr. Barbeyra's NOTES on $ 2.
(1) The Greek is, ITās ópn Geis na rúgy Texeum of imogxias. See alſo Grotius, Lib. 2. c. 13. S 10.
(2) Vid. Grot, in Levitic. 5.4. Numer. 30. 3. Deut. 23. 2;.
(6) Lib. 1. c. 77. p. 69. A. Edit. Rhodom.
becauſe
in Grotius, 1. 1. c. 13. $ I.

118
Of an OAT H.
Book IV.
as
ap-
the , as right to Reli
Oath 27.10
,
becauſe an Oath is a kind of Torture, or the only Thoſe who_eſcape your Juſtice, leave to the Vengeance
Force that may be applied to the Souls of free Subjects :3 of the Gods; but thoje on whom you can lay hards
,
Whereas the Prieſt ought to be exempt from all Vio- neper configu over to Providence, without puniſhing
Gath terminates in the Curſe of Perjury: Whereas all judge it to be
I in Mind as in Body: Or becauſe every them your ſelves
. And for this reaſon we ſhould
an
Abſurdity in the Civil Law (e),
Curfing is Ominous and Unlucky; which is the Reaſon when, on the contrary, it allows a Woman to fwear
that the Prieſts are forbidden by the Laws to uſe Im- that ihe is not with Child. This Caution will
precations towards others? And indeed the Conduct of pear to have the more weight, if we conſider that
the Athenian Prieft was commended, who-being or the too frequent uſe of Oaths doth in many Per-
der'd by the People to devote Alcibiades with the uſual fons much impair the Reverence due to thein. It
Ceremonies, refus’d, alledging, That his Buſineſs was was an excellent Leffon which Pythagoras (3) gave
to preſide in good / iſhes
, not in bad. Or, was it, be- his Scholars ; Very rarely and very hardly to be.
cauſe the guilt of Perjury might turn to be the Dan- brought to an Oath, but if they had once ſworn, moff
ger of the Publick, if an impious forfworn Wretch inviolably to obſerve it. Nor is Iſocrates's Precept
were to offer Vows and Prayers in bebart of the State
, on the fame Subject to be deſpis’d; Never Swear
,
and to perform the Offices of Religious Worſhip? Nor ſays he, on the account of Money, though you could
and Aſurance ;
ind than their lofing all Title to the
Protection draw upon your self a double Imputation of Perjury
and
that God is invok'd as a Witneſs in ,
d'Alliſtance of Providence. Yet when
we ſay with
fome, and of Avarice with others (F).
But 'tis juſt and pay the moſt
ought on account to be hence'inferr'd, that an gious Reverence to Oaths, fo is it vain Prefumption
Teſtimony of God; to expect or deſire that their Truth or Falihood
as if God hi
himſelf gave
ſhould be evinced by an immediate Miracle; as if
racity of the Swearer
en te
which ſeeins to be the God were oblig'd to exerciſe his Judicial Office, at
Opinion (a
nilcient and an 'Omnipotent Beingiwa na md me the pleafure and Humour of Men. And yet this
to be was a Superſtition which very much obtain'd of
both a Witneſs or Guarantee, and likewiſe an old, not only amongſt the Heathens, but in the Ig-
Avenger, we therefore preſume upon the Truth of norant and Barbarous Ages amongſt Chriſtians
what is deliver’d, becauſe we cannot conceive any themſelves. Sophocles (8) () plainly ſpeaks of the
Perſon to be arriv'd at ſuch a pitch of Impiety, as Fiery Ordeal ;
lightly to ſtir up the Divine Vengeance againſt
himſelf. · And hence Perjury appears to be a moſt "Hμεν δ' έτοιμοι και μύδρες αίρι χερούν,
inonſtrous Sin, in as much as by it the
Και συ διέρπιν, και Θρες ορκωμοτών.
Wretch Thews, that he at the ſame time conteins
that he is a daring Villain towards. God, Tu tread the Flames, and by all Heaven to ſwear.
and a ſneaking Coward towards Men (b). Théo TOV
Scope and Meaning of Oaths is likewiſe ſuggeſted by 'Tis Remarkable what Phil
. Baldaus in his Trea-
the End for which they have been introduc'a : And tiſe of the Idolatry of the Indians (i) reports of the
that is, that Perſons might be the more firmly en- Malabars, That amongſt them, the Perſon who is
, to
gag’d to declare the Truth, or to perform their take a Purgative Oath, bath his Three firịt Fingers
Promiſes, by the juſt Awe and Dread of the Divi- dipt in Melting Butter, and then wrapt up in Leaves
nitý, infinite in Knowledge, and infinite in Power ; which three Days after are uncoverd to ſee the Effect
,
whoſe Wrath they thus invite down upon their Others are order'd to ſwim over a River between Col-
own Heads, if they knowingly deceive: Whereas chis and Cranganor, full of Grocadiles: Others to
perhaps there would not have
been Force and Secu- reach an Apple out of a Pot ſtuft with Serpents, and
rity enough in the Fear of Men, whoſe Strength by the Succeſs of theſe Attempts a Judgment is made of
they might faniſie themſelves able to baffle or to de- their Innocence (k).
cline ; or whoſe Diſcovery they might hope to e And indeed if we would confeſs the Truth, Oaths
ſcape (c). For in Caſes where the Party with whom either infer or preſuppoſe the Diffidence, Unfaith-
we tranſact, if he deceive us after his bare Word or fulneſs, Ignorance and Impotency of Mankind.
Proiniſe, cannot posſibly lie conceal'd, nor avoid For what need would there be of ſuch Engagements,
Humane Puniſhment, it ſeems fuperfluous to put if we could ſecurely rely on the Faith and Conſtan-
him to his Oath. 'Tis the Advice of Demoſthenes (d), cy of others ; or if there were no Examples extant
he forfworn
9
cellár
what we do?
(2) See Mr. Placette's Treațiſe about an Oath, Lib, 1. C. 1.
(3) His Words are, Σπανίως μεν ομνύναι, χρησαμένες και τοϊς όρκοις πάντως εμμένειν.
(a) De Obligat. Jurament. Prelet. 1. f. 6.
7 (C) Lucian Phalar. I. p. 731.
Edic. Amft.
may perhaps be an eaſie matter to decetve Men, but "tis impoſſible to lie conceal d'from God, Plin, 1. 4. Epift
. 25
Edic. Men of wicked Inclinaţious take confidence and Encouragement from that Refle&tion, quis fciet? Who will ever known
Add. Demonic
. Add. Valer. Max. I. 2 c. 10 1. 2. ext. They are the true! Men, qui colendo fidem jurant, who have no other Oath
than to keep their Word without Swearing. Vid. Curt. I. 7 c. 8 n. 29. Edit. Cellar. 10:43
In Sophocles, Oedip. Colon, Oedipus thus beſpeaks Theſeus, p. 293.
I'll not require an Oach as from the Wicked.
Theſeus replies,
Oaths could not force more than
Word ſhall pay.
Epi&t. Enchir. C. 44Go Simplic, in loc. Vid. Not. Gror. in Matth. 5. 34.
(8) Antigon, v.259. (b) See Dr. Potter's Græcian Antiq. I. 2. c. 6. (i) see the Forms of Exorciſms in Marculph. Cap.
(*) See likewiſe Bern
. Varen. Deſcrip: Japon. c. 18. G Fodoc. Schouten. in Deſcript. Regn. Siam. where he gives an act
count of their Judicial Proceedings. Eufeb. in Stob. Serm. 27. TV's the Advice of many mén, that we ſhould Arilly make good what
we ſwear : But I think it no leſs a Duty of Religion to conſider well before we wear. Add. Grot. in Matth. c. 5. V. 34.
910cc
my
ult.
of

CHAP. II.
Of an OATH
I 19
, (
of Perfidiouſneſs; or if we had ſtrength enough to an ill Cuſtom, to apply Oaths as the Supplemental
compel Perſons to make good what they owe Ornament of Speech.
Laſtly, what Occaſion would the Judge have to en But that which was moſt in uſe by the Ancients,
quire the Truth of Sworn Witneſſes, unleſs he were was to ſwear by thoſe things which each Perſon
ignorant of it himſelf? And from this Principle i held moſt dear, or ſet upperinoft in his Veneration
thould draw the Reaſon of that Speech of the Em- and Efteem. So Aſcanius in Virgil,
peror Frederick in the Poet (a).
Per caput hoc juro, per quod pater ante folebat ;
Juramenta petis, Regem jurare minori
Æn, IX. v. 300.
Turpe reor. Nudo jus & reverentia verbo By this my Head; my Father's Oath before.
Regis ineſe Jolet, quovis juramine major.
So we every where read of Perſons ſwearing by
Doſt thou deſire an Oath, it is below
their own Life and Soul, and by the Life and Soul
A Prince to Subjects ſuch Reſpect to ſhow.
of thoſe Friends who ſtood firſt in their Affcétions.
The Sacred Awe that guards a Prince's Word; And the Lovers thought themſelves very Religious
Hath ſtronger Tyes than ſtricteſt Oaths afford, in ſwearing by the Bright Eyes, the Sweet Lips, the
Golden Trelles of their Miſtreſs (f). All which
Not only to have Faith and Honeſty kept up invi- Speeches are by no means to be interpreted in this
olably in the World, is in the higheſt Manner the ſenſe; either that thoſe things were invoked as
Intereſt of Princes; but likewiſe becauſe 'tis unbe- Witneſſes and Avengers of Falihood, as Apuleius (8)
coming their Majeſty, to ſeem liable to the leaſt amongſt others believed ; nor that they were cited
fufpicion of Perfidiouſneſs, Falſhood, or Deceit. to give Teſtimony under the Notion of belonging
Thus we are told, that amongſt the old Peruvians to God, and expreſſing ſomewhat of the Divinity,
Oaths were not at all in uſe; but the Perſons who namely, his Truth, Goodneſs and Power, and which
were to give their Teſtimony, barely promiſed they the Perſon thus ſwearing hereby acknowledgeth,
would confeſs the Truth to the Ynca (6).
that he enjoys by God's Mercy; and that he is un-
III. Since GOD alone is of (1) Infinite Know- willing to loſe by God's Juſtice, as if he ſhould
ledge, and of Infinite Power, the Abſurdity is ma- ſay, I ſwear by my Life; that is, by God to whom !
nifeſt of Swearing by any thing which we do not owe my Life, which is the Opinion of many, and
look upon as Divine; in ſuch a ſenſe as to invoke particularly of Biſhop Sanderſon (h). But they on-
it for a Witneſs of our Speech, and for an Avenger ly thus invok'd GOD himſelf
, delíring that if they
of our Perjury. Hence as it was uſual for the Hea- ſwore falfly, he would be pleas'd to puniſh their
thens to ſwear by the Stars, becauſe they judgʻd Crime in thoſe things eſpecially, for which they
them to be fo many Deities; fo for a Chriſtian to were moſt nearly and tenderly concern’d (i). Thus
imitate thein in that Practice; would be a Mixture it was the ordinary Cuſtom of the Athenians, in
of Impiety and Folly. As for thoſe Forms attri- their folemn Oaths to devote themſelves and their
buted to foine of the Ancients, as that of Socrates (2), Family to Deſtruction, if they deceivd; and on the
by a Dog, by a Gooſe, (whatever Porphyry (c) pre- contrary to beg all Happineſs from the Gods on
tends to the contrary) and by the Plane-Tree, that themſelves and Friends, if they ſwore truly; as iš
,
be(d), we are to eſteem them meerly Jocular. They And they firmly believ'd, that the Violation of
{wore by theſe, as Apollonius (e), not as by Gods, ſuch Engagements would draw down the Anger of
but to avoid Swearing by the Gods ; when by the Heaven upon the Heads of others, as well as upon
practice of the generality of Men it was grown into their own. Pliny (1) tells a Story of one Regulus,
Of 28 de sol
Mr. Barbeyrac's NOTES on $ 3.
(1) What Confuſions, Abſurdities and Contradictions the Notions of the Heathens were! Theſe two Attributes of the Deity,
which are che Foundation of an Oath, were ſo well known to theni; as to give a grear Force to that Act of Religion. They be-
lier'd that God was preſent in all places, and ſaw all things, the moſt ſecret Thoughts of the Heart not being excepted. "This
appears, for Example, by this Fragment of the Comedian Philemon, who takes the air for Jupiter.
'Ego do Osš 'svégzov, sind maytex8.
I'm ev'ry where as a God ought to be,
“Ο 5 παρών άπαναχύ,
And fo know all things neceſſarily.
Παντ' ξ ανάγκης οίδε, πανταχύ παρών.
Stob. De Rerum Nat. Tir. 3. Collect. Cler.
And ſo in the Prologue of Plautus's Amphitryo, Mercury chus ſpeaks
Utrum fit, annon, Voltis? Sed ego ſtultior,
I know your Minds, for I am God,
Quafi neſciam vos velle qui Divus ſciem,
And can't be ignorant of your Thoughts.
Teneo, quid animi veſtri Super hac reſciet.
Sce Lucian in Chronolol. Tom. 2. p. 614. Aš to Gods Omnipotence, thefe Verſes of Ovid are ſufficient to alledge,
Immenfa eft, finemque potentia Cæli.
God's Power's immenſe, and has no Bounds:
Non habet : ego quicquid Superi voluere, pera&um eft. Whare'er che Gods will have done, muſt be perform d.
(2) See Menage upon Diogenes Laertius, Lib. 2. $ 40, where he hath amaſſed together many things relating to this matter.
I shall fuffice at preſent to relate the words of Philoftratus, of which our Author quotes only a part. rigos Taira é só mówv,
izvili rus žen
, Luxpirn "Asuvaię, myönles, at mange , pipar, is Táv müva, tiv xiva
, toho mad72001, Srbs
te mira
,
L QUVU" éx oivórros, e tev, anda fios
, výdtexväs copos dousu ys taitd, 6x ais Seos, an iva us Feis auru.
(a) Gunter. Ligurin. I. 3. v. 510, doc. (b) De la Vega, Comment, Reg. 1. 2. c. 3. (c) Lib. 3. regi aroxñs.
(d) Vid.
(e) In Philoſtrat. I. 6 c. 9. (f) Ovid Amor. 1. 3. El. 3. 13, 14.
Perque ſuos i!lam nuper jurajſe recorder,
On her own Eyes and mine a Curſe the laid;
Perque meos oculos; & doluere mei.
And mine have (marced for the perjur'd Maid.
(b) De Jurament. Obligat. Prele&t. i Sect. 4.
Per caput ipſe suum folitus jurare, tuumque
By his own Head how often would he ſwear,
Quod fcio, non illi vilius ejſe fuo.
(k) Add Antiphon. Orat. 15.
And yours, not leſs the Darling of his Care?
(1) Lib. 2 Epiſt. 20 n. 5, 6.
who
j
balog
300
Atheneum Deipnofoph. I. 9. c. 2.
(8) De Deo Socrat.
(i) Ovid. Triſt. I. s. El. 4. 45, 46.
I 20
Book IV.
Of an OAT H.

who made a gainful Trade of Perjury, in relation out of his own Mouth may fall iipon their Head; Truth,
to Wills and Teſtaments ; that, giving a Viſit to if he declares Truth ; Falfhood, if he Speaks fally.
à fick Lady (Verania Wife to the famous Piſo) and i hatſoever therefore a Perſon names in his Oath, whe
perſuading her that by his Aſtrological Obſervati- ther bis Children, his own Life or Safety, or any thing
ons he forefaw the ſhould recover: The Lady be- elfe, he devotes and binds it over to Almighty God.
ing eaſily credulous under ſo great an apprehenſion And hence, altho' Philo the few is juſtly to be
of Danger, call’d for her Will, and ſet down Re- prais’d for condemning raih and prophane Swear-
gulus for her Heir; but ſoon after falling into Ex- ing, yet we can by no ineans approve of his Do-
tremities, ſhe dy'd with this Exclamation againſt etrine, when he delivers hiinſelf fo loofly, as in the
her Deceiver ; O wicked and perfidious! O worſe than following Terms (c): If, ſays he, the Exigency of
perjur d Villain, who forſwore himſelf by the Life Affairs neceſſarily requires an Oath, it is more bě
and Safety of his own son! The Reflection which coming to ſwear by the Health or the proſperous Age
Pliny makes on the thing is this, Regulus ufeth this of our Father or Mother, if alive ; or by their Hap-
Stratagem not more frequently than wickedly; whilft vy Memory, if they are dead. For their Act of pro-
he imprecates the Wrath of the Gods, whom he every ducing their Children into Life from nothing, makes
day deceives, upon the Head of the unfortunate them the Images and Repreſentatives of the Divine
Youth (a).
Nature (4). They too deſerve Commendation, who as
And hence too we may gather the Meaning and often as they are urged to ſwear, by delaying and befi
Deſign of thoſe Oaths, which were heretofore made tating, Strike an awe, not only into the Speétators, but
by the Life, the Genius, the Safety of Princes; into thoſe very perſons who require the Oath at their
which we are told are ſtill cuſtomary amongſt the Hands. For 'tis a Cuſtom with ſome, when they have
Perſians, and are eſteemed more ſtrict and ſacred, pronounced the firſt Words of the Form, So help me,
than thoſe in which the Name of God is immedi- to leave off abruptly, adding what they pleaſe beſides
ately invoked. For they did this
, not as thinking in their Mind and Thoughts. For the Sentence may
there was any Divinity in their Princes, whilft be filld up by Jubjoining not only the Higheſt, or
alive, nor as imprecating their Diſpleaſure if they the Creator of all things, but the Earth, the Sun,
ſpoke falſe; but becaule many of them either in the Heavens, or the World. Nor do I ſee any ex.
good earneſt
, or at leaſt in Flattery, intended here- cuſe that can be brought to juſtifie that Oath of
by to fhew, that they preferr’d their Prince's Safe- the Chriſtian Soldiers recited by Vegetius (d), which
tý to their own; and therefore look'd upon it carries in it too groſs an exceſs of Reverence to-
as a more horrid Perjury to devolve the Wrath of wards the Emperors. They ſwear, ſays he (5), by
God upon Him, than upon Themſelves(3). So that the God, and by Chriſt
, and by the Holy Spirit, and by
ſenſe of thoſe Proteſtations was properly this ; So the Emperor's Majeſty, which next to God is to be
may my Prince be happy and ſafe, as I perform what I loved, and to be worſhip’d by Mankind. For when
now Promiſe ; that is, unleſs I fulfil my Engagement, our Prince hath been once inveſted with the Title of
I deſire the Divine Judgments may light upon my Auguſtus, we are to pay to him as to a Preſent and
Prince's Head. St. Auguſtin (b) [peaks very perti- Mortal God, faithful Devotion and moſt watchful Ser
.
nently to this purpoſe. What elſe, faith he, is that vice. For though we ſhould grant the following
which we call (Jurare) to ſwear, but (Jus reddere) to Clauſe, A Civil or a Military Perſon then ſerves
pay the Due or Right; to God, if we ſwear by God; God, when he faithfully loves him who reigns by God's
to our Children, if we ſwear by them? And what Appointment and Authority; yet this is by no means
Right do we owe to our own Safety, to our Children, a Reaſon why they ihould ſwear by the Majeſty of
or to our God, but the Right of Love and of Truth, the Emperors in the ſame manner as by the Name
not of Treachery and Falſhood? When any Man ſays, of God. Nor is it to be ſuppoſed that common
By my Safety, he pawns and engageth bis Safety to Soldiers ſhould be capable of ſo much Subtlety as to
Providence, for the truth of what he affirms; when he diſtinguiſh the Word (by) in the fame Form into
Jays, By my Children be configns over his Children as two different Senſes, one as apply'd to God, ano-
so many Pledges to God; defiring, that whatever comes ther as ſpoken of the Emperor. This is certain
(3) Hence it appears, ſaith our Author, that ſuch Perſons were with Reaſon puniſhed very rigorouſly, who were perjur'd, af-
ter they had ſworn by the Head, Throne or Health of the Prince, becauſe they believed, that by ſuch an Oath they expoſed
that Sacred Perſon, upon whoſe Safety the whole Kingdom depended, to Divine. Vengeance. See whar Herodotus lays of the
Scythians, Lib.
4.
and Zoſimus, Lib. 5. In the Capitularies of Charles the Great Men are forbid to ſwear by the Life of the
King or his Children, Lib 3. C. 42. See the Digeſts, l. 12 cit. 2 De Jurejur. &c. leg. 13 86.
(4) Philo's Words are, "Άξιον επαινών και τες, οπότε βιασθείεν ομνύναι
, το μέλλον και βράδυreaν και αποκωϊν έμπαινίας NG-
μόνον τις δρώσιν, αλλά και τους φesκαλεμένοις εις τον όρκον, ειώθασι και αποφθεγξαμήνοι τοσέον, να τον, ή μα τον, μη δεν φεσ
λαμβάνοντες, προφέστι τ αποκοπής, τεχνών όρκον και γενόμενον· αλλά και προσλαξέτω τις, ο βέλοιτο, μη με το ανωτάτω και πρεσβύ
Tatev cudu's ai trov, cada gör, varov, ástegs, seg.vóv, tiv oiue tanta xóspior. See the Interpreters upon St. Matthew, 5. 34, and
Ariſtophanes's Rana, where Mr. Spanhemius quotes this Paflage of Philo, De Spectaculo, for De Legibus Special.
(s) The Hiſtorians Words are, Furant autem fer Deum, & per Chriſtum, & per Spiritum fan&tum, & per Majeftatem Imperatoris
,
que fecundum Deum generi humano diligenda eſt calenda. Nam Imperatori, cum Auguſti nomen accepit, tanquam præſentido corpo-
Tali Deo, fidelis eſt preſtanda devotio, do impendendus pervigil famulatus. Deo enim vel privatus, vel militans fervit, cum fideliter
eum diligit, qui Deo regnat autbore.
(a) Lyfias Orar. adverf. Diagiton. " I am ready with a well aflured Mind, whenever you pleaſe to require it, to ſwear by
to the lives of theſe my Children, and of chofe which I have lince had by a ſecond Bed.' And I am not yet arrivd at fo del-
perate a degree of Miſery, nor ain ſo unreaſonably covecous of Money, as that I ſhould be willing to devore my family to
a Curſe, only that I may leave them a Maintenance ; or by an unnatural wickedneſs to rob my Father of his Eftate.
And here likewiſe it may be remarked by the Bye, thac the Banjans in India, who fer the higheſt Value and Reſpect on their
Cows, eſteem it a mort Sacred Oath to hold a Knife near the Cow, and ſay, if what I affirm bº falſe, or, it I do not performing
Bargain, may tbe Com te struck through with this Knife, Pietro della Valle Itin. part 2. Epift. 1. (6) Citata Grotio in Flor. Sparí.
ad l. 23 D. de Jurejur. (c) De ſpecial. legib. (d) De re militar. I. II c. 5.
from
CHAP. II.
I 21
Of an 0 ATH.

On
ſwear by the Fortune of the Emperor was accoun- Abuſes of the Name of God, ariſing from an ill Ha-
obnoxious to were thought hereby to make hiin his Dath the Condition of his obtaining ſuch or ſuch
Hanc ego magnanimi (polium Didimaonis, haftam
Ovid De Remed, Amor, v. 783, 784. Add. Grof. I. 2 c. 131, II.
from Eufebius's Eccleſiaſtical Hiſtory (6) (a), that to Expreilions, as not properly Oaths, but prophane
ted one of the Marks of abjuring Chriſtianity a which bit of being too poſitive and vehement in Talk.
therefore St. Polycarp reſolutely refus’d to the laſt. From what hath been offer'd it is clear, That
And fo too
, it may be juftly, queſtion d whether we Execrations, although ſtrictly taken ; as when a
ought to approve of that Oath preſcribd by Charles Man barely lays Curſes, or imprecates Miſchief
Gorzega, to his New Order of Knights
, in the Form on himſelf or others
, they are not Oaths; yet
following ; Ifwear by the Immortal God, and by the are on all Accounts to be reckond part of an
Aneient. Nobility which I profess (). Hence likewiſe Oath, as they reſpect any, Affertion or Promiſe,
it appears, That the Ancients had good reaſon for which they are added to bind (k). And this is
puniihing with the utinoft ſeverity Perſons who had to be extended likewiſe to thoſe Prayers or
forſworn themſelves by their Princes Life or Safety; Wiſhes by which a Man makes the performance of
inaſınuch they
the
a in Ælian, (l) So
and preſervation is yet ſo cloſely connected to the may I crack
may I crack Timofias's Skull. Thus we find Julian
publick Security (c). Thus we find the Scythians'in to encourage his Army, conſtantly ſwearing (as the
Herodotus (d), as often as their King happen'd to be Hiſtorian ſpeaks) (m) not by the Graces, but by
Sick, making ſtrict enquiry whether any of the Sub- the Greatneſs of his commenc'd Exploits ; So
So may I
jects had ſworn falſly by the Royal Throne; and bring the Perſians under the Yoak ; So may I relieve the
if fuch a Perſon was diſcover’d, he ſuffer'd Death weak Condition of the Roman World. As Trajan is
for his Perjury. In Zozimus (e) the Roman Magi- reported ſometimes to have confirm d his Speeches,
ſtrates declar'd they could not accept of the Propo- by adding, So may I fee Dacia reduc’d into the form of a
fals of Alaric, though fair and juſt
, becauſe they Province ; Su may I lay Bridges over the Danube and
had ſworn by the Life of their Prince, that they Euphrates (n). 'Tis remarkable in the Patanes, a Peo-
would never conſent to a Peace with the Invader. ple of Indoſtan, that they are ſo extravagantly Proud,
If their Oath had been dire&ed to God, they ſay, they as to uſe for an Afleveration, May I never come to
might poſibly have wav'd it in this necejfity, relying be a King in Dehli
, if I don't make good my Pro-
on the Divine Mercy for the pardon of Jo Impious a miſe. And hence too it appears what Interprerati-
Grime ; but ſince they had bound themſelves by the Life on we ought to put on thoſe Oaths which we meet
of the Emperor, they thought it abſolutely unlawful for with in Scripture, when even good and pious Men
them to break through ſo folemn an Engagement. In ſwear by ſome Created Thing (O). That amongſt
the Capitulary of Chartes the Great, (f) we find a the Jews of the latter Ages, nothing was more com-
Prohibition againft ſwearing by the Life of the King, mon than Oaths (8), By the Head, by the Heaven, by
on of his Sons. As to the Civil Law, Ulpian doth the Earth, by the Temple, by the Gold of the Temple,
not deny it to be an Oath, when a Man fwears by by the Altar, by the Gift upon the Altar, is evident
his own Safety (7); but ſays, it is not valid, unleſs from St. Matthew 23. v. 16. &c. Where our Savia
it were expreſly propos’d to him in thoſe particular our reproves them ſeverely for their prophane Abu-
Terms (6) Becauſe Oaths being taken for the Be- ſes, and impertinent Cavils in this Matter. The
nefit and Security of him that requires them; there- vai to d orñaleov in Homer (P), Didymus thus ex-
fore Cuſtom makes it neceſſary they ſhould be forin'd pounds, We are to know, ſays
he, That in (wearing
in the Words which he propoſeth, ſo that they may by the Sceptre, they ſwear by God himſelf, the great
fully bear his Meaning and anſwer his Deſign (b). Governour and Controuller of Kingdoms (). Yet O-
Whereas if the Party who is to ſwear might chufe vid hath given us another fort of an Explication :
his own Words, he would have an opportunity by
inſidious or equivocal Expreſſions, to evade the force Nam ſibi quod nunquam tačkam Briſeida jurat
of his Obligation. Another Reaſon for Ulpian's Af Per ſceptrum ; fceptrum non putat eſe Deos (~).
fertion may be, becauſe, ſuch Speechees and Prote-
ftations continually lofing ſomewhat of their Reve Who by his Sceptre ſwore Briſeis free,
rence by daily Uſe, no can be bound to let the Trite Ne'er took the Wood to be a Deity.
Form of another Party (with which he often lards
his Diſcourſe when he doth not think on’t,) pafs We learn from Procopius (S), that the Perſians, in
for a ſerious and folemn Oath. And Mr. Hobbes the latter Times of that Nation, uſed to ſwear by
(1) is in the Right, when he cenſures theſe Cuſtomary Salt. And in one of the Byzantine Hiſtorians, we
(6) I have recited the Paſſages of Origen and Tertullian about this Matter in my Notes upon Dr. Tillotſon's 22d Sermon, which
though a fhort one, contains a ſtrong Confutation of ſuch Chriſtians who abſolutely condemn the uſe of all Oaths,
(7) The Words of the Civil Law are, Qui per salutem ſuam jurat, licet per Deum jurare videtur (refpeétu enim Divini Numinis ita
jurat) attamen fi non ita ſpecialiter jusjurandum ei delatum est, jurasje non videtur : & ideo ex integro folenniter jurandum est, Digeft,
1. 12. tit. 2, De Jurejurando, &c. Leg. 33.
(8) As the Heathens did. See Mr. Baron Spanhemius upon Ariſtophanes's. Plutus, v. 129.
(a) Lib. 4 c. 14. (b) Gramond. Hiſt
. Gall. 1. s.
p. 154 init Edit. H. Steph.
(c) Vid. Grote in Sparſ. Flar. ad leg. 23 D. de jurejur. (d) Melpomen
(e) 1. 5 in fine. (1) Lib. 3. C. 42. (6) Add. 1. 3 f. 41. 4 1. 5 princ. d. t. (b) Comp
(i) Leviath. c. 14.
(m) Ammian. Marcellin. I. 24 C. 5.
(k) Comp. Ziegler ad Grot. 1. 2 c. 13 f. 1o. (1) V. H. 1. 12 C. 9.
(n) Add Grot. ad Genes. Chap. XXIV. v. 2. (6) Vid. Geneſ. 42. 15. 2 Sam. 14. 19.
2 Kings 2. 4, 6. () Iliad cl, V. 234. (q) This place of Homer is thus imicated by Vale-
This Spear the Spoils from ſtout Didimaon won,
Que neque jam frondes, virides nec proferet umbras,
Which ne'er ſhall bud, or form a ſhady Crown,
Ut ſemel eſt excuſſa jugis do matre perempra,
Since from its dying Mother rudely torn
Fida miniſteria G duras obit horrida pugnas;
On Bloody Services it hath been born,
Teſtor, & boc omni dugor tibi nomine fii mo. I. 3.
Comp. Virgil. Æn 12. v. 206.
(Faithful in rough Encounters!) here I call
To bind my Oath, whilſt I engage for all,
(S) De Bell. Perfic. I. 1 c. 3.
Liv. I. 22 c. 38 ab ipit.
I Sam. 25. 26. 1 Kings 2. 23.
tius Flaccus,

Q
find

I 22
Of an 0 ATH.
Book IV
wrote
And 10,
ther Words, or under any other Titles, than what
find Mahomet the Turkiſh Emperor adjuring by Bread he ſhall by no Means ſtand bound, who not think.
and Salt, his Vizier Bajazet (a).
Soud ing himſelf to fwear, hath happen’d to utter Words
IV. To proceed: That part of the Form in Oaths which imply an Oath; or who hath barely recited
under which God is invok'd as a Witneſs, or as an the Form; or who being by Virtue of ſome Office,
Avenger, is to be accommodated to the Religious appointed to give other Perſons their Oath, tells
Perſwafion (1) which the Swearer entertains of God: them how they ſhall fpeak after him (e). In this
It being vam and infignificant to coinpel a Man to Cafe Lucian's Saying will hold good, we are not to
ſwear by a God whom he doth not believe, and conſider his Mouth, but his Heart (f). It was vain
therefore doth not reverence. And no one thinks therefore in Cydippe to fanfie her ſelf Religiouſly ob-
himſelf bound to the Divinen
the Divine Majeſty in any o- ligd, by reading the Oath which Acontius had
upon the Apple.
And fo ideed Ovid (3)
are agreeable to the Doctrines of his own Religi- hath taught her to argue,
on, which in his Judgment, is the only true way
Que jurat, mens eft ; nil conjuravimus illa.
of Worſhip. And hence likewiſe it is, That he
Illa fidem di&tis addere fola poteſt
.
pondo
who ſwears by Falſe Gods, yet ſuch as were by him
Conſilium prudenſquc animi fententia jurat,
accounted True, ſtands oblig’d; and if he deceives,
is really Guilty of Perjury. Becauſe whatever his
Si tibi nil dedimus præter fine pectore vocem,
Et nifi judicii vincula nulla valent,
peculiar Notions were, he certainly had ſome ſenſe
Verba ſuis fruftra viribus orba tenes.
of the Deity before his Eyes; and therefore by wil-
Non ego juravi; legi jurantia verba, &c.
fully forſwearing himſelf, he violated, as far as
he was able, that Awe and Reverence which he
The Mind muſt ſwear; with that we never ſwore;
ow'd to Almighty God (b). Yet when a Perſon Yet that alone can add a binding Power.
requiring an Oath from another, accepts it under a Oaths are the Act of Wiſdom and of Thought;
(2) Form agreeable to that Worſhip which the Words give the Thread, but Judgment ties the
Swearer holds for True, and he himſelf for Falſe,
[Knot
he cannot in the leaſt be ſaid, hereby to approve of Since all we ſaid an Empty Sound we prove,
that Worſhip. Thus a Chriſtian when he admits of
Sound without Senſe hath loſt its Force to move
the Oath of a few, doth on no account ſubſcribe to
We did not take, we did but read the Form, &c.(1).
his Opinion, who denies the one only True God, But 'twould be moſt ſenſeleſs and abſurd, If a
the Maker of Heaven and Earth, to be the Father Man deſigning to ſwear, or at leaſt pretending ſuch
of our Lord Jeſus Chriſt. Yet I doubt whether the a Deſign, ſhould yet refuſe to be tyd by what he
Example (3) of Laban in this Cafe, alledg’d by Gro- ſays; and fhould urge in Excufe, that when the
tius (c), from Gen. c. 31. V.53. comes up to the Pur- Oath was adminiſter'd to him, his Intention was
poſe; for the God of Abraham, and the God of Na- barely to recite the Formal Words, but not to lay
bor, and the God of the Fathers, was the Living and any Obligation on his Conſcience (b). Not ſo much
True God (d).
(if we conſider the immediate Reaſon,) becauſe Ob-
V. But farther, it is requiſite to the Force and ligation is the neceffary Effect of an Oath, and in-
Obligation of an Oath, that it be taken with deli- feparable from it; as becauſe otherwiſe the whole
berate Thought, and real Deſign. And therefore uſe of Oaths, nay and the whole Method of engag-
so
-
Mr. Barbeyrac's NOTES on § 4.
(1) Divus Pius, jurejurando, quod propria ſuperſtitione juratum eſt, Standum reſcripſit, Digeſt. Lib. 12. tic. 2. De jurejurando, &c.
leg. 6. SI. Our Author adds, that s 3. of the ſame Law is not contrary to this he has cited, no more than the deciſion of the
Canon Law, Cauſ: 22. Queſt. s. Further, as Gronovius obſerves in his Notes upon Grotius, Hiſtory furniſhes us with Examples of
ſuch Heathens as have been puniſhed for their Impiecies committed againſt their falſe Gods, ſuch as Cambyſes in Juſtin. I. 1. 9.
The Gauls, who robb’d the Temple of Delphos, ibid. l. 24. 8. Pyrrhus and a Roman Garriſon, Liv. 29. 18. Seč Mr. Bayle's
Thoughts on a Comet, Art, 118.
(2) Mr. Placette in his Treatiſe of an Oath, 1. 1. C. 13. diſtinguiſhes here between, requiring an Infidel to ſwear by his falſe
Gods, and propoſing an Oath barely to him. In the firſt he is induced to commit an Act of Idolatry, which can never be allow.
ed; but in the other he tempts him not to Idolatry, though he has reaſon to believe that he will commit the Sin in doing what
is required. The Reaſon is, becauſe that he requires is innocent, for 'eis not unlawful to ſwear. But if he adds any thing Cri-
minal to what is required, he does it of his own accord, without being determined or induced by him who propoſed the Oath
.
If it were otherwiſe, no Man that hath an urgent occafion for a Sum of Money, which no body will lend him at reaſonable_In:
tereft, could be permitted to borrow it of an Uſurer, whom he knows very well will not lend but ac exorbitant Uſe, loc. This
is what is ſaid, but to me this diſtinction of Mr. Placette ſeems not neceffary. To require an Oath of a Heathen is in my opin
nion the ſame thing as to defire him to ſwear by his falſe Gods. He can't fwear but by the object of his Religious Worſhip;
and if he ſwears by any thing elle, no Man will take it for an Oath. The truth is, though an Oath confider'd in ic ſelf is a
Religious 'Ac, yet in common dealing it ought to be lookd upon as no more than a Civil Act. 'Tis a Security that is required,
and the force of ic depends upon the Impreſſion that the fear of God makes upon Mens Minds, which imports no more, than
that he that ſwears, calls the true, or ſome false God to witneſs, provided we fwear not lightly and without neceſſity. I com:
pare it to Naaman's Action, who eo difcharge his office, went into the Temple of Rimmon, and bowed himſelf there, to ſupport
his Maſter the King of Aſſyria, which the Prophet Eliſha did not diſallow. See 2 Kings 5. 18. and Fof. 23. 7. where the If
raelites are forbidden to Twear by other Gods, which refers to the reſt of the Canaanites, with whom they were to have no Con-
verſe, left they ſhould be won co ſerve and worſhip their Gods, to which they were coo much diſpoſed.
(3) This Example is very well apply'd. It is very clear from Joſh. 24. 2. That Terab the Father of Abraham, and Naber the
Father of Terah ſerved ftrange Gods. See Mr. Le Clerc upon that place in Geneſis, and on c. 14.33. of the ſame Book.
Mr. Barbeyrac's NOTES on S 5.
(1) We may find the like Adventure in Anton. Liberalis Metamorpb. chap. I.
(a) Ducas. Hiſt. Byſant. c. 22. (6) Juvenal. Sat. 15. 37, 38.
-Numin 1 vicinorum
Each calls the other's God a ſenſelefs Stock,
Odit uterque locus ; cum folos credit habendos
His own Divine, though from the ſelf-fame Block.
Eje Deos quos ipſe colit.
Add.1.12 t. 2.1. 5 1. 1. De Jurejur
. which is not contradicted by S 3. d. 1. &c. or the Deciſion of Canon-Law, Queft : Cauf, 22,
(c) Lib. 2 C. 131. 12. (d) Add. Juf. Can. 16 Queſt. 1 Cauf. 22. (C) Add. l. 446.71.3 f. 2. D. de Obligat do Action.
(f) Pro Laps. inter ſalutand. (8) Epiſt. Heroid. 21 V, 135, Loc. (1) See Grot. 1.2 C. 13 1.2, 3.
ing
Mr. Tate.
CHAP. II.
Of án 0 ATH,
123

KA
Uſe and ti
ing each other by mutual Signs would be banifhd Doctor's Degree conferr'd on him in the Schools
, is
out of Human Life ; if any Perſon might be able nevertheleſs a Doctor, though we ſhould ſuppoſe
by his ſecret Intention to hinder an Action from ob that he who pronounc'd the Form of his Promotion,
taining ſuch an Effect as it was firft inſtituted to thought all the while of dignifying an Aſs. But if
produce. Therefore, whatever your inward Purpoſe a Player upon the Stage inveſt another with the
might be, you ſhall certainly be bound by your Habit and Formalities of that Degree, he ſhall be
Oath, when both the Party to whom you ſwore, ap- juſt as much a Doctor as he was before. Ipfa ftatim
prehended this to be your Meaning and Deſign, and ſcena rem fi&tam effe teftatur, as Quin&tilian (6) ob-
you your ſelf when you utter'd the Words, evidenc'd ſerves on a like Occaſion ; The Place firews the Acti-
by all outward Tokens, that you were in Earneſt, on to have been Infignificant.
and not in Jeft. And 'tis indeed a downright Con- 'tis an idle Queſtion, Whether a Perſon be oblig’d,
tradiction, to deſire to take an Oath, and yet not who deliberately utters the Words of an Oath, yet
to be oblig'd by the Oath; to deſire to promiſe, with an Intention not to ſwear? For if he barely
and not to be bound by your Promiſe; to deſire to rehears’d the Words without any farther Purpoſe,
utter Words in a ſerious Manner, and yet not to 'tis plain he hath neither ſworn nor is oblig'd. But
been aſſign’d them by the coinmon Agreement of that is, when he who ſpoke the Words, gave all
Men. Thus 'twas groſly ridiculous for the Milancje Proofs of his real Deſign to ſwear, and the other
to tell Frederick the Firſt, We ſwore indeed, but we Party underſtood him in that Senſe, no doubt but
did not promiſe to keep our Oath (a). And 'tis much the Oath is properly taken, and the Obligation con-
to the fame Effect
, what Father Paul reports in his tracted, whatever ſecret Drift the Swearer might
Hiſtory of the Council of Trent (b); That during entertain in his own Mind (2). od
the Vacancy of the Holy See, the Cardinals are wont VI. We ought likewiſe carefully to obſerve, That
to draw up a Form confifting of ſo many Heads
, for Oaths do not of themſelves, produce a new and pe-
the Reformation of the Papal Government, which each culiar Obligation (1), but are only applied as an ad-
of them ſwears he will exactly obſerve, in caſe the Ele- ditional Bond to an Obligation in its Nature Valid
Cion fals on him. Though the Experience of all Ages before. For whenever we fwear, we always fup-
teſtifies
, that not one of them ſo Jands to the Engage- poſe fome Matter, upon Non-performance of which,
ment
, inaſmuch as immediately after their being choſe
, we thus imprecate the Vengeance of Heaven. But
Popes, they declare, that either they could not be tied now this would be to no purpoſe (2), unleſs the O-
by any ſuch Bonds; or that their very Inveſtiture with miſſion of the thing ſuppos’d, had been before un-
that Dignity quite releaſes them from the Obligation, lawful, and conſequently unleſs we had been before
If therefore
any Perſon ſhall pretend that he took an obligʻd. Though indeed it frequently happens, that
Oath with ſuch a prepoſterous Deſign,the Excuſe ſhall we comprehend in one Speech both the principal
avail nothing towards
reverſing what he promisd, Obligation, and the additional Bond of the Oath;
but ſhall paſs for meer Trifling. We may illuſtrate as for Inſtance, if I ſay, So God be my Helper, as I
the Caſe by a like Inſtance: A Perſon who hath his ſhall pay you an Hundred Pounds. And yet it doth
,
See whar
(2) Except Oaths extorted by fone up juſt Fears batiskai
unjuft si
DHUO Mr. Barleyrac's NOTES on $ 6.
(1) Grotius, Lib. 2. c. 13. $ 14. fuppoſes on the contrary, that every Oath by which we engage our felves to do or not do any
thing to another, contains a double Promiſe ; the one reſpecting the perføn that took the Oath, and the other the God by whom
we (wear; and that one of theſe Promiſes may oblige, though the other does not. Mr. La Placetie, who had been once of
pur Author fays, s.8. Moreover, we often ſwear to do things wherein God is not at all concerned, and ſometimes with which
he is diſpleaſed. For it is ridiculous to ſay that we have promis’d a thing to any Man, who has no Intereſt by it, or which will be
no advantage to him, becauſe it diſpleaſes him. Laſtly, Promiſes become void in themſelves, when they are not accepted. If
then an Oath confirms a Promiſe made to God directly, it can't be of force, till we know that God accepts it; and how can we
be aſſured of this, that God accepts a thouſand Promiles confirmed by an Oath, if they have no reſpect at all to his Service ?
what then is there in an Obligatory Oath, more than a bare Promiſe made to the perſon who is ſworn to? Mr. La Placette finds
nothing that can give us a better Notion of this
, than Treaties of Warranty fo common among Princes. Two Men, ſays hie,
make a Bargain, bur one fufpects the other will break it ; to affure himſelf of the contrary, he propounds taking of an Oath,
Loc. to take God for the Warranty of the Agreement, and conſents, that in caſe he breaks ic
, God ſhall declare againſt him, and
punith his Perfidiouſneſs
. I thought when I read theſe words, that he had been of our Author's Opinion, which ſeems to be a
Conſequence of it, and I thought when I put out the firſt Edition of this work, I had given three good Reaſons for my Opinion,
as may appear from the Extract made of them by Mr. Bernard in the News of the Republick of Lecters, June 1701. but i now
fee, that Mr. La Placette ftill maintains, That Oaths may be of Force and Obligatory, although the Promiſes added to them be
Buil. This he pretends to prove in the End, but the Reaſons he brings are weak, and not to the purpoſe, as I ſhall thew here-
after. And we may eaſily forelee thac he can produce nothing facisfactory in this matter, and agreeable to his own Principles
.
He rejects the Opinion of a double Promiſe included in an Oath, becauſe we can have no certainty that God accepts an infinite
number of things indifferent in their own Nature, to which we engage our felves by Oath. But then he ought to be fure that
God will be the Warranty of the Oath taken, after the ſame manner, as the Prince who is Warranty in a Treaty, ought to agree
to it
. For here is no Revelation, and I defie Mr. La Placette and all the rigid Caſuiſts to prove that God will be Warranty in an
Engagemeur otherwiſe invalid, at leaſt, that it is his Will, that the Holineis of an Oath may ſecure to the wicked Man the be-
nefic of his Extortion. Accorđing to Mr. La Placette, Fraud diſpenſes with keeping an Oath, and why may not Violence have
(2) This Reafon does not appear to be good, or at leaft, is not well expreſs’d. For as the Author faýs a little after, and $ 19.
it happens ordinarily, that we engage our felves and ſwear at the ſame time, otherwiſe we can't conceive of an Obligation ance-
cedent to an Oath, and valid
without any dépendance upon that Religious A&. The Notion of an additional Bond, which the
Author mencions above, is fufficient to prove what he maintains. Men engage not themſelves by fwearing, but ſwear to confirm
their Engagements. An Oath in reſpect of the Obligation
we take on us, is as Modes and Accidents are to the Subſtance, with
out which they can't fubfift. So that from the Moment
that the Engagement to which we have called God to witnels
, includes
ſomething that makes it null in it felt; an Oath loſeth all its Force, and we ſwear only with the Mouth, as all thoſe apparently
do from whom a Promiſe by Oath is extorced either through fear of Death, or ſome other great Dangerous
(a) Radevic. 1. 2: c. 25. Add. Grot. ad Matt. 5. V. 33.
(6) Lib. 1. Add. l. 5. p. 358. Edit. Gorinch. 1658. (c) Declam. 342.
91018
Q. 2
the ſame effect ?
79
not

I 24
Of. an 0. AT H.
Book IV.
will puniſh the Violation of Promiſes, not confir'd fuppofal of ſuch or ſuch a Condition? But neither
not follow, that an Oath is unneceſſary or fuperflu- nevertheleſs made ? Certainly, not the Party to-
ous, becauſe it is thus added to an Obligation be- wards whom the Oath was addreſs’d: For how is it
fore firm and good in it felt. For although all poflible he fhould be able rightly to diſcern what
Men, except Downright Atheiſts, believe, that God mind the other perſon would have been of, upon
by Oath ; yet they believe at the fame time, and can the Perſon who ſwore give a full Deterinination
with good Reaſon, that thoſe Wretches will feel a of this Difficulty, ſince we are not wont to be e
more levere Vengeance, who have in expreſs Terins qually pleas’d with the ſame things propos d at dif
call'd down the Wrath of God upon themſelves, and ferent Times
, or at the ſame time in different Man
ſo far as in thein lies have thut themſelves out from ners. It ſeeins probable therefore that even ſuch
all Hopes of Merty; whilſt they engag’d in Wick an Oath is not valid ; at leaſt, ſo far as it is found-
edneſs with ſo full a Purpoſe and Deſign, as to ed upon Miftake. Yet if the Party who inade it,
ſhew, that they valued not the Diſpleaſure of him thinks he ſhall pay ſome kind of Regard to the Ho-
who is able to beſtow the greateſt Goods, and to nour of God, in not receding from it altogether, he
inflict the greateft Evils. Whence we may con- ought to judge by the Condition of his Affairs, how
clude, That thoſe Acts which were before attended far he may conveniently go in the Performance
,
with ſome inward Flaw hindring any Obligation And whilft we are ſpeaking of this Cafe, it will not
to ariſe from them, cannot be rendred obligatory be improper to make a Reflection or two on the
even by the Addition of an Oath. As neither can Oath which Foſius perform'd to the Gibeonites
a prior Obligation truly valid, be diſannuld by a (b). Where we may firſt obſerve, That the Subtle
fubſequent Oath, or the Right which it gave anio- ty uſed by that people was not Culpable, nor did
ther Perſon, be revers’d. Thus for a Man to ſwear fall under the Notion of a Lye ſtrictly lo term’d
,
that i he will not pay a juſt Debt can be vo Preju- For who will blame a Man for endeavouring by
dice to the Claim of the Creditor. on ob er fome Fiction of Speech to preſerve his Life froin an
-SIS as beilgas Tino 99 TUD miaised isik Enemy bent upon
his Deſtruction ? Nor, properly
DIVII. And hence too it follows, That ſince in Pro- fpeaking, was this Stratagem the Cauſe of any Da-
miſes and Pacts, Confent grounded upon Miſtake, is mage to the Iſraelites : For what doth a Man loſe
not Effećtual towards producing an Obligation, by being hinder'd from ſhedding the Blood of ano-
therefore an Oath is not binding, in caſe it be evi- ther Perſon, whom he may nevertheleſs ſpoil of all
dently made out, that the Perſon who fwore fup- his Poffeffions, and drag into perpetual Servitude
,
posid ſome Matter to be otherwiſe than it really fo weaken'd and diſarm’d, as to be incapable of fu-
proves to be; and which if he had not thus ſup- ture Oppoſition or Reſiſtance? The whole Point
pos’d, he would not have taken the Oath: Eſpeci- therefore turns upon this Queſtion, Whether or 10
ally, if his Miftake was caus’d by the Deceit of the it was the expreſs Command of God, that they
Party to whoni he ſwore. For here the Point ſup- ſhould kill all and each of the Inhabitants of Ca-
pos'd was in the Nature of a Condition, which fail naan, without Diſtinction ; even ſuch as ſhould vo-
ing, all that was built upon it falls of courſe. Thus luntarily Submit to their Yoke, and from whom they
if a Perſon brings me ſome very welcome News could apprehend no Danger hereafter? If this be ab-
from a remote Place, in Conſideration of which I folutely affirm’d, Foſhua's Oath was void. For then,
folemnly ſwear to reward him; in caſe I afterwards the only uſe of it would have been to evade a Divine
find his Relation to have begrotinus.com ads, If it be to puniſh him if he did not break his Command.
to have been Falſe, my Oath ſhall Injunction: That is, foſhua would have invok'd God
doubtful whether a Man would not have ſworn altho’ Nor can it be urg'd, that Joſhua was therefore wil-
he had not been thus Miſtaken, then he ſhall ſtand to ling to keep his Oath, leaſt it ſhould ſomewhat a-
bis Oath. Becauſe Simplicity and plain Meaning are bate the Awe and Reverence towards the Divine
the moſt agreealle attendants of Oaths, and all Tricks Majeſty, in thoſe Nations, to ſee him break a Co-
and Evafions are ſtrictly to be baniſh'd from them: venant which he had call'd God to atteſt. For the
And likewiſe, becauſe the Promiſe was not built on Inconvenience in this reſpect would have been the
that Miſtake only, though ſuch a falſe Prospect might ſame, had he neglected to put the Divine Command
be tbe Occaſion of its being exprejs’d in larger Terms in Execution. Grotius (c) therefore is of Opinion
But this doth not clearly ſettle the Caſe; for who that the Order in Deut. 7. 2. and 20. 16. is to be
ſhall be the judge whether in this caſe, abftracting underſtood with this Limitation (1), unleſs any Peo-
from the Miftake, the Promiſe would have been ple ſhould ſubmit upon the firſt Summons ; which he
won isod.OTI DHE 12 10 og 901 102wom 900
2moda on babba audimore et doorld to bas
-- lisr les stogaus oro ci sont bat
(a) Lib. 2 c. 13 ſ. 4 n. 1.
(6) Fofh9. (C) Ibid.
Sintang 2343 boobs von Mr. Barbeyrac's NOTES on $ 7.
(1) Ja chis Hypothefis there is more difficulty. For when Foſhua knew how things were, he ſtill certainly determined to re-
ceive the Gibeonites, not to treat with them as Équals, and make them his Allies, but as Tributaries, or at leaſt as Slaves to the Chil.
dren of Irael. So that he could nör difpenſe with his Word, though an Oath had no intervened in the League concluded with
them. But Mr. Le Clére has fully proved, that Grotius is miſtaken in his Notion, and confures him chus. The Law exprefly exa
ceprs the Seven Nations of the Canaanites from the number of ſuch as they ought to offer and give their lives, if they would
yield at diſcretion. See Deut. 20.15, 16. Farther, there is a great difference between a Law which orders the Deſtruction of
a People for fear, thae if they are ſpared, they will enſnare their Conquerors into Idolatry, and a Law, that orders the Deſtru-
&tion of all, at leaſt every one of them that does noc voluntarily become tributary, and embrace the Religion of their new Maſters.
If the laſt had been Moles's Meaning, he would have deliver'd himſelf clearly in ſome of the places where he mentions the Cana.
anites. This Macter ought to have been taughe the Hebrews carefully, yet we do not find any Footſteps of an Exception to that
ſevere Order given by God in ſeveral places to ſlay che Seven Nations of Canaan with the edge of the Sword, and make no Treaty
with them. Again, the Vow which the Hebrems calla Cherem, was of that Nature, that he that had vow'd' it could not redeem
it, but it muſt be deſtroy'd, see L:v. 27. 29. Now it appears from ſeveral places, that the Seven Canaanitiſh Nations ought to
be look’d upon as ſuch, as may be ſeen in the Law mention'd, Deut. 7.2. The Examples alledg’d by Grotius do not prove the
contrary. For, 1. The Hiſtory of Rahab is a particular inſtance, from whence no Conſequence can be drawn. 'Tis no wonder
if the Hebrews, to whom the fiad done fo confiderable a piece of Service, ſpared her; and ſo much the more, becauſe ſhe did it
590
urgeth
before
CHAP. II.
Of an 0 ATH
125

Punave had no Commerce with them, nor value their Word. Our
הרומן
0.231 VOTO
Jariw or
che ſo as we are treat.
urgeth many Reaſons to confirm. Mr. Selden like- had
deſign’d to Deſtruction, they had been left in
wile has ihewn at large (a), That the utter Slaughter Poſſeſſion of their Goods and Liberties (c). But on
and Extirpation of thoſe People, was rather a Per- account of the Deception they had usºd, he inſiſts
million to the Iſraelites than a Command. And o- ſtrictly upon his Words; and, as it appears, left
thers think this the more Probable, becauſe the Rea- them nothing but their Life and neceſſary Mainte-
ſon aſſign'd for that Commiflion againſt the Canaanites nance
ce (d).
was, partly left the Iſraelites ſhould imitate their VIII. But what we are to think of Oaths extort-
Idolatry, being then ſtrangely prone to foreign Su- ed by unjuft Fear? Surely the Perſon who by means
perſtition and partly left the ancient Inhabi- of this Fear procur'd
is no
tants, if left in any conſiderable Numbers, ſhould leſs obliged to releaſe the Promiſe thus violently
gain Strength to turn out their New Gueſts; eſpe- obtain'd, than if no Oath had been added to con-
cially in caſe they were allow'd to live with them firm it
. Therefore there appears no reaſon, why
upon equal Terms (b). This Danger therefore be (1)Compenſation ſhould not be adınitted in this caſe
,
ing once furonounted, they judge it would have in oppoſition to the claim of the Injurious Party;
been no Fault to admit Tone to Mercy and Fa- according to the Rules laid down by us, when we
vour ; eſpecially ſuch as ſhould abjure their idola- treated of the general Subject of Fear. Indeed 'tis
trous Worſhip. However this were
, 'tis plain that the Opinion of Grotius (e) that
, If either the Words
Foſhua, upon diſcovery of their Fraud, interpreted of the Oath do not reſpe& the Man, by conferring any
his Oath in a more ſtrict and ſevere Senle
. They Right upon him; or if they do refpečt him, yet Jo as
had profeſs’d themſelves the Servants of the Iſrae- that ſomewhat may be oppoſed to his Claim, then the
lites, a Phrafe conion with the Eaſtern Nations, and effe&t of the Oath ſhall be this ; That the Man fhall ob-
had deſir'd a League. Foſhua had promis’d thein tain no Right, but that the Swearer jhall nevertheleſs
League with them, ſtand to his Oath, by virtue of his Obligation to Al-
according to their Petition: And by this Agreement, mighty God. And he urgeth as an Inſtance, the caſe
(had they prov'd ſuch as they pretended ; that is, of one, who by ſome unlawful Fright or Terfor,
none of the Number of thoſe Nations which God hath forced a Promiſe froin another. But if we
od sa
rabozu i umo
before they had declared War againſt her Country. 2. ?Tis certain that Solomon contented himſelf to make che Remnant of the
Canaanites tributary to him, 1 Kings 9. 20, 21. But the Law, which order'd the Deſtruction of that People
, did not extend to
their Pofterity; it is enough to ſuppoſe that it reached to them only, over whom God made them victorious in Foſhua's time, or
after, till they were well lectled, and in poffeffion of as great an extent of Ground as was neceſſary. So that if any of the Ca-
naanites eſcaped into the Neighbouring Countries, as the Text above quoted ſeems plainly to prove, and they afrer fell into the
Hands of the Iſraelites or their Poſterity, they ought not to play them withouc Mercy. 3. As to what is ſaid in the Book of
Fosbya, chap. 11. v. 19, 20. That there was no Town of the Seven Nations of the Canaanites that would make Peace with
the Iſraelites, becauſe God had hardned their Hearts, ſo that they fought againſt Iſrael, that he might deſtroy them utterly with-
out Thewing them any Mercy. 'Tis not meant, as Grotius tells us, that the yſraelites were obliged to ſpare them which yielded
to them at diſcretion, but that through the influence of Divine Providence all the Seven Canaanitiſh Nations, excepe the Gibeo;
nites
, agreed together to fight, and would not ſubmit to the Hebrews, who would not have had the Courage to have put them
all to the Sword without Mercy, as Divine Juſtice had reſolved to puniſh them, had they laid down their Arms and opend their
City-Gates to the Conquerors. Theſe are Mr. Le Clerc's Reafons, to which I freely affent. But if this be ſo, what ihall we ſay
to Joſhua's Oath. As for me, I can ſee no Reaſon but we may ſay, that his Oath was raſh and null in it ſelf
. "The Sacred Hiſto
rian ſeems to grant che first, when he ſays, v. 14. That they did not asl Counſel at the Mouth of the Lord, (i. e.) of Urim and
Thummim. in truch, fince he ſuſpected ſomething, as appears from Verſe 7. he ough to have been cautious how he engaged
himſelf by Oath in a Matter of fuch Conſequence, and in a manner run the hazard of oppoſing Gods Command, which
being
To formal and abſolure, the Artifice of the Gibeonites had been ſoon diſcover'd, and then Joſhua's and the Elders of Ili ael's Oath
had been of no Force. For all the World agrees that an Oath engaging us upon a thing unlawful is of no Force, fee $ 9. follow-
ing. Nevertheleſs we ſee that Joſhua thought himſelf obliged to keep his Oath. 'Tis poſſible that God by ſome poſteriour att
might ratifie this Oath, though the Holy Scripture, which omits many Circumſtances, ſpeaks nothing of this Ratificacion. The
ſevere Puniſhment which God laid on the Ifraelites and Pofterity of Saul for ſlaying the Gibeorites, 2 Sam. 21. 1, &c. may give
ground to ſuch a Conjecture, although the Action of Saul was otherwiſe inhumane and cruel, becauſe, as I ſay with Mr. Le Clerc,
the Law which order'd the Deſtruction of the Iſraelites was not in being. But be that as it will, it is certain, that a Superiour
bidden by thoſe Laws, and ſo the Oath does not render them effectual of themſelves. See Grotius, Lib. 2. c. s: $ 14, n. 9. and
$ 16. and c. 13. $ 20. n. 4. and what our Author ſays S 19. following. Nor is it hard to diſcover why God would ratifie Foshua's
Path. The Breach of fo folemn a Promiſe made with an Oath, which is accounted
by all
people in the World a moſt facred and
inviolable Act, would have doubtleſs begac an ill Opinion both of the Iſraelites and God himſelf with all the neighbouring Na.
,
Author pretends that the ſame inconvenience will follow upon our Neglect to execute an abſolute Order of God, buț in vain,
becauſe it is not in the leaft to be feared, that the Neighbours would make any ſuch Reflection. They might think it ſtrange,
that the Iſraelites ſhould treat the People they conquer'd with ſo much Rigour, but they could never be offended in the leaft to
fee that Rigour mitigated by the San&ity of an Oath. See what I have ſaid in the firſt Edition of this work. But Mr. Le Clerc
fays, That the Iſraelites did ill in nor informing themſelves fully of the place from whence the Gibeonites came, although theſe
innocent Arts to ſave their Lives ; but he believes that they did not inſert that Clauſe in the Treaty, bue it
was made upon the fuppoficion, that the Gibeonites were a People who dwelt at a great diſtance, upon which account it was null.
But the Iſraelites not infilting upon chat, and having directly
ſworn that chey would do them no harm, they were obliged to keep
their Word, which they hid confirmed with an oach, and fo much the more, becauſe it engaged them to do
Tay to their Law, as he proves by the ſame Reaſons that Grotius had uſed. To this Action of the Iſraelites we may
Sentence of Publius Syrus, which thews that we do well to keep our Word, though we have committed a Fault in giving te.
confutes his own Reaſons, for I hear, that while I am writing this Comment (in 1709.) he has reprinted that firkt
Esiam in peccato, read præftatur fides. v. 192. We muſt look into Mr. Le Clere's new Edition of the Pentateuch, to fee how lie
uſeful Work on the Old Teſtament.
Avdio 01195M 1699905
Mr. Barbeyrac's NOTES on 8.8.
(1) See what is ſaid on Lib 3. c. 6. $11. n. 6. As to the Queſtion it felf, we Thall find in Mr. Muelen's Comment on Grotius,
Tom. 2. p. 487. the Reaſons brought on cach fide, tho what
is ſaid by our Author may be fuficient for any Man of Judgment.
(a) Lib. 6. c. 15.
(e) Ibid. Sect.
(6) Sec judg, 1. 34. 2. 2. 3.5, 6. () 1 Kings 20. 4. (d) Add. Ambroſ, Off. 1. 3. C..10.
14.
would
laſt might uſe
any
les we may apply
Part
of that
т
2711 10 YT

I 26
Of an OATH.
Book IV.
warden
gaun my neglect of my Oath ſhould leſſen the Awe giſtrate or by calling in the aſſiſtance of the Ma-
Man who in thing
would truly ſettle this point, we ought to diſtin- he hath eſcaped the Danger, to treat the Divine
guiſh between the different Kinds and Natures of Name in a ſlighting or irreverent Manner, which
Oaths. Firſt, for thoſe words which are directed not to before was the cauſe of his Deliverance; if any Man,
Man, but to God; as it I ſay either alone, or be-
be- we fay, on theſe Conſiderations, is reſolv'd to part
fore Witneſſes, I ſwear to God that I will give Seius with the Sum thus promisd, it ſeems not only to be
thus or thus (a). Here the Oath hath the Nature more ſafe and expedient, but likewiſe more accepte
of a Vow, by which I promiſe to God that I will able to God, that he Thould rather convert it to
perform ſomewhat in reſpect to his Honour; and Pious Uſes, than to the maintaining of the Wretch
conſequently by which I intended to transfer a Right in his Villainous Courſes. And this method of pro-
on God, and not on Man. The caſe is quite other- ceeding, is the more juſtifiable and ſecure in Go-
wiſe in Oaths which are directed to Men, or in which vernments, where all Oaths of this kind are by the
I promiſe a Man ſomewhat, calling God to witneſs
. Municipal Laws declared void (2). The Examples
For here the Obligation ſeems altogether to expire, alledg’d by Grotius to the contrary, will to thoſe
if it appear that the Perſon to whom the Promiſe who rightly conſider things, appear not at all to
was made, lay under fome Fault which render'd reach the Purpoſe. 'Tis ſtrange that Matthæus the
him uncapable of receiving it. Thus in a Promiſe Civilian (b) ſhould in his Diſcourſe on this point,
to a Thief, I neither directed the Engagement to- commend the Act of Julius Cæfar, Who being taken
in regard to the Honour and Glory of the Divine the Money, but afterwards putting to Sea, took them
Name, pay the Man what was mention’d
. And and brought them to Execution. For Plutarch (©),
though we ſhould grant never fo freely and abſo- Velleius (d), Sueton (e), and Polyanus (f ), who all tell
lutely, that even ſuch an Oath hath likewiſe the the Story, do none of them mention a word about
force of a Vow: Yet ſince a Vow binds not unleſs any ſuch Oath : And Matthaus ſeems in this to fol
it be accepted by God, how ſhall I be ſure that 'tis low the Notion of thoſe who fanſie that a Perſon
conſiſtent with the Divine Pleaſure and Approbati- thus compell’d to ſwear, may ſatisfie his Oath by
on, that I, an innocent Perſon, ſhould rob my ſelf Paying, juſt for the preſent, what he promisd; yet
of my Goods, to beſtow them on an ungodly Vil- ſo as that it ſhall be lawful for him immediately
lain, only to put him into a way of making ſome after to recover what he gave, either by his own
his is no ,
. but a vain piece of Su-
and Reverence
of God in ſuch a Wretch, whọ by perftition; it being the ſame
thing not to pay, and
his very Profeſſion and way of Living, ſhews how immediately to take back what we paid. Tully af-
much he values God and Religion. Yet if there ſerts (8), That it is no Fraud to withhold from a
dal to the Weak, and that he may not ſeem, now
may not ſeem, now (3), for this Reaſon, Becauſe a Robber is a common
(2) This is thus decided by a Conſtitution of the Emperor Frederick II. inſerted in the Code, Lib. 2. tit. 28. si adverſus veno
ditionem, Leg. 1. per vim autem, vel per juſtum metum, i. e, nor by a juſt Fear, but by ſuch a Fear as is ſufficient to move a perſon
not very timorous
. Extorta etiam a majoribus (Sacramenta] (maximè nè querimoniam maleficiorum Commiforum faciant) nullius mo-
menti esſe jubemus. The Poet Gunther alſo makes mention of a like Conſtitution of the Emperor Barbaroffa in his Ligurinus,
v. 793, doc.
be furamenta metu, mortiſque dolore coatta,
Oaths took on Force, or fear of Threatned Fate;
Precipue ne quis multis nocitura loquendo
And chiefly thoſe forbidding to relate
Publicet, aut in se crudeliter a&a queratur, . ,57200
Os banco Deſigns of Pul
Deſigns of Publick Harm, or to complain
Nullius meriti, vel ponderis esse jubemus.
Of cruel Wrongs, we here revoke as vain.
Our Anthor quotes theſe Verſes at the End of the next Chapter. See Feud. Lib. 2. tit. 53.5 3.
(3) Mr. La Placette in his Trearife of an Oach, 1. 2. C. 21. takes our Author's Words in a wrong ſenſe. Theſe are his Words,
He makes Cicero ſay, Thar there is a Fraud in keeping theſe ſort of Promiſes. Whereas theſe are Mr. Puffendorff's Words, Cicero
quoque, Predoni pa&tum pro capite pretium, fine fraude non afferri aſſerit. Where the whole Connexion of the Diſcourſe ſhews, that
there is no appearance of any ſuch Imputation to Cicero by our Author, but that he fairly relates the Opinion of that famous
Orator. For he ſays not, non fine fraude afferi, ſed line fraude non afferri ; which is very different, and comes up exactly to the
ſenſe of Cicero's Words, which are, și predonibus paftum pro capite pretium non attuleris, nulla fraus eſt, ne ſi juratus quidem id non
feceris, &c. Mr. La Placette after he has made this Miſtake, infers from it what our Author never did, and of which none
ought to ſuppoſe him guilty withoue very great Reaſon, ſuppoſing that through Careleſsneſs it had been ill expreſs'd, as it
happens to him ſometimes; he infers, I ſay, from thence, that Mr. Puffendorff ſeems to affert, that a Traveller can't in conſci.
ence to ſave his Life, either promiſe Thieves the Sum that they demand of him, or pay it them; and that 'tis an Offence againſt
the Publick to do either of them. So that this Oath is finful, and we ought not to make it; fince no Man may lawfully
oblige himſelf to that which he can't do without a Sin. And ſo upon ſuch Occaſions a good Man ought rather to ſuffer himſelf
to be kill'd, than promiſe a Shilling to ſuch Thieves as offer to ſpare his Life, provided he'll oblige himſelf to do a thing which
is in his power. i am of Opinion, that Thieves trouble nor themſelves, whether it be in their power or no to perform the
Promiſe which they have extorted, with or without an Oath. In fine, there is not the leaſt thing in our Author, which can
give ground to ſuſpect any ſuch Nocion as he attributes to him, nor can ic be inferred from his Principles, but by ſuppoſing the
thing in queſtion. He atfirms, that a Man is not bound to keep a forced Oathy bue he elſewhere leaves him at liberty to obſerve
it, or not, as he ſees fit, and ſo makes it a matter of Prudence; and though he believes he can't keep it withoue offending -
gainſt the Publick, yet ic follows not, that he may never do it, becauſe he ſuppoſes (to ſpeak properly) that it is no true Oath,
and as he makes no Engagement with the Thiet, who had no right to require or accept
ic, fo he called nor God to witneſs
and ſo 'tis paſt all Contradiction, thar he only ſwore with his Mouth. Mr. La Placette after theſe weak Reaſonings, concludes
nevertheleſs with this ſharp Cenfure, See how the Liberties which the Enemies of ſevere Morality propound, do uſually end
They carry Severity and Rigour much farther, than they do when they accuſe of caſting good souls into 'Deſpair. Bur I'll
referr it to any judicious Man to examine whofe Books have done more harm and leſs good, whether thoſe who are of our Au-
thor's Judgment, or thoſe Moral Divines who are full of Myſteries, Scholaſtick Notions, and Metaphyſical Impulſes to the highe
eſt degree, and impracticable Maxims. Mr. La Placette affirms alſo, That to maintain that a forced Oath doth nor oblige,
do great Miſchief to Society, by making Pyrates and Banditri deſperate, and hinder them from coming to any Treaty. But he
may affure himſelf that they'll neither read this Author's nor his own works. They depend more upon the Fear which fuch
Men have of falling into their hands again, than upon the Obligation which lies upon them indiſpenfibly to keep their Word of
Oath. See what is ſaid upon the Corſairs of Barbary, 1. 8. c. 4. 5 5. following. As for the Treaties in which we engage our
ſelves to an Enemy or Conqueror through Fear, we ſhall ſpeak of char, 1. 8. c. 8.
(a) Add Paul
. Servit. de Inquifit
. p. 55, 56, 57. when he diſtinguiſheth berween an Oath directed to God, and an Oath gi-
(6) De Criminibus, tit. de perjur, 1. 5. (c) In ejus vita init.
(d) Chap. 41, 42.
6) Lib. 8. c. 23.
(8) Offic. 3. 30.
a
17
butt
ven to Men.
(e) Chap. 4. & 74.
Enemy

CHAP. II.
Of an OATH.
I 27
'
Enemy to all Mankind, to whom no Faith can be en- guage, yet being pacified by the Interceffion of Abi-
gaga, with whom no Covenant can be tranſacted. For gail, he thanks God, that he hath been thus hindred
which he is cenſured by Grotius (a), who obſerves from a more ſinful Performance of a ſinful Engage-
That although a Robber hath no Title to thoſe com- inent. And fo Alboinus was no doubt in the Right,
mon Rights which the Law of Nations hath eſta- for retracting a Vow which he had made to cut off
bliſh'd between Enemies, in a fair and open War, all the Inhabitants of Pavia, upon their refuſing
Communion fo far as the Law of Nature extends; invoke the Divine Vengeance upon any Action (f),
one Precept of which it is, That Covenants be faith- but ſuch as God himſelf hath, under a ſevere Pe-
fully obſerv'd. And yet there are not wanting Ar- nalty, forbidden. To do otherwiſe would be to a-
guments which mnight be urgʻd in Tully's Defence (4), buſe the Awe and Reverence which we owe the Di-
As, That ſince a Kobber is a common Foe to all vine Majeſty, in making it, as it were, a means of
Men, or fuch an one as without any precedent In- affronting hiin. And the deſign of introducing
jury or Provocation ſpoils and murthers all that fall Oaths amongſt Men, was, that they might add
into his Hands, and conſequently makes it his ve- Strength to good Actions, not that they might af-
ry Profeſhon to break and diſturb that Society which ford Excuſe and Protection to bad. Dionyſ. Hali-
GOD hath ordain'd amongſt Men; therefore he carn. I. 11. p. 694. Edit. Lipf. (2). The Gods would
ought to receive 110 benefit froin any ſuch cominon bave us make uſe of Covenants for juf and honeſt De-
Bond, (as Oaths-are,) invented by Men to knit figns, not for thoſe that are Vicious and Unreaſonable.
themſelves more firmly together, after the Divine The very Alcoran forbids Men to ſwear unlawfully
Appointment hath inade thein Sociable Creatures. ($); as ſuppoſe, That they will never come near
And that a way of Life, which declares for Atheiſin, their Wives: And injoins any Perſon who hath hap-
ought not to be admitted to any Gain
or Advantage pen’d to make ſuch an Oath, to fet a Slave at lie
from Religion. As, on the other ſide, the Oaths berty by way of Expiation, before he preſumes to
and Proteſtations of ſuch Villains are little regard- break it. And here is made a Queſtion, Whether
ed or relied on by Wiſe Men (b). And we find the a Man falling amongſt Thieves, and being by them
Pander in Terence (c), reckoning it amongſt the ne- compellid to ſwear that he will for ever keep Silence,
ceſſary Accompliſhments of his Art, to have the and as far as in him lies, provide for their Security,
knack of Perjury. Nic. Machiavel. Hiſt. Florent. be bound to ſtand to his Oath? To which we are
When Religion and the fear of God are once ex- inclined to anſwer in the Negative; in caſe his Si-
tinet
, the Conſequence is, that Men regard and obſerve lence be likely to prove the occaſion of expoſing
their Oaths, only fo far as ſuits with their advantage; many other Perſons to Danger. For as to his own
afing them not with an intention of performance, but
as part he might lawfully enough ſuffer the Villains tô
Means and Inſtruments of deceiving with greater eaſe; eſcape with Impunitý (3); but not if their ſafety
and thinking themſelves to have won the more Praiſe was to be follow'd by the Murther and Ruin of ma-
and Glory, the leſs trouble, and the greater Security ny innocent Men. And we might apply to a
they have met with in bringing about their Knaviſh Perſon under theſe Circumſtances the Saying of A-
Deſigns.
teius Capito to Tiberius in Tacitus, Sane lentus in fuo
IX. It is farther requiſite in order to the Vali- dolore effet ; reipublicæ injurias ne largiretur ; So far
dity of an Oath, that the Obligation be lawful, as he was concern’d himſelf, or, in regard to his own
which it is added to confirm (1). Therefore a Pro- particular Grievance, he might be as merciful as he
miſe tho' ſworn to, ſhall be of no Force or Effect, if pleas’d; but he ought not to forgive the Injury done to
the Subject of it were a Matter either repugnant to the Commonwealth. Ann. III
. C. 17. In Gunther. Li-
the Natural or Divine Law, or to any Human Law, gurin. 1. 8. ubi Supra. Frederick makes the follow-
(if the Party lives under Civil Government,)
in-
ing Ordinance.
conſiſtent with the Natural and Divine (d). The
Example of David is moft illuſtrious in this Cafe Juramenta metu mortiſve dolore coacta,
); who having in his Paflion ſworn to deſtroy Pracipue, ne quis multis nocitura loquendo
the Houſe and Family of Nabal, for denying him a Publicet, aut in ſe crudeliter alta queratur,
reaſonable Kindneſs in abuſive and ſlanderous Lan Nullius meriti vel ponderis eſſe jubemus.
w With the Linieten which out Author makes above, Lib.3.c.659, and 11. about the end.
(4) With the Limitation which our Author makes above, Lib. 3. c. 6 $ 9, and 11. about the end.
Mr. Barbeyrac's NOTES on 6 9.
(1) Tis in this ſenſe that we may allow the common maxim co be true, That an Oath that ought not to be made, ought noe
to be kept; for if the thing to which we oblige ourſelves be good or indifferent in it felf
, the Oath is valid and obligatory,
whether we fin or not in making it. Here are two Examples which will clear this Matter. A Man obliges himſelf by Oath never
to ſwear all his Life, nevertheleſs some time after he ſwears, and by this ſecond Oath obliges himſelf to reſtore ſomething he
has borrowed. Doubtleſs he fins by making the ſecond Oath, which he ought not to have done, but yet is bound to keep it.
Another borrows, and ſwears he will reſtore what he has borrowed, having yet no deſign to do it. He commits an horrible sin
by it, but will any Man fay he is nor obliged to perform his Oath?'The Maxim by which he acts is not true, but in reſpect to
luch Oaths by which he engages himſelf to do ſome wicked Action, or forbear ſome good one, which he ought to do. This
is shac Mr. La Placette fays, 1. 2. c. 5. of his Treatiſe of an Oath.
(2) See the Comment of Mr. Le Clerc upon this story. Mr. Hirtius obſerves here, that David was not yet a King, and the
Tefuſal of ſuch a Service did not authorize him to uſe thoſe Methods
with the Refuſer. He was not in extreme Neceflity, and
if he had, chat was not cauſe fufficient to revenge himſelf in that terrible manner.
(3) The Greek is
, eci ys emi ng nasa rj Sonalaus meegaaußersare quafory oworogiass, óx it' derxegis, rj adress. See
what Mr. Buddaus ſays
about the Cath that Hamilcar made his Son Hannibal to wear when he was a Child, That
he never ſhould
have Peace or Amity with the Romans, Spec. Juriſprud. Hift. 68, &c, among his Sele&ta fur. Nat. & Gent.
(2). Lib. 2 c. 13 f. 15 &1.3.619 f. 2. (b) See what has been ſaid in 1. 3. c. 6. towards the end. (c) Adelph. Act. 2. Scen. I.
*.35; (d) See the Paſſages collected out of the Fathers by Gratian, Cauf. 22. Quæft 4. See Grotius, Lib. a c.13 1.6.
(C) 1 Sam. 25 (1) See Grotius, I. 2 c. 13 f. 7. (8) Paul Warnefrid, de Geſt, Longobard. 12. c. 27. Add. I. s. C. 40. in
(h) Cap. de Diſputat.
Qaths
fin. Æn. Sylv. Hift. Bchem. C. 18.

128
Of an OAT H.
Book IV.
U
(c) Vid. Grot. 1. 2 c. 131. 7 & notas fuas ad Matth. 15. 4, &c. Sel.
(See the Paſſage of Gun-
A do stolteoretid bortiossuind toyug lution, wiſely anſwer'd, (e), I did not conſider that
be Oaths took on Force, or fear of threatned Fate; my firji Vow ſtood in need of a much greater Vow to
And chiefly thoſe forbidding to relate or 6 mont bind and confirm it (f). Dyd batrities
Deſigns of publick Harın, or to complain one -- XI. Laſtly, That Oaths do not alter the Nature
ito Of Cruel Wrongs, we here revoke, as vain. rot and Subſtance of thoſe Promiſes and Pacts to which
BELAIDI ront rogo to atrestidis n out do they are joyn’d (1), is fufficiently evident. Thus
01 X. But to go farther, although the thing promis’d an Oąth about a thing abſolutely impoflible, is not
be not in it ſelf unlawful, yet the Oath Thall be obligatory ; though the Party is guilty of a very
invalid, in caſe it hinders any greater Moral heinous: Sin, in thus rafhly abuſing the Divine
Good (1), or if we are by it withheld from diſcharg; Name i So an Oath added to a Promiſe which was
ing any Duty of Humanity or Piety fa) -1 And before Conditional, doth by no means render it ab-
under this Head we may rank thoſe Oaths by which folute. - For the Oath which ſuppoſeth ſuch a Con-
Men tie themſelves up from bdiſcovering and com- dition, doth no leſs ſtand and fall with that Con-
municating to others any Honeſt Art, tending to dition, than the bare Promiſe would have done
b). I
Thus too
oo an Oath, as
or others who are already privy to the Secret (2)well as any other Promiſe, ceafeth and expires up-
can fufficiently ſupply the Needs of Men in this on Failure of the Quality which the perſon held
" Particular; and upon ſuppoſal that my diſcovery when he fwore, and with regard to which alone the
cannot prejudice and endamage the Party, who Oath was made. For inſtance, a Magiſtrate, when
required the Oath from me. Such an Oath we he leaves his Office, is no longer bound by the
find in Lucian [Tragopodag.] Tom. 2. p. 118. in fin. Oath which he took at his Admnidion. And on the
Edit. Amft. The Sacred Oath of Silence which I have other ſide, the Subjects owe no farther Obedience
taken, ſuffers me not to declare what you deſire. To to a Magiftrate, who hath either quitted his Dig-
which is added the Command of my dying Father, en- nity, or been fairly depriv'd of it; though no ſuch
joyning me never to diſcloſe the force of this Compo- Releaſe be exprelly and in formal manner granted
fition. Plin. N. H. 1. 25. c. 1. It adds some kind of them. For thus much is implied in the very Na-
Strength and Authority to our Knowledge when we re ture of the Affair (8). So likewiſe, it is no leſs re-
fuſe to communicate it to others. The Reafon of all quiſite to Promiſes confirm'd by Oath, than to others
which is, becauſe we owe all our Proficiency in which are not ſo confirm’d, that they be accepted
good and uſeful Things to Almighty God, and are by the other Party. And he who obtains a Right
each of us bound to carry our Endeavours to the by any Covenant, may equally releaſe the perfor-
higheſt degree that we are capable of attaining : So mance of it, whether it was ſworn to or not. In
that 'tis not in our power to abridge ourſelves of the ſame manner we are to judge from the Nature
this Liberty, or by our own Acts to abſolve our of Covenants, whether an Ac undertaken con-
Conſciences from a Duty enjoyn'd by the Law of trary to Oath be only unlawful, or whether it be
God. Oaths of this kind were not uncommon a- likewiſe yoid and ineffectual (h). For unleſs the
mongſt the Jews, which are inſiſted on at large by Swearer did by his Promiſe diveſt himſelf of his
other Authors (). Thus too we judge that Oath Right, and confer it on another, though he after-
to have been invalid, which Narſes in Paulus Dia- wards give the thing to a third Perſon, yet the A&
tonus (d) requir’d of an old Man who had dug up a ſhall be valid. If a Man, for inſtance, hath ſworn
quantity of Gold, engaging himn never to acquaint that he will leave ſuch a thing in Legacy to any
any perſon with his good fortune. And the old Party, and afterwards ſells it to another Party, the
Man was in the right, when upon the Death of Sale ſhall not be void, though the Seller is per-
Narfes he diſcover'd the Treaſure to Tiberius the jur'd (2). Thus, if a perſon, who in the Life-time
Emperor. And in this reſpect the caſe of a Vow of his Parents, hath promis’d them upon Oath, that
is the ſame with that of an Oath: For neither is a he will never marry ſuch a particular Woman, ſhall
Vow to be look'd on as good and valid, not only nevertheleſs after their Deceaſe take her for his
if it be unlawful, but if it be filly and impertinent. Wife; the Man indeed will be guilty of Perjury,
The Spartan who had ſworn to throw himſelf head- but the Marriage ſhall ſtand good and firm, un-
long down the Promontory Leucate, when he be- leſs the Municipal Laws ordain the contrary. Far-
held the dreadful height, turn’d back at the pro- ther, an Oath added to a Promiſe or Pact ſhall de-
ſpect ; and being reproach'd for his want of Reſo- rive its Force and Efficacy either from Natural or
Mr. Barbeyrac's NOTES on $ 10.
(1) Moſt of the Examples alledged by Grotius and Puffendorff confiſt of things abſolutely uplawful, as Mr. Thomaſius very well
oblerves
, Juriſpr. Divin. Lib. 2 c. 9. $ 20. In truth every one is neceffarily obliged to honour and help his father and Mother
and although no Man hath right to require our Service rigorouſly, the Law of Humanity lays an Indiſpenfible Obligation on us
to do all the good we can to another. And ſo no Man may directly Iwear with a good Conſcience that he will forſake his father
or Mother in their Need, to do no Kindneſs to ſuch or ſuch a Man, &c. We may then ſuppoſe here, I think, this caſe, that a
of
Man may do a thing innocent and permitted in it felf, yet he can't well diſcharge himſelf of it, without purcing himſelf out
the way of doing ſome other Duty; or a thing good and laudable in it felf, buc joyned with ſomething better, which lays a grea-
ter Obligation upon him, as our Author ſpeaks in ſeveral places. As for Example, every Man is free to give his Eſtate to
whom he pleaſes; but ſuppoſe any one imprudently ſwears to give of it to any one who has no need of it, or to the Poor, a Sum
from which he can't diſengage himſelf with Reputation, without entrenching upon his Duty to fuch perſons as are more nearly
related to him, and whom he is obliged to maintain. In this Cale an Oath is altogether void.
(2) See Mr. Placette's Treatiſe of an Oath, l. 2. c. jo. § 183, &c.
Mr. Barbeyrac's NOTES on § 11.
(1) See Cujacius's Obſerv. 22.
(2) That is to ſay, adds Mr. Hirtius, ſuppoſing we have had no good Reaſons to revoke our Promiſe.
(a) See Grot. I. 2 c.13 1. 7. (b) Vid. Matt. 25. 27.
den de J. N. & G. ſecund. Hebr. l. 7. c. 2. Conſtantin. Empereur in Babakam, c.9 ſ. 20. Gratian, c. 22. Cauf. 22. Quæſt
. 5:
(d) Lib. 18. Add. Gratian. c. 2. Diſtinct. 13. (e) Vid. Plutarch. Apophtheg. Lacon. in fin.
therus above-mencioned. (8) Add. Grot. d. 1. f. 18. (b) Vid. Grot. ubi fupra f. 19.
from

Chap. II.
I 29
Of an O ATH.
from Civil Law, according to the Nature of that prefum’d, that the Minor had fuffer'd fome Damage
Proiniſe or Pact. For the Oath hath not in it ſelf in the Tranſaction, on account of his weak and unex-
a power of -cauſing that which otherwiſe produced perienc'd Judgment, which lays him open to the
only a Natural Obligation, to produce likewiſe a Circunvention and Treachery of others. But if
Civil;
unleſs the Municipal Laws interpoſe parti- there appears no ſuch Damage, no Reaſon can be
cularly in the Matter. As neither can it change given why the Act ſhould be difannull’d. This be-
the species of an Act : A bare Donation, for in- ing premis’d, we affirm, That if a Covenant or
Itance, cannot by the Addition of an Oath be turn’d Promiſe made under Oath be in no other Reſpect
into a Chargeable Contract, nor vice verſa. And here Faulty, it cannot be revers’d on this bare Score,
we fall in with the coirmon Queſtion, Whether a That it was made by a Minor,provided he was capable
Contract confirm’d by Oath, in which the Swearing of underſtanding the Buſineſs in Hand. But if the
Party is remarkably prejudiced, may be revers’d, and other Party was guilty of any Deceit; or if, with-
the Party reſtor’d in full to what he loft? Grotius
(a) out any fuch Deceit, the Minor happens to fuffer
takes the negative Párt, adding for a Reaſon, That any ſignal Prejudice, only through Infirmity of
although, in this caſe, we may perhaps owe the Man Age, the Oath ſhall not hinder him from petition-
nothing, or however leſs than is required, yet we are ing either to have the Bargain revers’d, or at leaſt
bound to perform our Oath to God : Which Argument amended to his Advantage. For in this caſe, the
we juſt now conſider'd and rejected. The Expoun- Youth who ſwears to the Contract, fuppoſes it to
ders of the Roman Law handle the fame Queſtion be free from all Defect, and the other Party pre-
at large, in their Obſervations upon Lib. 2. Tit. 27. tends as much. This then is, as it were, the Con-
C. Ji adverſus vendit : and the Authentick ſubjoin’d: dition on which his Oath is founded, and upon Fai-
which
inany
Civilians, and eſpecially thoſe of the lure of which it comes to nothing. The Caſe is
French Nation, cenſure as unjuft. To the Refcript different if a Youth, without any Deceit, in the
of Alexander they anſwer (3), That it doth by no Perſon with whom he deals, hath knowingly and
means contain a general Deciſion, but was directed deliberately given more than the Purchaſe was
wholly to a particular Cafe. For the matter ſtood thus ; worth. For then the Buſineſs was a mix'd Act,
The Emperor was petition’d here by a Souldier, who made up partly of a Contract, and partly of a Do-
muſt conſequently be a Man of ripe Judgment, be- nation. It is unneceſſary to add, as a general Re-
ing in his Eighteenth Year; and yet be alledg’d mark, that a Perſon ſubject to the Power and Au-
no extraordinary Loſs or Damage, but only his De- thority of another, cannot oblige himſelf farther than
fect of Age. Now the Contract, which this Perſon he is, by that Authority, allow'd (d). If he ex-
hai made and confirm'd by an Oath, that Religi- ceed theſe Bounds, the Governour may, if he thinks
ous Prince would on no Account evacuate : and fit, declare the Buſineſs to be Void, whether ſworn
his Pious Caution had no leſs a Precedent than Her- to or not:
cules himſelf; who, as the Hiſtorian (1) Reports, XII. Yet in as much as Oaths are made by the
never ſwore but once in his Life. And then as for the Invocation of the Divine Majeſty, whom no Man
Authentick, they fay it was extorted by Force from can can fraudently deceive, and whom no Man can
the Emperor Frederick, by Pope Honorius III. who ſecurely mock and deride; they ought to be allow'd
reſus’d to grant him his Iinperial Crown on any o- this Effect; that, on their Account, all Tricks and
ther Terms: and that Frederick had reſolv’d to al- Cavils ſhall be excluded from every Buſineſs which
ter it, but was prevented by Death. The Reaſon they are added to confirm (1). Hence the Roman
why (4) the Pope ſhould infift on obtaining that De- Cenſors juftly condemn’d the Subtlety of that Cap-
cree, is eaſie to be diſcover'd, by all thoſe who are tive; who having obtain'd leave to depart from the
acquainted with the Policy of the Roman Court (€). Enemy's Camp, giving his Oath to return, when
We, for our Parts, muſt think it neceſſary to the he was got a little way, ſtept back, on the Pre-
clear Determination of the Point, firſt of all to ob- tence of having left ſomething behind him, and
ſerve, that thoſe Pacts, in which there appears a then fix'd himſelf at Rome, as if he had fulfillid
very conſiderable Inequality, thoſe which depend what he ſwore (2). The Fallacy of Dercyllidas de-
on any Deceit, Fraud, or unjuſt Fright, and thoſe ſerves a Cenſure no leſs fevere, who beſieging the
which are ſtruck without Thought and Deliberation, Tyrant of Scepſis, folemnly ſwore to him, That if he
have all of them a Natural and Intrinſick Defect, would come out to a Parly, he ſhould immediately return
and are therefore ſuch as the Law of Nature enjoins into the City, The Tyrant coming out on his Pro-
ſhould be either revers’d or corrected. But that the miſe, Dercyllidas commanded him on Pain of Death,
Party's being under the Age of Five and Twenty, to ſét open the Gates, and then told him, Nom í
is not ſufficient, of it ſelf, to render the Covenant give you leave to return into the City, and I intend
defective. Though thus much indeed may fairly be too with my Army, to bear you Company (e). For
(3) The Refcript of Alexander in this, Imp. Alex. A. Florentino Militi. Si minor annis viginti quinque emptori prædii cavifti nullam
de catero te eſſe controverfiam fa&urum, idq; etiam jurejurando corporaliter præftito ſervare confrmåſti, neque perfidis, neque perjurii me
autorem tibi futurum ſperare debuiſti. 'The Netv Conftitution of Frederick is
, Sacramenta puberum ſponte fatta ſuper contra&ibus re-
rum fuarum non retra&tandis inviolabiliter cuſtodiantur, Code l. 2. cit. 28. Si adverfus venditionem.
(4) This has afforded the Clergy a Means to gain to themſelves, under a pretence of Religion, the Eftates of Children under
Age, viz. Boys at 14 Years, and Girls at 12.
Mr. Barbeyrat's NOTES on § 12.
(1) The Oath makes the Cheat the more Criminal; but indeed every Action done without an Oath excludes alſo all vain Sub-
tleries. See what is ſaid upon the Paragraph following.
(2) For the Fraud heightens, and doth not take away the Perjury. Fraus enim aftringit, non diſolvit perjurium, Cicero de Ofc.
1. 3. c. 32.
(a) d. 1.
(6) Plutarch Quæft
. Rom. 28. (c) That this Law is not obſerv'd in France, we have the Teſtimony of Mornay,
ad d. l. See likewiſe Augusto Barboſa ad d. i. Grænewegen. de LL. abrogat.
.
2. Polyen. Stratag. 1.2.6.6. The wicked Shuffling of the Locrians is likewiſe to be condema'd, as we find it reported by
of R
Fraud,
Polyb. l. 12. C. 4.

Tis a barbarous Story, that which Ælian (f) tells fhould fanſie their Oath to expire, by which they
130
Of an 0 ATH.
Book IV
:
WITH warn was
Fraud, as Tully obſerves (a), doth not looſen Perjury, the latter, that he did not take it; who are both to
but bindit ftronger than before
. Thus Harry Stephens, be judg’d guilty of Perjury. It was a moſt grofs
in his Preliminary Treatiſe to his Apology for He- Evaſion of the Turkiſh Emperor Solymam, when
rodotus (b), is very pleaſant on the common Sophiſn having ſwore to (3) İbrahim Baſa, that he would
of the Tradeſmen, when they ſwear they cannot rever hurt him while he lid'd, he order'd him to be
afford a Thing under ſuch or ſuch a Price, unleſs kill'd in his Sleep, as if he were not then to be
they defign to loſe by it; obſerving that in this reckon’d amongſt the Living. On the other Hand,
Conduét they have always an Eye to the Proverb, the Ancients extol the Conſtancy of Q. Metellus
A Tradeſman loſeth when he doth not get. I know Numidicus (i), for refuſing to ſwear to the Law pro-
not whether we are to rank under this Head, the poſed by Saturnius ; though Marius the Conful and
A&t of the Ceunt de la Fountain, who in the Battle at others, endeavour'd to perſwade him to a Compli
Rocroy, was carried in a Chair ; having bound hin- ance, by telling him, That the preſent Neceſities of
ſelf by Oath, Never to fight againſt the French on the Commonwealth would juſtifie bim in taking the Oath
,
Foot, or on Horſe-back (c). Or that of Pope Alex- and that he might decline the Force of it by this Secret
ander the Seventh, who having, at his Admiſſion Reſerve, That he ſwore to the Law, provided it were
to the Papal Dignity, ſworn that He would never a Law; that is, if it were duly propos'd and enact-
receive his Kinſmen in Rome, ( di non recivere i ſuoi ed. Whereas it would be eaſie for him afterwards
parenti in Roma) by the Advice of the Jeſuits, to ſhew that it was indeed no Law, being made in
made uſe of this Evaſion ; he receiv'd his Relations the time of Thunder, when by the Rites of their
firſt at the Caſtle of Gaudolf, and then brought Religion, they were forbidden to tranſact any Bu-
them with him into the City (d). Or what fineſs in the Aſſemblies of the People. Yet that
Tavernier reports (e) of the Dutch Agents of their good Man chofe rather to go into Baniſhment
,
Eaſt Indian Coinpany ; who before they leave Hol- than to inake uſe of this Shift; knowing that when
land, engage themſelves by Oath, never to drive Perſons ſwore to a Law, they muſt, at leaſt in Pre-
any Trade on their own private Account, but to tence and Appearance, acknowledge the manner
reſt ſatisfy'd with the Salary allow'd them by the of its Enactinent to be Right and True. But we
Publick. Yet when they once arrive at the Indies, think Lycurgus to have been over Solicitous, when
many of them Marry, and ſuffer their Wives to he order'd his Aſhes to be thrown into the Sea, for
carry on that forbidden and clandeſtine Traffick fear if they ſhould be brought to Sparta, the People
of Cleomenes the Spartan, That making Archonides had bound themſelves not to repeal his Laws till
privy to his Deſign on the Kingdom, he ſwore to he ſhould return Home. For the bringing back of
him, If his Enterprize ſuccceded, mevta our tñ ouzi a Dead Body can with no Propriety be look'd on
xepan agentev, that he would do nothing without his as the Return of the Perſon to whom it be-
Head. But having ſecured the Government he cut longs! (k).
off his Friends Head, and kept it in a Veſſel of Ho XIII. Yet on the other ſide, the interpretation of
ney, and before he undertook any Buſineſs, turn d Oaths is not always to be extended, but ſometimes
towards the Veſſel, and declar'd his Refolutions. to be made in the cloſeſt and narroweſt Senſe, if
Aryandes
, in Polyanus (8), treating with the Barce- the Subject Matter ſeem to require it (I); as fup-
ans, brought their Commiffioners to a Trench, which poſe we ſwore to the prejudice of another, and con-
he had contrivd for that Purpoſe, lightly cover'd firm'd in this folemnly manner not Promiſes, but
with Earth and Wood, and there ſwore to them, Threats, which are not in themſelves capable of
That he would obſerve the Articles of Agreemnt, conferring any Right on another (1); the cominon
as long as the Earth continued. And preſently after Inſtance of which Caſe is the Example of the Iſraelites
throwing down the Trap, ruih'd upon the City, .in Judg. XXI; who having ſworn not to give their
when under no Suſpicion of Violence (h). To the Daughters to the Benjamites, afterwards perſwaded
faine Caſe belongs the common Inſtance of Two them to ſteal themſelves Wives, and interceded for
Rogues, one of which ſteals a thing, and the other thein with the Virgins Fathers. For 'tis one thing
hides it; the former ſwearing that he hath it not; to give, and another thing, not to reſume, what hath
trol
(3) Our Author unfitly impures this co Ibrahim. See the Continuers of Chalcondylas upon Solyman II.
Mr. Barbeyrac's NOTES on 13.
(1) It is certain, that we ought to reſtrain the ſenſe of the Words of an Oath, as the Nature of the thing requires, but that
is not peculiar to an Oath, ſingle Promiſes and Agreements neceſſarily require it. As for the Examples which our Author alledges,
they have moſt of them a ſhew of Subtlety, either wicked, unprofitable and fuperftitious. It is not ſufficient to give the Words of
an Oath a ſenſe that may rigorouſly be put upon them, we muft alſo fee, if in the Circumſtances in which they were pronounc'd
that ſenſe is ſuitable and agrees with the intention of him that ſwears, and him to whom the Oath is made. If it be not ſo,
and the ſenſe in which the Terms are taken contains nothing that can render it null, I don't know how any can ſecure themſelves
from Perjury by putting another ſenſe upon them, which was not thought on in taking the Oath; but it in following the ſenſe
'
they are capable of it, and we may without fcruple diſpenſe with keeping a like Oath in any manner. See Mr. Titius Obſerv
.
273. who ſends us to Mr. Thomaſius's Inſtit. Juriſpr. Divin. l. 2. c. 8. $ 50, &c. where he maintains the ſame thing againſt our
Author, as I have ſeen my felt, fince the first Edition of that work, but 'tis the 11th and not the 8th Chapter. î tħall ſpeak
of
(a) Off. 3, ubi ſupra.
Serm. 28. of Lydia. Tacitus Ann. XII. Rhadamiſtus, as if he would pretend to be mindful
of his Oath, doth nor uſe his Sivord or his Poyfon againſt his Uncle or Siſter ; but, as they lay upon the Ground, ſtiftes chem
with a load of heavy Garments Chapa (c) Benj. Prioli Hift. Gall. l. 2. (d) Il. Nepotiſm. Rom. part 1. 1. 3.
) ,
Cij v. H. 1. 12. c. 8.
(8) Lib. 7. c. 34. Stratag. (h) Yer Herodotus, Melpom. cir. fin.
attributes this Action to the Perſians. (i) Vid. Appian. I. 1. de Bell. Civil. p. 368. Edit. H. Steph, Plutarch in Mario.
(k) Vid, Plutarcha Lycurg, Juſtin. l. 3. c. 3. (7) See Grot, 1. 2. C, 13., . 5.
.
been

CHAP. II.
131
Of an 0 ATH.
been forcibly taken (2), And there was the more Superior in cancelling the Laws, to be different
reaſon for inſiſting thus cloſely on the Words of the from that (5) of repealing them by their own free Act.
Oath, becauſe it had been Cruelty to extinguiſh a Thus Agamemnon in Euripides, refuſeth to punith
whole Tribe (3), though for the moſt heinous Of Polyinneftor of Thrace (d), in regard that he was the
lence; and perhaps they had in their Oaths, excep- Friend and Allye of the Grecians (6),yet he promiſeth
ted this very, Cale (a). In Ammianus Marcellinus Hecuba not to hinder her froin taking any Revenge
(0 ), Athanaricus the
Gothick Judge and Commiſſion on him by her own Force, and on her own Ac-
ner for the Treaty of Peace, alledging, that he was count (e). Thus the Knaviſh Servant in Terence (f);
bound by a dreadful Curſe, and by the Commands begging the Maid to take the Child which he had
of his Father, ort" Never to treadſ upon the Roman in his Arms, and to lay it at his Maſter's Door, be-
Ground, and no Arguments proving fufficient to ing deinanded, Why he could not do’t without Ar-
move him to the contrary, it being likewiſe dif- fiſtance? Anſwers, Becauſe if my Maſter makes me
« honourable for the Emperour to paſs over to him; ſwear that I did not lay it here by my ſelf, I may
« the Wife Heads found out this Expedient, to have do it with a ſafe Conſcience. But Davus was in our
“ the Emperour and the Judge meet in their Boats Opinion, but a very poor Caſuiſt, it being in this
about the midſt of the Rivers (the Danube,) and reſpect the ſame, to perform a thing by ones felf
,
thence to ſettle the Articles of Agreement be- or by another.' The Emperor Aurelian, when he
“ tween their People on both ſides (4). So when the found the Gates of Thyan ſhut, ſwore in a Rage,
RomansLivy ) requir'd the Achaans to repeal That he would not leave in it one
Dog alive (7) (8). A-
fome Decrees which they had made, the latter urg'd lexander the Great having reſolv'd to deſtroy the
own Excuſe, That they were engaged by Oath City Lampſacus when Anaximenes came to peti-
not to do it. But Appius the Roman Commillioner tion him on the behalf of the City, immediately
in the Affair, telling thein, He would by all means ſwore, He would do nothing which Anaximenes ſhould
n
to undertake that willingly, which other. deſire. Anaximenes took the advantage of the Oath,
wile they would be brought to by Compulſion : They and deſir'd him to deſtroy Lampſacus, (8) (b) Antigo-
were fo terrify’d, as only to requeſt, That the Ro- nus on account of a ſtrange Dream which he had (1)
mans would give themſelves the trouble of making what fully deſigning to kill Mắthridates, and diſcovering
Alterations they thought fit, and not bring the Achæ- the Matter to his Son Demetrius, after he had forc'd
ans under the Curſe of Perjury. Here, we ſee, they him to ſwear that He would never Speak of it; Deme-
look”d on the Caſe of not oppoſing a formidable trius being concern’d for the Life of the Young
in their
adviſe them
10
(2) But as Mr. Vander Muelen has alſo obſerved in his Comment upon Grótius, Tom. 2. p. 472. if at the time that the Iſrao
elites ſwore they had been demanded what they meant by nor giving their Daughters in Marriage, could they ſincerely fay, chae
they intended thereby to hinder them from taking them, and the rather becauſe without any prejudice to their Oath, they were
free to adviſe the Benjamites to have recourſe to luch an Expedient, and afterwards to intercede for them to the Fathers of the
Virgins they had taken away? We may add, that theſe ſort of Oaths, which give no Right to any perſon, are properly ſpeak-
ing Vows. Now what affurance can we have that God accepts them ? And on the contrary, ought we not to ſuppoſe that he re.
jects them, ſince they only proceed from a principle of Hatred and Animoſity? In a word, all Minacory Oaths have two eſſen.
cial Marks, which render them null, the firſt is, Thar ſo long as there is any knowledge of them in the Perſon againſt whom any
thing is threarned to be done, or not, he always hopes that they'll not be performed; the other iş, That theſe ſort of Oaths are
always made raſhly and without Confideration, for they either proceed from Hatred next to Madneſs, or ariſe from ſuch a Mo-
tion of Choler, as cauſes a Menacing, with an Oath of ſuch as we are not angry with, becauſe we love them, and would make
them ſenſible chat they have committed things that have provoked our Indignation In all theſe Caſes we ought to beg God's
Mercy for thoſe unwarrantable Paſſions, with which we have ſuffered ourſelves to be tranſported, and for the Raſhneſs we have
been guilty of in uſing his Holy Name, as if he ough to authorize our Paſſions and weakneſſes, but we are not obliged to keep
ſuch Oaths, and we often fin much more in execucing our Threarnings with Rigour.
(3) Mr. La Placette in his Treatiſe of an Oath, l. 2. c. 9. maintains, That it is impoſſible to prove with the leaft Solidity, that
theſe Oaths are evil. There was indeed, ſays he, a great deal of Severity in this Treatment, but we muſt alſo own, that it was
deſerved. This Deciſion certainly is not moderate, if we conſider the Nature of the thing determined, for it authorizes ao
Action very harſh, or rather extremely cruel, but as to the Deciſion ir felf, it feems to me, that to qualifie it fingly with Mode-
ration, is a Term very ſweet and pleafing. It is not necetlary that I ſhould prove this, bue, ſend the Reader to the Hiſtory ic
ſelf, and to Mr. Le Clere's Commentary upon it.
(4) If the Peace could not have been concluded unleſs Athanaricus had went into the Romans Country, he had been diſcharged
of his Oath by this only, that caſes of Neceſity are always excepted.
(5) We muſt ſay the ſame thing in this Example as in the preceding. Otherwiſe all publick Deliberations may be revoked,
when it is neceflary for the good of the State, there being nothing in which this Condition is not Tacitly included.
(6) In this Example there is no Oath, and the Explication of Agamemnon's Words helps not the Marcer.
(7) This
of keeping Oaths is to burleſque them. The Hebrews have a Proverbial Expreſſion ſomething like this of Aure-
lian, which is-to make them pafs under the Edge of the Sword, underſtanding it of Men and nor of Beaſts, alchough the Words
properly taken belong only to Dogs. See i Sam. 25. 22. and what Mr. Le Clerc ſays of it againſt Bochartus. The truth is, the
Emperors Oath was null. See what I have ſaid in Note 2. And ſo was Alexander's for the fame Reaſon, when Anaximenes beg.
ged the contrary to what he wiſhed for.
(8) As the Propoſition of Etearchus was wicked, it is clear that Themiſon's Oath was null, and that he ought not to keep it in
the ſenſe that the Tyrant took the Words, but alſo that he did wrong in putting the Virgin into the Sea, although he reſolved
to pull her out again; for he could not be ſure that the Cords would not break, or that he ſhould not do her fome Miſchief in
throwing her into the Sea.
way
(a) Add. Joſeph. Archeol. V. 2. & Ambrof. OM. I. 3. c. 14. (b) Lib. 27. c. 4. (0) Lib. 39. C. 37: (d) Hecub. y. 869,&c.
(e) Add: Polyb. Excerpr. leg. 8 circ. fin. () Andr. Art. 4. Scen. 3. (8) Aurelian was but juſt in interprecing his Threats,
according to the ſtricteft rense, when he commanded his Men to run up and down, and kill all the Dogs they inet with, Flav.
Popisc. Aurelian, c. 23. Add. Valer. Mar. 1. 7.c. 3. Sect. 4. inter. extern. (1) When Ete archus in Herodotus (Melpom) 171, 172.
Edic. H. Steph. had obliged Themifon by Oath to Sinift him in any Service he Thould command, and afterwards orderd him to
throw his Daughter into the Sear;' Themifon, tying the young Lady to Ropes, let her down amongſt the waves, but preſently
Pulld her up again without harm.
(i) Vid. Appian. de Bello Mithridat. p. 176. Edic. H. Steph.
5.1.1970m
+ R2
Princes

132
Of an 0 ATH.
Book IV
bi
So char Demetrius might without any Ambages have delivered Mithridates from the Danger he was in.
frince took him once aſide from the Company, and XIV. In like manner an Oath doth not exclude
aying nothing to him (9), only wrote with his any tacit Conditions or Limitations properly ati-
Javelin in the Duſt, ſo as to be obſerv'd by him, ſing from the Nature of the Subject
. As ſuppoſe I
Fly Mithridates (a). To the ſame Head belongs that have given a Perfon his Option to deſire of me
Inſtance which Sueton (b) gives of Cajar's great Cle- whatever he pleas'd ; if his Requeſt ſhall be either
mency of Nature; That having ſworn to crucifie unjuſt or abſurd, I am not tied by my Engagement,
the Pirates by whom he had been taken, he orders For he that makes an indefinite Grant to another,
them firſt to be ſtrangled, and then faſtned to before he knows what he will ask, preſuppoſeth thał
the Croſs. Of the like kind was David's Oath of Safety the other Party will petition for what is Honelt
to Shimei
, 2 Sam. XIX. 23. notwithſtanding which, what is Morally Poffible, what is not Ridiculous,
on his Death-bed, he commands Solomon, to take and what is not miſchievous either to himſelf, or
due care that ſuch a wicked Rebel ſhould not die to any beſides (1).1 'Twas a good Caution of Phoebus
a peaceable Death; 1 Kings II. 9. For David's Pro- to his Raſh Son, 4 of TOT
VOTO Atisortor"?
miſe of Pardon was made only in his own Name. Nor The ait to be protbus H oH W *
did he here, properly, enjoin Solomon that he ſhould Ne dubita, Dabitur (ſtygias juravimus undas)
drag the Man to Puniſhment for his old Crime, but Quodcunque optůris; ſed tu fapientias opta (e). dr
only that he 1hould diligently watch fo notorious a
Villain, and by no means ſpare him, if taken in I've ſworn by Styx, doubt not, I'll not refuſe
a ſecond Fault. And Solomon acted with great Wif Whate're you ask, but with more Wiſdom chuſe.
don (c), in obliging fo turbulent and fo implaca-
ble an Offender to live in the Royal City under Such a Cafe as this gave occaſion to that noted Say-
his Eye, for fear he ſhould engage in new Treaſons, ing of Hippolytus in Euripides (f), which Tully fo
threatning him with Death upon his Diſobedience much commends, si gaãoó' ou concox' i 3 qpör árásuolo
in this particular; which Condition Shimei himſelf My Tongue hath (worn, my Mind unſworn remains
.
gladly approved of, and accepted. Nor did it fall for it ſeems he had ſworn to the Nurſe, that he
out without the ſpecial direction of Providence, would keep ſecret whatever ſhe diſcover'd to him,
that being caught tranſgreſſing this Command, he But when the made a Propoſal of Adultery and In-
ſuffer'd the juſt Reward of his
former, as well as of ceft with his Mother-in-Law Pha dra, he denies
that
his preſent Guilt. Add. Montaign's EfT
. 1. 1. c. 7. his Oath oblig'd hiin to conceal fo foul a Villany,
Perhaps we ought to allow a place under this fa- Though the Poet makes him fo fcrupulous as to re-
vourable Head, to the Action of Mary Queen of cede from this Judgment, and to keep cloſe the Mat-
Hungary, Wife to the Emperour Sigiſmund, who ter in regard to his Oath (3), Nicomachus in Q. Cur-
having promiſed Indemnity to Hervatus, Governor tius, (%) makes the ſame Exception, refolutely denying
of Croatia, by whom ſhe had been taken, and very that he had given bis Oath in confirmation of the Par-
hardly uſed; upon the Recovery of her Liberty ricide, or that any tye of Religion ſlvould be able to
is ſaid to have put her Husband upon revenging the binder bim from déclariug fo barbarous a Treaſon.
Injury; alledging, That she had no power to engage For it is indeed one part of the Duty and Obliga-
for him, though ſhe might for her ſelf. Bunfin. rer. tion of a Subject, not to hide any Deſigns that he
Hunger. 1. 3. c. 2. I know not whether we may put ſhall obſerve to be carrying on againſt the Perſon
in the ſame rank the Act of Timoleon recorded by or the Government of his Prince. So Tully (Off
. 1)
Polyanus; he was engaged in purſuit of Milarchus (a) It may ſo happen, that the performance of a
a promiſe
the Tyrant, an iinpious Wretch, who had cheated or an Engagement ſhould be prejudical to the Party to
many Perſons out of their Lives, by ſwearing to whom it was made. For if Neptune, as we have it in
preſerve them, and afterwards deſpiſing his Oath. the Story, had not made good what he promiſed to
The Tyrant made an Overture of coming in Per- Theſeus upon Oath, Theſeus had not lost his Son Hip-
ſon to Syracuſe to take his Tryal, provided Timoleon polytus. The Death of his Son being one of the three
would not be his Accuſer : Timoleon ſwore he would Wiſhes
, which, in his Paffion, he put up to Neptune
.
not; and on theſe Terms Milarchus came to Syracuſe: (Comp. Euripid Hippolyt
. Coron. v. 315.) Thule
Timoleon bringing him into the open Aſſembly, ad- Promiſes therefore are not to be kept, which would be
dreſſed him in the following manner, I will not accuſe burtful to the Perſons whom, in promiſing, Tou deſign'd
you, for ſo I covenanted beforehand; but I'll command to ſerve
. Add. Diod. Sic. 1. 4.c. 65. And thus to
you inſtantly to be executed. For he who bath decsivºd ſo Herod ought not to have ſold the Head of John the
many to their Ruine, mayjuſtly be thus deceiv’d himſelf. Baptiſt to his Daughter-in-Law, for a Dance; be-
(9) This Expedient was ſuperfluous, and could not have preſerved Demetrius from Perjury, if the Oath had been valid. But
every one is indiſpenſibly obliged, as much as in him lies, to avert the Evil from others wich which they are threarned unjuſtly.
All this Mr. de Sacy has
ſpoken in his Treatiſe of Friendſhip, p. 110, &c. upon the Queſtion, whether a Man may break his Oath to diſcover to his
Friend a Secret of thar Nature, that he hazards his Life if he hides it from him? All that this ingenious Author has ſaid upon
this Subject, taking the Negative part, is void and of no force. The Reaſons which he himſelf alledges for the Affirmative are
ſufficient ro ſhew that his Determination is extremely wrong.
Mr. Barbeyrac's NOTES on S. 14.
(1) Our Author cites this Paſſage out of Ovid's Metamorphoſes, 1. 2. V. 101, 102. but it is ſo far from eſtabliſhing, that it con-
tradías our Author's Principles. Phebus ſuppoſes here, and the fequel of the Story proves it plain enough, That an Oath made
by the waters of Styx was inviolable, although the performance of it was fatal to him, for whole fake it was made. This is con-
trary to Reaſon, and the Syſtem of the Author.
(3) Curtius's Words are, Quibus juvenis (Nichomachus] auditis, se vero fidem in Parricidio dediffe conftanter abmit, nec ulla, ut
ſcelus tezat, poffe conftringi.
(a) Plutarch. Demet. (b) jul. c. 74.
(c) Verſ. 36, doc. (d) Stratag, 1, 5,0.12. n. 3.
V, IOT, 102, (5) Hippolyt. v. 6.12. (8) Lib.6. c. 7. 8.7.
GDA
(e) Ovid Metamorph. 1. 2.
cauſe
CHAP. II.
Of an ( ATH.
133

Grant; when
Evaſion. The
cauſe
, ſince there can lie no Obligation to what is of Perjury, when being conſcious to themſelves of the
umlawful; in ſuch a General Promiſe, this Conditi- Wickednejs with which they were chargd, they trem-
on ought to have been underſtood, If The deſir'd any bled and faulterd in their Oath, changing the Words
thing which he night lawfully perform (a). We with 'mueb Artifice and Slight. So Úlyfes and Dion
find King Solomon not adhering to his Indefinite medes in Di&tis Cretenfis (e), like true Maſters of
liis Mother ask'd a Favour which was Sophiſtry and Guile, fware to the Trojans, That they
likely to turn to the prejudice of his Go
Govern- would ſtand by the Agreement they had ſettled with
ment (4), 1 Kings II. 20, &c. There is a very re Antenor : By which Agreement they meant the Ar-
markable Story in Diodorus Siculus (6) which bears ticles for betraying the City, which Antenor and
fome relation to the point now under
Debate: "Xer- they had adjuſted. As for that Form us d in ad-
xes being Warınly engagºd-in profecuting a new miniſtring Oaths amongſt the Romans, ex animi ſui
Expedition againſt Greece, deſired Themiſtocles
, ſententia, according to their Judgment and Opinion,
a who was then in his Court, to be his Guide and it is 110t ſo to be expounded, as if Oaths receiv'd
« Director in the War. Themiſtocles conſented, up- all their Force and Validity from the Notion which
* on condition the King would ſwear, never to at- Men form'd of them in their Mind; but to ſhew,
tack the Grecians without him. A Bull
' being fa- thoſe that ſwore ought to perform fo folemn an AC
* crifica, and the Oath taken with the uſual so- in the moft ferious Manner, and with the inoſt real
« lemnitý, Themiſtocles took a Cup of the Blood, Intentions (1), not in the way of Diffimulation, of
and drinking it off, immediately expired. And Fi&tion, or of Sport. This too was an uſual Form of
by this means diverted Xerxes from his Reſolution. the Queſtions put by the Cenſors; as for Inſtance,
But here if Xerxes had no other Reaſon to alter his ex animi tui fententia babes uxorem? Have you a Wife,
Purpoſe, he need not have been deterr’d by his anſwer me according to your real Mind? Which a Roman
Oath, in which Themiſtocles's Life was a Condition Knight once anſwering with this Cavilling Jeft, I
fuppos’d; it being no more than if he had promis'd have a Wife, according to my Mind, not according to
that Grecian Captain never to undertake any thing your Mind, incurr’d the Penalty of a Fine for his
againſt his Countryinen, whilſt he liv’d, without indiſcreet Wit. Cicero in his Academical (f) Que-
his Counſel and Alliſtance. So that upon his Death, ftions, endeavouring to prove that human Know-
the force and virtue of the Oath died with him (5). ledge can reach no higher than Probabilities
, in a
XV. Although the Invocation of the Divine Naine very elegant manner alledgeth this and other the like
in Oaths, is to be adjuſted according the Perſwafi- Cuſtoms as Proofs of what he aſſerts. This is evident,
on of the Perſon who ſwears, yet the whole Propo- ſays he, in the diligent Caution of our Anceſtors, who
ſition ſhall bear that Senſe which he who requires firſt required Men to wear only according to the beſt
the Oath proteſteth to underſtand it in (e). For 'tis of their Judgment; and then told to Ithe Party who
on his account chiefly that the Oath is taken, and took the Oath, that he ſhould be rendred guilty by it,
not on the Swearer's:
And therefore it belongs to only
, if he knowingly deceiv'd. As likewiſe, when
him too, to ſettle the Form of Words, and he ought they order'd a Witneſs to ſay no more than that he
to do this fo plainly and clearly, as both to ſignifie thought, ſuch or ſuch a Matter, though perhaps he had
how he underſtands them himſelf
, and to bring the ſeen it with his Eyes; and pronounc'd a Faet which the
Swearer to acknowledge that he apprehends his worn Fudges had examin'd and determin’d, not to be,
Meaning. And to conclude the Buſineſs, the Swearer but only to feem, or to appear thus or thus. "Tis a
is to pronounce the ſame Words openly and diſtinct- Remark of the fame Author (2) 1. That what is
ly, fo as to leave no poflible Room for Cavil or Sworn agreeable to the Mind and Intention of him
;
ſpeaks of (d), in vain declined to attempt the Guilt but what is not, may without Perjury be omitted. That
2. 24.
(4) The Promiſe was nor granted with an Oath. Solomon did not ſwear, till having refuſed his Mother's Petition, he on the
contrary declared, that what Bathſheba came to do, ſhould coſt Adonijah his Life. The Rigour of this Prince is very had to be
excuſed, being againſt his Brother, whoſe evil Deſigns he might have prevented another way. See Mr. Le Clerc upon · Kings
,
(5) The Roman Lawyers ſay, That if a Man has promiſed with an Oath to appear before a Judgment.Seat, and is prevented
by ſome lawful Reaſon, he is not perjur’d. Qui jurato promiſit judicio fifti, non videtur pejeraffe, fi ex concesſa causa hoc deſeruerit,
Digeft
. 1 2. tit. 8. Qui ſatis dare cogantur, &c. Our Author here criticizech upon the Reflection which Homer makes upon the
Oath of He&tor, by which that Trojan Hero had promiſed to Dolon to give him the Horſes and Chariot of Achilles. Kai smogson
a to ura, &c. He ſwore and was perjur’d, ſays the Poet. But our Author ſays, He&tor (wore only under this Tacit Condition,
If we take the Horſes and Chariot, and if you return from the Battle ſafe and found. So that he underſtands by the Wordée
opxo, perjur'd, an Oath that did not take effect.
Mr. Barbeyrac's NOTES on 6 15.
(1) Our Author quotes this from his Memory, and does not tell us where he had it. He has it from Aulus Gellius, where he
of whom he ſpeaks was not a Roman Knight, but
a captious Fellow. Moreover, the laſt Ediçion of Mr. Gronovius reviewed by
the MSS. relates the jeſt after a different manner, ſo that it had nothing offenſive for the Cenſor to puniſh, for he that made this
unfeaſonable Jeſt ſaid only, that he had a good Wife, but not to his Humour, for his Anſwer was, Habeo equidem, inquit, uxoretig
Sed non bercle ex animi mei sententia, vid. Cicero de Orat. I. 2.c.64 & Juft. Lipſius Var. Lect
. 1. 1. C. I. In fine, a famous Law-
yet very unfitly concludes from this
Paffage of A. Gellius, That Women were ſubject to the Reproof of the Cenſors. See Mr. Tho-
mafaus's Diſcourſe, De Judicio Seu Cenfura morum, c. 2. $12, &c.
(2). Cicero's Latin is
, Quod enim ita juratum est, ut mens conciperet fieri oportet, id (ervandum eft quod aliter, id fi non fece-
moftro, id non facere perjurium est. Grotius and our Author have followed the ordinary Editions in the first Words
, which import,
wat mens deterentis
conciperet fieri oportere. But ſeeing the Manuſcripts acknowledge che Word deferentis, which is not there, as
Aldus Minucius teſtifies, the fequel of the Diſcourſe inews plain enough, as I think, that ic is a Gloſs which has been thruſt into
the Text by forne body that did not attend to Cicero's
Reaſoning. The Example which is found in the following Words will
not permit us to doubt but that he treats of him that ſwears
, and not of him that impoſeth the Oath. A Corſaire svithoue doubc
intends to pay what he has promiſed with an Vath, or why doth he livear? "Tis then mens jurantis, and not mens deferensis,
in this place.
(a) Matth. 14. 6, &c.
() Lib. 5.
(6) Lib. II C. 58 p.48 A. Edic, Rhodom.
0) Lib. 46. 47 sub fin. dl. 3 c. 29 de offic.
(c) See Grof. I. 2 c. 13 . 3 , 2,
(d) Hiſt. 4 c.41.
is,
134
Of an 0 AT H.
Book IV.

2011 18
14
and Persractice,) according to your real Sentiments ſuch an Oath ſome other Party obtain'd a perfect
ben with it. But when the Oath hath given no
is, if a Man happens to miſunderſtand the Party in the manner we before deſcrib’d. For it is
who puts him to his Oath, ſo as to ſwear in a diffe- much more to invoke God as a Witneſs, in the
rent Senſe from what the other conceives, he is not midſt of thoſe Sacred Rites; which, not without
perjur'd by Non-performance : For ſince the other ſome kind of Pious Horrour, ſignifie the Divine
Perſon had a contrary Meaning, he muſt be ſup: Preſence ; than to write ſo many Words on Paper
,
pos’d not to have accepted of this Propoſal made which never bluſſbeth. And 'tis a Material Conſide
upon Oath by the Juror; and without Acceptance ration, that Evidences thus given in Writing at a
there ariſeth no Obligation from a Promiſe. 2. For diſtance, are by the Lawyers themſelves termd Te-
it is not, as Tully goes on, always Perjury to Jwear ſtimonia coca (a), Blind Teſtimonies.
what is falſe ; that is
, to affert by Oath thro ſome XVII. Laſtly, It is a Queſtion uſually diſcuſs’d
Miſtake what is really otherwiſe; But you are then on this Head, Whether or no, and how far an Heir
perjur'd, when you fail in making good what you is bound by the Oaths of the Perſon to whom he
Imore, ex animi tui fententia, (as the Form is in our fucceeds? In which Caſe this is certain, that if by
common
) a
dioni mood SC0201
XVI. It hath been a Diſpute amongſt ſoine of our or in part out of the Goods of the Deceas’d; then
which ſhould bind the abſent Party? On which one a perfect Right, and the Obligation it ſelf was
Point our Judgment is this : As a Perſon may in his founded barely in the Piety, Fidelity or Conſtancy
Abſence contract an Obligation, fince Conſent may of the Juror, then it's plain that the Heir doth not
as well be ſignify'd in Writing, as viva voce; ſo ſtand bound, inaſmuch as he doth not repreſent a-
there ſeems no Reaſon why an Oath likewiſe may nother, as to thoſe Obligations which terminate ul-
not be expreſs’d in the ſame manner. Which, alter timately and ſolely in the Perſon Deceas’d. Thus
it hath been once ſolemnly recited, ſhall as fully for Inſtance, if a Man hath ſworn or vow'd with
oblige, as if the Party were there preſent, and had an Oath, That he will faſt once every Week; That
taken it by word of Mouth. Yet before it hath be will continue in Celibacy five years; or, That he
been rehears d in this folemn Manner, it ſeems al- will undertake a Pilgrimage to the Holy Land; if he
lowable to revoke it ; ſo that a Perſon who retracts die before he hath fulfill'd his Engagement, his Heir
an Atteſtation which he made upon Oath at a Di- ſhall by no means be tied to perform it. But the
Itance, before it be convey'd to the place for which Caſe is different, if a Perſon hath been Hei: ex-
it was deſign'd, ought not to be look'd on as per- preſly under ſuch a Condition. So likewiſe if a
jur’d. But in the common Proceedings of Courts Man hath fworn, to give an Hundred Pounds yearly
in this Affair, there ſeems to be ſomewhat not ve to the Poor for Ten Tears to come; and dies before
ry proper or convenient, as that the Proctors who the time is expir’d, his Heir ſhall be free from the
read the Inſtrument, uſe ſuch a Poſture and Cere- Obligation ; unleſs the former Grant conferr’d on
mony, as if they were to ſwear in their own Name, certain Perſons a Right of demanding the ſaid Sum.
and that, for fear they ſhould ſeem to be themſelves For he who makes a Promiſe, and doth not withal
obliged, they change the concluding Clauſe of the give the Party a Right of challenging it as his Due,
Oath after this manner, So help him God. Whereas intends to engage his own word only, and not his
it might be e fufficient barely to recite the Oath of Eſtate; and therefore upon his Deceaſe, the Obli-
the abſent Party, as it lies
in the Writing. How- gation ſhall not in the leaſt affećt his Poffellions
ever, ſince it hath been with good Reaſon, or his Heir, unleſs an eſpecial Injunction to their
ceiv'd Cuſtom of moſt Nations to render Oaths more Purpoſe were added in the Will. Grotius (b) ob-
Sacred and Auguſt by the Ceremonies of Religion, ſerves farther, That if ſuch a Promiſe confirmºd by
and by ſome Sign of Devotion, to ſet the Awe and Oath was in ſome refpečt Faulty, ſo as to produce a
Reverence of the Divine Majeſty more ſenſibly Right, not in regard of Man, but of God only, then
before the Eyes of the Juror, as by Sacrifice, by the Heir shall not be charg’d with the Performance
.
approaching to the Altar, and the like Acts of Wor- Which we allow, if it be ſuppos’d that the Party
fip; therefore we are Opinion, that if the Matter who ſwore, reſolv'd either out of a Point of Honour,
be of very important Concern, the abſent Party or a Scruple of Conſcience, to fulfil ſuch a defective
ought to be put to his Oath, with the uſual Solem- Oath, which he might, if he pleas’d, have utterly
vity, in the place where he lives; eſpecially ſince evacuated, by alledging fome Deceit, or ſome Fear
the Caſe requires a Corporal Oath (2); which Name unlawfully caus’d. For otherwiſe the Queſtion is
we cannot give to an Oath expreſsd and convey'd inſignificant ; we having above ſhewn that the Ju-
up
his
ai vissa stola de venit si voln Mr. Barbeyrac's NOTES on 6 16.
(1) Our Modern Law cal's it, jurare in animam alterius. Mr. Hirtius recites here a Paſſage out of a Letter of William the
Good King of Sicily to Henry II. King of England, written in 1176, where that Prince ſays, That all his Time it has been a Cuſtom
in his Realm and among his Anceſtors, not to ſwear himſelf, but it is all one to life up our Hand, or cauſe another co life
Hand for us in our preſence. Quum únum & idem putemus Sacramentum, quod vel manu propria fit, vel in anima jubentis do preo
fentis juratur. That the Ancient Romans ſometimes ſwore after this manner, appears by an Example which Mr. Hirtius alledges
of an Oath which Anthony made to Pompey by the Ambaffadors he ſent to him, Dion. Hiſt. Lib. 49. Tit. Livius alſo tells us, That
C. Valerius Flaccus not being able to ſwear himſelf, his Brother L. Valerius Flaccus ſwore for him by the allowance of the Se-
nate and People, who eſteem'd ſuch an Oach good, and for the advantage of him for whom it was made. Plebeſa; ſcivit, ut pelle
inde eſſet, ac fi iple Ædilis juraffet, Lib. 11. c. so. ult. See what the Expoſitors of the Civil and Canon Laws ſay about Oaths
taken by a Proxy.
*(2) Juramentum Corporale, or, as it is called in the Code, juramentum corporaliter proſtitutun. See the Law cited about this
Mareer, $ 11. f. 3. and 1. 2. tit. 43. Si minor ſe majrem, &c. leg. 3. in fin. Tis an Oath that a Man takes himſelf with che ordi-
nary Formalities.
(a) Vid. leg. Wijogoth. l. 2. tit. 4.C. 5. (6) Lib. 2.6. 13. 1. 17.
solat
ror
Chap. II.
Of an OATH
135

Perſon; but the Deſign of the
for himſelf is not in this Cafe effectually oblig’d. Brutus, of old, impos’d on the People to the con-
But what if the Heir neglects to perform a Promiſe trary. Which will appear yet more evidently, if
or Covenant under Oath made by the Deceas’d, we conſider, that this Oath conferr'd a Right on ņo
ſeems reaſonable to anſwer in the Negative. Forly to lay a Reſtraint on the Liberty of their Will,
that which in ſtrict Speech we call an Oath, or the that they might not think of reſtoring that Form
Invocation of the Divine Vengeance fuperadded to of Government which had prov'd fo Unfortunate
a Common Engagement, paffeth no farther than the to them. By which means they might indeed bind
Perſon of him who Swears (1). Since we cannot themſelves, never to ſet up a Monarchy in Rome ;
ſay that the Heir put a Slight on the Reverence due at leaſt, ſo long as the publick Safety could be
to the Divisie Majeſty, becauſe it was not he who preſerv'd without it. For in this caſe the very Per-
call?d God to Witneſs: And therefore he ſhall be ions who took the Oath, muſt be ſuppos’d to be re-
Chargeable only with breach of Truſt. It alters the leas’d from it; becauſe then the Neceilities of the
Matter, if the Oath were taken by a whole People: State, which is conceiv’d incapable of ſubſiſting
It being the Judgment of many, That a People without a ſingle Governour, render the Matter or
whilſt they remain ſuch, are by their publick Oaths Subject of the Oath Unlawful. But their Potterity,
put under perpetual Obligation. Which Opinion unleſs they repeated the Oath, could not be tied by
nevertheleſs ſeems to us not altogether Clear and it: as well becauſe their Anceſtors had no Authori-
Deciſive: For an Oath and the breach of it affects ty thus to impofe arbitrarily upon them; as becauſe
only the Natural Will, or the Will of particular the Conſent of Poſterity was wanting, as at preſent
Men, and reacheth the compound Body, or Moral we ſuppoſe. Nor is it any Argument to the contra-
Perſon, only by Communication from each Indi- ry to urge, that a Nation is reckond the ſame, tho?
vidual. The People therefore, as a Moral Perfon, the particular Members who compos’d it are all
cannot invoke the Wrath of God upon them- chang'd. And that therefore the Acts of paſs’d Ge-
felves; but this is done by thoſe fingle Natural Per- nerations ſeems juſtly enough to be attributed to
fons, of whom the Community was
made up. And the preſent. For the Acts of former Ages can then
conſequently upon the Violation of a Promiſe or only be imputed to the latter, when ſome other Par-
Pact made by Oath in the Name of the State, thoſe ty obtain’d any Right as the neceſiary Conſequence
Perſons only ſhall be guilty of Perjury who Cor- of thoſe Acts. But in ſuch things as reſult to the
porally fwore to the Buſineſs
, if they are now con- whole Body from the Actions of particular Mem-
fenting to the Omiffion of it; but the reſt ſhall be only bers, the Deſcendants in a People do not always. re-
branded with the Mark of ordinary Perfidiouſneſs (2). preſent the Progenitors. As though a People have
And for this Reaſon we ſhould be unwilling to ac- been heretofore eminent for Martial Glory , yet
cuſe the Spartans of Perjury, in receding, after ſo their lazy and degenerate Race can
claim no Share
many Ages, from Lycurgus's Inſtitutions : Or, the in their Triumph, or in their Fame. Yet ſtill the
Romans, in caſe they had inveſted the Caſars with cafe would be quite otherwiſe, if ſuch an Oath as
the Title of Kings, notwithſtanding the Oath which we are ſpeaking of hath been ſolemnly renewed by
7100091
(2) Mr.
Mr. Barbeyrac's NOTES on § 17.
(:) Bodin, de Republ. I. 5.c. ult. concludes hence very unfitly, Thar Princes are not obliged to ſtand to the Treaties made by
their Predeceffors, though confirmed by Oaths, as Grotius has obſerved, De Jur. Bell. & Pac. 1. 2 c. 16 16 n. 4. For, Fays be
very well
, Nothing hinders but that the Promiſe may oblige the Heir, though the obligation of an Oath be purely Peflonal
.
Upon which Gronovius affirms, That a Prince and his Succeffor being one Perſon, becauſe they both repreſent the People, an
Oath binds the Succeflors; but what I ſhall ſay with our Author in the following Note, will make it appear chac the Repreſen-
tation falls only upon the Engagement, and not upon the Oath that attends ir.
Hirtius declares here againſt the Nocion of our Author, and much depends upon the Authority of Grotius, which yer
ſeems to make nothing for him. For this Great Man treating upon the Agreements made with rebellious Subjects, ſays, Lib. 3.
6, 19.9 8. n. 1. That they may be confirmed by Oath, not only by the King and Senate, but alſo by the Body of the State, as
Lycurgus and Selon made, the one the Lacedæmonians, the other the Athenians, to ſwear to obſerve their Laws, and, THAT
THEIR OATH MIGHT NOT LOSE ITS FORCE BY ANY CHANGE OF PERSONS, they order'd it to be renewed every Year.
In this laft Caſe, ſays Grotius, we can't break our Word, when the Publick Good requires it
, for the Eftare may recede from içs
Right, and the Terms of the Treaty may
be ſo clear as to admit of no Exception. Either I am much miſtaken, or theſe words
fuppoſe the clear contrary to what Mr. Hirtius infers from them, as appears from thoſe words which I have written in Capital
Letters, eſpecially it we compare them with the places quoted in the Margin of this Paragraph, viz. Grot. 1. 2. C. 13. 8 6.& 1. 3.
C.19.55. In ſhort, Grotius does not ſpeak at all of the Poſterity of them with whom the Treaty was concluded, at leaſt
, he
will
have us know that the Obligation of an Oath has as much force upon Pofterity, as the Promiſe to ir anne xed.' The Reaſon
of Mr. Hirtius is no whic ſtronger. He ſays, a People may be ſworn, as a People. Be it ſo, yet the People which is to day is
not the ſame it was an hundred Years ago, it is only thought ſo, by reaſon of the Perpetual Succeſſion of New Citizens, who fill
up the place of thoſe who are dead, or have left their country, and the Continuation of the Government. So that he comes
under the real Engagemenes of his Anceſtors, by which he hath acquired a true Right, and which are by Nature perpetual, and
nor into that which muſt be looked upon as purely Perſonal. Now ſuch is the Oath here. In a word, the People that is to day
hath no ether relation to the people that liv d an hundred Years ago, than an Heir has to a dead perſon, whoſe Promiſes con-
firmed by an Oath (as Mr. Hirtius holds are co be performed, noe upon account of the Oath, bue upon the account
of the Pro-
miſc
. For an Oath is only a thing accidental, a fimple Confirmation of an Engagement, which were not leſs
kind of a Religious formality, which hath no other effect, than to affure him more of our Fidelity, with whom we reſolve to
keep our Word. The Example which Mr. Hirtius brings of the Iſraelites, who about 150 Years after the Death of Joſeph made
good what that Patriarch had made their anceſtors to twear, viz. to carry his Bones out of Ægypt into the Land of Promiſe.
This Example, fays I, proves only, that the Iſraelites did think themſelves obliged to perform the Promiſe of their anceſtors,
but there is nothing that inſinuares, that if they had not done it
, they had been guilty of Perjury. We may ſay the fame of the
Murder of the Gibeonites
, ſuppoſing that Saul did it under a pretence that the Oath of foshua was null. But Mr. Le Clerc has
Well obſerv'd, that that Prince
had another Pretence. See 70%
. 21.1, 2.. As to Oaths which give no Right to a Perſon, as when
2 People having made a Law, ſwear
ever after to obſerve it, it is clear that theſe are Vows which have no Force any farcher
than as ve may preſume that God accepts them, ſo that as no Perſon can oblige himſelf, but as he judges it for his advantage,
afterward abrogate ie if they find je prejudicial to the End for which it was eſtablithed; for that exception is included in all En-
angements which concern them only that enter into them, and we may believe that God no farther requires the conſtant
formance of Vows. See Lib. 1. c. 6 $ 6. and Lib. IV. Chap. VI. $ 15. a foregoing.
Pofterity,
per

136
Of an OAT H.
Book IV.
Pofterity, each particular Man engaging for himſelf. XIX. It hath been generally the Cuſtom to make
But in regard to theſe publick Obligations, Sopho- uſe of Promiffory Oaths in publick as well as in
cles's Advice (3) might paſs for a general Rule; private Cauſes, and perhaps more frequently than
was neceſſary (1). Concerning which, Authors have
Let notbing thus be ſworn beyond recall;
obſerv'd, That ſome of them are taken to intro-
For Men are frail, and human Thoughts will change. duce an Obligation, and are calld Promiſſory in
Antigon. p. 230. Specie : Others are added to confirm fome Act al-
ready in Being. Which Diſtinction is not to be
And 'tis no trivial Remark that which Joan. La- underſtood as if every Oath were not acceſſory to
bardée makes in his Hiſtory of France (a), That the another Obligation ; but becauſe ſome Promiſes in
Leagues of Monarchs are more firm and ſacred, than clude an Oată in the Compaſs of the faine Propoli-
thoſe made by Republicks, or Popular Governments: tion; as when one ſays, I ſwear to do ſo or join
Becauſe when one Perſon only engageth his Faith, he is your account : Whereas many times the principal Buſi-
ſtruck with a more Religious Concern fºr the Obſerva- fineſs is expreſs’d in a different Sentence from the
tion of it, than “can affect each Man in a Multitude, Oath which confirms it. Now 'tis rightly obſervd
where every one conſiders that but a little of the Pub- by the Expoſitors of the Roman Law, and is no
lick Faith, if any at all, comes to his ſhare : By which more than we have already prov'd, That all Oaths
Means all are eaſily induc'd to recede from the com are void which Men apply to ſtrengthen any Buſi-
mon Engagement.
neſs in it ſelf unlawful or vicious (2), and which
XVIII. The Two Principal Eyes to which Oaths tends either to the impairing of the publick Good,
may be, and commonly are applied, are, either to or to the Prejudice of a Third Perſon, though at the
ſtrengthen and confirin a Promiſe by ſuch a folenn ſame time there are ſome ſort of Tranſactions which
Act of Religion; or to open a way to the clearing are, of themſelves, in Civil Cogniſance, Invalid,
fome Fact, which is at preſent doubtful and cannot and yet are rendred good and effectual by the Ad-
be conveniently made out any other way. And dition of an Oath (3). The reaſon of which is
'tis in this Senſe we ought to interpret Ariſtotle's becauſe they are not defective in their own Nature
,
Definition of an Oath, when he ſtiles it (1), an un- but only capable of being caſily turn’d to the harm of
demonſtrable Aſſertion made with an Appeal to the the Party, who thus by ſwearing to them ſhews his full
Divinity; that is, an Afleveration, not demonſtra- Conſent and Approbation. For ſince any Man may
ted by any Arguments, but credited purely on Ac- wave a Privilege or Favour not deſign’d for his Be-
count of the Piety and Religion of the Swearer. nefit, he who thus refuſeth to lay hold on the Inva-
For when the matter may be prov'd by Evident and lidity of the Affair, and peremptorily proceeds to
Convincing Reaſons, 'tis not fair or regular to have the confirming it by an Oath, is preſum'd to have
recourſe to Oaths. On the other hand, when Oaths conſider'd very ſeriouſly whether it makes for his
are to decide a Cauſe, no ſearch is made after other Intereſt or not.
Proofs (2). Why Oaths are admitted only in deter XX. Aſſertory Oaths or ſuch as are applied to the
mining matters of Fact, not matters of Law or Deciſion of Controverſies, not to be terininated by
For we cannot ſwear Other Proofs, are taken either by the Party con-
whether a Thing be done well or ill, but bare- cern'd in the Buſineſs, or by a Third Man: Thoſe
ly whether it were done or not done. Which who ſwear to the Facts of others, are term'd Wit-
being once known; the Court may proceed upon neffes (1), whoſe Honeſty, and Fidelity, unleſs by
the Points of Right and Law, by infallible Eviden- ſome probable Token render'd Suſpicious, are with
ces and Rules. "As for the Oath which the Judges Juſtice allow'd a very great Weight and Sway ; it be-
themſelves take, it is not Affertory but Promiſſory; ing well ſupposºd, that no Man of any Religion or
for they engage by it, That they will give Sentence in Goodneſs will expoſe himſelf to the Divine Venge-
the Caſe before them, as Juſtice and Equity ſhall di- ance, for the Affair of another Perſon: Yet is it a wife
rect. And this Diviſion of Oaths into Promiſſory Conſtitution in moſt Civil Gavernments, not lightly
and Aſſertory, may comprehend them all, with re to admit Perſons to give Evidence in the Cauſe of
gard to the two Ends or Uſes but now mention'd. others, engag’d to thein by nearneſs of Birth; which
(3) The Greek is, "Avas, Restoran dives' á Trölla tayo
Yeder 28 vi zivota tlu grapeli.
Mr. Barbeyrac's NOTES on 6 18.
(1) The Greek is, 'Ogxós ész Meta Joias na ega ýtsas pdors ára tódex10.
(2) See § 21, 22, following.
Mr. Barbeyrac's NOTES on 19.
(1) Theſe ſort of Oaths are either unjuſt or rath for the moſt part. To make them innocent, we ought moſt certainly to
know that the Deed or omiſſion to which we are obliged, is allowable or innocent, whether it be a thing that depends on us,
and is in our power; and we ought to examine whether it will not bring us into ſome danger, though inconfiderable, of offend-
ing God, and breaking his Law, and if there be a neceffity of Swearing. See the Treatiſe of Mr. Placette, 1. 2. c. 4. & 25.
(2) The Words of the Law are, Secundum itaque predi&tam regulam, qua ubicunq; non fervari fa&tum lege prohibenti cenfuimus,
certum eft nec fipulationem hujuſmodi tenere, nec mandatum ullius eſse momenti, NEC SACRAMENTUM ADMITTI, Cod. l. 1. cit. 14.
De Legibus, doc. leg. 5. § 1. See alſo the Digeſts, l. 2. c. 14. De Pa&tis, leg. 7. 816. & 1.30. tit. 1. De Legat. leg. 113. $ 4.
(3) 'Tis a Maxim of the Canon Law, That every Oach ought to be performed, which can be kept without any prejudice to
our Eternal Salvation. On this accopne the Engagements of a Woman, the Promiſes of a Minor, and other Acts which are null
by the Civil Law, are valid by the Pope's Sentence, upon the account of the Oath which is joyn’d with them. See the Decretals
,
1. 2. tic. 24. De furejurando, c.9. 28. & § 11. n. 3, 4. above. But Mr. Thomaſius obſerves with reaſon in his Fundam. Fur. Nat. do
Gent. 1. 2. c. 9. $9, 6c That it is contrary to che Nature of an Oath, which, as our Author ſufficiently proves, is only an Aco
ceflory to our Engagements, and that the Roman Clergy would by it uſurp a Power to correct the Civil Law, and the ſentences
of the Judges, as alſo hinder that the Promiſes and Donacions made to the Church, ſhould not be weaken' by fuch juſt Ex-
cepcions.
Mr. Barbeyrac's NOTES on S 20.
(1) See l. 5 c. 13 S 9. following.
(a) Lib. 6 p. 329 Comp. Anton. Matth. de Crimin. tit. de Perjurio, n. 15.
is

CHAP. II.
137
Of an ( ATH.
is ſo ſtrong a Motive to Affection and Love: It Contract or Agreement which ſhall be Burthenſome
being conlider'd that ſuch Perſons might eaſily fuf- to me (4). Whereas
, in Court, when the Oath is of
fer their Paſſion to gain the Afcendant of their Re- fer'd by one Party, the other ſhall not decline it,
ligion (2). Nor was it altogether without Reaſon, unleſs upon very weighty Reaſons ; but ſhall either
that the Romans of old requir'd Witneſſes of Wealth take it himſelf
, or return it to his Adverſary. That
and Subſtance, eſpecially in difficult and impor- is when the Judge conceives the Claim not to be
tant Cauſes (3).
Groundleſs, and yet there is no full Evidence of the
XXI. But a Man may likewiſe in his own Bufi- Matter ready at hand; then if one of the Parties
neſs, when 'tis his Intereſt to do ſo, ſolve the Dif- thinks fit to refer the Buſineſs to the Conſcience of
pute by Oath, and this either by Agreement of the the other, the Judge may fairly look on him as Con-
Parties (1), or by order of the Judge: For when a vict, who neither dares in this Religious manner
Controverſie ariſeth concerning fome Due demand. to deny the Debt, nor yet, in Return, challenge
ed by one Man, and denied by another, the Clai- the other to affirm it with the like Solemnity. For
mant may challenge the other Party to his Oath, this ſtarting and boggling can be attributed to
promiſing to let fall the Suit, if he fwears the thing nothing but to his inward Conſciouſneſs of the
not to be owing which is requir’d: And if the Per- Debt; becauſe if he pretend to fear that Men ſhould
fon thus challeng'd be doubtful whether he can ſwear think he ſwears only on the account of Gain, 'tis
clearly and peremptorily to the Matter, as ſuppoſe eaſie for him to avoid this Suſpicion, by returning
the Debt was transferred to himn from another, then the Oath to the Claimant ($). if he is afraid that
he may return the Oath to the Claimant, engaging the other will be perjurd (6), why doth nọt he
to pay if he ſhall fwear it is his Due (2): And this ſwear himſelf? Yet Plato in his Laws (a) admits of
giving and returning of the Oath between the Par- an Oath, only in Suche Caſes where, according to
ties, may be made
either in Court, or out of Court; the Judgment of Men, no Advantage can be got by
yet with this difference, that out of Court I am for wearing ; but where any Profit may be reap d from
not neceſſarily oblig'd to take the Oath when of- the Perjury, there he orders that the Procejs all be
fer'd me, becauſe it implies a Contract (3); by manag’d without Oaths.
means of which I ſhall, upon my refuſing, become XXII
. And laſtly, In ſome Caſes, when other
a Debtor : But now no Perſon, who is not inveſted Proofs are not ſufficient (1), the Judge may put the
with an Authority over me, can compel me to a Party to his Oath, though he do not deſire it; and
(2) The Latin of the Digeſts is, Teſtium fides diligenter examinanda eft. an amicus ei fit, pro quo teftimonium dat. Dig.
1. 22. tit. s. De teſtibus, leg. 3. See the following Law...
(3) An locuples, vel egens fit, ut lucri cauſa quud facile admittat, ibid.
Mr. Barbeyrac's NOTES on $ 21.
(1) So the Roman Law directs, Maximum remedium expediendarum litium in uſum venit jurisjur andi religio: qua vel ex pa&tione ip
foram litigatorum, vel ex auktoritate fudicis deciduntur eontroverfia, Digeſt. Lib. 12. tit. 2. de Jurejurando, &c. See Daumat's Civil
Laws in the order of Nature, Part 1. 1. 3. tit. 6. Sect. 6.
(2) The Roman Law ſpeaks thus, Alterum itaque eligat reus, aut folvat, aut juretaDatur dutein et alia facultas reo, ut,
ſi malit
, referat jusjurandum ; e fi is, qui petet, conditione jurisjurandi non utetur, f udicium ei Prætor non dabit : &quiffime enim hoc
facit, cum non deberet diſplicere conditio jurisjurandi ei, qui detulit, Digeſt. ibid. leg. 34. 80, 7. Manifeſte turpitudinis de confeffio.
nis eſt, nolle nec jurare, nec jusjurandum referre, ibid. leg. 38.
(3) 'Tis a kind of Tranſactation ſay the Roman Lawyers (very well) Jusjur andum (peciem tranfa&tionis continet, Digeſt. ubi ſupra,
(4) But when we have once accepted an Oath, we can't refer it. Jusjurandum, quod ex conventione extra judicium defertur; re-
ferri non poteſt, Ibid. leg. 17. And in the very moment that the Oath is taken, the controverſy is at an end, ſo that either of
the Parcies cannot retort ; whereas, when an Oath is taken by the order of the Judge, we may require
a Review of the former
Proceedings, averring, that he hath new Matter to produce, and that he will only inliſt upon that. Admonendi ſumus, interdum
etiam poſt jusjurandum exa&tum permitti conſtitutionibus principum, ex integro cauſam agere, fi quis nova inſtrument a ſe invéniſe dicat,
quibus niinc ſolis ufurus fit
Quod fi alias inter ipfos jurejurando tranfa&tum fit negotium, non conceditur eandem caufam retractare;
Ibid. leg. 31. See Mr. Titius's Oblervation in Lauterb. 338
(5) Nevertheleſs, Plato, as our Author obferves here, allows not an Oath in all affairs of Intereft
, and where Perjury may be
an advantage in the Judgment of Men. See l. 12. of the Laws of this Philoſopher, p. 948. Edit. Steph.
(6) This is a nice queſtion, whether an Oath may be required of a perſon, when we have reaſon to believe that he will ſwear
fally? We ſpeaka noc here of a Judge, for as Mr. La Placette
ſpeaks very well in his Treatiſe of an Oath, l. 1. C. 13. The
Laws in certain Caſes order an Oath to be adminiſter'd, and he muſt conform himſelf to them withour troubling himſelf abouc
the manner how they who take the Oath, can do it
. They alſo ſuppoſe, without doubt, that ſome conſiderable Intereſt is con-
cerned. This being allow'd, I am of Mr. Thomaſius's Opinion, who ſays, that this Queſtion is more curious than profitable, In-
fit
. Juriſpr. Divin. I. 20. 9. ' For we cannot be certain that any one reſolves to forſwear himſelf ; for though he have often
ſworn fally,
he may have repented, and may reſolve never again to commit ſuch a foul Crime deliberately; but it he threatens
to do it, we may believe, that he does it, that we may not put him upon ſwearing. I may add, That there are Men who are
inclinable enough to do great Wickedneſſes, and yet dare not ſwear, either through ſome Tcruple of Conſcience, or through i
know not what monſtrous prerence of Piety, which they make after their way, tho they are tree, as they think, to accommo-
date themſelves to another's Intereſt as far as they can without falling into ſuch enormous Crimes as incenſe the Deity. Further,
is willing to clear himſelf by Oath, is it not almoſt the fame thing, as if he had twora fålly, ſince he is willing to do it? Mr.
La Placette owns, that what ſuch a perſon adds to his horrible diſpoſition by ſwearing actually fallly, is ſo ſmall a thing as is noć
to be regarded, yet he determines, that
an Oath ought not to be adminiſterd in ſuch a Caſe, for fear of provoking God's
Anger,
and offending our weak Brethren. But the fear of Scandal does
not indiſpenfibly require that a Man ſhould loſe his Goods with:
out trying all ways poffible to recover them, if it be a thing of Conſequence, as we ſuppoſe here it is. Beſides, the Scandal is
leſs, if we declare the Reaſon why we will have the Party tworn. As to God's Anger, that is not ſo much excited by the ouc-
ward Act, as by the inward Difpofition, which in this caſe is ſuppoſed full and entire, and is looked upon as the Act.
Mr. Barbeyrac's NOTES on $ 22.9
(1) In bone fidei contra&tibus, necnon [etiam] in cæteris caufis; inopia probationum, per Judicem jurejurando cauſa cognita res decidi
oportet. C. Lib. 4. 1. 1. De rebus creditis jurejurando, Leg. 3. This Law is ordinarily quored, as if it meant that a jadge may ada
miniſter an Oath when there is an halt proof on the side of one of the Parties, as for Example, but one witneſs, who may
not be credited, though he be a Senator. But Mr. Noodt has we! The'wed in his Probabilia Juris; 1. 3. c. 6. thac inopid probationum,
1. C.want of Proofs, is when there is ſuch Proofs on both ſides, that the Judges know nor how to determine. For when a
little matter would weigh down the Balance, we ought not rathly to adminiſter an Oath. See Digeft, l. 12. tit. 2. leg. 31, where
(4) Lib. 12. p. 937. C. Edit. Wech. Fein.
# $
this
leg. 2.
2102
is, in dubiis caufis.

138
Of an ( ATH.
Воок IV.
.
this either that he may poſſeſs himſelfof fome Right, Authors, who are of opinion, that perſons in theſe
or clear himſelf from the Suſpicion of fome Fact
. Circumſtances, may be abſolv'd from the Sin of Per-
But here it muſt be obſerv'd, that 'tis never the jury, by ſubmitting to the Penalty of the Law. For
Cuſtom to offer theſe Oaths, when either Capital Pu- unleſs when the Obligation was firſt entred upon
,
niſhinent, or any grievous Inconvenience, muſt be it was exprefly left to the choice of the Perſon, ei
the conſequence of confeſſing the Truth. For, be- ther to perforin what he promis’d, or at a certain
ſides, that it looks very hard to bring a Man into Price to purchaſe the liberty of doing the contra-
fo dangerous a Neceſſity, on the account of an un- iy (b), the Puniſhinent ſhall by no means render
certain fact, as that he muſt either deeply wound him clear from the Crime(1); as we ſhall make out
his Conſcience, or incur fome very conſiderable Da- more at large hereafter. Thus he who hath fuffer'd
mage; little truſt is to be given to an Oath thus a Whipping
for Thievery, is no leſs a Rogue (2)
,
exacted, the Minds of Men being always ready to than if he had never felt the Laſh.
entertain this Hope, That God Almighty may again XXIV. What is uſually canvaſs’d amongſt Authors
be appeas’d, whoſe Mercy even the Perjur'd Sinner about the Diſpenſations, and relaxations of Oaths
is not forbidden to implore! 'Tis a good Remark and of Vows, may be wholly determin’d by the fix-
of Libanius (2), He who deſpairs of all other Means,and ing two Principles or Rules. The firſt, That a Per-
hath but one Remedy left, which is not to be obtain’d ſon, who in regard both to his Actions and his Pol-
otherwiſe than by Lying ; will certainly dare to change feflions, is under the Government of another
, can
one Danger for another ; knowing the preſent Miſchief diſpoſe of nothing to his Governor's Prejudice; and
which is before his Eyes to be unavoidable ; but, as for if any ſuch diſpoſal be made, it ſhall be lawful for
the future Evil
, often flattering himſelf, that he hall the Governor to revoke it. The other is, That he
be able, by Worſhip, Sacrifices, Gifts and Oblations, who is inveſted with ſuch Authority over any Per-
to bribe Heaven into a Pardon. But for an account fon, may, as he ſhall think convenient, retrench
of theſe ſeveral kinds of Oaths, the Writers on the and confine any Rights, which the Party under his
Civil Laws are to be conſulted at large (3). Direction hath already obtain’d; and inuch more
Queſtion ſtill remains to be reſolv’d, ſince it is appears, that the Acts of Superiors are not of fuffi-
uſual in Civil Governments to bind Men by cient force to hinder the Performance of an Oath,
Oaths to the faithful diſcharge of their reſpective ſo far as it was truly Obligatory: That is, an Oath
Truſts and Employments, whether he is always to not defective in it felf, and made about a thing
be deem'd guilty of Perjury, who hath neglected which the Juror may diſpoſe of at his Pleaſure, can-
any one part of this Duty? Where the Controverſie not be diſannull’d by a Superior. Thus the Roman
is not about thoſe Oaths which regard ſome peculiar (c) Senate could not revoke the Oath which Regulus
A&; as, when a Man gives his Evidence, denies made to the Carthaginians, engaging him to return:
a Truſt, forfakes a particular Promiſe, and the like: Though indeed in this particular Caſe, there was a-
(For he who violates theſe, ought, no doubt, to be nother Reaſon; inaſınuch as Regulus was now in a
branded a as forſworn.) But about ſuch in which the Condition of Slavery under his Conquerors, and there-
Party
y binds himſelf to many Things together: As fore the Romans had loſt all their Power and Au-
when Perſons are admitted to any Office, to be dif- thority over him. But when the Subject of the Oath
chargʻd by different Performances. And here there is any Thing or Action falling under the Diređti-
ſeems to be no reafon why we ſhould fcruple to on of the Superior, it ſhall then borrow all its
take the Affirmative ſide, in caſe the Breach was force from the Superior's Conſent, either Tacit or
made againſt Knowledge, and with deliberate Wick- Expreſs; and he may, if it diſpleaſe him, declare
edneſs. Only, that there are different degrees of it Null and Void. Nor is there the leaſt danger
Perjury, as well as of other Crimes. For as he is of Perjury to be fear'd, when an Oath is thus re-
reckon'd leſs guilty, who hath tranſgreſs'd a Law or vers’d. Since the Perſon under Government ought
two, than he who hath at once renounc'd all Civil to have preſuppoſed his Governor's Approbati-
Government, or hath committed Treaſon againfton as a neceſſary Condition. Nor doth the Su-
his Prince ; ſo he who hath violated the whole fum perior fin in thus cancelling, what the other hath
of his Duty, contracts a inore heinous and aggrava- ſworn; becauſe he only exerciſeth his Right in hin-
ting Perjury, than he who hath broken only a dring the Inferior from acting in Prejudice of his
part (a). Nor ought we to give any heed to thoſe
(2) Libanius's Greek is, "Orº 3' ta mer änna eniyasal, es uno dei metai nó? G, őv 8x ist nii tevorire fuori xey. To1&TO Tonga
κίνδυνον ανταλλατόμως κινδύνο" ή και εν οφθαλμοίς άφυκτον ειδώς, υπες και εκείνα πολλάκις αυτόν απατών ως και θυσίαις, και
θεραπείαις, και ευχάις, και ιερείοις
, και καλλι αναθημάτων, συγγνωμόναι αν κατασκευάσει τις θεές» έπειτα σε με την δικήν μίλλει
ηγείται, το και το δεινόν ευθυς εφισάναι ελάττω και η επικουμένης, την έπω παρέσαν κρίνει, κατ' αυτόν και χρόνον
..
(3) Such is the Oath called Furamentum calumnia, or de Calumnia, which conſiſts in this according to the Roman Law, that
boch Parties ſivear when they enter their Action, that
they act honeſtly, (i.e.) the one, that he believes his Demand well ground.
ed, and the other, that his Defence is juſt, and that neither of them deſign to find out Tricks and Evafions to hinder or delay an
equitable Determination. See Cod. I. 2. tit
. 59. De Jurejurando
propter calumniam dando, and the Novel 49. c. 3.8 1. But fince
this Oath is often an occafion of Perjury either to the Plaintiff or Defendant, and fometimes to both, it is with much reaſon
baniſh'd moft Courts. Another fort of Oath famous in the Roman Law is Juramentum in litem, when the value of a Debt is re-
ferred to the Oath of the Creditor, and the Debtor is not allowed the ſame privilege, becauſe he is a perſon not to be credited,
or is guilty of ſome grofs fault
. See Digeſt
. I. 12. cic. 3. de in litem jur ando, & Cod. I.'s
. tit. 53. Mr. Thomafius in his Differtation,
De pretio affe&tionis in res fungibiles non cadente, reprinted ac Hall in 1707, ſpeaks
many curious things on this Subject, and which
may rectifie che Notions of our Modern Lawyers. »
Mr. Barbeyrac's NOTES on § 23.
(1) See Lib. 8. c. 3. $ 4. at the end.
(2) See Lib. 2. c. 9. $ 6. above.
ve
(a) Yet add Sanderſon de Oblig. Jurament, prælect. 3. f. 18. (6) See the Articles of Marriage between Charles Prince of
Wales and Henrietta, in Gramond. Hift. France, B. 16. Artic. 23. (c) See Gros, I. 2. c. 13. 1. 20. n. 1, 2.
juſt

CHAP. II.
139
' Of an O ATH.
juſt Prerogative. And 'tis the ſame thing as to the ken in Adultery with his Son-in-Law, though he
Nullity of the Oath, whether the Superior prohi- had before ſworn never to put her away. The Em-
bits alí Oaths on ſuch certain Subjects before hand, peror declaring, That the Oath could nut be so far
or whether when they have been already inade, he extended, as to reach the preſent Caſe, where the Wife
forbids their Performance. Though, in the former by So Infamous a Crime had rendred her ſelf unwor-
Caſe the Inferior incurs a very heinous Guilt, in thy of cohabiting any longer with her Husband. Af-
thus rafhly prefuming to ſwear againſt the Prohibi- terwards the Chriſtian Emperors very frequently de-
tion. The Father, by the Jewiſh Law, Numb. legated the Bishops to preſide and to determine in
XXX. 4, &c. was allow'd to revoke the ſworn Vows the Affair of Diſpenſations ; that if any Scruple
of his Daughter, whilft under his Direction; the ſhould happen to ariſe, the opinion of their Sancti-
Husſband of his Wife, the Maſter of his Servant, if ty and Goodneſs might ſatisfie the Minds of leſs
they thought Convenient : For otherwiſe, the Par. Intelligent Judges. Yet it is too notorious how ex-
ties here who were to live in Obedience, might by travagantly fome Eccleſiaſticks, and eſpecially he
fwearing and vowing, have render’d the Power of who pretends to be the chief of that Order, the Bi-
their Governours wholly uſeleſs. Nay, Leo Muti- ſhop of Rome (3), have ſtretch'd this Privilege, and
nenſis (a) Reports, That if any perſon had entred on what a Flood of Miſchiefs hath overſpread the Chri-
an Oath or Vow of what kind foever, and afterwards ftian World, from its Abuſe. And indeed, ſince
upon good Reaſons repented of it, and if it did not
we are to proceed by the Principles of Law in de-
lead to the Prejudice of a third Party, the reaſon of termining what kinds of Oaths may be releas’d, and
bis retracting having been produc'd and approv’d, be for what reaſons, I know not why the Clergy ſhould
might by one Rabbin, or three other Men, te abſolu'd. affume more Authority in this point, than the Meni
Another way there is by which the effect of an In of the other Profeſſion.
ferior's Oath may be made depend on the pleaſure And farther, ſometimes when an Oath cannot be
of his Superior ; namely, if the Superior ſo conſti- made void on the ſide of the Swearer, the force and
tute and ordain, that what the Inferior ſhall ſwear, efficacy of it may yet be ſtop'd by the Superiority of
in ſuch a particular Cafe, Ihall not be valid till it the Party towards whom the Oath is directed and who
hath receiv'd his Approbation. And thus in the Ci- obtains a Right upon it; either by taking this Right
vil Law, under the Head
of Oaths, it (V) is inſerted from him, or by forbidding him to make uſe of it
as a neceſſary Caution, That the Right of Superiors in receiving what the other hath ſworn to pay. And
is always excepted in the Caſe of Swearing : Or, that this may be done either in the way of Puniſhment,
all Oaths are to be conſtrued with a Salvo to that or on account of the Publick Advantage, by virtue
Right. Now it is evident in all theſe Inſtances, of the Superior's Prerogative. In which caſe the
that the relaxation of an Oath can only be made Swearer is free from all danger of Perjury, becauſe
by him who is inveſted with Authority over the he is not the occaſion of the Non-performance ;
Swearer, and with ſuch Authority, as implies and he is releas’d from all neceſſity of fulfilling
in it this degree of Power. And therefore it his Oath by the Party, who either in a direct, or
was of old very properly claim'd and executed by, in a more eminent and extraordinary Manner ac-
the Roman Emperors: As appears from l. ult. I). ad quir’d a Right by virtue of it (d). To conclude,
municipalem (2), where Antoninus and Verus diſpenſe a Prince, who upon juſt Reaſons diſpenſeth with an
with a certain Perſon's Oath, who having ſworn never Oath, doth not commit the leaſt Sin, in thus hin-
to come into the Aſſemblies of his Order, was after- dring an Act which was folemnly undertaken with
wards created Duumvir : Becauſe a Subject cannot the Invocation of the Divine Majeſty, from pro-
by any Oath of his, with-hold his Service, when ducing its Regular Effect: Though the Subject may
requir'd by the Commonwealth. And ſo Tiberius, fonetiines incur a Guilt, by raihly uſing the Name
in Sueton (c), granted a Roman Knight the Power of God to confirm an Act, which he ought to have
of being divorced from his Lady, whom he had ta- known was prejudicial to the Right of his Superior.
(2) The Latin is, Imperatores Antoninus & Verus reſcripſerunt gratiam ſe facere furisjurandi ei qui juraverat, ſe ordini non inter-
futurum, do poſtea Duumvir creatus effet, Digeft
. I. 50. cit. I. ad municipalem, do de incolis, leg. 38..
(3) Șce Mr. La Placette's Treatiſe of an Oath, I. 2. C. 24. It is evident, that an Oath is one of thoſe things by which the
Clergy have moſt eflectually advanced their temporal Intereſts, and encroached upon the Rights of the Magiftrate. Before the
Emperors were Chriſtian, an Oath was never required of Witneſſes. 'Twas Conſtantine that made the Formality neceſſary. See
Mr. Thomaſius's Diſcourſe, De Fide Juridica, C. 2. 8 61, doc. and in his Fundam. fur. Nat. & Gent. I. 2. c. 9. 93. After the uſe
of Oaths was introduced into the greateſt part of the Affairs of Life ; and as the Clergy took upon them the right of judging
of the Validity of Oaths, they by that means took upon them the Cognizance of almoſt all Civil Cauſes. We know that the Pope
has aſſumed the Authority of dilannulling Treaties moft ſolemnly ſworn to, as Eugenius IV. did in favour of Ladiſlaus King of Hun-
sary, to Sultan Amurath Il, and to abfolve all Subjects from the Oath of Allegiance made to their lawful Sovereigns. In a word,
the Clergy have omitted nothing in this reſpect, no more than other things to ſtrengthen and increaſe their Power under the
bame of Spiritual, which they have extended to the utmoſt, and accordingly have lefſen'd the Temporal, which they have left
regret to Magiftrates and Princes,
(a) De ritibus Hebræorum, par. 2. c. 4. f. 4. (b) Vid. Jul. Can, c. 19. Add. tir 55. 1. 2 feudorum. (c) Tiber. 35.
(d) Comp. Grof, loc. cit. sect. 20. n. 3. & ad Mat. 5. 37.
with
S2
C H A P.

140
Of the Power of Mankind over Things.
Book IV.
bile
ISOL]
Ozóne
t is to be reproved,
-
CHA P. III. robod tistih OVUN301019 tur
Cal} } sinh
Big worden alle aid
Of the Power of Mankind over [the] Things (of the World.]
bidid
mo
1. The greateſt part of the Law is employed about IV. Some doults about killing and eating Living
worldly Things. quare nu
Creatures.
II. Man uſes other Creatures by Gods Ordination. V.
. Which yet is maintained.
III. Man does no injury by deſtroying Vegetables. VI. The abuſe of our Right over Living Creatures
& Tomo lo hormon
9
S
UCH is the Conſtitution of Man, that it can- for any thing beſides to make an Addition to his
not be preſerved by its own Internal Subſtance, Happineſs; therefore this Goodneſs inclin’d him to
but needs continually to take in the afliſtance of be bountiful and gracious to his Creatures, and to
certain Things from without, as well for its Nou- give them the privilege of uſing cach other for their
riihment and Support, as for its defence againſt thoſe' mutual Benefit. But Man eſpecially hath in fo extra-
many Enemies which ſeek to ruin and diſſolve its ordinary a manner tafted of the Divine Favour, that
Frame. Again, a great part of what the World af- all other Creatures are by a Common Strain of Spech,
fords, turns another way to the Service of Mankind, ſaid to have been at firſt made for his Uſe and Ser-
in rendering Life more commodious and more eaſie
. vice. Though this Right of God over all things
Hefiod. Op. & Dier. 1. 2. 304. For Riches are the Soul is very different from the Right of Men to the
of feeble Men (1). Now with regard to theſe Matters, fame Poſſeſſions. So that the Reaſoning of Dio-
a Multitude of Buſineſs and Tranſactions paſs be- genes the (a) was falſe and vain, when he thus ar-
twixt Men, and large Occaſion is adminiſtred to gued, All Things belong to the Gods; Wiſe Men
Controverſies and Strifes : And left the Common are the Friends of the Gods; all Things are commor
Peace of Mankind ſhould be diſturb’d by luch Dif- amongſt Friends ; therefore all things belong to Wiſe
putes, as the Law of Nature hath with due Cauti- Men. Yet it is too bold and arrogant a Pretenſion
on provided, ſo the Civil Ordinances of moſt Na- in fome Authors, whilſt they tell us, That ſhould
tions are in this reſpect found moſt careful and fo- any thing fail of turning to the advantage of Man-
licitous. For the full illuſtration of which Subject, kind, it muſt follow, that ſuch a thing was created
we ought firſt of all to enquire, by what Right it in vain; and that 'tis hence apparent, that the
is that human Race clain the diſpoſal of other whole World is the common Poſſellion of human
Creatures, whether Animate or Inanimate; for their Race, and what they may (if thus taken as a ge-
Uſe, their Conveniency, or their Pleaſure, as like- neral Body,) not unjuſtly term their own. This
wife on what Principle this power is founded, in re- was Ariſtotle's Miſtake ; If then, ſays he, Nature
fpect both of the Creator, and of the Creatures (1) makes nothing imperfectly, and nothing in vain, ſhe
themſelves, which Man not only uſeth, but very muſt, of neceſſity, have made all theſe things for the
often perverts, embezils and deſtroys.
fake of Men. Lucian (c) delivers himſelf to the
II. It is therefore beyond Diſpute, that Almigh- fame Purpoſe; Had not Men been created, the confe-
ty God, inaſmuch as he is the Maker and the Pre- quence of the Omiſion had been no leſs than this, That
ſerver of all Things, doth likewiſe hold, as it were, all the Grace and Beauty of the reſt of the World
,
an Originary and Super-eminent Property over all, bad fhone without a Witneſs or Beholder ; and that
and they belong fo ftriétly to him, as that no one the Gods themſelves had deſpis’d their own Wealth, as
can pretend to the leaſt Right in them, without not worth the enjoying (2). But certainly the great
his Permisſion or Conſent. Concerning which do- Frame of the Univerfe might, in all appearance,
minion or Property of Almighty God, Philo the Jeup have been inore compendiouſly erected and adorn’d
,
(lib. de Cherubim) p. 97. Ed. Genev. treats at large, had it been the Intention of its Author, to make
and
with regard to that Superior Right, calld the nothing but what ſhould in ſome reſpect or other
Right which Men hold over Things (1), Yufructua- ſerve the Occaſions of Men (d) (3). And it was not
ry only. Yet becauſe he himſelf ſtands in need ill faid of Seneca, Nimis (è) nos fufpicimus fi digni
of no Foreign Succour, and becauſe it is not polli-
Mr. Barbeyrac's NOTES on Chap. 3. § 1.
(1) See Gronovius's firft Nore on Grotius, l. 2. c. 1. $ II. The Greek of Hefiod is,
Χρήματα και ψυχή πέλεται δολοίσι ζεστοίπ.
Mr. Barbeyrac's NOTES on S 2.
(1) Seneca uſes the ſame Expreſſion, as Mr. Hirtius has obſerved, Vſufru&tus noſter eſt, cujus tempus ille arbiter muneris ſui tema
perat, Conſol. ad Marc. c. Io. As for that paſſage of Euripides which Mr. Hirtius joyns to it, beſides that the Notion is much
the ſame, our Author quotes it in the next Chapter, SI,
(2) See an Engliſh Treatiſe written by Mr. Boyle, cal'd a Diſcourſe concerning the final Cauſes of natural things, the Extrakt
be found in the univerſal Library, Tom. 9. p. 63. And alſo a Treatiſe, De Origine Mali, written by Dr. King Bi-
ſhop of Londonderry, and ſince Archbiſhop of Dublin.
(3) Montaigne in his Eflays ſpeaks ſomething like this, 1. 2. c. 12. He makes me to underſtand by his Diſcourſe upon what
Foundations theſe great Advantages are built, which he prides himſelf to have over the Creatures. "He perſwades himſelf that
this admirable Architecture of the World, conſiſting of the Celeſtial Arch, bedeck'd with the inexcinguiſhable Lights of the Sun
and Stars moving ſo ſwiftly above our Heads, the prodigious Fluxes and Refuses of the vaſt Occan, were at firſt created, and
have continued to many Ages for our Convenience and Service. Mr. Bayle alſo in his Thoughts about a Comer, P. 226. cices ano-
ther partage of Seneca, where the Philoſopher ſays, that the Cares of Providence do indeed extend to us, and we have a part
ic, but their end is more confiderable than our Preſervation. Et quanquam majus illis (Soli, Lune, Show ceteris cæleftibus] propo.
fitum ſit majorq; a&tus ſui fruétus, quam fervare mortalia, tamen in noftras quoque utilitates à principio rerum premiſſa mens est, do is
ordo mundo datus, ut appareat curam noftri non inter ultima ejſe habitam, De Benefic. 1. 6.c. 23.
(a) Apud Diogen. Laert. 1. 61.37 ubi vid. Menag.
(b) Po'itic. l. 1 c. 8 p. 304 C. Edic. Pariſ. (c) Prometh p. 181 tit. 1. Edit. Amſt. (d) See the Honourable Mr. Boyle's
Diſſertation concerning the final Cauſes of Natural Things. See Archbiſhop King's Treatiſe de origine Mali, c.41.a f. s.
(e) De Ira, 1.2.C.27. Add Churron de la Sageſſe, 1. 1 c. 40. n. 3,4, 5.
21175010
ON
of which
may
nobis

141
Gen. 9. 3. Selden de J. N. & G. Sec. Heb. 1. 7. C. 1.
בדו
.
of infinite
CHAP. III. Of the Power of Mankind over Things.
nobis videmur, propter quos tanta moveantur : We are lawiul for them to do, with regard to Terreſtrial
too much taken with the admiration of our own Na- Animals.
ture, if we fanfie our ſelves-worthy to have all theſe III. If in the next place, we conſider this Power
Glorious Works move only on our account. Yet let of Mankind, with relpect to the things themſelves,
this be as it will
, thus much is evident ; That Man whether Animate or Inanimate, which Men uſe and
makes his advantage of other Creatures, by
by the waſte, and deſtroy, that no Injury is hereby offer'd
Grant and Litence of Heaven : As we may appre- to thoſe Creatures, may clearly be evinc'd, as well
hend from this eaſie Argument, That without the from the Nature of Man, as from the Grant and
uſe of thoſe Things, human Life could not be pre- Allowance of God. For it can on ne account ſečin
fervåd, for which Service, fome of them do, as it probable, that a Maker of infinite Goodneſs, and
.
Since then God Almighty hath conferr’d on Man the on Man, the Principal of Earthly Creatures, or
Privilege of Life, he is at the fame time ſuppos'd that he ſhould not be able to preſerve himſelf with-
to have allow'd him the uſe of every thing necef- out injuring others, and conſequently without the
fary for the keeping and maintaining of that his perpetual Commiſſion of Sin (1). To which, if we
Gilt
. The faine (a) Truth is confirmd by the Au- add the expreſs Licenſe of God, that muſt remove
thority of the Holy Scriptures, which exprefly men- all Doubt and Scruple, which might otherwiſe have
tion God's inveſting Man with Power and Domini- riſen, eſpecially about the Slaughter of Animals.
on, not only over Vegetables, but over every Liv- And if there appear any Cruelty or Barbarity in
ing Thing, produced either in the Air, in the ſuch a Practice, it is fufficiently taken off, by this
Earth, or in the Sea (b) (c). Yet this Conceſſion one Conſideration, That their Divine Author hath
hath not the force of a Command, but only the appointed theſe his Creatures to ſuch a Condition,
Allowance or Indulgence of a Privilege, which a- and to ſuch a Service in the World; and hath grant-
ny Perſon may uſe fo far as he thinks fit, but is not ed to Men ſuch an Authority over them, which if
bound to exerciſe it at all Times, and upon all Oc- they exerciſe (whether by the Deputation, or only
caſions. For otherwiſe Man would offend againſt by the Permiſſion of God,) they certainly do no
the Divine Law, ſhould he neglect any Animal Injury. Now as for Vegetables, and other things
go free, or ſhould he let any opportunity deſtitute of Senſe, there ſeems with regard to them,
of bringing the ſame Creature again under his to be no more of Difficulty in this point; it being
Subjection ; which no Man in his Wits will af- impoſſible to diſcover that they ſuffer any hard
firm (4). But ſtill this Power of Man over Brute Treatinent, or unjuſt Hurt, when they are conſum'd
Creatures is of a different Nature from that Domi- by Men; eſpecially, ſince they muſt neceſſarily Pe-
nion or Sovereignty which is exercis'd over Men: riſh, and be deſtroy'd (2), either by Beaſts or by the
Becauſe Brutes are not capable of any Correſpon- ſpeedy turn of the Year, and the Change of the
dent Obedience, ariſing from the Obligation; and Seaſons ; and farther, ſince many of them had never
becauſe this is a much more abſolute Sway, than been produc'd without Humane Pains and Endea-
that with which Men govern each other
. The Di- yours. The Superſtition of the Egyptians in abſtain-
vine Prohibition to the Jews from feeding on ſome ing from certain Pot-herbs, is not of weight enough
certain Animals, doth by no means retrench or im- to give us any ſtop in the preſent Determination (8).
pair the Right of Men over Beaſts; the Reaſon of IV. But then, as to living Creatures, which are
that Injunction ſeeming to have been taken from endued with a Senſe of their own Being, and cannot
Phyfick (5). Mr. Selden (d) reports it
, as the O- leave it without Pain and Trouble, the point ap-
pinion of the Ancient Rabbins, That Adam was for- pears in ſome meaſure Dubious to many who have
bidden to eat any manner of Fleſh, (God having conſider’d the Liberty of Men againſt Brutes, only
commanded hiin to feed on the Herbs of the Field (e); on the Principles of Reaſon. For, from God's al-
but that Noah afterwards was diſpens’d with in this lowing the firſt Man to have Dominion over other
Particular, by the Grant in Gen. IX. 3. Yet ſo as Animals, it doth not preſently flow as an evident
to be ſtill under an Obligation to abſtain from Conſequence, that he was at the ſame time inveſted
Blood, and from any Joint or Limb of any Crea- with fo wide a Commiſſion, fo infinite a Licenſe, as
ture taken from it whilſt alive (f). The fame Au- that he might ſlay them even for unneceſſary U-
thor adds
, That the Blood of Fiſhes was excepted ſes (h): For Man hath Dominion too over Man,
from the Prohibition : Nay, That they might eat and yet cannot in the leaſt pretend to any ſuch Li-
theſe Creatures alive, as Oyſters
, &c. or fuch of cenfe as this againſt his Fellows. Nor could Men
them as died by Chance ; neither of which it was have complaind, that the Divine Goodneſs was ſpa-
ſenſe.
earthly Creatures.
(4) This Remark of our Author's ought to be placed at the end of this Paragraph, where it will much better agree with the
(3) This is not to be doubted, although other Authors, and particularly Mr. Fleury in his Treatiſe of the Manners of the Iſra-
elites, ſpeaks of it. The Iſraelites had not a better Conftitution, nor a more vigorous Health than the other Nations, who eat of
fuch fores of Food as they abſtained from. It ſeems that the Prohibitions of the Law were grounded upon mere politick Rea-
cons
, ſo far as concerned their particular Notions, Opinions, and the Conſtitution of their commonwealth. See Mr. Le Clerc's
Note upon Levit
. 11. 2. and Grotius, De Verit. Relig. Chrift. 1.5.99. But be that how it will, whatever Motive we attribute to
the Legiſlator, as this Law was only poſitive, it in no wife deſtroys the Natural Right which Man has over the Beaſts and all other
Mr. Barbeyrac's NOTES on § 3.
(1) Here is a great Diſorder in this part of our Author's Diſcourſe, and therefore I have tranſpos’d ſome Sentences, and puc
shem in a more natural
Order, treating firſt of Vegetables, and then of Beaſts.
(2) Our Author ſpeaks very pleaſantly here in all his Editions, by other Beafts, as if the Beaſt Man did not ſpend and deſtroy
the Vegetables, the other Bearts would. And Mr. Hirtius has overlook'd this great Miſtake in his Edition of 1706.
(2) Add. Arrian. Epiftet. 1. 1. C. 16. ab initio. (b) Gen. 1, 28, 29. (c) See Pſalm 115. 16. (1) De J. N. & G. Sec,
(8) See Gen. 1. 29. (f) Add. Deuteron. 12. 20. (3) Vid. Diodor. Sic. I. 1. C. 89. (b) Add Grot, ad
Heb. 1.7.c. 1.
ring

LC
66
Cc
૮૮
ſharp, and divided from each other, that ſo by, cho
142 Of the Power of Mankind over Things. Book IV.
ring towards them, or had made an ill Proviſion for out againſt their own Kind; and thoſe who had ta-
their Neceſſities, though they ſhould have been de ken a delight in deſtroying the Harmleſs Race of
nied a Power over the Life of Aninals; at leaſt of Dumb Creatures, made it their next ſtep to murther
ſuch as did not threaten any Hurt or Danger to the weak and defenceleſs Men. Diogenes
Laertius in his
Life of Men : Inaſmuch as the work of thoſe Crea- Life of Pythagoras (d) reports that Philoſopher to
tures in cultivating the Earth, together with what have forbid the killing of Animals (2), xowvòv Singon
comes froin tliein otherwiſe, as Milk, Eggs, (ſuch as i wie ezórowy tugais. As enjoying the ſame Common Right
are not Neceſſary for the Propagation of the Species) of Life and Soul with our ſelves
. This indeed as
Wool, and the like, might have been ſufficient to the Hiſtorian goes on,) -
fuſtain Men in a tolerable way of Living, Nor did reafon of his commanding his Followers to abſtain from
God by commanding Men to ſacrifice them, as a all Living Creatures, was, That he might exerciſe and
Token of Divine Worſhip, confer any Power or train Men 14 in a more eaſie method of Food, by means
Privilege of turning them at pleaſure into Food. of which they might always have ready at band a large
For ſuch things as are lawful to Mankind only by Proviſion of Meat, requiring no Fire to dreſs it; and
feme peculiar Command of God, may ſtill remain as much Drink as they bad plain Water. For this way
unlawful, except in that particular Cafe. Hence of Suſtenance he thought moſt proper to produce Health
it was that many of the ancient Philoſophers utter- of Body, and Quickneſs of Mind (3). Though
ly diſapprov'd of this Practice. For, why ſhould Lucian (in fomnio jeu Gallo), p. 174. tit. 2. bring-
Man on the bare account of ſuperfluous Pleaſure, rob" ing in him under the Shape of a Cock, makes him
an harmleſs Animal of that Life which it enjoys by give this Reaſon of his Opinion: I conſider, ſays
the Gift of the ſame Common Creator? Eſpecially, “he, that it the Precepts I ſet on foot were com-
fince even the Example of the fierceſt Wild-beaſts, mon, and ſuch as many had deliver'd before, I
of Lyons, Wolves, and other Devourers of Fleth,“ ſhould not be able to prevail with the World,
will do them 10 Service, if urg'd in their Excuſe. to look upon me as any extraordinary Perſon; but
For theſe are ſo fram’d by Nature, as not to be able " the more ſtrange and unuſual the Doctrine ſhould
to ſupport Life, without feaſting on Blood, and tu “ be which I offerd, the more new and ſurprizing
loath and reject that common Proviſion afforded by “ I ſhould appear, and gain the more Admiration.
the Earth. Whereas Men are not under the like " Add. Jo. Scheffer. de Philofoph. Ital. c. 14.
Caſe of Neceſſity; receiving very commodious Nou « Plutarch in Grill. Man, with a craving. Appe-
riſhment from other Food, and being oblig'd to pre tite, drawing all things to himſelf, trying all
pare Fleſh by dreſſing or ſeaſoning it, before they things, taſting all things, as being ſtill ignorant
can make it agreeable to their Digeſtion. We “ of his own Nature, or what is agreeable to it, is
hear indeed of fome barbarous Nations, which make “ the only Creature in the World
that lives in ge-
uſe of no Fleſh or Fiſh but what is Raw, and ſup- “ neral upon every thing which comes to his Hands
.
port themſelves with that ; as Rochefort (a) reports Firſt, He uſeth Fleſh; without the Excuſe of Want
of the Coaſts on Davis's Streights. But the ſame or Neceſſity, when he might at any time gather
Author tells us (L) of the Inhabitants of the Pro- “ other Food from the Seeds and Plants
, with an in-
vince of Paſto in Peru, That they eat no manner of “ exhauſtible and never failing Store. But through
Fleſh; and that if deſired but only to taſte any, their “ Luxury and Diſdain of his
proper
and neceſſary
Anſwer is, They are not Dogs.
“ Proviſion, he follows ſtrange and polluted Diet
,
Others have obſerv’d, in relation to the preſent " in the Slaughter of Beaſts, exceeding the moſt
Enquiry, that whereas thoſe Animals which natural “ Savage Creatures in Fierceneſs and Cruelty: For
ly feed on Fleſh, have their Fore-teeth oblong,
their Fore-teeth oblong, “ Blood and Slaughter, and Fleſh are the proper
« Suſtenance of the
Kite, the Wolf and the Dragon,
ſing them with a deeper Stroke, they may grind and “ as Fiíh and Spoon-meat are of Men. The ſame
ſeparate the Prey ; Man's Teeth are ſhort, join'd“Author in his Second Oration about the eating of
one to the other, and ſpreading round, after the man “ Fleſh, among many other things, offers what fol-
ner of thoſe Animals which live on Herbs and “ lows: At firſt they fed, perhaps, on ſome wild
Fruits: And that on this account we are neceſſitated “ or hurtful Animal; then on Birds and Fiſh; 'till
to make uſe of Knives for dividing the Fleſh we their Appetite thus taught and accuſtom'd, pro-
eat;
whilſt the Creatures which eat this as their Na- . ceeded to the Ox that labours in our Service; to
tural Food, ſtand in no need of ſuch Aſliſtances or “ the Sheep that cloaths and adorns us; to the
Inventions: That thus we ſee Children by the bare watchful Cock that guards our Houſe. Hence,
impulſe of Nature, loving Fruit beyond all other u
by degrees, adding Strength and Force to their
Proviſions, and preferring Apples, Cherries and Nuts, “ inſatiable Deſires, they broke out into the Mur-
to the moſt exquiſite Dainties of Fleſh; becauſe in “ther of their Brethren, and the Miſeries of Blood
them Nature is not yet corrupted, nor their Appe- “ and War.
tites debauch'd by ill Cuſtoms of Eating (c). It is
farther evident, that the fierceneſs and cruelty of Aratus Phanom.
Men, having been firſt excited, encourag'd and har “ The faithful Ox, accuſtom'd to the Plough,
den'd by the Slaughters of Beaſts, afterwards broke " Defil'd the Table.
Mr. Barbeyrac's NOTES on S 4.
(2) Pythagoras's Greek is this, Τειν δε το φονεύειν άπαχρέυων, με όπ ε άπεια των ζώων κοινον δίκαιον ημίν έχείνων ψυχs-
και τόδε μεν ήν το πρόσχημα το δ' αληθές των εμψύχων, απηγόρευεν άπλεται συνασκών, και συνεθίζων εις ευκαλίαν βία τες αν
θρώπες
, ώςε ευπορίας αυτούς είναι τας τροφας, άπυρα προσφερομένοις, και λιγον ύδωρ πίνειν, εντεύθεν ή και σώματα υγείας, και
Luzős osuti ta mieziveatral. See alſo Pythagoras's Speech in Ovid's Metam. 15. Fab. 2. v. 75, &c. Grot, ad Gen. 46, 34. Plate
Timeo circ. fin.
(1) Here is an heap of very needleſs Quotations, which teach us only what divers perſons and people have thought of the oila
of Meats. As the Author quotes them all at length, they make a large page in the Original, and form a confus’d Chaos,
Traoſlation with.
(a) Deſcript. Antillar. par. 1. C. 18 (b) Part 2, C.IT (C) Vid. Anton. le Grand. Inftir. Philof. Cartes. Part 6. Art. 3.
(d) Lib. 8. Sect. 13.
CC
I would not fill
my
Add.

CHAP. III.
Of the Power of Mankind over Things.
143
16
« Add. Plin. 1. 7. C. 45. & Val. Max. l. 8. c. 1. inter “them only becauſe our extravagant Greedineſs
damnatos, n. 8.
" and Luxury is ſupplied by their Deſtruction.
« Sueton. Domitian, cap. 9. Ælian. V, H. lib. 5: Porphury (a) is very prolix in attempting to ſhew,
Dio Chryfoft. Orat. 64. 592. Edit. Morell, that abſtinence from Fielh is in the higheſt manner
cap. 14.
« Cicero de Nat. Deor. lib. 2.
the Duty of Philoſophers, who place all their Hap-
« Nicol. Damafcenus reports of the Phrygians, That pineſs in God, and in the Imitation of the Divine
it was a Capital Crime amongſt them to kill a la- Nature. Amongſt a great number of Arguments
,
bouring Ox, or to ſteal any. Inſtrument of Agri- the Subſtance of which hath been for the inoſt part
“ culture. So Aloys Cadamujt in his Voyages, C. 57: already deliver'd, he endeavours to demonſtrate,
60. tells us, That the People of the Kingdom of That áll Souls endued with Senſe and Memory,
« Calecut thew the like facred Veneration to Oxen. are likewiſe Partakers of Reaſon; and that ſince we
" And the Nomades, as Diodor. Sic. relates, lib. 3; may diſcover thius inuch in other Animals
, we ought
cap. 32. pag. 165. Ed. Rhodom. gave the Bull and to extend our Juſtice to them, which conſiſts prin-
“ the Cow, as likewiſe the Ram and the Ewe, the cipally in offering no hurt without due Cauſe: And
« Naine of Parents, as affording the daily Support that we have a convincing Evidence of the Reafon
« of Life. Strabo l. 15. p. 490. obferves of the of Brutes, in their being capable of Madneſs and
“ Brachmans
, that they eat the Fleſh of thoſe Crea- Deftraction. To this time, the Benjans in Cambay,
tures only, which do not allift Mankind in their believing the Souls of Men to remove, at Death,
“ Works. Varenius, Defcript. Japon. c. 23. reports into the Bodies of Beaſts, never harm any Living
“ inuch the fame of the Japoneje; who are ſaid Creature, nor dare to turn them into Food: Nay, they
« likewiſe to profeſs an Averſion to Blood, and no have Hoſpitals erected on purpoſe, for the reception
“ leſs to Milk, which they take to be nothing elſe of diſeaſed and maimed Birds (6). Phil. Baldæus ini
6 but white Blood.
his deſcription of the Iſland Ceilon (c) reports, That
“ We may here likewiſe by the way, remark, the Bramines, even when converted to Chriſtianity,
“ what is urg'd in Plutarch’s Sympofiac. 1. 4. c. 4. to keep their old Method of Living ; and that if they
prove that Fiſh are the moſt proper Diet. For, be encounter'd with that Text of Scripture, To the
“ ſays he, as to the Creatures which live with us Clean all things are clean, they reply in another,
upon the Earth, ſuppoſing them to have no other that, The Kingdom of God is not in Meat and
Common Rights with Mankind, yet at leaſt they Drink : that they have been ever accuſtom’d to their
receive the fame Nouriſhinent, they breath, and light
and eaſie Diet, and find themſelves very well
upon
waih, and drink as we do; and when we kill it. Thus the whole Nation of the Apalchite, of old,
them, their piteous Cries make us bluſh for our never taſted Fleſh or Fiſh, 'till they learnt this Cu-
Cruelty: Beſides, that the greateſt part of them ſtom from the Europeans (d).
are made familiar to us, by dwelling and feeding V. But, though in theſe Arguments and Authori-
“ fo near. Whereas on the contrary, the Race of ties ſo much ought juſtly to be commended, as
“ Sea-Animal is utterly ſtrange to us, is born and makes for the Encouragement of Temperance and
« bred, and lives as 'twere in another World; nor Frugality, and for the hindering the finer Spirits from
are we reſtrain’d from killing thoſe Creatures by being obſtructed, and as it were mir'd up with too
" their Cry, by their Afpect, or by any Service groſs Feeding; yet, that the killing and the eating
" that they can do us. For they can indeed be no of Animate Creatures is really not Sinful, may be
way uſeiul in our Buſineſs, not being able ſo much fufficiently made out on the bare ſtrength of Rea-
as to live in our Element. Our Earth is a kind fon : And the main Evidence ſeems to be this, That
of Hell to them; they die almoſt as ſoon as they no mutual Right or Obligation paſſeth (1) between
« touch it. On the other fide, the Pythagoreans
, Men and Bruites, nor ought to paſs by the Direction
were more averſe to eating Fiſh than any other of Nature (e). For we neither find that the Law
Animals; the Grounds of which Opinion are exa- of Nature by virtue of its abſolute Authority, com-
min’d at large by the fame Author, Sympoſ. 1.8. mands us to maintain Friendſhip and Society with
c. 8. So likewiſe Xiphilin, reports, That the Ca- Brutes; nor are they capable of ſuſtaining any Ob-
ledonians never taſted Fiſh; nay, though they ligation towards Men ariſing from Covenant. From
" had them in great Plenty, Epig. Dion. in Sever. which Defect of all Common Right, there follows, as
"One of the Reafons there given is this, That o- it were, a State of War, betwixt thoſe, who both
“ther Animals deſerve their Death at our Hands, are able to hurt each other, and are upon very pro-
“ by ſome way or other doing us Miſchief, where- bable Grounds ſuppos’d to be willing. And in this
se as the Filh neither hurt us, nor are able to hurt State each Party hath liberty to do to the other,
4 us. That amongſt other Animals
, ſome ought ne- with whom he is thus engagd in Hoſtility,whatſoever
ceſſarily to be kill'd, left by inultiplying too faſt, he thinks conducive to his own Intereſt and Con-
they ſhould rob Men of their Suſtenance, as Cun- venience. Yet ſuch a ſtate of War, in which Men
hereas (again) the Fiſh, being ſtand towards Brutes is very different from that
born, as it were, in another World, give us no which fonetimes ariſeth from Men's Claſhing a-
"Occaſion to hurt them : But we are ſet againſt mongſt themſelves : Inaſinuch that the Latter is
«
suarit Oy
do Mr. Barbeyrac's NOTES on S 5.
(1) See I. 2.C.3.5 2. before going, and Grotius, 1. 1. c. 1. $ 11. Cicero has a paffage alſo from whence this Conſequence
feems to be drawn, Homini nihil juris effe cum beftiis. Præclare enim Chryfippus, cætera nata este hominum caula do Deorum, eos autem
communitatis, da ſocietatis suæ, ut bestiis homines uti ad utilitatem ſuam poffunt fine injuria. The fame Author alſo has another paf-
lage
, ſhewing the Right that Man has over Beaſts and other Creatures
. Itaque ad hominum commoditates, & uſus, tantam rerum
ubertatem natura largita eſt
, ut ea que gignuntur, donat a conſulto nobis non fortuito nata videantur, nec ſolum ea quæ frugibus, atque
baccis, terre fætu profunduntur
, fed etiam pecudes, quod perspicuum fit, partim ele ad ufum hominum, partim ad fru&tum, partim ad
zeſcendum procreatas, De Legibus, l. 1. c. 8.
(a) Lib. 4. mgì nexñs,
(6) Add Abrah. Roger. de Bramin. par. I c.1 & 18. (c) C. 47 (d) Rochefort deſcript. sa-
(e) Cicero de Finib. bonorum do malorum. 1. 3. 6. 29.
neither
tillar. p. 2. c. 8.

144
of the Power of Mankind over Things.
Book IV.
even
neither univerſal, nor perpetual, nor extends it felf Harmleſs Beaſts would be otherwiſe expos’d an eafie
promiſcuouſly to all manner of Licenſe againſt each Prey to the Violence and to the Hunger of the Wild
other (2). As for the Fiercer Animals, they give and Ravenous, their Condition is rather better'a
evident Proofs of their being plac'd in this Hoſtile than impair’d by that high degree of Power, which
State, whilft upon every Advantage and Oppor- Men exerciſe over them; which in affording them
tunity they are ready to exerciſe their Violence a-
a conſtant Proviſion of Food, doth, as it were, pay
gainſt Men; and he that would have us fpare them the price of their Like, and likewiſe protects
theſe, doth at the ſame time require us to put then them againſt the Aſſaults of their Savage Ene
under fiercer Circumſtances, and a more ſecure Con- mies (3). Now, what hath been here ſupposed
, That
dition than our ſelves. And then the inore mild there is no Coinmon Right uniting and equally af
and gentle Creatures do not offer themſelves to the fećting Men and Brutes, others have long
ſince de
Service of Men, by virtue of any, Obligation, but monftrated (!), Which too is the reaſon, (as we may
as they are either bribed by Food, or conſtrain’d here add by the way,) why Property obtains its
by Force; upon Removal of which Inducements
, Force and Effect only againſt other Men, and not
they will return to their Natural Liberty, and ſome in like manner againſt Brutes ; inaſmuch as they,
of them will be ſo hardy as to aſſault and encoun- when they devour what we poſſeſs, cannot be faid
ter Man. Again, others increaſe ſo prodigiouſly, to do us an Injury, Thus God, in the Lan
that 'tis neceſſary for us to retrench their Number, guage of Scripture, (e) Feeds the Birds (4),
leſt we ſhould be our felves reduc'd to a narrow when they conſume the Corn produc'd by our Toil
and inconvenient Dwelling (a). 'Tis to no pur- and Labour. Yet the Owner of Beaſts may fome
poſe denied by fome, that the Lawfulneſs of hurt times do us Injury or Damage, when they break in
ing and of eating Brute Creatures, may be inferr’d and deſtroy our Harveft; for not keeping them
from this Defect of common Right between them with a ſtricter Care. In one reſpect indeed, and in
and Men: Becauſe (ſay theſe Authors ) though no a very wide Senſe, the Beaſts themſelves inay be
Injury be done to the Brutes, yet we injure the Creator ſaid to have the ſame Right with us; when, by the
of them, ( unleſs we are ſure of his Conſent)
as like- fame Right (as it were ) by which they invade our
viſe their owners or Proprietors. But this Objecti- Poſſeſſions by the ſame we drive them from thence.
on is vain and idle : For that very Conſideration, VI. Yet that the Abuſe of this Power, and eſpe-
that the Divine Creator hath not eſtabliſh'd a Right cially ſuch as is attended with fooliſh Cruelty and
common to Men with Brutes, is a ſufficient Evi- Barbarity, deſerves to come under cenſure (1), is
dence that he ſuſtains no Injury, when they are beyond diſpute. For, as it is the Intereſt of parti
hurt by Men; becauſe he himſelf was pleas’d to or- cular States, that no Perſon ſquander away, or waſte
dain this State and Condition between the former and ſpoil his Poſſeſſions; ſo it turns to the preju-
and the latter. And, as to the other part of the Ob- dice of the Univerſal Society of Mankind, and to
jection, 'tis a different Queſtion1
, Whether Man can the diſhonour of GOD, the giver of fo great Gifts,
do any Injury to a Brute? And whether by the In- to confuine them idlely and wantonly, without pro-
tervention or Occaſion of a Brute, he may injure moting any Benefit or Advantage of Life. Thus
another Man? The firſt is only denied by what we GOD was pleas’d eſpecially to command the Fems,
are now aſſerting, and not the fecond: Nor will it To allow their Cattle a Reſt from all Work, on the
be impertinent to the Argument in hand, to add Seventh Day (d). Plutarch (e) tells us, The Athe
this farther Remark, That ſince the Tame and nians inflicted a Penalty on a certain Perſon who had
(2) From this Place to the end of this Paragraph I have been obliged to tranſpoſe almoſt all the Sentences of the Original,
upon the account of the extreme Careleſsneſs of the Author in purring in ſome Additions.
(3) 'Twill be proper here to put in two Reflections made by Mr. Le Clerc in his Phyficks, 1. 4. C. 12 S 15. The Beaſts which
we kill would die of themſelves in a few Years, and when they die, their Soul dies as well as their Body, ſo that chey looſe
no.
thing, by Death. It is certainly a piece of Cruelty to deprive thoſe Beings, that have ſenſe of a thing which they are ſenſible
they have a loſs of, and which may be a Grief to them, but not to deſtroy a Being, which has no fenſe after its Deſtruction. So
that the Man that kills another, ought to be puniſh’d for his Cruelty, becauſe Mens Souls ſurvive their Bodies, and paſs into an
Eſtate, where they lament their deprivation of Life. But Beaſts being once dead, feel nothing; becauſe their Soul periſhes at
the ſame time, in what manner ſoever it be done. 2. It is Cruelcy to ſeparate from the Body of a living Creature, a Nature that
hath ſenſe, and is profitable to another ſo long as it is united to the Body, as it happens when a Man is ſlain, whoſe loſs is an
Injury to the Society of which he is a Member. But 'cis no Cruelty to ſay a living Creature, which is of no uſe to another but
when 'cis dead, and would do Miſchief while it lives. For 'tis evident, that if no Beaſts were flain, their great Number would
be noxious to Man. All theſe Reaſons prove beyond contradiction, that Man doth Beaſts no Injury by ſaying and eating them.
Bur it may be alſo not unprofitable to fhew, after Archbiſhop King, De Origine Mali, c. 4. Sect. 5 s 5. That Beaſts can't complain,
that they were appointed by the Creator to be Food for Men. God gave them Life upon that condition, and they had never
been, had it not been for that. Wherefore they ought, if they had fenfe enough, to praiſe their Creator of whom they hold
it, becauſe it is better to enjoy Life and Senſe for ſome time, than to be always a lump of Matter, and void of all perception.
Beſides, Beaſts enjoy preſent Satisfaction always, without remembring what is paſt, or diſquieting themſelves with what's ro
come; and after all they ſuffer leſs by being killd, than they would if they died of a Diſeaſe or old Age.
(4) See Note 1. on Paragraph 4. of the following Chapter. una
Ball Boot: Mr. Barbeyrac's NOTES on § 6.
(1) Marcus Antoninus ſpeaks to this purpoſe in this fine paſſage of his Reflections, Tois wiv erózais Scóors iš ne.9008 Trogiquan,
και υποκειμένοις, ως λόγον έχων, λόγων μη έχεσι, χρώ μεγαλοφρόνων, και εευθέρως, τοϊς ανθρώπους, ως λογών έχει, χρώ κοινωνικός,
1.6.c. 22. (i.e.) uſe all Creatures, and all other things nobly and freely as a Man who hath Reaſon ought to uſe ſuch things as
have none. As for Men, uſe them according to che Laws of Society, as Men of Reaſon ought to be uſed. See allo Sad. der in
the Religion of the ancient
Perfians put out by Mr. Hyde, Porc
. 38. In hort, the abuſe of that power which Men have over Beaſts,
is the more criminal becauſe it often tends to the prejudice of Men. Hence it is that the Laws of Triptolemus forbid the killing
of any Creatures, whoſe Labour we make uſe of. Porphyr. de abſtinen. 1.4.5 22. And it was a Capital Crime among the Phry
:
gians, as Nicolas Damafcenus teftifies.
(a) See Exod. 23. 29. Deut. 7. 22. Add Gaſſend. Syntagm. Epicuri, par. 3. c. 2. & 7.
(6) See Lib. 2 c. 3.1, 2 & Grot. 1.1
(c) Mat. 6. 26. (d) Exod. 20. 10. 23. 12.
Deut. 5. 14. 25.4.
Num. 22, 28, 32. Prov. 12. 10.
Comp. Deut. 20. 19. Rom. 8. 19, doc, (e) Orac. 1. de Uſu Carn.
C. 1 1. II.
I Cor. 9.9.
frip2

CHAP. IV. Of the Origin of Dominion or Property.
145
firipd a Ram of his Skin whilft alive (2) And the ſign’d them. Comp. Deut. XXII, 6, 7. agreeable to
Followers of Pythagoras, as Porphyry obſerves, made which is that of Phocylides,
Gentleneſs and Mercy towards Beaſts the Introdu-
duction to Love and Pity towards Men, l. 3. The Neſts whole Family you muſt not ſeize,
C. 20. P. 125. Ed. Cantab. de Abftinentia. Nor was But leave the Dain a future Brood to raiſe.
the Advice of the Chineſe Philoſopher, Mentius, al-
together amiſs, That the King ſhould give no Perſons The Action of Alexander Severus (3) (recorded by
leave to uſe Nets with ſmall Maſhes ; that by this means Lampridius, c. 22.) is likewife worthy to be men-
the greater Fiſh only ſhould be taken, and the leſſer have tiond on this occaſion. When the People of Rome,
power to eſcape ; which ſufficiently growing up in the complain’d to him of a great Dearth and Scarcity,
following fears
, would afford a fupply at all times, and he ask'd them, by a publick Officer
, what kind of
for all Perſons
. As likewiſe, that none ſhould be al- Meat was dear;
and finding by the common Cry
low'd to kill Hens, Porkers, or other Animals, before that Beef and Pork were the Subject of the Coin-
they were come to their full growth; that they might plaint, he did not lower the Price, but order'd that
the more eaſily give a full and conſtant Proviſion of none ihould kill a Cow or Heifer, a Sow or Sucking
Fleſh. Whence it became a Cuſtom amongſt the Chi- Pig : And by this means within a Year, or leſs than
nefe, never to kill any Living Creatures, till they had two Years, there was ſuch Plenty of both Sorts, that
attair’d that pitch and maturity, which Nature had af- from Eight-pence the Pound, they came to Three-
pence.
(2) The Greek is, Οι 3 Πυθαγόρειοι των προς τα θηρία πραότητα μελέτίω εποιήσανθο το φιλανθρωπι και φιλόικλίρμωνΘ, Porphyr.
de abſtinen. I. 3. C. 20. See Mr. Le Clerc's Comment. on Gen. 9 4. and what I have ſaid in my Treatiſe of Gaming, l. 3 c. 5 S 7
(3) This Example is not much to the purpose, becauſe ir reſpects an Expedient which Alexander Severus made uſe of upon
a particular occaſion, wherein it does not appear that there was any abuſe.
CHAP. IV.
Of the Origin of Dominion or Property.
I Property and Community are moral Qualities. VIII. The Opinion of the Ancients about the Original
II. What is Property and Community.
of Dominion or Property.
III. That it has no place, but where there are more IX. Grotius's Judgment confider'd.
Men than one.
X. XI, XII, XIII. The Arguments of thoſe who deny
IV. It proceeds immediately from an Agreement a-
the Community of Goods uſed among the An-
cients.
Of the Ancient Community of Goods. XIV. In what Senſe Dominion is ſaid to be by Natural
VI. By what degrees Men departed from it.
Right.
VII. That it was profitable to Mankind.
XV. How far Infants are capable of Property.
mong Men.
THAT this Power of Mankind over Things e allowing to another Principle: of which, before
ver began to take effect in relation to other we proceed to treat, it ſeems neceſſary to premiſe,
Men ; ( for no Human Property ought to be op- that Property and Communion are Moral Qualities,
pos’d to the Tranſcendent Right of GOD;) (a) (i) which do not affect the Things themſelves, as to
that this Indefinite Right was converted into their intrinſick Nature, but only produce a Moral
Dominion (2), by virtue of which ſuch or ſuch a Effect with regard to other Perſons : And that theſe
Thing belongs to one Perſon, and to none elſe, is Qualities, as all others of the fame Kind, derive
their
or,
Mr. Barbeyrac's NOTES on Chap. 4. $ 1.
(1) Euripides's Words are,
Ούτι τα χρήμα' ιδία κάκωται Pegτου,
Men poffeſs nothing of their own, but are
Τα των Θεών, και έχονlες επιμελόμεθα
The Stewards of the Goods, which co their Care
"Όταν δε χρήζωσ',αυτα αφαιρέντα πάλιν.
The Gods commit, and take away when they ſee fit.
Sec Lev. 25. 23. Pfal. 24. 1
(a) Vid. Euripid. Phoeniff. v. 558, doc. Add, Levit. 25. 23..
(2) Men by the Conceſſion of the Creator and Supreme Sovereign of the Univerſe have naturally a full power to make uſe of
the Creatures, as they fee fit, according to the ſtrength of their Reaſon. It there had
never been but one Man in the World,
as Adam was alone for a little time, the effect of his Power had been reduced to this, That nothing had been done contrary to
the will of the
Creator
, by diſpoſing of what had been preſented to him according to his Humour. Bur Mankind began to frame
and perpetuate themſelves trom Generation to Generation, from the moment that they became more than one Man, fince by Na-
Ture one had not more power than another over the Beaſts and inanimate Creatures. Every one acquir'd a Right, by virtue of
which another ought to permit him to enjoy, as well
as himſelf, all thoſe things which their Creator had granted them the uſe
for take it from him, but fuppofing it to be of that Nature, as not to be conſumed by the uſage, he may appropriate it to him-
Ielf ſo long as he has occation for it ; and others do him an Injury, if they would make uſe of it in their turn. So long as there
poffefs themſelves of nothing but what was for prefent use, and here
we may believe that all their Cares and Claims were boun-
and Teck oue ways to render their lives more conmodious and agreeable, there was no way left to live in that.Community ; but
Men muſt fix upon femething, and was juft, chat what was gorren by Labour and Induſtry hould be made ſuch a Property, that
+ T
a
DO

146
Book IV
Of the Origin of Dominion or Property.
1
their Birth from Impoſition. And therefore itis an things themſelves derive ſome kind of Extrinſical
idle Queſtion, Whether the Property of things ariſe Denomination. And this appears fufficiently evi
.
from Nature or from Inſtitution? Since we have dent from hence; that the Right dying with the
plain evidence that it proceeds from the Impofiti- Perſon, the things ceafe to be appropriated, with-
on of Men; and that the Natural Subſtance of things out any change in their Subſtance, or in other Na-
ſuffers no Alteration, whether Property be added tural Qualities and Affections.
to thein, or taken from then. IN to roibA T Now the force of Property is ſuch, that we may
- II. In the next place we ought with due accura at our pleaſure diſpoſe(2) of the things which we hold
cy to weigh and examine what Communion is, and by this Right, and may keep any other Perſon
what Property or Dominiona The Term Communion from the uſe of them; unleſs he hath obtain’d from
is taken either negatively or poſitively. In the us, by Covenant, a particular Right to this pur
former manner things are laid to be Common, as con- poſe: And that therefore whilſt they continue ours
,
fider'd before any Hunane Act or Agreement had de- they cannot after the ſame manner, and in
clared them to belong to one rather than to another. whole (3), be anothers. I ſay, after the ſame mana
In the fame fenſe, things thus conſider'd, are ſaid to be ner; for, neither as there is no reaſon to the contra
No Body’s, rather negatively than privatively, i.e. ry, fo Cuſtom informs us, that the ſame thing may
that they are not yet affign'di to any particular Per- belong to ſeveral Perſons at once, according to their
fon, not that they are incapable of being ſo allign’d. different ways of holding or owning it. Thus the
They are likewiſe teri'd res in medio quil'iiſvis ex- Commonwealth, the Landlord and the Tenant, by
pofitæ, Things that lie free for any Taker. But in Copy or Leaſe, may be ſaid each of them to have
the poſitive Signification of the Word, Common the Property of the ſame piece of Ground; the firſt
Things differ from appropriated only in this Reſpect, an Eminent Property (4); the ſecond a Direct (s), and
That the latter belong to one perſon only, the for- the laſt an Uſeful (6). It was added likewiſe, in
mer to many Perſons together, though in the very whole (b); for many Perfons may even in the ſame
ſame mnamer. To proceed, Property or Dominion, way, hold the faine thing, yet not in whole, but
is a Right by which the very Subſtance (1), as it were each according to his determinate Share. As is the
of a Thing, So belongs to one Perſon, that it doth not, caſe in thoſe Goods which are, without Diviſion (7),
in whole, belong, after the same manner, to any other. poffefs’d by many together, who all happen to have
For we take Dominion and Property to be the very the ſame kind of Propertywith regard to the ſame thing.
fame. Though ſome affirm the Right as ſeparated Sometimes we conceive Property to be divided in-
from the Uſe and Profit to be Property, and as join'd to ſeveral Parts; or, (if any one likes this Exprelli-
with the Uſe and Profit to be Dominion; which ne on better) to admit of ſeveral Degrees. For thus
vertheleſs is a difference that doth not perpetually 'tis frequently diſtinguiſh’d into Plenary and Dimi-
hold. Some again are over-nice, whilſt by Proper- nutive. The former is either join’d with what they
ty they underſtand the Thing it felf, under that call Eminent Property, in which manner Civil States,
Quality by which it belongs to me, and to none or the Heads and Governors of them poſleſs their
beſides; and by Dominion a Right to diſpoſe of the Goods ; or elſe disjoin’d from it, and term’d Vulgar
ſaid Thing as I pleaſe, which flows from Property by which a private Man enjoys a full Power of dif-
in the manner of an Effect; fo that the Dominion poſing of his Goods, except fo far that the Uſe of
ſhall be lodgà in the Perſon, but the Property ſhall them be not under the Direction of the Municipal
ſeem rather to inhere in the Thing (a). In which Laws. Diminution of Property may be made ſeve-
Diſtinction it is fallly fuppos'd, that Dominion is as ral ways, as that the bare Exerciſe or Adminiſtra-
it were the Effect of Property; whereas if a Man tion of it ſhall be reſtrain’d; or that the Profit and
at all neceſſary thus to divide them, the Advantage of it ſhall be leſſen’d? Or laſtly, That
reverſe of this is rather true. For the Right, ſtrict- ſomewhat ſhall be cut off from the very Property
ly ſpeaking, inheres in the Perſon, from which the it ſelf. The firſt happens (8), when by Covenant
,
us a No-
no other might have to do with it without his Permiſſion. Wherefore every one poſſeſſed himſelf of certain things with a deſign
to keep them always, and not to part with them unleſs it be by diſpoſing of them to whom they think fit, either alive or dying, at
leaſt declaring openly not to abandon them, and leave them to the firit Occupant. Thus the property of Goods was firſt elta-
bliſh’d, of which the Mark of Diſtinction is, That others are always excluded, whereas when all things were common, others
were not excluded from the things of which every one was poflefled but for a little time, (i. e.) as long as they were actually in
uſe. Then where Civil Societies formed, the Rights of Property were ſettled, and order'ä divers ways according to the Laws
agreed on. Thus have I given, as I think, in a few
Words, a clear and exact notion of this Marter, about which our Author en-
Jarges much, and yet reaſons obſcurely; and which has long been perplex'd with vain Subtleties
. if we joyn this with Note 4
of Paragraph 4. we thall have Principles fufficiene to judge well of it, and to rectifie che Notions of other Authors, who have
it6$ Note
Barbeyrac's 6 .
(1) See Nore 2. of the precedent Section, where you'll find a more natural and exact Definition. Our Author gives
tion of a particular Property, rather than a general one, conſider'd in oppofition to an univerſal Community of Goods.
(2) So ſays the Civil Law, Nam fuæ quidem quifque rei moderator, atque arbiter, doc. Cod. 1.4. tit. 35. Mandati, &c. leg. 25:
(3) So the Civil
Law ſpeaks, Et ait Celfus filius, duorum quidem in folidum dominium, vel poseſionem eſſe non posſe, Digeſt. 1. 13.
cit. 6. Commodati vel contra, leg. S. $15.
(4) See Lib. 8 c. 5 1. 7.
5) Our Author explains in the next Line, what is nieant by direct and uſeful Property, as the Modern Lawyers diſtingeifh
.
In ſhort, Uſeful Property imports a greater Right than disect Property, and is rather a Right Perſonal than Real, as Mr. Titius
obſerves in his Jus Privatum Romano German. &c, which was publiſh'd in 1709. Lib. 3. C. II. §. 3.
(6) See Chap. 8. $ 3. following.
(7) So the Civil Law ſpeaks, Nec quenquam partjs corporis dominium esſe, fed totius corporis pro indiviſo pro parte, dominium habere,
Digeft. I. 13. tit. 6 Commod. vel contra, leg. 5. $15.
(8) See the Inſtitutes, l. 2. cit. 8. Quibus alienare licet, vel non licet.
(a) Vid. Ziegler ad Grot. I. 2 c. 2 ſ. 1. (6) Plures eandem rem in folidum poßidere non poffunt, D. 1.4. tit. 2.D: acquirenda
vel admittenda pole Nione, leg. 3. 1.5.
911
or

CHAP. IV
of the Origin of Dominion or Property. 147
or by Teſtament, or by the Command and Autho- Common, as the word Common is taken in its latter
rity of Law, on account either of the Condition of Signification, implying that
the ſame thing is by
the Perſons, or of the Quality of the Things, or for the ſame kind of Dominion held by ſeveral Men,
fome other Juſt Cauſes, the Alienation of Poffeffions without being divided, or parceli'd out amongſt
is either prohibited, or confin'd within certain Li- them. And this Communion differs froin Property,
mits (9), yet ſo as that 10 Right
to the ſaid. Poffef- ſtrictly fo called, only with regard to the Subject in
fions, is hereby deriv'd upon others:
Add Theo- which it is terminated and lodg’d, a proper or ap-
phraſtus's Will'in Diog. Laert: 1,5:251; The Adi propriated thing, belonging to one perſon alone, a
vantage of Property is lefſen'd, if either the full
common thing to ſeveral, but not with regard to the
Uſe and Enjoyment of my Goods is in the Hands of manner or the vertue of the Dominion ; for many
another
, without Loan or Hire; or otherwiſe if I Perfons have the ſame Right over a common thing,
am bound to allow another ſome particular Uſe of as a ſingle Perſon hath over a proper thing; and
them, by way of Service. Laſtly, The Property it as the
Propriety of a thing appertaining to one only,
felf is then retrench'd, when we grant to another, excludes all others from an equal Right in the fame
beſides the full Right of uſing and enjoying what thing, fo a common thing excludes all others but
is ours, a Right likewiſe of alienating it after a cer- thoſe to whom it is ſaid to be common. Now fince
tain manner and ſuch a right too as is in ſome neither o theſe Commoners hath a Right extending
fort perpetual
. In which cafe, he who retains the it ſelf to the whole thing, but only to a part of it,
Property, though thus abridg’d and holds a ſuperior though fuppos’d to remain undivided; it is manifeſt
Power over the Poffeffion, is ſaid to have a Diree that no one Perſon can, by his own Right, diſpoſe
Property; and he who, together with the Right of of the thing entirely, but only according to his
uſing and enjoying, partakes likewiſe of the Pro- fixth Proportion (15) And that if any Relolution
perty in the manner before deſcrib'd, is faid to have is to be taken, any Bargain to be inade about the
an Uſeful Property in the Poſſeſſion thus granted to whole, the Conſent and Act of each commoner is
him (a). Where we may obferve, by the way, what neceſſarily required. Ziegler (c), Felden ( d), and
Limitation ought to be added to that common Rule Bæcler (e), in their Obfervations on Grotius, have
with the Lawyers, What is already a Man's own, can't all confounded Negative Communion with Poſitive:
become more his own (10). Whence they conclude, On account of which Miſtake, many Arguments
that no Pawn (11), no Charge, no Bargain of Buy- have been thrown away to no purpoſe, in diſcuſſing
ing, or of letting to Hire can poſſibly ſtand, when this point; as will appear hereafter. What Seneca
made to him who is already the Proprietor of the hath deliver'd about the ſeveral kinds of Commu-
thing thus diſpos’d of. As likewiſe if a Teſtator nion, may not be impertinent to our preſent Sub-
happens to bequeath to the Legatee what was his ject (f). I hold all things, ſays he, in common with
own before, the Act is void and fruitleſs (12). And a Friend (16), not as I do with a Sharer, ſo that
ſo too, that no one can (13), to any purpofe, ftipu- one part ſhould be mine, and another
late or bargain for a thing that will be his own but as Children are common to their Father and
without any ſuch Conditions, with other the like Mother, who , ſuppoſing the Children to be two,
Caſes. All which are true, unleſs it ſo happen, that are not ſaid to have each one, but each both. The
a Diminutive Property ſhould, by any of theſe means, Knight's Seats belong to all of that Order, yet
be advanc'd to a greater degree of Plenitude (b)
.in them, by taking Poffefion of a place, I appropri-
Farther, ſince the ſame thing may be poffeſs'd ei- ate it to my ſelf. And if I reſign this place to ano-
ther in whole by one, or elſe by many (14), with ther Perſon, though he had an equal Right to it, yet it
out falling under a Diviſion; ſo that each Perſon, ſeems to be my Gift. Some things belong to some Men
according to his Determinate Share, ſhall have an under a certain Condition. Thus, again, I have a place
equal Right in it; hence it comes to paſs that things in the Knight's Seats, not to ſell
, not to let out, not to
are, in this reſpect, diſtinguiſh'd into Proper and make my Home, but barely to fit in whilft I am a Spea
part his
(9) Seneca's Words are, Non eſt argumentum ideo aliquid tuum non elle, quia vendere non potes, quia conſumere, quia mut are in de-
terius aut melius. Tuum enim eſt etiam quod ſub tege certa tuum eſt.
(10) Quod proprium est ipſius (Legatarii) amplius ejus fieri non poteft
, Inſtit. 1. 2 tit. 20 de Legatis, 1.10. See alſo l. 4 tit. 6 de
(1) Neque pignus, neque depofitum, neque precarium, neque emptio
, neque locatio rei ſua confiftere poteft, Digeſt, li so tiſ. 17, De
Divers. Reg. Juris, l. 45.
(12) Sed fi quis rem Legatarii ei legaverit, inutile eft legatum, Inftit
. I, 2 tit, 20 . 10. See alſo Cod. 1. 6 çit. 37 de Legatis, leg.
13. And Mr. Daumat's Civil Laws in their Natural Order, Part
. 2 1. 4 cit. 2. Sect. 3 $ 8, doc. 30
(13) Nemo rem fuam futuram, in eum cafum, quo fua fit, utiliter ftipulatur, Inftit
. 1. 3 tit. 20! De inutilib: Stipulat, f. 22.
(14) So the Civil Law
ſpeaks, Seruus communis ſic omnium est, non quali ſingulorum totus, fed pro partibus utique indivifis, ut ine
toilet rougis partes babeat
quam corpore, Digeft
. as tit. 3: De Stipulat.
Seruorum, leg. s. "See allo lib. 31 de Ltgatis Fideicom.
(15) Thus the Civil Law commands, Nemo ex fociis plus parte ſua poteft alienare, et ſi totorum bonorutn focii fint, Digeſt. 1. 17 tit:
2. Pro Socio, leg. 68 prin. See Cod. Lib. 3 tit. 38. Communi dividendo.
modo Patri Matrique communes Liberi Junt ; quibus cum duo funt, non finguli Jingulos habent, fed finguli binos...
femDeinde pluribus
2406) Seneca's Latin is, Non enim mihi fic cum amico communia omnia
funt, quomodo cum focio, ut pars med fit, pars illius, fed quod
modis communia sunt : Equeſtria omniqm Equitum Romanorum ſunt : in illis tamen locus meus proprius, quem occupavi. Hoc fi cui
celli, quamvis illi communi recefferim, tamen aliquid dediffe videor
. Quædam quorundam ſub certa conditione funt. Habeo in Equeſtris
bus locum, non ut vendam, non ut locem, won ut habitem, in hoc tantum ut Speftem. Propterea non mentiar, fi dicam me häbere in eque.
Aribus locum, ſed cum in theatrum venit, la plena (unt Equestria G jure habeo locum illic, quia federe mihi licet, & non habeo, quia ab
bis, cum quibus jus mibi loci commune eſt, occupatus eft.
2010W Seriile
(a) Comp. Struvi. Syntagm. Exerc. 17. 55, Coc. Seneca de Beneficiis, 1. 7. C. 12. It's no Argument that a thing is not your
own becauſe you cannot ſell or ſpend it, becauſe you
cannot change it for better or for worfe. For that likewiſe may be truly
talld your own, which is your own under
certain Terms and Conditions. (b) As Lucilius in the Anthologia, 1. 2. jeſts (mardly
on eie old Mifer Hermecrates, in feigning that
he had ſet down himſelf in his will as Heir to his own Goods.
(c) Add Grot. I. 26.2 L. I ab init.
(d) d. l. 1. 2.
(e) d. 1. p.47. (1) De Benef. 1. 7. c. 13.
+ T 2
Hator,
00.000

Book IV
Peculiar (3), and fo 25 oderminate in
;
pohon. which I
148 of the Origin of Dominion or Property.
Etator. It will be no Falſity then, if I ſhould ſay, I IV. But farther, it ought no leſs carefully to be
have a place in the Knight's Seats , yet if they happen obſerv’d, that the Grant of Almighty God, by which
to be full when I come into the Theatre, I both have he gave Mankind the uſe of earthly Proviſions, was
a place there by Right, becauſe I am allow'd to uje not the immediate Cauſe of Dominion, as this is die
them; and I have not a place, becauſe it is already pof- rected towards other Men, and with relation to
Jefs d'by thoſe who had a common Right to it with my them takes Effect; (which is evident likewiſe from
Jelf.
hence, that even Brutes (1), by the Divine Periniſ
III. From what hath been offer’d, 'tis evident that fion, uſe and conſume the Fruits of the Earth, and
as well poſitive Communion, as Propriety, doth yet they are certainly incapable of Dominion :) But
imply the Excluſion of others from the thing thus that Dominion neceſſarily preſuppofeth ſome Hu-
ſaid to be either Common or Proper, and conſe- mane Act (2), and ſoine Covenant either Tacit or
quently doth preſuppoſe more Perſons in the World Expreſs. GOD indeed authoriz’d Mankind to ap-
than one. As then, if there were but a ſingle Man ply to their Service and Convenience the Earth,
upon Earth, it could by no means be faid, that with the Product of it, and the Living Creatures
things were appropriated to him: So thoſe things, upon it; or, he gave Man an indefinite Right to all
from the uſe of which no Perſon is excluded, or theſe Poſſeſſions : But ſtill it was left to their own
which belong no more to any one, than to another, Choice and Diſpoſal, what Manner, what Degree,
are to be ftiled common, in the former, not in the what Extent they would fix to this Power: That is
latter ſenſe of the Word. And thus it appears in whether they would circumſcribe it with certain
what reſpect we may attribute the Dominion of Bouirds, or leave it unconfin’d; as likewiſe whether
things to Adam, whilſt he yet ſtood alone in the they would allow each Perfon a Right to all things,
World. Namely, although by reaſon of the vaſt or only to one and the fame determinate part of
Extent of the Earth, and his ſmall Occaſions, he things; or whether they would allign to every par-
needed to apply to his Service but a very inconfi- ticular Man his own Portion, with which he ſhould
derable Portion of things; yet ſuppoſing him to reſt contented, and pretend no Right or Clain to
have had Inclination, and likewiſe Ability and Con- any thing beſides. Ambrof. off. 1. 1. c. 28. Nature
venience, to turn all that God had given him to his pour’d out all things in common to all Men: For
own uſe, there was no Right of others to oppoſe ſo God commanded the whole Stock of things to be
or hinder him. Therefore the Right of Adam over produc'd, that Men ſhould have a general Supply
things, was of a different kind from that Dominion of Suſtenance, and ſhould hold the Earth as a gene
which is now ſettled amongſt Men: We may call ral Seat. Common Right therefore was the Work
it an indefinite Dominion (1), not formally poſſeſs’d, of Nature; Private and Peculiar Right, the Work
but abſolutely allow'd ; not Actual, but Potential of long Uſe and Poffeflion. Add. Selden. de F. N.
It had indeed the ſame Effect which Dominion now & G. Seo, Heb. 1. 6. C. I. ?Tis in vain therefore to
obtains ; that is, the uſing things at Pleaſure, yet diſpute whether God conferr’d the Dominion over
was it not Doininion, ſtrictly ſpeaking, by reafon things on our firſt Parents, as the repreſentatives of
that there was no other Perſon againſt whom this all Huſnane Race; or whether he gave it them as
afterwards increaſe. And thus on the whole, whilſt Right, ſhould hold the Lordfhip of the whole World
,
Adam was the only Man, things in reſpect of him and that all other Mortals ſhould owe their private
were neither proper nor common. For Community Dominion to their Bounty and Favour. For that
ſuppoſeth a Partner in the Poſſesſion ; and Propriety Divine Grant only confirm d Men in a fuller Affu-
denotes an Excluſion of the Right of others to the rance of the Goodneſs of their Maker towards them,
thing enjoy'd . So that neither of thein can be un- and fatisfy'd them that 'twas his pleaſure, they
derſtood, 'till the World was furniih'd with more ſhould diſpoſe of other Creatures for their own Uſe
than one Inhabitant.
and Service. But it was left to the Reaſon of Men
(1) The Author expreſſes himfelf very ſcholaſtickly here, ſaying, Quod quis vocare poſſit dominium indefinitum, non formaliter
,
Mr. Barbeyrac's NOTES on Ś
be ſhadow poffel-
fing with Property, rather a true and actual Property
Mr. Barbeyrac's NOTES on Ş: 4.
(1) I wonder our Author ſhould in this place
in this place make uſe of to weak a Reaſon. For he himſelt obferves in more than one
place,
that Beaſts ace not capable of any Right or Obligation, neither among themſelves, or with others, nor is there any Law for
ſo that
thoʻin one fenfe God permits the Beaſts
to uſe what is for their Convenience, yet 'cis not
fuck
a real Grant, as has the
Nature of Right
, and in that reſpect we can no more fay, that God wills (for example that the Birds
lhould eat the Fruits and Corn where-ever they find it, than that God would have a Bear or a Lion to pull that Man in pieces
, who
(2)
An humane Right: Igrant, that is to ſay, taking poffeffion, by virtue of which every one acquires a particular Right
over that which before he had only a common one. But
Contracts are neceffary, when a thing is to be parced, of which ſeveral
have pofleffion at the ſame time.
(3) An Engliſh Knight, named Robert Filmer, maintains it with a great deal of Heat, and makes uſe of it to prove the abſo-
lure Power which he attributes to Sovereigns, and which, as he pretends, has come down by Succeffion from the Authority of
Adam, whom he makes the firſt Sovereign. He chiefly inſiſts on this Texs, Gen. 1. 28. where God ſays to our firſt Parents
, In:
creaſe and multiply, and repleniſh the Earth, and ſubdue it, and have Dominion over the Fip of the Sea, over the Fowls of the air, and
over every Beast that moveth upon the Earth. But Mr. Lock, who has confüred that Book in an Engliſh Work, of which we may
find an Extract in the Univerſal Library, Tom. 19. anſwers judicioully, 1. That in theſe Words God gives Adam no Power bue
over the Beafts. 2. That he gave him no property over theſe living Creatures to poffefs chem as his own, but as in a commod
Right with all Mankind. This the Author proves at large frona diverſe parallel Paſſages of the Holy Scripture, and parcicularly
by che very Grant that God repeated to Noah and his sons. The Text in Pſalm 115. 16. is not anſwer'd, God, faith the Pfal
.
miſt, hath given ihe Earth to the Children of men, which, according to the Hebrew Scile, is to Men in general, or to Mankind.
Treatiſe of Government, l. 1. C. 4.
ID
3.
Our Author Should in
call di
to

of
any Man
Pe blig'de by God himſelf,
5 gacher'd in a Wowor when my makes
CHAP. IV. Of the Origin of Dominion or Property. 149
to determine what Meaſures ſhould be taken to pre- Men are enjoin'd to make ſuch an Appropriation of
vent any Difford that might ariſe amongſt then things, as that each Man ſhould be allotted his par-
from the Exerciſe of this Right. But we can by no ticular Portion, divided from the Shares of others.
means ſay, That there was any univerſal Rule and Though the Law of Nature doth indeed ſufficient-
fore things were rendred neither proper nor common Exigencies of Humane Society; yet ſo as to refer it
in
,
Command of God: But this Matter was afterwards only fome particular things
, or whether they would
adjuſted by the Diſpoſal of Men, according as the poſfefs fome things without bringing them to a Di-
Peace of Humane Society ſeem'd to require. Whence, viſion, and leave
the reſt as they found them, only
thoſe Authors muſt needs be under a Miſtake, who forbidding any particular Man to challenge them to
deliver themſelves in fo groſs Terms as theſe : The himſelf alone. Hence too, the Law of Nature is
Diviſion of things belongs to the Law of Nature; ſuppos'd to approve and confirm all Agreements
that is, it doth not only receive its Riſe and Founda- made by Men about the Poffeffion of things, pro-
tion from Nature, ſo as afterwards to be turn'd into vided they neither imply a Contradi&tion, nor tend
Law by the Conſent of Mankind; but Nature her ſelf to the Diſturbance of society. Therefore the Pro-
frames and compleats this
Law by her own AX and Au- perty of things flow'd immediately from the Compact
thority. And again, The Diviſion of things is one of Men, whether tacit or expreſs
. For although af-
Command of the Decalogue ; that is, une Head of the ter the Donation of God, nothing was wanting but
Law of Nature. For he that ſaid, Thou shalt not for Men to take Poffeſfion; yet that one Man's ſeiz-
ſteal, in effect ſaid, Let there be a Property and Di. ing on a thing ſhould be underſtood to exclude the
flinction of things; let every one hold what is his own, Right of all others to the ſame thing (4), could not
and not covet what is anothers (a). For there is no proceed but froin Mutual Agreement. And though
Precept of Natural Law to be di cover’d, by which Right Reafon mov'd and perſivaded Men to intro-
font
(4) No, in no wiſe. Ic is certain on the contrary, that the immediate Foundation of all particular Right, which
has to a thing, which was before common, is the firſt pofleffion. This was the moſt ancient way of Acquirement. And indeed,
when ſeveral chings are given in general to a number of Men, which exiſt noc at the ſame time, and who neither can nor wilt
poſſeſs all things in common, and ſuch are Men of all Times and places, the intention of the Donor doubtleſs is, That thoſe who
come firſt ſhall gain a perſonal Right to thoſe things that they have goccen, excluſive of the Precenſions of all others, without
any conſent of theirs need ful to be given. All taking pofleffion, according to the will of the Donor, hach in it an effectual Vir-
tue to make the firſt Occupant appropriate to himſelf
lawfully any thing before held in common, provided he cakes no more than
he needs, and leaves enough for others. This is what Mr. Titius ſays judicioully, Obferv. 278. n. 2. in which he was prevenced
by Mr. Lock, who in his excellent Treatiſe of Civil Government, has among other things ſearched to the bottom with much
Curlofity and Solidity into the mander how the Property of Goods is acquired. Take, in ſhort, his Judgment how Men may
pofleſs in divers parts, what God gave then in common, and enjoy it without any Agreement made between them, who have
the ſame Natural Righe. God, who gave Man the Earth, and all things in ic for his subſiſtence and Convenience, intended, with
e double hihat khe chandise put them to fuch an uſe, as would be moſt advantageous to their Life, and moft conformable to the
and the Beaſts which are broughc up by the Care of Narute only, unleſs he appropriate co himſelf, ſome way or other, ſome of
theſe Fruits and Animals. If it were a Crime to take the leaſt thing which is given in common, before we had the conſent of
all others who had any Right, we might perilh a thouſand times with Hunger in the midſt of Plenty. When a Maſter of a
Family provides a diſh of Meat for his children or Servants, he does not divide to each of them a part, but what each of them
fairly takes, belongs to him, although before none of them had more Right than others, and although none of them had an
allowance given them to take this or that porcion. Farther, reeing every one is the only Maſter of his Perſon and Actions, the
Labour of his Body and Work of his Hands entirely and ſolely belong to him, as his own proper Goods. So that all that he has
derived from the ſtate of Nature by his Labour and Induſtry, what he has gorcen by his Pains, belongs to him only, and others
Man who on
căn’i precend to them, unleſs there does not remain enough of the ſame things, or as good, among thoſe that are common. A
his ownBut
Bat it ?
them, or when he carries them home, or when he lays them up ? 'Tis plain, that nothing but his labour in gathering them, can
make them his own. Quod omnibus naſcitur, induſtriæ præmium est, Quintil
. Declam. 13. 'Tis our Labour that diſtinguiſhes theſe
Fruits of the Earth from other common Goods, and which adds ſomething more than the common Mother of all Men, I mean
Nacure, hath beſtow'd. See Plautus in his Rudens, and Felix's Naufragium, A& qu Scene 3.-7.33, doc. By the fame Reaſon,
the Graſs that a Man's Horſe hath eaten, the Turf which his Servant has cur, the Dirch he hath digged, and the Water which
he hath drawn, become his own Goods and Inheritance, without the confent of any other. 'Tis the ſame at this day with the
Seag which we have kill?d, the Fiſh we have taken, the 'Ambergriſe or Pearls which we have fifh'd up, and the Hare which we
have hunted down, in the places where Hunting and Fiſhing are allow'd to every body, or in them that belong to no body, as
the vaſt Ocean. So that ſo many Acres of Ground as a Man can Till and Sow, and whole Fruits he can ſpend for his Mainte,
nance, belong properly to him, and he hath a Right to incloſe that ſpace with Hedges, Ditches, Walls, or after any other
manner, without any Man's permiſſion. And this is the rather true, becauſe the Creator himſelf, in giving the Earth to Men
in.common, hath commanded them to labour, and has put them into ſuch a Natural State, that they are neceffitated not to be
idle Buc ir doch not hence foilów, that we may
gacher as many
Fruits, cake as many Beaſts, or poſſeſs our felves of as many
Acres of land, or, in a word, appropriate to ourſelves as many Goods as we pleaſe For the ſame Law of Nacure which hath
given every one a particular Right to the things the hath given, by his Labour and Induſtry, ſeparate from the ſtate of Commu.
nity wherein they were, the fame Law, I fay, has ſer certain Bounds to our Right. God hath given all things abundantly, 1 Tim.
6.17. Why? to enjoy them. This is the Voice of Reafon confirmd by Revelation. Wherefore the Property of Goods ac-
quir'd by Labour malt be regulated by the good Usage which may be made of them for the Neceffity and Convenience of Life.
See what our Author days, c. 6.9 3. Following it se paſs the bounds of Moderation, and we take what others have occaſion
for, without doube we ſeize on chać which belongs to others; eſpecially, it having got any thing fuperfluous, we leave not ſuf-
ficient to relieve their Neceſſities, and ſupply them with things convenient and ſatisfying. We muſt not ſuffer any thing which
God hath created for the service of Man, to periſh or become uſeleſs. If we conſider with attention the abundanee of Natural
Proviſions which have been a long time in the world, the ſmall number of thoſe who can ufe them, and for whom they are apa
pointed, and how htele a Man can appropriate to himſelf with the exclufion of others, eſpecially it he keep himſelf in the juſt
pounds preſcribed by Reaton, we muſt be obliged to acknowledge, that the Propriety of Goods to eſtabliſh'd would not produce
the Icart Diſputes and Quarrels. We may ſee this diſcourſed at large in the work of Mr. Locky Lib. 2. C. 4. Moreover, Mr.
Van der Muelen hath airo confuted our Author in his Comment upon Grotins, I. 2. $ 1. p. 56.
(4) Vid. Bucler. ad Grat. in prafat. p. 9.
duce
are
he dreſſes

150 of the Origin of Dominion or Property.
Book IV.
duce diſtinct Properties, yet this doth not hinder, to others with this reſerve and reſtriction, Unleſs I
but that they might derive their Riſe and Original am unable otherwiſe to compaſs my own Preſerva-
from Humane Covenant.
tion. My Calamity doth not give me a
V. Thus much being premis’d, it is manifeft, that things to which I had none before ; but the extremity
antecedently to any Actor Agreement of Men, there of my danger makes
that Condition ceaſe, under which
was a Corimunion of all things in the World ; not I gave up my firſt Right. For the fame Reaſon, it is
ſuch as we have before term'd a Poſitive, but a Ne- lawful in War to ſeize the Goods of the Enemy: Be.
gative Communion : That is, all things lay free to cauſe all Compacts being diſſolv’d (4), the Original Right
any that would uſe them, and did not belong to one returns. He adds, p. 110. That before the ſettling of
more than to another. But ſince things could af- Covenants, forf Occupancy did not by its own force con
ford no Service to Men, were we not allow'd to lay fer any Right
. Becauſe firſt
, in whatever Necefitous
hands at leaſt on Fruits and Products of them, and Condition. I was plac’d, I could then have no
• Right to
ſince this would be to no purpoſe if others might recall theſe Goods to my own Uſe; this privilege taking
lawfully take from us, what we had before actually place only in Goods which I voluntarily refign’d to my
mark’d out for our own Uſe: Hence we apprehend Neighbour : But there are not many perſons to be met
the firſt Agreement that Men made about this point, with, who would allow ſuch a Prerogative to things thus
to have been, that what any Perſon had ſeiz'd out acquired.
of the common ſtore of things, or out of the Fruits Which Reafou might be thus propoſed in clearer
of thein, with deſign to apply to his Private Occa- Terms.
fions (1), none elſe ſhould rob him of. This (a) may If firft Occupancy of it ſelf conferr'd a Right ex-
be illuſtrated by the Caſe of Beaſts, amongſt which clufve of all others, it would follow, that even iň a Caſe
none can claim a peculiar Right to any thing above of Neceſty, Goods thus attain’d, could not be made
others (2); but each ſatisfies his Appetite with what uſe of by any other perſon than the Poffeſor : Because
he firſt meets with in his way: And if any of them the Right of Neceſſity follows from an Exception added
hath been ſo provident as to lay up a Stock for fu- to the firft Compact about the diviſion of Goods ; but
ture uſe, the reſt are under no Obligation to for- we before ſuppoſed that no ſuch Compaš had paſsà a-
bear invading and plundering it: Inaſinuch as no bout things which came into Mens poffefion by theſe
Agreement can have paſs’d amongſt thein, which Means. It being then abſurd and unreaſonable
, that a
might lodge the chief Right to any thing in the Perſon reduc'd to Extremity, ſhould not be allowed to
firſt Taker.
uſe what another hath by Occupancy made his
The Author of the Treatiſe de Principiis jufti & follows, that the Right by virtue of which Occupancy
decori (b) hath advanc'd ſomewhat on this Subject, fixetb a Property, is likewiſe owing to Covenant. Tho'
which may ferve to ſet it in a fuller Light. He Jup; this Argument is at the beſt but very feeble (5).
poſeth beforehand, that Man may lawfully po leſs and He proceeds Secondly to affirm, That there is in
afe Creatures void of Reaſon, and thence infers, that Nature no more reaſon why Men flvuld defire a Right
fince Men are by Nature Equal, all muſt have an E- from the firft Occupancy of things (6), than from the
qual Right to the Creatures (3), there being in reſpect firft diſcovery of them with the Eye. Therefore the
of the Creatures themſelves no Rule aſigning one part difference muft ariſe from the Infitution of Men, or-
to me, and another to my Neighbour : What remains daining, that the Right to a piece of Land, for in-
then, but that the diftin&tion and diviſion of Goods muſt ſtance, ſhould be in him who firſt took poffeffion of it,
bei deduc'd from Compact? But foraſmuch as all Hu- not in him who fam it before others
. Thirdly, he
mane Inſtitutions and Ordinances are made with the ſays, Let us ſuppoſe two Men, one jwift, and one lowe
exception of extreme Neceffty, therefore when ſo de pe- of Foot, 'tis evident what an ill match'd Couple we
rate a Caſe happens, the Primitive Right to all things have here, as to the Buſineſs of acquiring Property;
revives: Becauſe in the Common Agreement for the and by conſequence, that the Right by which he who firji
Diviſion of Things
, every one is ſuppos’d to have re. Jeizeth the thing, in this Cafe, ſhould be the true Owner
nonic'd his Right to thoſe Things which were allotted of it, is not borrum'd from Nature, but from. Implicit
OWN ;
at
anco e Mr. Barbeyrac's NOTES on $ 5.
(1) This Agreement is in no wife neceſſary, as may appear from what has been ſaid in the preceding Note. The Roman
Lawyers do not ſuppoſe any even in that Law, to which our Author reters them, and whereas to fhew, chat Property of Goods
did begin by taking poffeffion, they ſay, there remains to this day fome footſteps of it in things which yer remain common,
which belong to the firſt Occupant. Dominiumque rerum ex natur ali posſeffione cepiffe Nerva filius ait, ejufque rei veſtigium remanere,
de bis, que terra, mari, cælo capiuntur, nam bæc protenus eorum fiunt, qui primi posseflionem eorum apprehenderent, Digert
. 1. 41. tit. 2. De
adquirenda aut admittenda posseſſione, leg. 1. There is alſo a place in the Inſtitutes, which I ſhall quote, c. 9. 99. n. 9. from
whence it will appear, that according to the Notion of the Roman Lawyers, Poffeffion is all chat transfers property by virtue of
the intention of him who gives any thing to many in common.es
(2) See $ 4. Note 1. aforegoing. De doutora agarri bor
(3) This is true, bur they have it only for their uſe. All that follows from this Equality of Right is, that no Man oughe to
poffefs himſelf of ſuch a great quantity of Goods, that there remain not ſufficient for others
. See Nore 4. upon $ 4 aforegoing.
(4). This is noc it, but the true Reaſon is the ſtate of War, where two are Enemies the one to ghe other. And indeed ſuppo
ſing that they who have had each theit Goods in Property, ſhould come of a ſudden co ſuffer them to be common by an unani-
mous Conſene, and without ceaſing to be friends, every one may after this take what is convenient, and none have right to de
prive others of what they are pofleffed for their uſe. Thus Velthyſen argues upon the falfe principles of Hobbes. Hou bude
no(5) The Right and Privileges of Neceſficy are not ſo bounded as to difpente with fuch Duties, as ſuppoſe an Agreemene in
certain Caſes. They alſo make exceptious to ſeveral Natural Laws, which in no wiſe depend upon Humane Agreements.
(6) The Reafon of it is very clear, and 'cis chis, That he declares thereby an intention to ſee apart ſuch a thing for his uſe,
or to appropriate ic to himſelf, as he may by virtue of his common Right to uſe it, which
without that would become uſeleſs
to any Man. The meer fight of a thing can't have the ſame effect, becauſe we ſee many things without any deſign of caking
them to our felves only. But if at the ſame time we perceive a thing fift, and we diſcover any ways an intention of reſerving it
to ourſelves, others may no more pretend to it, than if we were actually ſeized of it. See what is ſaid on c, 6. So chae 'cis not
neceffary to ſtay to prove, chat che third and laſt reaſon of Velthuyſen are of po force.
(a) To this belongs 1. 41.6. 2. D. de acquir. vel admittenda poff. l. 1. (6) Velthuyſen. p. 100, doc,
Covenant

CHAP. IV.
Of the Origin of Dominion or Property.
151
Covenant or Agreement. He might have ſaid more about a thing ſhould have an equal Right to it with
briefly, upon Suppoſition that all Men had original- another, by whoſe Induſtry it was either firſt rais’d,
ly an equal power over things, we cannot appre or exactly wrought and fram’d, to render it of far-
hend how a bare Corporal Ax (4), ſuch as Seizure is, ther Service. It was highly conducive then to the
fhould be able to prejudice the Right and Power Common Peace, that immediately upon the Multi-
of others, unleſs their "Conſent be added to confirm plication of Mankind, Properties ſhould be appoint-
it: That is, unleſs a Covenant intervene. What ed in moveable Things, eſpecially ſuch as require
the fame Author diſputes farther; That (a) in the the Labour and Improvement of Men, and in thoſe
Primitive State one Man might have brought the whole Innmoveables which are of immediate and necefla-
World under his Subjection, is vain and idle, and is ry Uſe, as Houſes, for Inſtance; ſo that the Sub-
confuted by Mr. Hobbes himſelf (b).
ſtance of them ſhould belong either ſeparately to
VI. To proceed, Men left this Original Negative particular Perſons, or to ſuch a number of Men as
Communion, and by Covenant fettled diſtinct Pro- had by peculiar Covenant agreed to hold them in
perties, not at the ſame time, and by one ſingle the way of Poſitive Communion. Farther, although
A&t, but by ſucceilve Degrees, according as either there appears ſome reaſon in theſe Things, why they
the Condition of Things, or the Number and the ſhould rather belong to ſome than to others, yet
Genius of Men ſeein'd to require. Thus the Sey- the Dominion or Property of them, ſuch as implies
thians of old appropriated only their Cattle, and the the excluſion of all Perſons beſides, was to be con-
Furniture of their Houſes; leaving their Land in firm'd at leaſt by tacit Compact (1): And this tacit
its Primitive Communion (c). Indeed the Peace Compact involv'd a tacit Cellion of the reſt of Man-
and Tranquility of Mankind, for which the Law of kind; intimating, that whatever had been allign'd
Nature appears eſpecially concern’d, gave no ob- for any ones Private Share, they would rever chal-
fcure Intimation, what would be moſt convenient lenge any Right or Title to, upon pretence of its
for Men to appoint in this Affair. For that each receiving its Matter, or its Nouriſhment froin the
Man ſhould retain an equal power over all Things, Earth, the Common Habitation of Men. As for
or that the Univerſal Proviſion ihould be laid in thoſe Immoveables which Nature produc’d, without
Common, ready for the promiſcuous uſe of every the concurrence of Humane Induſtry, that is, Lands,
Perſon, was not conſiſtent with the ſafety and quiet of ſince they were ſo widely extended, as abundantly
Humane Race ; eſpecially after they were multipli- to ſatisfie the ſmall number of the firſt Men;
ed into conſiderable Numbers; and had cultivated much of them was from the beginning taken into
and improv'd the Method of Living. Becauſe (d) Poſſeſſion, as Men thought convenient for their pre-
there could not but ariſe almoſt Infinite Claſhings, ſent Occaſions; the reſt being left in its Natural and
from (e) the deſire of many Perſons to the fame Negative Communion, to be poſſeſs’d by any Per-
Thing, which was not able to ſatisfie them all at fon that ſhould afterwards think fit to uſe it. Here
once ; it being the Nature of the greateſt part of therefore (2) we muſt conceive a Covenant to have
what the World affords
, to be incapable of ſerving paſs’d to this Effect; that thoſe Lands which had
more than one Man at the ſame time. As for the been aſſign'd to particular Men by the expreſs A-
preciſe Order, and the particular Cauſes of Things greement of the reſt, or ſuch as the reſt were ſup-
paiſing into Properties, I conceive we may thus pos’d to have reſign'd all their Title to, by permit-
come to an apprehenſion of them. Moſt things of ting a ſingle Perſon quietly to enjoy, and by taking
immediate uſe to Men, and which are applied to to themſelves other Lands in the ſame manner,
the ends of Nouriſhment and Cloathing, are not by ſhould belong to the Manurers and Improvers of
bare unaſlifted Nature produc'd every where in to them: And that what remain'd ſhould paſs into
great abundance, as to yield a plentiful ſupply to the Property of thoſe who would afterwards fix up-
all. As often therefore as two or more ſhould want
the ſame thing which could not content them all VII. That the ſettling diſtinct Properties turn’d
together ; and ſhould endeavour to ſeize and ſecure to the real Benefit and Advantage of Men, when
it for themſelves
, ſo often there inuft ariſe a moſt grown more Numerous, may he illuſtrated from the
probable occaſion of Quarrels and Hoſtilities. A- fame Arguments which Ariſtotle (f) brings tɔ over-
gain, many things ſtand in need of Humane Labour throw the Platonick Communion of Goods. Though
and Culture, either for their Production, or to fit indeed his Deſign was to refute a Poſitive Commu-
and
prepare them for Uſe. But here, it was very nion; whereas our Enquiry proceeds about the Rea.
inconvenient that a Perſon who had taken no painis fons inclining Men to quit that Communion which
fo
on it.
(7) It is available by virtue of the Intention of the Creator, who has given Men this common Right, that they may make uſe
of it. And every one ought to think, that it belongs to him to do no prejudice to the Rights of any other, who in their curn
may one way or another plead che privilege of the firſt Occupant.
Mr. Barbeyrac's NOTES on $ 6.
(1) By what I have ſaid in the foregoing Noces, we may ſee that there is no need of any Renunciation, either Expreſs or
Tacit
. This may fuffice to rectifie the attentive Reader in underſtanding all that our Author in the following part of this work
builds upon that falſe Principle, without which I thould be obliged to enlarge my Notes to no purpoſe every moment to correct it.
(2) Our Author doth here by the Bve criticize upon an Expreſſion of the Jewiſh Hiſtorian Joſephus, l. 1. c. 3. where he ſays,
That Cain was the firſt that fet bounds to Lands, "opes to zas ngãrGkteto, p. 7. in which he deſerves, ſays our Author, noe
to be believed more, than in what he ſays in the fame place, That Cain barbarouſly uſed and infolently treated all thoſe thac
dwele with him ; that he gather'd great Wealth by Rapine and Violence
, and that he cheriſha Companies of Thieves. For how
can ſuch things be attributed to the eldeſt Son of the firft Man and firſt woman, from whence all Mankind are deſcended. See
Becler's Differtation, entitled, an Exercitation upon Fl. Joſephus's Antiq. Jud. Lib. 1. c. 2 printed in 1701, and what is ſaid, S 1o.
ec, about the primitive Community of Goods.
(a) Ibid. & 103. 166. (b) De Cive, c. 1. f. 11. (s) Juſtin. I. 2, c. 2. (d) Vid. Digeft. 1. 8. cic. 2. De ſervitut. předior.
(e) Vid. Hibbes de Cive, c. 1, 1.6. (f) Polit: l. 2. c. 5. p. 316. Ed. Pariſ.
terbanor. leg. 26.
AU
we

152 Of the Origin of Dominion or Property.
Book IV.
we have already ſhewn to the Negative (a) (1). If diſcover the Falſity of that Vulgar Saying (6), Meun
ſays he, Men labour'd in common, and laid up all they and Tuum are the cauſe of all the Wars and Quarrels
got in one Heap, out of which they were freely to take in the World. For on the contrary the Diſtinction
for their Support, 'tis impoffible but that Heats and of Meum and Tuum was rather introduc'd to pre-
Quarrels flould ariſe from the Inequality which muſt vent all Contention. Hence Plato, LL. 1. 8. p. 214
be obſerv'd between Some Men's Getting and Spend- Ed. Wech. calls the Meer-flone (7), the Boundary of
ing (2). In general (as he well remarks) the living Friendſhip, and Enmity, confirmºd by Oath, and a
together, and upon the same Stock and Maintenance, prov'd of by the Gods. Of the Sacredneſs of the
is grievous and uneajie. Which is the Reaſon that we Landmark, ſee likewiſe Deut. XIX. 14. Fob XXIV.
are never ſo bighly diſpleas’d with other Perſons, as 2. L. 27. t. 21. D. de Termino moto. Collat. leg. Mo-
with our Servants and Family Dependants, who are Jaicar um cum Rom. tit. 13. Paul. Sentent. II. 16. V.
continually under our Eye. But now upon the intro 22. Frontinus de re agrar. Let every one keep his
ducing of Property, all theſe Complaints are filenc'd (3), opn Bounds and not diſturb thoſe of other Men: for
every one grows more Induſtrious in improving his pe- therefore was the Mark-ſtone ſet up, litem ut difcer-
culiar Portion; and Matter and Occaſion is supplied neret agris, to end the Quarrels of the Field.
for the Exerciſe of Liberality and Beneficence towards. But that infinite Field of Holțilities and Strifes, a
others. It were better therefore that Goods ſhould be riſeth only from hence (8), That the Avarice of
made proper as to the Poſſeſſion (4), and ſhould be Common Men is ever aiming to break through thoſe Bounds
only in the Uſe. Again, To confder a thing as our of Meum and Tuum, which have been by Law or
own, raiſeth the Plea] ure we take in enjoying it (b). To Covenant eſtabliſh'd' (c).
gratifie and aſſiſt a Friend, a Gueſt, or a Companion, VIII. Though what hath been here deliver'l ſeems
fills us with ſenſible Satisfaction and Delight; and this plain and evident, yet we think it not impertinent
we cannot do, unleſs we have a ſeparate Share of Good to examine more largely the Opinions of ſome An-
things to our ſelves. Beſides, since there are few things cient and fome Modern Writers on this Subject
. A.
which can be made ule of ly all Men at once, when mongſt the former, Diodorus Siculus (d) reports, That
many Perſons ſhould happen to let their Mind on the the firſt Earth-born Men led a wild and irregular
Same Object, which could not ſuffice them together, Lifs, went out in Herds to ſeek their Food, which
they muſt of Neceſſity fall out, were not the deſired Ob- conſiſted of the moſt juicy Herbs, together with ſuch
ject already aſign'd to a particular Owner. It muſt be Fruits as the Trees Spontaneouſly produc'd : But not
confeſs’d theſe Reaſons did not weigh ſo much with knowing how to bring their Proviſion together, and to
Sir Thomas Moor and Campanella, as to hinder them lay up a Store for future wje, many periji'd during the
from ſetting up a Communion of Goods, the former Winter, purely through the Inclemency of the Air,
in his Utopia; the latter in his Realm of the Sun: and partly through want of Suſtenance; 'till by degres
It being much more eaſie to fanſie perfect Men than gaining Inſtruction from Experience, they began to
to find them (5). But farther, we may hence too retire into Caves in the Cold Seafon, and to reſerve
Mr. Barbeyrac's NOTES on 6 7.
(1) The Greek is, Και δεν ταϊς απολαύσει, και αν τις έρρις μα καινομένων ίσων, αλλ' ανίσων, αναγκαίον έγκλήμαθα γίνεται
προς τις απολαύονίας με ή λαμβάνοντας πολλά, όλίγα και πονώντας, τους ελάτίω μεν λαμβάνει, πλείω 5 πονέσιν.
(2) The Greek is, “Ολως και το συζω, και κοινονείς των ανθρωπικών πανιων χαλεπον, και μάλιςα των τοιέτων: δηλεσι δ' αι των
συναποδήμων κοινωνίαι χεοον δοί πλείςοι διαφερόμενοι εκ ταϊς οντισι, και εκ μικρών προσκρέοντος αλλήλοις. έτη και θεραπόνων το.
τοις μάλισα προσκρέομεν, οίς πλείσα προσχρώμα.δε προς τις διακονίας τας εγκυκλίες.
(3) So Αriftotle exprefes it, Αι μεν γ επιμέλειαι διηρημεναι, τα εγκλήματα προς αλλήλες εποιήσασι μάλλον δε επιδώσεσιν, ως
Teisision excise 70903d gevorles. This is well exprels'd in a Law of the Cockt, Naturale quippe vitium, negligi quod communiter
Pidetur ; utque ſe nihil habere, qui non totum habeat, arbitretur : denique ſuam quoque partem corrumpi patiatur dum invidet aliens,
Lib. 1o. tit. 34. Quando do quibus quarta pars, doc. leg. 2. in princip.
(4) And again, Φανερον τοίνυν όη βέλτιον είναι μεν ιδίας τας κλήσεις, τη δε κλήσει ποιείν ποινας a de xej reg's jcbrary
αμύθιον, όσον διαφέρει το νομίζουν ιδίονπ--- αλλα μην και το χαρίσασθαι, και βοηθήσαι φίλοις, και ξένοις, ή ετέροις ήδισον» ό γί-
velce no xuoews idias žons. 'Epicurus (to uſe Mr. Bayle's words in Hift. Diction.) would not imitate Pythagoras, who caught, that
among Friends Goods ought to be common. (Diog. Laert. 1. 10. $ 11.) He found it out, that ſuch an Etabliſhment betray'd
Diffidence; he lik'd better that things ſhould remain on the ſame foor, that every one mighe voluntarily contribute to the Wants
of others when there was a neceſſity. He atlures himſelf, that this Notion comes nearer Perfection, than to maintain a Commu-
nicy of Goods, and we can't ſufficiently admire the Union of Epicurus's Followers, and the Goodneſs by which they aſſiſted one
another, while every one remaind Maſter of his own Eſtate. See Cicero de finib. bonorum do malorum, l. 1.C.20.
(5) An univerſal Community of Goods, which might have place among Men perfectly juſt and free from all irregular Paf.
fions, can’e but be unjuſt, chimerical, and full of Inconveniencies among Men ſo diſpos'd as we are. For che Agreement which
isobí ervable ſometimes among the Members of cercain particular Communicies, can't be drawn into a conſequence for an univere
fal
Society of all Nations, and people ; nay, noe ſo much as of a Village, or ſome other place, which contains ſeveral Families of
different Conditions, and made up of a number of unequal perſons. See Mr. Daumat's Civil Laws in their Natural Order, Part 2.
iu the Preface, $ 2, and the Diſcourſe of Ulric Obrecht, De Communione, which is the firſt of the Collection publiſh'd in 1704.
Strasburg. To this we may add what Mr. Bruyere (in Charalt. penuit. du dern chap.) ſays, Thac if Men a bound with Goods,
and no body in this caſe live by his Labour we ſhall want Neceflaries and Conveniencies. If there be no Wancs, chere
will be no Arts, Sciences, Invention, nor Mechanick Trades. Farther, an equality of Poſſeſſions and Riches would fecele the
like in Conditions, baniſh all Subordination, reduce Nen to a ſtate of ferving themſelves and nor helping one another, render
Laws frivolous and uſeleſs, introduce an univerſal Anarchy, and bring in Violence, Injuries, Maſlacres and Impunity. The reſt
of the Character is pleaſant to read, but too long to be inferred whoie in this place. See alſo Quintil. Declam. 261.
(6) Quiet a vita iis qui tollunt, Meum, Tuum. Publ. Syr. Sentent. v, 620.
(1) Prato’s Words are, Euregon aidov óei Sovta qinidy, rý ex@egy,
(8) Lyfias's Words are, Διαφέρεται σε προς αλλήλες εκ των τοιύτων μάλις', αν οι μεν των αλλοτρίων επιθυμώσιν, οι δε εν
των όνον εκπιπλασι.
(a) To which add Ariſtophan. Concionatr. p 716. (6) Juvenal Sar. 3.
Eft aliquid quocunque lcco, quocunque receļu,
'Tis ſomewhat to be Lord of ſome ſmall Ground,
Vnius leſe Dominum feciſſe lacerte.
In which a Lizard may at leaſt curn round.
(c) Lyſias Orat. 17. De Nicie bonis publicatis, chap. 4. The main Cauſes of Dilentions among Subjects are, that some cover other
Mtenis Poleſions, whilſt ſome again, are robb’d of their own, (d) Lib. i.
ac
Mr. Dryden.
a ſufficient

Chap. IV.
Of the Origin of Dominion or Property.
153
was
“ Fas erat ; in medium quærebant,
a ſuficient Stock of ſuch Fruits as were fit for keep Nor had they yet begun
[Scene
ing : Some new Advantage or Improvement being eve To fence their Towns with Walls, but Nature's
my day added to Life (a). This Hypotheſis concern Lay a free Road: The Univerſal Store
ing the Origin of Mankind, though falſe, being Supply'd Mankind; at large they liv'd and fed.
taken for granted granted, it follows, that Men in The willing Earth her fruitful Boſom ſhook,
the beginning liv'd upon the Supplies of Nature, Rich with diffuſive Plenty-
te
in common; afterwards ſettling by Covenant the pit CW VE TO Visit to you DOBRA
Property of Houſes, and of Fruits treaſur'd
up
for Again in his Hippolytus, Act. 2. V.525, &c.
furure Service, till by ſlow Advances the Appropriate of
ation of Land was introduc'd. To the ſame pur-
OS Prima quos mixtos deis ohtrigin of
poſe is frequently alledg’d what Juſtin (b) relates of Profudit atas, nullus his auri fuit
Saturn (1), King of the Aborigines, who, he tells Cæcus cupido; nullus in campo facer 0912
remarkable for exact Juſtice, As that no Diviſit agros arbiter populis lapis
, iss. Los
Perſon under his Reign, liv'd in a Condition of Slate-
ve siqmora ohir STORE
ry, or held any private Poſeſfon; but all things, like
The firſt good Race of Men, , an
one univerſal Patrimony, lay undivided, and in com- Companions of the Gods and mixt with Heaven,
mon to all. The Authorities of the Poets are like. Not blindly led by Avarice and Gold, obro
wiſe produc'd in great Numbers, where they de- Forebore to fix the Conſecrated Stones
fcribe the happy ſtate of their Golden Age. Virgil
. To bound the Fields, and judge between the Swains,
Georg. 1. 125, .
BOOK
Thus 'tis one of the Alterations which Ovid, Met.
be Ante Jovem nulli ſubigebant arva coloni; 1. V. 135, &c. deſcribes in the Iron Age,
Nec ſignare quidem, aut partiri limite campum
MU
0 Fas erat : in medium quærebant; ipfaque tellus Communemq; prius, ſeu lumina ſolis & auras,
- Omnia liberius, nullo pofcente, ferebat (c).
Cautus humum longo fignavit limite me for (d).
Before Fove's Reign none vext the peaceful Ground, Then firſt the wary Swain inclos’d his own ;
Which only Turfs and Greens for Altars found. All cominon was before, as Air or Sun.
No Fences, parted Fields, nor Marks, nor Bounds,
Diſtinguiſh'd Acres of litigious Grounds:
Theſe (2), and the like Poetical Relations, La-
But all was Common, and the Fruitful Earth &antius (e) interprets in the following manner :
Was free to give her unexpected Birth.
A
Mr. Dryden. 6 Nec fignare quidem aut partiri limite campum
Tibull
. Eleg. 3. B. 1. 41, &c.
Illo non validus ſubiit juga tempore taurus,
That is, God Almighty gave the World in common to
Non domito frenos ore momordit equus.
Men, that they ſhould live freely together, not that fu-
Non domus ulla fores habuit ; non fixus in agris rious Avarice ſhould claim the whole Store to it ſelf,
Qui regeret certis finibus arva lapis.
or that any one ſhould want what was produc'd for
the ſake of all. This Saying of the Poet we ought not
No ſturdy Ox did to the Yoke fubinit,
to take ſo ftri&tly, as to imagine that in thoſe Times
No broken Courler champ'd the galling Bit there was no private Pofeffion; but in a Figurative
No Door the fearleſs Cottager conceald, Senſe, ſo uſual in thoſe Compoſitions ; giving us to un-
And the wide Earth was but a common Field.derſtand, that men were ſo generous and liberal, as
756 path
กรย
not to ſhut up to themſelves the
Fruits of the Earth, or
Senec. O&av. V.402, &c. Act, 2.
lie hovering over
a conceald and ſeparate Store ;
but that they admitted their poorer Neighbours to the
Cingere aſſuerant ſuas
common Enjoyment of what they had gotten by their
Muris nec urbes, perviuin cunétis iter.
own Pains. But indeed as no ſenſible Perſon will
Communis uſus omnium rerum fuit:
let the Poet perſwade him, that theſe primitive
Et ipſa tellus læta fæcundos finus
Mortals had omnia in medium quæfita, or a poſitive
Communion of Goods; fo the Reaſon which Lactan-
tius afſigns to thoſe Expreſlions, doth not in our
Pandebat ultro.
syilad.
90
979010
Mr. Barbeyrac's NOTES on $ 8.
(9) Juſtin's Words are, Italie cultores primi Aborigines fuere, quorum rex Saturnus tante juftitia fuiffe traditur, ut neque ferviens
fub illo quiſquam, neque quicquam private rei habuerit, sed omnia communia do indiviſa omnibus fuerint
, veluti unum cunctis patrimonium
effet. 10
(2) La&antius's Words are, Quippe cum Deus communem omnibus terram dediffet, ut communem degerent vitam, non ut rabida, 6
furens avaritia fibi omnia vindicaret, nec ulli deeffet, quod omnibus nafceretur. Quód Poete di&um (viz. Virgili in bis verſibus, nec
telligamus tam
liberales fuiffe homines, ut natas fibi fruges non includerent,
nec ſoli abfconditis incubarent, Jed pauperes ad communio
.
nem proprii laboris admitterent.
en sports aan
(a) Plin. N. H.1. 23. Procem. de Arborib. Pomona urgetħ this in her own Honour and Defence, “ That the firft Food of Men
was owing to Trees; and that this taught them to look upright towards Heaven : Nay, that they might ſtill find a Suſtenance
from the lame Scores, without Corn and ocher Products of the Earth. (6) Lib.43. c. I. (6) See this place illuſtrated by
(d) Macrob. Saturn, 1. C. 8. “ The Romans appointed the Temple of Saturn to be their Treaſury, for
" diſtinct Poflellions or private Eſtates,
as this reaſon, becauſe during the time of his Reign in Italy no Robbery was committed : Or, becauſe under him there were no
Nec ſignare quidem aut partiri limite campum
Conherefore it was thought convenient to lodge the common Treature under his Protection, in whoſe Reiga all things had been
(e) liftit, lo s.c.s.
U
Judgment
Seneca, Epift. 90.
107
common to all Men,

154
Book IV.
Of the Origin of Dominion or Property.
would be to Plenty, and Luxur inclinable they of Juſtice to diſtinguiſh between Things Common and
have been, were not a whir bercer than thoſe of the following Ages. See his Notes upon Hefiod's Theogonia, v. 211, and what
(6) Tully's Words are, Deinde juftitia munus eft, ut communibus ut atur quis pro communibus privatis ut suis. Sunt awk padliones
Judgment appear Satisfactory: For as on the one
lide, Men were not then perhaps greatly enclin'd Contentique cibis uallo cogente creatis,
to Covetouſneſs, being yet ignorant of Wealth, and Arbuteos fætus, montanaque fraga legebant, on
finding an eaſie Supply of Food from Nature's Carnaque & duris hærentia mora rubetis,
Store, whilſt they remain a Strangers to Delicacies Et
qua deciderant patulå Jovis arbore glandes (c).
and Éxceſs; ſo, on the other side, we do not ſee
what matter they could have for Bounty, when there Content with Food which Nature freely bred, i
was no Occaſion to fcrape up Treafure. Tis a good On Wildings and on
On Wildings and on Strawberries they fed co14
i Cornels and Bramble-berries gave the reſt on
to a right Underſtanding of the whole Fable of the - And falling Acorns furniſh'd out a Feaft.
Golden Age ; that the Diſpoſitions of Ruſtick and to atrisi tillas teclu bigbails vitri Mr. Dryden.
barbarous People make themalinoft Natural Friends at a
to Eaſe and Lazineſs, and Enemies to Labour. That There's
a Famous place produc'd on this
Head from
the more rude and ſimple way of Life any Per- Tully's Firſt Book af Offices
, C. 7- (0) Tis the part
are
, , and them accordingly. Now nothing
and Splendor which cominoply require
much In- is private by Nature, but as it becomes ſo, either by
duſtry and Pains (a). And that laſtly, tis the ge- Ancient. Pofleffion, as rappropriated by the firſt Occu-
neral Vice of Old Perſons, to commend the Times pant, or by Conquest, upon the Right of Arms; or elſe
of their young and flouriſhing Dayș, to deſpiſe, for by Law, agreement, Condition, or Lot. Hence.com
the moſt part, preſent things, and what they ſee the Names of the Arpinate and the Tuſculan Lands
.
before
them z extolling whatever comes mark'd with And in like
manner are Private Polleffions fettled and
the Advantages of Age, And that therefore it ſeems deſcribd. Since therefore the Things which Nature
very probable, thoſe rude and ignorant Men, when made.common, have by this means been turn d into
the Legiſlators compell’d them to a Life of Manners Property, let every Man quietly enjoy his Lot : Who-
and of Induſtry (3), might be very uneaſie under the ever covets more than this, ſhall be deem'd to have vio-
Change, and frequently ſend out a Wiſh for their lated the Law of Humane Society.
Acorns and their Idleneſs. From which Complaints
of their Old Sires, Poſterity might frame their Horace is ſometimes brought in, giving his Judg-
Dreams about the Golden Age. This Conjecture ment amongſt the reſt.
is ſtrengthen’d by the Character which Saluft. (b) (4)
gives of the Aborigines, the People of thoſe primitive Nam propria telluris berum natura neque illum,
Times, They were, ſays he, a Clowniſh Race of Men, Nec me, nec quenquam ftatuit : nos expulit ille ;
without Laws or Government, tied up to no Or
Order or Illum aut nequities, aut vafri inſcitia juris;
Rule. And Ovid (5) himſelf placeth the Happi Poftremùm expellet certè vivacior bares. T
neſs of the Golden Days chiefly, in this That Men Nunc ager Umbreni ſub nomine, nuper Ofelli oll
obey'd Faith and Honeſty without Law, and fear'd Di&tus erat; nulli proprius; ſed cedet in uſum
no Punifhment; becauſe no Civil Societies were yet Nunc mihi, nunc aliis, L. 2. Sat. 2. v. 129, &c.)
eſtabliſh'd.
(3) Mr. Le Clerc has throughly proved, that the Men chat lived in the Times, when the Golden and Silver Ages were ſaid to
he has extracted out of it himſelf in an Article added to his Memoirs, De Trevouw in March and April 1701. Tom. 1.
7 (4) Saluſt's Words are, Cumque his [Trojanis) Aborigines, genus hominum agrefte, fine legibus, fine imperio, liberum atq; ſolutum.
(5) This Poet makes the Felicity of the Golden Age partly to conſiſt in this, That they had neither Laws nor Puniſhments
, but
every one was free,
in theſe Lines
.
Aurea prima ſata eſt atas, que, vindice nullo,
Sponte fua fine lege fidem redtumque colebant.
Pena metuſque aberant.
becauſe
nulla natura, ſed aut veteri occupatione, ut qui quondam in vacua venerunt, aut vi&toria, ut qui bello pofiti ſunt, aut
conditione, forte. Ex quo fit, ut ager Arpinas Arpinatum dicatur, Tuſculanus Tuſculanorum, fimilifq; eft privatarum poffeffionum defcrip-
tio. Ex quo, quia ſuum cujufq; fit, eorum quæ fuerant natura communia, quod cuique obtigit, id quiſque teneat, ex quo fi quis fibi appe-
tet, viol abit jus humanæ focietatis. But Mr. De Bynkerſhock in his Treatiſe, De Dominio Maris, printed in 1703. Chap. 1. believes,
That about the middle of this Paffage there is a Corruption, which he thus amends, aut lege, PACTIONE, CONDITIONE, ex quo
fit ut ager FORTE Arpinas Arpinatum dicatur. Upon this ſuppoſition, the Tranſlation muft be, Or Laws and Compa&ts, whence
ic is that the Country of Arpinas, for example, belongs to that City, be. The reafon why this Author changes forte into forte,
and puts it in another place, is, becauſe the parting of Goods made by Lot always ſuppoſes an Agreement publick or private.
He mighe likewiſe have faid, That Cicere, who often uſes words
ſynonymous, and is not very exaci in his Divifions, would, afe
ter he had ſpoken of Covenants in general, add ſome particular kind, as he knew is very common in the beſt Latin Authors. But
then ſtill there will a doubt remain, whether in Ciceros Days the word FORTE was uſed in the ſenſe, for example, as the Roman
Lawyers uſe it now. Nor is the Law which Mr. Bynkerbock quotes
here very ſuitable in my opinion ca eſtabliſh that ſense, for
there "cis nifi forte
, an expreffion very common, in which the laſt word is not likely to ſignifie, verbi gratia, Digeft. I. 7. cic
. T.
De ufu fru&tu, &c. leg. 9.97
(a) Add Montaign's Effays, l. 1. c. 30. (b) Catilinar. Bell. ab init. Add the Character given of the ſame People by Dion
.
Halicarn. l. 1. p. 8, boc, Edit. Lipf. (e) mer. 1.1V. 103, Ge As for what follows about the perperual Spring, the ſpontane
ous production of the choiceſt Fruits, and the Rivers overflowing with Milk and Nectar, 'tis no truer than that extravagant Rant
of Pberecrates,
Πόταμοι μεν αθαρης, και μέλανα ζυμε πλέον, *** The Rivers run with Oatmeal and Black Broach,
Ο Δια των πνοπων τον θηλυγέντες ερρέον
of Murmuring, when new-bak'd Biskecs ſtopp'd their ſpeed.
Αυταίο μυείλεσι, και ναφών ερυφή,
Links and Hot Sauſages in Fiſh-pools ſtood,
Φύσκαι δε και ζέοντες
, αλλάντων τόμοι παρα να
ήταν η And fitted Oyfters skimm'd the wealthy Stream.
Τους ποταμοίς σίζοντες εκεχυνθ' άνθ' υτράκων, - Fowls nicely dreſs’d, ſerv'd up themſelves, and flew
"Όται κιχλάι και ανας μας πρυμέναι περί το στόμα
About Mens Mouths, ſtill courting them to feaft.
'Επετίνη' αντις ολέσαι καταπιάν.
See Atheneus, 1. 6. c. 19. and Pollux's Onomaſticon, 1. 6.$ 58.
. autem privata
megille
មុនគេ។
Nature

CHAP. IV.
Of the Origin of Dóminiòn or Property. 155
51
Nature, nor him, nor me, nor any made (b) in which we ſhall paſs over what he delivers
The Proper Maſter of the Stage we tread.
contrary to the receiv'd Doctrine of the Church, as
He turns out me; and him fome Vile Deceit,
ſuſficiently refuted by other Hands. He tells us then,
Ora Dull Head at Law ſhall ſend to ſhare my Fate. That God confer'd on Mankind a Right in General to
At leaſt he one day, muft, with all his care, things of this inferior Nature, both immediately upon
Yield to the ſtronger Vitals of his Heir. Creation of the World, and again upon the repairing
Ofellus lately gave the Farın its Name,
of it after the Flood. This we allow in the follow-
And now Umbrenus : None of Right may claim ing Senfe, that God impower’d Mankind to uſe
The Property; the Uſe is paſſing ſtill;
theſe Earthly Things, in a General Manner ; that
And all are Fortune's Tenants at her Will. is,without determining whether they ought to poſſeſs,
either under Diviſion, or in Common, all, or only
Tanquam
ſome things; but leaving this whole Matter to the
Sit proprium cuiquam, pun&o quod mobilis hora
Judgment and the Choice of Men, to ſettle it ac-
Nunc prece, nunc pretio, nunc forte Supreme cording as they ſhould think moſt convenient for
Permutet dominos, & cedat in altera jura. the publick Peace and Welfare. But we
ought by
Sic quia perpetuus nulli datur ziſus, & heres no means to ſuppoſe, that any poſitive Communi-
Haredem alterius, velut unda ſupervenit undam, on was at the beginning inſtituted by Divine Ap-
Quid vici profunt aut horrex ? L. 2. Ep. 2. v. 171, pointment; from which Men afterwards departed
(&c. by their own Decree; for, on the contrary, with
regard to Almighty God, things were rather laid,
As if the Treacherous World had ever ſhown
as a Free-Stock, to be us'd in any Service that Men
A thing we might preſume to call our own! ſhould apply them to. Amongſt whom, ſo long
Since in one flecting point of Time, convey'd as the very Subſtances of things were not aſſignd
By Grant or Sale, to Force or Fate betray’d, to particular Perſons, we muſt conceive this Tacit
New Lords it may enrich, new Titles wear : Compact to have prevailed, That every Man ſhould
And thus, ſince none are fix’d, but Heir to Heir take for his Occafions whatever he pleas’d, eſpeci-
Succeeds, as Wave to Wave; in vain we learn ally of the Fruits, and ſhould conſume what was in its
To lengthen out a Street, or croud a uſeleſs Barn. Nature conſumable. And ſuch a Univerſal uſe of
things ſupplied, in ſome fort, the room of Proper-
We have an Epigram of Lucian in the Athologia, ty; and what any Perſon had thus taken for him-
Tom. 2. p. 838. inuch to the fame purpofe : 'Tis a felf, none could deprive him of, without Injuſtice.
Farm that ſpeaks (9).
Now as the Simile borrow'd from the Theatre, which
Grotius produceth, fitly enough illuſtrates this Mat-
Once Achemerides I ſerv’d, and now
ter (c) (1), ſo his other Inſtance of the Aborigines
Menippus, and
to thouſands more ſhall go : is not applicable, as Fuftin deſcribes them (d). For
Each vain Poffeffor cheats himſelf a while, the Hiſtorian's Words repreſent ſome poſitive Coin-
But Fortune is the Miſtreſs of the Soil.
munion, quite different from the Primitive; as if
that whole Country was indeed the poſſeſſion of the
The ſame Author hath told us as much in Proſe. People, but not yet divided into private Eſtates ;
Nature (10), ſaith he, hath made us Lords and Pro- whilſt Men reſted fatisfied with the Fruits produ-
prietors of nothing; but obtaining by Law and Succef- ced without their Aſliſtance, ſuch as the vaſt extent
fron the uſe of things, for an uncertain Period, we paſs of the Lands and Woods afforded them in great a-
for the dirgo xpóvode do rótas, the Temporary Maſters or bundance, their Number being as yet inconſidera-
Poffeſors of them ; and when the appointed Term is ő- ble: But that they gathered theſe Fruits into a Com-
ver, then another receives them from our Hands, and mon Store doth not ſeein probable. Thus far Gro-
enjoys the ſame Name and Title
. But indeed theſe tius (e) is in the right, that were the firſt Negative
kind of Speeches refer rather to the Inſtability of Communion to continue, without diſturbing the ge-
Fortune and of Humane Poſſeſſions, than to the Ori- neral Peace, Men muſt' live with great plainneſs
ginal of Property (a).
and fimplicity, contented to feed on what they
IX. We proceed to examine Grotius's Opinion; found, to dwell in Caves, and either to go Naked,
S 9.
(9) The Greek is this, 'Αγρός Αχαιμενίδε γινόμω ποτέ, νύν δε Μενίππε
Και πάλιν δξ ετέρα βήσομαι ας έτερον.
Και δέκανα έχαν με ποτ' ώει, και πίλιν έτG-
Οίηται, είμαι και όλως. έδενα αλλα τύχης.
(19) In Nigrino, natura quidem nullius rei Domini ſumus, lege autem, & per füccefionem ulum earum in tempus incertum adquiren-
tes, onszexesvior storitet, temporarii poffeffores habemus ac poftea quam terminus ille conſtitutus præterierit, tunc rursus alius eadem
accipiens nomine illo fruitur.
Mr. Barbeyrac's NOTES on
(9) The Compariſon is taken out of Cicero de finib. bonorum de malorum, 1. 3. c. 20. Sed quemadmodum theatrum, quum commune
fit, vede tamen dici potest
, ejus
eje eum locum, quem quifque occuparit
, fic in urbe
mundove communi non adverſatur jus, quo minus
Author
alſo refers us to a paffage in Arrian's Diſcourſe on Epigletus, where we find the fame Thought, upon the occaſion of that
Philoſophers Saying, That all Women by Nature are common, till the Laws aſſigned to every Man his own, "Ay,, to gredi legn
εκ έσι κοινόν των πολιτών και ότι ένα καθίσωσιν, όλων, αν σου φανή, έκβαλε ένα αντώνέτω και γυναίκες φύσει κoιναι όταν δε όνο-
the end. This Example might prove
to our Author, that there is no need
of any Agreement to acquire a particular Right in thac
have a Right as well as he to take the firſt vacant place. But of this I have ſpoken enough in the Notes before going.
() As Tully, for the ſame reaſon, affirms, prediorum nullam eſse gentem, That Eſtates are not enſured to Families and Kindred
(6) Lib. 2. c. 2. f. 2. (c) Vid. Arrian. Epi&tet. I. 2. C. 4. (d) Lib. 43. C. 1.
(e) Lib. 2. C.2.
in
pro Balb. c. 25. in fin.
1. 1. 2. 4.
+ U 2
OT

at:
Maſs. And where-
for the getting of the Fruit, or afterwards in the Con- vanced : Man receiv'd indeed, by the Divine Do-
an
ed to keep for his ownload
156 Of the Origin of Dominion or Property. Book IV.
or to cover their Bodies with the Barks of Trees, import either that which being undivided, and hav-
and the Skins of Beaſts : Whereas, if they grew more ing its Property fix'd in many together
, affords a
inclined to a Life of Elegance and Refinenient, the Cominon Service to each Perſon; or that which be
Conveniencies of which muſt be acquira by Dili- ing in no inanner appropriated, lies free for the
gence, there was a neceffity of introducing diftinct promifuous Uſe of all. But then they exclude
Properties
. But when he adds, That this Communi- from the Primitive State of Things, not only the
on might have lafted, had Men lid under the In- former Communion; ( which is 110 more than we
fluence of an Eminent Charity and Friendſhip to- have done,) but likewiſe the latter, and ſo deny
wards each other; He confounds Negative Commu- that things were in the beginning expoſed as a ge-
nion with Poſitive; ſuch as was obſerved by the neral Store, void of Property in every kind ; and
Effenes of old, (a) by the Primitive Chriſtians in- therefore (which is the confequence of this) that
habiting Jeruſalem, and by thoſe who now follow Properties ſprung originally from Diviſion, and
an Afcetick Life (1): For this can neither be con- from firſt Pofleflion. The Reaſon they lay down is
ſtituted nor kept up, except amongſt a few Perfons, to this purpoſe; Whatever Right that was, which ei-
and thoſe endued with ſingular Modeſty and Good- ther in Kind or Degree the firſt Man enjoy'd over o-
neſs
. When Men are ſcattered into different pla- ther Creatures, he receiv'd it all in that very manner
ces, and fixed at a diſtance from each other, 'twould from his Creator. If therefore be receiv'd a bare
be a fooliſh Labour to gather all the Proviſion into Power of uſing, without any Jettled Property, bis De-
one Heap, and to diſtribute it out of the Common Scendants could not afterwards ufurp a Property, with-
of People, many muft of neceſſity be found, who fire, and of arrogating that to themſelves, wbich their
through Injuſtice and Avarice, will refuſe to main. Maker had forbidden there to aſſume. The Anſwer
tain a due Equality, either in the Labour required to this is cafie, from what hath been formerly ad-
ſumption of them. Plato inſinuates as much as this(c), nation, a Right to things, but ſuch a Right as was
when he makes only Deities, and the Sons of Deities Indefmite, General, and Indifferent, neither re-
Meinbers of the Republick where he would have this ſtrain’d to Property,. nor to Coinniunion ; and fuck
Communion abſolutely obtain. But 'tis idle to be as Men might reduce, as it were, into any parti-
lieve, that when Men were divided into numerous Fa- cular Form, according as Reaſon or Neceflity ſhould
milies, they neither actually eſtablish’d, or had any adviſe. Whence it is alſo clear, that the Primitive
deſign to eſtabliſh ſuch a Communion (d). Laſtlý, Communion did not denote a bare Ufus fru&tus, but
It's a true Remark of Grotius, (e) That things were Men were at their liberty to quit it by Agreement,
at firſt turn’d into Property, not by the bare Act of and to eſtabliih either Property or Poſitive Com-
;
very poſſible that many his Poſterity could not exerciſe it, under that For-
ſhould be Competitors for the ſame thing. There mality. Neither doth that Divine Grant expreſs'd
was need therefore of ſome External Act (2), or of in Holy Scripture, deſcribe any determinate man-
formal Seifin, which that might be capable of pro- ner of Property, but only an indefinite Right of
ducing a Moral Effect, or an Obligation in others applying things to ſuch Úſes as ſhould be agreea-
to forbear what each Man had thus taken for his ble to the Wiſduin, and to the Occaſions of Men;
peculiar, muft neceſſarily have depended on the which Right may be exercis'd full as well in a Ne-
force of fone precedent Covenant : When things gative Communion, as in a Poſitive. Beſides
, 'tis
which lay together in Common were to be parted not fair thus to conclude; Men receiv'd a Right to
amongſt many, then the Buſineſs was tranſacted by things from the Donation of God, therefore Property
Expreſs Covenant. But a Tacit Covenant was ſuffi- did not firft ariſe from Occupancy and Diviſion. For
cient, when Men fix'd a Property in things which this Donation of God only gave Men full ſecuri-
the firſt Dividers had left for waſte (3). For we ty and Satisfaction that 'twas conſiſtent with the
muſt fuppoſe them to have agreed, that whatever Divine Will they ſhould conſume on their Neceffi-
in the Primary Partition had not been afſigned to a- ties, the Works of their Coinmon Maker. But Pro-
ný particular Owner, Ihould belong to him who perty, ftri&ly ſo called, ought to have produca
firſt took pofleſſion of it.
this Effect, in relation to other Men, that none elſe
X. Amongſt the other Moderns, many, as to the ſhould invade what had been adjudg’d to one par-
Origin of Property, eſtabliſh a quite contrary Noti- ticular Poſſeſſor. And here certainly there was
on. Let us take the pains to ſee what ſtrength need of fone Humane Act and Agreement, that
their Arguments afford. They acknowledge then others might know what belong’d to every diftin&t
u.
(2) An External, I grant, but not always an Adual and Corporal Poffeffion, properly Yo calld, as Mhall appear by what is ſaid
c. 6. much leſs an Antecedent Agreement, as I have ſhewed above.
(3) This firf Parring or Diviſion of Goods, which our Author ſuppoſes, is a meer Chimera. Mankind never met together
to regulare and order, what every one for the future ſhould poffefs as his own, out of thoſe Goods, which were before common.
They pofleffed themſelves of them by infenfible degrees, one got one thing, another another ; ſome to day, others to morrow;
ore after this manger, another after that. All that can be faid is, that thoſe who invaded a Country all at the ſame time, or
fe
were inclined to poffefs chemſelves of it, for example, did agree lometimes to part it among them for Peace-ſake, and to
cure themſelves a peaceable poſſeſſion of what fell to them. Sometimes alſo ſeveral perſons agreed together, that one
go and ſearch one Coaſt and another another, where to provide for and fettle themſelves.
(a) of whom amongſt other Authors, ſee Phil. Jud. in his Book infcrib’d, that every Good Man is free.
Hifi. Sin. 1. 5. c. 34.
(C) LL. l.'s p. 847. Edic. Wech. (d) Add 70. Strauch, differt. de Imper. Maris, a 1. 1. 8.
(e) Vbi ſupra, n. 5.
ſhould
(6) Add Martin
appro

CHAP. IV.
of the Origin of Dominion or Property. 157
, ,
appropriated before. A Theatre is erected by the fore he is actually poffeffed of it. And without
State for the Common Uſe of the Subjects: But that ſuch a Fiction (1), the Dominion would no inore
in the time of the Show, this or that Perſon ihould belong to a Man in an Inheritance before actual
obtain a particular Seat, of which others ought not Entrance, than it doth in a Donation before Ac-
to deprive hiin, is owing to ſome corporal Act
, that ceptance. And hence too, amongſt Perſons who live
is
, to his firſt ſeiziug upon it. Nay, each Perſon, only under the direction of the Law of Nature,
may with the conſent of the Publick, acquire a Seat which is for the moſt part unacquainted with theſe
which he ſhall hold by a perpetual Right. Thus, Fi&tions introduced by Civil Conſtitutions, there will
before any Hunane Aa had paſs’d capable of in- be no admittance given to any Poteftative Poffelaar
troducing Property, every thing inuſt be conceiv'd as oppoſed to Actual ; nor will the bare Right and
to have lain Free and Common (in a Negative Senſe) Power of acquiring Poffeffion, obtain the Name of
to all; that is, not to have appertained to one ra- Poffeffion it ſelf (a). Anita
ther than to another. But when Diviſions were eſta XI. Many have thought fit to appeal to the Au-
bliſh'd by Expreſs
, or Poſſeſſions confirm’d by Ta- thority of Scripture in this point; whence they have
çit Covenant, then things paſs out of this Negative ſuppos'd that it may be made evident, that there
Communion, into ſettled Properties.
never was any ſuch Communion as we have aſſerted,
If any will come fo low as to affert, That by the in the World. They tell us, That the Univerſal Maſs
Dominion which God conferr’d on Men antecedently of things paſs’d immediately to Adam, by virtue of the
to any Acts of theirs, is meant only a Potential Domi- Divine Donation, ſo that he held it as his own proper
nion, or a Power of taking and poßefing; and confe- and entire Pofeſion. The force of which Propriety was
quently no more than a Dominion, in actu primo; ſuch, that it not only excluded all others from the U-
from which they paſs’d on to Poleſion, and from Pof- niverſal Poſeſfon which he enjoy’d, but likewiſe from
Jelion to Dominion, in actu fecundo : Theſe Men the Right of taking to themſelves any one particular
differ from our Opinion in Words only, not in Senſe. thing : Infomuch that even his Children could claim
Yet in this reſpect they are not ſufficiently accu no Property, ſo long as they continued in the Family
rate, that call the Power of entring upon things, of their Father, unless be convey'd ſomewhat to them
Dominion in acłu primo ; and the Right which fol- in the manner of a peculiun, or ſeparate Stock :
lows Poffeffion, Dominion in a&tu ſecundo. For the That they became Proprietors, firſt
, by poleſhing that
Power of acquiring any Right and the Rightit ſelf now fbare which be aſigned them, when diſmiſi'd from un-
habitually inhering, yet without Operation or Exer- der his Tuition, and afterwards, upon his Death, by
çile, are different things. As'tis quite another caſe dividing his Store amongſt themſelves (1). They ex
to be a Muſician Potentially, and not to uſe the Art, plain their Notion in this manner: The Form of
when the Habit of it hath been fully attain'd. Nor God's Grant conferr'd a Right only on the Primitive
is their Potential Dominion very aptly illuſtrated Pair, before they had Children. Therefore either the
by the Example they bring of Inheritances ; the Property of things was given to Adam and Eve orie
Dominion of which, upon the Teftator's Death, paf- ginally, ſo that their Deſcendants were to derive from
Seth out of the Habit, or Power, dire&tly and imme- them aŭ their Title to any Pofeſion; or elſe the whole
diately upon the Heir, without the Formality of taking World was, in the Perſon of Adam, beftom'd in coma
Poleſion. For, beſides that to paſs, out of a Habit, mon on aú Mankind. The latter of theſe as it im-
or, out of Power, is by no means the ſaine thing ; plies ſeveral Dificulties, ſo it is particularly repuga
there is always a Fiction of Civil Law conceiv'd to nant to the Right of Occupancy, which obtains only
interpoſe in the Caſe which they alledge. 'Tis the in things void of a Poffeffor. For if the entire Maſs
Rule of Nature, that in the transferring of Domi- was given to all Mankind, it doth not appear, bow a
ninn from one to another, it ſhall be requiſite for particular perſon could by ſeizing any thing to himſelf,
the former Perſon to tender what is thus convey'd, convert it into his diſtinct Property, excluſive of Hus
and for the latter to accept and receive it. But in mane Race in general, or, ſo as to hinder Men from
aſnuch as the Laws have conſented, that the Will making any Pretenſions to it by virtue of their com-
of the Teſtator ſhall remain uncertain and change- mon Right. For ſuch is the Nature of things which
çret till after his Deceaſe; they therefore hold, as Shares, that every fingle Atom of their Subſtance is no
twere in ſuffence,
the Will of the deceas'd Perſon leſs common, and no leſs undivided, than the whole ;
importing the conveyance of Goods on his Heir
, 'till ſo that if any private Man apply it to himſelf alone,
ſuch time as the Heir ſhall have ſignified his Acr he is an Injurious Robber of the Community
. But
ceptance ; or, (as ſome may chuſe to expreſs it) they now, they who defend a Primitive Communion, confeſs
bring back the Heir's Acceptance to the Moment that the first Occupants of things did by that A& ac-
in which the Teſtator expired, his will being then quire ſuch a diſtinêt Right over thoſe things
, as exclud-
properly fix'd and ſettled, ſo that from that time ed the Right of all others to the ſame. What Reply
the Goods are conceivd to paſs immediately to may be made to all this, is evident from the Aller-
the Heir
, as deliver'd to him. This Fiction pro- tions already confirm'd (1). The Divine Donation
duceth fo far the Effect of Dominion in the Heir
, conferred on Mana Right of applying other Creatures
as that he inay challenge the Inheritance, even be- to his uſe; which Right was indifferent to Poſitive
Mr. Barbeyrac's NOTES on § 10.
() So the Civil Law ſpeaks, Omnis hered.tas, quamvis poſtea adeatur, tamen cum tempore mortis continuatur, Digeft. 1. 50. tit.
18. De divers, Regul. Juris, leg. 138. See c. 9. § 2. following
Mr. Barbeyrac's NOTES on 1].
Mr. Hirtius obſerves here, that this permiffion which was given to Adam, and renewed to Noah, does make no mention
any thing but living Creatures, as I have already oblerved above $ 4. No:e 3. out of Mr. Lock, of whom it appears from
other places
, that Mr. Hirtius had ſeen the Treacife of Civil Government in the French Tranſlation which was printed
in 1691.
(b) Comp. Ziegler. ad Grot. I. 2. 6. 2. f. 2.
Communion,
of
(a) Vid. Strauch. de imp. mar. c. 1,

158
Of the Origin of Dominion or Property.
Book IV.
Communion, or to Property ; being of neceſſity to Property in thoſe things, which either afford an im.
be turn’d into one of theſe before it could take any mediate uſe, not capable of being divided amongft
Effect with relation to other Men. And therefore many; as Cloaths, Cottages, and ſtores of Provili-
when others add further, That the Common or Pub- on a ready gather'd by particular Men; or which
lick Dominion of Mankind over things was given by require Induitry and Improvement to make them fit
God, under Condition, that they fhoulå parcel it out, for Service; as Houfhold Goods and Inſtruments,
cold confitute it private ; for which reaſon, it neither Cattle, and Fields (2). By degrees, what remain's
can, nor ought to be conceiv'd without a reſpect and ten-
was brought under the ſame Condition ; according
dency towards Private Dominion, ſo to be eſtabliſhed as
as either the Inclination, or the number of Men di-
was agreeable to a Rational and a Social Nature: This rected and adviſed. Thus the Paſturage continued
we may without any inconvenience interpret on our
a great while in its Firſt and Common State; till
fide. That is, God by his firſt Grant plac'd things upon the abundant Increaſe of Cattle, Quarrels ati-
in a Negative Communion : But ſince that was una- ling, the Diviſion of this likewiſe was made ne
ble to procure the ſafety and peace of Society, when cellary to Peace and Concord. As for that part of
Humane Race was multiplied, and Life began, by the Argument, That the Right of Occupancy cannot
the Arts of Induſtry, to be poliſh'd and improv'd, be admitted, where Poljefon belongs to a General Bu.
Men eaſily apprehended that 'twas the Divine Plea- ay; this will hold good againſt thoſe who pretend
ſure they ſhould introduce diftin& Properties. In any politive Communion to have been the Primi-
order to the actual Settlement of which, it was re tive State of Things; in which indeed no private
quiſite that ſome Tranſactions and Agreements of Perſon can take any thing to himſelf, excluſive of
Men ſhould precede. For that a thing ſhould be the whole Society. But the primitive Condition in
appointed by the Will of God, and yet ſhould not which we have plac'd things, is equally diſtant from
be introduced but by fome antecedent Compact of politive Communion, and fron Propriety in the
Men, ought not to be look'd on as an inconſiſten- itrict ſence of the Word : And we alſert, that be
cy: As it is certainly none, that God would have tore Occupancy can produce Doninion, it is necef-
Mankind propagated by Marriage, not by uncer- fary, that some Compact, (a Tacit one at leaft
)
tain Luſt; and yet Marriage is not actually con- ſhould have been firſt ſettled to that Effect.
tracted between particular Perſons without ſome XII. Others form their Scripture Account of the
Covenant paſſing before. Farther
, ſince poſitive Origin of Dominion in this manner : That God gave
Coinmunion and Property both imply a relation to our firſt Parents that Common Dominion which be de-
other Men, it can with no manner of accuracy be ſigns for all Men in General, to be held undivided;
ſaid, That all created things were proper to Adam; inaj much as the Primitive Pair repreſented the Person
but only thus
, That he held the Dominion of all of all Humane Race: In which Sense it may ſtill right-
things
, not Formally
, but Permiſively; inaſmuch as ly enough be ſaid, That the Dominion of the World, or
there was then no Right of any perſon elſe to in- of the things in the World, as they are capable of paling
terfere with his
, and to hinder him from converting into Property, belongs to Mankind. But this Common
every thing to his own Uſe, had there been occaſi- Dominion doth not exclude Private, ſince we neither
on. When God was pleas’d to give him a Dear Part can nor ought to conceive it without a refpe&t and ten-
ner and Companion, they agreed to hold this Inde- dency to private Dominion , ſo to be conſtituted as
finite Right over things without dividing it; as be- ſhould be agreeable to a Rational and a Social Na-
ing united to each other in the ſtricteſt Band of So- ture. But in Adam the latter of theſe Dominions
ciety: For which Reaſon, many Nations at this Day met in Conjunction with the former, excluding his Chil-
obſerve a Communion of Goods between the Huſ- dren without any previous Celion or Surrendry (a). Now,
band and the Wife. Nor was there any need of ſe- as to this Account, we will make no Quarrel about
parate Properties, ſo long as Adam's Children being words; that is, we allow the Name of common Do-
vet in their Minority, were to be maintained by their minion to what we our ſelves have rather choſe to
Father, and made but one Houſe. For though in call a Right of uſing the Creatures, inherent in
the uſe of things, they were at that time obliged Men by virtue of the Divine Conceſſion; provid-
to conform to their Father's Pleaſure, yet this pro-ed this common Dominion conſider'd by it felf, be
ceeded not from his Dominion (ftriétly ſpeaking) ſuppos’d to obtain no Effect between Man and Man.
over the Things, but from his Paternal Power and On which Point we have before affirin'd, that Men
Authority over the Perfosis. Therefore the Property might have reſted fatify'd with that Right of uſing
of things caine then to be diſtinct, when by Con- things as they lay in common; and that 'twas not
fent of the Father the Sons fell into ſeparate Families; necellary ſeparate Dominions ſhould immediately
which Separation was undoubtedly owing to the E- be introduc'd, ſo long as Men were yet few in num-
mulation between Brothers; and to another good ber, and follow'd a limple unimprov'd way of liv.
Reaſon, that every one's own Induſtry might be his ing; but when their Race was conſiderabły multi-
own Advantage ; as the Idleneſs of others might be plied, and when Induſtry had advanc'd the Conveni-
a Puniſhment only to themſelves. Nor muſt we be- encies of Life, then the neceſſary Regard to the Pre-
lieve that the whole World was preſently ſhar'd out fervation of Society recommended the Diſtinction
amongſt that finall Number of Perſons; or that all of Properties; yet to as that things did not paſs all
things were turn’d into Property by one Act, and at once into this Condition, but ſucceſſively, accord-
at one time. But it was ſufficient at firſt to fix a
(2) It appears from the Sacred Hiſtory, that in Abraham's Time Men went from one place to another with their families, Ser:
vants and Flocks, which were their Riches. We alſo ſee that Patriarch followed that Cuſtom in the Land, wherein he was a
Stranger. So that at that time great part of that country was common, and when there was not room enough in one place to
feed the Flocks of divers perſons, they parted by common Agreement, as Abraham and Lot did. "Tis alſo obſerv'd, chat the
moſt ancient Inhabitants of Greece lead ſuch a wandring Life, about which conſult the Hiſtorical Explication of the Fable of
Ceres by Mr. Le Clerc in his Bibliothec, Univerſal. Tom. 6. p. 104, 105.
(a) Vid. Becler, ad Grot. d. l.
ing
CHAP. IV.
Of the Origin of Dominion or Property
.
159

very negligent Aſſertion.
"Becanife as every Order and Me
private Dominion over all thiugs, before his Sons of the ſame Right, depended on his Game Exerciſe
bericht pas
mera
ing as the occaſional Methods of Peace and Agree- The Right of primitive Communion was ſufficient
ment ſeem?d to demand. But that Adam held a for his turn; and as for them, they in
had left him, to ſet up Families of their own, is a dance, So that Adam's private Dominion then be-
bus
gan when he diſmiſſed his Sons froin under his Tui-
For Firſt, Private Doninion always takes its Rife tion, and gave them leave to ere&t ſeparate Fami-
from fomne Humane Act; therefore, Adam could not lies for themſelves.
have ſuch a Dominion over thoſe things, which he XIII. Let us conſider too the Arguments of thoſe
was fo far from having taken Pofleſſion of, that they who maintain that this primitive Communion was im
did not ſo much as fall under his Knowledge. poſſible (b). They ſay, That ſuch a Communion sièz-
That place of the Civil-Law (1), L.3. $ 1.D. de ad- ther could have been, nor ought to have been, in the
pollefs
;
one part of the Earth, ſhould be fuppos?d to have Order of po selling those things, the Dominion of which
taken Poffeffion of the whole world. If any one God had granted to Mankind, agreed in an
an especial
perlifts in giving the Name of Property to that manner to that ſtate in which the Vertue of abſtaining
Right from what anothers,
deſeru'd to bear an honoura
Grant of their Creator
, then we might admit what ble Name. Whence the Decalogue as it eftabliſheth the
theſe Authors lay down, That Property was the Cauſe Duty of forbearing the Goods of others, ſo it ſecures
of Occupancy and Diviſion; or that it was therefore every one in the Enjoyment of a certain and ſeparate
Lawful for Men to challenge things to themſelves Popelion. To this we anfwer,
by laying hands upon them, and by parting them Firſt, That we can have no ſuch clear Evidence
into ſeparate Shares, becauſe God had given them a what kind of Life (with reſpect to theſe external
general Commisſion to apply other Creatures to Things,) Men would have led, had they continued in
their own Uſe. But if we take the word Property their firſt ſinleſs Condition; and conſequently whe-
in its ſtrict and general Senſe, as it denotes the Ex- ther the Community, or the Propriety, of things
cluſion of all others from a particular thing alrea- would have been moſt ſuitable to that State.
dy allign’d to one; then 'tis altogether true, that But farther ; We may venture to make it a Ques
Diviſion and Occupancy are the Cauſes of Property. ſtion, whether it be not a higher Degree, a greater
Farther
, Adam's Children, whilſt they yet continu- Perfection of vertue to enjoy quietly a common Pro-
ed part of their Father's Family, were bound in- viſion, and to deſire no particular Advantage above
deed to obey his Pleaſure in regard to their ufe of the reſt who have the fame Title to it, than to ab-
things; yet this, as was before obſerv'd, proceeded ſtain from the diſtinct Portion of others?
not from the Force of any private Dominion in Laſtly, Whatever we are to ſay as to the Eter
Adam, but from the force of his paternal Power. nity of the Law of Nature, thus much is cer-
For whilft they were young and helpleſs, he was ob- tain; That there's no Neceſſity every Object of
ligd to maintain them. And when they were ca- that Law ſhould have always exiſted (1), many of
pable of doing fome Service, ſtill the ſame pater- them proceeding, in the courſe of time, from the A-
nal Authority required both that in uſing the com- greements and Inſtitution of Men : Thus the Law
mon Store they ſhould be guided by their Father's againſt Murther had no Object, whilft Adam was
Directions, left they ſhould incur any Miſchief by the only perſon in the World, nor the Law againſt
Intemperance; and likewiſe that ſuch things as they Adultery, whilſt none of his Sons were arriv'd to
had either gather'd from a ſpontaneous growth, or Man's Eftate; nor the Law againſt Theft, before
had produc'd by their own Induſtry, they ſhould the diviſion of things; nor the Law againſt bear-
deliver into the hands of their Father, to be giving Falſe-witneſs
, before the Judicial Proceſſes were
ven out as he ſhould think fit: And he, ſo long as introduc’d; nor the Law againſt coveting the Houſe,
he enjoy'd this Right, was bound to provide Necef- the Man-ſervant, or Maid-ſervant, of others, whilft
faries for his Children, even after they were arriv'd they lodg’d. in Caves, and e'er Servitude was eſta-
at Maturity, as time and occaſion ſhould require. bliſh’d; nor laſtly, The Law of honouring Parents,
And hence, it any one of his Sons ſhould, for in- before Éve was a Mother (c). They proceed to tell us,
ſtance, contrary to his Prohibition have privately That neither was ſuch a Community poſſible in the ſtate of
feafted with too much Greedineſs on ſome particu- Men after the Fall: Firſt, Becauſe we can't ſo much
lar Fruit, the Youth had been by no means guilty as form any Notion of it in our Mind : For Grotius
up to gather Proviſion for the Suſtenance of a young might conſume anything that was conſumable
. But ſuch
Brother, and the Party thus employ'd had either de an Exerciſe of the General Right Jerri'd then inſtead
vour'd it himſelf, or laid it up fecretly for his fu- of Property: for what any one had thus ſeized, none
ture ufe, he deſerv'd Correction, not for Theſt, but elſe could take from him without Injury. Therefore
for violating the Charge which his Father
laid up- this Notion eſtabliſheth a Property in Community
, and
on him. During this Period therefore, neither A- conſequently implies a Contradi&tion; the only end and ef
dan nor his Children had any private Dominion : fect of Property being this, That one perſon ſhould not
Mr. Barbeyrac's NOTES on § 12.
(1) This Law will be quoted, c.9. $ 7. 1. 7. following.
Mr. Barbeyrac's NOTES on S 13.
(1) See I. 2. c. 3. a foregoing s 22. 24. and the Author's Preface of his Abridgement of the Duties of a Man and Citizen, s 8,
9. in the French Tranflation printed at Amſterdam in 1707.
(a) Vid. 1. 41. tit. 2. D. de acquirend. vel admittend. poffes (h) Vid. Boecler. ubi ſupra. (c) Sce above, I. 2. c. 3. f. 22.
rob

160 Of the Origin of Dominion or Property.
Book IV.
3
a
a
3
what it has
con
rob and plunder another. But here they vainly pre- ther are we who are utterly baniih'd the primitive
tend a difficulty where there is none: For antece- Communion, nor thoſe barbarous Nations which
dently to any Humane Act, and to the uſe of any ſtill retain many Foot-ſteps of it, guilty, in this
thing in the World, when the bare Caſe is thus, reſpect, of a Breach of the Law of Nature. Thus
That each thing belongs no more to one Man than too, what they add hath little Difficulty: After
to another, and confequently belongs alike to nei- the Fall, ſay they, Men could not live without Law,
Commu-
their Service: Since in the latter Caſe, by virtue tu aſign and diſtribute particular Poffeffions. But ſince
of a previous Covenant, whatever any Man hath all Laws do not preſuppoſe ſeparate Dominion, why
ſeized for his private Uſe, becomes his Property. might not thoſe others be obſerv'd ſo as to
altogether abſtain from the a Life of Society under that qualified Communion
uſe of things. Hence in this qualified Communion, Though it muſt be confeſs’d, that before the Divifi-
as we may call it, the Subſtances of things belong on of Properties, a very few Heads of Law might
to none, but their Fruits become matter of Property, have been ſufficient for the Government of Man-
when gather’d. This Notion of Community temper' kind. Therefore when Servius in his Obſervations
with ſuch a degree of Property, may we think be on Virgil (a), reports it as the Reaſon why Ceres was
eaſily apprehended by Perlons of no very Nice or by the Ancients calld Legifera (2), and her Rites
Philoſophical Heads. To give a plain Inſtance: Theſmophoria, becauſe ſhe is Jaid to have been the Foun-
The Acorns were his that took the Pains of getting dreſs of Laws; inaſmuch as before the Invention of
thein, but the Oak had no particular Owner. Thus Corn, Men wandred about without Law or Government
much being laid down, the way is the better clear’d which wild Condition was taken off after Corn came in-
towards anſwering what they farther object. They to uſe, and after Laws had been inſtituted upon the Di-
pretend that ſuch a Cummunion could not poſrbly laſt viſion of Land. This account ought not to be
one Moment of time, that it was contrary to the Hu- admitted without ſome Limitation. Indeed a mure
mane or Rational Nature, Savage and Unſóciable ; and pompous Train of Laws became needful after Pro-
conſequently is capable of affording no other uſe than prieties were fixed, Men being ruledbefore by a ſmall
that from it, as a feign’d Hypothefis, may be fivewn the number of Ordinances; yet Communion conſider'd
Neceſity of a diftin&t or private Dominion in a Civil by it felf, doth not render Life altogether lawleſs
State,
and unſociable, but only inore ſimple and unpo-
It's true, this Communion conſider’d, preciſely in liſh'd ; and as it were, not well ſetled and compact-
it felf, and before any Application and Exerciſe of ed, As for Platonical Community, it hath nothing
it, could not ſubſiſt, unleſs Men could have always to do with the Caſe before us; it being profeſſedly
walk'd naked, and liv'd without eating. Yet why poſitive, and extended not only to Goods, but to
it ſhould not ſubſiſt when thus qualified with a Wives and Children.
mixture of Property, there was nothing to hinder;
whilſt the number of Men was yet few, and their XIV. We may hence diſcover in what ſenſe we
Life plain and unrefined. It is certain however, are to take that Aſſertion laid down by fome Au-
that the more Mankind was multiplied, and the thors, That Property and Dominion belongs to the Law
more Life was improv’d, the greater Neceſſity there of Nature, ftri&tly ſo called, and which is written in
was of appropriating more things than before. Hence the Minds of Men. Where 'tis to be obſerv'd, that
thoſe People lead but a rude and barbarous Life, this Exprefſion, ſuch or ſuch a thing belongs to, or
who make the neareſt Approach to the Primitive is of, the Law of Nature, hath a different Meaning
,
Communion; thoſe, ſuppoſe, who live on Herbs, according as it's ſpoke either of any expreſs or im-
Roots, Fruits of chance growth, and what they take mediate Command, or elſe of ſome Cuſtom or In-
in hunting and in fiſhing, and who claim no other ftitution eſtabliſh'd in Humane Life. In the firſt
Eftate and Wealth than a Cave with its wretched ſenſe it imports, that the Law of Nature enjoins
Furniture. Farther, when we aſſert that all things the doing, or the not doing of ſuch a Matter : In
were, by Nature, negatively Common, we don't the ſecond, That ſound Reaſon adviſeth the Recep-
mean that the Law of Nature commands Men per- tion and Settlement of ſuch a thing amongſt Men
,
petually to preſerve ſuch a State; but that things froin the general Conſideration of a ſocial Life. For
if conſider'd antecedently to any act of Men, were as for thoſe Cuſtoms or Regulations which are intro-
fo diſpoſed, as that no one Perſon could claim them duc'd for the particular Advantage of ſeparate Com.
rather than another. On the other ſide, in affirm- monwealths, ſuch are ſaid to proceed from Civil or
ing that Men left this Communion upon the Advice Poſitive Law. When therefore 'tis demanded whe-
and Direction of Reaſon,
we pretend
not that it was ther or no Property
owes its Original to the Law of
neceſſary all things ſhould be appropriated in the Nature, the latter Senſe of the Word is to be regard-
ſame Moment; but according as the Temper or Con- ed, and not the former. That is, inaſmuch as a fo-
dition of Men, the Nature of the things themſelves, cial Life is the very Foundation of Natural Law,
and the difference of place required, and as was and ſince it is at the ſame time fufficiently evident
judg'd moſt convenient for the cutting off all man- from the Temper and Genius of Mankind, that in
ner of Quarrel or Diſſention. And therefore, nei- a great Multitude, where all join their Endeavours
W 101
(2) Legifere Cereri.] Leges enim ipfa dicitur inveniffe. Nam & facra ipſius Theſmophoria, (.e.) legum latio vocantur. Sed boc
ideo fingitur, quia ante inventum frumentum à Cerere, pafim homines fine lege vagabantur, qua feritas interrupta eft, invento ufu frus
mentorum, poſtquam ex agrorum diſcretione nata ſunt jura, Servius ad Æneid. 4. v. 58. See alſo, Callimachus's Hymn. in Cerer. v. 19
and Baron Spanbemius's Comment on it, as alſo the Hiſtorical Explication of the Fable of Ceres by Mr. Le Clerc in Tom. 6. of
his Bibliothec. Univerſal. p. 106.
(a) Æn. 4. 58.
towards

CHAP. IV.
161
Of the Origin of Dominion or Property.
towards improving Life with various Inventions, ferent. For though here likewiſe, to make a thing
the Peace and Beauty of Society could not be kept paſs to me from another, 'tis in the common and re-
up without diftin&t Dominions of things; fuch. Domi- gular courſe requir'd, that I have an Underſtand-
pions were therefore ſettled ; and this very rightly and ing able to judge of what is done (1), and to fhew
agreeable to the Aim of Nature's Laws, Humane Af: by Signs proceeding from Real Intention, that I
fairs plainly requiring it to be done. And after this am willing to receive ſuch a thing, and to keep it
Eftabliſhment, the fame Law commands the Obfer- to my ſelf; yet 'tis the receiv’d Practice of all ci-
vance of every thing that may conduce to the End viliz'd Nations, to permit Children in their moſt
for which theſe private Dominions were erected: tender Age, and even before their Birth (a), to re-
Yet was there no expreſs and determinate Com-ceive and to retain a Property deſcending to them.
mand of the Law of Nature, by virtue of which all And this is no more than what Natural Reaſon and
things ought to be brought under Property, imme- Equity adviſed; inaſmuch as the things which Meri
diately the Origin of Mankind, or in all uſually appropriate, belong to the Uſe and Service
places alike; but Property was gradually in- of Life, and are no lefs neceſſary for Infants than
troduced, according as it appear’d requiſite to the for grown Perſons ; nay indeed ſomewhat more ne
Common Peace. But the Precept of Nature about ceſſary for the former; who by reaſon of their Weak-
abſtaining from what is anothers, then firſt began to neſs in Body and Mind, cannot ſo well provide for
exert its Force, when at length, Men by mutual their own Occaſions
. In Infants therefore a preſu-
Agreement had mark'd out, and appointed what med Conſent is judg’d equivalent to a formal Ac-
ſhould belong to others, and what each Perfon ſhould ceptance, it being taken for granted, that no one
claim as his own. Before this time it lay conceald, will refuſe what conduceth to his Benefit : Yet on
(as it were virtually or potentially,) in that general
Decent which enjoins us to ftand to our Covenants, feffiomm tenfy that I motaturity of Judgment, the Pof-
and not to injure the Right of our Neighbour. Nor is could be conferr'd upon them. The general Cuſtoms
it any Abſurdity to affirm, that the Obligation we of Nations in their Favour, might allow them to
lie under, not to invade the Goods of others, is hold, but not to uſe any thing by their own Diſpo
Coeval with Humane Race? And yet that Diſtin- fal (6). However, left their Right ſhould by this
ction of meum and tuum was afterwards ordained. means come to nothing, Humanity farther required,
Thus we are often bound to yield Obedience betore that Perſons of Years and Diſcretion ſhould act as
we know what will be enjoin'd: As when we have their Repreſentatives, in the Management of their
an Obligation in general to follow the Directions Goods, till they are capable of underſtanding it thema
of fome certain Perſon in all things that he ſhall felves. This Management is either committed to
hereafter require us to perform; or when we may, a certain Perſon by him who transfers the Goods up-
ſuppoſe ſeveral particular Commands to be implied on them; or, in Civil States, the Matter is ſettled
in ſome general Rule (1).
by Direction of the Laws, and of the Magiſtrates
XV. "Îis needful in this place to add a word or or, where
or, where both theſe Proviſions are wanting, near-
two concerning the Subject of Property; on which neſs of Blood, or of Habitation, or the bare Law
Head the principal Queſtion is, Whether thoſe are of general Kindneſs
, recommends the good Office to
capable of being Proprietors, who have not the uſe fit Hands (?). But all Perſons who have engag’d
of Reaſon, as Infants and delirous Perſons ? Now themſelves in this Cafe, by what means foever they
here it is certain, that neither of theſe can original came to be intruſted with it, are oblig?d to diſcharge
ly acquire the Property of any thing, or make it it with the utmoft Fidelity; in regard to that ten-
their own by taking immediate Poflellion of it. The der Age, inſufficient for its own Guidance and De-
Reaſon is, becauſe in this Method of acquiring Pro- fence. Therefore Hefiod ranks in the ſame Claſs of
perty, the Intention of the Acquiſitor is neceſſary, Sinners, him that hath hurt a Stranger, or one that
fignifying that he will for the future hold ſuch a fued to him for Protection; him that hath dèfil’d
thing as his own; and he ſhould at the ſame time be his Brother's Bed him that hath uſed rigorous Treat-
able to underſtand, that ſuch an Act is effectual to- inent toward an Ancient Parent ;
wards the creating a Right in him. But this cannot
be ſuppoſed in the Perſons of whom we ſpeak. Yet "Ος τε ττυ αφραδίης αλιταίνεται ορφανά τέκνα. ει
as to the obtaining the Property of ſuch things as Op. & Dier. 1. 1. v. 330. Edit. Cleric.!?.
are deriv'd upon them froin others, the caſe is dif- And him whoſe Fraud the Orphan's Hope beguiles;
wer
SW 8
AT DW Tranwa
Mr. Barbeyrac's NOTES on $ 14. maila and is the thief
(1) See l. 1. c. 6. & 2. aforegoing.com
& 2200
wat nonton
it. Mr. Barbeyrac's NOTES on § 15. Amp Oechosko sritiw herinnen
(1) See l. 1. C. 1. $ 7. aforegoing, and 1. 4. c. 12. following sto.
cranit 10.2001 ord van
(2) on this occation we may mention the Law of Charondas, (recorded by Diodor. Sit. I. 12, c. 15. p. 81. Edit. Rhodom. which
affigns the Goods of Minors to the Care of the Kindred
by the Father's ſide, bue their Perſons and the Buſineſs of their Educa-
too to the Kindred by the Mother. Judging it probable, thac the latter, to whom the Inheritance could not deſcend, would
make no attempt on the Life and Safety of their Wards; and that the former would have no opportunity for any Deſign againſt
their perſons ; and yet at the ſame time would be very diligent in managing their Fortunes, becaufe after their Death, whether
Natural or Caſual, the Eftare would fall to themſelves. Si
So alfo Publius Syruszos Male fecum agit eger medicum qui heredem facit. amati si boiled sa tatua
He chat makes an heir of his Phyſician,
Dirgenes Laet. (in Solon) gives us a Law of Solon's much to the fame purpoſe ; ordaining, That
no Guardian (hould cohabic with
a
the Mother of his Ward, and that he thould be incapable of the Guardianſhip, to whom the Eftate fell upon che . Minor's De
ccaſe. See alſo Menage upon this Paffage of Diog. Laert.
0.07 14,
boki ebaolo antes
(a) vid. l. 7. 6. 26. D de Statu himinum, 1. 3. D. Si pars hæed. petatur. (6) Gal. 46 te sien on the testirqova sodelosh
neskog 210 Supa ziedidlo a
sintom
ឯង
Plato

162
Book IV.
Of the Object of Dominion or Property.
Propriety
Plato (3) in his Books of Laws (lib. 11. p. 972.) 1. 3. 1. 6. where they endeavour to prove, contrary
calls Orphans, The greateſt and moſt ſacred Charge: to his Judgment, that Infants have a
Where he likewiſe offers many Conſiderations about in their own Goods, not only in reſpect of the firt
the Duty of Guardians. Yet that a Man ſhould fu- Act, or Right of Poffefling, but alſo in reſpect of
ſtain this Office and Truſt without reward, or with the ſecond Act, or adminiſtration of their Goods
Expence, Humanity and Equity do not always re- by themſelves; for ſay they,“ The Guardians have
quire. Grotius and his Commentators, viz. Bæcler, only the bare Management of the Right and
Ziegler anl Felden may be conſulted farther on this « Goods of another. In all appearance this conteſt
Subject, in their Obſervations upon Grotius, B. II. is about words only,
(3) His Words are, Ilaegneta.J'xn xeyisn, ry isgometu, where are alſo divers other chings of the Duties of Guardians. See
allo Mr. Daumat's Civil Laws in their Natural Order, Part I. l. 2. tit. I, and the Interpreters of the Digeſts, I. 26. tit. 1, &c. By
the Civil Law a Guardian who was convicted of unjuſt Dealing was expos’d to Diſgrace, if he was guilty of wilful Knavery, but
if it appear'd that his fault proceeded from Negligence only, though groſs, he was not, as Mr. Noodt very well proves in his
Probabilia furis, l. 1. C. 13. againſt the common Opinion of the Doctors, who affirm'd, that the Puniſhment was to be inflicted
on boch alike.
CH A P. V.
Of tbe Object of Dominion or Property.
What is requir'd to make things our own.
! VI. Reaſons againſt all Property on the Sea.
II. Things conſumed in their uſe are in vain made VII. What the uſe of the Sea is.
our own.
VIII. What parts of the Sea are made a Poffeffion.
III. A thing become our own ſhould be capable of IX. The main Ocean can't be in any Mans Domini-
keeping
IV. The uſe of ſome things made our own is common X. How far Navigation and Commerce on the Sea
ons.
to all.
is free.
V.
The Divine Grant is not contrary to our Do-
minion over the Sea.
W
E are in the next place to enquire into the ally exerciſed ; 'twould be in vain for you to claim
Object of Property, or to examine what things that as your own, which you can by no means hin-
are capable of coming
ng under that Condition. Now der others from ſharing with you.
to give a thing this Capacity, we judge theſe two II. Yet ſome things there are, which though very
Qualifications to be neceſſary (1). Firſt, That it beneficial to Mankind, yet by reaſon of their vaft
be able to afford fome uſe to Men, mediately or im- Extent, are inexhauſtible, ſo that all may enjoy
mediately; by it felf, or by its connexion with ſoine- them together, and yet no Man ſuffer in his parti-
what elſe : And Secondly, That it be fome way or cular uſe. To appropriate things of this Nature
,
other ſo far under the power of Men, as that they would be malicious and inhumane: And on this
may faſten on it, and keep it for their Occaſions. account 'tis uſual to attribute an exemption from
And farther, ſince Property implies a Right of exclu- Property (1), to the Light and Heat of the Sun (2),
ding others from your Poffeffion, which Right would to the Air
, to the running Water, and the like (4)
be altogether inſignificant, if it could not be effectu- (3). Although ſince Nature by denying Men Wings,
Mr. Barbeyrac's NOTES on Chap. 5. § 1.
(1) It is very hard to bring an Example of any thing altogether uſeleſs, as Mr. Thomafius obferves in his Juriſprud. Divin.
1. 2. c. 10.$ 123. It is ſufficient, in my opinion, that we find ſome pleaſure in poffeffing, and ſo all that we enjoy is ia fome
meaſure uſeful. I think then, that this Condition ought to be omitted as fuperfluous.
Mr. Barbeyrac's NOTES on S 2.
(1) Cujacius in his Obſervations, l. 10. c. 7. brings two Examples, the one of the ſhadow of the Plane-tree, the other of the
Air; upon which a Tax was laid. The one is found in Pliny, 1. 12. c. 1. The other is in Cedrenus, who relates it of Michael Pas
leologus. See Mr. Selden's Mare Clauſum, c. 21. 10
(2) Nothing hinders nevertheleſs but we may appropriate theſe things to ourſelves in ſome manner, as to ſuch an extent as is
contained within our ownLands. Our Author himſelf falls voluntarily upon the subject of running Waters, 1. 3. c. 3.9 4. But we
muſt ſay, that by the Laws of Humanity we are oblig'd not to deny any Man the lawful uſe of theſe things, Titius Obſerv. 287.
See alſo Mr. Thomafius's Inſtit. Juriſprud. Divin. I. 2. c. 10. S 127. Lobſerve alſo, that our Author follows that Notion in his
Elements, Juriſprud. Univerſal. p. 84. See alſo $ 4. following.
(3) Petronius's Words are, Quid autem non commune eft, quod natura optimum fecit. Sol omnibus lucet. Luna innumerabilibus
comitat a fideribus etiam feras ducit ad pabulum. Quid aquis dici for moſius poteft in publico tamen manant, c. 100. See Ovid Meta-
morph. VI. 349. The Roman Lawyers ſay poſitively, that theſe ſort of things are common by Natural Righe. Naturali jure com
munia ſunt omnium hæc, aer, aqua profluens, & mare, & per hoc littora maris, inftit. 1. 2. cit. 1. De rerum divif. &c. S 1. They alſo
call them publick, in the ſame ſenſe, tho’ they ordinarily make a diftin& kind of them. See Mr. Noodt's probabilia furis, l. 1.
(a) Petron.
“ Is there any one of the moſt excellene Works of Nature, which ſhe hath nor made common to all the World?
« The Sun ſhines with an univerſal Tofluence. The Moon, attended with her numberleſs train of Stars, lights the
very
«s their food. What is there in Nature more bright and beautiful than the Waters? Yer they flow for publick uſe.
Latona thus pleads in Ovid, Metam. l. 6. v. 349.
Quid prohibetis aquas ? uſus communis aquarum eft ;
What Rudeneſs Water for my Uſe denies,
Nec folem proprium natura, nec aera fecit.
Whoſe endleſs Score the Common Word ſupplies?
Nec tenues undas ; ad publica munera veni.
Nor Light nor Air did Heaven create for One,
C. 7, 8.
beaſts to
Nor Gentle Streains : I crave a Publick Boone
hath

CHAP. V.
Of the Object of Dominion or Property. 163
hath made the uſe of the Earth neceſſary to their
IV. Laſtly, we farther diſcover, that the uſe of
uſing the Light ; hence it comes to paſs that ſome ſome things is confin’d, as it were, within narrow
Perlons may be utterly debarr’d from the latter ; Limits, and cannot admit of Shares ; the appropri-
as Criminals, as for inſtance, in their Dungeon. In ation of which was highly expedient to the peace
like manner, ſince the air is in ſome places more of Mankind.
clear and pure than in others, in this reſpect the va Again, There are things, which as they afford
lue of a place may be inhanced. As we ſee Men
us different Uſes, inay in regard to fome Uſes be
who allow pleaſure any ſhare in their choice, very ſpent and exhauſted, and yet in regard to other Uſes
highly regard the proſpect of Buildings, or of yield a never-failing abundance. Now, as on the
Lands, and eſpecially of the former : For which one fide, there is no reaſon why ſuch things as thoſe
reaſon thoſe Services (4) have been introduc'd (a), ſhould not be brought under Property; fo on the o-
of not raiſing a Building higher ; of Lights
, and of ther ſide, the Law of Kindneſs and Humanity for-
not hindring Lights ; of Proſpects
, and not of hin- bids us to deny the inexhauſtible Uſe of then to any
dring Proſpects. So though on other accounts no perſon that in a friendly and peaceable manner de-
one will pretend to fix a Property in the Wind (5), fires it. But if any thing could be found inexhau-
yet we may appoint a Service or Duty of not inter- ftible in all its Uſes
, 'twould be abſurd not to leave
cepting the Wind to the prejudice of our Mills (6). that in its Primitive Comınunity. Indeed in a po-
III. We are likewiſe to obſerve, That as the Sub- ſitive Communion, if the Object be ſufficient to
ſtances of thoſe things which Men have Dominion ſerve all, when dívided, nothing hinders but that
over are compos’d of different kinds of Matter, fo we may divide it; if it would not be thus fufficient,
each thing is taken and poſſeſs d in that way which 'tis beſt to poffefs it ſtill without Diviſion : But that
the condition of its Nature admits: For the more a thing lying in common to Mankind, and ſuffici-
cloſely any thing can be confin’d, and as it were ent for the promiſcuous Uſe of all (1), ſhould be
ſhut up, the more eaſily will it produce the effects ſhared out into diſtinct Parts, is certainly repugnant
of Property againſt the Claims of others. And con to Reaſon. The Earth is of ſuch a magnitude as to
fequently the more capable a thing is of being guard- ferve the Occaſions of all People in all Uſes to
ed from unjuft Invaders,
the greater Security we pro- which they can apply
it, yet it would not thus
miſe our ſelves in the Property of it. Yet, as we ſerve them, were it poffeſs’d without Diviſion, by
are not immediately to conclude a thing exempt fo vaft Bodies of Inhabitants as it now contains :
from Property, becauſe it cannot without fome trou- Becauſe it could never afford them Suſtenance, un-
ble be kept from other Hands ; fo in caſe a thing leſs manur'd and improv’d. Therefore there is
be in fo wide a manner ſpread and diffus’d, as that plainly this particular Reaſon why the extent of the
either 'tis morally impoſſible it ihould fall under Earth ſhould not hinder its being divided; and yet
any method of keeping, or that it cannot be kept the ſame reaſon would make the diviſion of the O-
without much greater charges than the Fruits and cean appear a ridiculous Abſurdity (-).
Advantages of it would countervail, it is not to be V. Indeed all other things have little difficulty
ſuppoſed that any Perſon deſires to fix a Property in this point; but as to the Sea, whether or no that
which can bring hin nothing but burthen and ex- be capable of Property, hath been diſputed by the
pence in defending it (1). Though to render a thing greateſt Genius's of the preſent Age. Ön which con-
capable of being appropriated, it is not ſtrictly ne- troverſie 'tis eaſie to remark, that many of the Wri-
ceffary that we ſhould incloſe it, or be able to in- ters engaged in it, were more guided by their Affe-
cloſe it within artificial Bounds (2), or ſuch as are ction to their Country, than by their regard to
different from its own Subſtance; 'tis ſufficient if Truth. Yet by theſe, and by others who have
the compaſs and extent of it can be any way deter- ſhewn themſelves more dif-intereſſed and impartial,
min’d. And therefore Grotius hath given himſelf the whole Subject hath been ſo fully diſcuſs’d, that
a needleſs Trouble, when to prove Rivers capable 'tis hard to ſay any thing that others have not al-
of Property he uſeth this Arguinent, (4) That although ready offer’d. We may therefore be allow'd to uſe
they are bounded by the Land at neither end, but uni more brevity on the Queſtion before us; the Au-
ted to other Rivers, or the Sea, yet 'tis enough that thors (1) who have throughly canvaſs’d it, being
the greater part of them, that is, their Sides are in- ſo univerſally read. This then is manifeft, that the
cloſed.
ſame Divine Grant which firſt gave Man a Right
will
(4) The Author will treat of this, c. 8. $ 6. following. (5) See 1. 5. c. I. $ 5. following.
(6) See Mr. Thomaſius's Diſcourſe, entitled, Non ens aétionis forenſis contra ædificantem ex emulatione, $ 28. Mr. Titius treats
in general of the Right of Mills, in his Jus Privatum, Romano-German. I. 18. c. 16.
Mr. Barbeyrac's NOTES on 6 3.
(1) We cannot when we will. The Will alone doth not ſuffice here ; we muſt beſides this be inclinable to get the poffeffion
of the thing, and moreover, the thing it ſelf muſt be of ſuch a nature, as to be poffeſs'd in fome manner or other. We ſeize
upon a thing, that we may poffefs it ; and nothing is more ridiculous, than to pretend to pofleſs what we can't either hold, nor
preſerve in any fort
..
(+) The Bounds of a thing made our Property, are the fame with thoſe of Poffeffion. Whatever a Man is ſeiz'd of, it be-
longs to him ſo far as he hath poffeffion of it, and how far he is actually
poffefſed of it, is eafie to determine. See Mr. Bynker-
Shock, De Dominie Maris, c.9. p. 59, 70.
Mr. Barbeyrac's NOTES on $ 4.
This Reaſon is of force only when a thing is joyned with an impoffibility of poſſeſſing it. For on this account alone, that
a thing is in fo great
an abundance, that whatever quanţity we take of it, others have enough ſtill remaining, it follows on the
other side, that
we may appropriate as much as we
will, or can poffefs, ſince every one may do the ſame in their turn, and no
Man looleth any thing. I am ſurpriz'd that our Author made
noc chis Remark.
Mr Barbeyrac's NOTES on S 5.
(1) The moſt confiderable are Grotius in his Book, entitled, Mare Clauſum, and Selden in his Book, entitled, Mare Liberum.
A few Years fince Mr. Bynker ſhock publith'd a Diſcourſe, which I have quoted leveral times betore, in which, tho'cis ſhort, this
Matter is treated of, in my judgment, more exactly, and with more Elegancy than it was ever yet. It was prínred in 1703. joyn’d
to a Commentary upon the Law of Rhodes, De fa&tu.
(a) See hereafter, c. 8. f. 6.
(b) Lib. 2. 6, 3. 1.7. (c) Comp. Ziegler ad Grot. I. 2. c. 2. 1. 3.
+ X 2
of

164 Of the Object of Dominion or Property.
Book IV.
Uſes, ſufficient for all Men in all parts. Becauſe
of aſſuming the Sovereignty of the Earth, includ- Winds and Tide. The River is one thing, and the
ed likewiſe the Sea. The Commiſſion as well runs, Stream or Currant another : And in the fame man-
have Dominion over the Fiſhes of the Sea, as over ner the Sea is conſider'd diſtinctly froin the Waters
the Beaſts of the Land. And we cannot conceive a- which it contains. The vaſt extent of the Sea doth
ny Supremacy and Rule over Animals, without a by no means render it impoſſible to be kept, and
Right of uſing the Element which they inhabit, ac, therefore doth not altogether hinder it from com-
cording as the Nature of it will allow. Indeed ing under Property. For we may abridge others of
mention is likewiſe made of the Fowls of the Air, the uſe of the Sea, either by Forts upon the Shore,
yet ſince we cannot move and ſupport our ſelves in where it toucheth our Territories in narrow Creeks
,
that Eleinent alone, therefore we are unable to and Streights; or by Ships of War, which are able
exerciſe Dominion over the Air any farther than to perform the fame Service on the Water, as Ca-
we can reach while we ſtand upon the Earth. But ſtles and Forts on the Land. Though it cannot be
on the Sea we ſtretch our Empire much farther, by denied, but that for one People to keep the whole
the means of Ships, now brought to their higheſt Ocean, is morally impoſſible: Nor would it be
Perfection ; which are not only ſerviceable in tranf- worth their while to maintain Fleets in all Parts
,
porting Burthens, but likewiſe carry Mars through for the defence of it againſt all others who ſhould
the Kingdoms of Neptune in a far more dreadful deſire to ſhare with them in the Uſe. Now 'tis
Array than he is attended with when he rageth by great folly to covet what one can't keep; eſpecial-
Land. No one is now ſo ſuperſtitious as to join in ly when by ſuch a purſuit we do not aim at the New
the Poet's Scruple.
ceflities of Life, but at the Gratification of vain
Ambition, and of needleſs Avarice. For though o-
Nequicquam Deus abfcidit
therwiſe the Defect of Natural Ability doth not
Prudens Oceano diſſociabili
preſently extinguiſh a Moral Capacity, yet inaſ-
Terras, fi tamen impie
much as the Latter, by reaſon of the Corruption
Non tangenda rates tranfiliunt vada. 1951
of Mankind, is almoſt inſignificant, Prudence ad-
viſeth us, to graſp at 110 inore than we can well
In vain did Nature's wiſe Command,
ſecure our ſelves in the enjoyinent of. Grotius's
Divide the Waters from the Land,
Limitation on this point feems Superfluous, when
If úaring Ships, and Men profane
he remarks (a). That Rivers or part of the Sea may
Invade th' inviolable Main. L. 1. Od. 3. 21, &c. be appropriated upon ſuppoſition that either the former
Mr. Dryden. or the latter are but inconſiderable in refpe&t of the
Land; or however, are not ſo large, but that when
Nor doth the Sea appear to have any privilege a compared with the Land, they may only ſeem to have
bove the Earth, by virtue of which Men ought leſs the proportion of a part to the whole. For let us
to apply it to their Occaſions and Uſe. However, conſider a People ſeating themſelves on the ſide of
ſince the Donation of God doth not immediately a vaſt River, on a long and narrow Slip of Land;
conſtitute fuch Dominion as ſhall take effect againſt here the River will by no means be inconſiderable
the Claims of others; therefore it was left to the in compariſon with the Land; and yet we don't
choice of Men, whether they would appropriate the imagine that this would hinder it from a capacity
Sea likewiſe, as they had done the greateſt part of of Appropriation. Thus there are Kingdoms, which
its Primitive State, belonging no more to one Per- Appendages
.
the Land, or whether they would let it remain in in extent are far exceeded by their Provinces and
ſon than to any beſides.
The Moral Reaſon which theſe Authors urge to
VI. The Queſtion is, therefore, Whether any prove the Sea incapable of becoming Property, is
thing particular may be diſcover'd in the Sea,
which taken from this Confideration, that the uſe of it is
ſhould hinder it from being an Object of Proper- inexhauſtible (3), and therefore fufficient for the
ty? This fome have undertaken to affirm, partly promiſcuous Service of all. So that 'twould be vain
upon Natural, and partly upon Moral Reaſons. and impertinent to attempt the Diviſion of it into
Amongſt the former they have alledg’d the Flui- ſeparate Portions and Shares. Which Argument we
dity of the Sea ; that (1), according to the Com- would indeed acknowledge to be the Itrongeſt that
inon Nature of all Liquid Bodies, the parts of it can be produced in the preſent Caſe, were it once
are held together by no proper Bands; whereas made appear that the Sea, is with reſpect to all its
and terminated. To which others make anſwer, That the appropriation of things was introduced on no
Fluidity conſider'd in it ſelf is no Bar againſt Pro- other account but to preſerve the peace of Humane
perty : And beſides, that the Sea is not without its Society. And ſince one effect of it is this, That he
Limits(2), being ſurrounded by the Shore, and that who againſt his will invades and ufurps my Pecu-
it is a work of no ſuch great difficulty to confine liar
, really doth an Injury to me, which I might
the ſeveral parts and tracts of it within ſtricter juſtly revenge in a hoſtile manner; therefore thole
Bounds. It Inay be added, that as Rivers are not who ſhould have deſired to turn a thing into Proper
the leſs capable of Property, becauſe they paſs away ty, which whilft expos’d to Coinmon Uſe
, was not
in a perpetual Stream, fo neither is the Sea, on ac- likely to breed any Quarrel amongſt Men, ought to
count of its being driven about by the force of the have been look'd upon not as promoters of the Peace
fuota
1
1
id
Mr. Barbeyrat's NOTES on 6 6.
(1) See Mr. Selden's Mare Claufum, c. 21, 22.
(3) As for Example, the Rocks which appear above Water, the Banks of Sand, the Capes, which are one over againſt the
other, the Ies Scatrered up and down in diverſe places.
(3) See $ 4. n. 2. aforegoing and Mr. Bynkerſhock's Treatiſe, c. 9. p. 68.
(a) Lib. 2. c. 3. f. 7, 8.
2001
Dior of

Chap. V.
Of the Object of Dominion or Property. 165
haufted;
ployd (0) Luffers
vallo foi
of Mankind, but as Perſons who brought in new of Veſſels. For which Reaſon it muſt needs be a
occaſions of breaking and diſturbing it. But whe- diſadvantage to any People, thus feated, that other
ther the Sea be thus inexhauſtible in all its Parts, Nations ſhould have free accefs to their Shore with
with reſpect to every Uſe, will be made more evi- Ships of War, without asking their leave, or with-
dent, if we examine more diſtinctly the particular out giving ſecurity for their peaceful and inoffen-
Services which it affords.
ſive Paflage. But we cannot, with any Accuracy (2),
VII. The uſe of Bathing and of drawing Water determine in general how large a ſpace of the Sea
is indeed inexhauſtible; but then this is of no great ought to be allow'd for ſuch a Defence, in reſpect
Conſequence, and extends
no farther than to the In- of which it may be for the Safety and Intereſt of
habitants of the Shore. The Sea-water is likewiſe the Borderers to claim a diſtinct Dominion over it.
ſerviceable for the making of Salt : But this ad- Yet certainly it would argue a very unreaſonable
vantage as well as the forner is confin’d to thoſe Fear and Jealouſie, ſhould any Kingdom barely on
Farther, as to the con- this account deſire to extend their Sovereignty over
venience of Navigation, the Sea is inexhauſti- the Seaſon for ſome hundreds of Leagues together.
But then beſides theſe, there are o- luſtrate this: The particular Communities look on it
ther Ules, part of which are not altogether inex- as the higheſt Honour to make a valt extent of Defart
hauſtible; and part may prove an occaſion of da- round about them, waſting all the Confines of their
mage to Maritime Countries, whoſe Intereſt will Neighbours: this they reckon the ſureſt mark of an ex-
not admit that the Sea ſhould every where lie pro- traordinary Valour, that the former Borderers have
miſcuouſly free to all. Of the former kind is Fiſh- retired, and been driven to a greater diſtance, and
ing, as likewiſe the gathering of any thing which that none dare ſeat themſelves in Jo formidable a Neigh-
grows in the Water. As for Fiſhing, though it be bourhood. And then befides, they thought themſelves
abundant Sea, than in Lakes the ſafer this Policyhaving taken away
all fear of
Rivers ; yet 'tis manifeſt that it may in part be ex- ſudden Incurſions, de B. G. I. 6. However we fee
and that if all Nations ſhould deſire ſuch by what hath been offer'd, that there may be ve-
a Right and Liberty near the Coaſts of any parti- ry weighty Reaſons for a People fo far to appro-
cular Country, that Country muſt be very much priate to themſelves ſome part of the Sea, as to ob-
prejudic'd in this reſpect; eſpecially ſince 'tis very lige all others to acknowledge the uſe of the ſame
uſual that ſome particular kind of Fiſh, or perhaps part, as a permiſſion froin them, and an Act of Boun-
ſome more precious Cominodity, as Pearls, Coral, ty and Favour.
Amber, or the like, are to be found only in one part VIII. But ſince all Dominion capable of produ-
of the Sea, and that of no conſiderable extent. In cing any Effect againſt the Claims of others, takes
this Cafe there is no reaſon why the Borderers ſhould its riſe from fome Act of Men ; therefore how far
not rather challenge to themſelves this Happineſs the Bounds of any People ought to reach on the Sea,
of a wealthy Shore or Sea, than thoſe who are feat- is to be diſcover'd either from their own Right of
ed at a diſtance from it: And other Nations can Pofſeflion, or from their Treaties with their Neigh-
with no inore Juſtice grudge or envy them ſuch an bours. This Iſocrates (in his Panegyr. p. 111. Ed.
Advantage, than they can be angry that,
Pariſ.) boaſts that the Athenians by their Articles
of Peace with the King of Perfia, had obliged him
Non omnis fert omnia tellus. not to come beyond Phaſelis with his Ships of War
.
India mittit ebur, molles fua thura Sabai, &c. (c) (a) Yet ſuppoſing the inatter to be dubious, and that there
are no clear Memorials to be found of ſuch Acts as
All ſorts of Goods their ſeveral Countries know, might prove the Oecupancy to be real which is al-
Ebon's only will in India grow,
ledg’d; what preſumptions are to be male in this
And Frankincenſe on the Sabean Bough. Caſe we may underſtand from the following Re-
Mr. Dryden. marks. In the beginning then whilſt we were yet
ignorant of Navigation, it is not probable that the
An Uſe of the latter kind it is, that the Maritime People which had taken poſſeſſion of any Territories,
Countries are guarded and defended by the Sea, as extended their Dominion farther than to the Neigh-
a Rampart, Hence
the Duke of Somerſet, Prote&tor bouring Shore
. For inaſmuch as the Fiſhing-Trade
of England, under Edward the Sixth, in an Epiſtle was yet but poor and barren, for want of Boats
, and
to the Scots, which we find in Sleidan's Commenta- the utmoſt advantage they could make was to pick up
ries, (e) tells them, Oceano claudimur undique tan- the Shell-Fith which were left by the Tide, or to An-
ዓ
encloſed with the Ocean, as with the ſtrongeſt Wall and in this reſpect ſuffer from their Neighbours ; who be-
Bulwark. And we may with much more Juſtice be- ing neceffitated to make their approaches by Land,
ſtow on the Sea that Name of csáverov reizos (1), might be repuls’d with little difficulty. Nay,
after
an Immortal Wall
, than Ifocrates (f ) compleinented Invention of Shipping, muſt Nations for a confide-
the River Nile with it
. Yet this defence is not al- rable time, left each other at full liberty to fiſh
together certain and ſecure. It hinders indeed any where they pleas’d: Becauſe they imagin' that an
Expedition on Foot, but lies open to the approach Employment of fo great labour and hardſhip would
od ISO
Mr. Barbeyrac's NOTES on S 7.
(1) A firm and everlaſting Wall.
(2Mr.de Bynkerſhoek in his Differtation, c. 2. fays, that ſo much of the Sea may be thought to be ſeized from the Land, as
which the States General of the United Provinces gave the Captains of their ships in 1641. to falute as they pals'd the Coaſts of
any foreign Prince, that they may know that they are within Canon-ſhot, near the places of that Coantry,
(*) Vid. I. 23.1. 1. D. de Servitut. pred. ruſtic. (b) Vid. 1. 8.c. 3. D. de Servit. pred. ruſtic. (c) See Pliny, 1. 9. C. 15. of
(d) Vid. Virgil. Georg. I. 1, v. 57, &c. (e) Lib. 20, () Encom, Bufir.
the happy Shore about Byzanti uin.
not

166 Of tbe Object of Dominion or Property.
Book IV.
not engage ſuch a numerous Train of Followers, as It doth not ſeem neceſſary that particular Nations
that any publick Diſturbance ſhould be apprehend- ſhould make out the preciſe time when they ob-
ed from their Diſputes and Contentions. And whilft tain’d the Dominions of ſuch or ſuch parts of the
Hoftile Heats were yet unknown, the Sea was a fuf- Sea, by taking Poſſeſſion of it : But, inaſmuch as
ficient Defence without other Aſliſtances. And af- the Exerciſe of this Dominion may not at all times
terwards when they began to build Ships of War
, be of Uſe and Advantage, 'tis enough if they then
Men were contented a long while to appropriate on- perform’d any Act of Sovereignty, when the inte-
the Havens and Bays, leaving the other parts of reſt of the Commonwealth ſeem'd to require it:
the Sea in their Primitive Community. This ino- Nay, in our Judgment, it might be no Abſurdity to
deration embolden’d the Pirates to carry on their affirm, that when Naval Forces are once brought
Profeſſion with greater Liberty, whilſt they were into common uſe, the parts of the Sea, ſo far as
of Opinion, That 'twas a leſs heinous breach of the they ſerve only for a Defence or an Appendage,
General Peace, to commit theſe outrages in places do without any ſpecial corporal Act, paſs imme
ſubject to no Juriſdiction. At length, when they diately under the Dominion of that people whoſe
had found out the benefit of Merchandice, and the Shores they waſh (b). For in this reſpect the Sea
conveniency of fo ſhort a Paſſage by Water for is to be look'd on as an Increment of the Land, as
Goods and Traffick, ſome Governments ſeated near the adjoining Moors and Fens are reckond the In-
the Streights or Narrow Seas, challeng’d to them- crement of a City. Now, as in the Occupancy, or
ſelves a Property in them, that by requiring Toll the taking Poffeffion of Innmoveables, it is not ne-
and Cuſtom (2), they might come in for a ſhare in ceſſary that our Body ſhould touch each Part, but
the Gain, or that their Towns might be frequented the touching of one part only is conceiv'd to create
by the Trading part of the World. After this, o a Property over the whole; ſo when a People have
ther parts of the Sea were likewiſe brought under ſeiz'd on one particular Region incloſed within ſet-
Subjection, either on account of their great plenty tled Bounds, ſtill under the
Notion of taking all the
of Fiſh, or becauſe this was a neceſſary Expedient void ſpace about that they ſhall afterwards have Oc.
for the ſecurity of the bordering Provinces. caſion for, though at firſt they have no Deſign to
Yet in theſe times they ſcarce exerciſed any o- enlarge, or exerciſe their Dominion farther than
ther Right of Sovereignty, beſides the giving out thoſe Bounds, as not thinking what lies beyond to
Injunctions, that all who paſs’d within ſuch Bounds be of uſe or ſervice to them; yet when they corne
ſhould abſtain from all Harm and Violence, that no at length to find, that there is a neceility of adding
Piracies ſhould be there committed, and no Veſſels ſuch a void ſpace to their preſent Poffeffions, their
of War enter without Periniſfion. Thus when bare Intention and Reſolution ſhould ſeem fufficient
the Lacedemonians, in Thucydides (a), had convey'd to extend their Sovereignty over it, as a Part or
fome Forces to Epidaurus, by Sea, the Argives in an Appendage of their Empire. Eſpecially when it
Embaſſy to the Athenians complain’d, that they ha- once appeard that other Nations had thus ſtretched
ving promis’d by League not to grant the Enemies their Command over the Void Sea: Whence 'tis a
of Argos Paſſage through their Dominions, had ne, fair Preſumption, that the reſt of the World pre-
vertheleſs ſuffer’d then to fail by unmoleſted. And tend not that they ſhould be behind with them in
accordingly the Athenians interpreted this Act of this Advantage (*) (5). From which Confiderati-
the Lacedæmonians as a breach of Peace. We ſee it ons it is manifeft, that in theſe times, when Ship-
is now the receiv'd Cuſtom, in order to the Acknow- ping is brought to its higheſt Perfection, it is pre-
ledgment of this Sovereignty, that Foreign Veſſels, ſum'd, that
as they paſs by any Fort on the Shore, or any Ship ed with Navigation (6), are Lords of the Sea, where
of War belonging to the Prince,who at preſent carries it toucheth their own Shore, ſo far as it may be
as
Mark and
0
of Reſpect.
places
(a) Lib. 5. c. 56. Edit. Oxon. (6) Comp. Ziegler. ad Grot. I. 2.C. 3. f.11.
(*) In all the Editions of the Original the word eum is wanting, which makes our Author very difficule to be underſtood.
(2) See Grotius, l. 2. c. 3. $ 14.
(1) Mr. Bynkerſboek in his Diſcourſe, c. 5. near the end, maintains, Thar that is not always an acknowledgement of the Sove.
reignty of that perſon, to whom that Reſpect is paid, over that part of the Sea wliere it is done. As for Example, ſays he, The
States-General in their Treaties of Peace made in the Years 1654, 1662, 1674, and 1684, obliged themſelves to lower their
Top-fail to the Ships of the King of England in all the Northern Seas as far as Cape Finiſter, but that was only, becauſe according
to the Law of Nations all Republicks ought to give place to a Crown'd Head, and to thoſe that repreſent him. In ſhort, che
Cuftom of ſaluring the Veſſels of ſuch Nations to whom they are inferiour, in one manner or other, is not ſo new as our Author
would infinuate, for we find in Appian, as Juſtus Lipſius has long ſince obſerved, Ele&. 1. 23. p. 729. That Mark Anthony and
Domitius Ænobarbus meeting one another, the firſt Sergeant of Anthony, thinking himſelf obliged according to the cuſtom,
cry'd out, that he ſhould lower his Standard, which was then usd inſtead of a Maft, (xe Jeaño oruçãoy) to pay his Homage to
his Maſter. De Bell. Civil. 1. s.p. 118.
(5) When our Author ſays, That they may without taking a new Poffeffion, ſeize on a thing which they had before neglected,
as a thing of no Profit, it is not to be underſtood, that they have called to 'mind ſome new Reaſon, which of it felf renders it
neceffary to acquire that which before
they had not troubled themſelves to make a Property of. Thus, fince the invention of
Cannon, the Sea, which adjɔyns to a Country, hath upon that account been thought to belong to the Lord of the Country, as far
as a Cannon can ſhoot. But yet there muſt be a formal Act of taking Poffeffion neceſſary, without which every one may look
upon thoſe Seas and Lands to be common, becaufe they do not appear pofieſſed by any, for why may nor he who finds them con-
venient for him, leize on them?
As for all that ſpace of the Sea which can't be defended from the Land, Mr. Bynkerſhoek chioks
none can make themſelves Maſters of it farther than they fail, with a deſign to appropriate it to themſelves
, and he adds, That
they can't preſerve the Property of what they have ſeized on, but by connant failing, and having always a Fleet abroad. Hence
it was that the Romans heretofore, when their Empire extended through Europe, Africa and Aſia, were Maſters of the Mediter-
ranean Sea, becauſe they always kepr four Fleets a foot; the firſt at the Pore of 'Miſene, the ſecond at Ravenna, the third at Free
jus, and the fourth at Byzantium or Conftantinople. They commanded allo that part of the Ocean that is between England and the
Continent, as well becauſe they poſſeſs’d the Lands on both ſides, as becauſe they had a Fleet in the Engliſh Channel. But
according

Chap. V.
Of the Object of Dominion or Property. 167
places where there is Convenience of Landing (7). than if it were peculiarly ſubject to one. The Fiih-
In like manner the Gulphs and Channels, or Arms ing Trade is of no very great Conſequence in the
of the Sea, are, according to the regular courſe, main Ocean; and ſince you do but vainly call a
fuppoſed to belong to the People with whoſe thing, Your own, when 'tis morally impollible to
Lands they are encompafled. But in caſe different hinder others from uſing it promiſcuouſly with
Nations border on the ſame Channel, the Sovereign- your ſelf; we cannot think any State would find
ty of each ſhall be conceiv'd to reach into the mid- it tantamount, to maintain Fleets in all parts
dle of the Water, from every part of their reſpective of the Sea, only to ſecure the Fiſhing againſt
Shore;
unleſs either all the States have agreed by Interlopers. But what if a particular Nation, ei-
Covenant to uſe the whole Water promiſcuouſly a- ther through Ambition and the Vanity of being ſti-
mongſt themſelves, and to exerciſe a general undi- led Lords of the Ocean; or prompted by Avarice,
vided Sovereignty over it, againſt Foreigners: Or and the hopes of drawing to themſelves all the Ad-
elfe, if one particular People have obtain'd a Domie vantages of Navigation and Trade, ſhould claim the
nion over the whole by Pact, or by the Tacit Con- Ocean as their peculiar Poſſeſſion ? Eſpecially if
ceilion of the reſt, or by the Right of Conqueſt, or they urged by way of Title, That they were the
becauſe they firſt fix'd their Station near it, and im- firſt who entred upon the uſe of it with Sails and
mediately took it into full Poſſeſſion, exerciſing Acts Shipping, and that they poſſeſs Lands in every Con-
of Sovereignty againſt the People of the oppoſite tinent round it : And that, ſince the Sea was origi-
Shore. In which latter Cafe, nevertheleſs, the o- nally a void ſpace, he who before the reſt attemp-
ther Neighbouring States, their Fellow Borderers ted to fix a Uſe and Occupancy in it; might there
ſhall be ſuppoſed to be Lords of each of their par- by acquire a Property excluſive of all others. To this
ticular Ports, and of ſo much of the Sea, as the con we anſwer, That Men have indeed a Privilege of
venient acceſs to the Shore requires. Of the Effects making Waſte places their own, by firſt ſeizing
of the Sovereigrity (if it may be fo term’d) over upon them: But then they are always to remember,
the Sea, Vid. Alberic. Gentil. Advocat. Hiſpan. l. 1. that God gave the World not to this nor to that
c. 8. & 14. and Selden mar. clauf. 1. 2. C. 20, 21, 22. Man, but to humane Race in general; as likewiſe
To which we may add, by the way, what Dr. Cham- that all Men are by Nature equal. Wherefore, that
berlain takes notice of in his Preſent State of Eng- tacit Covenant between the firſt Introducers of Pro-
land, pag. 1. C. 4. That Perfons born under Shipboard perty, affigning the Right of thoſe things which did
upon Seas which are ſubje&t to the Engliſh Dominion, not fall under their prime Diviſion (1), to the Per-
are accounted Natives of England, and have no need fons who Nould firſt take Pofieſſion of them, can
of Naturalization, as others born without the Realm. by no means be extended to ſuch an Object, which
IX. But what ſhall we ſay of the main Ocean, if one ſhould hold alone, he might oppreſs all others
which ſpreads it ſelf between thoſe vaſt Continents with moſt unjuſt Slavery, or might intercept fome
of Europe, Africa, America, and the unknown Sou- moſt important Advantages, which would otherwiſe
thern Coaſts? Was this ever brought under Property, accrue to all Nations in common. Inaſmuch as ſuch
or doth it ſtill remain in its primitive State, free a Cafe as this could not enter into the Imagination
and common to all the World? As for the prodigi- of thoſe primitive Diviſors. As then no one would
ous extent of it, this however doth not abſolutely deſerve Cenſure for taking out of a common Store
render it incapable of being appropriated. Yet whatever is Neceſſary for his own Occaſions, tho
we inuſt confeſs, the Domnion of it would not be in order to future uſe; fo he is not to be endur'd,
only unprofitable, but unjuſt; ſhould either any who out of a vain and ſenſeleſs Greedineſs, ſhould
one Nation challenge it all to themſelves, or ſeve- lay claim to more than he could ever ſpend, and
ral States divide it into ſo many Shares, excluding ſhould deſire infinitely to enlarge his own Domini-
all the reſt of Mankind. Navigation, or the Con- on, for no other Reaſon, but to debar others from
venience of Water-paſſage, is a thing which fuffers the uſe of thoſe good things which Nature affords:
no Damage by being enjoy’d; on the bare Account There can then no probable Ground or Colour be
of which, the Appropriation of the Sea is needleſs alledged why any one People ſhould pretend to
and fuperfluous, ſince Men may fail no leſs com- the Dominion of the whole Ocean, ſo as by virtue
modiouſly,
were the Sea common to all Nations, of this Right to aim at excluding all others from
according to Mr. Bynkerſhoek, there is no part of the main Ocean, nor of any Sea inclos'd with Land, that belor.gs to any Power
farther than he can command it from the shore, becauſe there is no Power in actual Poffeffion after the manner we have before.
mentioned. As to the queſtion of Fact, I will nor meddle with it. Our Author may be conſulted about that. As for the mac-
ter of Right, alcho', as I ſhall ſhew hereafter, I do not reſt altogether in the Opinion of that learned and judicious Lawyer, who
lays it down for a general Maxim, That without regard had to the Laws of Kingdoms, Property is always excinguiſh'd with the
actual Poffeffion, yet I think he hath reaſon to maintain it in reſpect to the Sea, and other things of like nature, which remain
ſuch as Nature has produced them. As the Induſtry of Man has added nothing but the bare Poffeffion, it follows, that from the
very moment that Pofleſſion is left in any manner, the things are, and may be look'd upon as quite abandoned. As for exam-
ple, fuppoſe there be a great excent of Land unoccupied, which are nor encompafled on any ſide with the Lands of any State,
though they are near, if the Maſter of the Country takes no care to Till them, or ſecure them; or if he has ſometimes done it,
does diſcontinue it, any Man may ſeize it as well as he, eſpecially if the Neighbours have reſigned all their Right to him
; and
in this caſe alſo the Renunciation of theſe laſt can't be drawn into conſequence for others who would ſettle there, ſo long as
they are
not actually polieſſed. By a much ſtronger Reaſon we muſt acknowledge the neceſſity of a continual Poffeffion in re-
fpe&t of the Sea, which, excepting a little diſtance from the shore, is much leſs in uſe both in it felf, and by all the care that
Man can take to make it profitable in any manner, wherefore nothing but inſatiable Avarice, and a prodigious diſregard to the
quality of all Men by Nature, can ſuggeſt ſuch vall Precenſions, and ſo difficult, not to ſay impoſſible, to maintain. See $ 9.
(7) Bodinus de Republ. I... c. ult. on the Authority of Baldus affirms, That bý a kind of common Right enjoy'd by all Princes
of Maritime Countries, the parcicular Sovereign may command and controul thoſe who approach within sixcy Miles of his short.
Mr. Barbeyrac's NOTES on $ 9.
(1) It is not neceſſary to have recourſe to the intent of the Agreement, which, as I have ſhewed above, is a meet Chimera.
The impoſſibility
of ſeizing upon the main Ocean, and preſerving a non-interrupted Poffeſfion, is fufficient to prove the Ridicu-
louſneſs
and Injuſtice of these proud Pretenſions. Scc $ 8.0.6. before
going. And Mr. de Bynkerſhoek's Diſcourſe, c. 7.
failing
following

168
Of the Object of Property.
Book IV.
failing there. Not one of thoſe Reaſons which firſt be, becauſe the Law of general Kindneſs and Hu-
moved Men to the Settlement of Property, doth af- manity requires it. Whence it follows, that no So-
fect the main Sea. To make it fit for Navigation, vereign can hinder the Nations which border on the
there is no need (in regard to the Sea it felt,) of main Sea, and are not under his Government, from
the Pains and Induſtry of Men. The winds labour maintaining a Trade with each other; unleſs he
no more to drive all the Fleets in the World, than have by Covenant obtain’d ſuch a Right, as either
a ſingle Veffe). Nor do thoſe Tracts which the that fomne particular State is bound, on his account,
Keels plough up, make the way rougher to thoſe to exclude ſome certain People from all Coinmerce
that follow them. As for the Paſſage to the other with them ; ( of which kind was the Contract be-
Continent, this is not rendered leſs convenient to tween the Dutch Eaji-India Company, and the Em
one Nation, though another uſeth the ſame Road. peror of Ceylon (a); or that fome whole Nation have
"And to have been the firſt Travellers through any ſurrendred up to him their Right of a Sailing to ano-
place, doth by no means give a People the Domi- ther (1). For ſince I may, at my pleaſure, either
nion of it, or prohibit others froin turning it to the retain or alienate my Goods, eſpecially ſuch as re-
fame Advantage. It is a moſt imprudent Plea to gard rather the Superfluities of Pleaſure than the
urge, That any o one State by intercepting the Naval Neceflities of Life, there is no reaſon but that I may
Affairs of all others
, may be able to draw to it ſelf on ſome certain Conſiderations oblige my ſelf to dif-
the whole Profit of a Sea Trade, which Intereſt all Per- poſe of them to one Perſon, and to none beſides
.
Jons ought induſtriouſly to purſue. As if all the reſt And this indeed is one proper effect of Liberty, that
of Mankind out to be oppreſs’d by a moſt unjuſt Men may by Covenant give up their Rights be-
Monopoly, to gratifie the inſatiable Avarice of a tween themſelves; though no ſuch Covenant ſhall
ſingle Government: Or, as it all others muſt volun- be allowed, if really prejudicial to a Third Perſon
,
tarily turn Slaves, becauſe the wicked Ambition of Hence likewiſe, as a Prince may juſtly ordain, that
one Prince or State lufts after the Sovereignty of the no Goods, of the Growth or the Manufacture of his
whole World. Such hath been the Bounty of Pro- Dominions, ſhall be exported by Foreigners, unleſs
vidence towards Mankind, as to give an abundant by ſuch as have obtain'd this Privilege, either upon
Supply of all things uſeful to their Neceflities. But Covenant, or by free Grant; (though the Law of
as to the manner poſſeſſing theſe things, Reaſon en- Nature doth not at all oblige him to ſtrike ſuch a
joins Men to uſe ſuch Moderation in it, as to reſt Covenant, or to make ſuch a Grant, unleſs ſome Na-
contented with the Acquiſition of ſo much as is like- tion abroad be reduced to ſuch Extremnity, as that
ly to ſuffice for the Service of themſelves and of without this Liberty of Commerce, they muſt ne-
their Dependants. Nor doth the faine Principle for- ceſſarily Perifh: So if a People of Europe, for In-
bid them to be concern’d for the future, provided ſtance, have appropriated any Country in Africk,
they do not, either by Envy or Avarice hinder o or the Indies, by ſuch means, and in ſuch manner
thers from gaining a Needful Maintenance and Re- as the Cuſtom of Nations inakes effecual towards
lief. If any
y one carries his Purſuits further, and the acquiring Dominion; they may with like Ju-
ſcrapes up ſuperfluous Stores, to the Injury and Op- ftice, if they think fit, cut off from others all Pál-
preſſion of others, it can be no fault in the reſt, if
, ſage thither on account of Traffick, or not allow it
,
when Opportunity ſerves, they engage in a timely but under certain Conditions, or ſome ſettled Bur-
Enterprize of reducing him to Řeaſon.
thens and Duties. And this we now fee in
every
X. From what we have obſerv’d, it is clear, that Day's Practice : Nor doth it appear to be in any re-
to fail the Ocean in a peaceful manner, both is and ſpect repugnant to Natural Reaſon. For that Li-
ought to be the free Privilege of all Nations: It is, berty of Commerce, on which ſome ground ſuch high
becauſe no one People have attain'd ſuch a Right Pretenſions, doth not hinder but that a State may
over the Ocean, as will juſtifie them in ſhutting out allow more Favour to its own Subjects, than to
all others from the fame Benefit: And it ought to Strangers.
OD DICHT
Mr. Barbeyrat's NOTE on S 10.
(1) See 1.3.3 $6,9, 11. above.
(a) Vid. Philipp. Balda. deſcript, oræ Malabar. & Coromand. c. 10. & 22.
CH A P.
ng buonglibat ke ATEC
2004't not to be destreslo
27002 en charge of our date
le 21TCH
41119, MBO
29b1927 99019 019 Volontaron
yhtegit
Sailio

CHAP: VI.
169
Of Occupancy.uy
apto
1.
CH A P. VI. TUY bers van Rosie
tenginuo set it as an
SOM OM DET
COTA 110.) sviten is
to con il LF2
Of Occupancý. yola satico emi la solitario
Moordig by DJOB
2 storey 90: to ser solo
The ſeveral ways of acquiring Dominion. VIII. When things occupie
things occupied dre underſtood to be ima
movable.
II. The Original Methods of acquiring it.
27
III. Occupancy is gain’d in whole, or by parcels.
IX. When they are
they are movable. T 910 lo not
IV. The Poleſion of Moveables depends on the dif- X. Whether a Wild Beaſt becomes mine ds foort as
poſal of the chief Governour.
I have founded it.
In jome places the catching of Wild-Beaſts is al- XI. Whether the Fiſh are ours, that are in our Ponds,
Shio "lowed to every one.
XII. Things left become immediately the firft Occu-
VI. In other places 'tis the privilege of great Men
pants.
XIII. Of Treaſures. But
VII. Whether he that hunts contrary to the Law, hås XIV. Of Poleſſons obtain'd by War.
a Property in the Beaſt he takes.
T follows in courſe, that we conſider the ſeveral Again, The Originary way of acquiring Property
I ways of acquiring Dominion (1), which, after (2) is either ſimple and abſolute, as when we obtain
Grotius's Judgment (a), may conveniently be divid- Dominion over the Subſtance and Body of a thing:
ed into Originary and Derivative. The former are Or only primitive and with reſpect, as when we add
thoſe by which the Property of any thing was firſt to a thing already our own, fome further Improve
introduced : The latter thoſe by which a Property ment and Increaſe.
already ſettled paſſeth from one Man to another.
Dari
VOT7
V.
07
We only.
SSW (ES
ſuch
Mr. Barleyrac's NOTES on Chap. 6. $ 1.
(1) Before we proceed farther, we muſt here deterinine a Queſtion which Mr. Bynkerſhoek has given us an occaſion to examiné.
That able Lawyer maintains, that by the Law of Nature, Property, which begins with a Corporal Poſſeſſion, ends with it alſo.
According to him, that ſame Moment that a thing is out of our power, it becomes common. And if for a long time there has
been an uſage that every one remains a Proprietor of his own Goods, although he keeps not the Corporal Poffeffion of them ;
this is the effect of Civil Laws, and of the Agreement of the Members of every State. Inſomuch, adds he, That if a thing be-
longing to any Man be found in a ſtrange Country, he being abſent, and not ſecuring it, it belongs to the firſt Occupant, provi-
ded there be nor ſome particular Treaty between the two States, by virtue of which they ought to be look'd upon as Friends, for
if they are only engaged not to make War upon one another, this Agreement leaves every ones Nacural Right intire to ſeize upon
that which is not in the poſſeſſion of the former Owner. Mr. Bynkerſhoek alledges here the Authority of the Roman Law, and a
Paflage of St. Auſtin quoted in the Canon-Law; but ſince he creats there only of the light of Reaſon, I will not ſtay to examine
whether thoſe Pallages are well apply'd or no, as a German Lawyer affirms, who endeavours to confute the firſt Chapter of a
Dutch Lawyer, De Dominio Maris. It was Mr. Titius, who in 1704. the Year after Mr. Bynkerſhoek's Book was publiſh'd, main-
raind a publick Diſputation at Leipfick, De Dominio in rebus occupatis ultra poffeffionem durante, a Diſcourſe which I never ſaw,
but the Author himſelf gives us the Abridgemant of it in his Jus Privatum Romano-Germanicum, &c. I. 3. c. 6. As to the Quoca.
tons of the Civil Law, i ſhall only obſerve, that the Roman Lawyers did not agree perfectly among themſelves about the continu-
ance of the Right of Property, as Mr. Noodt has proved, that they differed in the manner of getting Pofleffion, Probabilia furis,
1. 2.C. 6. As for the Proofs taken from the thing it felf, Mr. Titius, as above delivers himſelf briefly chus: 1. That the Hypo-
theſis of Mr. Bynkerſhoek deſtroys all ſorts of Right, and particularly reduces Property to nothing. For of what uſe can
thar Right be which is extinguiſh'd by the Act with which it is acquired. 2. That there is no plauſible Reaſon to be given why
great force ſhould be attributed to Poffeffion, if the continuance of Right and Property depends fully and abſolutely upon
it. 13. Laſtly, As to humane Rights, perpetual Políeffion is impoſſible, and ſo we ought not to believe that it is neceſſary to
preſerve them. From whence he concludes, that to follow the Maxims of the Law of Nature, we muſt on the contrary ſay,
That Property being once admitted, continues always, though there be no Poffeffion; eſpecially if the conſent of the Proprietor
himſelf, or the Civil Laws do not order it otherwiſe. Theſe Reaſons in my Judgment prove fufficiently what they were intended
tor, but we muſt explain them a little, and add what is wanting to them. I ſay then, that ſince Property has its original from
taking Pofleffion, it doth not follow that the Right to acquir'd ceaſes, when there is no Poffeffion. The intention of Nature in
making all things common to Man is, that every one ſhould uſe and diſpoſe of what he has gotten according to his own plea.
Iure, till he leaves
it, and permits it a-new, to be ſeized by the firſt
Occupant, without which this Righe will be of little uſe. so
that Poffeffion is nothing elſe but an indiſputable mark of the Will to retain what a Man has ſeized. To authorize us then to look
upon a thing as abandon'd by him to whom ic belong’d, becauſe he is not in Poffeffion, we ought to have ſome other Reaſons to
believe that he has renounced his perſonal Right to it. Now, as I have obſerv'd in Note 6.9 8. of the forgoing Chapter, we may
preſume this in reſpect to thoſe things which remain ſuch as Nature has produced them, eſpecially ſuch as are very numerous,
Or are of a vaſt extent; tho” Mr. Titius does not make that diſtinction, and maintains, that one may be Maſter of the Sea, altho
he be not in Poffeffion.' But as for other
things
, which are the Fruits of humane Induſtry, which are either produced by Nature,
ornare put into a new form, or are tanied, or åre hunted out of their Holes ; all this is done with great Labour and Contrivancé
ufua'ly, and it can't be doubted but every one would preſerve his Right to them, till he makes an open Renunciation; and ſo
they ought to be looked uport as his
, though he does not keep them ever after, or he loſes the Poſſeſſion by ſome Accident,
may cafily happen, and is almoſt unavoidable. In the main, there is nothing but what is juſt in this Claim, as may appear
from what is ſaid, c. 4 $4.1.4. of this Book. And Mr. Bynkerſhoek owns, That the firſt Men left nothing common but what they
could not diflinctly poſſeis
. Their Covetoufneſs and deſire of having was ſo great, that to expreſs it, the Fable of Clambering
up into Heaven was
invented, c. 2. p. 10. Can we then believe that Men of this Temper would conſent that the Right of Pro
perty hould be always excinguiſhed with Corporal Poffeffion, which can never be without interruption ? Having thus taken li-
berty to ſpeak my Thoughts about Mr. Bynker Phoek's Principle
, I Thall declare my Indignation
againſt what Mr. Titius (as above,
92 s.) has
diſcourſed 18 boldly. He ought in his firſt Lecture of that Diſcourſe to have confider'd the Worth of the Author,
(3) This Diviſion may alſo agree with Acquiſitions derivative. See what is ſaid upon the following Chapter, $ 1. Further,
tie mult diftinguith alſo the manner of acquiring Property, into Natural and Civil. Natural Acquiſition is thae which is made
him that transfers the property, and of him that obrains it, as to ſuch things as belong to any Civil Acquiſition, is that which
eather transfers a Property with the content of the particular owner, and requires fomething more than the murval Content of
We find the like Diviſion in the Inſtitutes, Quarundam enim rerum Dominum nancifcimur jure natka
quarundam zero jure civili, 1. 2 tit. I SII. See chap, 10 § 1 n, i and c. 12 SIN, I following.
which
Parcies. Titius's Obſerv. 290.
(4) Lib, 2 c. 1, do
HY
11 We

170
Book IV.
Of Occupancy.
II. We have ſufficiently made it appear in our for-
mer Remarks (a), that after Men came to a Reſolu-
In medio eft fcelus pofitum Occupanti.
tion of quitting the Primitive Communion (1), upon
the Strength of a previous Contract they allign'd to In Tacitus, H. 1. 5. 1. in fin. Multi
quos urbe
each Perſon his hare out of the general Stock, ei
; Italia Jua quemq; Spes acciverat occupandi principem
ther by the Authority of Parents, or by univerſal adhuc vacuum.
Conſent, or by Lot, or ſometimes by the free Choice
In Pliny, 1. 4. Epift. 15. In ea civitate in qua omn-
and Opinion of the Party receiving. Now 'twas at nia quaſi ab occupantibus aguntur, quæ legitimum
the ſame time agreed, that whatever did not com tempus expe&tant, non matura ſed fera ſunt.
under this grand Diviſion, ſhould paſs to the firſt III. In Relation to the Occupancy of (1) Immova.
Occupant (b); that is, to him who, before others, bles, eſpecially of Lands, we are carefully to ob-
took bodily Poffeſſion of it (2), with Intention to ſerve and diſtinguiſh, whether it be made by one
keep it as his own. Hence, when Grotius (c) af- Perſon only, or by many in Conjunction. One Man
firms, That Original
Acquiſition, anciently whilj}'twas is then adjudgʻd to be the Occupant of Land, when
in one place, might he tills and manures it
, or when he encloſeth it
be made by Diviſion alſo, whereas now it can be made with ſettled Boundaries and Limits : Yet ſtill with
only by Occupancy: The words ought to be explain’d this Proviſo, that he graſp at no more than what
in the following Senſe. When Mankind firſt began upon a fair account, ſeems tenable by one Fami
to ſeparate into many Families, diftinét Dominions ly, however enlarg d and multiplied. Should one
were ſettled by Diviſion: After this Diviſion, he is Man (for Inſtance) be, with his Wife, caſt upon
ſaid originally to acquire a thing lying void and with a deſart Iſland, fufficient to maintain Myriads of
out a Poffeffor, who happens to be the moſt early, Oc- People ; he could not without intolerable Arrogance
cupant of it; i.e. he who lays hold on ſuch a thing challenge the whole Iſland to himſelf upon the Right
before others, or gets the ſtart of them in putting in of Occupancy, and endeavour to repulſe thoſe who
his Claim to it. Thus the word is uſed in (3) Seneca, ſhould land on a different part of the Shore.
Thyeſt
, v. 202. & 203.
Mr. Barbeyrac's NOTES on $ 2.
(1) We have ſhown in c. 4. $ 4. 0. 4. That the firft Occupyer makes himſelf a Property by that only, without fuppofing any
Agreement, either Perſonal or Common, ſo that taking Poffeffion was in it ſelf the only way of getting an Original Property, as
well from the beginning as at this Day. Quod enim nullius eſt, id ratione naturali occupanti conceditur, Tay the Lawyers, Digeſt
.
1.41. tit. 1. leg. 3. princip. But it ſeveral perſons feize upon one thing in common without an Owner, and pare ie alike, that
Diviſion will then be in relation to every one of thoſe who make up that Multitude, the Original Title of their Acquiſition, i.e.
the immediate Foundation of that particular Right, which he hath acquired, by what hath happend to him, and to which he
had before only a common Right. Mr. Titius's Obferv. 291. on Puffend.
(2) What our Author means by, Qui primus eadem corporaliter apprehendiffet animo, &c. He will explain himſelf in $ 8, 9. Yet
we may obſerve with Mr. Titius, that taking Poffeffion actually (Occupatio) is not always abſolutely neceſſary to acquire a thing
that belongs to no body. 'Tis only a means to let all others know, that we have an intention to appropriate ſuch a thing. In-
deed, that which properly makes the Right of the firſt Occupyer, is that he makes known to others his deſign to ſeize upon a
thing. If then he declares his Will by ſome other Ad, as ſignificative, or if others have openly renounced it with reſpect to him
the Righe which they had to any thing, which belong'd no more to him than to them, he may then acquire the Original Pro-
perty without any actual Poffeffion. Obſerv, on Puffend. 292. and in Lauterb, 11o. We may alſo add, that he muſt be inclined to
take what he declares his deſign co ſeize on, otherwiſe the boundlefs Covetouſneſs of molt Men will render his Right unprofica-
ble to others, and be a Foundaron for perpetual Diſputes and Quarrels. In fine, the Notion which I have laid down concerning
the exterior Act, which is neceſſary to ſeize on a thing, ſo that we may acquire ſuch a Right co it as may exclude the Claims of
all others; this Notion, I ſay, is not altogether new. I learn from Mr. Noodt, Probabilia furis, l. 2. c. 6. That among the Anci.
cars, as alſo the old Roman Lawyers, there were ſeveral of the moſt famous who were exactly of the ſame Opinion, tho' none
cook notice of it before this judicious and quick-fighted Lawyer.
(3) This Grammatical Remark, that the Latin word occupare, i.e. to occupy or poſſeſs, often fignifies prevenire or to prevenc
others, might have been ſpared by our Author,
Mr. Barbeyrac's NOTES on 3.
(1) We muſt put among Immoveables, firſt of all, Space, which is in its own Nature altogether immoveable. We may divide
it into Common and Particular. The firſt is publick places, as Markets, Temples, Theatres, great Roads, doc. The other is that
which is perpendicular under the Sun, from a particular Pofleffion of Lines drawn, as well from the Center of the Earth to the
Surface, as from the Surface to the Heaven. Every one hath a Right to raiſe a Building under the Sun, as high as he will, and
nothing may hinder him but that he may carry it in a direct Line as far as the Orb of the Moon, and likewiſe as much from
thence, if we may ſuppoſe that Planet habitable. But if we may dig as deep as we will, we muſt not go farther than the Center
of the Earth, becauſe what is beyond, in reſpect of us belongs to the Antipodes, although the Civil Laws of ſome Countries give
to the King's Treaſury whatever is found in the Lands of private Men, at any depth greater than the Plough.ſhare reaches. We
muſt alſo farther obſerve always that perpendicular Lines may be drawn from the ſurface of the Sun, as well upwards as down.
wards, and ſo as my Neighbour may not lawfully raiſe a Building, which by any way may anſwer directly to my Sun, although
it be not at all ſupported, bue born upon Beams laid in an Horizontal Line. So likewiſe neither can I in my curn raiſe a Pyramid
whoſe Sides and Foundation extend beyond my ſpace, eſpecially if there be no Agreement about it beween my Neighbour and
my ſelf. After Space comes the Subſtance of the Earth, which we call the Ground, ſuch as the places for Building, Meadows,
Fields and Vineyards. We may next account for chings immoveable, whatever flicks faſt to the Surface of the Earth, either by
Nature, as the Trees, or by Man's Labour, as Houſes and other Buildings; although theſe ſort of things may be ſever'd and be
come Moveables. Such are alſo not only Wind-mills, whoſe Foundation is faſtend to the Earth, but alſo Water-mills; for tho'
they may be carried about, they can't be made uſe of without ſome Anchor or Stake, which is firſt fixed in the Ground. What-
ever alſo is faſtned to Houſes or other Buildings, as what is joyned together with Iron, Lead, Plaiſter, or otherwiſe for a perpe.
tual Continuance, is alſo reputed immovable. Things moveable are conſequently all things that are ſeparated from the Earth
and Warer, whether they have been looſened from it, as Trees falln or cut down, Fruirs falln or gather’d, Stones dug out of the
Quarries, or are naturally ſeparated as living Creatures. There are two ſorts of things Moveable, the one ſuch as live and move
of themſelves, and they are call'd Living Moveables, or Living Creatures; others are inanimate, and may be called Dead More
ables. I have taken all this partly out of the Elements of Juriſpr. Univerſal of this Author p. 87, 88. and partly out of the Civil
Laws of Mr. Daumat. Prelim. tit. 3. Sect. 1, 3, 4, &c. The Roman Lawyers often call Immoveables, Res, que soli funt. Labeo
Scribit
, edi&tum ædilium Curulium de venditionibus rerum eſſi, tam earum, quæ foli fint, quam earum, que mobiles,
Digeft
. l. 21. tit
. 1. De Ædilitio Edi&to, &c. leg. 1. $ 1. It would be too long for me to recite here the other Paſſages of Lawyers
to Thew particularly what things they comprehend under the Name of Immoveables.
(a) Chap. 5.1. (6) Quod enim Nullius eſt, id ratione Naturali Occupanti conceditur, Digeft
. I. 41.6, 1. leg. 3. princip.
(c) Ubi fupra.
But
aut fe moventes,

CHAP. VI.
171
Of Occupancy.
ibid. c. 45. p. 320. D. O
nic
() , p. B.
But when any number of Men jointly poſſeſs Inimetata quibtis jugera liberas
theinſelves of a Tract of Land, this Occupancy is Fruges, & Cererem ferunt,
wont to be made either by the Whole, or by Par Nec cultura placet longior annua ;
cels (a).
Defun&tumque laboribus
The former happens, when Men in an united Bo Æquali recreat forte vicarius (f).
dy ſeize on ſome deſolate Region, encompaſs’d with
certain Bounds, either by Nature or by Humane Ap The Rovers of the Scythian Plains,
pointment
. The ſeveral Parcels of which Region Whom peaceful Want inur’d of ol
are either granted to the particular Members of the To wheel their Houſes in their Wains,
Community, to take and to hold as each ſhall think And Gétants ſtiff with Native Cold,
fit; (a Method but rarely practiſed ) or what ſeems In folid Happineſs outvie
inore convenient for the Prevention of Quarrels and The Pomp and Pride of Italy.
Diſputes, are allotted to every Perſon by pub Urimeaſur'd Lands free Plenty yield,
lick Deſignation. For that a promiſcuous Occu And Ceres loves to ſhift the Scene,
pancy is apt to breed Confuſion, we inay obſerve . A ſingle Harveſt loads the field,
froin that Deſcription which (b) Livy gives us of A ſingle Year confines her Reign:
Rome, Forma urbis erat occupate magis quam diviſe
And if the Farmer weary grow,
kmilis ; Such was the Appearance of the City, as if it His honeft Second takes the Plough.
had been firſt poDeſs'd rather by Occupancy than by a
regular Diviſio31. Tacitus and Cafar will furniſh us IV. As for this Occupancy in general, or by the
with Inſtances. The former reports of the Ancient whole, we are farther to obſerve, that it confers
Germans, to this purpoſe (c); Such a number of Men on the Community, as ſuch, a Dominion over
dwelling together, (for Grotius reads Vicos, not Vices) all things contain’d within the Tract which they
occupy or polèfs ſuch a Portion of Lands which they thus poffefs, not only Immovable, but likewiſe
afterwards parcel out into private Shares, according Movable Goods and Animals; at leaſt it gives them
tutbe Worth aad Eſteem of particular Perſons; the vaft, ſuch a Right of taking the latter kind, as excludes
extent of the Country making theſe Partitions eaſie and all others from the fame Privilege. And ſuch an
prafticable
. They change their Arable Ground every univerſal Dominion as is here defcrib’d, is ſo very
Year, and are never at a loſs on this account. So like- different from the Dominion of private Men, that
wife Cæfar tells us of the Suevi (d), They have an hun- the latter may be transferr'd to a Stranger or Alien,
dred Cantons, from each of which they draw every Tear whilſt the former remains ſafe in the Hands of the
a thouſand Men for the Camp-Service; the reſt keep at Community (8) (1). Nor is it neceffary that all
bome, and till the Ground for themſelves, and for their things which are firſt occupied in this General way,
abſent Friends. The next Tear they relieve each other; ſhould be afterwards divided amongſt particular and
those who ſerv'd in the Army return to take care of diſtinct Proprietors. Therefore if in a Region thus
the Land; and thoſe who tarried behind lift them- pofſeffed, any thing ſhould be found which is not
ſelves for the War. Thus, they never interrupt
ei- aſcertain'd to a private Owner, it muſt not prefent-
ther the Buſineſs of Husbandry, or the uſe and Diſ- ly be look'd on as void and
waſte, ſo that any one Per-
cipline of Arms. But there is no ſuch thing as ſepa- ſon inay ſeize it as his Peciliar; but we muſt ſup-
rate or private Fields known among them; nor are poſe it to belong to the whole People (h). And the
they allowed to inhabit any one place longer than the fame Rule may (in our Judginent) be extended to
Space of a Tear. And again (e) fpeaking of the Ger- ſuch deſolate Iſland as lie in any Sea under the Do-
mar Nations in common; No Perſon, ſays he, hath minion of a particular Common-wealth (i); or fuch
any certain Quantity of Land, any ſettled or proper as though they do not now appear, yet happen to
Boundaries
. But the Princes and Magiſtrates every riſe afterwards in the ſame place, of which we find
Tear aſign the ſeveral Tribes their Reſidents, in ſeveral Examples recorded by Pliny. Now in the
what place, and to what extent they judge convenient ; diſpoſal of ſuch things as theſe, the People take dif-
and, the Tear after, force them to remove to a ferent Methods: Sometimes the profits of them are
new Seat. The deſign of which Inſtitution was, laid up in a publick Stock, to be taken out again
no doubt, sto preſerve the Ancient Simplicity for publick Utes, ſometimes all the Subjects, fome.
of Life
, ſo unacquainted with Avarice and with tiines thoſe only of a certain Order or Degree; and
Luxury. We find Horace alluding to this Cuſtom. ſometimes Foreigners too are allow'd to hold and
enjoy them, as Tenants of the State
. Yet in all
Caſes, whatever Right private Perſons obtain over
theſe things, depends on the Appointment of the
(Quorum plauſira vagas rite trahunt domos, ). IT whole Community. But there is ſome difference,
u Vivunt, & rigidi Gete : sing
as to this point, between Immovables and Mova-
Hub
Mr. Barbeyrar's NOTES on $ 4. a se te archabowo 1 pril
(1) Dio's Greek is, ‘H za 29. of módsos, a riai šlir littor töv xerimuivar éve so weiós ési muhimu sausão See alſo 1. 8. c. S. $ fora
(a) See Grot. I. 2 c. 2 ſ. 4.
(b) Lib. s. in fin. (c) German. C. 26. (d) De B.G. 1. 4. C. 1. 1(e) Lib. 6. c. 22. on
o 310, 311. attributes to the Vacc cans a more 'trict kind of Communion, The Nation of the Vacceans, ſays he, divide their
i Land yearly ingo ſo many
Partitions in order to the tilling it: The Fruie and Product they bring into a common stock, out of
which they allign every Man his Share. If the Country Men imbezil any part, it is a Capital Crime. See likewiſe, 1. 5 c. 45
So too the Apalchite labour for the common, and each Houlholder according to the number of his Family, received every full
6) Die Chryfoftom, Orat
. 31 in Rbodiac. « The whole Country belongs to the Civil State; yet chis doch not in the leaſt hinder,
but that every Man is Lord of his own Pofleffions. (h) Vid. Grot. I. 2 c. 2 f. 4. (i) Vid. Plin. N. H. 1. 9. c. 12.
SIDAB
4 Y 2
bles,
Lib. 3. Od. 24.
Od. 24. L. 9.9
,
&c.
es
1919 307
-31.10H
lowing.
SKO
OF 5 10 h 10

172
Of Occupancy.
Book IV.
bles, The former, in regard that they lie in open of defolate Regions ; which the Supremne Governors
view, and cannot be forc'd out of their place, are may hinder any of their Subjects from entring upon
.
by virtue of that Univerſal or General Occupancy Such a Prohibition cannot indeed prejudice For
immediately ſuppos’d to belong to the People, ſo far reigners (1), who by taking poffeffion of thoſe Regiong
as concerns the Body and Subſtance of them. But now may, make them their own: But it will be a ſtop.
as to movable things (2), fome of theſe are ſo fra- to the Subjects of the reſpective Governors, fo that
med or diſpoſed, as that the Region may indeed be none of them ihall acquire the ſaid things, but thoſe
the Seat of their Production ; and yet there is need ei- only who have obtain'd a Grant and Commiflion fo
ther of labour in finding or gathering them, as Me- to do. For in ſome places private Men are al.
tals in the Bowels of the Earth, Jewels
, Pearls and low'd more of theſe Advantages
, and in ſome leſs
,
the like, ſcatter'd about the Shores and other places : according as the Rulers in every State have judg'd
Or elſe of particular care in taking and ſecuring convenient. By the Jewiſh Cuſtom, as Mr. Seldent
them, that they may not afterwards get out of our (1) informs us, Whatever was found in defolate places
,
Hands; as Beaſts, Fiſh and Fowl, Men having no or in ſuch as were void of the Dominion and Culture
Power over theſe things, ſo as to uſe them at their of private
Perſons, became the Property of the Ocen-
Pleaſure, before they are found or taken ; it follows, pant; as Graſs
, Fruit
, Wood, and the like. Alſo the
that a People by themſelves in this general poſſef- Fiſh, whether in Salt or Freſh Water, and the Wild
ſing manner of the Seat where they are to be met Beaſts and Birds : Tet no one was permitted to Hunt or
with, do not properly acquire a Dominion over to Hawk in another Man's Ground : Though even there,
them, but only a Řight of obtaining ſuch a Domi- if he had once taken any Game, it was his own. But
nion hereafter, by particularly taking and ſecuring to rob the Parks and Ponds was utterly unlawful
. The
thein. Hence, for Inſtance, we cannot rightly ſay, Roman Lawyers talk much to the fame purpoſe
,
That the Wild Beaſts of any Country, which ſtill For thus Gaius (2), All Animals taken on the Land,
remain in their Natural Freedom, are the Property on the Sea, or in the Air, that is, Wild Beaſis, Birds
,
of the Prince: But the Prince alone hath the Right and Fiſhi, belong to thoſe who take them : For what is
of taking them, inaſmuch as he is Lord of the Soil yet no Body's, Natural Reaſon aſhgns to the first Oc-
where they run; and he may communicate this cupant. On theſe and the like places the Expo-
Right to others in what degree, and under what re- fitors of the Civil-Law obſerve, that under the Term
ſtraints he pleaſeth. Therefore he who is Sovereign Fera, are comprehended all Living Creatures
, which
of the reſpective Lands or Waters, may grant a Nature hath endued with an unlimitted Power of
Right of taking and appropriating things of this ſtraying up and down about their proper Elements;
Nature, either promiſcuouſly to all Perfons, or to ſo as to take in likewiſe which have been tamed
none but his own Subjects; or ſtill only to his Sub- by the Uſe and Company of Men. Though per-
jects of ſuch a Quality: Or, laſtly, he may, if he haps the diſtinction between Wild and Tame Crea-
thinks fit, reſerve the privilege wholly to himſelf. tures might be thus better expreſs’d; that the for-
For though the things themſelves be not yet, in mer are more averſe to Humane Society, take
ſtriet Speech, under Dominion, yet foraſinuch as greater delight in enjoying their boundleſs Liberty,
the Act of appropriating them cannot be account and cannot, without great difficulty, be accuſtomed
pliſhed without uſing ſome other things which are to live with us; nor may we, after all, depend ve-
ſubject to Dominion; as ſuppoſe the Earth, or the ry ſafely on their Fidelity : Whereas the latter are
Water; it follows, that he who hath the Sovereign- quite different in each of theſe reſpects. Yet ’tis a
ty of the latter things, may by a Decree to this a Saying of Grotius (c), That the Reaſon why ſome
purpoſe, prohibit others from uſing them, as means Creatures fly and avoid us, is not the want of Mildneſs
of acquiring the former (a). Obseront
peronto per and Gentleneſs on their ſide, but on our's: Which he
b.V. Hence it is apparent, that it depends on the grounds on the obſervation of Travellers; that in
Will of the Sovereign, and not on any Natural and the moſt remote parts, where Men had ſcarce ever,
Neceſſary Law, what Right the private Members or very rarely caine before, Birds have been found,
of a State ſhall enjoy, as to the gathering of Mova- which offer'd themſelves freely to be taken. Some
bles not yet poſſeſs'd, as to Hunting, Hawking, Fiſh- may rather chuſe to form the diſtinction by ſaying,
ing, and the like. Nay, and as to the Occupancy That Wild Creatures have Naturally a more intra-
(2) This diſtinction is founded upon a falſe Notion of taking poſſeſſion, See $ 2. n. 2 above. The truth is, we may make our
ſelves a Property in things moveable, as much as immoveable, becauſe they are often additional to them. See Mr. Thomafius's fu.
riſprud. Divin. 1. 2.C.10 $ 147, doc. Our Author to maintain his Principles runs himſelf into manifeſt Abſurdities, See § 7. n. 3.
following. ematea
SIGN
CHE
Mr. Barbeyrac's NOTES on S. 5.
(1) Our Author doubtleſs means a deſert Country, bordering upon a Kingdom, but taken into it. For every thing that is
encompafled with ſomething already occupied, muſt alſo be ſo eſteemed, and conſequently others cannot pretend to it. So chat
I can't ſee why Mr. Hirtius, an exact Author, 'ſhould fuppoſe the contrary. 'Tis not a ſequel of Mr. Puffendorffºs falſe Hypothe-
fis concerning the Foundations of the Right of Property. For the Agreement which he ſuppoſes neceſſary to make one
Maſter
of a thing, extends it ſelf in his Judgmens to every thing that has a neceflary dependance on it, which appears plainly by what
I have faid above about the Sea, c. 5. s 8. But as it may be the Interelt of a State to keep its Members from ſeizing any
Lands without its Juriſdiction, by their own Authority, the Author here obferves upon this occafion, and expreflech ie in this
manner: Sovereigns may likewiſe, &c. which makes it plain enough to underſtand. It is certainly a thing much more confidera-
ble to ſeize upon a large extent of Ground, than to take a few Deer or Fiſh; ſo that this is ill plac'd, if he crears of
which belongs already the State in general.
(a) The words of the Civil Law are, Fere igitur beſtie, og volucres, bo piſces, eg omnia animalia que mare, cælo da terra naſı
cuntur, fimul atque ab aliquo capta fuerint
, jure' gentium ftatim illius eſſe incipiunt. Quod enim ante nullius est, id naturali ratione
occupanti conceditur, Inftit. l. 2. tit. 1. De rerum diviſione, & adquirendo ipſarum Dominio, $ 12. Concerning
Fill there is an ele-
gane paſſage in Plautus Rudens, A&t. 4. Seen. 3. v. 32, 'de. Ecquem effe dices, &c. • Can you ſay that any one of the Filh bes
longs to me, whilſt in its own Element? Yec thoſe which I catch are my own, and I reckon them amongſt my proper
46 No one lays hands on them to challenge them from me; no one claims a ſhare in the Booty. I fell them all fairly in the opea
Marker as my honeſt Store. Though the Fiſherman was ſomewhat out when he applied this argument to the Bag of Money.
(*) Comp. Grof. de 2 c 2 f.5&c. 3 f. 5 & 19. (6) DE J. N. & G. Sec. Heb. I. 6 C. 4. (C) Hift. Belg. 1. s.
SHT
00.210 bar
Goods,
<table

CHAP. VI.
173
Of Occupancy.
the Tame.
ctable, a more rough and ſtubborn Diſpoſition than ſhould be permitted to quit their work, that they
might ramble about the Woods; which Indulgence
We may here remark by the way, that in one might have drawn them on by degrees to the pra-
place of the Inflitutions, (a) and another of the Di- tice of Robbery and Plunder (k). Sometimes too,
geſts, Pigeons and Peacocks are fallly reckonºd a- it is reckon d unfafe
, to truſt the Common People
mongſt thoſe Fowls which we term Wild (3). The with Arms. Tully (1) mentions one Lucius Domitius
,
Miftake about the Peacocks hath been already noted who executed a Slave only for ſtriking a large Boar
by Godofredus, on that Paſſage of the Inſitutions : with a Hunting Spear, when after the Servile War
And as for Pigeons, the reaſon which in the very in Sicily, an Order had paſs’d, forbidding any Slave
next Section is there given to prove Hens and Geeſe to appear with a Weapon. On the other ſide, for
to be Tame (4), will reach them likewiſe, there the Princes and Nobles, on whoſe Arms the fafety
being other Pigeons exprefly denominated Wild. of the Common-wealth was to depend, Hunting was
And therefore, by the Jewiſls
Cuſtoms, none might eſteem'd a moſt agreeable Exerciſe, as a Repreſen-
take them, unleſs at thirty Furlongs diſtance from tation of War, and very proper to inure them in
the Dove-houſe (b).
bearing the Hardſhips and Labours of the Field. Oni
Yet Bees are no doubt wild by Nature (5), ſince which account what a high value the Parthians, Me-
their Cuſtom of returning to their Hive, doth not des and Perſians ſet on this Manly Sport, we may
proceed from their familiarity with Mankind, but learn from Xenophon (m) and other Authors (n).
from their own ſecret Inſtinct: They being in all Bajazet the Turk is ſaid to have maintain’d ſeven
other reſpects utterly unteachable. It is neverthe- thouſand Men only for the care and management of
leſs one of Plato's Laws, (c) Whoever ſhall purſue the his Hawks; and to have had fix thouſand Dogs for
Swarms which belong to others, and by ſtriking on the the Chaſe. When he was taken Priſoner by Tamer-
Braſs fhall draw them with the delightful Sound lane, and upbraided with this Fancy by a preſent
to fix niar himſelf let him make Reſtitution for the of Hawks and Dogs from the Conqueror, he fierce-
Damage
. Where he ſeems to preſuppoſe, that the ly replied, For me who owe my Birth and Education
Owner of the Bees did not follow them when they to Amurath the Son of Orchan, both Sovereign Prin-
left his Hives (d). Pliny (e) will have the Bees ces, Hounds and Hawks are proper Diverſion : Not
to be neither Wild nor Tame: Others divide them for you a rambling Free-booter of Scythia, bred up
into both thoſe kinds. (f) But that, ſo long as they to Thieving and Rapine : (0) And indeed it was but
return to our Hives they are properly our own, and equitable to allow this Manly Recreation to Princes
cannot be huit without our loſs and damage, is very and Chief Men, by whoſe Toils and Cares the pub-
laboriouſly proved in that Declamation of Quineti- lick Welfare is fecur’d. But ſhould the ſame Fa-
lian, entituled, The Poor Man's Bees (8).
vour in great and flouriſhing Countries, be granted
According to the Roman Laws, 'tis the ſame thing proiniſcuouſly to all Perfons, it would be of very
whether a Man takes Game in his own Land (6), little benefit and advantage to any one in particu-
or in thoſe of others: Becauſe Wild Creatures in lar (p). For theſe, therefore, and the like Reaſons,
whatſoever place they are found, are no Body's Pro- a Sovereign, if he thinks it for the Intereſt of the
perty whilſt they retain their Natural Freedom. Kingdom, may againſt the conſent of the Common
Yet the Owner of Land may hinder others from People abridge them of the liberty of Hunting,
coming there to follow their Sport (7). But ſtill what without any Injuſtice. For he doth not hereby
another hath taken with his Dogs or his Hawks, take from them
what was their own, but barely for-
though againſt the expreſs prohibition of the Lord bids them to uſe a certain means of acquiring things
of the Soil, he thereby inakes his own. Indeed, as which the meer Law of Nature, if it obtain’d with-
to this laſt particular, Cujacius (h) is of a different out any Civil Conſtitutions, would allow them. For
Opinion ; grounding his Exception on a Law of the as to what ſome ignorant Perfons have urged, that
Digefis (c).
the prohibition of Hunting is therefore unlawful,
VI. But in moſt places, the privilege of Hunting becauſe God Almighty inveſted Men in general with
is left wholly to the Governors of the Coinmon- the Doininion over Beaſts
, the pooreſt Subjects be-
wealths; who in foine Countries admit their
prin- ing no leſs Men than their Superiors: Or, as to that
cipal Subjects to be Sharers with then : Only Beaſts common Aſſertion of the Roman Lawyers, that Hunt-
of Prey are almoſt every where allow'd to be kill'd ing is free to all by the Law of Nature and of Na-
by all Perſons without Diſtinction. Many Reaſons tions ; learned Men have long ſince put an end to
may he aſſign'd for this general Cuſtom. It did not theſe Doubts, by diſtinguiſhing between the Precep-
ſeem convenient that Country-men and Labourers
GH Qout 1
(3) The Words of the Digeſt arc, Pavonum quoque do columbarum fera natura est. See allo Digeft. 1. 41. t. 1 leg. s. 9 s. & Dion's
Gothofred. upon that place of the Inſtitutes.
154) Gallinarum do anſerum non eft fera natura, idque ex eo poffumus intelligere, quod aliæ funt gallina, quas feras vocamus, item
alii ſunt anſeres, quos feros appellamus, ibid. $ 16.
6) Apium quoque fera natura est. Itaque, que in arbore tua confederint, antequam à te alveo includantur, non magis tua intellt.
euntur effe, quam volucres, quæ in arbore tua nidum fecerint, Ibid. $ 14. See Hieron. Magis Miſcell. 1. 1. c. 3.
The Law is, Nec intereft feras beftias do volucres utrum in ſuo fundo quis capiat, an in alieno, Ibid. s 12.
(7) Plane qui alienum fundum ingreditur venandi aut occupandi gratia, potest à Domino, ſi is previderit, probiberi ne ingrediatar;
(C) De L. L. 1. & p.915. C. Edit. Wech.
(4) Sect, is de rer. divif. (6) Vid. Conſtantin, l'Empereur Baba Kama, c. 91.7. Add Selden de 9. N. & G. Sec. Heb. 1. 6 c. 11
(d) Comp. f. 14. Inftit. dig. Tit. (e) Lib. ii . S. (f) vid 1.47 , 2 Digeſt. de
tr
(8) Lib. 8 1. 1 D. Fımil. erciſcunde. (b) Obferv. 4. 2. Leg. 55.6. i Lib. 41 D.
(6) Vid. Conſtitut Frederic. 2di. I, 2 feud. t. 27 f. 5: ſi quis ruſticus. (1) Lib. 5 c. 3 in Varr. (m) Cyropeed.
(n) Cornel. Nep. Alcibiad. c. 11 Juftin. l. 41 C. 3 Tacit. Annal
. l. 2 c. 2. Sueton. Caligul. 5. (0) Laconick Chalcone
() Plin. Panegyr. “ Theſe were the Arts and Exerciſes in which their future Generals were train'd for their
country's Service ; to contend with the ſwifter Beaſts in Speed, with the bolder in Strength, with the more cunning in Policy
s and Craft: Nor was it look'd on as an inconfiderable Ornament and Triumph of Peace, co retrove from the Field che løroad
of the lavage Herd, and to deliver, as it were, froin a Siege the Labours of the Countrymeu.
Ibid.
Furtis, l. 26 ä lib. 40 r. il. 5 f. 3.
de A.R.D.
1. I initio.
dyl. 1. 3.
tive

174
Of Occupancy.
Book IV.
may
time and Permiſive Law of Nature, and by explain- tho' none can deny theſe to be their real Property. For
ing the different acceptations of thoſe Terms Jus which reaſon, if Game thus taken contrary to Law, be
Gentiam, or the Law of Nations (a).
given in charge to another as a matter of honeft Truft
,
But farther, it is very probable, that in many it may not be forcibly challeng’d from him by the Ma.
places this Right was conferr’d on Princes by the giſtrate : As it inight be, were it indeed ſtolen, jome
Voluntary Motion and Act of the People. () For other Perſon being the juſt Owner of it. But the
ſince there was a nécelity of aſigning them fome Prince cannot be call’d the Corner of theſe Beaſis before
advantages for the ſupporting their Dignity with a he hath actually caugḥt them; and therefore be who
fufficient Train and Splendor ; it was wiſely confi- Hunts contrary to the Royal Prohibition, doth not
der'd, that 'twould be moſt convenient to allot commit Theft, nor take away the Goods of another;
them ſuch things as might be given without the but only acquires a thing whilh another had a Privitive
tlamage or prejudice of any Man: And of this or Excluſive Right of acquiring ; and therefore be
kind are all thoſe in which no other Perſon can yet be puniſhd; but as for the thing which he thus got in-
claim a Property (c).
to his polJeſſion, it ought not to be look'd on as a mat-
VII. But ſuch Laws as theſe, did not, ſtrictly ter of Theft, or to be challeng’d accordingly (d) (e).
ſpeaking, confer on Princes the Dominion over Wild But indeed 'tis very ſimple to imagine, that a Man
Beafts, but only a Right, by virtue of which they is by any Natural Necellity made Proprietor of the
alone ſhould afterwards make them their Property, things which he firſt lays his Hands on; we having
by ſeizing and poſſeſſing thein. Which Right, ne already ſhewn that this Right is grounded on the
vertheleſs
, had this effect in common with Domini- ftrength of a Previous Covenant (1). Therefore if a
on, that in caſe any other Perſon had illegally taken Prince ſhall forbid his Subjects to uſe this Method
the ſaid Beaſts, they might be challeng’d at his of Acquiſition, in regard to ſome particular things;
Hands. For it doth not ſeem reaſonable to admit their being the firſt Takers ſhall avail them nothing
the Opinion of fome, who tell us, that even before in order to the obtaining of Dominion over them. And
Actual Occupancy, the Law might fix the Domini- that Law of the Prince hath fo far the effect of Pro-
on of theſe things, nothing more being required to perty, as that after it, the Subject ought not to lay
wards the producing of Doininion than a Legal Ap- hands on the ſaid Beaſts; or if he doth ſo, he can-
pointment. Thus much indeed the Law of any not thereby make them his own. Nor doth it fol-
Country may effect, that a Dominion already eſta- low, that becauſe 'tis not uſual in theſe Caſes to chal-
bliſhed over things ihall paſs from one Subject to lenge the Fleſh, eſpecially from a third Perſon,
another, without any antecedent Act of the Parties. when perhaps it is ready to corrupt; therefore the
But the Law alone is not ſufficient to introduce o- Unlawful Hunter was the juſt Proprietor of it. A-
riginally a Dominion over ſuch things as have not gain, Taking inuſt not preſently be conſtrued Ac-
vet teen actually brought under the power of Men: quiring : The former being a bare Natural Action,
But there is requir’d farther fome Corporal Action; whereas the latter includes a Moral Effect. It may
eſpecially as to the poſfellion of Living Creatures. rather be faid, that the Poſition of theſe Men is a
But now the firſt conſtituting Dominion, and the plain Contradiction; for thus it runs, The Right of
preſerving it after it hath been once conſtituted, are Hunting belongs to Princes alone, and if any Private
different things.
Person takes Game, be thereby acquires the Dominion
Some again there are who affert, That Prohibiti- of it. That is, Princes alone may uſe that means
ons of this Nature by Civil Ordinances, only ſtop by which the Lawful Dominion over Wild Beaſts
the Right of taking Game, not of keeping what is gain’d and eſtabliihd; and yet another Perſon
hath been already taken. For two things, they ſay, inay acquire the fame Dominion, whilſt he cannot
there were which the Law of Nations allowed with lawfully apply the ſame means.
reference to Wild Beaſts. Firſt
, That all Men ſhould But what if it ſhould be demanded, Who then is
enjoy the liberty of Hrinting : And Secondly, That the Proprietor of Game thus taken contrary to Law?
the Dominion of theſe Beaſts ſhould be acquired by the We have abſolutely denied the Taker himſelf to be
way of Occupancy. The former of which Privileges fo (2); and as for the Prince, how could he fix a
feems in this café to be reſtrain’d, but ly no means Property in the Game, when he was not concern'd
the latter. Wber.ce if a perſon who was forbidden to in the Sport? It ſeems reaſonable in this Caſe to af-
Hunt, ſhall nevertheleſs bave follow'd the Chaſe, and firm, that here the Hunter, though in a very unac-
fiuc ceeded in it, any Game found upon him may be for. ceptable way of Service, labours for the Prince; and
ced away; not becauſe he had not made it his own, but conſequently, by taking the Game, he makes it the
in way of Punifliment he was unworthy to poſſeſs it. In Prince's, in the ſame inanner as other Hunts-men,
the ſame manner altogether, as Nets, Spears, and other who act by a Royal Commiſſion and Deputation.
Hurting Inffruments are Jeized in ſuch Mens Hands;
Jufiruments
Popis old
1983 metrou 2 ist top anillos de Mr. Barbeyrac's NOTES on 6:7.
) ***Ho nie jest
hy have proved the
Ç. 4. S 4 n. 4.
This fuppofition, to which our Author is obliged to have recourſe, and which does not appear to be the leaſt facisfactory,
is ſufficiene almoſt tº thew that he reaſons upon falle Principles, and that he knows noc how to keep himſelf from yielding to
Whareve have
faid in the Noce before qaoted.
(a) Vid. Grot. l. 2. c. 3. f.5: (b) vid. Grot. I. 2. c. 8. 6. 5. (c) of the Hunting allowed the Peruvians under their Incas,
contul ar your pleaſure Garcilaſs. de la Vega Comm. Reg. l. 6. c. 6. (d) Vid. Gudelir. de jure noviſſimo, l. 2. c. 2. and from
him Arnald Vinn. ad Sect. 13. Inftitur. de rer. diviſ. Ziegler upon Grotius, (l. 2. c. 2.1. 3.) ſpeaks much to the fame purpote :
a joto Property, as acquired. For that the right of prohibiting is conſiſtent enough with this Righe of Acquiſition. That, whe-
" ther a Man by caking Game acquires it as his Property, and whether a Man ought to make uſe of this way of acquiring, are EXPO
a different Queſtions. That, as to the former, the Sovereign hath no Authority to in:erpoſé : Becauſe, as he cannot make thofe
* things become fonie body's, which are no body's, or theſe to be poflefled which are not pofíefled (1. 3. f. 14. D. de adquiſ.
a poll.) ſo neither can he hinder Acquiſition, or cauſe thác thoſe things which are already acquired, ſhall not be acquired. Bue
16 that, as to the latter of theſe Queſtions, the Sovereign is free to enact what he plea fech.es
(0) Vid. D.l. 41. t. 2. De acquirenl. vel amittend. poser.
07
STA
073
SATUS,
It
1

CHAP. VI.
175
Of Occupanty.
It is, moreover, certain, that a Stranger likewiſe Whether Poſſeſſion of an immovable thing may be
is bound by fuch Conſtitutions as theſe; though taken by an Inſtrument, we may underſtand from
perhaps in his own Country, the Liberty of Hunt. the famous Story which Plutarch () relates to this
ing may be univerſally allow'd. Forafmuch as purpoſe. The People of Andros and Chalcis made a
this is a neceſſary Law of all States, without which Progreſs together into Thrace, to find out nem Seats
their inward Peace and Tranquility cannot be ſecu- where they might fix and inhabit ; and ſoon after their
red, that he who enters upon the
Territories of ano- arrival
, the City Sana was by Treachery put into their
ther Prince, though only for a time, ought ſo long to Hands: After this, being informed that
the Barbari-
conform to the Cuſtoms and Orders of the Place; at ans had deſerted the City Acanthus, they ſent two Spies
leaſt to all thoſe the Reaſon of which will
hold good to diſcover the Truth of the Intelligence. Theſe, as
againſt him as well as againſt others, and from which they drew near, and ſaw the place to be really forſaken,
the Legiſlator hath not peculiarly exempted Foreign- the Chalcidian Spy ran with all his force to take polles
ers (a). But, on the whole, 'tis the Admonition of fion of it in the Name of bis People ; but the Andrian
Wiſe Men, that Statutes of this kind ought with ſeeing himſelf outrun, threw the Spear which he had
great Moderation to be put in force; unleſs ſome in his Fand, at the City Gate, and as it ſtuck there,
particular aggravation in the Offender, deſerves a cried out, That by this caſt of his Spear he had
greater ſeverity of proceedings (6).
taken the Prior Poſſeſſion in behalf of his Country
VIII. We are then ſaid to have occupied any thing, men. A Diſpute ariſing hereupon, the Eretrians, the
when we actually take poſſeſſion of it; and this com- Samians, and the Parians were choſen Umpires; of
menceth at our joining body to body, either imme- whom the two former gave judgment for thoſe of Chal-
diately, or by a proper Inſtrument. The regular cis, and the laſt for thoſe of Andros. The diſappoint-
Courſe therefore is, that the Occupancy of Mova- ed Party were ſo enraged at the Arbitrators, as to ena
bles be made with the Hands; the Occupancy of gage themſelves by Oath, never to make or to allom
Soil with the Feet, together with an Intention of any Marriages with them. Indeed a Spear ſeems a
manuring it, and the Action of ſetting Boundaries very improper Inſtrument for the Occupancy of Im-
to it, whether exactly, or with a wider Liberty. movables, ſince we may ſtrike many things with
But the bare ſeeing a thing, or the knowing where ſuch a Weapon which we can never approach Io near
it is, is not judg’d a fufficient Title of Poffeslion (1). as to touch with our Body, (2).
Thus Ceres ſpeaks in Ovid (Metamorph. l. 5. v. 518, IX. It is the general Opinion, That moving things
519,
cannot be made our own but by bodily Seizure;
and this we are to uſe in ſuch manner, as to take
En quæfita diu tandem mihi nata reperta eft. them from the place where they were found (1), 111-
Si
to our Lordihip, or at leaſt into our fafe Cuſtody.
Scire ubi fit, reperiſſe vocas.
Thus a Neſt of Birds, though I lay my hands upon
Sought for ſo long, my Maid, I've found thee now; them, yet are not my own unleſs I carry them
If we have found, when where to find, we know. home. If I find a Litter of young Beaſts of Prey,
Mr. Barbeyrac's NOTES on $ 8.
(1) This Paflage, though quoted by Grotius, I. 2. c. 8. $ 3. as well as our Author, upon this Occaſion, can be no farther to
the purpoſe, than as an Illuſtration, becauſe he treats here of another thing. He might much becter have mentioned that
Diſpure, which Plautus feigns to have been between two Servants, one of which had filh'd out of the Sea a Cloak-bag, and the
other claimed a parr, becauſe he ſaw him from the Shore. For thus they argue,
Gripus. Quemve vidulum ego excepi in mari?
Trachal. At ego infpe&tavi è littore.
Rudens Act. 4. Scen. 3. v. 79.
Nothing is more impertinent than this Reaſon. For beſides that Gripus could not know the intention of Trachalion; this laſt could
not have any thoughts of taking the Cloak-bag, till the other was poffefſed of it. The arguings that follow are not at all con-
vincing. 1 Thall give them in Madam Dacier's Tranſlation. “ Should the Man to whom the Cloak-bag belongs come now, ſhall
" not I that ſtood by, and beheld afar off, be counted the Thief, as well as you who fil'd it up? How then can you prove, that
" I who muſt be an Abercor in the Theſt, ſhould not alſo ſhare in the Gain?
(2) The Determination of the Arbitrators, and char of our Author, is not at all ſatisfactory. He had better have ſaid, when
two perſons at the ſame time declare their intention to ſeize a thing that belongs to neither of them, the thing is common to
both, Titius Obferv. 293. Indeed, as I have already ſaid, that which properly conſtitutes the Right for the firſt Occupant, is
that he has declared before ſome others, ſome way or another, his intention to make a thing his
own, in as much; as ſoon as he
hach ſo done, all others who have yielded him the firſt place, ought not to paſs over his bounds, becauſe it would be as diſho-
neft and unjuſt, as if one over.runs anothers Land ; but if two perſons declare at the ſame time that they'd have a thing, and
one makes known his deſign one way, and the other another, ſuch an Agreement gives them equal Right, in ſo much that nei-
ther of them can exclude his Companion; wherefore they muſt accommodate the matter becween themſelves, and both, accora
ding to the Proverb, have a part. See the Interpreters of the paffages quoted by Mr. Noodt, Prob. Jur. 2.6. L P. Vavaſor De uz
bo ufu quarund.
locut. p. 165. But I am amaz'd that he did not ſee, that in the Example he uſes, there was a ſpecial Reaſon, why
neither the running of the Chalcidian Spy, nor the Dart ſhot by the Andrian, was of no manner of uſe to ſecure the poffeffion
of the City that they went to for their Countrymen. They were both lent, doubtleſs, in behalf of the whole Colony, ſo that
they could not feize upon the City bue in Common, whatever Notion they might otherwiſe have of the nature of caking pofless
Hon by the Right of the firſt Occupyer.
() Vid. Grof. l. 2 C. 2 f. 5.
(6) Vid. Becler. ad Gret. ibid. Sect. 4. (c) Quaft. Gràc. 30. p. 298.
Mr. Barbeyrac's NOTES on 6 9.
(!) This is always neceſſary, as is before proved. So that in the Example propounded by our Author, ſuppoſing that one
a Neſt, and ſeeing that the young ones need to remain yet with their Dam, leaves them, with a deſign to come again a-
nother time; they to whom he tells it, declaring to them his intention at the fame time, do not deal well with him, if they do
the Curare, of whom Bourſault ſpeaks in his Letters, did to a Countryman, who to revenge himſelf went to him to put a falſe
Confidence in him about ſomething
curious; whereupon the
Curate
, deſirous to know all tħe particulars of the Matter to play a
like crick with the Countryman, anſwer'd him, a bubble, the Birds are gone. By the Laws of Saxony, if any one has found a
warm of Bees in the hollow of a Tree, and makes a Mark whereby it may be known that he is gone to ſeek an Hive to put them
in, no Man may meddle with them, they are thought by right to belong to him that firt diſcover'd them, as the firft Occu-
Byer, becauſe he has manifeſted his Deſign co make them
his own. This account I have from Mr. Thomafius's Noces upon Huber.
De
finding

1 76
Of Occupancy.
Book IV.
a
That is, fets
I then fix a Property in them, when I either remo
remove made this Diſtinction in the Caſe (b): If the Beaft
thein, as Priſoners, to my own Quarters; or for were followed with the larger Dogs or Hounds, then
ſome time fet a Guard over them where they lie, to he was the Property of the Hunter, not of the Chance-
hinder their Eſcape. Now this Seizure is made not Occupant; and in like manner, if be were wounded or
only with our Hands, but with Inſtruments, as ſup- killed with a Lance or a Sword. But if he were follow-
poſe, Suares, Gins, Traps
, Nets, Wheels, Hooks
; ed with Beagles only, then he paſſed to the Occupant
and the like (a): Provided the Inſtruments be, as not to the firſt Purſuer. If he was ſain with a Dart
,
they term it,
it, in noftra poteftate, under our power : a Sling, or a Bow, he fell to the Hunter, provided be
following the Game; and not yet broken by the who afterwards found or ſeized him. According to
Prey, but holding them faſt
, at leaſt till ſuch time the Conſtitution of the Lombards (c), he who found
And hence we or killd a Beaſt, wounded before by another, was
may decide the noted Caſe of the Boar in the Toil, to carry off a Shoulder and the Ribs, and to leave
jropoſed in the Digeſts (2). For, if the Beaſt were the Reſidue as the Hunter's Right: Though this
lo entangled that he could not poſſibly break thro', Right to the Remainder continued no longer than
and the Snare were laid either in your peculiar the ſpace of 24 Hours. We judge it may in gene-
Lordſhip, or in a publick place
where you had ral be affirm’d, That if the
Beaft be mortally
a right of Hunting, then he was certainly your own; wounded, or very greatly main d, he cannot fairly
and I, if I had loos’d him, and reſtor'd him to his be intercepted by another Perſon whilſt we are in
Natural Liberty, ſhould have been bound to make purſuit of hiin, provided we had a Right of paffing
full Satisfaction, whatever name ſuch an Action at through ſuch a place: But the contrary is to be
Law might bear, or under what Head foever it held, in caſe the Wound were not Mortal, nor ſuch
might be ranked. But if the Snare were ſet on my as would conſiderably retard the Beaſt in his
Ground, as I might at firſt have hindred your En- Flight (2). Therefore when Meleager in Ovid (1),
trance thither, ſo if I afterwards break what you admits Atalanta to a ſhare in the Glory of killing
placed there without my Leave, you have no rea- Caledonian Bear, it was not ſo much an A& of Ju-
ſon to think your ſelf injured.
ftice, as of Love. But the Game which my Dogs
X. It hath likewiſe been diſputed, Whether by kill when I did not ſet them on, doth not become
giving a Beaſt a Wound in Hunting, we preſently mny Property, till I have a&ually taken hold of
anake him our own? Trebatius (1) long ſince declar'd it (e).
on the Affirmative ſide; but then he ſuppoſeth us to XI. The Jewiſh Cuſtoms, as Mr. Selden informs
purſue the Beaſt, which if we permit to do, he fays, us (f ),decided theſe and the like Points in the man-
IVe loſe our Property, and the right paſſeth to the firft ner following: Fiſh or Beaſts were not to be taken
Occupant. Others are of the contrary Opinion, main- from the Repofitaries or Places of Store : Tet it was
taining, That we can by no other means appro- lawful to take Fiſh out of another Man's Net, whilf
priate the Beaſt, but by actually taking him, be- yet in the Sea, and Beaſts out of another Man's Snare
,
cauſe many Caſualties inay hinder him from ever if it were laid in a deſart Place. He that ſpread a
coming into our Hands. The Emperor Frederick Net in another's Ground might poſſeſs the Game he had
De Jure civitatis, 1. 2 Sect. 4 c. 2 p. 455. where nevertheleſs he affirms, thac this Law is not agreeable to the Law of Nature and
Nacions, but it does not appear to me that he has ſaid any thing which deſtroys theſe Principles, upon which my Arguments are
built, no more than in the following Caſe, where he determines otherwiſe than I do. Suppoſe that one ſeizes upon a thing
which he finds in a publick place, but which he can't carry home with him chat Moment, whereupon he leaves ir, declaring to
ſome other preſent, that he intends to take it, and will come foon for it. In this caſe, ſays Mr. Thomaſius, the firſt can't com-
plain, if the laſt takes it, ſeeing ic is out of his Poſleffion, and left in a publick place; but in my opinion the contrary muſt be
underſtood, that either he that took poſſeſſion of the thing has relinquiſh'd it, or that he may reaſonably preſume it, becauſe he
delays long his return to take it, and ſo may be thought not to mind it. In fine, I can't but take notice that in the place which
I have quoted, p. 452, c. Mr. Thomaſius conſuces the Hypotheſis of Mr. de Bynkerſhoek, upon which I have given my Opi-
nion atove, s 1. n. 1. but I had noc then ſeen the Nore of that able and judicious Lawyer when I wrote mine, which I have not
ſince changed, yet I muſt own, that I have not always the ſame Notions, though for the main we are agreed.
(2) The words of the Digeftare, In laqueum, quem venandi cauſa poſueras, aper incidit, cum eo bæreret, exemptum eum abſtuli
Refpondit Proculus laqueum videamus, ne interfit in publico an in privato poſuerim, & ſi in privato pofui, utrum in meo
, an
alieno, & fi in alieno, utrum permiſſu ejus, cujus fundus erat, an non permiju ejus poſuerim? Præterea utrum in eo calx ita beſerit
aper, ut expedire ſe non pofſit ipſe, an diutius lu&tando expediturus ſe fuerit; ſummam tamen hanc efe puto, ut ſiin meam poteftatem perue.
nit, meus fa&tus fit. Sin autem aprum meum ferum in ſuam naturalem laxitatem dimififes, eo facto meus effe defiiffet, & a&tionem mihi
in fa&tum dari oportere, veluti reſponſum, cum quidam poculum alterius ex nave ejeciffet, Digeſt
, 1. 41 t. 1. De acquirendo rerum Domi-
nió, leg. 55. This Law ought not to be underſtood, as it is by the Interpreter, no, not by Trebonianus. Mr. Noodt with his uſual
Tharpneſs, has happily diſcover'd the true ſenſe of that ancient Lawyer, for he proves in his Probab. furis, I. 2 c.69 3. that
Proculus was one of thoſe who believed, thar to obtain a thing by the Right of firſt Occupancy it was not always neceſſary to
take a Corporal Poffeffion; and he proves it from theſe words, Ut ſi in meam poteſtatem PERVENIT, meus fuftus fit, fignify,
ing, provided that he who laid the Ners was inclined to ſeize it corporally, when he ſaw the Boar that he had been taken, (i e.)
That no other can looſe him, though he be in a publick place, and that if it is upon anothers Land, the Proprietor may not hin.
der him from going on it, though he has Righe to do it. Mr. Noodt afterward quotes, and at the ſame time correás another
Law, from whence it appears, that Paul the Lawyer, reaſoning upon the ſame Principle, maintains, that one ſeizes upon a Trea.
ſure found in his Field, as ſoon as he knows it, and will make it his own.
2
Mr. Barbeyrac's NOTES on S 10.
(1) The Words are, Illud quæſitum eſt, an fera beſtia, que ita vulnerata fit, ut capi poffit
, ftatim noftra eſſe intelligatur ? Treba-
tio placuit ftatim noſtram esſe, & eo uſque noftram videri, donec eam perfequamur. Quod si de fierimus eam perfeqni, definere noftram
effe do rurjus fieri occupantis
. Itaque li per hoc tempus, quo eam perſequimur, alius eam ceperit, eo animo, ut ipfi lucrifaceret, furtum
séum videri nobis commiſisse
. Plerique non aliter putaverunt eain noftram effe, quam ſi eam ceperimus, quia multa accidere poſſunt, ut
eam non capiamus, quod verius eft, ibid. leg. 5 $ 1.
|(2) This diſtinction is not neceſſary. The Author always reaſons from a falſe Notion of the nature of taking poffeffion. The
truth is, char till we ceaſe purſuing the Beaſt, and ſo leave it to che firſt Occupant, it belongs to us as much as can be ;
no Man can lawfully put in a claim to it.
(a) See Grot. l. 2 c. 8 f. 14. tih (b) Godofred, ad iftam leg. ex Radevico de geſt. Frederic. I. 1.6.26, (c) Lib. I cit. 22 1,4
(d) Metam. 1. 8 v.427, 6(e) Add. Alberic, Gentil. Advoc, Hiſpan, 1. I c. 4. (f) De 7, N. & G. Sec. Heb, 1. 6. c. 4.
ſo that
caught
,

CHAP, MI.
I 77
2th Of Occupancy. ihh A 10
it
perly the
in oun lopelors of the Fiſh in our Pond not of thoſe be taken from himn in way of Puniſhment, or by
9100
cured in the gecauſe Fiſh and Beaſts are 110 leſs fe- have ceas'd. Wherefore the Dominion of ſuch things
is at by theſe Incloſures within
caught, unleſs it were found by the Lord of the Soils dications, that he defires it ſhould no longer be his
and challeng’d as his Right, by virtue of that Proper- own, but Kould lie free for the firſt Taker, without
y Fiſh that leapt into a Ship bielongd to the Ma- deſigning hereby to gratifie any Man elfe (2): Or,
fler : Inaſmuch as a Ship may de eſteem'd a place of firm if having at firſt loft Poffeffion againſt his Will
, he
and ſecure Cuſtody, not of ſuch as is paſing and un- afterwards gives the thing over (3), either as de
certain; the
motion it hath, not proceeding from its ſpairing to recover it, or becauſe the Recovery of
Nature, but from the force of the Waters
. It is worth it is not tantamount. For otherwiſe, a Man though
Law of Nerva (1) on the he loſeth the actual Poffeffion (4), yet never forfeits
fame Subject, which determines, That we are pro- the Doininion and Property of a things (unleſs
And ſo of the Beaſts in our cloje Park, the chance of War :) but he ſtill keeps a Right of
in our Woods and Foreſts, though ſur- regaining it, till ſuch time as his Inclinations to
with a Fence. Which Diſtinction Grotius that purpoſe have ceaſed, or may be preſum'd to
.
of , and as thefe cannot be acquir'd by Occupancy, fo
well fenc'd Woods, than in the Clofer, of Ponds and as the Right of the former Owner ſtill ſubſiſts (b).
Parks. Yet Nerva's Aſſertion is indeed founded on But fince to make a thing compleatly, abandon'd or
very good Reaſon. For the Propriety both of Wild forſaken, Two Points are necellary; Firſt, That the
Beaſts and Fiſhes commenceth upon their being Perſon refuſe to own it for the future; and Second-
taken (2) Now the Fish preſerv'd in our Pond, ly, That he diveſt himſelf of the Poffeflion, by
and the Beaſts in our Park, were once actually leaving the thing, or caſting it away : If either of
taken by us, but not t
not the Fiſh which ſwims in our theſe Conditions be wanting, the Property is not ed
Lake, nor the Beaſts which run in our Woods, en- vacuated. Thus if I throw a thing by, jyet with
joying thus far their Natural Liberty, though per- out Intention to quit my Right in it, I do not pre
chance they are ſo encompaſs’d, as not to be able to judice iny ſelf by that Acțion. And on the other
wander without end. For to take theſe Creatures, hand, though I am reſolved utterly to quit my Ti-
and to beſet them with an Incloſure for the more tle to a thing, yet unleſs I actually caſt it off, Iram
eaſie taking them hereafter, are different things ;t ſtill the Proprietor (c).
Tr799 cart
yet inaſinuch as I alone have a Right to take them, Amongſt the things which by this means are
Í may therefore both hinder others from doing the brought under Dominion , we may reckon Wild
like, and may challenge what I find in their Hands; Beaſts
, or any fort of Game, when eſcap
d out of
ſo that as to this effect, it is all one as if I were our Hands, and repoſſeſs’d of their Natural Libera
ftrictly the Proprietor. And the Beaſts thus fur- ty.
And the Beaſts thus fur- ty. Grotius is not pleas'd with this Poſition of the
rounded at large, may ſo far only be ſaid to enjoy Roman Laws (5), Becauſe, ſays he, (d) the loſing our Dam
their Natural Liberty, as that they never yet were minion over Wild Beaſts, doth not immediately follow
caught by any Perſon ; not as that all Perſons with- upon their Eſcape from us, but ariſeth from this pro-
out Diſtinction have a Right to catch them. bable
e Conje&ture; That by reaſon of the great difficul-
XII. We likewiſe acquired by Occupancy things ty of purſuing and recovering them, we may be pre-
in which the Dominion they before lay under is ex- Sumed to have given them over. But the faine Laws
Is throws aſide a certain thing with
tinct (1): And this happens it a Perſon either open- hint as much as this; for. they tell us (2), A Wild
s with ſufficient In-" Beaſt is then ſuppos’dto recover his Natural Liberty, ei-
1991 fishing bod
Mr. Barbeyrac's NOTES on $11.
(1) The Words are, Item Nerua filius ait, feras beftias, quas vivariis incluferimus, & piſcess quos in piſcinas conjecerimus, à now
bis poffideri, ſed eos pifces qui in ſtagno fint, aut feras que in filvis circumſeptis vagantur, d nobis non pofſideri, quoniam reli&tæ fint in
libertate naturali Alioquin etiamfi quis fyluam emerit, videri eum omnes feras polidere, quod falfum eft. Digeft
. 1. 41 1, 2. De adquia
renda vel admittenda poffeffione, leg. 3 $ 14. But in this Sentence there is a Word omitted, which makes this ancient Lawyer
ſpeak what he never thought. For it ought certainly to be read, Feras que in filvis NON circumſeptis vagantur. . And ſo Nerve
oppoſes the wild Beaſts in a Park, whether ic be greac or ſmall, to chofe in a Foreſt not incloſed, and the Fiſh in a Stew-pond,
certain bounds, we are in actual pofíeffion of the Beaſts ſo incloſed. Francis Hotman made this Correction firſt, and Mr. Noodi
has folidly confirmed it after his manner; in his obſervations publiſh'd in 1706. 1. 10. 11. See alſo what he lays in the fore.
going Chapter, p. 54,55.03 uitrovnobno na VO
(2) We have ſufficiently confuted this in the foregoing Notes, and conſequently the cenſure of Grotius is well grounded, if
the words of Nerva, recited in the Law of which he ſpeaks, be not corrupted, as I have obſerved in the foregoing Note,
eitl 490 oris no gahan Hello Mr. Barbeyrac's NOTES on 12. tituorphos 25 ai agaid
(1) 'Tis a Determination of the Roman Lawyers. Qua ratione verius effe videtur, firem pro dereli&to d Domino habitam occupadi
verit quis, ſtatim eum Dominum effici. Pro dereli&to autem habetur, quod dominus ea mente abjecerit, ut id in numero rerum fuarum
elle nolit, ideoque ftatim Dominus ejus esse de finit, Inftit. I. 2. t. I. De rerum divil
. &c. $ 47. Thoſe things, which are forſaken,
having
once belong’d to a private perſon, can't be thought to be any part of his Eftare; but it is natural to ſuppoſe them to be-
making them their own, Titius Obſerv. 295. In fine, things immovable become the firft Occupanc's, when they are abandoned.
long to no body, and conſequently they become the firit Occupants, at leaſt, if there be no Law to hinder private perlons from
Mr. #irtius obferves here, that he uſes the word abjicere to expreſs a Renúnciation of Property to theſe fort of things, and
grounds it upon the Claufe of a will explain’d by Æſop, where that cunining Slave ſays, that the Harlot alienared the Lands
which had befallen to her in Coparcenary, Phedr. 1.4. fab. 4. v. 42. but as the Interpreters expound it, abjicere, ſignifies to ſell
the higheſt Bidder, and nor to leave it to the firſt perſon that thall ſeize it.
(2) As when we caſt Money or other things to the common people, which become the Property of thoſe that ficft catch themi
(3) See what is faid, c.12 8.8 following about the Foundation of Preſcription.
(4) See $ r of this
chapter, and n. 1 on it, where I have examin'd the Opinion of fuch as maintain the contrary.
(5) Quicquid autem eorum ceperis, eo uſque tuum effe intelligitur, donec tua cuſtodia coercetur. Cum vero tuam evaferit cuftodiam,
bin libertatem naturalem fefe receperit, tuum elle definit, & rurfus occupantis fit. Naturalem libertatem autem cepife intelligitur
,
cum vel oculos tuos effugerit, vel ita fit in conſpectu tuo, ut difficilis fit ejus perſecutio, Inftit, l. 2 cit. i De rerum divis. & adquir. ipſaa
vum Dominio, $ 12. See alle Digeft. 1. 4. t. 1 leg. 3, 5.
(4) Lib. 2 c. 8 1. 2.9.- 1b) See 1, Sam. 19;3.D. 1.41 6.2. 1. 13 & Lib. 14 citi a princip. D. de adquir. poffefja 1. a de jałtu. Seet 8.
(6) Vid. l. 41 dic. a 1.17 1. 1 De de adquir. poseg. (d) Lib. 2 c. 8 1. 3. (e) D. ib. & l. s. princip.
of Z
tber
MOTgut
V70 23 01 31
| 1.8. D. ad leg. Rhodiam.
Dede A, R. D.

178
of Additional Acquirements.
Book IV.
29
Sat. IV. 50, &c.
ther when he is quite out of our fight; or when tho" out Bounds (8), and which always ſtruggles
, and
be is within view, yet it would be very dificult to fola is uneaſie under the Confinement of a Pofleflor,
low him. And again they determine (6), That what no Mark or Badge being in the leaſt, Effectual to
the Wolf takes from us, is ſo long our Property, as wards the bridling this Natural Diſpoſition (a).
there is a poſſibility of recovering it (a) (*). Therefore Juvenal makes the Informers about the
By thefe Reſtrictions we muſt qualifie the Argu- Turbot argue very wrong, though very Omamen-
ment laid down by Ziegler in his Remarks on Gro- tally to his Deſign :
tius (b); That ſince Wild Beaſts are made ours by lo-
Non dubitaturi fugitivum dicere piſcem,
fing their Liberty, therefore by regaining their Li-
Depaſtumque diu vivaria Cæfaris, inde
berty they ceaſe to be ours; and, by conſequence,
Elapſum
veterem ad Dominum debere reverti.
the Dominion of them is judg’d to confift in A-
Si quid Palphatio, fi credimus Armillato
&ual Pollefion. For a Wild Beaſt is not ſuppos’d
Quicquid conſpicuum, pulchrumque eft æquore toto
to have recover'd its Freedom, fo long as any Per-
Res fiſci eft, ubicunque natat.
ſon purſues, with probable hopes of retaking it.
As a Priſoner, though he be got out of hold, yet
hath not clearly made his Eſcape, ſo long as the
They'd ſwear,
Officers are in ſearch of him, and he remain in a
The Fiſh had long in Cæſar's Ponds been fed,
And from its Lord undutifully fled ;
place where 'tis pollible for them to find him. As
for what Grotius Conjectures, that by means of ſome
So, juſtly ought to be again reſtor’d.
quaeiouette (7), fome Badges or Marks we inay re-
If we may take the greateſt Lawyers word,
tain the Property of Wild Beaſts after they have
Who tell us, that all fine things in the Sea
broke from our Cuſtody, fo that they ſhall not paſs
Belong alone to Cefar's Treaſury.
to the firſt Taker: We are of Opinion, that this As to the Caſe of Fugitive Slaves, the Roman
ought to be confin'd to thoſe only, which by the Ap- Laws particularly ordain'd (10), That their Maſters
plication of Men have been diveſted of their Na- ſhould ſtill retain ſuch a (11) Poffeffion of them as is
tive Ferity, and are therefore deſervedly admitted term’d Civil, (a Poffeffion in Right though not in
to the ſame Rights as Tame Creatures. Hence if A&,) in Oppoſition to the Natural or Corporal, that
Tyrrhus's Deer in Virgil (c), was thus diftinguiſhed it might not be in the power of the Slaves to de
by any proper Mark, Aſcanius offer'd a fair
occaſi- prive the Maſters of fo great an Advantage (e) (F).
on for the Commotions that follow'd, But thoſe This is certain, that if we loſe the Poſſeſſion of
which are only kept in Parks, though they ſhould any thing elſe, againſt our Will; as fuppofe we
happen to wear any ſuch Note of Diſtinction, yet drop a thing by the way, the Property doth not
when they get looſe into their Natural Liberty, it paſs from us, or accrue to the Finder (12), till it
ſeems more agreeable that they ſhould pals to appears we abſolutely give it over for loft'; which
him who firit Tays hold on them. For there is uſually underſtood by our forbearing to ſearch or
is need of a moft ftrict Guard, or a kind of per- enquire after it. Hence, if a Man find fomewhat
petual Occupancy, for the retaining a Creature, which 'tis not probable the Owner ſhould volunta-
which is by Nature impower'd to wander with rily reject, he ought to give fair notice, that upon
DASS
3:01
Paino: 52
(6) Et fane nullius eft dicere, do quod d lupa eripitur, noftrum manere, quam diu recipi poſſit id, quod ereptum eſt, Dig. Ib. leg. 44.
Conciliatorem noffe ad hoc prodeſt ne capiatur, parcit piſcator fugituro in reliquum gregem ferunt diſcordem focium duci infidiatum
pulcre noto cepiffe malefica voluntate, agnitum in macello e focio, cujus injuria erat do dati damni formulam editam condemnatumque
addidit Mucianus æſtimata lite decemlibris.
(7) As Chains, See Scheſter. De Antiquorum torquibus, 13. and laſt.
18) This Reaſon is not good. Our Author always follows his falſe Nocions about taking poffeffion. But we muſt ſay, that
the Difficulty, or rather Impoſſibility, that there uſually is to know theſe ſort of Beaſts, when they are eſcaped out of their In-
cloſures, is a ſufficient ground to prefume, that the Proprietor has relinquiſh'd them; but if they have any Mark by which they
can be diſtinctly known, the Proprietor has no leſs right to claim them, than any other thing he has unwillingly loſt, and of
which he never ſhewed any ſigns of his Neglect.
(10) The Words of the Law are, Namque fugitivus idcirco à nobis poffideri videtur, ne ipſe nos privet poffeffione, Dig. 1. 41. cit. 2.
De adquirend, vel amitt. poffeffione, leg. 13. in princip. See alfo leg. 1. $ 14.00
(11) See c. 9. $ 7 following.
(12) The Roman Lawyers tay very well, that it matters not, whether we know, or not, to whom the thing we have found,
belongs, if we take it to our own uſe without a deſign to reſtore it to its Owner, or endeavouring to find him our, we really
commit a Robbery. Qui alienum quid jacens, lucrifaciendi caufa fuftulit, furti obſtringitur, five ſcit cujus fit
, five ignoravit, nihil
enim ad furtum minuendum facit, quod cujus fit, ignoret, Digeft. 1. 47. tit. 2. De Furtis, leg. 43.9 4. Plautus in his Rudens, or Naw-
frag. Fæl. brings in a Servant endeavouring to perſuade his Maſter to keep his Cloak-bag till he went a fiſhing on the Sea, his
Mafter, who was an honeft Man, ſaid to him,
Egone, ut quod ad me allatum effe alienum fciam, aby Although I know to whom the thing belongs,
Celem. Minime iſtuc faciat nojter, Demones ! And might concealt? I will not, for ſuch Wrongs
- dood, og at hindi adoing The Dæmons will not bear.
The Roman Lawyers alſo maintain with much reaſon, thar the Goods which are caſt into the Sea to lighten a Ship in a Tempek,
when Men are in danger of being loft, do not leſs belong to thoſe who caſt them in. So that if any one fiſh them up, or find
them on the Shore, they can't keep them to chemfelves without being guilty of Robbery. Alia ſane caufa eft earum rerum qua
in tempeſtate levande navis cauſa ejiciuntur. He enim dominorum permanent, quia palam eſt eas non eo animo ejici, quod quis eas bar
bere nolit, fed quo magis cum iiſa navi maris periculum effugiat. Qua de causa, si quis eas Auétibus expulſas, vel etiam in ipfo mari
naftus, lucrandi anima abſtulerit, furtum committit, Inftit. 1. 2. cit. I. S 48. See allo Levit. 6. 3. with che Notes of Mr. Le Clerc,
and what ſhall be faid, c. 13.9 4. in the end, following. 3009 somog
(a) Vid. I. 8 f. 2 D.
(6) Dift. loc. Y Æn. 7. 483, doc. Add L. Salic. t. 35. Under this Head we may
. 9. c. 59. reports of the Fiin Antas, whom the Filhers make uſe of to becray the reſt of his
Kind. There is this advantage, ſays he, in knowing the Leader, that he may not be caught with the reſt';
ſpares him, that he may deceive and miſlead another Company. It is upon Record, that a cercain Fiſher, to do his Parenen
« an ill turn, againit whom he had ſome Grudge and Quarrel, took this Captain of the Shoal, whom he might cafily diftinguiſh
« from others : His Partier eſpying the Fiſh in the Market, brought an Action againſt the Taker, and, as Mucianus adds, re-
6. cover'd Ten Pounds for Damage. sh. (d) Vid. Ziegler in Grot, ubi fupra. (e) Lib. 1 c. 14 D. de adquir. poses.
(f) Vid. D. l. 41 tic, 2 De adquir. vel omitt. poffef. leg. 3. princip.
om
the Fiſherman,
1
a juſt

CHAP, VỊ.
179
Of Occupancy. .
pusi
a juft Claim it inay be reaffumed. But if the Own- of (2) Civil Ordinances paſs to the Finder ; that is; to
er can't be diſcover’d, then 'tis but right the thing him who firſt lays hands on it and removes it out
Thould be kept by him that found it. Yet Ælian of its place. Becauſe a thing, the Proprietor of
(a) reports it as a Law of the Stagirites, & mi re rede which is undiſcovered, is in Moral Eftimation judga
relpere ; Take not up what you did not lay down. the ſame as if it were under no Property, or be-
And elſewhere (b) he tells us of the Biblians, That longing to no Body, and conſequently is the Right
if they light upon any thing in their way, they never of the firſt Occupant. On which Point, neverthe-
touch it, unlejs they laid it there themſelves: To do o- leſs this Queſtion will ariſe, whether a Perſon liv.
therwiſe, they fay, is not to find, but to Steal
. A-ing in a place where the Laws adjudge ſuch things
mongſt Solon's Laws there was one to the fame pur- to him that finds them, is bound, for the making
pole; di sol bo mi avéan (c). And the Chineſe, in O- his Title good in Conſcience, to give publick no-
bedience to the Doctrine of Confucius, exactly ob- tice of what he hath found, though it ſhould ap-
ferve the like fcrupulous Nicety (d) (14). The pear to have "lain hid a very conſiderable time?
ancient Jews, as Mr. Selden informs us (c), held that (For if it proves to have been lately hid, we doubt
the Law of Deut. 22. 1. belong’d to thoſe of their not but ſuch a publick Diſcovery is always necef-
own Religion, not to a Gentile, yet fo as if fuch a fary.) In the Caſe propoſed, it ſeems moſt reaſon-
Beaſt were utterly relinquiſh'd by the Owner, it ble thus to determine. If a Man dig up Money in
became his who found it and took it into his Poſſef- his own Ground, he is not in Conſcience obliged to
fion. They diſtinguiſh'd likewiſe between thoſe diſcover his good Fortune, but may enjoy it in fi-
things which were mark’d, and thoſe which were lence, till ſuch time as another of his own accord
unmark’d. The latter they preſumed to be given makes Enquiry, and withal produceth probable Rea-
over by the Proprietor, but not the former; unleſs ſons, both of his hiding his Money at firft, and of
he made expreſs and open Declaration to that pur- his omitting to ſpeak about it till now. For here
poſe. So again, they thought it unlawful to keep the former Owner from whom the Land or Tene-
the former, till they had been twice or thrice pub- ment paſs’d to the preſent, ( the Finder of the
lickly cried, but not the latter. For which uſe there Treaſure,) cannot be preſurned to have knowingly
was a Scaffold erected in the Suburbs of Jeruſalem, left a ſecret Store in a place, which he alienated
from which the Cryer made Proclamation of loft and convey'd from himſelf
. Again, he who hath
Goods. But in caſe they belong’d to an Apoftate, hid any ſuch Treaſure in another's Ground without
they did not look on themſelves as bound to reſtore acquainting the Lord of the Soil, is judg’d to have
them. As for things loft by Gentiles, they judgʻd it ſlipt his Opportunity, and neglected his means of
reaſonable to deliver them again to their Owners, claiming and ſecuring it; ſince there was at firſt
only on this Conſideration, that by fo kind and good Reaſon for hiin to fear leſt it ſhould fall into
friendly a Treatment, they might purchaſe a like other Hands, which he ought to have provided a-
return of Humanity and Favour. Wherefore
they gainſt. But if the Ground belong to another, then
concluded, that the Dominion of the Gentiles Goods the Finder ſeemis engag’d by his Conſcience, to en-
did, by the Law of Nature, immediately expire quire, at leaſt indirectly, of him concerning the
upon the loſs of them; but that the Reſtitution of Matter : Becauſe without this, it cannot certainly
the ſame Goods depended wholly upon the force be known, but that the Money was laid there by the
of Civil Conſtitutions. Which falfe Opinion, as Maſter of the place, only for the greater Security, or
many others, flow'd from the Covetous Temper of by ſome Perſons elſe with his Privity and Conſent.
that Nation, and from their extream Hatred and A-
But as for Poſitive Laws, we find them in different
verſion to all the reſt of the World.
Countries (3), very various on this point. (f) Plato
XIII. Amongſt the things in which the Dominion orders, (g) That neither Treaſure, nor any kind of
or Property is extinct, the Civilians likewife reckonloft Goods Mall belong to the Finder, but that the O-
what they term Theſaurus, Treaſure-Trove (1), or racle ſhall be conſulted in order to the diſpoſal of them.
Money found, the owner of which is not known. Which, without doubt, was too fcrupulous a Super-
If therefore a Man either on the account of Fear, ſtition; ſomewhat like the Humour of Chiungai the
ar for the better Defence and Security, ſhall have Chineſe Philofopher, who, as Martinius obferves ;
hid his Money in the Earth, it doth not fall under (h) Held it unlawful to touch any thing that was ſub-
this Name of a Chance Treaſure; and he that takes pected, either to be in it ſelf evil, or to have proceed-
it, is guilty of Theft. As the Slave in Plautus's ed from evil, and unjult Men: For which Reaſon he
Aulularia, that carried off Buclion's Pot of Gold. refus’d to dwell in his Father's Houſe
, -believing the
But fuch Caſual Treaſure as we firſt mention’d; doth Builders to have been wicked Perſons ; nor would take
naturally and without the particular Interpoſition bis Meat from the hands of his parents or Brethren,
(14) Theſe Opinions of the Jewiſh Doctors had no other Foundation, than the inſatiable Avarice of that Nation, and the im.
placable Hatred which they bore to other people.
Mr. Barbeyrac's NOTES on Ś 13.
(1) The words of the Law are, Theſaurus eft vetus quædam depofitio pecunie, cujus non extat memoria, ut jam dominum non habeat,
fie enim fit ejus qui invenerit, quod non alterius ſit
. Alioquin ſi quis aliquid vel lucri cauſa, vel metus, vel cuftodiæ
, condiderit fub
ferta, non eft theſaurus, cujus etiam furtum fit, Digeft. 1. 41. tit. 1. De acquirend. rerum Dominio
, leg. 31. See alfa, l. 6. tit. I. De
rei vindic. leg. 67. & lib. 41. tit. 2. De acquir. vel amitt. poffef. leg. 3. $ 3.
(2) Or a Workman, who is paid by an Husbandman or Maſon, for his Labour. For he acts not in his Maſter's Name, who
has hired him, but in the work that he has to do. Nemo enim ſervorum opera theſaurum quærit, nec ea propter tunc terram fodiebat,
ed alii rei operam in umebat, da fortuna aliud dedit, Digeft
. 1. 41. tit. 1. De acquir. rerum Dominio, leg. 63. 9 3. See allo Mr. de
Bynkerſhoek's Obſervations, 1.2.c.4. where he confutes the contrary Opinion.
3) Sce!, 5 c. 3 $ 3 and not. follotring. Grotius, 1. 2 c. 8 8 7. Philoſtrat
. in vit, Sophift. 1. 2. and in Herod. 5 2. Mr. Ddu.
mat's Publick Righe, 1. n tit. 6 Sect. 3 8 7. and Mr. Titius's Jus Privatum Romano-German. 1.8 c. 13 $ 3, &c.
(a) V.H.1. 3.c. 45.2 (6) Lib. 4. C. I p. 302. Edit
. Perizon. (c)
() Vid. Grof, l. 2
(b) Hift. Sin. l. 5.
+ 2 2
fearing
.

180
Of Occupancý.
Book IV.
enjoy
Enemy.
Tum , .
James
fearing it might be ill gotten. It ſeems to have been otherwiſe (3), Men do not come under the Object
paſs to the Owner of the Land (a), as is gather'd ing their Natural Freedom; excepting only that one
from Matt. XIII. 44. Spartian in V it. Adriani men- Ancient caſe of expoſed Infants (d) (4), who belong'd
tions a Decree of the Emperor Adrian to this pur- to thoſe that found and preſerv'd them. For Liber.
poſe; That if a Man found Money in his own Land, ty, as well as all other Rights, is attended with
he ſhould enjoy it all himſelf; if in another's, he ſhould this Effect, that it cannot paſs without my Confent,
reſtore it to the Owner of the Soil; if in a Place into the Power of any other Man beſides an
that belong’d to the Publick, one Moiety ſhould go to But now Occupancy in thoſe things which are capa-
himſelf, and the other to the Treaſury
. And to the ble of it, ſuppoſeth no conſent ; but to the comple-
fame purpoſe, in Vit. Severi. Zouoras
, Tom. II. in tion of it, theſe two Points only are required ; Firði
,
Nerva. We read a Story of Atticus
, Herod's Fa- The Act of the Occupant, in ſeizing on ſuch things;
ther, That lighting upon a vaſt Treaſure in his and Secondly, The ablence of all Right on the part of
Houſe, he wrote to Nerva, deſiring to know his the Objects, which might elſe hinder thein from being
Pleaſure about diſpoſing of it; the Emperor re- acquired by this means
. Hence when upon the de
turn'd no other Direction than this, Utere que inve- ceaſe of a Man who hath no Heir to ſucceed him (5),
niſli, Uſe what you have found. And when Atticus either by, Teſtament, or by Law, all thoſe Rights
in a ſecond Letter complain’d, That the Sum was too die with him which he held over things or Perſons
,
great for his Occaſions, and quite overloaded him, Ner- the things paſs to the next Occupant, but the Per-
va anſwered, Abutere invento, quando tuum eft; fons recover their Natural Liberty. For we can
Why e'en abuſe it, and ſince Fortune hath made it your hardly imagine, that there was ever once inſtance
own, get rid of it how you can. (6) Philoſtratus Apollo- of a Wretch fo bafely low-ſpirited, as that he would
nius
, (*) in a Contention about this point between the voluntarily deſert his Freedom, and as it were, give
Buyer and the Seller of a Field, orders enquiry to it up to any one that would accept of the Refigna-
be made, which was the beſt Man of the Two, An tion. Should Men in this caſe, be never ſo much
Expedient which can never paſs into a General inclin’d to continue in a ſervile Condition, yet, at
Rule.
leaſt, they will reſerve to themſelves the power of
XIV. The Roman Lawyers, to the Claſs of things chuſing their own Maſter.
acquired by Occupancy (1), and farther, the Goods Indeed Grotius (e) ſeems to reckon Sovereignty
of Enemies. For the right underſtanding of which, amongſt the Objects of Occupancy; whilſt he tells
we are to know, that by a State of War, as all us, That in things which belong to no Body, there are
other Peaceful Rights are interrupted, fo Domni- two Rights which may be in this manner acquired,
nion thus far loſeth its Effect, with regard to the Sovereignty, and Dominion as diſtinguiſhed from Sove-
Adverſe Party, as that we are no longer obliged reignty. But this Affertion muſt be explain’d with
to abſtain from their Poffeffions, than the Rules of great Caution and Dexterity: For Sovereignty in
Humanity and Mercy adviſe us. In War therefore proper Speech is applied only to Men; which ex-
the Goods of one Party, in reſpect of the other, cept in War, and in the caſe but now mention’d, can't
are render’d, as 'twere, void of Dominion : Not that be obtain d by Occupancy: Becauſe he who is not
Men do by virtue of the Right of War, ceaſe to be Anothers, is not therefore No Body's but His Own,
Proprietors of what was before their own, but be. But we improperly uſe the term of Sovereignty, in
cauſe their Propriety is no Bar againſt the Enemies ſpeaking of Places or Territories; for then the Effect
Claim, who may ſeize and carry away all for his of it is only this
, That no one can fix in ſuch a
own uſe. As the bare taking hold of a thing place without the Sovereign's Conſent; and they
which lays void, is a ſufficient ground for Domini- who come to ſojourn there only for a time, are du-
on. Though indeed in the Caſe of War, thoſe who ring that ſpace obliged to acknowledge his Juriſ.
come to make uſe of this Clain, and to take a vio- diction.
lent Poſſeſſion, may very juſtly be reſiſted and But now this Sovereignty is really nothing elſe
repuls’d with equal' Violence; as we ſee in daily but the Effect of that Dominion or Property which
Practice. We may therefore obſerve, That the Do- was before eſtabliſh'd over the Place, and includes
minion of things taken in a War doth then at à Power and Command over Men, indirectly,
length gain its full Strength and Validity, when by conſequence. Becauſe what is Mine, none can
the Perſon from whom they were taken, renoun. take to his own Uſe, without my leave: And he
ceth his Pretenſions to them, by conſenting to a that enters a Place belonging to me, is ſo far at leaft
Peace.
under my Rule and Guidance, as that I may hinder
Farther, And what is very particular, this vio- him from endamaging my Dominion, or may pro-
lent Seizure, in a Hoſtile Method, may likewiſe vide that my Right over the Place ſhall not ſuffer
entitle us to a Sovereignty over Men (2): Whereas on his Account.
Mr. Barbeyrac's NOTES on $ 14.
(1) The Law is, Item ea, que ex hoftibus capiamus jure gentium, ftatim noſtra fiunt. Bello capta ejus fiunt, qui primus ¢a®
I
verſi fuerint, priftinum ftatum recipiunt. Vid. Inſtit, ubi ſupra.
(3) Although the Turks pretend, that when a Stranger comes into their Coudtry, they have a Right to confiſcare his Goods
,
and take him for their Slave, eſpecially if he belongs not to a Nation in Amity or Alliance with them. See Mr. de Bynker ſhoek's
Diſcourſe, De Dominio Maris, c. 1. p. 4, 5.
(4) See what is ſaid, 1.6. c. 2. $ 3. following.
(5) I have here left out a Sentence which I met with a little higher, where it is much better placed.
(a) Add Plaut. Trinumm. Act. 1 Scen. 2 v. 14. 1. & Philoſtrat. Apol'on. I, 2 C.15. (6) Add Confticut. Sicul. I. 3 t. 3•
(5) Lib. 2C.15. (d) Vid. Hobbes, De Cive, c. 9.1.4. (e) Lib. 2 c. 31. 4.
and
C H AP,

CHAP. VII.
Of Additional Acquirements
181
..
CHA P. VII .
Of Additional Acquirements.
1.
How many ſorts of Additions.
| VI. How Buildings go, along with the Soil.
II.
Additions properly belong to the owner of the VII. The Paper goes along with the Writing
thing.
VIII. The Canvaſs with the Pi&ture,
III. How many ſorts of Fruits.
IX. The Purple with the Garment.
IV. The young one of Beaſts belong to the Owner of X. Of Ned Models in Things.
the Damm or Mother.
XI. Of whole Countries left by Waters,
V. Things planted paſs with the Soil.
XII. Of Fields belonging to Private Perſons.
fits inay
M
OST of thoſe things which are ſubject to the the Proprietor of the Subſtance to which they ad-
Dominion of Men, have this common Affe- here. It is needleſs therefore to derive the Domi-
&ion, That they do not always continue in nion of Acceſons from the Title of a Feigned Occu-
the ſame State, but abound with great variety of pancy, by which we ſhould ſeem through the inter-
Increaſe. Some of them ſwell their inward Sub- vention of a thing belonging to us, to take poſſeſ
ſtance to larger Dimenſions, fome receive external fion of any. After-improvement; or by virtue of
Improvements; others are attended with ſeveral which, a thing already our own, ſhould be ſuppoſed,
Fruits and Advantages of a different kind from on account of its Pre-eminence, to make ſome o-
themſelves; many rile very conſiderably in Value, ther inferior thing cleave to it, as an Appendage.
from the Faſhion and Figure which Humane Indu III. The Increments (1), Multiplication, and Pro-
ftry hath put upon them. All theſe additional Pro- fits of any kind of things are uſually ftiled Fruits (2);
be compriſed under the general Term of except that the increaſe of Animals hath the pecu-
Acceſions (1), and will, for the moſt part, fall un- liar Name of Fætus, or the Breed. Fruits are moſt
der one of theſe two Claſſes : Thoſe which proceed commonly divided into thoſe of which the thing it
purely from the Nature of the things, without the ſelf is the proper Cauſe and Original, and thoſe of
alliſtance of any Humane Act; and thoſe which the which it is only the Occaſion. The former are cal,
Labour and Diligence of Men, doth either wholly led Natural: The latter Legal or Civil (3). Amongſt
or in part procure.
the Natural, fome ariſe from the bare Operation of
II. 'Tis a general Rule in this Caſe, that whoever Nature (4), without the Culture or Labour of Men:
is Owner of a thing, to him likewiſe belong the Ac- In others, we aſſiſt Nature's Strength (5), and render
ceſions of it (1): Which 'evidently flows from the her more kind and fertile by our own Pains, whe-
very Nature of Property, and from the End for ther in a greater or a leſſer Proportion : On which
which it was firſt introduc'd ; inaſmuch as the poſ- account theſe are wont likewiſe to be term’d, The
feffion of many things would be vain and uſeleſs
, Fruits of Induſtry. As for Civil Fruits we fee In-
fhould the Fruits of them accrue to others; and the ſtances of them in Uſury (6), Hire, Carriages, and
Common Peace of Mankind would be very little the like. 'Tis obſervable, that Fruits of the former
promoted, if other Perſons might challenge theſe kind, ſo long as they are not ſeparated from the
Improvements with the ſame Right and Title as thing whence they proceed, are look'd on as parts
-
Mr: Barbegrac's NOTES on Chap. 7:9 1:
(1) All that our Author means by this word Acceſfiones, or Acceſſions, n'ay be look'd upon as an Acceſſory, which follows the
Principal or Foundation of the thing. For to ſpeak with the Roman Lawġers; it ſignifies, Quæcunque aliis adjun&a, five adje&ta,
acceffionis loco cedunt, Digeft. i 6. tit 1. De rei vindic. leg. 23 9 5. In truth, as Mr. Titius obſerves, Obſerý. 297. Our Author
does not well to refer Additional Acquirements only to Primitive Acquirements. See s i of the foregoing Chapter. For is
appears by the Examples there treated of, that we often acquire by the Right of Acceſſory things belongiog to others. There
are alſo ſeveral ſorts of Acceſſories which interpofe without producing any Acquiſicion themſelves, and which only gain an
Opportunity of getting ſomething, either by the conſent of Parties, or by virtue of ſome poſitive Conſtitutions of Law.
Mr. Barbeyrac's NOTES on 2.
(1) This Rule is very uncertain and imperfect, and we may better put theſe two inſtead of it. 1. If the addition made to a
thing belonging to us proceed from the thing it felf, or from any act of our own, and if coming otherways it belongs to no body,
it is naturally our
Acquirement, or at leaft we can't be deprived of it upon the account of any other. II, But if the Thing or
Work which is added to our Poffeffion belongs wholly
or in part to another, it naturally follows, that there niuft be a kind of Com-
munity in relation to the whole between us and him, ſo that one of us muſt transfer his Right to the other, tho' this does nor of-
tea happen, for this Community ends, and conſequently the Additional Acquirement is then made, either by the mutual Agree-
ment of the Parties, or by the Settlement of ſome poſitive Law, which ends the Difference according to the nature of the Cir-
cumftances and Maxims of Equity, Titius's Obſerv. 298. See alſo his Obſervations in Compend. Lauterbach, Obferv. 1018.
and his
Jus Privatum Romano-German. printed in 1709. 1.3 6.5 525, GC.
Mr. Barbeyrac's NOTES on $ 3.
The Roman Lawyers underſtand by Fruits, what remains over and above any recent Ads of Deeds
. So they fáy, Pruétus
dedu&tis expenſis, que querendorum, cogendorum, conſervandorumque eorum gratia fiunt, Digeft
. I. S tit. 3. De bereditatis
petitione, leg. 36 $ 5. See alſo Cod. 1. 7. cit. 51. de fru&tibus, &c. leg. i.
(2) This Author obſerves here, that that which is brought forth by a Beaſt, has á particular Name given it, viz. the Fietus,
but this is done only in Latin, and we likewiſe (as every one knows uſe the ſame word, Fetus, in ſpeaking of Plants. I may
add alſo that the word, Fruftus
, is ſometimes attributed to young Beafts, as Mr. Noodt ſhews us in his obſervations, 1. 1 c. 10 p. 55.
(3) Or Legitimi, which can't be well e xpreſs’d in French, but imports, that they ariſe from a Right founded on the Law.
(4) As for example, Food, Fruits of Trees that grow wild, Underwoods, the Oar of Mines, and Stones of Quarries.
So according to the Roman Lawyers, Fruits
hanging on the Boughs, which are not yet gathered or faln, bùe joyn’d with
the Tree, are part of the Ground, frutas pendentes
pars fündi videntur, Digeit. 1.6. tic. . De rei vindic, leg. 44
of
vom
intelliguntur

182
Of Additional Acquirements.
Book IV
>
c Deir fix'd
of it; but when ſeparated (7), they are confiderd that they ſhall have taken Root; they belonging
as diſtinct Beings : But both kinds agree in this; till then to their firſt Owner (2). Yet Grotius (6)
That they belong to him who is Maſter of the thing is of opinion, That this Appointment proceeds only
from which they flow.
from Poſitive, and not from Natural Law; ſince the
IV. As for the Breed of Animals (1), it hath been nouriſhment of a thing already exiſtent being no more
generally determin’d, That they hould follow the than a part of that thing, the Lord of the Soil can
Venter (2), and ſo ſhould belong to the Owner of only pretend to a part in the Right over it; which sla-
the Female, not of the Male; not only for this Rea- turally ſpeaking, cannot take away the Right of him
fon, becauſe the Male is for the moſt part unknown, who own'd the Seed, the Plant, or the Tree: And there-
but likewiſe, becauſe the Young was once a part fore in this caſe the thing muſt be held in common by
of the Female, as it never was of the Male; and them both. But notwithſtanding what is thus ob-
becauſe what the former contributes to the Birth, is jected, the Roman Laws in giving the
former Judg.
much more conſiderable, than what proceeds from ment, went on very good Reaſon. For they did
the Latter, though we ſhould allow them to be er not hereby defign that the owner of the Seed, the
qual, when look'd on barely as Natural Cauſes : For Plant, or the Tree, provided he acted with honeft
the Queſtion here is not whether
the exiſtence of the Intention, ſhould ſuffer an utter loſs; nor do they
Cálf is to be aſcribd more to the Cow, or to the forbid but that the two Proprietors may, if they
Bull
, but whether the Calf belongs rather to the pleaſe, hold the thing henceforth in common, at-
Proprietor of one than of the other. Now the Male cording as the Uſe and Benefit of the Ground on
is obliged to little Trouble, ſo that his Service in the one ſide, and the Worth and Excellency of the
reſpect
Owner : But the Female whilft ſhe carries her Bur- Proportions. But becauſe they would compel no
then, is almoſt uſeleſs to all other Purpoſes, and be- Man to hold on in a common Poffeffion againſt his
fides requires, at this time, more than ordinary Will, and becauſe ſuch things as theſe are incapa-
Care and Charge in the keeping: Therefore, at leaſt
, ble of Diviſion, therefore they take the Queſtion to
the Owner of the Male carinot pretend to fo much be, Whether it will not be more equitable to aſſign the
Merit as the Owner of the Female. Eſpecially, whole thing to one of the two Proprietors, with this
ſince one Sire is fufficient for a great number of Burthen, That he ſhall be oblig'd to pay the other
Breeders. Yet in caſe a Man keeps Males purely the value of what he receives from him? Now here
,
for this Uſe, 'tis but juſt he ſhould receive ſome ſince it happens moſt frequently, that the things
Confideration from others who ſhall deſire to employ we ſpeak of being cloſely knit and faſten’d to the
them (a).
Earth about them (3), cannot conveniently be trant-
V. It is likewiſe a common Rule (1), that things planted, or be any way preſerv'd out of their Place,
planted or ſown ſhall go with the Soil; becauſe they it was thought fit to ordain in general, that things
are not only nouriſh'd by it, but growing into a ſet or fown Ihould go with the Soil; yet fo, as that
moſt ſtriet Union, are made, as it were, parts of the the Lord of the Soil ſhall ſatisfie the other Party
fame Body. For which Reafon it is farther required, for his Seed, or his Plant, in caſe he acted like an
LIO 9122
_
(7) So the Civil Law, Prediorum, urbanorum penſione s, pro fru&tibus accipiuntur, Digeft. 1. 22. tit. 1. De ufuris & fru&tibus, &c.
leg. 36. Oper a quoque fervorum in eadem erunt caufa, qua funt penſiones. item ve&turæ navium & jumentorum, 1. 5. tic. 3. De bæredit.
petit, leg. 29. $ 31, 32.. oldavia oli
Mr. Barbeyrac's NOTES on 6 4.
(1) The Roman Lawyers do not reckon the Children of Slaves among Fruits, becauſe, according to the Principles of the Sto:
icks, it is abfurd to look upon-an Humane Creature as a Fruit, for whoſe uſe Nature has allotted all other Fruits which it pro-
duceth. In pecudum fru&u etiam fætus eſt, ficut lac, pilus & lana. Partus vero ancillæ in fruétu non eft abſurdum enim videbatur
hominem in fru&tu effe, cum omnes fru&tus rerum natura gratia hominis comparaverit, Inſtit. l. 2. tit. 1. De rerum divif. &c. S 37. See
c. 8. 8 7. following 'Others ſay, 'tis only becauſe a Female Slave is ordinarily bought to do the Service ſhe is able, and not bring
Children into the world. Quia non temere ancilla ejus rei cauſa comparantur, ut pariant, Digeſt, l. 5. t. 3. De hæredit. petit. leg. 27.
in init. See alſo Vinnius upon chat part of the Inſtitutes, which we have cited a little above.
(2) So the Law appoints, Si equam meam equus tuus prægnantem fecerit, non esſe tuum ſed ineum, quod natum eſt, Digeſt. 1.6 t.l.
De rei vindic. leg. 5 5 2. See the ſame Title in the code, leg; 7como
TOUS Bangi som zob
pida yok Mr. Barbeyrac's NOTES on S 5.
14 (1) The Roman Law is, Si Titius alienam plant am in folo fuo pofuerit, ipſius erit, & ex diverso ſi Titius ſuam plantam in Mevil
solo pofuerit, Mevii planta erit. Si modo utroque cafu radices egerit, ante enim quam radices egerit, ejus permanet, cujus erat
Qua ratione autem planta, que terre coaleſcunt, Solo cedunt, eadem ratione frumenta quoque, qua ſunt ſata, ſolo cedere intelliguntur,
Inſtie 1. 2. tit. 1. $ 31, 32. As for a Tree whoſe Roots ſpread into our Neighbours field. See Hieron. Magius Miſcell.4.7. And
Mr. Titius on Lauterbach. Obſerv. 1020, as alſo a curious Diſcourſe of Mr. Thomaſius’s, De Protio affe&tionis in res
dente, c. 3. S 63. This laſt from $ 38 to the end of the Chapter, endeavours to ſhew that the Roman Lawyers are very confus'd
in determining the Caſes, which preſented themſelves about this Matter, becauſe they have argued upon fubtle Principles, sa-
ther than by an accentive Conſideration of the nature and uſage of things, or upon thác plain Rule which Mr. Thomaſius lays
down, viz. That we ought to content our felves with an Equivalent in ſuch things as are capable of re-placing (res fungibiles)
and that they ought not to be prized in this caſe, as is done to him to whom they belong, for ſome particular Love to them.
(2) The Roman Lawyers add this Reſtriction about Trees and Plants
, as appears from the place of the Inſtitutes, which I have
quored in the foregoing Note, and better by this Law of the Code, si quis ſciens alienum agrum Jevit, vel plantas impoſuit, poft:
quam hæ radicibus terram fuerint amplexa, Solo cedere rationis eſt, 1. 3. cit. 32. De rei vindic. leg. 1. And indeed, the means of
gathering the Grain which was once fown. The Law, which Vinnius quotes, Digeft
. I. 22. tit. 1. De ufuris, &c.' is of no worth
DOMINO
(3) Mr. Thomaſius in the Diſcourſe before quoted, Tays, that theſe fort of things are of that nature, that they may be reſtor’d
either by other things of the ſame kind, or their value may be given in Money. There are but few people but will be conten.
ted to recover them in that manner, and it rarely happens, that there is any particular Reaſon tvhich may make Men to infift
upon recovering what is planted or ſown in the ſame kind. We muſt add this Confideration to thoſe of our Author.
(a) Add ziegler ad Grot. l. 2 6.8 . 18.& Felden, ibid(6) Lib. 2 c. 8 ſ. 28. ! Hope
fungibiles non ca.
here.
OW and bis
honeſt

CHAP. VI.
Of Occupancy. i 10
183
brorum, poffe eum per exceptionem doli mali repelli, utique ſi bona fidei profeſor fuerit qui ædificavit.
Dominio, leg. 7. $ 10, 11, 12
honeſt Man (4). Yet if a Perſon fows my Field be allow?d the privilege of ſeizing them for my
with a meaner Grain, when I deſigi'd it for one own Service. And though this is forbidden by the
more generous, here I don't ſeem obligd ſo much as Law of the Twelve Tables; yet they relieve the
to pay him for the Seed; it being really a damage Owner of the Materials another way, by granting
to me, that my Ground is like to afford ſo ignoble him an Action for double their Value (2). In Cafe
a Crop. But ſhould the Plants admit of being a Man builds with his own
removed, eſpecially if they be more in value thay Ground, if he knew what he did (3), it ſeems hard-
the uſe of the Soil amounts to, it would, no doubt, ly poſſible but that he muſt have had a diſhoneſt De
be equitable that the owner of the Plants ſhould be fign, and it being preſum'd that he purpoſed to
allow'd to take them away, only paying the other ſteal the Ground, the Owner of it doth not ſeem ob
for the uſe of his Ground. On which Point the Law ligd to pay the Price of the Materials, or the Hire
of Solon is remarkable; He commanded (ſays Plu- of the Workmen; or to permit the other Party to
tarch, in Sol. p. gi. Ed. Wech.) that every Perſon who pull downl, and carry off® what he brought thither
.
planted the common kinds of Trees in bis own. Ground, (a) If there was no Knavery in the Deſign, and the
ſhould ſet them at five Foot diſtunce from bis Neigh. Building cannot be removed without being utterly
bours. But that he who ſet a Fig-Tree, or an Olive-Tree, demoliſh'd, the Roman Laws Enact, (4) That it
should enlarge the diſtance to Nine-Feet; becauſe theſe ſhall go along with the Soil; yet ſo, as that in caſe the
not only caſi a longer Root, but are very miſchievous Builder be in Adual Poleſion, the Lord of the Soil
when they ftand too near fume others; cither by draw-) ſhall pay the Price of the Materials
, and the Expence
ing away the Nouriſhment from them, or by ſending out of the Work (b). For though the Pile which is
a Steam offenſive and hurtful to them."
raiſed be for the moſt part of greater Value than the
VI. Moſt of what hath been here offer'd may like- Soil and Surface on which it Itands, yet they judg’d
wife be applied to the Caſe of Buildings, rajfed ei- it inconvenient, that an immovable thing ihould
ther on the Ground, or out of the Materials of o- cleave as an Appendage to another, which, at leaſt,
ther Men. Indeed if the Structure be Movable, if taken to Pieces, is Movable. Yet ſtill, if the
'tis certain the Lord of the Soil can claim no Right Owner of the Ground can conveniently be without
to it (1); provided it be removed, and ſatisfaction the Spot on which the Building is erected, and can-
made him to the value of what his Ground ſuffer'd not fo well purchaſe the Building it felf, it ſeems
by it. If another builds a Houſe with my Mate- moſt reaſonable that upon receiving the worth of
rials
, it is commonly beſt for me to receive the Va- his Ground, he ſhould leave the Building to be en-
lue rather than the things themſelves; ſince what is joyed by the other (c).
thus fitted to one Building, will not ſerve again for VII. But when the Roman Lawyers extend this
the like Uſe. But if the Materials are not preju- Rule, That things built and fown hall go with the Soil
diced by being thus applied, and I have occaſion for to Papers and Parchments, we cannot fubſcribe to
them, and cannot conveniently furniſh my ſelf with their Opinion (1). As if when I with a good and
other of the fame kind, then I ought in Equity to
honeft
(4) We muft here obferve this. For if there was a knavilh deſign in him who planted or lowed, I mean, if he knew that
the Land did nor belong to him, he deſerves to looſe both his Labour and Goods, becauſe he has mixed them with the other.
Without chis every Man would be expos'd co ſee his Land ſown or planted with Trees by ſome other, who would leave it, be-
caufe he can't enjoy it himſelf. See the Law of the Code cited above, Note 2. and Inſtit. 1. 2. tit. 1. $ 32. We ſhall add a Re-
mark niade by Thomaſius, Inſtit. Juriſprud. Divin. l. 2. c. 10. $ 227. which is this, when a perſon with a good deſign ſows ano-
ther Man's Field, if there happens a great dearneſs of Corn, Equity obligech che Maſter of the Soil to permit the perſon who
Towed it, to take the Crop, and be contented to accept of Satisfaction for the uſe of the Ground.
Mr. Barbeyrac's NOTE on § 6.
(1) This is determined in the Digeſts, 1. 41. tit. 1. De acquirend. rerum Dominio, leg. 60. Titius horreum frumentarium novum,
ex tabulis ligneis falfum, mobile in Seii prædio poſuit. Quæritur, uter borrei dominus fit? Reſpondit fecundum qua proponerentur, non
efle faltum Seii. See alſo 1. 6. tit. 1. De rei vindic. leg 38.
(2) This Action is call'd, a&tio de tigne junkto, underſtanding by tignum, all ſort of Materials for Building The Reaſon why
the 12 Tables fo order'd it,' was, to hinder, that a Building, which was a great Ornament to the city, ſhould not be demoliſh'a
ſoon after it was raiſed. Cum in (uo foto aliquis ex aliena materia edificaverit, ipſe intelligitur dominus edificii, quia omne quod ſolo
indificatur, ſolo cedit. Nec tamen ideo is, qui materie dominus fuerat, deſinit dominus ejus esse, ſed tantiſper neque
self, neque ad exhibendum de ea re agere propter legem 12 tabularum, qua cavetur, NE QUIS TIGNUM ALIENUM ÆDIBUS SUIS
JUNCTUM EXIMERE COGATUR, sed duplam pro eo præftet per aétionem, que vocatur de tigno jun&to appellatione autem tigni omnis
materia fignificatur,
ex qua edificia fiunt. Quod ideo provifum eft, ne edificia reſcindi necesse lit, Inſtit
. 1.2. tit. 1 $ 29. But if the
Building were pull'd down for any other Reafon, than he to whom the Materials appertained might recover, if he had nor als
ready received double Damages. Quod fi aliqua ex cauſa dirutum ſit ædificium, poterit materie dominus, fi non fuerit duplum jam
confecutus, tunc eam vindicare, & ad exhibendum de ea re agere. The Interpreters commonly think, and the fequel of the Dil-
courſe thews, that the Paragraph of the Inſtitutes that I have quored a part of, grants an A&ion for double Damages to the
Owner of the Materiais against the Proprietor
of the Ground, provided the other had an honeſt deſign in building, (i.e.) he
made uſe of the Materials, not knowing that the Materials beleng’d to another. See Arn. Vinnius upon this place. But Mr. Tho-
mafius in his Diſcourſe already quoted, De pretio affe&tionis, &c. c. 3. $ 59, &e, maintains,
That Trebonianus in compofing the
il! deſign with another's Materials, whence it comes, that in the Digeſts, the Title, De tigno jungo, 1. 47. tit. 3. is placed imme,
diately after that, De furtis. See also 7 an. Vincent. Gravina's
Orig
. Fur.Civil. 1. 2. P: 356, 357.
13) Ex diverſo, ſi quis in alieno-folo ex ſua materia domum edificaverit, illius fit domns, cujus & folum est, sed hoc caſu materia
dominus proprietatem ejus amittit, quia
voluntate ejus intelligitur esse alienata, utque ſi non ignorabat fe in alieno ſolo edificare, & ideo
licet dirut a fit domus, materiam tamen vindicare non poteft, inftit. 1. 2. tit. 1. '$ 30.
(4) Certe illud conjtát, ji in pellefione conſtituto ædificatore, ſoli dominus petat ſuam esse, nec folvat pretium materie do mercedes far
Nam ſcienti alienum folum effe,
(a) Lex Longobard. I. 1 dic. 27. Sect. 1. (b) Edi&t. Reg. Theodoric. c. 137. (c) Comp. 1.7.1. 10, 11, 12. D. de A. R. D.
Mr. Barbeyrac's NOTES on $ 7.
(1)Litere quoque licet aures fint, perinde chartis membraniſque cedunt, ac folo cedere folent ea quæ inædificantur, aut inferuntur, ideoq;
fin chartis
, membraniſte
tuis carmen, vel bifforiam vel orationem Titius fcripſerit
kujus corporis, non Titius, fed tu dominus efle vide'
TK, fed fi d' Tirio set
as tuos libros, tuafve membranas, nec
impensas feriptura
folvere paratus
Jis potuit Titius e defendeve per
exceptio-
I mean,

184 Of Additional Asquirements.
Book IV
.
think he
may be
cediquod fine ac 1. $
honeſt Intention have wrote ſoinewhat on another for a Raſcal that rubs his Bruſh upon my Walls, on
Man's Paper, I muſt be obligd iminediately to reſign that account to claim my Houle
. Nay farther
,
it to him, only receiving fome Conſideration for fince this Labour was perform’d purely for his owa
my Pains in writing. But rather, ſince commonly, Humour, he can hardly require to be paid for the
the Writing is of more worth than the Paper, 'tis Work, unleſs perchance the Owner of the Houſe be
much the faiſeft Method, that the other fhall reſt in ſo good Circumſtances, as that we
inay
fatisfyd with being paid for his Paper (2). Efpe- would willingly have put himſelf to ſuch an Ex-
cially, if we reflect on what ſome have added, not pence (a) (b).
without Reaſon; That Paper being uſed; doth, as it IX. The faine Lawyers declare (1), that Purple
were, die and perifh, and that therefore writing is applied to, or engraffed on another's Garment, thall
of a quite different Nature from Building. For the go with the Garment, however the former may ex-
true and proper Eſſence of Paper ſeems to remain ceed the value of the Latter. Now this
no longer than it continues clean and fair, capable underſtood two ways, either that a Perfon ſhall in
of admitting any Charactérissa When 'tis once fill'd, terweave among his owii viler Thread foine
Purple
it palleth in the Name of a Book, a Letter, a Roll, Yarn belonging to another (2), or that he ſhall fit
or the like. Therefore writing Paper, is in this re- another’s Purple Cloth to his own Garment. In the
ſpect, loft and dead to ime, that I have no longer former caſe there is ſcarce the leaſt doubt, but that
the power of committing to it what I pleaſe. And the Cloth thus made ought to be judg’d to the Owiler
hence
, if I do but receive the value of it
, I have of the Purple. For that without which another
no cauſe to complain, ſince I can furnith my felfthing cannot exiſt (3), and which is
, as it were,
with new, which will ſerve my Occaſions as well. the Natural Ground to ſupport and uphold it, is
VIII. They are more in the Right, when they de- not always to be look'd on as an Acceſion to that o-
termine (F), that the Table fhall go along with the ther thing (4); but we ought by all means to take
Piture (2); the latter being uſually off far greater the Value of each thing into the Account; ſo that
Value than the former ; and it being eaſiefor a Man if they are equal in all other Reſpecis, that which
to part with fo comiyon a thing, upon receiving its is more precious ſhall draw to it that which is lels.
Price. Yet this very reaſon thews, that in fome Indeed if we ſpeak of the Phyſical Concomitancy
caſes Equity will direct a contrary Deciſion. As fup, or Adherence of things, it is neceſſary that thing
poſe a Vulgår Dawber, whoſe Skill never carried ſhould go along with another which cannot be with
him beyond a Sign-poſt
, ſhould have laid his vile out the other ; or that the Adjunct ſhall follow the
Colouring upon ſome precious Wood, which we Subject. But in afligning the Property of things
,
ſhould gladly reſcue as ſoon as poſſible from the In, where we are chiefly to conſider the Price and the
jury it ſuffer’d: Or if ſome awkard Figures ſhould Uſe of them, and how eaſily a Perſon may bear the
be cut in Plates of Gold or Silver, or in Pearls and want of ſuch or ſuch a part of his Pofleffions ; this
Gems. As it would be an unparallel'd Impudence reaſon cannot always prevail.
nem doli mali, utiq; fi earum chartarum, membranarumve posesionem bona fide na&tus eſt, Inſtit. 1. 2. tit. 1. $ 33. See Note 22 upon
$ following. This place, ſays Mr. Daumat in his Civil Laws in their Natural Order, Part 1,4. 3. cit. 7. Sect. 2.915. ought to be
underſtood of ſome other Matter more precious than the Paper, or of a Writing that is not more worth than the matter on which
the Writing is, being uſed by the writer, as what is written upon waxed Tables, to be blotted out afterwards. But as for
writing upon ſuch Paper as
ſuch Paper as ours is, he ſays, that the owner of the Paper does not become the owner of the Writing, be it for
a
if Writings
the Abſurdity of the Deciſion of the Roman Lawyers, but the Misfortune is it has no Foundation. The Text is too clear to admitt
of a favourable Interpretation, and nothing can berter prove that the Notions which the Roman Lawyers have framed of what is
to be look'd upon as an Acceſſory, are falſe and very ill connected together, ſince they make a clear different Deciſion as to
Painting, although they be exactly the ſame. no
(2) Francis Hotman, and it comes to the Rule of Mr. Thomaſius ſpoken of before. See his Diſcourſe, De Pretio affe&tionis, &c.
C. 3. $ 65,
'$ 65, 66." And Vinnius upon the Paragraph of the Inſtitutes, which I have ſer down in the foregoing Nore.
Mr. Barbeyrac's NOTES on 8.is
(1) si quis in aliena tabula pinxerit nobis videtur melius ele tabulam pi&tura cedere
. Ridiculum eft enim pi&turam. Apellis vel
Parrhafii in acceſſionem viliſime tabule cedere, Inſtit. 1. 2. tit. 1. & 34. See Thomaſius's Diſcourſe, $ 67. and Mr. Titius's Jus Prie
vatum Romano-Gel man. I. 3. c. 5.5 55, doc.
(2) Moſt Lawyers pretend here, that as to what hath been fown or built in another's Ground, a good deſign is neceſſary co
give right to recover and preſerve the Canvaſs, paying the value of the Cloath to him to whom it belongs. And indeed, Juſtinian
or rather Tribonian tells us in $ 34. before
quoted, Viique si bona fidei poffe for fuit ille qui piłkuram impofuit. $ce
Vinnius above.
to The , which we
ally of a ſmall value, ſo that we can have little reaſon to ſuppoſe an ill deſign, and that it can happen very rarely, and when it
evidently appears, the Principle that liath produc'd it can never be fo ill, but he muſt ſee 1o much Worth as to deſerve a much
greater Value than can be'ong to him, and ſo not defire that the thing which it is incorporated with ſhould be returned to its
frue Owner. So that unleſs ſome extraordinary Circumſtance aggravate the fact, Equity, in my opinion, will engage every
Man to be content to recover the value of the Paper, the Canvas, or the Board, or at leaſt by preſerving the Picture or Wricing,
ſecure the Painter or Writer from loſing his labour, or depriving him of the things, which not being poflible to be reſtored,
would be abſolutely loſt as to him, with all that depends on it. for
Mr. Barbeyrac's NOTES on & 9.
(1) Si alienam purpuram veſtimento fuo quis intexuerit
, licet pretioſior fit purpura, tamen acceſfionis vice cedit veſtimento, "ib. $ 26.
2) The Roman Law does not relate here the Caſe of Specificacion, of which our Author ſpeaks in the following Paragraph.
But in both Caſes we may lay with Mr. Thomaſius, that it ought to be indifferent to the owner of the Purple, whether he re-
ſtore the wool, or Cloath in kind, or gives him another like it, of the fame Nature, and fame Price. So that it is juft, that he
content himſelf with this Equivalent, knowing, chat the other has acted with an honeſt intention.
(3) The Text ſpeaks the contrary exprelly, ſaying, That without which another can't exiſt, and which ſupports it, as we
may fay phyſically. The Author here through inadvertence has confounded the Principal with the Acceſſory. TEATRO
(4) As the Roman Lawyers affirm, ſaying," In omnibus igitur iftis, in quibus mea res per prevalentiam, alienam rem trahit, meum.
que eficit
, fi eam rem vindicem, &c. Digeft. 1. 6. tit. 1. De rei vindic. leg. 23. & 4. There went before immediately, sed necelse
$ 3.
(a) Lib. 38. D. de rei vindic.
(6) Vid. lib. 6. tit. 1. D. de rei vindica
11 1911s noot
non

CHAP. VII.
185
Of Additional Acquirements.
As for what Grotius (a) affirms in this matter, then the Qụeſtion lies, Whether 'tis now to be ad-
That for the greater part to ſwallow up the leſs, is na- judged to the Owner of the Matter, or to the Au-
tural only in Fatt, not in Right; we allow it under thor of the Form? On which point the old Maſters
the following Senſe. In Fact what is ſtronger may of the Roman Law being divided (2), at length they
draw to it ſelf what is weaker ; but 'tis not always came to this middle Reſolution ; That if the Form
Rightful or Juft
, that a ſtrong Man ſhould carry off could be reduc'd to the firſt Rude Maſs, then the
the Goods of his weaker Neighbours; or that a Per- thing ſhould go to the Owner of the Matter ; if
fon ſhould loſe a thing of his own which is leſs, if not, to him who gave it the new Shape and Figure.
it happpen to be join'd with ſomewhat of another’s Some have thought this Diſtinction to be founded
which is greater. For he who hath but the twen on moft evident Reafon; Becauſe, ſay they, when
tieth part in a Field, is as much a Lord and Pro- the Shape cannot be thus un-made, the thing ſeems to
prietor, as he who hath the other Nineteen. But in hare utterly periſhed, and ſome new being to have riſen
deed the Queſtion we are now upon is not ſtrictly, in its place : Wherefore it ought, in this Caſe, to be
whether he who hath the greater part in a thing, adjudged to him who cauſed it to exiſt under this new
ought on that Score to gain the lefs; but what Ex- Form
: Whereas, when the Figure may be reduced to
pedient may be found out to decide the Buſineſs, in the firſt Lump, then the thing is ſuppos'd fill to exift,
caſe two Perſons happen to be Joint Proprietors of a and not to have periſh'd at the arrival of the
new Form,
thing, which they are unable or unwilling to hold and conſequently not to have chang’d its Owner. O.
in Common, or to divide. Now here certainly the thers, on the contrary, are of Opinion, That the
entire thing ought to be adjudg’d to one of the Par- whole Buſineſs turns on this Iſſue, which of the Two,
ties, upon Condition that he ſatisfie the other to the Matter or the Form, is higheſt in Value (b) (3).
the value of his Share. And which of the two In our Judgment, neither of theſe Determinations
Perſons ought, in this caſe, to carry the whole thing, can with Equity be apply'd to all Cafes ; but the o-
is to be determin’d from the Price and Excellency of ther particular Circumſtances ought likewiſe to come
one Share above the other, and from conſidering under Conſideration and Regard. Thus ſuppoſe a
which of the Men is in the greateſt want of that Man hath made Wine, Oil, or Bread out of my
for which they conteſt. Thus ſuppoſe a Man to Grapes, Olives and Corn, or hath taken my Honey
have us’d my Purple in a Garment for himſelf, tho' and Wine to mix in a Compound Liquor, why ſhould
poſſibly the Purple be of much the greater Value, he have a Right to the Forms thus produced rather
yet 'twill be my beſt way to leave him his Gar- than I, only becauſe they cannot be reſtor’d to their
ment ſafe and whole, upon receiving Satisfaction: Original Matter? Therefore, if the things of which
For ſhould the Garment be taken to Pieces, the o we are ſpeaking, will admit of Diviſion, they ought
ther Party muſt needs be endamaged; and where's to be parted according to the Value of the Matter,
my Advantage in receiving my Cloth when reduced or the Labour in working out the Form. Yet in caſe
to Rags? And as for the whole Garment, this be- the Owner of the Matter hath Occaſion to enjoy
ing already fitted to the Body of another, is com- the thing entire, we think that his Claim ought on
monly diſproportion’d and unſerviceable for mine. all Accounts to be preferr'd to that of the Faſhioner.
So indeed in all the Compaſs of this Subject, it is Thus, if a Man caſts or ſhapes a Work out of ano-
more eaſie to judge what's fit and equitable from the ther's Metal, where the Form is much more precious
Conſideration of particular Caſes, than from any than the Matter, 'tis but fair that however capable
general Deciſion.
the thing is of being brought back to its Principles,
X. As for Specification (1), or the turning a thing yet it ſhould be left in the PoſſeMion of the Faſhio-
into fuch a Forin or Shape, we are firſt of all to ner; provided he either reſtore the like Metal in
obſerve, that it cannot ftrictly and properly be Quantity and Kind, or pay the juſt Value of it.
ranked amongſt the Originary ways of Acquiſition: But a contrary Deciſion ſeems moſt reaſonable, if I
For ſince in the Courſe of Nature nothing can be had deſign d that Metal for the very fame Work, of
made but out of fome Matter before exiſting, we which I ſtand in great Neceflity, and cannot pro-
ought to enquire whoſe that Matter is. If it were cure new Metal for that Purpoſe. For here Equity
our own, then upon the introducing of a new Shape, will favour the Owner of the Matter, though the
our Dominion ſtill continues. If it were no Body's, Forin or Make ſhould, perchance, far excel in
then we ſhould obtain the Dominion of it by the Value.
preſent Act of Occupancy. But if it were another's,
ܪ
ut ecce
Mr. Barbeyrac's NOTES on § 10.
(1) Mr. De Courtin (in his Indic.) defines Specification to be the Introduction of a new Form in a Matter belonging to another.
(2) The Words are, Quum ex aliena materia
ſpecies aliqua fa&ta fit ab aliquo queri folet, quis eorum naturali ratione Dominus fit ?
our rudem materiam reduci poffit, eum videri
dominum esse
, qui materie
Dominus fuerit
, fi non poffit reduci, eum potius intelligi dominum
,
rum ad uvas, vel olivas, vel fpicas reverti non poteft, ac ne mulsum quidem ad vinum vel mel' reſolvi potest.' Quod si partim ex fua
materia, partim ex aliena ſpeciem aliquam fecerit quis, veluti ex ſuo vino G melle alieno muljum miſcuerit, aut ex suis & alienis me-
disamentis emplaftrum
aut collyrium, aut ex fua lana do aliena veſtimentum fecerit, dubitandum non eft, hoc caſu eum esse dominum
qui fecerit, cum non folum operam ſuam dederit, ſed & partem ejuſdem materie præftiterit.
(3) The moſt plain and general Rule which can be given here, is Mr. Thomafius's before-mentioned, according to which
the whole, or the work which ariſeth from two things
belonging to two Perlons
, uſually appertains to him that brought it in-
10 a new Form, becauſe Matter for the moſt part is of that Nature, thac it may be reſtored either in itſelf, or by ies value in
Money. But if the Matter be fomething produced by Labour, for which we have ſome particular reaſon to prize it above its juft
tehted with another Cup of like Weight, or with the value of it. For if he ſhould give him the Bafon, or make it again into a
Cup of the ſame Form, it will not nevertheleſs be the ſame Cup which the Prince gave him. The fumm of all is this, if he that
turned the Cup into a Bafon, knew that the Cup was another Man's, the true Owner may make him pay for the Cup according
to his privace Eſtimation. See the Diſcourſe, De Pretio affeaionis, &c. c. 3. S 43, doc.
(6) Vid. Connan. Comm. Jur. Civ. 1. 3. c. 6.
+ A a
Others
(4) Di&, loc. $ 21.

186
Of Additional Acquirements.
Book IV.
;
- Others conceive, that in the caſe before us, we muſt determine which Party fall reſign the whole to
ought farther to enquire, whether the Power which the other upon receiving the Value of his Share (a).
the Matter had to receive a particular Form was it is ſtill in all caſes to be enquired, Whether the
near or remote: If the former, they think the Owner Perſon who beſtows a Shape on another's Matter
,
of the Matter ought to be preferr’d; if the latter, doth it with an Honeſt or with a Diſhoneft De
the Faſhioner. 1 For Inſtance, That if a Ship be thus fign? For he who ads thus out of a Knavifh Prin-
made out of the rough Wood belonging to another, çiple
, can by no meanis pretend that the thing be
then it ſhall go to the Builder; but it the Timber longs to him rather than to the Owner of the Mat
were before fitted and prepared for the building a ter, though all the former Reafons ſhould concur
Ship, then the Ship íhall go to him who own’d the that is, though the Figure ſhould be moſt Valua.
Timber. That, it a Man works iny Wool into a ble, though the Matter ſhould, as it were, be loff
Garment for hiinſelf, he fliall keep it when he hath and fwallow'd up in the Work, and though he ſhould
done; but if he cuts a Coat out of my Cloth, I have be in very great want of what he had thus compact-
a Right to challenge the Coat, and to refuſe any ed. For the greater part of the two doth not draw
Equivalent : That, a Medicinal Compoſition, if the toit ſelf the leſs, barely by its own Virtue, or on
Ingredients were before perfected and prepared, its own Account; but there is required farther fome
fhall go to the Owner of thoſe Ingredients-, if not
, probable Ground and Plea in the Owner of that part
to the Author of the Compoſition. But neither will which exceeds, on which he may build his Claim,
this Diſtinction alone be always agreeable to the Hence, if a Man out of wilful and deſign’d Fraud,
Rule of Equity: For if I hold any ſuch Matter in puts a new Shape on iny Matter, that he may by
my Poffeffion, whether rude and unwrought, or whe- this means rob me ot it, he neither gains any Right
ther fitted or diſpoſed to receive a Form, which I over the Matter by this Act, nor can demand of
either keep for ſale, or elſe have in ſuch abundance me a Reward for his Labour, any inore than a Thief
as to be ſtill furniſh'd for my own Occaſions, there's who digs through my Walls can deſire to be paid
no reaſon why I ſhould not leave ſuch a thing to for his great Trouble in making a new Door into my
the Faſhioner of it, upon his refunding the Price Houſe, or than one can deſire a Fee, who breaks
of the faid Matter. But if I have deſign’d any an Impoſthume otherwiſe Incurable, with a Blow
quantity of Matter to my own particular Ufe
, and that he deſign d for my Death; or than Autolycus
have no Convenience of procuring the like, then could have ask'd a price for painting the Hurſes he
the want which I am in, turns the Favour of my firſt Stole. And all this doth not proceed from any
Sentence on my ſide, though perhaps the Matter was poſitive Conftitutions, but from the very Dictate
only in potentia remota, had only a diſtant Capaci- and Appointment of Natural Reaſon (e), though
ty, not an immediate Fitneſs for this Work (a). Nature doth not determine any particular Penalty
Nay, though a Man ihould frame a thing partly out in the Caſe. For to have exercis d ſuch a Villany
of his own Matter, and partly out of another's
, yet Gratis, is not properly a Puniſhment : And on the
even this doth not in all caſes make it indubitably other had, 'tis moſt juſt and reaſonable that I ſhould
certain, that the thing ought to be aſſign’d to him not be oblig'd to pay a Man Wages for endeavour-
that made it, on this Reaſon ; becauſe the Shape ing to do me a Miſchief.
and Figure is not only owing to his Pains, but he
likewiſe contributed part of the Matter : For, it IX. What the Ancient and Modern Lawyers
may be, his Pains were of little worth, and likewiſe have fo laboriouſly deliver'd concerning Increment
his part of the Matter inconfiderable, ſo that the by Rivers, depends for the moſt part, not ſo much
Matter belonging to the other Perſon exceeds both on any conſtant and natural Reaſon, as on the po-
And again, there are ſome things which take up a fitive Ordinances of particular Nations: And there
certain quantity of Matter ; ſo that in any degree fore we inay be allow'd to uſe more Brevitiy
to leſſeni ito renders it unſerviceable, if not abfo- this Subject.
lutely, yet however to that particular Deſign. In The Two Chief Enquiries made in the Cafe be-
this cafe Judgment is to be given for him who ftands fore us are, Firſt, Whether the Rivers by thus ſecret-
moft in need of the thing thus framed.
ly forſaking their Banks, do add to the Dominion of
As for what remains, Grotius's Allertion (b) is whole Territories? And, Secondly, Whether they im.
univerſally true, That ſince things conſiſt of Matter prove in the like manner, private Eſtates?
and Form, as their conſtituent Parts, if the Matter The former Queſtion is of greater Moment, in as
belong to one, and the Form to another, there natural- much as it may often prove the Occaſion of great
ly follows a Community to each, according to their re- Controverfies between Nations ; it being uſual for
Jpective Proportions (4): Just as a whole Body compo- Rivers to lie as the common Boundaries of different
Jed by the mixture of two Parcels of Matter of the States. Now when fuch a River hath any way al-
Jame kind, is common to the two Owners (c). But ter'd its Courſe, the Point in diſpute is, whether the
when a thing can neither conveniently be held in com- Limits of the Seigniories are likewiſe chang’d, and
mon, nor divided, then either poſitive Laws or Equity whether the Additional Land goes to them whoſe Banks
ging istoto
101
(4) The Latinis, Si duorum materie ex voluntate dominorum confusa fint, totum id corpus, quod ex confufione fit, utriuſque commk.
ne est, veluti fi qui vinę ſua confuderint, aut maſſas argenti vel auri conflaverint, sed & li diverſe materie fint, ob id propria
ſpecies falta fit, forte ex vino & melle muljum, aut ex auro & argento ele&rum, idem juris est, nam & hoc cafu communem eſe specia
em, non dubitatur. Quid fi fortuitu, & non ex voluntate dominorum confufa fuerint, vel ejusdem generis materia, vel diverſe, idem
juris effe placuit.
(a) Vid. 1. 6 tit
. 1 & 1. 61 D. de rei vindic. (6) Diet. loc. f. 19.
(c) Ibid. I. 27. vid. I. 6 tit, i leg. 3. f. 2 & leg. 5. Digo
de rei vindic. (d) Vid. 1. 6 t. I l. 23. 1. 2, 3. D. de rei vindic. 1(e) Add Leg. Wifigoth. l. 10 t. I c. 7.

CHAP. VII.
187
Of Additional Acquirements.
it augments
which is diſtributed by the Order of the Prince, to every one a certain number of Acres compaſſed abou certain Exrent by Mea.
3
wich
priuiiferent
? Here we are firſt of all to ſuppoſe a do not, as it were, make a cominoni Cuſtom of
Diſtinction between ſuch States as are limited (1), drowning its · Banks, and of cutting it felf out a
or encompaſs”d with Artificial Bounds, (with which new Channel every year. When therefore two
we may reckon thoſe that are parcell'd out by Neighbouring Nations poſſeſs Lands thus bounded
Meaſure
, as by the number of Acres, being as to by Nature
, (which in a doubtful Cafe is always
the preſent Buſineſs the ſame) and arcifinian, ſuch as preſumed) the River by gradually changing its
are naturally fenced againſt Invaders
, with the Current, changeth likewiſe the Limits of the Do-
Boundaries of Rivers and Mountains. After this minions, and whatever Addition it makes to either
we are to enquire, Whether the Neighbouring Peo- fide, belongs to thoſe on whoſe Banks it falls, pro-
ple of the two oppoſite States left the River be- vided that this (2) Alteration be made by finall de-
tween them void of particular Doininion, and com- grees, and that the River do not at one ſudden
mon to the uſe of both ; or whether they agreed to Rupture forfake its Channel, and force a new way.
fix their reſpective Limits in the midſt of it, ſo For the gaining or loſing of inſenſible Parts, or any
that half ſhould belong to one People, and half to ſuch Change as entirely leaves the old Shape and
the other? And, Laſtly, "Tis to be conſider’d, When Figure, ſuffers a thing to remain in all Appear-
ther the whole River belongs to one People, fo ance (3) the ſame as it was.
was. And the Conveni-
that the Limits of their Dominions reach to the ency of a Natural Boundary is too great to be
Bank of their Neighbours? If then both the States ſlighted and forſaken upon a ſmall Damage. But
are bounded in the manner firſt deſcribed by Arti- if a River, deſerting the Channel it once fillid,
ficial Encloſures or by Meaſure, which immedi- ſhall have broke up another Paſſage for its whole
ately touch each other, without any void ſpace Current ; and the People through whoſe Lands it
between, tho' the River ſhould change its Courſe, now runs, do not think the advantage of a Natu-
the Territories will remain of the fame extent: ral Boundary to be of ſo great Conſequence, as that
Nor can there here be any room for the Caſe before for the ſake of it they ſhould reſign ſo conſiderable a
us, fince whatever ſpace ſhould thus happen to be part of their Territory, then the Borders ihall con-
left, already belongs to one or to the other State. If tinue as before, in the middle of the forſaken Chan-
the River in the iniddle were left void and com- nel. For as a Stone is uſed for a Boundary, not on
mon, then the Ground added to the Bank or little the account of its Nature, but of its particular Po-
take them into Poſſeſſion : Yet 'tis moſt convenient Countries, not in its vulgar Notion, as 'tis a Bulk
that both the former and the latter ſhould be occupied of Water gather'd from certain Fountains and Ri-
by that People to whoſe Banks they are moſt nearly vulets, and from other Streams of note and ſize,
ſeated. If the whole River belong to a ſingle State, the and then diſtinguiſh'd by a particular Name; but
Illets riſing in it ſhall belong to the ſame State on as it runs in ſuch a Channel, and hath fuch Banks
ly; but as for what is gotten from the River by the to encompaſs and confine it (a).
oppoſite Banks, it ſeems moſt reaſonable that it XII. As to the Lands of private Perſons in this
ſhould belong entirely to the other People. But it moſt Cafe, we are of Opinion it ought firſt to be confi-
commonly happens, as 'tis moſt agreeable, that the der'd, whether the River on which ſuch a particu-
Lands reaching to the Stream on each ſide, are lar Eſtate happens to lie, divides the Territoties of
ſuppos’d to be fenced only with theſe Natural two diſtinct Governments, or whether it only paf-
Bounds ; and that conſequently the end of each Do- feth through the Dominions of one : And then, whe-
minion is to be conceiv'd in the midſt of the Chan. ther the River be publick or private. In the for-
nel: For here the Water, as it plainly ſeparates mer Cafe it depends abſolutely on the pleaſure of
and diſtinguiſheth the reſpective Lordſhips, fo it the Government, either to leave ſuch Increments
affords to each County a kind of Natural Bulwark. in private Hands, or to challenge them for the
Yet ſtill it is requiſite in this Caſe, that the River common (1). For at firſt it generally happen'd,
that
in leo trociv om scott
1 ΤΟΥ
She work of Mr. Barbeyrac's NOTES on § 11.
(1) Grotius, from whom our Author took this diſtin&ion, had not read carefully cnough the Ancient Writers, who treated
upon the Bounds of Lands, which is the cauſe that he has miſtaken their ſenſe. They call that (ager limitatus) Land bounded,
, whence
it is that they are called Lands divided and appropriated. We underſtand by Lands concained within a
.
fure (ager menfura comprehenſus) a ſpace of Ground meaſured into Acres, of which a certain number are given to Men in general,
withouc affigning any particular
part, which from hence is called, (ager affignatus per univerſitatem.) Laſtly, arcifinious Lands
of thoſe which never were meaſured, (Ager eſt arcifinius, qui nulla menſura continetur, ſays Frontinus, dere agraria, c. 1.) and of
which the firſt Occupyer
appropriates to himſelf as much as he pleafeth, and he can Till
, from whence they are named agri oc-
cupatorii. Theſe laſt have not always natural Bounds, and every one fixes them as he pleaferh, viz. an Hedge, Rail, Ditch, &c.
Thus Gronovius the Father Con Grotius, 1, 2.c.3. $ 16.) delivers himſelf
in general, and he is a fufficient Judge'in
thefe Matters ;
Study of the Law of Nature, and Matters of good Reafoning in general
, than
to Grammatical Niceties and
Criticiſm, as Mr. Le
Clere obſerves in his Biblioth. Chois. Tom. 4. p. 266. Bur cho' our Author has made a Miſtake here by following Grotius incon-
fiderately, yet the faule had not been
great, if he had otherwiſe reaſoned well from this diſtinction taken in the fenſe he gives it.
(3). Hence it is that the Roman Lawyers take it for certain, Eft autein alluvio incrementum latens per alluvionem autem id vide-
Tur adjici, quod ita paulatim adjicitur, ut intelligi nori poſſit
, quantum quoquo temporis momento adjiciatur, Inſtic. 1. 2. c. 1. $ 20. Sec
alſo, Digeft. 1.41. tit. 1. De acquir. rerum Dominio, leg. 7. $ 1.
(3) The Law is
, Quapropter cujus rei Species eadem confifteret, rem quoque eandem exiſtimari, Digeft. I. 5. tit. I. De Judiciis, 8Cc.
(4) Comp. Grot. I. 2. c. 3. f. 16. do ad eum loc. Bæcler. & Ziegler.
Mr. Barbeyrac's NOTES on $ 12.
Societies, were everyone in particular poffefied of Lands. He ailedges a Pallage in Cicero to this purpoſe, De ofic
. 1. 2. c. 21.
cie
. On the contrary, it is credible, as me. Hirtius obferves,
that for
the moff part ſuch as united themſelves together in Civil
ànhabited Country, did doubtiels deligt as much to secure themselves the peaceable Enjoyment of the Lands, which ſhould be
A a 2
afligoed
yet
DIAS
leg. 76.

188
BOOK IV.
Of Additional Acquirements.
On
that ſuch or ſuch a People ſeiz?d on this or that when the Water had carried them off.) But if it
Tract of Land by the Great, and afterwards par- hath ftuck long upon my Banks, and the Trees
ceļd out to each Man a particular Poffeffion in it
, which it brought with it have there taken Root
,
uſually contain’d under a certain and definite mea- from that tiine forward it ſhall be deem'd an acqui
fure. As therefore what remaind of the Territory ſition to my Eſtate. Whence 'tis clear, that the
after this Allotment to private Perſons
, was ſtill Owner of the loft
. Fragment ought to have brought
the publick Poffeflion of the State ; fo whatever it back again to its former place, before it was in-
happens to be added to any particular Share, is corporated with my Land, if he intend to reſune
likewiſe ſuppoſed to accrue to the Publick. Yet the Property of it. When 'tis uncertain what and
in as much as the adjoyning Fields frequently ſuf- how much hath been wafted from another's Soil, the
fer great Damages from the Rivers by Floods, and Sufferer is hereby hindered from putting in his
becauſe the Increinents we are ſpeaking of, advan- Claim to the Increment; which yet (according to
cing by flow degrees, ſeem to be of little Conſe. Natural Law) doth not accrue to him who owns
quence to the publick Revenue ; therefore many the Ground where it faftens, but to the People who
Governments have thought it a reaſonable Favour are Sovereigns of the River
. For 'tis in the higheſt
and Bounty to grant theſe Improvements to the manner agreeable to Reaſon, that not only the Wa.
Perſons on whoſe Lands they happen to fall. And ter of a common River, and the Things contained
there is the more Equity in this Conſtitution, in in it ſhould be publick, but likewiſe the Channel, and
caſe the reſpective Perſons were wont to keep up the Banks, and whatever Improvement either that or
the Banks at their own Charge. This Right is fre- theſe happen to gain. For it ſeems very improper
ſum d to accompany any piece of Land aſſign'd to to ſay, That the Channel, conſider'd in it felf, is a
a private perſon, not by any determinate meaſure, part of the adjacent Land, but that it is look’a
but in groſs; though perchance in the formal Deli- as Publick, ſo long as it's cover'd with the Publick
very of it ſome kind of meaſure might be ex- River ; which being once remov’d, it becomes pri-
preſs’d (a): And 'tis the ſame Cafe, when in allign. vate according to its primitive Nature: As if 'twas
ing the Bounds of any Land, the Neighbouring only a Burthen or Service laid on the Grounds of
River is mention d at large. But if this Increment particular Men, that they ſhould grant the River
be very conſiderable, and far exceeding the mea a Paſſage through them.
fure of the private Poffeffion, then it ſhall be ad If a River forſakes its Channel, or any part of
judg’d to belong to the Community. As for the it, and cuts out a new way, ſince the latter is ta-
Iſlets which ariſe, theſe no private Man can claim ken from the oppoſite Land, the former deſerted
to himſelf, without the expreſs Grant of the State; Channel ought in Equity to be adjudg’d to the
becauſe being plainly ſeparated from the particu. Owner of the Land which now ſuffers, to comfort
lar Demeſn, they can on no account be eſteem'd him for his Lofs : And in caſe the River forſake
a Part or Increment of it. And their being ſeated likewiſe this new Paffage, the Ground ſhall then
next to ſuch a PoffeNion, is no more an Argument return to the Ancient Proprietor, and not to thoſe
that they ought to paſs to the particular Proprietor who poſſeſs the Country about it. But whatever is
of it, than that any other Man ihould challenge a determin’d in thoſe Caſes, of the Increments left
part of a Street, or a Publick Place, only becauſe by the Current, and of the Alteration of Channels;
it lies juſt by his Door.
this, no doubt, is but juſt, that the Burthens which
If a River ſeparates the particular Lands of Per- before lay on any Ground, ſhould be leſſen’d in
ſons ſubject to o the fame State, then, ſince it can proportion to what it lofeth by ſuch an Accident.
add nothing on one ſide, but what it took from the Which Point, as (c) Herodotus informs us, was ſet-
other, 'tis by all ineans reaſonable, that the Incre. led amongſt the Ægyptians by a particular Law. I
ment ſhall go to him on whoſe Land the Damage It is not lefs equitable, that Land drown'd by a
is committed. Thus the Roman Laws (2) rightly Flood ſhould belong to the former Owner, either
ordain’d, That in caſe the Violence of the Current when the Water (4) is gone off without trouble,, by
adds a piece to my Land, which it hath torn from one violent outlet, or by ſlow degrees, or when
yours, it ſhall remain your Property as before. his Pains and Labour have cut out a Paſſage for it.
Which Judgment will more eſpecially hold good in But 'twill be ask'd, To whom fjall the new Bulk of
floating Lands, ſuch as Strabo (b) mentions in the Water belong, till Juch time as the Land by draining
Fens of Euphrates, built upon Hurdles of Reeds, ſhall be recover'd? Here we judge it neceſſary to en-
and moved with Boat-Poles into their former Seat, quire, Whether the drownd Land hath paſs'd inito
COM
aſſigned them, as thoſe that they were already pofſefled of by the Right of the firf Occupyer, if they ſhould unite with ſeveral
other Families to form the Body of a State. It does not nevertheleſs folow from hence, as Mr. Hirtius affirms, that the Righe
which a Subjeđt may have to appropriate ſuch things as he finds without an Owner, within the Bounds of the State, as the firſt
Occupyer, does not depend either upon the racit or expreſs Will of the Sovereign. After what manner foever the State is form'd
the whole Country belongs to all the Body, and ſo it follows, that the Laws of Union extend ſo far as to give the People, of
them that repreſent them, Right to diſpoſe in divers manners, the Goods of each particular Perfon, as the publick Good re-
quires. See 1. 8.c. s. This is ſo much the more certain at preſent, becauſe our Kings have for a long time enjoyed this Right by
the Conſent of the People,
w131130 burka
(2) The Words
ords of the Roman Law are, Quod fi vis fluminis de tuo predio partem aliquam detraxerit, & vicini predio attulerit,
palam eſt eam tuam permanere. Plane ſi longiore tempore fundo vicini beſerit, arboreſque, quas ſecum traxit, in eum fundum radices
egerint. Ex eo tempore videtur vicini fundo acquiſite ese. (it ought to be read, Videtur - adquiſita, as the Florence MSS. has
it.) See Vinnius upon the place, Inſtit. 1. 2. C. 1. $ 21. and Digeft. 1. 41. leg. 7. § 2. and l. 39. tit. 2. De Damno infe&to, &c, lege
9. $ 2.
(4) Theſe Alluvions happen for the moſt part through the Negligence of the Proprietors, who take nor fufficient care to fe.
cure the Banks of Rivers bordering upon their Poffeffions. The Roman Law did not reſtore Lands overflowed to their former
Owner, unleſs they had not changed their Form, i. e. when they were covered with water for a ſmall time, without making a
crue Channel. This Mr. Noodt proves contrary to the Opinion of the Lawyers in his Probab. Juris, 1. 1.c. I.
(a) Vid. I. 19. t. 1.1. 13. 1. 14. D. de alt, empt. Lo vendit. (6) Geograph.I. 16. p. 528. Edit. Genev. Caſaub.
p. 81. Edit. H. Steph.
(c) Euterpe,
the

Chap. VIII. Of Right over other Mens Goods or Pofleffions. 189
the Form of a Lake or a Fen, or whether it is ad- theſe caſes, the poſitive Laws of different Govern-
ded to the Channel of a publick River? In the for- ments may variouſly determine, as fhall appear
iner Cafe, the Lake or the Fen ihall for ever ap- convenient. In Aggenus Urbicus's Comment we find
pertain to the Owner of the Ground; and in like the following Rules lail down, If this be done in
manner in the latter Cafe (5), for ſo long time as Lands taken by Occupancy, whatever the force of the
he thall entertain any deſign of reducing the Cur- Water bath ftolen away, no one may have the privilege
rent to its former Banks. As for private Rivers, of recovering: which confideration lays a necefſity on
which give me in one place as much as they rob Men to keep up their Banks, yet ſo as not to endamage
ine of in another, the Matter is clear beyond dif- their Neighbour. But if it be done in Lands that have
pute. But what if a River belonging to my private been meted out, and align'd in Portions to diſting
Eftate ſhall make it ſelf a new Channel through Owners, then the Poffeffor ſhall loſe nothing ; becauſe
the Ground of another Man, ſhall that part of it every one knows the exact form and dimenfions of what
which covers my Neighbour's Ground belong to was allotted for his ſhare in the Hundred to which he
ine, or to him? In our Opinion Judgment ought to belongs,
be given for the latter. Yet ſtill I retain a Right Concerning the Lands which border on the Po,
of turning the Current to its proper place. But if Caffius thus determines; Whatever the Water waſheth
I refuſe thus to bring back the Current to my own away in its ordinary Channel tbe Popeſor ſhall loſe:
Deineſns, I cannot oblige the other Party to pay Becauſe he ought to defend his own Bank, without pre-
for the Water, nor ſo much as pretend that it judicing other Mens Property. But if the Flood fall
ought to be common to us both in that part. For down with a greater force, ſo as to alter its Channel,
thoſe things which are our own barely on account every man ſhall regain his own meaſure : becauſe tis
of their being contain’d within our Limits or Space, manifeft the damage happen'd not through the negle&
and which therefore ſeem Acceſſions to the ſaid of the Polelor, but through the Violence of the Tor.
Space (6), when they once happen to get out of it, rent. If in this caſe the Water form an Ijlet
, it ſhall
are either to be recall’d by our Care and Diligence, be his Property from whoſe Land it was taken: But if
or elſe to paſs out of our Propriety, and to be rec- it was borrowed from out of ſeveral Eftates together,
kon'd henceforward the Natural Increments of the each Perſon ſhall receive his own, Comp. Grot, 1. 2.
New Space to which they are removed. But in all c. 8. 1. 8, &c. and Ziegler ad di&. loc.
(5) Our Author inconfiderately mentions Lakes and Fens in this place.
(6) See Mr. Thomaſius's Juriſprud. Divin. I. 2. c. 10. § 151, loc.
041
2
Sliwood
CHA P. VIII. .
Of Right over other Mens Goods or Poffeffions.
I. A Man may have a Right over other Mens | VI. Services, what and of how many ſorts?
Goods diverſe ways.
VII. The Uſe with the Profits.
II. How many ſorts of Right we have over others VIII. The bare Uſe.
Goods.
IX. The Habitation.
The Right of holding in Fee (Simple.] to X. The Works of Servants.
IV. The Right of a Ground-plat.
XI. The Services of City-Eſtates.
V. The Right of an honeſt Pofeſor.
XII. And of Country-Farms.
fail ola to
1.
UCH is the force of Property or Dominion, and juſt Title ſome Benefit or Advantage from our
pole of this the good on
that the Proprietor alone hath power to diſPeculiar.
and all others are bound We ſhall here obſerve in ihort, how many ways
to abſtain from them. Yet in as much as the Divi- this may happen ; the whole Subject being ſo large-
Hon of things amongſt Men was not introduc'd with ly explain’d by the Expoſitors of the Civil Law (à).
this Deſign, That all Communication of Goods II. The chief Rights over the things of others, ac-
fhould thereupon ceaſe; it hence comes to paſs, not cruing to Perſons who are not the Proprietors, are
only that we are often by the Law of Humanity by ſome reduc'd to theſe five: The Right of hold-
engag‘d to grant others the Subſtance or the Uſe of ing in Fee; the Right of Ground-plots; the Right of
our own Poſſeſſions, but likewiſe that others may PolJeſſion upon an honeſt Preſumption ; Pledges or Mort-
acquire a (1) Right to them, either Perfect or Im- gages, and Services (1).
perfect
, and conſequently may procure by a good
that belongs to us, &c.
Mr. Barbeyrac's NOTES on Chap. 8. S 1.
(1) The Author expreſſes himſelf more clearly in his Abridgment of the Duties of a Man and Citizen, 1. 1. C. 12. 88. thus,
either by fome Agreement, or ſome other way, a Righe greater or leſs to obtain ſome certain Profit or Advantage from a thing
Mr. Parbeyrac's NOTES on $ 2.
We may add the Right of Fealty, of which we shall ſpeak in Notc ult. of chis Chapter. I ſhall alſo by and by ſhew chat
Mr. Hirtius hath taken notice of this plain Omiſfion.
(a) To whom add Selden, de J, N. & G. 1. 6.c.29
III. The

190 Of Rigbt over otber Mens Goods or poffeffions.
Book IV
.
2011.)
ſuch
ang
of all that is built
up as nice
Si. another on
III. The (1) Right of holding in Fee, which 'is rate Amual Rent to be paid on this (a). Conſidera-
granted to another by the Owner of an Immovable tion. If the Surface be loſt, as ſuppoſe, if the
thing, upon condition of paying ſuch a reſervºd Ac- Buildings fall,
or are conſum'd by Fire, the Right
knowledgement, impowers the Tenant in Fee, 10t of the Ground-Tenant (3) expires
, ſo that the Lord of
only to uſe and enjoy the ſaid thing after the fulleſt the Ground may again diſpoſe of it as he thinks fit.
manner, but likewiſe to diſpoſe of it; though not V. The Right of Polehion (1) upon an honeſt Pre-
without ſome little reſtraint as to the Point of Ali- ſumption, (belonging to thoſe who with a good and
enation. The particular Contract by virtue of ſincere Intention receive a thing of another's froin
which this ſort of Right is immediately ſettled, can a falſe Proprietor, yet upon a juſt Title, and fuch
be rank'd neither under Buying and Selling, nor un as would otherwiſe be ſufficient to convey the Real
der Letting and Hiring ; ſince it doth not confer an Dominion to them,) is thus far equivalent to Stri&
abſolute Property on the other Party, and yet a Property, that ſuch a Polelor may challenge all the
much greater degree than in ordinary Leaſes; but (2) Fruits and Profits
, as his own, inay diſpoſe of the
eſpecially ſince the reſerv'd Acknowledgment is thing as he pleaſeth, and defend his Poffellion (nay,
(commonly {peaking) far leſs conſiderable than the and ought to be inaintain'd in it by the Laws againſt
Rent of Vulgar nts. As the Rules obfervd all Claimants, except the juft Lord. And this pof-
either by common Law or by particular Agreement ſeſſion after a certain Term of Years will give the
in the renewing of this Contract, in the paying of Poffeffor an Irrevocable Doninion, and ſuch as ſhall
the ſettled Rent, in the Alienation of the Fre
, and hold good even againſt him who was at firſt the
in the continuance of it, the Civilians afford us lawful Proprietor: On which Point we ſhall here-
large Information.
after enlarge (b).
blogit
IV. He that either upon paying ſuch a Fine, or Now this Right was at firſt ſet on foot for the
engaging for ſuch a certain Rent, hath obtain’d the benefit of Humane Commerce, and the peace of
(1) Right of a Ground-Plot, may enjoy the fame, Society and Government, to the intent that he
and make any diſpoſal or conveyance of it, as who endeavours to obtain a thing upon a good Ti-
conſequently may claim the Lordſhip, tho' not of wards be unreaſonably oppreſs’d, or incommoded;
Soil it felf, yet
perſons
otherwiſe ;
fitable Dominion of the Soil belongs to the Tenant he bound upon the true Proprietor's challenging
of the Fee: The Reaſon of introducing ſuch a Right the thing, to refund likewiſe the Fruits and Pro-
was this; That Perſons were willing to admit fits which he had conſumed : Or, Laſtly, If his
Strangers upon their Land, yet ſo as not to loſe · Poſſeſſion were always to hang in an uncertain flu-
any thing in the Bulk and Dimenſions of it. There- ctuating Condition. As indeed it is a Rule not
fore they made a Grant of the Surface, reſerving only enacted by Civil Conſtitutions, but likewiſe
the main Soil to themſelves, and requiring a mode- founded on Natural Reaſon, that every Man ſhall
Mr. Barbeyrac's NOTES on $ 3.
(1) The Word Emphyteufis, from which this
Jus Emphyteuticum is derived, comes from the Greek Word é puztver, which
fignifies to engraft or plant. Since the Owners of barren Lands can't eaſily find ſuch as will farm them, it has been chought ex.
pedient to make over theſe ſort of Inheritances for ever to Till, Plant and Improve them any way. By this Agreement the Pro-
prietor of the Ground reſerves himſelf a certain Rent for ever, and the Emphyteute or Leffee on the other ſide encicles himſelf
to the Profit of his Labour and Induſtry by gathering the Fruits of another's Eſtate, which he has enrich'd by his own Care, on-
ly paying ſome ſmall Rent. In the iſſue the Lands are reſtored to the Leffor not only fertile and in a good condition, but that
Éſtate which in its own Nature produces no Fruits, although it is otherwiſe of ſome value, as Houſes and other Buildings are.
See Inſtit. I. 3. c.25. De Locatione do Condu&tione, $ 3. Digeft. 1. 6. cit. 3. Si ager ve&tigalis, (i, c.) Emphyteuticarius petatur, Cod.
1.4. tit. 66. De Jure Emphyteutico, and Mr. Daumat's Civil Laws reduced to their Natural Order, Part 1. 1. 1. t. 4. Sect. 10. Mr.
Titius in his obſervat. in Lauterbach. 209. affirms, That it is not neceſſary to make any particular kind of Contract in Emphyteufis
.
it ;
Rent. See the ſame Author's Jus Privatum Romano-German. l. 3. C. II. $5, &c. where he alſo creats of the Right of Place.
LA 70 torpa om
Mr. Barbeyrac's NOTES on $ 4.
Hotel i HOU
(1) See Chap. 4. 5 2. above.
plates
(2) This Right may be moſt properly called Dominium utile Fundi, and not Jus Superficiarium, as our Author does. For he
that has this right, has power to place any thing upon the furface of that Ground, though it belong to another. Indeed,
the
German Lawyers expreſs themſelves ſometimes after that manner. And Mr. Hirtius has an entire Diſcourſe (among his Com-
ment, and Opyſc. Tom. 3.) which he encicles, De Jure Superficiario. And the Roman Lawyers call him that has this Right Super.
vindic. leg
. 74; 75. The Buildings aifo which are pofſeried after that manner are named Bona Superficiaria, Digeft
. l. 5o. c. 16.
y expound it, qui in alieno Solo ſuperficiem ita habet, ut certam penfionem præftet, Digeft. 1. 6. tit. 1. De rei
De verborum ſignificatione, leg. 49 and the Rent paid, Solarium. Vestigal enim hoc fic appellatur, solarium, ex eo, quod pro ſolo pen-
ditur, Digeft. 1. 43. t. 8. Ne quid in loco publico vel itinere fiat, leg. 2. $ 17. See a whole Title in the Digeſts upon this Matter,
Lib. 43. t. 18. De Superficiebus.
397
(3) Others differ in their Opinion, becauſe, ſay they, this part of the Property, which the Owner of the Ground transfers to
him that hath right of place,
(Superficiario) falls in ſome manner upon the Ground it ſelf. See a Book printed at Wittemberg in
1704. entitled, Balthaſaris Wernheri Juris profeff. publici, doc. Element a Juris Nat. Co Gent. &c. c. 14. $ 37. And Mr. Hirtius
takes to the fame ſide. He ſays, that at leañ, unleſs the Parties have agreed otherwiſe, and there be lome Rule of the Civil
Laws about it, we muſt believe that
no Man
can affirm otherwiſe than the Right of place ends with the firſt Building: Real Sero
vices adds he, have not ſo great an effect as Right of place, and yet they muſt be renewed, when the Building co which they are
annexed, comes to be built again, Digest. 1. 8. c. 2. De Servitut. Prediorum urban. leg. 20. $ 2.
Sast Mr. Barbeyrac's NOTES on $ 5. non
(1) The Law ſays, Vel etiam poteft dividi poseſionis genus in duas ſpecies, ut posſideatur, aut bona fide, aut non bona fide, Digeft.
tic. 2. De acquir. vel amitt. posseſſione, leg 3. $22.
(2) The Law is, Bone fidei emptor non dubie percipiendo fru&tus etiam ex aliena re ſuos interim facit, non tantum eos qui diligentia
& opera ejus pervenerunt, sed omnes quia quod ad fruétus attinet, loco Domini pene est, Digeſt
. 41. tit. 1. de acquir. rerum Dominio, leg.
48. in princip. See alſo Mr. Noodt's Probab. Furis, 1. 2. c. 7. and what will be ſaid c. 13. $ 8. following:
(a) Vid. Juftin. l. 18. c. 5. n. 14. Edit. Gruv. (b) Chap. 12.
دند
12
as
1.
41.
be

CHAP. VIII.
Of Right over ot ber Mens Goods or poſſeſſions. 191
be left to enjoy what he hath gọt with Honeſt In- Dwelling, and the Works of Servants (1). Uſe and
tention (3), till fuch time as the Claiınant Shall Profits is a Right of enjoying freely what belongs to
have demonſtrated a ſtronger Right than Poſſeffion. another, yet ſo as not to impair the main Sub-
For what Troubles and Diſquiets might be every ſtance (2); or, a Right of receiving all fuch Advan-
-day brought on any Perſon, it upon Suit of every tages from another's Property, as can ariſe from it
Petitioner he fhond be oblig'd to relinquiſh what without injuring the Principal
. For, though in the
he fairly holds, and to profecute the other Party in ordinary courſe of Nature, he who is Lord of the
order to a Recovery' (a)? The Caſe of Pledges or thing is alſo Lord of Fruits, yet there is nothing to
Mortgages will hereafter be explain d (L)
.jp hinder, but that theſe two may be ſeparated, and
VI. Services, in reſpect of the Perſon to whom the Dominion or Property lodg'd in one Perſon,
they are due, are ſo many Rights of receiving cer. whilſt another hath a Right to all the Benefits. And
tain Profits or Advantages from things which be- this may be ordain’d and appointed, either by the
long to others
, or of abridging the right Owner in Standing Laws of any Government, or by the oc-
the ufe of what he poffefſeth, ſo that he ſhall not caſional Sentence of the Judge, as when a thing
be able to apply it to all purpoſes
. But in reſpect held before in Common, cannot conveniently be di-
of the Perſon who is to pay them, they are ſo ina- vided any other way (3): Or by the act of private
ny Obligations to grant another ſomewhat out of a Men, as by Teſtament (4), or by Compact(5). Only
Man's own Poffeflion (1); or, for the benefit of a there is one caſe which ſeems to require Service by the
nother to forbear uſing his own Property in ſuch a bare Notion of Nature and Reaſon; and that is,
particular manner. Services (2) in reſpect of the That the Father ſhall have the Uſe and Profits of all
Object towards which the Payinent of them
is direct- Goods which fall to the Son in his Minority (6). It
ed, are divided into Perſonal and Real : Not as if is evident that Uſe and Profits can be appointed pro-
the Benefit of each did not ultimately terminate in perly in thoſe things alone which afford Tome outward
the Perſon, but becauſe ſome Profits of this kind uſe of themſelves diſtinct from their Subſtances, or
accrue to a Man, only on account of his pofleffing which are not conſum'd by being enjoy’d; provided
fume certain Eſtate (c). Which Diſtinction others they are really capable of yielding any Service,
expreſs in this manner : Advantage ariſing from other Ornament or Delight. But there can be no proper
Mens things, either come to a Perfon directly and. im- room for the like Tenure in things which are no
mediately, on the fcore of his being ſuch a Perſon, of wáy ſerviceable but in being ſpent: Inaſıuch as
elſe mediately, ly the Intervention of ſomewhat which the very Body and Subſtance, and conſequently the
be bolds as bis Property, and to which this Service is Propriety of any thing is preſumed to belong to him,
Alida hu who hath a Right to waſte or conſume it at his plea-
VII
. In the Liſt of Perſonal Services are common- ſure. Yet 'tis a Rule in the Civil Law, That Mo-
ly reckon’d thoſe which follow, Uſe and Profits, Ufe, 'ney and other conſumable things may be turn’d by
oping.
om
I
bisont
(3) See I. 2. c. 6. n.4 and 5. aforegoing, and 1. 4. C. 12. $ 9. and l. 5. C. 13. $ 6. as allo Mr. Daumat's Civil Laws in their
their Natural
Order, Part 1. 1.3. t. 6. Sect. 4. 91.
Mr. Barbeyrac's NOTES on 6 6.
(1) The Roman Lawyers ſay, That the nature of Servitude conſiſts not in doing ſomething in favour of another, but io ſuffer-
ing or not doing certain things, Servitutum non ei natura eft, ut aliquid faciat quis, veluti viridia tollat, aut amæniorem profpe&tum
preffet, aut in hoc, ut in ſuo pingat, ſed ut aliquid patiatur aut non faciat, Digeft. 1. 8. tit. 1. De Servitutibus, leg. IS. 9 1.
(2) The Words of the Law
are, Servitutes, aut perfonarum ſunt, ut ufus, co ufusfructus, aut rerum, ut fervitutes rufticorum pra.
diorum Los urbanorum, Digeft. ibid. leg. 1.
Mr. Barbeyrac's NOTES on §. 7
() tus eſt jus alienis rebus utendi do fruendi rerum ſubſtantia, Digeft.'1- 7. t. 1. De uſufru&tu do quemadmodum quis
utaturfruaturleg. 1,
Inſtit. I. 2. c.4. princip. We to obſerve, that Ufufruct or Uſe for the Profits, and other fort of
Servitudes are the Rights which we enjoy gratuitoully: For if we pay an Annual Rent, 'twill be then a kind of Lecting or Hiring
(2) See l. 6.c. 11. $ 8. following.
(3) Conffituitur adh c ufusfruéius, & in judicio familie erciſcende, do communi dividundo, fi judex alii proprietatem adjudicaverit
alii i fumfru£lum, Digeft
. 1. 7. t. 1. De ufufruétu, &c. 1. 6. $ 1.
(4) Ujusfruus pluribus modis conſtituitur, ut ecce ſi legatus fuerit, ſed do proprietas dedu£to ufufru&u legare poteſt, ut apud hære.
dem maneat uſusfru&tus, ibid. princ. Item alii ufumfru£tum, alii deducto eo fundum legari potest, Inftit. l. 2. tit
. 1. S 1. So a Teſtator
may bequeath a Property, and leave an Ufufruét, either to an Uſufructurer or to his Heir, or any other Legatee, as alſo he may
make a Reſerve of his uſufruct for a Portion, a Gift among Survivors, to be fold, exchanged, paſſed away, or other things of
like nature. Quiſquis rem aliquam donando, vel in dotem dando, vel vendendo ufumfru&tum ejus retinuerit
, &c. Cod. 1. 8 to 54. De Dos
nationibus, leg. 33. See concerning this whole Matter Mr. Daumat's Civil Laws in their Natural Order, Part 1. l. 1. t. 11.
(5) Et ſine testamento autem, si quis velit uſumfru£tum conſtituere, pačtionibus de ſtipulationibus id efficere potest, Digeft. l. 7 to 1:
(6) As an Houſe, Land, a Slave, a beaft, &c. But Wine, Oil, Bread-Corn, Money, Gc. are not capable of an Ufufruct.
Conftituitur autem ufusfru&us non tantum in fundo & edibus, verum etiam in ſervis & jumentis
, & cateris rebus, exceptis iis, quæ ipſo
usa conſumuntur. Nam ha res, neque naturali ratione, neque civili recipiunt uſumfru&um, quo in numero ſunt vinum, oleum, frumentum,
veftimenta
, quibus proxima est pecunia numer atd. Namque ipfo uſt asidua permutatione quodammodo extinguitur, Inftic. 1. 2.6. 4. 2.
Tribonianus has very unſicly
joyned to theſe Habits, as Cujacius has obſerved, for they do not conſume at all by their uſe. See
Mr. Noodt probab. Juris, 1. 2. C. 4. and Mr. Thomaſius's Diſcourſe, De Pretio
, aff:&. C. 1. $ 18. Medals, and ſuch pieces of Mo-
ney as are not current, but are deſired for their Antiquity, may be beſtowed as an Uſufruct, as appears by the following Law
which Mr. Noodt explains learnedly after his manner in his obfervations, 1. 1. c. 5. Nomifmatum aureorum vel argenteorum vete-
and quibus pro geminis uti folent, ufusfru&tus legare poteſt, Digeft
. 1. 7. tit
. T. leg. 28. We may ſay the fame things of Pictures
and Statues. Statue de imaginun'ujumfructum poffe relinqui magis est, quia & ipfe habent aliquam utilitatem, fi quo loco opportuno po-
mantur, Ibid. leg. 41. The Ancient Lawyers do not agree upon this queſtion, whether we can have the Uſufruct of a thing in-
corporcal
, or of bare Right, as a permiſſion to paſs through another Man's Ground, or to carry Water through it, dot. As for
my felf, I am of Opinion, that if we conſider the thing in it felt, without any of the Subtleries of the Roman Lawyers, there it tio
is it neceſſary that the ground of an Ufufruct ſhould be a fenfible thing, and really exiſt any where but in the Mind. It is fufti
sicht that 'tis a thing that may be look'd upon as belonging to any one, and from whence we may receive fome advantage, and
withour which is ceaſes to be as before. so alfo Debes owing
may be reputed a real, good, and a true Fund.
(a) See the Expoſitors of the Civil Law, ad. t. 61.2 D. de Publiciana in rem a&tione. (6) Lib. 5 c. to I, 13, &c.
( Vidr.Giot. l. 1. C. 1 1. 4. Add. 1.8 t. 2 leg. 32 1. 1. in fin. D. de ſervit. pred. urb.
Will
leg. 3. princip.

192 Of Right over other Mens Goods or Pofeſſions.
Book IV.
Will (7) into this kind of Tenure, and be given in from labouring in vain. Civil Fruits belong to the
Legacy, in which caſe the Money or Things are fo Tenant for use and Profit, till the time is laps'd
made over to the Legatee, as to be his own; but (12), for which the Grant was firſt made.
under this neceſſary Condition, That he give Secu- Farther, As he who holds a thing in this manner,
rity to the Heir to reſtore the like Sum, and the like ought to uſe it like an honeſt Man (13), or as be
things
, or the Value of the things, when the Term comes a good Husband, and ſo apply it to that
of his grant is expired. So that the Security here ticular kind of Advantage, which either the Na-
given to the Proprietor, doth as it were ſupply the ture of the thing, or the Will of the Proprietor re-
place of the real Subſtance.
disa tobud quires; ſo is he likewiſe bound to guard, maintain,and
He that holds the Uſe and Profit's of a thing hath a keep it ſafe and whole (14); as alſo to pay Taxes (15),
Right to claim all the Advantages proceeding from Dues, and other Burthens, ordinary and extraordi
it, as well Natural as Civil (8). Yet the Roman nary, at leaſt ſuch as do not exceed the main Pro-
Laws excepted () the Iſſue of a Maid-fervant; fitsFor all theſe Troubles, as well as that of Cul.
probably on this Reaſon, That the deſign of grant- ture and Improvement, neceſſarily fall on him, who
ing another the uſe of our Servants, reſpected their deſires to reap the Benefit and Gain : Nor is it pre
Work ouly, and not their Off-ſpring. As for the fum'd that any Perſon would lay fo grievous a hard.
other Natural Fruits, they become the Tenants of ſhip on himſelf
, as not only to grant another the
Uſe and Profit, by taking or gathering them: That (10) Profits of his Goods or Eſtate, but likewiſe to reſerve
is when he hath ſeparated them from the Body or Sub- the Burthens to be diſcharg’d at his own Expence.
ftance, and laid them by themſelves. Whence it fol- This way of holding is ſaid to expire at the de-
lows, that the Fruits or Profits, if not yet ſeparated, ceaſe of the Tenant (16); becauſe, commonly ſpeak-
belong to the Proprietor; and in caſe the Tenant foring, at the firſt making ſuch a Grant, the Merit
Uſe and Profit dies before he hath gather'd them, they of the Party was conſider’d, which cannot defcend
cannot be challengʻd by his Heir: Though, if it ap- to others. And inaſmuch as 'tis a great Burthen
pear that any Pains
Pains were ſpent, or any Induſtry upon a Man to have the Fruits of his Property pals
imployd (11), in bringing the Fruits to Perfecti- ftill into other Hands, therefore the words in theſe
on, it will then be equitable to admit the Heir to Grants are to be interpreted in the ſtreighteſt man-
a Participation of them; ſo far, at leaſt, as to com- ner; ſo that if the Forin ran thus, to him and his
penfate the Pains of the Deceas'd, and to hinder him Heirs, it ihall not be extended to the Heirs in a
Constipoloo 08 116)
body
Mort at
PG
(7) Quaſi ufusfru&us, 'cis an Expreſſion of the Roman Law, ſed utilitatis cauſa ſenatus cenſuit, pofle etiam earum rerum uſum-
fru&tum conftitui, ut tamen eo 'nomine heredi utiliter caveatur. Itaque fi pecuniæ uſusfru&tus legatus fit, ita datur legatario, ut ejus
fiat, & legatarius ſatisdet heredi de tanta pecunia reftituenda, ſi morietur, aut capite minuetur. Cætere quoque res ita traduntur
legatario, ut ejus fiant, ſed eſtimatis his ſatiſdatur, ut tanta pecunia reftituatur, quanti hæ fuerint æſtimate. Ergo Senatus
non fecit quidem earum rerum ufumfru&tum
(nec enim poterit) (ed per cautionem quaſi uſumfructum conſtituit, Inftit. I. 2. tit. 4.8 2. Sec
the Title of the Digeſts, which treats, De uſufructu earum rerum que uſu conſumunt ur vel minuuntur, 1. 7. t. 5.
(8) Uſufruftu legato omnis fru&tus rei ad fruétuarium pertinet, Digeft. 1. 7. tic. I. De ufufru£tu lo quemad, quis utatur, fruatur, leg.
7. prin. where we may find all the Particulars at length in the reſt of this Law and the next. The Uſufructuary for example may
fearch for Mines, Quarries, Beds of Chalk, Coal, doc. which are found in the Ground, of which he has the Profit, although
the Proprietor himſelf knows nothing of them, provided nevertheleſs that he do no damage to the Corn, Trees, Vines, and in
a word, all things uſed in Husbandry, to which the owner of the Ground has deſigned it. See Mr. Noodt's Obſervacions, l. I.
c.9. This able Lawyer in the following Chapter of the ſame Work examines how, and by virtue of what the Uſufructuary of
thé Ground, where there are Deer, may appropriate the Profit and Revenue to himſelf. We may read all this in the Original,
and withal the Reflection which Mr. Bernard makes thereon in his Extract of the News of the Republick of Letters, April 1706.
p. 430, 431.
21 (9) See c. 7. $ 4. n. 1. aforegoing,
30 (10) Is vero ad quem ususfruétus fundi pertinet, non aliter fru£tuum Dominus efficitur, quam fi ipfe eos perceperit. Et ideo licet ma.
turis fru&tibus, nondum tamen perceptis deceſſerit, ad hæredes ejus non pertinent, ſed Domino proprietatis acquiruntur. Eadem fere, do
de colono dicuntur, Inftit. I. 2. t. 1. De rerum divifione, &c. $ 36.
(!!) This is no point of the Roman Law; but the Saxon Law follows a Maxim ſo juſt, requiring that in this laſt caſe all the
Fruits ſhould belong to their Heirs. See Balth. Whernker's Element. Jur. Nat. Go Gent. chap. 14. $ 42.
(12) For example, if a Rene commence at the beginning of the Year, and the uſufructuary die in O&tober, the Heirs ſhall have
the ſurmount of the Rent for that time, and the reſt to January following ſhall recurn to the Proprietor. See Digeft. 1. 7. cic. I.
Jeg. 26. and 58. princip.
30 (13) Cavere autem debet ufufru&tuarius viri boni arbitratu perceptum iri uſumfru&um, hoc eſt, non deteriorem ſe caufam uſusfru&us
facturum, ceteraq; fa&urum quæ in re ſua faceret, Digeft. l. 7. t. 9. ufufruétuarius quemadmodum caveat, leg. 1. $ 3. Debet enim omne
quod diligens paterjamilias in fua domo facit & ipſe facere, Ibid. Tit. 1. De uſufruétu, &c. leg. 65. mancipiorum quoque uſusfrutus legato
non debet abuti, fed fecundum conditionem eorum uti, ibid. leg. 15. $. So that the Uſufructuary may neither miſule the Ground,
nor impoveriſh it, nor change what the Proprietor hath deſigned for his bare Diverſion, though it be to augment his Revenue:
For example, he may not cut up the Trees which are planted in a Walk to make himſelf a Garden, or fow it with Corn. Et fi
forte volupt are fecit predium, viridaria, vel geſtationes, vel deambulationes arboribus infru&tuofis opacas, atq; amenas babens, non des
bebit dejicere, ut forte hortos olitorios faciat, vel aliud quid, quod ad reditum Spe&tat, ibid. leg. 13. S 4. There are ſeveral Laws with
this Title that may be conſulted.
(14) Eum ad quem uſusfru&tus pertinet, ſarta te&ta ſuis ſumptibus preſtare debere, explorati juris eſt, Cod. I.
tit.
33.
do babit. do miniſterio jerv. leg. 7. This extends to the leaſt Reparations and other neceſſary Expences to improve and preſerve the
Goods they have the Profit of. For if the Houſe, for example, tumble down without the fault of the Ulufructuary, he ſhall not
be obliged to rebuild it. Si que vetuſtate corruerunt, reficere non cogitur, modica igitur refe&tio ad eum pertineat, quoniam do alia
conera agnoſcit, uſufruétu legato, &c. Digeft. l. 7. c. 1. leg. 7. 8 2. See s following of the fame Law.
(15) vt puta Ripendium, vel tributum, vel (alarium, vel alimenta ab ea re reli&ta. See alſo Law 27. $ 3. and Lib.
33.
ufu do usufr &c. leg. 28.
(16) Morte quoque amitti uſumfru&tum non recipit dubitatione, cum jus fruendi morte extinguatur, ficuti fi quid aliud quod perſone co.
beret, Digeft
. 1. 7. . 4. Quibus modis ufusfru£tus vel uſus amittitur, leg. 3 8 3. This hath place when the Uſufructuary dies be
fore this time, his Uſufruct expires, or before the accompliſhment of the Condition, which ſhould put an end to it. See cod.
1. 3. t. 33. De ufufr. co babit. &c. leg. 12. For the reaſon why a certain or uncertain time is fixed is only, that the Ufufructuary,
if he lives beyond it, may noc preſerve his Righe; ſo that if he dies before, the general Rule hold; in its full force as to hini
.
Farther, our Author ought not to have forgotten another way by which his Uſufruct may be loft, and that is, when the time of
its continuance is ac an end, or when a certain Condition is to be accompliſhed.
3.
De uſufruet.
tit. 2. De
ſecond

Chap. VIII. Of Right over other Mens Goods or Poſle(fions. 193
fecond Deſcent (17), ſince the Property of a thing, ject, ſhould be ſtill capable of holding ſuch a Right
if for ever excluded from the Uſe (18), is utterly over the Goods of thole who were true and lawlul
infignificant : In which Senſe we are to take Cicero's Members of the State.
Definition, Id cujuſque proprium eft, quo quiſque frui To proceed; this Right, by virtue of fome pub-
tur atque utitur. That's truly the Property of every lick Law, or of ſome private Covenant, may in a
Man, which he uſeth and enjoys. Hence, if a Lega- certain period of time (23), be loft by diſuſe, (which
cy only for the uſe and Profits was left to a publick alters many things for the worſe;) or by uſing it in
Cominunity, which in other reſpects may be perpe- a different manner from the Rules preſcribd (24);
tual, yet the Roman Laws order'd (19), That the or by impairing the thing, either through deſign'd
Grant should expire at the end of a hundred Tears: Wickedneſs, or groſs Neglect. The Right is like-
As it muſt ceaſe before, if the State or City be dif- wiſe extinct, if the thing happen to periſh (25);
folvd or raz’d by the Violence of an Enemy (20). nor doth it revive, though the thing be renewed or
From the ſame grounds it proceeds, that a Tenure repaired; by reaſon of that ſtrict Interpretation
of this kind cannot be alienated (21); becauſe at which this Affair demands. For Inſtance; If I
that rate the Proprietor's Claiin might be for ever build a Houſe in the ſame place with another which
ihiſted off, and the thing might paſs to one whom I loft by Fire, it is not judg’d to be the ſame as the
he would look upon as an Intruder into his Rights former. And indeed, ſince the Workºmuſt have
and Poffeffions. A grant of Uſe and Profits was like- put me to conſiderable Charges, it would be very
wiſe, according to the Roman Laws, made extinct hard if I muſt raiſe a Building which on my ſide
by the two higher degrees of the Capitis diminutio, will turn to no account.
or Disfranchiſeinent of a Citizen (22). For as they Laſtly, If either the Proprietor make over his
were unwilling to let this Burthen lie on the Pro- Right to the Tenant (26), or the Tenant reſign to
prietor, after the Party in whoſe favour it was at him, the Uſe and Profit expires; ſince a Man cannot
firſt appointed could receive no benefit from it; ſo receive Service from what's hisown; or, becauſe this,
they judg’d it by no means convenient, that a Per- and all other Services do properly denote a Right
ſon who had forfeited the Privilege of a free Sub over ſomewhat that belongs to another. But when
ܪ
(17) This is proved commonly by this Law of the Code, 1. 3. t. 33. Sancimus do hujuſmodi legatum firmum effe (ſi quis fundum,
vel aliam rem cuidam teſtamento relinqueret, quatenus uſusfru&tus apud heredem maneret] d talem uſumfru&tum una cum hærede finiri,
do illo moriente, vel aliis legitimis modis eum amittente, exſpirare, Jeg. 14. But ’ris evident, as others have obſerved, that he
treats there of the Heir of a Teftator, and not the Heir of an Uſufructuary. See Vinnius upon the Inſtitutes, l. 2.6.4: $ 3. and
Mr. Titius upon Lauterbach. Obſerv. 225.
(18) This is the Reaſon that the Inſtitutes give, to fhew how many ways the Right of an Uſufruct may be extinguiſhed. Ne
tamen in univerſum inutiles effent proprietates, ſemper abſcedente uſufru&tu, placuit certis modis extingui uſumfructum, & ad proprieta.
tem reverti, 1. 2. 1. 4. $ 1.
(19) This Term is fixed on as that to which the longeſt Life of Man can extend. Et placuit centum annis tuendos eſſe in uſu-
fructu municipes, quia is finis vit& long&vi hominis eſt, Digeſt. De uſufru&tu, &c. l. 7. t. 1. leg. 56. See alſo l. 33. t. 2. De uſu do
uſufru&tu, &c. leg. 8.
(20) The Law does not ſpeak at all of an Enemy, it only ſays, If a Plough paſſes through the City, doc. (i.e.) if it be deſtroy'd
any manner of way, which may happen by the Order of the Supreme Governor for the Puniſhment of the Inhabitants. Si uſus-.
fructus civitati legetur, do aratrum in eam inducatur, Civitas effe definit ut paſſa eſt Carthagº, ideoque quaſi morte definit habere uſum.
fructum, Digeft. 1. 7. t. 4. Quibus modis uſusfr. vel ujus amittitur, leg. 21. The Sacking of a City is expreſſed here with an alluſion
to a Cuftom of which Horace ſpeaks, l. 1. Ode 16.
Imprimeretque muris
Th' inſulting Army brought unto the Wall,
Hoſt:le aratrum exercitus inſolens.
The Hoſtile Plough to raze it vill it fall.
See the Nores of Dion. Gothofred. upon the Law itſelf, of which he treats.
(21) i.e. The Uſufruct being a Right purely perſonal, it can't be transferred to a third ; ſo that he acquires and enjoys it in
his own Name, as holding it immediately of the Proprietor. But this does not hinder but that the Uſufructuary may not only
let it out to farm, but relign, fell, or give the Enjoyment of it to a third. All that is meant is this, that the third perſon ſhall
enjoy it no longer than the Uſufructuary enjoys it himſelf, yet not ſo fully as if he had the proper and immediate Uſufruct
. Uſu-
fruétuarius vel iple frui ea re vel alii fruendam concedere, vel locare, vel vendere poteft, nam & qui locat, utitur, & qui vendit, utitur.
Sed & fi alii precario concedat vel donet, puto eum uti, atque ideo retineri uſumfru&tum, Digeft. 1.7. ti 1. leg. 12. $ 2. Whence it
appears, that when the Uſufructuary diſpoſech of the Enjoyment of the Goods, of which he has the Uſufruct according to his
Mind, 'tis the ſame as if he enjoy'd'it himfelf; and in this Cale the Right of the Uſufruct remains always in the Ufufructuary,
though he has trans fer'd the Enjoyment of the Fruits to a third, as the
expreſfion of the Roman Lawyers implies, Ut ipſum qui-
jus remaneat penes maritum (qui poſt divortium reddere teñeretur uſumfruétum fundi dotis nomine acceptum] perceptio vero fru&uum
ad mulierem pertineat, Digeſt. 1. 23. t. 3. De Jure Dotium, leg. 66. This Law is a matter of Diſpute among the Interpreters of
the Roman Law, about which we may confult Vinnius on the Inſtit. l. 2. t. 4.9 3. numb. 4. and Mr. Titius on Lauterb. Obs. 226.
(22) Finitur autem uſusfru&tus morte uſufru&tuarii, do duabus capitis diminutionibus, maxima do media, Inftit. I. 2.4.4.5 3. See
alſo the Code, I 3. t. 33. leg. 16.9 2. in fine. And for Diminutio capitis, (i. e.) the Disfranchiſement of a Citizen, of which he
ſpeaks, ſee what I have obſerved above, 1. 3.c. 6. § 3. n. 5.
(23) That is to ſay, If he neither enjoys himſelf, nor by any other the Goods of which he has the Uſufru&t. This is what
is called, non uti per tempus, Inſtit. 9 3. ut supra. Non utitur (ſay the Lawyers elſewhere) ufufru&tuarius, ſi nec ipſe utatur, nec no-
mine ejus alius, Digeft, 1.7. t. 1. leg. 38. See Note 21. above. Before Juſtinian the uſufruct of things Moveable was loft, if
they were not uſed for a Year, and of things Immovable in two Years. But that Emperor order'd that the Uſufruct of both
fhould not be loft, but by Non-uſage for ten years, if the Uſufructuary was in the place where the Goods were, and twenty if
he were at a diſtance, See Code, 1. 3. C. 34. De ſervitut. & aqua. leg. 13.
(24). Non utendo per modum, Inftit
. ut ſupra. See Digeft
. 1. 8. c. 6. Quemadmodum fervitutes amittunt ur, leg. IC. § 1. & 11. princ.
(25) Rei mutatione interire uſumfruélun placet. Veluti ufusfruétus mihi edium legatus eſt, edes corruerunt vel exufta funt, fine du-
lis extinguitur. In this caſe the uſufructuary hath neither right to the Materials nor place where the Houſe ſtood. Certiffimum
- nec area, nec camentorum uſumfruétuin deberi, Digeft. 1. 7 t. 4 leg. 5 $ 2. See alſo, leg. 8, 9, 10, 12, 23. Eſt enim jus in
carpore, quo fublato G ipſum tolli neceſse est, Inſtit. 1.2.1. 9. in princ. * Buê this muſt be ſome particular Ufufruct, for when we have
an univerſal 1/ſufruct, (i, e) over all the Goods, the Enjoyment of the reſt is preſerved. Bonorum autem uſufru&tu legato, area
Cxdium incenſarum] uſusfructus peti poterit, quoniam qui bonorum fuorum uſumfructum legat, non folum eorum que infpici ſunt, sed do fub-
Fantia omnis ufufruétum legere videtur, in fubftantia autem bonorum etiam area eft, Digett. 1.7. t. 1. De uſufructu, doc. leg. 34. 92
Farther
, the Interprerers of the Roman"Lawlay, That to know whether the thing of which we have the Ufufruct be deſtroyed,
we muſt conſider whether the Name be changed. See Vinnius upon the Inſtitutes, 1. 2.6. 4. S 3. n. 5, 6.
(26) Item finit ur uſusfructus, fi Domino proprietatis ab uſufru&uario cedatur
acquifierit
, qua rei conſideratis appellatur, Inſtic. I. 2 t, 4 $ 3.
vel contrario si uſusfruétuarius proprietatem rei
+ Bb
a Perſon
eſta

194 Of Right over other Mens Goods er Poffeffions.
Book IV
a Perſon uſeth his own Poſſeſſion, and receives ad- ly proceeding from the letting out the Houſes of o-
vantages
from it, this he does by virtue of his thers (1). This is of a narrower compaſs than the
Dominion (27), and wants not a new Title or Com- Uſe and Profits of the fame Houſes; the latter take
miſſion,
ing in likewiſe the benefit ariſing from the recep-
VIII
. Uſe, as they terin it, is when a Man re- tion of Goods, and many the like Cauſes
. And yet
ceives from a thing belonging to another (1), only the it is of a wider extent than the bare Uſe ; inaſmuch
daily and neceſſary Service, the ſubſtance remain- as the Perſon who hath obtain’d it
, may let out
ing as before. And this is of leſs extent than Uſe the reſpective Buildings to other Tenants, inſtead
and Profits, the Perſon to whom it is granted being of inhabiting them himſelf.
only allow'd to take ſo much Advantage from the X. By the Right of Servants Works, is receiv'd all
thing, as is ſufficient for himſelf and his Depen- the benefit ariſing from the Labour of Another's Ser-
dants; which allotment is meaſur'd according to his vant (1). Which Right the Roman Laws make more
Dignity and Condition (2.) Thus for Inſtance; As he contracted than the Uſe and Profits of the fame Ser-
who hath obtain’d the uſe of another's Houſe may dwell vant; becauſe he is capable of bringing in Advan-
in it with his own Family; ſo he cannot fairly receive tage by other Means beſides his work.
either a Gueſt of long continuance (3), or an Inmate XI. Real Services, due to any Perſon on account
who ſhall lodge there without being a Member of the of ſome Eſtate or Poſſeilion, are, in general, fo ma-
Jame Domeſtical Society; in caſe the Proprietor him- ny Rights, by virtue of which my Neighbour's E-
ſelf dwells likewiſe under the ſame Common Roof: ſtate is charg'd with yielding ſome certain Advan-
(but 'tis otherwiſe if the Grant runs for the ſole Ūſe tage to mine. The Civil Law divides them into
of the entire Tenement.). Nor can be, according to Services of City Eſtates (1), and Services of Country
the regular Courſe, transfer the Uſe to another ; it be- Eſtates. By Country Eſtates, are meant Lands, and
ing a matter of very weighty confideration, and of inferior Buildings
, erected only for the convenience
great difference, who a Man takes to cohabit with him. of Agriculture, and preſervation of Cattle. Under
As to the preſervation and reparation of the thing the term of City Eſtates (2) are comprehended all
in which any Perſon hath thus obtain’d a Uje, it Buildings deſign d for the reception of humane In-
ſeems moſt agreeable to Equity, that if ſuch a Uſe habitants, for the exerciſe of Commerce, and the
be once granted, there remains no farther Fruit or like Uſes, though ſeated at any diſtance from the
Benefit to the Proprietor, than the Uſer ſhall be ob- City. The occaſion of eſtabliſhing all theſe Ser-
liged to keep the thing ſafe and found. If the Pro- vices was generally taken from Neighbourhood ; a
fit accruing to both be equal, they ſhall maintain Relation which may juſtly be thought to border
or repair the thing at joint Charges (4). But if the very near on that of Friendſhip. For, inaſmuch
Uſe be inconſiderable in compariſon with the Profits as it contributed highly both to the Profit and
which the Owner ſtill reſerves to himſelf, in this the Pleaſure of Men, that many of thein ſhould
Caſe, 'tis eaſily preſum'd, that he intended not to join their Dwellings and Poſſeſſions, which conve-
charge it with any Burthen.
nience could ſcarcely ſubſiſt, ſhould each Perfon go
IX. Dwelling, in the Civil Law, is a Right by about to exclude another from the Uſe of his Pro-
which a Man receives all the Advantages common- perty in every Degree, therefore Neighbours were
(27) Nulli enim res ſua ſervit, Digeſt. I. 8. t. 2. de ſervitut. prædo urban. leg. 26. princip. See alſo l. 7. c. 6. Si uſusfru&us petetur,
doc. leg. 5 princip.
Mr. Barbeyrac's NOTES on S 8.
(1) Minus autem Juris eft in uſu, quam in uſufru&tu. Nam is qui fundi nudum habet uſum, nihil ulterius habere intelligitur, quam ut
oleribus, pomis, floribus, freno, stramentis do lignis ad uſum quotidianum utatur. By the Roman Laws the Uſer can neither fell, nor
make over, nor give away his Right. Nec ulli alii jus quod habet aut locare, aut vendere, aut gratis concedere poteft, Inftit. I. 2 t. s
De uſu do habit. $ 1. This Right is eſtabliſh’d, and ceaſed in the ſame manner as the Uſufruct. Iiſdem illis modis, quibus ufus-
fruélus conſtituitur, etiam nudus uſus conſtitui folet, iiſdemq; illis modis finitur, quibus do uſusfru&tus definit, ibid. princip. See Mr.
Daumat's Civil Laws in their Natural Order, Part 1. 1. 1. c. 11. Sect. 2.
(2) Aliquo enim largius cum uſuario agendum eft pro dignitate ejus, cui reli&us eſt uſus, Dig. 1. 7. t. 8. De uſu do habit. leg. 12 $1
13) All that our Author ſays about the uſe of an Houſe, is not at all agreeable to the Roman Law, but I muſt own, that fe-
veral of the Laws which I have quored, and ſome of which our Author refers to, are confuted. See one of them corrected by
Mr. Noodt in his Probab. Juris, I. 3. c. 7. who in the following Chapter of the ſame Work, corrects and explains another which
relates to this Matter. One general Remark may be alſo made upon all the places mention'd in this Chapter, which is, That the
Laws of each State, and the mutual Agreements of Parties, or the Will of him that gives freely, may be diſtinguiſhed a thou.
fand ways. So that no Rule can be made which can abſolutely and unchangably agree to all Caſes, and we muſt ſeriouſly arrend
to the particular Circumſtances of every Affair co decide it afterward according to the Nature of the thing and Maxims of E.
quiry, what are the Engagements both of him that coníers any of theſe Righes, and of him who receives them.
(4) Si domus uſus legatus fit fine fručtu, communis refe&tio eft rei in Sartis tečtis, tam hæredis
, quam uſuarii
. Videamus tamen ne fi
fru&tum hæres accipiat, ipſe reficere debeat. Si vero talis fit res, cujus ufus relegatus eft, ut hæres fru&tum percipere non poffit, Legatan
rius reficere cogendus eſt. Quæ diſtinctio rationem habet, Digeft. 1. 7. t. 8. leg. 18.
Mr. Barbeyrac's NOTES on S 9.
(1) Sid eſt cui habitatio legata, ſive aliquo modo conſtituta fit neque ufus videtur, neque uſusfrutus, sed proprium aliquod
folum in ea degere
, ſed etiam aliis locare, Inftit. I. 2. t. 5. 8 5. See alſo the Code, 1. 3.c. 33. De ufufru&t. do babit. &c. leg. 13.
neither looſe this Right by Non ufage or a Civil Death. See the Digeſts, l. 7. t. 8. De uſu do habit. leg. 10.
Mr. Barbeyrac's NOTES on $ 10.
(1) Operis fervi legatis neque usus neque uſusfru&tus in eo legato eſse videtur, 1. 35. t. 2. ad legem Falcidiam, leg. 1. $ 9. This Right
is loft only by the Death of the Slave, and not by the Natural or Civil Death of him who might fo diſpoſe of the Slave, nor by
Non.uſage. See Digeft. I. 7. t. 7. De operis ſervorum, and I. 33. t. 2. De ufu ufufruétu, &c. leg. 2.
Mr. Barbeyrac's NOTES on $11.
(I) The Law is, Servitutes ruſticorum prædiorum & urbanorum, Digeft. I. 8 t. 1. De Servitut. leg. 1. Some Men maincain, that
this diſtinction is of no uſe, becauſe it ſnews no difference as to the effects of Right. See Mr. Thomafius's Diſcourſe, de ferus
Stillicidii, which is the fifteenth among his Diſcourſes at Leipſick, $ 14. as alfo Mr. Titius's Obſerv, on Lauterbach.'Compend
.
Obſerv. 243.
(2) The words of the Law are, Vrbana predii omnia adificia accipimus, non folum ea que ſunt in oppidis, sed do li forte Stabula
funt, vel alia meritoria in villis & in vicis, vel ſi Piatoria voluptati tantum de ſervientia, quia urbanum prædium non locus facit jed mu-
teria, Digeft. I. 50. t. 16. De verbor. fignificat. leg. 198.
non
We
wont

Chap. VIII. Of Right over other Mens Goods or Poleſions. 195
bid or prevent.
wont to ſettle it amongſt themſelves, That no Man The Service of jutting or ſhooting out (7), which
jould uſe his own things to all purpoſes
, and in all impowers me to extend any kind of Building
over
reſpects, left others should thereby be reduc dz, as it were; the Houſe or Ground of another Man, yet ſo as
to ſhardſħips and Streights, but that each Perſon ſhould not to inake it reft upon the ſaid Houſe or Ground:
allow others ſuch a moderate uſe of what he himſelf As in Balconies, Pent-houſes, and the like. The
poſeſi'd, as they could not want
without great prejudice Service of raiſing a Building higher (8), by which we
to their Affairs (4). Vid. D. Lib. 11. t. 6.1. 1. ſ. 1, 2. are bound, though to our own Inconvenience, to
D. Ji ulus-fr. petatur. & Lib. 8. t. 1. l. 15. D. de give another leave, for his Benefit and Advantage
Servit. 1. 1o. D. de Servit. Urb. prad. l. 20. f. 2. 1. 31. to raiſe his Houſe ; which we might otherwiſe, for-
d. t.
Hefiod. Op. & dier. l. 1. 1. 343, &c.
The Service of not raiſing a Building bigher (9);
by which a Man, for the Profit and Convenience
Τον και μάλιςα καλάν, όσες στιθεν εγγυζινάιος
of the adjoining Tenements, is conftrain’d to keep
Εί και του και χρήμ' εγχώριον αλλα γένηται·
his Houſe low, or not to raiſe it beyond ſuch a fix'd
Teτονες αζώνοι έκιον, ζώσανίο δεπίνι
Height.
Πήμα κακώς γείτων, όσοντ’ αγαθος μίγ' όνειας
"Elauoge uor truñs, ós' fuucoge zei tovo 18
The Service of Lights (10), by which iny Neigh-
bour is obliged to admit my Lights, or my Win-
In Engliſh thus;
dows for the Conveyance of Light.
The Service of not bindring Lights ; by means of
Call Neighbours firſt, when Work is to be done ; which
my Neighbour can attempt nothing towards
Your Kinfinen ſtay to dreſs, undreſs’d your Neigh- the leſſening or obſcuring the Lights of my Houfe.
(bours run,
The Service of Proſpect; by which my Neighbour
Ill Neighbours Heaven for Puniſhments deſign'd is bound to let me look freely into his Eftate, and
As Good for Bleſſings : If one Good you find, cannot deprive me of that Benefit.
Think you have found a Treaſure
The Service of not hindring Prospect : by which a
Man is tied up from doing any thing in his Eſtate,
Socrates (in Xenophon. 'Amou.V.) L. 2. p. 432. in which might interrupt a free Proſpect or any ſide,
fu. Ed. H. Steph.) reckons up theſe Advantages of a eſpecially towards any delightful place:
Neighbour's Service; To light your Fire when you The Service of receiving Dropping Water (11),
have occafion; to afjiji you in any good Office; to be denotes an Obligation to ſuffer any fuch Convey
ready at hand for the affording you his kind Succour, ances, to empty themſelves upon our Ground, tho
if you happen to fall into any Misfortune, Add. to our Burthen and Trouble.
Plato de LL. 1. 8. p. 915. Edit. Francof. 1602. The Service of not receiving Dropping Water; de-
On the other ſide, 'tis a general Rule to be obſerv'd notes an Obligation, not to turn the ſame little
in the challenging theſe Services, that they be not Spouts or Gutters, which are already uſeful to our
carried too far, and that they be us’d with Mode- Neighbour, into a new Courſe for our own Advan-
fty, ſo as to cauſe no Trouble or uneaſineſs to thoſe tage.
that live about us.
The Service of receiving the River (12); by which
The particular Services of City Eſtates are reckon'd my Neighbour is bound to grant paſſage to the
(for the moſt part) as follows. The Services of beara larger Currants which flow (like a River) thro?
ing a Burthen (5), by which any Neighbour is bound my Houſe in Pipes or Canals.
to let my Houſe reſt upon his Wall or Pillar. The Service of not turning away the River ; re-
The Conſequence of which is, That the Perſon who ftraining my Neighbour from diverting, any ſuch
owes me this Service, ſhall be likewiſe engaged Channel or Stream which iſſues out of his Houſe,
to repair the ſaid Wall or Pillar, becauſe other- ſo as to hinder it from paſſing through my Eſtate,
wiſe, if the Support ſhould fall, the Service comes to my great Benefit.
to nothing. The Service of letting in a Beam (6), Laſtly, We are to refer to the fame Head (13);
by which I am allow'd' to carry on a Rafter The Service of employing Sinks and Kennels ; of pour-
or Beain, or any other Piece which joins my Build- ing out any thing upon a Neighbour's Ground, and
ing together, till it enters into my Neighbour's whatever there are beſides of the fame kind.
Houſe, and is there faſten’d.
abour Services.
(4) The Rights of Service are not confined to what is abſolutely neceſſary for the uſe of the Poffeffor of the Ground, but
they extend alſo to whatever is for the convenience and pleaſure of the Owner, as much as for his Profit. See Mr. Noodts
probab. Juris. I. 1. C.2. where we may find many curious Obſervations for the underſtanding of ſeveral of the Roman Laws
(5) De ſervitute, que oneris ferendi caufa impoſita erit, &c. Digeſt. 1. 8. to 5. Si ſervitus d'indicetur, &c. leg. 6. § 2. Eum debere
columnam reftituere, que onus vicinarum ædium ferebat, cujus eſſent edes que ſervirent, 1. 8. t. 2. de ſervit, præd. urban. leg. 33.
(6) Jus immittendi tigni in parietem vicini, ibid. leg. 2. See Mr. Thomafius's Diſcourſe, de ſervit. Stillicidii
, 8 59.
(7) Projiciendi, protegendive, ib d. Inter proje&tum & immiſſum hoc intereſſe, ait Labeo, quod proje&um eßet id quod ita proveheretur,
ut nuſquam requieſceret, qualia Meniana & ſuggrundia eſſent, immiſſum autem quod ita fieret, ut aliquo loco requieſceret, veluti tigna,
trabes, quæ immitterentur, 1. 50. t. 16. de verbor. Significat. leg. 242. See l. 5. 6. 5. & 4. infra, and Amm. Marcellinus,'1. 27. c. 9. in
fine, quored alſo by Mr. Hirtius.
(8) Altius tollendi aut non extollendi, 1. 8. t. 2. ut ſupra.
(9) Luminum fervitute conſtituta id acquiſitum videtur, ut vicinus lumina noſtra accipiat. Cum autem fervitus imponitur ne luminibus
oficiatur, hoc maxime adepti videmur, ut jus ſit vicino invitis nobis altius ædificare, atque ita minuere lumina noſtrorum ædificiorum, ibid.
(10) Inter servitutes ne luminibus officiatur, done perſpe&tui offendatur, aliud do aliud obſervatur, quod in prospeitu plus, quis habet,
re quid ei officiatur ad gratiorem profpeëtumn do liberuin, ibid. leg. 15.
(11) Item ſtillicidium avertendi in teftum, vel aream vicini, vel non avertendi, ibid. leg. 2. See alſo leg. 20. 8 2, 5, 6. See alſo,
Mr. Thomaſius's Diſcourſe on the ſame Subject.
(12) Vt fluinen recipiat quis in edes fuas vel in aream, Inſtit. 1. 2. t. 3. $ 1.
(13) Jus Cloaca mittende ſervitus est, Digeſt. 1. 8. t. 1. leg. 7. This Service is alſo for Country-Dwellings. See t. 3. de ſervitut.
† B b 2
XII, The
leg. 4.
præd. rují ic. leg. 2. princip.

196 Of Right over other Mens Goods or Poſſeſſions.
Book IV.
XII. The Services of Country Eſtates (1); or which not allow'd to go farther. Water-draught; the Right
are due to Lands and Hereditaments employd in of fetching Water from a Spring, or other place, for
Rural Affairs, are commonly reckon'd in this Cata- the neceflary, Occaſions of our Ground: Which
logue. Paſage; the Right of a Path for Men to Grant is preſum'd to include alſo another (3), of
walk through my Neighbour's Ground into mine, free paſſage to the Spring or Well. Waterage" for
for the benefit of the latter. Carriage; the Right Cattle; a Right to drive the Beaſts which feed in
of driving Beaſts or Wains. Road, or Way; the our Ground, to drink at our Neighbour's Pool, To
Right of going, walking, driving; as likewiſe of the ſame Head belongs The Right of feeding our Cat-
carrying, leading, bearing and drawing any thing tle on another's Pafture: Concerning which
Right
which makes for the Advantage of my Eſtate. Wa- it hath been obſerv’d, That the Lord of the Ground
ter-courſe ;, the Right of bringing Water through my which is charg’d with this Service, is not hereby
Neighbour's Field, for the benefit of my own; whe- hindred from feeding his own Cattle in the ſame
ther I uſe this Water for the Ground, or for the place, provided he do not overſtock it, ſo as to in-
Beaſts, or only to free my Land from an unneceffa- tercept the Right
of the other Party. And ſo too,
ry Burthen and Flood." 'Tis the Nature of theſe he who hath the Right of Paſturage, ought not to
Services, that they cannot be granted in part (2), bring in Diſeas’d or Scabby Beaſts, which might
being of no uſe unleſs Entire. For, as the Civil Law communicate the Infection to others.
obſerves in one of theſe Inſtances; A Road or Way Laſtly, To theſe are added, The Right of burning
is then wont to be finiſhed, when it reacheth, either to Lime, of digging Sand, of cutting Stakes
, of felling
a Town, or to fome High and publick Way, or to a Wood, and of bewing Stone ; as they turn to the Ad-
Ferry, or to ſome other Farm of the ſame Lord. vantage of Country Eſtates. All which have been
Therefore it would be vain and uſeleſs to obtain by others explaind more at large (4).
paſſage only thro' half another's Ground, if we were
Mr. Barbeyrac's NOTES on 12.
(1) Servitutes rufticorum prædiorum ſunt hæ, Iter est jus eundi, ambulandi homini, non etiam jumentum agendi. A&tus eft jus agendi
,
vel jumentum, vel vehiculum. Via eſt jus eundi, & agendi
, & ambulandi, Digeft. 1. 8. t. 3. de ſervit. pred. ruſtic. leg. i. See about
this Mr. Bynkerſhoek's Obſervations. Aquedu&tus eft jus aquam ducendi per fundum alienuin. In rúſticis computanda ſunt aqua hauftus pe.
coris ad aquam adpul
ſus, jus paſcendi, calcis coquendæ, arena fodiende . Etiam ut pedamenta ad vineam ex vicini predio ſuman-
tur, &c. ibid. leg. 3.
(2) Quia via conſumimari ſolet, vel civitate tenus, vel ufque ad viam publicam, vel uſque ad flumen, in quo pontonibus trajiciatur, vel
uſque ad proprium aliuin Domini prædium, bid. leg. 38.
(3) Qui habet hauftum, iter quoque habere videtur ad hauriendum, Ibid. leg. 3.8 3.
(4) See Mr. Daumat's Civil Laws in their Natural Order, Parc il, 1 t. 12. Ás to the Right of Fiefs or Fealty (which our Au-
thor has omitted, 'tis the common Opinion, that they are derived from the People of the ancient Germany. See Grotius, De Jure
Belli Pacis, 1. 1 C. 3 $ 23. and Paul Hachenberg's Germania Media, &c. Diſſert. 9. or the Excract in Bibliothec. Vniverf. Tom 6
P: 356, &c. as alſo Mr. Thomaſius's Diſcourſe, entitled, Sele&ta capita hiſtoria juris feudalis Germanici, which is among his Seleda
feudalia priated at Hall in Saxony in 1708. Yet fome, among whom is our Author, as we may ſee 1.8 c. 4 8 30 following, be-
lieve that it had its original from the Romans. See Mr. Hirtius upon the place, and his Diſcourſe, De feudis oblatis, Sect. 1. 8 2
which is in Tom. 2. of his Comments and Opuſc. Mr. Thomaſius himſelf thought formerly, that Fiefs were in uſe among ſeveral
People before the Germans, though he could not find out the firſt Riſe of them. See his Diſcourſe, De Origine & Natura Feodi
oblati, which is the 12th among his Diſputations at Leipſick. But be that as it will, there are ſeveral ſorts of Fiefs, of which ar
this time we ſhall ſpeak of the moſt common only. A Fief thien is a Right of enjoying fully an immovable or incorporeal Eſtate,
that belongs to another, to whom we have obliged ourſelves to pay Homage and Fealty with certain Services and Duties upon
chat account. The Right paſſes to the Heirs, but moſt commonly to the Males only in a right Line, or the collateral Relations on
the Father's fide; for thoſe on the Mother's have no Title. He that grants theſe Lands in Feally is the Lord, and he that receives
them is called his Vaffal. Where the Lineal Heirs capable of Succeſſion are extinct, or the Vafial is found guilty of Felony, (i.e.)
hath broken the Engagements he was under to his Lord, or neglects certain Forms in his Tenure : Or, Laſtly, performs not the
Conditions by which he holds his Fief, it then recurns to the Lord. We may find the Cuftoms of Fiefs in the Body of the Civil
Law, which Collection was made about the Year 1954. But Mr. Thomaſius has publiſh'd an Author more ancient, De Beneficiis
,
as Fiefs are called, written before the nth Century, and has joyned with it two fine Diſcourſes; the one concerning the Au-
thor and Antiquity of that work, the other of the good uſe of it; and in them proves, that the Author wrote in the Iath
Century, and at the bottom of each Paragraph has made References to parallel places in the Speculum Saxonicum do Suevicum, all
which are found in his Sele&ta Feudalia before mention'd. In fine, Multitudes of Authors all over Germany have publilhed Treas
ciſes about the Nature of Fiels.
C H A P.

Chap. IX.
197
Of Transferring of Property in General.
a thing.
CHA P. IX.
Of Transferring of Property in General.
1. It proceeds from Property, that we may alienate | V. Whether Livery be required in every Aliena-
tion.
II. The Conſent of two Perſons is required in eve- VI. Property is either accompanied with, or ſepara-
ry Alienation.
ted from Pofeſjon.
III. Which is to be expreſſed by ſome Signs. VII. What, and how manifold Poſſeſion is.
IV. An Alienation is made entirely, or upon Con- VIII. How Property is gained by bargaining only.
ditions.
IX. True and feigned Delivery.
W
TE are now to conſider the Derivative Ways of which this is an Evidence, that the Heir may refuſe
Acquiſition, by which Dominion or Proper- the Inheritance (2); and unleſs, either in Perſon or
ty already eſtabliſh’d, pafſeth from one to another: by Proxy, he takes actual Poſſeſſion of it, he is not
Which, before we proceed particularly to examine, affected by thoſe Obligations which ariſe from it,
it may be convenient to premiſe fomewhat about or are charg'd upon it.
the transferring of Property (1) in General. The III. Farther, ſince Alienations ought to be made
Power and Privileges then (2) of alienating our own with the Confent of both Parties, and ſince it is in-
Poſſeſſions, or of conveying them to others, ariſeth conſiſtent with humane Society, that bare Internal
from the Nature of full Property (3): For ſince this Acts ſhould be allow'd a Power of producingRights to
enables a Man to diſpoſe of his own how he pleaſeth, hold Valid and Effectual with regard to other Men;
it ſeems the very Principal part of that Ability, therefore 'tis required on both ſides, as well on the
that he may, if he thinks convenient, transfer the Giver's as on the Receiver's, that they declare their
thing to another, by which means he may either Conſent by fufficient Signs, that others may be ful-
procure to himſelf ſomething more ſerviceable, or ly affur’d of it: Such as aré, Nods, Geſtures, Words,
at leaſt may have an Opportunity of obliging a Writings; to which, in ſome places are added, So-
Friend by his own Turn.
lemn Profeſſion before a Magiſtrate, Publick Regi-
II. Now as the Conveyance of Rights and of ſtring, and the like (1).
things is tranſacted between two Parties, the one IV. It is evident, moreover, that when a Tran-
from whom, and the other to whom they paſs (a); ſlation or Alienation hath been perfectly and un-
ſo in thoſe Methods of Acquiſition which flow from conditionally made, the Alienator retains no man-
the Force and Vertue of Property, the Concurrence ner of Right or Title to the thing which was be-
of two Wills is required (1), the Givers and the Re- fore his own. Which Conſequence, though it be
ceivers (b). For Alienation doth eſpecially denote, naturally implied in every Act of this kind, yet
that the thing paſſeth from the Proprietor, with his 'tis uſual in Solemn Renunciations and Surrendries,
free Conſent, and is not taken froin him by meer exprefly to declare, That neither we our felves, nor
Violence againſt his Will. Again, To make a thing our Heirs will hereafter make any Pretenſion or
change Maſters, it is neceflary likewiſe that the Attempt upon what we have now given up; and
latter agree, as well as the former; it being incon- that if any ſuch Motion happens, it ſhall be null
venient, that a thing, which as to its Natural Sub- and void : Becauſe when we have once made a thing
ſtance, exiſts ſeparately from me, ſhould be, as it anothers, we cannot, to any purpoſe, claim the dil
were, join’d and united to me, unleſs I embrace poſal of it again. Yet frequently after a thing hath
it with my own Conſent and Choice. But in been alienated, the former Owner reſerves fome
Cafes where the Property is ſaid, of Right, to paſs kind of Claim, or a ſort of Chance Right, which
to Men without their knowledge, as in Inheritan- in Caſe of ſome particular Event, now unknown,
ces
, there the Law is preſurned to make an Accept- exerts its Force. And this, either becauſe in the
ance by way of Fiction, in favour of the Heir. Of Act of Alienation it was thus expreſly covenanted;


leg• 1.
Mr. Barbeyrac's NOTES on Chap. 9. § 1.
(1) The words of the Law are, Et autem alienatio omnis aétus per quem Dominium transfertur, Cod. 1. 5 t. 23 De Fundo Dotali,
(2) Nihil enim tam conveniens eft naturali equitati, fay the Roman Lawyers, quam voluntatem Domini, volentis rem ſuam in alium
transferre ratam haberi, Inſtit. 1. 2 t. 1 De rerum divif. 6 40.
(3) To ſpeak properly, we can't ſay that the power of "Alienation is the conſequence of the Right of Property, becauſe 'tis
the Property thae is alienated, and one and the fame thing can't be the Cauſe and Matter of an Alienation. The truth is, the
power of transferring a Man's Goods to another proceeds from the natural Liberty which every one hath to preſerve his Right,
or make it over to whom he pleaſes. Whence it comes, that he may alienate
not only the Property, but alſo all other Rights,
unleſs there be fome Law, Agreement, or ſuch like Act, which reſtrains this Liberty within certain Bounds. Titius's Obferva-
tions, 312, numb. 2.
Mr. Barbeyrac's NOTES on § 2.
(1) So the Law ſpeaks, In omnibus rebus quæ Dominium transferunt, concurrat oportet affe&tus ex utraque parte contrahentium, nam
five ea venditio,
live donatio
, five condu&tio, five qualibet alia cauſa contrahendi fuit, nifi animus utriuſq; conſentit, perduci ad effe&tum
id quod inchoatur non poteft, Digeſt 1. 44. t. 5. de obligat. do altion. leg. 55. See 1. 3. c. 6S is above.
(2) See the Title of the Digeft de acquirenda vel amittenda hæreditate, 1. 29 t. 2.
Mr. Barbeyrac's NOTES on 6 3.
9) Certain Marks or Signs, for example, when any one among the Germans alienared an immovable thing, he deliver'd a
Rod called Effetucatio
, or he took up fome Duft or other piece of the Soil, and caſt it upon the Folds of the Robe of the Buyer
.
See Mr. Hirtius's Noces upon this place.
(a) Vid. Grot. l. 2. C. 61.1, 2.
(6) See what has beca faid upon this in l. 3 có 6 ſ. 196

198
Of Transferring of Property in General.
Book IV
ap
as is the Practice in Sales with Liberty of Refu- tions, as ſuppoſe in Occupancy, or firft Seizure, the
fal (1), in things alienated under an Exception or Title or Cauſe, and the manner of acquiring fill in
Condition (2), and when only a uſeful Diminutive with each other. But that in Derivative Acqu jitions
or imperfect Property is transfer’d (3), as happens in theſe two are ever diſtinct : Delivery and Acceptance
the Grant of Feuds, and of Copies and Leales : Or, be- being the manner of transferring Property, or rather
cauſe the Alienation includes a Tacit Condition, the Acts which occur in transferring it; whilft Do-
which Condition coming to paſs, the Right of the nation (3), Buying and Selling, &c. are the Titles or
former Owner to the thing thus convey'd revives; Cauſes upon which the Conveyance is made. Tho?
whence ariſe thoſe ſeveral Actions in Civil Law (4), we have already ſhewn, that bare Occupancy is not
given upon a certain a fufficient Title for Dominion, but that it muſt in
Cauſe (5), which Cauſe did not follow (6); of the all Caſes be grounded on fome precedent Cove-
Recovery of Spouſal Preſents upon not proceeding nant (4). Others take a Middle Judgment in the
to Marriage ; of Recovery of Dowry upon Divorce Point ; and as they deny that Delivery is by the
or Separation (7).
Law of Nature Neceſſary, ſo they maintain, That
Vulcan, in Homer (a) upon his taking Venus in ’tis, however, agreeable to Reaſon; Inaſinuch as I
Adultery (8), challengeth the fedve, the Preſents he cannot exerciſe Doncinion over a thing, unleſs I
made his Father-in-Law, in proſpect of the Match. ply it, as it were Corporally to my felf; which can
'Tis a Rule in the Alcoran, That if a Suiter put away be done only by Delivery on the one ſide ; and by
bis Spouſe before Conſummation, ſhe ſhall retain half of Actual Seizure on the other (5).
what he gave her, unleſs ſhe chuſe to throw him back VI. In our Judgment, the Matter may be clear-
ly reſolv’d, by obſerving, that Dominion is capable
V. But the chief Point uſually controverted on of two different Confiderations; either as it denotes
this Subject is, Whether or no in the transferring of a bare Moral Quality, by virtue of which we un-
Property the Law of Nature requires Delivery? For derſtand that a thing belongs to fome Perſon, and
others have already well obſerv’d, That Delivery that it ought to be ſubject to his Diſpoſal; or as
cannot rightly be plac'd amongſt the Ways of ac- it implies farther, ſome degree of Natural Power;
quiring (1), fince 'tis only an Act intervening in the by which we are enabled to put immediately in
Conveyance of it. Grotius (b) is of Opinion, That ac- Execution any purpoſe that we have made con-
cording to the Law of Nature, Property may be trans- cerning the ſaid thing. Or what amounts to the
ferr’d by bare Covenant; and that Delivery, is only fame, Dominion is ſometimes conſider'd as abftract-
requir'd by a Civil or Poſitive Ordinance, which be- ed from Pojeſion, and ſometimes is conceivd as
ing receiv'd by many States, is through miſtake Nyled, united to it; this being, as it were, the final com-
The Law of Nations. On the other hand the Ex- pletion of Property; upon the arrival of which it
poſitors of the Roman Laws declare, That the Do- fully exerts its direct Effects. For the better Illu-
minion of things cannot be transferr’d by bare Cove- ftration therefore, of the Point, it will not be in-
nants (2), though thus much be expreſly intimated in convenient to ſay ſomewhat of Poſſeſſion in Ge-
the Tranſa&tion, but that Delivery is ſtill requiſite, neral.
The Reaſon of which Neceſſity they take to be this; VII. By Poleflion then, we underſtand not the
That Dominions firſt took their riſe from Natural bare retention of a thing; ſuch as a Keeper (1), an
Poffeffion, and that therefore in paling them away, ſuch Adminiſtrator, a Borrower, or a Tenant for Uſe and
an A& muſt intervene, by which the Natural Poſſef- Profit, have with regard to the Goods of others ;
fion of the thing may be immediately obtain’d. Some but ſuch as carries along with it an Affection and
have further remark’d, That in Originary Acquiſi- Deſire of having the thing to ones ſelf (2). This
all.
Mr. Barbeyrac's NOTES on S 4.
(1) See hereafter, in l. 5 c.5.1.4. (?) See the ſame place. (3) See what we have ſaid in c. 4. 1. 2.
(4) Conditio indebiti, which is explained before, l. 3.C.4 $ 5 n. 4.
15) Conditio cauſa data, cauſa non ſecuta. This is when a thing, which was given upon a Condition, which was not performed,
is required again. See the Interpreters upon the Digest. 1. 12 c. 4 and Mr. Noodt's Probab. Juris, 1. 4. c.4, 5.
(6) See upon this Subject, Cod. l. st. i De S'ponſalibus & Arris sponſalitiis do Proxeneticis, cit. 3. De Donationibus ante nuptias,
vel propter Nuptias do Sponfalitiis.
() See the Digeft. 1. 244. 3. Soluto Matrimonio dos quemadmodum petatur.
8) This was the Cuſtom in thoſe Times. See Mr. Le Clerc's Notes upon Gen. 34. 12. and Mr. Perizonius's upon Ælian. Hift
.
1.
4 C. I p. 301, 302.
Mr. Barbeyrac's NOTES on $ 5.
(1) It is a Determination of the Roman Law, Per traditionem quoque jure naturali res nobis acquiruntur, as the Lawyers ſpcak,
Inſit. 1. 2. t. 1. de rerum diviſione, 640.
(2) Traditionibus dar uſucaptionibus Dominia rerum non nudis pa&tis transferuntur, Cod. l. 3. de pa&tis, leg.20. See alſo, 1.6 t. 1. de
rei vindic. leg. so. and the code with the ſame Title, l. 3 t. 32 leg. 15, 26. as alſo l. 46.39. de hæredit. vel altione vendit a, leg. 6.
(3) Nunquam nuda traditio transfert Dominium, sed ita ſi venditio aut aliqua juſta cauſa preceſſerit, propter quam traditio ſequeretur,
Digeſt
. 1. 41 t, i de acquir. rerum Dominio, leg. 31 in princip. See Vinnius upon the Inſtitutes, 1. 2 t. Is 40.
(4) I have proved the contrary above, c. 4 S 4 n. 4. See alſo s 8 n. 1.
(5) See Mr. Daumat's Civil Laws in their Natural Order, Partul. t. 2 Sect. 2. S10 with the Note.
Mr. Barbeyrac's NOTES on $ 7.
(1) The Law ſays, Denique sit ab eo, apud quem depoſita est, vel commodata, vel qui conduxerit, vel qui legatorum conſervandorum
caufa, vel dotis, ventriſque nomine, in poressione effet, vel aut damni infefli nomine non cavebatur, quia hi omnes non poßident, vindicari
non poße, Dig. 1. 6 t. I de rei vindic. leg. 9. See 1.41 t. 2 de acquir. vel amittend. poffeffione, leg. 3 $ 20.
(2) Et apiſcimur Pfeffionem corpore & animo, neque per
ſe animo, aut per ſe corpore, Digeft. 1.41 + 2 de acquirend. vel amitten polo
seſione, leg. 3 $ !. Is qui pignori accepit, aut qui precario rogavit, non tenetur nocali a&tione, licet enim juſte poffideant, non tamen opio
nione Domini poſi lent, Dig. I. 9. t. 4 de noxal. altionibus. leg. 22 $ 1. See Cujacius's Obſervat. I. 9. c. 33. Farther, here are ſome
great Diſputes (which are for the moſt part but wordy Brangles) among the Roman Lawyers themſelves, but more among their
Interpreters, the one fixing one Senſe upon the word Posſeſion, and the other another, as well as to the diviſion of it into Natural
and Civil. See Mr. Daumat's Civil Laws in their Natural Order, Part 1 1. 3 t. 7. and Mr. Titius's Obſervations on Lauterbach, 1022,
doc. as alſo his Jus Privatum Romano-German. princed in 1709. 1. 2 c. 7,
() Odyf. 1. 8. v. 18. (6) Lib. 2 c. 61.1. & c. 8 f. 25. and elſewhere.
they



8.

CHAP. IX.
Of Transferring of Property in General. 199
s
theydivide into(3) Natural and Civil:Which Diviſion
a Houſe, is not obliged to walk over every Foot of
may again be confider’d in two reſpects ; either as to Ground, ur to creep into every Garret,
but 'tis enough
the outward manner of poffeffing or retaining; or for him to enter on any part (8). A complex Body
as to the inward Form or Effence of Poſſeffion. In inade up of particular ſeparate Bodies, as a Flocks
the foriner Senſe we are then ſaid to have Natural for example; if all the Parts are preſent, 'tis fup-
Poffefſion, when having once taken a thing, we ſtick poſed to be taken all by laying hold on any one.
to it, not only by the inclination of our Mind, but But if the Parts are divided as to place, one part
by Actual, and as it were, Corporal Application. C of the Flock, for inſtance, in this field, and ano-
vil Poffeflion may in this Senſe be kept in Mindther in that (9);, here each part is to be taken by it
only, when ʼtis loſt as to the Body. Inaſmuch as Nati- felf. Incorporeal Things when they adhere to a
onal Laws, in ſome particular Caſes
, ftill allow the corporeal, are preſum d to be taken together with it.
Advantages, which follow Poffeſfion, to thoſe who But if they are to be acquired in the Goods of
have quitted their actual hold (4), or loſt things out others, then they are taken either when we are in-
of their Hands. In the latter reſpect Natural Poſſef- troduced to a thing, over which (10), for inſtance,
fion is, when we have indeed a Mind and Inclinati- we deſign to appoint a Right or Service, or when
on to keep a thing as our own, yet without any juſt we exerciſe any Act which flows, as it were, from
perſwaſion of Property, ſuch as might ariſe from a fuch a Right.
lawful Title. But Civil Pollefion implies not only a In Negative Rights (11), it is equivalent to Pof-
Deſire, but likewiſe a reaſonable Ground for that De- ſeffion, if I forbid a Man any thing, or oppofe him
fire; which according to the Common and Regular in his deſign upon it, and if he reſts fatisfied after
Courſe
, is always underſtood in National Conſtitu- my forbidding or oppoſing him. To proceed ; ſuch
tions, when they allow any favour to Poffeffion (a). a Seizure, or the exerciſe of fuch an Act is neceſſa-
Now the proper Subject of Poffefron, are Bodily rily required in the obtaining of every Poffeflion:
Subſtances (5), whether with or without Motion : Though it may by Civil Ordinances be appointed,
The leſs proper or the Analogous Subject, are In- That the Property of a thing ihall otherwiſe by
corporeal Things (), as Rights, which we poſſeſs Right paſs to a Man fo effectually, as that he ſhall
by uſing them, and by the power of fo uſing them; bring as ſtrong an Action againſt one who details
as likewiſe Deeds and Writings, upon which an Acti- the thing from him, as if he had taken Corporal
on may be grounded towards fome certain Claims. Poſſeſſion of it (b).
To the conſtituting and compleating the Nature of Farther; As to the acquiring a thing by Occu-
Poffeffion, it is requiſite that the Perſon to be put pancy, it is neceſſary, that the thing lay free and
into poſſeſſion thall either by himſelf
, or by vacant : So if a thing is to paſs from another to me,
Proxy (7), corporally take to him the Thing it felf, with fuch force and virtue,as that I may be able here-
or the Badge and Sign of it, or the Inſtrument of after actually to diſpoſe of it, it is likewiſe necef-
Cuſtody, according as the Nature of the thing per- fary that he abdicate and diveſt himſelf of the Por-
and conſequently, that the Thing be after fellion, and remove it, as it were, out of his Cuſto-
ſuch a manner ſubjected to his Power, as that he dy, that I may have Power immediately to ſeize
may be able actually to diſpoſe of it. If many on it. And this is enough to make it properly be
Bodies are united and connected to each other, then ſaid, that a thing is deliver'd by another; there
the taking any one part with a deſire of poffeffing being no need that he ſhould directly put it into
the whole, is conſtrued for taking the whole, fo far my very Hands. As I may very well be ſaid to
as it lies free and void of Owners
. Thus, for in- feed a Man, tho' I do not chew his Meat for him,
ftance, He who would take pojefion of a Field, or of and then thruſt it into his Mouth, but only lay it
mits ;
(3) Ut poßeffio non ſolum civilis, ſed etiam naturalis intelligatur, Digeſt. 1. 41 t. 5 pro barede; ti pro poffefore, &c. leg. 2. $ 1.
(4) See above c. 6 § 12, n. 10.
(5) This is a diſtinction of the Roman Law. By things corporal is underſtood every thing that is the object of our Senſes, and
may be touch'd, as the Ground, Man, a Garmene, a piece of Gold or Silver, doc. Whereas things incorporeal are not obvious
to our Senſes, and conſiſt only in a certain Right that Men have, ſuch are, an Inheritance, an obligation, a Pawn, an Uſu.
fruct
, a Service, &c. Corporales hæ funt, quæ tangi poſſunt, veluti fundus, homo, veſtis, aurum, argentum, bo denique alie res innu-
merabiles
. Incorporales autem ſunt, que tangi non posſunt, qualia funt ea quæ in jure conſiſtunt, Sicut hæreditas
, ufus, ufusfructus & ob-
ligationes quoquo modo contra£té, Inftit. I. 2 t. 2 8 1, 2. ' Cicero in his Topicks calls the firſt things that really exiſt, and the other
things that have no Exiſtence but in our Minds. Eſſe ea dico (ſays he) que cerni tangive poſſunt, ut fundum, ades; parietem, Stillici-
dium, mancipium, pecudem, fupelle&tilem, penus, & cetera. Non esſe rur ſus ea dico que tangi demonſtrative non poſſunt
, cerni tamen animi
& intelligi posſunt, ut ſi in ufucapionem, fi tutelam, ſi gentem, ši agnationem definias, quarum reruin nullum ſubest quafi corpus, eft tag
men quadam conformatio inſignita do impreſſa intelligentia
, quam notionem voco, có s. See Mr. Noodt's Probab. Juris, l. 2 c. 3.
(6) Ego puto uſun ejus juris pro traditione poffeffionis accipiendum effe, Dig. 1. 8 t. 1 de ſervit. Ib. leg. 20.
(7) Generaliter quiſquis omnino noſtro nomine fit in poseſione, veluti procurator, hoſpes, amicus, nos poffidere vidémur, Dig. l. 41 c. 26
de acquir. vel amitt. posſeſſione, leg: 9.
(9) Non utique ita accipiendum est
, ut qui fundum poſſidere velit, omnes glebas circumambulet, fed fufficit quamlibet partem ejus fundi,
introire, dum mente de cogitatione hac fit, uti totum fundum ufque ad terminum velit poſidere, ibid. leg. 3 $ 1.
The Interpreters of the Roman Law infer this from a Law, which imports, That if in an Herd which one has gotten by
Right of Preſcription, a Beaſt be found that belongs to another who has bought it fince the time of the Preſcription began, to
fun with the others, he can't become the lawful Owner of that Beaſt, becauſe he did not take poſſeſſion of all the Beaſts in the
Flock at the ſame time, and of all them that afterwards Mould be joyned to it, but only of the firſt. Rerum mixtura fa&ts, an
ufucapionem cujuſque pracedentem interrumpit, quæritur?
Non autem grex univerſus fic capiatur uſu, quomodo fingulæ res ; nec fic
quomodo cohærentes, Quid ergo eft? Etſi ea natura ejus est, ut adje&tionibus corporum maneat idem, non tamen (for ſo it ought to be read
with Haloander and Cujacius ) univerji gregis ulla eft ufucapio, ſed ſingulorum animalium ficut poſledio, ita & ufucapio, nec ſi quid emptum
intermixtum fuerit gregi, augendi ejus gratia, idcirco poſsessionis cauſa mutabitur, ut fi reliquus grex domini mei fit
, hec quoque ovis, sed
fingule luam cauſam babebunt, ita ut fi quæ furtiva erunt, ſint quidem ex grege non tamen uſucapiantur, Digeſt
. 1. 4. t. 3 de uſurpationi
bus do uſucapionibus, leg. 30 $ 2.
(CO) Dare enim (hæres uſumfructum) intelligitur, ſi induxerit in fundum legatarium, eumque patiatur uti, frui, Digeſt. l. 77. i de
ufufruétu, &c. leg. 3 in princip.
(!!) That is to lay, which conſiſts in hindring a Perſon from doing certain things.
(b) To which Point belongs what is alledg’d by Grotius, l. 2 c.8 f. 25.
(«) Vid. Polyb. 1. 12 C. 76
in

200 Of Transferring of Property in General
.
Book IV.
in ſuch a place, whence he may conveniently reach But tho' a thing can no longer be reckon'd my
it for his uſe (a).
own, when I have made over the full Right of it to
VIII. Theſe Rules being laid down, it is evi- another Man, yet ’tis ſomewhat different whether I
dent, that Dominion conſider'd meerly as a Moral ſtill corporally detain the ſaid thing, or whether
Quality, and as it abſtracts from Poffeffon (1), may the other Party hath already got poffeffion of it.
certainly be transferr’d by bare Covenants ; but that For in the former caſe he is both unable to apply it
as 'tis underſtood to include likewiſe foine degree preſently to his Actual Uſe; and beſides, if I refuſe
of Natural Power, by means of which it may im- to deliver it, he muſt coinpel me to grant him
mediately be put in Act, beſides Covenants, Deli- poffeffion in a forcible way. And if Matters ftand
very is farther required : which doth not ariſe from thus, beſides the Inconvenience of wanting the thing
the force of Poſitive Law, but from pure Natural in the mean time, if you live under Civil Govern
Reaſon. Nor yet is it neceſſary to affirm, That ment, you muſt be at the trouble of making out
before Delivery the Alienator retains fome kind of your Right to the Judge; and if he either through
imperfect Dominion; unleſs we would very unar- Corruption or Neglect ſhall pronounce a falfe Sen-
tificially aſcribe the Name of Dominion to a bare tence, you muſt ſit down contented : But if
you
Natural Ability, actually to diſpoſe of a Thing, are in a ſtate of Natural Liberty, you muſt try out
without a Moral Power or Right.
the Matter by the doubtful Fortune of War.
For after the Covenant is compleated, or after On this account it is that the Roman Laws af-
the Right is by Covenant transfer'd on another, firm (2), That thoſe Contracts which treat of the
the thing immediately commenceth his, and regards alienating of Things, do give only a Right to the
purely his Intereſt and Advantage; and the Alie- Thing; as if before Delivery the Perſon were placa
nator can lawfully exerciſe no Act about it, but as one may ſay, at a diſtance from the Thing, only
ſuch as tends towards delivering up the Poffeffion with a Right of joyning it to himſelf hereafter. But
to the other Party. If, before Delivery, he make that when Dominion hath received its final Com-
any other diſpoſal of the ſaid thing, he doth this pletion from corporal Seizure, then a Right is eſta-
only de facto, and not de jure. And Delivery it ſelf bliſh'd in the Thing. Yet the Law frequently ſup-
is not properly the final Act of Dominion, but the plies the former Deficiency : As for inſtance, by
Releaſement and Abdication of Corporal Cuſtody. reckoning amongſt the Rights in a Thing, the Right
For that only is eſteem'd an Act of Dominion which of Inheritance (3), or that which the Heirs have to
by virtue of Dominion is freely perform’d. But De- the Goods of the Deceas’d, although they have not
livery is made not freely, but upon Neceflity, or yet got Poffeflion. As for the other diſtinction of
Obligation. As the Reſignation of a Magiſtrate the Roman Laws, in granting a (4) Real Action up-
cannot be ſtild an Act of his Office, of we confi- on a Right in a Thing, and a Perſonal A&tion upon a
der that Office, as denoting a Power to command Right to a Thing, the ground of it ſeems to be this
others.
That when a thing once perfectly belongs to me, I
Mr. Barbeyrac's NOTES on $ 8.
(1) It is evident, that in this Queſtion every body underſtands a Moral Power, or Right of diſpoſing of a thing that apper-
tains to them, and no Man doubts, but to exerciſe this Righe actually, he ought to be in poffeffion of the thing; ſo thar the diſtin.
ction of our Author is uſeleſs, and he might better maintain the Affirmative plainly. Farther, according to the Maxims of the
Civil Law, a fertled Poffeffion does not require a perpetual keeping of it, nor is it neceſſary to inave the thing poſieſted in our
Hands, or under our Eyes, Licet poffefio nudo animo acquiri non poßit, tamen ſolo animo retineri poßit, Cod. l. 7 t. 32 leg. 4. Why
then can't a Property be gained, as it is a Righe purely Moral, by a bare Agreement, without taking any Poffeffion? See Balthar.
. .
f.
(2) Jus ad rein. This diſtinction is not found in ſo many Terms in the Body of the Roman Law, as our Author fuppoſes it, bur
it is in the Canon Law, which uſes it in treating of the Collation of Benefices. Jus vero quod ſecundo AD PRÆBENDAM,
“ NON IN PRÆBENDA, hujuſmodi competebat, &c. Decretal. 1. 3 t. 4 de præbendis do dignit. in 6 Can. 40. Quarum gratiarum
“ ratione tunc non erat ad collationem proceſſum & fic per conſequens JUS IN RE non fuerat ipfis impetrancibus adquifitum,
“ &c. ibid. c. 7.de conceſſione præbendæ, &c. Can. 8. Per ordinationem feu diviſionem noftram prædictam JUS AD REM expectan-
tibus, &c. Extravag. Joan. 22 c. 4 de conceſs. prebend. c. 1. See Mr. Thomaſius's Diſcourſe, entitled, Philoſophica furis de obli-
gat. do ałtion. c. 2 ſ. 115. 'tis the third among his Diſputations at Leipſick. So that the Interpreters of the Roman Law have
borrowed their diſtin&tion of Jus in re e ad rem from the Canon Law,and they uſe it as a conſequence of what the ancient Law-
yers ſpeak, that no bare Agreemenes transfer any Property, and therefore a thing muſt be deliver'd, unleſs there has been a Pof-
ſeſſion for ſome time, as ic happens in Preſcription. See the Law quoted above, 1. 5 n. 2. Hence it follows, that when, for
example, a Bargain of Sale is paſs’d, no Right is acquir’d to the thing it ſelf (fus in re) but only a Right to oblige cbe Seller to
deliver it to us, that we may take Poſſeſſion of it, and by that means acquire a Right to it. This is what the Interpreters call fous
ad rem, as much as to ſay, a Right to have and acquire a thing, whereas by Jus in re, they underſtand the Right that they have
already acquired to the thing.
(3) « Omnia fere jura hæredum perinde habenrur, ac fi continuo fub tempus mortis hæredes extitiffent, Dig. 1. 50 t. 17 de di-
" verſis regul. juris, leg. 193.
(4) A perſonal Action is, when we proſecute at Law a Perſon who is obliged to give or do ſomething on our account, by vir-
tue of a real and particular obigation that he is under, whether by ſome voluntary Engagement, (i. e.) a Promiſe, or by a Con-
tract, or for ſome Crime or Fault, as having ſtoln ſomething from us, or endamag’d our Goods,' exc. And this obligation is ſo
perſonal
, that he can'c engage himſelf to a third, who is Poffeſſor by a juft Title for the thing due to him, till we have actually
releaſed him. As for example, if a Tradeſman after he has ſold me a Stuff, Tells and delivers ir at the ſame time to another, I
have no Right to require that this ſecond Buyer ſhould let me have it ; but the Roman Laws allow me an Action of Warranty
againſt the Seller, See Digeft. 1. 6 t. 2 de publiciana in rem a&tione, leg. 91.4 and Code, 1. 4 t. 39 de hæreditate vel a&tione vendit.
leg. 6.
On the contrary, an Action real is, when a Man feizes, as we may fay, upon a thing as fully belonging
to us already, lo
that we have right to demand it of any one that has it in his Poffeffion, and the Defendant is obliged to yield it to us not been
particular and perſonal, but by virtue of that general Obligation, by which every one is ty'd to reſtore the Goods of another.
This fort of Action is called Vindication, and a bare Demand, whereas a Perſonal Action is uſually ftiled Conditio. “ Omnium
“ aurem aétionum, quibus inter aliquos apud Judices, arbitrosve de quacunque re quæritur, fumma diviſio in duo genera
“ tur, aut enim in rem funt, aue in perfonam. Namq; agit unuſquiſq; aut cum eo qui ei obligatus eft, vel ex contractu, velex
maleficio, quo
cafu prodiræ funt actiones in perfonam, per quas intendit adverfarium ei dare aut facere oportere, & aliis quibuſ,
cerdam modis. Aut cum co agir, qui eſt ei nu lo jure obligatus, movet tamen alicui de aliqua re controverfiam, quo cafu prodita
"c" actiones in ren funt, veluti fi rem corporalem poffideat quis, quam Ticius fuam elie adfirmet, poffeffor aurem dominum ejus fe
Appellamus autem in rem quidem actiones, vindicationes, in perfonam vero, conditiones, Inftic. 1. 46.691
65 &15. In the firſt, Res non perſona convenitur, Digeſt. 49 t. 14 de jure fifci, leg 19.
(a) Vid. lib 41 to 2 l. i f. 211. 51 Dig. de acquir. posjes.
C. 14
5o.
46 effe dicar-
have

CHAP. IX.
a
Of Transferring of Property in General. 201
me,
him to deliver it. But a bare Right to a thing pre- Profit or Portion.
have nothing to do but to purſue and take it where- Property. Or when having firſt lent or ſet out to
foever I find it; and there is 110 new and peculiar hire, or given in truſt, a certain thing to you, I
Obligation requir'd in the other Party to engage afterwards fell it you (4), or reſign it in way of
This feign’d Delivery is likewiſe
to of ufe between Three Perſons by Delegation (5);
and that the other Party is by a peculiar Ob- as if, for inſtance, a Man out of Bounty or Debt
ligation tied to procure that it fall be thus-uni- would give me ſomewhat, and I order him to give
ted: Therefore I am to urge him, That he would it a third Perfon. For that's the ſame as if it had
leave the thing, as 'twere vacant, for me, ſo that been firſt offer'd to me, and by me deliver'd into
I may take it into my own Poſſeſſion.
the other Party's Hands.
As to what remains, though it be a common Say Delivery is then ſaid to be made manu longa (6),
ing, That a Thing in hand is better than an Action or by a round-about way, when a thing is not im-
in the Court ; yet'tis certain, that our Eſtate may mediately brought to another Body, but only ſhewn
be encreas'd by a bare Right to a thing, and by or pointed out at a leſs or a greater diſtance (7)
Perſonal Actions. As on the contrary, what a Man For I have, as far as in me lies, deliver'd that, of
by a perfect Obligation owes to another
, he cannot, which I have quitted the Poſſeſſion, and have put
to any purpoſe, reckon amongſt his Goods and For- another in a Method of obtaining for himſelf
. And
tunes, though he retains, as yet, the Corporal Pof- to this Head they refer alſo thoſe Caſes, in which
feffion of it. Hence, he who poſſeſſeth a thouſand any Sign or Inſtrument of Cuſtody, (as Keys (8),
Pounds, and owes a thouſand, hath nothing; and for inſtance) is given up. As for the Caſe of throw-
he that owes more than he poſſeſſeth, hath leſs than ing or ſcattering Largelles among the common Peo-
nothing. For in the Words of the Civil Law, Id ple, the Deſign of it is not, that the things thus di-
ci abelle videtur in quo eſt obligatus (a), So much ſeems ſpers’d ſhould be look'd on as dereli&t; or forſaken,
wanting to bim, as he is bound to make good.
and fo be afterwards acquired in the way of (9) Oc-
IX. We are to obſerve beſides, that Delivery is cupancy, by the firſt Takers. But ſuch a piece of
either true, or feigned and ſuppos’d; the latter of Bounty is really a Species of Donation, reach'd out
which is done manu brevi (i), in ſhort, and with indefinitely to all the Members of the Crowd; fo
out Formality, to ſave Time and Trouble. Now that the thing thus thrown in common, is ſuppos’d to
this chiefly takes place, when I make over by Grant be deliver'd as 'twere to the firſt Man in the Mul-
the Property of my Goods to another, reſerving, titude that lays hands on it. Yet Cæfar ſpeaks
for a certain Term (2), the Uſe and Profits to my otherwiſe in his Complement to the Soldiers, uponi
felf. (Tho' in ſome Grants of this kind it is now granting them the Liberty of Plunder:
an uſual Practice, for the Donor to deliver the
Keys to the other Party, who iinmediately reſtores
Neque enim donare vocabo,
them again.) As likewiſe, when I reſolve that a Quod fibi quiſque dabit.
thing of mine, which another now hath in his Pof I call it not my Gift what each brave Mari
feffion (3), ſhall for the future be his Right and Shall give himſelf.
Mr. Barbeyrac's NOTES on 8 9.
(1) Our Author, though he does not diſtinctly cell us, whether the Deliverance, manui brevi, belong to the real or feigned
Deliverance, and ſpeaks nothing of that which is made manu longa, as ſufficiently underſtood, yet he ſeems to refer it to the
feigned Deliverance, as the Lawyers from whence he borrows this diſtinction do ; but then he tells us not, that the fame Law-
yers make the Deliverance with a long hand of the feigned kind alſo, and ſo leaves the Reader in the dark. Wherefore, to clear
the Difficulty, I ſhall Thew you what a real Deliverance is, viz. it is a Corporal Ac, by which we tranſmit a thing from one
hand to another, (i.e.) from one perſon to another; and then to make our Author's fenre plain, the Sentence ought to be read,
Traditionem effe vel veram, vel fictam, que [vel longa, vel] brevi manu fieri dicatur. And in this ſenſe we find the Phraſe brevi
manu, Dig. 1.23 t. 3 De Jure Dotium, leg. 43 $ 1.
(2)" Quiſquis rem aliquem donando, vel in dotem dando, vel vendendo uſumfructum ejus retinuerit, etiamfi ftipulatus non
" fuerit, eam continuo tradidifle credatur, nec quid amplius requiratur, quo magis videatur facta traditio, Cod. l. 8 t. 54 de do
“ nationibus, leg. 28.
(3)“ Si rem meam poſſideas, & eam velim tuam efſe, fiet tua, quamvis poffeffio apud me non fuerit, Dig. 1. 41 t. i de ac,
quir. rerum Dominio, leg. 21.
(4) Interdum etiam fine traditione, nuda voluntas Domini fufficit ad rem transferendam. Veluti fi rem, quam commodavi,
" aut locavi tibi, aue apud te depoſui vendidero tibi, licet enim ex ea cauſa tibi non tradiderim, eo tamen quod patior eam ex
" cauſa emptionis apud te effe tuam efficio, Ibid. leg. 9 $ 5. Veluti fi rem quam quis tibi accommodaverit poftea autem vena
“ diderit tibi aur donaverit, aut doris nomine dederit, inſtic. I. 2 , 1 de rerum diviſ. S 43.
(5) See Lib. 5 c. 11 ſ. 13. following.
(6) As when a Man cells Money on a Table to any one. “ Pecuniam, quam mihi debes, aut aliam rem, fi in conſpectu meo
ponere te jubeam, efficitur, ut & ta ſtacim libereris, & mea effe incipiat. Nam tum quod à rullo corporaliter ejus rei poffef.
o fio detineretur, adquifita mihi & quodammodo manu longa tradita exiſtimanda eſt, Dig. 1. 46 t. 3 de folutionibus & liberatio.
nibus, leg. 79 See alſo 1. 41 1. 2. de acquir. vel amitt. poffeffione, leg. 1 f. 21. and Mr. Noodt's Probab. juris, 1. 2 c. 6 n. 5,
* &c. where he alſo ſhews, that the preſence of a thing is not always neceffary by the Roman Law, becauſe it may be thought
delivered to him on whoſe account we paid it.
(7) If
, for example, he thae ſells me a Field, ſhews me it from the top of his Houſe, declaring at the ſame time that he re-
leaſes it to me, it is as much mine as if I were carried to the place and ſee my Fooc in it. “ Aue fi mihi fundum vicinum mer-
cato venditur, in mea curre demonſtret, vacuamq; ſe poſſeſſionem tradere dicat; non minus poffidere cæpi quam ſe pedem fic
" nibus intuliffen, Dig. 1. 41 t. 2 de acquir. vel amitt. poffeff. leg. 1 f. 21.
(8)". Item fi quis merces in horreo repofitas vendiderit, fimul atque claves horrei tradiderit emptori, transfert proprietatem
mercium ad emptorem, Dig. I. 41 t. 1 de acquir. rerum Dominio, leg. 9 1. 6. and 1. 18 t. I de contrahend. empt. leg. 74. See
alſo the Code, 1. 8 6.54 de donat. leg. I.
(9) Hoc amplius interdum & in incertam perſonam collata voluntas Domini transfert rei proprietatem, ut ecce Prætores &
Conſules, cum miffilia jactant in vulgus, ignorant, quod eorum quifque fit acceptúrus, & tamen quia volunt, quod quiſq; acce-
perit, ejus efle, ftatim eum Dominum erficiunt, inflit. I. 2 t. I de rerum divif
. 1. 45. Dig. l. 41:0. I de acquir. rerum Dominio,
66
leg. 9 1.7.
(a) Lib. 36, 5 leg. 28 Dig, de negot. geft.
+ Сс
Sometimes

202
Of Wills and Teſtaments.
Book IV.
Sometimes only Tickets are ſcatter'd, upon produ- inſcribed, as Garments, Gold, Horſes, Oxen, Sheep,
cing of which the Bearers receive the Import and and Slaves. Thoſe who had the good Fortune to
Contents of them. Thus Titus the Emperor in ſome catch theſe Tables, upon carrying them to the
of the Shows which he preſented, threw about little Managers and Stewards, were gratified with the
round Tablets of Wood, each with ſome kind of Prize purport of the Inſcription.
UgDa
áp
Svie
o trb su
CH A P. X.
Of Wills and Teftaments.
How many derivative ways of Acquiſition? VI. How far Wills proceeded from the Law of Na-
II. Grotius's Definition of a Will is examined.
ture, and how far from Poſitive Laws?
III. What is a Will to us.
VII. An Inheritance given by Will, wanting due
İV. Whether Wills proceeded from the Law of Na Form, may be enter'd upon, if none oppoſe it
.
VIII. But the Heir may null that Will, as if his Au-
V. The Ancients diſpoſed of their Goods while they ceſtor had dyed Inteftate.
were living.
IX. Donation in caſe of Death.
ture, is doubted.
A . of
ſome regard the chance of Death, and ſome that henceforward the thing may be ſaid to be e-
transfer things whilft both Parties are alive (1). In ftrang’d from him who thus transferr’d it. But the
both Caſes the things are convey'd from one Per- Teſtator (1), ſo long as he draws Breath, retains a
ſon to another, either by expreſs Will of the for- full and abſolute Right to all his Goods, without
mer Proprietor, or by the Appointment of ſome the leaſt Diminution. Therefore whilſt he lives,
Law interpoſing in the Affair. Varro de re ruftica, he cannot properly be ſaid to have alienated any
1. 2. Somewhat muſt neceſſarily intervene before what thing : And at the Moment of his Death he loſeth
was anothers can become mine (2).
immediately all the Right he held whilft alive, and
II. On account of Death, 'tis the common Pra- is reckon'd as no body in Civil Conſideration.
Etice of Mankind to transfer things by Teſtament: Therefore an Alienation cannot be ſaid to be made
The Nature and Origin of which Act we ought with at that time, when in reſpect of the Party who
ſome Care to examine. According to Grotius (a) ſhould alienate, nothing can be call’d his own or
therefore a Teſtament is the Alienation of a whole anothers. Nor is the Difficulty taken off, if we
Eſtate in caſe of Death, and
before that
time revoca- affirm, That the Alienation is indeed made when
ble; in the mean while the Right of Posſeling and of the Will is fign’d, but depends in the mean while
Enjoying being reſerv’d. Whereas 'tis not altogether upon the Caſualty of Death, as upon a neceſſary
certain, whether a Teſtament can rightly be call’d Condition. For in every A&t of Alienation Two Par-
än Alienation, in that ſtrict ſenſe under which it ties muſt join Conſents, the one from whoin, and the
denotes ſuch an A&t by which a Man makes a thing other to whom, the thing is transferr’d; and theſe
that was his own become anothers. For Alienation Confents muſt be united by conſpiring, as it were,
being in this ſenſe a transferring of Right from one together at the ſame time. But now nothing happens
to another Perſon, confequently ſuppoſeth the Ex- more frequently, than that a Man ſhall not know
ܗܘ
Alienation
Mr. Barbeyrac's NOTES on Chap. 10. $ 1.
(1) Here is a more exact Diviſion of derivative Acquiſitions. J. In reſpect to the Law, by virtue of which Property is tranſ-
ferr'd, we may divide them into Acquiſitions. 1. Natural, 2. Civil, and 3. Mixt. Natural Acquiſitions are ſuch as are confor-
mable to the Rules of the Law of Nature only, (i. e.) which depend only upon the mutual conſent of Parties. Thus we acquire
by virtue of all Engagements, where the Civil Law
leaves every one ar cheir full liberty. Civil Acquiſitions are ſuch as cranfer a
Property without the conſent of the Proprietor. The principal way of acquiring here is by Preſcription. See chap. 12 f. 1 1.
following. Acquiſitions Mixt are made by the mutual conſent of Parcies, cither Expreſs or Tacit, but yer with ſuch regard to
Civil Conſtitutions, that if they be not conformed to, the Ad is void. Thus we get things by a will or Contract, yer the Laws
of the State preſcribe certain Forms to be uſed in ſuch ſort of Actions. 2. Theſe three forts of Acquiſitions may be conſider'd
either with reſpect to the Time they are made, or in reſpect to the Thing acquired. As to the Thing, they are Univerſal or
Particular, according as we acquire the Goods of a Perſon, in whole, or in part. As to Time, they have place either in caſe of
Death, or in time of Life. See Mr. Titius's Obſerv. on Puffend. 300, doc. The firſt fort comprehends Wills, and Gifts in caſe
of Death, which are treated of in this Chapter. The other comprehends all Agreements and Contracts in which any
is concerned, to which we may alſo reter Donations among the Living, although
our Auchor in his abridgment of the Ducies of
a Man and Citizen, l. 1 c. 12 has ranked them under a different Head, and ſo has not touch'd on them in this place. But wc
Thall ſupply this defect by a Note, becauſe he has not created of them in this work.
(2) Quod alterius fuit, id, ut fiat meum, neceſſe eſt aliquid intercedere, Varro de re ruſtica, l. 2 c. 1,
Mr. Barbeyrac's NOTES on $ 2.
(1) See above, 1. 4 n. 2. All that our Author ſays here, proves only, that in a Will the Alienation is real and clear, not ir-
revocable, but that hinders not, but that the Teſtator's Adt may be look'd upon as a kind of imperfect Alienation, and which
may
become perfect, and give the Heir
a true Right, tho' liable to no Effect. So that there is a great difference berween an Ali-
enation by Will, and a bare verbal Declaration of a preſent deſign to give ſomething one time or another, to a certain Perſon.
For the effect of ſuch a Declaration depends always upon the Humour of him that made it, and can't take place without ſome
better afſurance from him. Whereas ſo long as the Teſtator has not revoked his Will the Right of the Heir continues, what-
ever Humour he is in ; but if the Teſtator having reſolved to change the Legacies he has made of his Goods, but for wape of
time does it nor, or becauſe he flatters himſelf that he ſhall have time enough when he comes to die, the Heir and Legatees have
acquired a full and irrevocable Right, which they have power to enjoy.
(a) Lib. 2 c. 6 f. 14.



himſelf

CHAP. X.
Of Wills and Teſtaments.
203
himſelf to be Heir till the Will comes to be open'd III. We ſhall expreſs the Nature of a Teſtament
upon the Teftator's Deceaſe: And likewiſe when more plainly and more agreeably, to the ſenſe of the
the Will is thus open'd, 'tis at the choice of the Roman Lawyers, if we call it, A Declaration (1) of
Heir appointed, whether he will enter upon the our Will touching the Succeſſors to our Goods, after
Inheritance, or wave and refuſe it.
our Deceaſe, yet ſuch as is mutable and revocable at
Again, Since all the Right of the Heir by Will our pleaſure whilſt we live, and which creates a Right
cominenceth at the Teſtator's Death ; he hath not, in others to take place only when we are gone. Can.
before that Moment, any Right which can be ſaid cerning which Mutability, the Law of general
to depend on the Death of the Party as on a Con- Kindneſs commands thus much, That no Man; un-
dition. Beſides, when any kind of Alienation is leſs on account of his Demerit, be wheedled and cajold
made, though ſuch as may be recalld, yet it ought with falfe Hopes (2), or be ridiculd and expos d.
to transfer ſuch a Right on the Perſon towards whom Whence, though we can hardly diſapprove of what
it is directed, that it ſhall not be diſannulld at the Pling reports of Domitius Trillus, who had chous'd
bare pleaſure of the Alienator. For otherwiſe, nei- ſome hungry Raſcals in the wicked Tribe of the
ther the Alienator can be ſuppos’d to have contra- Haredipeta; Others on the contrary, ſays he (b), com-
cted any Obligation, nor the other Party to have mended this Humour ; in that he fruſtrated the Evil
acquired any Right, if the whole Tranfa&tion a- Hopes of Such Men, whom, conſidering the Practice of
mounted to no more, (for Example) than this ſlight the Age (3), it is a part of Prudence thus to deceive (-),
Promiſe, Tou ſhall bave, one time or other, ſomewhat yet Valerius Maximus (d) had good reaſon to cenſure
which I now poſſeſs; provided you don't diſpleaſe me in 2. Cacilius and T. Barrulus, of whom the former put
the mean while ; but then you ſhall have no Right to a Trick of this kind on L. Lucullus, the latter on
binder me from being diſpleasʼd at any time, when I Lentulus Spinther, their greateſt Friends and Bene-
think fit, or without any manner of Reaſon. Such an factors.
Act as this cannot be ſtiled an Alienation, being a IV. Whether theſe Teſtaments owe their Original
bare Declaration of a Man's preſent Deſign, with- to Natural or to Poſitive Law, is diſputed amongſt
out any neceſſity of continuing the fame Reſolution; the Learned. The Meaning of which Queſtion is
which is incapable of producing any Obligation on not, Whether a Man be obliged by the Law of Na-
the one ſide, or any Right on the other (a). But ture to make a Will, (for that certainly is in eve-
a'Teſtament is really ſuch a Declaration of a Man's ry Man's Choice, unleſs ſo far as it proves neceſſary
Intentions, as doth not confer any Right on the to prevent Quarrels ainongſt his (€) Relations ;) but
other Party before the Teſtator's Death; ſuch, at whether after Property hath been introduc'd, it ne-
leaſt
, as may have the effect of full and perfect ceffarily follows from the Nature of that Eſtabliſh-
Right againſt the Claim of the Teſtator himſelf
. For ment, that a Man may effećtually diſpofe of his
after the Will is drawn up, the Teſtator doth not Goods by Will, or whether this Power is granted
only retain the moſt abſolute Right of poſſeſſing to Proprietors by poſitive Conſtitution. Grotius's
and enjoying, making over to the Heir only the Judgment (f) in the Caſe is, That a Teſtament; as
bare Property ; but indeed the Property it ſelf is many other A&ts, may indeed receive a particular Form
fill, without the leaſt Diminution, his own. Of from Civil Ordinances; yet the Elence and Subſtance
which we have this evident Token, That after all of it is nearly allied to Property, and upon Suppoſition
this he may alienate his Goods, or may ſtrike out of Property, belongs to the Law of Nature
. Or, that
thoſe who at preſent ſtand Heirs, without any Por- the Power of difpofing effectually of what we pof
ſibility of Redreſs. But now even revocable Alie- ſeſs, is deriv'd from the Law of Nations (1), which
nations ever ſuppoſe fome Caſualty, or fome Con- the Civilians term Jus Primarium, the firſt or prin-
dition under which they are to be revers’d, and cipal Law; but the Reſtraint which lies upon us
which doth not depend merely on the Alienator's to diſpoſe of them only after ſuch a certain manner,
Pleaſure or Humour.
is owing to Civil Appointment. In regard to which
16 l.
Mr. Barbeyrac's NOTES on § 3.
(1) Their Words are, “ Teſtamentum eſt voluntatis noftræ jufta Tententia de eo quod quis poſt mortem fuam fieri velit, Dig.
" 1.28 t. 1. Qui teftamenta facere poffunt, &c. leg. I. Ambulatoria enim eſt voluntas defunctiufq; ad vitæ ſupremum exitum,
34 t. 4. de adimendis vel transferendis legatis, &c. leg. 4.
(2) Hear what the Oracle of Gaſcoigne (which is the title that the Abbor of Sc, Real in his Preface to Cicero's Epiſtle to Atticus
gives Montagne) ſays, I now ſee 'cis cine loſt to beſtow much pains in Courtſhips ; one word ill conſtrued blots out the Merit of
Ten Years. Happy is he that can hit the time, pleaſe their Humour at the laſt Gaſp! The neareſt Action pleaſes moſt, nor the
beſt or moft frequent good Offices, but the freſheſt and moſt preſent do the Work. Theſe Men manage their Wills as Apples or
Rods to encourage or correct every Action of their Dependents. 'Tis a thing of too much attendance and weight to be thus hur-
ried every Moment, and againſt which wife Men reſolve once for all
, reſpecting above all Reaſon and publick Obſervation. Ef-
lay, l.2.c.8 p. 284, 285. See alſo a fine Paffage in Mr. de la Brujere's Characters
, in the Chapter about certain Uſages, printed
at Bruſſels in 1697. The Character begins thus, It is true, there are a fort of Men whoſe will nothing can determine buc Death,
becauſe ſo long as they liv'd they were never reſolved nor quiet, &c.
(3) The Latin is, « Alii contra hoc ipfum laudibus fetunt, quod (Domitius Tullus cum fe captandum præbuiſſet] fit fruftracus
improbas fpes hominum quos fic decipere pro moribus temporum prudentia eſt. See alſo what is ſaid above l. 3. c. 5 1.5 0.3.
As to ſuch Men in general, and the Right which their Servile addreſſes to gain
an Inheritance, when they are ſucceſsful, gain;
read two curious Diſcourſes of Mr. Thomaſius, the one entitled, De Jure injuſto Heredipetarum, publiſh'd at Hill in Saxony in
1695, and the other, De Captátoriis Inſtitutionibus, in 1696, and reprinted in 1703.
Mr. Barbeyrac's NOTES on S 4.
(1) The diſtinction of the Law of Nations into Primæval and Secondary was nor made by the Roman Lawyers, but their inter-
preters. Moreover, the power of making Wills ought to be referred to that Right of Nations which they call Secondary, and
where explain’d it, 1. 2 c. 3 f. 2.
not to the Primæval, which is nothing elle, according to them, but the Law of Nature, taken in the senſe which I have elles
(a) Vid. Supra, I. 3 c. 5. 1. 5.
Amst.
(6) Lib. 8 Epiſt. 18. (c) Add Lucian in Dialog. Simyle & Polyſtrat. Tom. 1. p. 275. Edit:
(d) Lib.7.c. 81. 5,8.
(e) Comp. Ifa. 38. v.1. (f) Ubi ſupra.
CC 2
Aſſertion,

204
Of Wills and Teſtaments.
Book IV.
Aſſertion, 'tis not improbable but that ſome Scruple the command of his Goods during Life, diſabling
may ariſe (2). For ſince the things over which Pro- him to extend it farther, and to have left to the
perty was firſt eſtabliſhed are deſigned only to ſerve Care of the Living the Management of what be
the Uſes of Men in this Life, and ſince the Dead long’d to the Dead, who are no longer Members of
loſe all their Title to worldly Poffeffions, it ſeem'd humane Society.
not altogether ſo needful, that Property ſhould con Farther, ſince Death removes Men from all Con.
tain in it a power of ordering what ſhould become Concerns below, it ſeem'd that the Diſpoſals and
of a Man's things after his Deceaſe. But it might Declarations made in their Life-time, might be af-
have been ſufficient to have allow'd every Perlon terwards neglected with Impunity.
I ſhall now
(2) Our Author in my Opinion makes a Difficulty where there is none. I am miſtaken if his falſe Notion about the Original
of Property, which we have above confured, hath not made him without reaſon reject Grotius's
Judgment, and multiply Beings
without Neceſſity. Another Author, which I have ſeen fince my firſt Edition of this work, afferts, That the power of making
Wills is only from Civil Right, a Principle worſe grounded in my Judgment, as I have fhewn above, c. 6 s in. I.
only ſpeak of this poſition of his, That the Right of Property ends and is extinct with Poffeſſion of it ſelf. See Mr. Bynker hoek's
Obſervations, l. 2 c. 2. The Hypotheſis being then confured, 'e will be eafie to invert the Conſequence. I affere then, That the
Settlement of Property being neither founded on any Agreement, nor limited by the time of Poſſeſſion, but depending only (as
we have ſhewn) upon this, That every one has ſeized for ever of a certain reaſonable Portion of the Goods of this world, which
naturally belong no more to one than another, it follows that when a Man hath appropriated to himſelf any thing after that
manner, no other perſon can pretend to it, unleſs he abandons it anew to the firſt Occupant, or transfers it to ſome other, but
he hath a Right to diſpoſe of his Goods during his Life, and may leave them, as their Proprietor, to whom he pleaſes, after his
Death. And truly I can't ſee why this ſhould not be a conſequent of the Right of Property. Suppoſe Men were immortal, Mould
not a Proprietor eternally preſerve the Right he has once gotten? The neceſſity of Dying, to which all Men are ſubject, will
permit them to enjoy their Goods but a few Years, and then it is but natural to make up the Loſs, and perpetuate as far as they can
their Right of Property after their Death, by declaring to whom they will have it paſs; and ſo the Heir taking the place of the
Dead, and repreſenting him in ſome manner, no other can pretend to his Goods no more than if he had poftefied them himſelf
,
In the Code 'tis laid down as an uncontroverted Maxim, That Men can deſire noching more reaſonable, than to have a liberty to
diſpoſe of their Goods at their Death. Nihil eſt enim quod mag's hominibus debeatur, quam ut ſupreme voluntatis, poſtquam jam
aliud velle non poffunt, liber ſit ftilus, do licitum, quod iterum non redit, arbitr um, l. 1 t. 2 de Sacroſanctis Ecclefiis, leg. 1. See
the Paffage of Quintilian quoted below, S 5 1. 2. All the World agree, That Men while they live, and hold as it were hand
in hand, may
, transfer to others, either abſolutely, or upon certain Conditions, the Right of Property which they have to a
thing, and why then may they nor do the ſame at their Death, and in a manner revocable or irrevocable? I can't ſee the great
difference there is between theſe two things, eſpecially if we conſider the Donations in caſe of Death, of which this Author
trears at the end of the Chapter, and which without doubt are a Righie purely Civil. Further, the Goods which Men ordinarily
leave at their Death being uſually either the Fruits of the Induſtry alone of the Proprietor, or things which are culcivated and
improved by Care and Labour, would it not be unjuſt to have them abandoned after his Death to the firſt Occupyer ; ſo that he
can't have the ſatisfaction before his Death of thinking that he ſhall leave them to ſuch Perſons as he loves ? 'Tis true, that (as
Bynker ſhock ſays) the Earth was appointed for the Service of Men of all Ages, and that all Generations that ſucceed one ano-
ther, ought to have a Proviſion for themſelves by their Labour and Travail. But it does not follow, that by Natural Right, when
a Perſon dies, he leaves his Goods to ſome body, as he muſt neceſſarily do, no Man being able to carry any thing away with
him to the Grave; and there are in che World beſides things enough which belong to the firſt Occupant, if we will take the
pains to find them out. Mr. de Bynkerſhoek himſelf acknowledges, that if every Man's Goods after his Death were left to the
Plunder of others, it would cauſe infinite Diſorders; and therefore the Civil Laws have regulared Succeſſions and allowed Wills.
Further, it is not neceſſary that they to whom we diſpoſe our Goods Mould know and accept when we are alive, what we in-
tend to bequeath them at our Death. Our Author maintains, thac in reality the will of him who transfers his Right, and of
him to whom it is transfer'd, ought always to be united in a mutual Confent at the ſame time, but in this he doch nor agrec
with himſelf, for he acknowledges above, 1. 3. C. 9. 9 4. that a Gift is valid, though the Donor be dead before 'ris accepted by
the Legacee, if he who ought to declare it be only a bare Reporter of the Will of the Third. As to the dead Perſons themſelves,
they have nothing to do with the things of this World, but it doth not follow that they never had, while they were alive, a
Right to order the diſpoſal of their Goods after their Death, but only they are not in a Condition to make it of force them-
ſelves. If the Ancients, as our Author ſpeaks, made their Relacions ſwear to perform the Orders they made when they died,
’ewas to engage them more ſtrictly by an Oath, and not that they believed no other Reaſon fufficient to oblige them to fulfil the
Will of a Perſon dead. We ſee that in the higheſt Antiquity ſuch as were not Members of any Society, diſpoſed of their Goods
before they died without controul, Abraham's Example is remarkable ; he had Parents in Charran, in Meſopotamia, and wich-
out going far ; he had with him in Canaan where he dwele his Nephew Lot ; nevertheleſs when he thought he ſhould have no
Children, he deſigned to exclude all his Relations, and make Eleazar, his Sceward or Chief Slave, his Heir, Gen. xv. 2. We
muft then conclude, that a power of diſpoſing of our Goods in caſe of Death, in a manner either revocable or irrevocable, re-
ſults from the Right of Property, and by conſequence is founded on the Maxims of the Right of Nature and Nations. So that
if the Civil Laws preſcribed certain Limitations and forms to that Power, it proceeds from the Authority which the Sovereign
hach to limit the Right of Property, and regulate the uſe chat Citizens ought to make of their Goods, as you may fee, 1. 8.C.S.
S 3. following. In fine, what I have ſaid is ſo true, that our Author himlelf, after an uſeleſs Circle, returns again to the ſame
Point, and in the following Chapter builds the Succeſſions to a Perſon Inteftate upon the Preſumption of the Will of the dead
Perſon. All the difference is, thar inſtead of making the power of diſpoſing of his Goods at his Death to depend upon the Right
of Property, he refers it to a Tacit Agreement of the People, by which he ſuppoſes without neceffity, that they encred into a
common Covenant to put ſuch a ſtrength in Property, as according to him ic had nor before. This Norion is the more ſatisfa-
&tory to me, becauſe Mr. Buddeus in his Diſcourſe entitled, De Teſtamentis Summorum Imperantium, maintains alſo agaioſt the
Opinion of our Author, That the power of making wills proceeds from Natural Right, and not only from Civil. He alſo there
obſerves among other things, that the diſpoſals of the Teſtator can't be executed without the Conſent of che Heir, yet
che
want of that conſent does not deprive the Teſtator of that Right which he hath by Nature to diſpoſe of his Goods; a Right
which hath ſuch a Virtue and Effect, that no Man can lawfully appropriate to himſelf the Goods of a dead Perſon, before he
knows whether the Heir will accepr the Inheritance deviſed to him or no. If this be obſerved, the will of the Dead is fully fa-
tisfied, becauſe without doubt he incer.ded not to force his Goods upon his Heir againſt his Will. The Heir alſo has ſome Right
during the Life of the Teſtator, although 'tis not irrevocable, nor becomes his, till the Teltator is dead, without a change of Re.
ſolution. They who affirm the contrary, are faln into this Error for want of diftinguiſhing well between Acts inıperfect and not
confummate, and ſuch as are null and of no effect. It is certain, that by Natural Right a Will can't be entirely fulfilled, till the
Heir accepts of the Succeſſion after the Death of the Teftator, yer it doth not follow, that before thar, 'tis a vain Act, and of no
force. It is valid fo far as the Nature of the thing will permit, and in this, that no other Perſons can claim the Goods of the
Deceaſed, until he that is appointed the Heir refuſes to inheric. The reſt of Mr. Buddeus's Diſcourſe is worth the reading. AC
preſent l'ull only obſerve, that Mr. Thomaſius, who heretofore forlook the opinion now oppoſed, is returned to ie again; but
I can't find that either in his Fundament Jur. Nat. do Gent. I. 2. c. 10. 89, &c. nor in his Diſcourſe, De Origine Succeſionis Te-
tament arie printed at Hall in 1705 he has confuted any of the Reaſons now laid down. In a word, if it be advantageous ca
Civil Society to leave every one at their full liberty to diſp:Te of their Goods by Will, "cis a queſtion of a different Nature, and
which our Author himſelf will creat of in che laſt Paragraph of the following Chapter,
Il
CHAP. X.
205
Of Wills and Teſtaments.
of things, as ſhould turn only to the preſent mo-
Id cinerem & manes credis curare Sepultos (a)? mentary Uſe; but 'twas needful to make it ſuch
as ſhould hold good hereafter: Man, fo far as Na-
Think you Cold Duſt and Shadows feel ſuch Cares? ture allows, having no leſs a Right to preſerve Life
for the future, and to provide Means towards ob-
An Evidence of this it ſeems to be, that the moſt taining that End, than for the prefent Moment. To
Ancient Men we read of in Story, were wont to which if we add, That we are enjoin’d to take a,
engage
their Friends by Oaths to fulfil their laſt particular Care of thoſe who are allied to us in
Commands, as if no humane Bond were ſtrong e- Blood, whoſe Race we wiſh may continue to an in-
nough to oblige them in this Cafe. See Gen. XXIV.2,3. definite extent of Ages, it will on the whole ap-
XLVII. 29. L. 25. Diodor. Sic. 1. 2. p. 119. Ed. Rho- pear to have been conducive to the Peace of Man
dom. c. 33. Speaking of Parfodes's Death.
kind, not to make the Force of Property depend
Thus too in Sophocles, (Trachin. 1192, &c.) Her- on any fix'd Period of Time, ſince this would have
cules requires an Oath from Hillus, for the Perfor- created no leſs Confuſion and Trouble than the Pri-
mance of his laſt Commands.
mitive Community : But to aſſign it, as 'twere, an
So Conſtantinus Ducas obligeth his Wife Eudocia by indefinite Duration, by means of which it might
Oath, never to enter on a ſecond Marriage after his paſs down and bé continued to others. Now
Deceaſe
. Yet by what Stratagem ſhe recover'd her as to the preſerving and the continuing this Pro-
Writing from the Patriarch who had the keeping of perty, thoſe who live in a ſtate of Natural Free-
it, and how, as if ſhe had hereby been releas’d from dom, appoint Means according to their own Judg-
her Engagement is very ſtrange, ſhe marry'd Dio- ment. But in Civil Governments, as it is ſupport-
genes, we read in Zonar. Toin. 3. in Eudocia, and ined by the Publick Strength, ſo it hath been variouſly
Michael Glyc. Ann. Tom. 4.
temper’d and retrench’d, as particular Nations have
So in Joſephus
, (Archeolog: Jud. XVII. 10.) at any time thought it to be for their Intereſt.
Herod's Coinmands for ſlaying the chief of the Jews, As for the Notion invented by the Author of the
are neglected by his Siſter and her Huſband. So, New Method of Law (4), I queſtion whether it will
meet with the Approbation of found Judges. Te-
Fuſſerat hæc rapidis aboleri carmina flammis ftaments, ſays he, by meer Right, that is, without the
Virgilius Phrygium qua cecinere Ducem. Confirmation of Civil Ordinances, would be of no force
Tucca vetat, Variufque fimul; tu maxime Cafar, or weight, unleſs the Souil were Immortal, but becauſe
Non finis.
thoſe who are taken out of this World do really fill
live, therefore they remain Proprietos of their Goods;
Virgil thoſe Strains which rais’d the Trojans Fame, and thoſe whom they appoint their Heirs, are to be
Dying bequeath'd to feed th' injurious Flame. look'd on as their Stewards and Managers.
Tucca and Varius ſtop the raſh Deſign,
V. But as no one will be forward to maintain,
And You, Great Cafar, fave the Glories of Your Line, that for a Man to be able to diſpoſe of his Goods at
ſuch a time as he is the true Proprietor, and to fix
Dio Cafius, 1. 59. relating how Tiberius's Will was the Effect of his Diſpoſal on a tiine when he ihall
declar'd null by Caligula and the Senate, adds this not be Proprietor, is repugnant to the Law of Na-
Reflection, That no Counſel or Foreſight can prevail ture: So, on the other hand, it doth by no means
againſt the Ingratitude of Men, and the Power of Po- appear that this flows by any neceſſary Reafon from
Merity
. To which may be applied that Saying of the Eſſence of Property.
Lucan,
Thus much indeed flows from thence, That a Man
whilſt alive may confer a Right to his Goods on a-
Nulla fides rebus poft terga reliétis, 1. 2. nother living Perfon, which ſhall not be extinct
up-
on the Death of the Collator, being
ſtill kept alive
In vain we truſt to things we leave behind. in the other Party who ſurvives. For inaſinuch as
the Efficient and the Effect are diſtinct and ſepa-
Therefore 'twas at the pleaſure of the Survivors, rate Beings, there's no Neceſſity, that the latter
whether or no a Man's Will ſhould take Effect, even ſhould always die with the former. And therefore,
after he was Dead. And conſequently they were to as a Man in his Life-time may fully transfer fome-
determine by ſome Agreement amongſt themſelves, what which he poſſeffeth, on another, who ſhall not
how far they ſhould comply with the Deſires of thoſe lo e the Property of it by the Death of him from
who had now loſt the common Rights
of Men. With- whom it was receiv’d; ſo nothing hinders but that a
out ſuch an Appointinent, any precedent Diſpoſal, Man may make over the Property of any thing to
would have been vain and uſeleſs, which the Au- ſome Perſon elfe, yet ſo as to referve ſtill to him-
thor could not, and others who could, would not ſelf a certain Right over the ſaid thing during his
maintain and put in Execution.
continuance in this world. Hence in the moſt An-
But, on the contrary, it manifeſtly appears, that cient Times we find the Fathers of Families diſpo-
"twas not ſufficient in order to the Peace of humane pofing of their
Goods at the approach of Death (i);
to introduce ſuch a Property or Dominion (for as to the Paſſage in Gen. XX. 3. Abraham ſeeins


Society,
(4) This Notion is abfurd, and contrary to what is ſaid, Eccleſ. 11. 19. and Luke 12. 20. and ſo is juſtly diſapproved by our
Author, By the Title I gueſs the Author of it to be the famous Mr. Leibnitz, who publiſh'd a Work under that Title exactly
at Frankfore upon the Mein in 1763, but having not ſeen it, am not pofitive.
Mr. Barbeyrac's NOTES on S 5.
(1) By this it appears, that it was a Cuſtom in the Times of the Patriarchs to diſpoſe of their Goods as they ſaw fie in caſe of
poeath. But it we examine the Pallages of the Old Teſtament which our Author quotes, and are let down in the Margin
, we thall
les that they prove not what he would infer from them, that the transferring of Property was made among the
Living, and as
it were from hand to hand.
(a) Vid. Virgi! n.4 34.
110t
206
Book IV:
Of Wills and Teſtaments.
а
not to have already made his Servant's Son his Heir,
but only to have thought of making him, in caſe he The Rich Man much doth grieve,
happen'd himſelf to die without Iſſue; yet fo, as That when this World he leaves,
that they themſelves open’d and publiih'd their Will Strangers his Wealth receive.
to their Children, that theſe by acquieſcing in it,
might ſeem to confirm it by mutual Covenant a VI. But the Queſtion under debate doth not pro-
mongſt themſelves. By this means the Right im- ceed ſo much with regard to theſe actual Diff-otals
mediately paſs’d from the living Parents to the liv- during Life, as to thoſe Teſtaments by which
ing Children; and the latter were admitted preſent- Man to conveys his Poffeffions, as to retain the li
ly, as 'twere, into Poſſeflion of the Goods. And berty of altering thein to his laſt Breath, ſo that the
tis probable, that thoſe priinitive Men, who fol- Right of the Heir to the reſpective Goods ihall not
low'à ſo plain and frugal a way of Life, commonly commence till the Teſtator's Deceaſe: Which Me
were not cut off by our ſudden and violent Di- thod of Appointment many have, with very good
ſtempers, but decay'd leiſurely by the gentle waſt- Reafon, preferr’d to that other, but now mention'd,
ing of the Radical Moiſture; ſo that they were by which Men upon the brink of Death, diſtributed
Maſters of their Reaſon to the laſt, and were never their Goods amongſt their Heirs with their own
fumınon’d by Death unawares, and upon a fur- Hands. For, ſome ludden unforeſeen Fate frequent-
prize (a).
ly either hurries Men out of the World, or however
After the ſame manner, Cyrus, in Xenophon (1), removes them far from their Friends, ſo as they want
allots his Sons, with his own Mouth the Diviſion of Time or Opportunity to expreſs by Mouth their laſt
their Father's Fortunes. And indeed theſe laſt Dif- Reſolution.
poſals ought to obtain great Favour and Allowance; And again, Perſons who ſeem’d to have had more
it being thought no finall comfort under our Mor- than one Foot in the Grave, have often by fome
tal Condition, that what a Man hath labour'd for in ſtrange Turn, recover'd their Health, when they
his Life, ſhould afterwards fall to that Perſon ra. utterly deſpaird of it
. And it was likewiſe judg'd
ther than others, whom he particularly chuſeth and more convenient, that a Man ſhould diſpoſe of his
deſires (2). 'Tis eſtabliſhed, ſays Quinctilian (c), by Goods, rather whilſt he was in Eaſe and Quiet, and
the Laws and Cuſtoms of the State, that as often Maſter of a ſound and clear Reaſon, than when he
as it can poſſibly be done, the Teſtaments of the was trembling at his laſt Hour, or wlien his Mind
Deceas'd ſhould be ſtrictly obeyed. And this upon no was ſhock'd and weakened by the force of his Di-
ordinary Grounds and Reaſons. For there ſeems no ſtemper.
greater Conſolation in Death, than to have a třill which Beſides, it was more advantageous for each Per-
Shall hold good after Death. Otherwiſe a Man might fon to remain Lord of his own Poffe!ions to his final
think an Eſtate a Burthen, if he had not the full Diſpoſal Gaſſy, and to give no Man ſuch a Right over
of it; and if all the right which we are allow'd to have them, as he might not, without Inconvenience, at
over it whilſt we live, were to be taken from us when any time revoke, when either the Merit of the Par-
we die. Nor is Statius's Reflection on Barrenneſs un- ty, or his own Inclination ſhall alter (d). (As the
worthy Confideration :
French tell us, 'Tis ſenſeleſs to put of our Cloaths be-
fore we are near going to Bed. For though the Con-
Orbitas omni fugienda niſu,
veyance of Right, in this Caſe, might be made re-
Quam premit votis inimicus hares,
verſible, or ſuch as the Conveyer might diſannul
,
Optimo poſcens, (pudet heu!) propinquum Funus upon appearance of ſoine Condition, either Caſual
(amico, or Voluntary (1), on the part of himn to whom the
Stat domo capta cupidus Superſies
Conveyance was made, yet the Doubts which muſt
Imminens leti ſpoliis, & ipſum
neceſſarily have ariſen about the proof of this con-
Computat ignem.
dition, and which each Perſon would have urgʻd for
Syl. Lib. IV. his own Title, muſt have occaſion’d endleſs Dif-
putes. At leaſt, he who had been once declar'd
From Barrenneſs, Good Providence defend ! Heir, would have conceiv’d the higheſt and moſt
Which feeds the Wiſhes of th' ungodly Heir, Mortal Reſentment againſt the Diſpoſer, ſhould he
Begging the ſpeedy Funeral of his Friend. for Night Reaſon, be depriv'd of what he had
Barrenneſs buried with no parting Tear! already ſeiz’d upon in Hope and Expectation. Ma-
The eager Succeſſor in th' empty Seat
ny likewiſe have expos’d themſelves to very great
Stalks like a Victor in a Fortreſs won, Dangers, by openly naming their Heir too ſoon. Thus
Greedy to faſten on the Spoils of Fate;
Caligula, when Perſons who had put him down in
And counts, with grudging Care, the Charges of their Wills amongſt their Children, and had made
Sylv. 7. V. 33, &C. (a Stone, open Profeſſion of it, and yet ſtill liv'd on, he gave
Add to theſe a Paſſage out of Pindar, who thus them the Name of Mockers
, and ſent many of thema
fpeaks,
Poiſonous Meſs to diſpatch them (e).
When Herod had taken up a Deſign of dividing
Eπει πλάτη και λα-
χών ποιμένα έπακιον αλλότριον
his Kingdom amongſt his Sons, Auguſtus forbad him
Orcio xovli sujagcótato.
to proceed, ordering him, ſo long as he liv’d, to
Od. X. v. 106, doc.

any
(2) His Words are, Et in more civitatis, & in legibus poſitum eſt, ut quotiens fieri potuerit, defuntorum teſtamento ſtetur, idque
non mediocri ratione. Neque enim aliud videtur folatium mortis, quam voluntas ultra mortem, alioqui poteſt grave videri etiam ipfum
patrimonium, ſi non integram legem habet, do cum omne jus nobis in id permittatur viventibus, auferatur morientibus.
Mr. Barbeyrac's NOTES on S 6.
(1) See Lib. 3 c. 8 f. 4.
(a) See Gen. 25.5, 6. -48. 22. Deut. 21. 16, 17. 1 Kings 1. 35. Sirac. 33. 24. (6) Cyropæd. l. 8.
(c) Declam. 308. princip. (d) See Sirac 33. 20, doc. (C) Sueton. Calig. c. 38. Add. Sueton. Galb, c. 9. Liv. 40. C. 54;
keep

CHAP. X.
207
Of Wills and Teſtaments.
keep both his Kingdom and his Sons in due Subje- the Law, in the mean while, fupporting the Heir’s
ation (a). As the Family of Auguſtus hiinſelf was Right, which might otherwiſe fink:
afterwards diſtracted with a very fatal Emulation, VII. It is wont likewiſe, with great Pains and
upon his naming a Succeſſor in his Life-time: It Labour, to be diſputed; Whether the Heir by Will,
hath therefore been thought ſafe to take care Men's can with a fafe Conſcience enter upon the Inheri-
Wills ſhould only be publiſh'd after their Death, tance, when the Will was defective in any Point or
that they inay bring no Odium, and no Danger up- Form required by Civil Ordinances? As likewiſe,
on them whilſt they live.
Whether the Heir at Law, or he who was to ſuc-
On the fame Ground it hath been look'd on as a ceed,in caſe the Party had died Inteſtate can honeſtly
molt deteſtable and barbarous Villany to unſeal and overthrow ſuch a Will, upon Failure of theſe For-
divulge a Teſtament during the Life of the Teftator, malities, though he is allur'd that the Teſtator fe-
So when Ceſar upon the breaking out of the Civil riouſly deſign’d to bequeath his Goods to the Perſon
War, caus’d Antony's Will, which he had depoſited there ſpecified? Thoſe who take the Native ſide
in the Hands of the Veſtal Virgins, to be rehearſed of both Queſtions, rely chiefly on the Hypotheſis
in open Senate; many took very grievous Offence formerly mention'd (1), that the making of Wills
at the Act. For, as Plutarch obſerves (b), they judg’d is a Precept of the Law of Nature. Whence they
it to be most monſtrous and unreaſonable, that a Man conceive, that he who overthrows a Will thus de-
ſhould be obliged to give an account whilſt alive, of fe&tive, may indeed defend his proceeding in outward
thoſe things which he intended ſhould be done after his Cognizance, or in Civil Courts
, but not in the in-
Death
. Eſpecially ſince amongſt the Romans 'twas ward Judicature, or in the Court of Conſcience.
an uſual thing to give Judgments and Characters of For the thorough Underſtanding of theſe Matters,
particular Perſons in theſe laſt Inſtruments (2). As we ought beforehand to obſerve, That National
appears from frequent Inſtances in Tacitus. Add. leg. Laws are ſcarce in any Point more careful, or more
1. 1. 38. D. depofiti, 1. 1. f. 5. D. ad. L. Cornel. de ſtrictly exact in requiring certain Forms and Ceres
Falfis
.
monies, than in Teſtaments ; as well to prevent the
Now though the Reaſons here alledged, and o- many Frauds and Juglings which might creep into
thers the like, highly recommend to moſt Nations thoſe written Inſtruments, as to cut off thoſe moſt
this
way of final Diſpoſal, yet we cannot hence grievousContentions,whichAvarice would have rais’d
evince, that ſuch Teſtaments do naturally flow from upon the Caſe; ſcarce any thing being gotten with
the Propriety of things, and conſequently are pre- leſs Pains than a rich and plentiful Inheritance.
fcribed by the Law of Nature. For though we ſhould Hence, in as much as every Perſon of competent
ſuppoſe, that by the common Conſent of Mankind Years, and not ſtupidly
, rude and ignorant, is pre-
ſuch a Force was granted and affixed to Property, as ſum'd either to have known himſelf, or to have
that a Perſon might conſtitute whom he pleas'd to been able to learn from more skilful Heads, after
poffefs his Goods after his Deceaſe, yet that this what manner the Laws of his Country command
Thould be done in ſuch a particular manner, where- Teſtaments to be made; no one is ſuppoſed to have
by, both the Teſtator's Will ſhould remain Am- expreſs’d his ſerious Reſolution in ſuch a way as he
bulatory or Changeable during his Life (3), and knew would not hold good againſt thoſe who ſhould
the Right of the Heir not begin till the Teſtator's oppoſe it in Court; eſpecially conſidering that Men
Death, and the Party who is Heir not know ſo much are allowed ſo yaft a Time for the ſettling this Bu-
till then; all this is invented and eſtabliſh'd by fineſs. When therefore a Teſtament is found difa-
poſitive Ordinances. For, otherwiſe in transfer- greeable to the Civil Conſtitutions, 'tis eaſily pre-
ring Right from one to another, according to the re- lum'd that there hath been ſome Fraudulent con-
gular Courſe, it had been neceſſary that the Con- trivance, or that the Teſtator either was not well in
lents of the two Parties ſhould exiſt together at the his Wits, or elſe drew up the Inſtrument negligent-
ſame time (4), and, as 'twere, meet and unite: From ly and haſtily, and more by the Inſtigation of o-
which Union the Tranſlation of Right is conceiv'd thers, than by his own free Motion: So that the on-
to ariſe. But now in the Caſe before us, 'tis ſo far ly End and Deſign of thoſe Forms was, that a Forge
from being neceſſary, that the Conſents of the Te- ed Teſtament ſhould not be ſet a foot inſtead of a
ftator and of the Heir ſhould be united; that there true one; or a ſudden and unadvis’d Impulſe be ad-
is allow'd an Interval of Time, even between the mitted for a deliberate Reſolution : Eſpecially ſince,
Death of the former, and the entrance of the Latter; without any ſuch A&, the Law calls to the Inheri
9
(2) See Mr. Thomaſius's Diſcourſe, already quored, De Captatoriis Inſtitutionibus, $ 19. You'll find in the following Paragraphs
many curious things about the Cautions that the Romans took to hinder Men from being put into Wills.
(1) I own that a wiſe Man ought to diſpoſe of his Goods, and ought not to change his will rafhly or out of an humour, as
they do, of whom Mr. de la Bruyere ſpeaks in a pleaſant Rallery in the place I referred to above. A peevilh Man as long as
Wills in their Cheſt, as Almanacks on their Table, they may count them by the Year. But it doth not follow from hence, that
they may not by a Natural Right diſpoſe of their Goods in caſe of Death, but in an irrevocable manner. On the contrary, as
on the moſt mature Deliberation 'tis eaſie to miſtake in the choice of his Heirs, or ſuffer himſelf to be deluded by ſome crafty
,
diſpoſals of our Goods, which we have once made, muſt remain unchangeable. It is very natural, thar no Man tye his own
Hands, and that Death alone Thould fix a Teſtator's will entirely. Without this the Right of Property will be limited where is
els her to have the greateſt liberey, I mean, by the diſpoſal of his Goods for a time, and ſo be inevitably ſtripe of them through
the ſad Conſequences of the Natural Condition of Mankind.
(4) See what is ſaid on S 2.n. 1. and $ 4. n. 2.
Mr. Barbeyrac's NOTES on $
do not ſee how ſuch a Conſequence can be drawn from hence in reſpect to the firſt Queſtion, for whether the Power
of making a Will proceed from Natural Right
, or only from Civil, as it'oniy is a bare
Permiffion in reſpect of the Teltacor, che
it, and they are thought to make it when they do not
require the difanpulling the Will.
Forms requiſite are alſo an advantage to thoſe who might otherwiſe pretend to his Goods, ſo that it belongs to them to renounce
(a) Joſephus Ancig. Jud. 16. c. 8.
(5) In Anton. 942. Dio Cam. 1. 50. calls this Act of Cæſar, A most unjuſt Proceeding.
tance

208
Of Wills and Teſtaments.
Book IV.
;
tance the next of Kin, thoſe who are, ordinarily; ed with the ſcrupulous Exactneſs of the Roman Law,
ſuppos’d to have ſtood faireſt in the Opinion and have thought enough to make a Will perfectly va
Wiſhes of the Deceas’d. But though it may ſo hap; lid. After all, 'tis certain beyond Diſpute, that
pen,
that one who goes about to declare
his Mind they who receive any thing by Virtue of a Will
,
in this Matter, upon ſerious thoughts and
inature de- which they know to be forgd, are really guilty of
liberation, may miſtake as to the uſual Forms; yet a Sin, though they were not themſelves concerna
Courts of Judicature have no other ineans to be in- in the Cheat (2). Hence Tully juſtly cenfures the
form’d what was the Intention of the Deceas’d, than Act of M. Craljus & Q. Hortenfius, who in the Caſe of
by theſe Inſtruments. And fince 'twas at firſt al. a forged Will, becauſe they were not conſcious to
lowable for the Civil Authority to put this power themſelves of any Share in the Cheat, did not refule
of making Wills under ſuch Rules as ſhould render a Share in the Advantage. De Offic. l. 3. c. 18. Aůd.
it more ſerviceable to the publick Good, there's
no Valer. Max. l. 9. C. 4. . 1. For, in the firft place,
need to recede from the common Decrees, for the the Teſtator did not intend that his Goods ſhould
ſake of one or two private Perſons; fince if ſuch a
Precedent were once adinitted, endleſs Cheats and ready aſſign’d by the Laws to others, upon the not
Quarrels would ever be ſtarting up.
appearing of any Legal Teſtament of the Deceas d.
Again, He who is balk'd of an expected Inheri VIII. Nor, (as to the Second Queſtion,) doth the
tance upon a Failure in the Writings, cannot com- Heir at Law, by overthrowing ſuch a defective Will
plain of hard Uſage : For, neither can he plead the whatever aſſurance he may have that 'twas the feri-
Prerogative of Blood and Birth, (becauſe then he ous Intention of the Deceas’d, properly do any Injury,
would have ſucceeded without Will;) nor can any either to the Teſtator himſelf, or to the Teſtamentary
Man by Teſtament acquire a Right which ſhall hold Heir. Not to the foriner, becauſe he had no Right
good, at leaſt in caſe of Oppoſition, unleſs it be of beſtowing his Goods by his laſt Diſpoſal on any
Iquar'd according to the Statute. Wherefore ſuch a others than the Natural Heirs, unleſs he had obſerva
Perſon muſt attribute his Diſappointment rather to ed the Form preſcribed by the Laws of his Coun-
his own Misfortune, than to any Injury of others. try. Not to the Latter; becauſe no Right which
But, notwithſtanding all this, if the Will be not ſhall hold good againſt the Natural Heirs can be con-
call'd in Queſtion, then the nominated Heir may ferr'd on him in any other way than by a Teſtament
fairly enter upon the Poſſeſſions. For the Flaw fram'd as the Civil Conſtitutions direct. Neverthe-
which the Civil Ordinances ſuppoſed upon defect leſs, Perſons who have courted the Fame of extra-
of Formalities, doth in this caſe Vaniſh; (it being ordinary Humanity, have thought it more generous
taken for granted that the Teſtator ſeriouſly deſign d to ſtick cloſe to the Will of the Deceasd though
this Perſon for his Heir;) and really the Goods be- not exactly expreſs'd
according to the Forms of Law;
long to him rather than to any others, after thoſe either to avoid the Imputation of Avarice, or be-
who according to the general Courſe of the Law, cauſe Tender and Compaſſionate Minds are ſo fenfi-
would have ſucceeded by Birth, acquieſce in bly affected with the Thoughts of Death, as not to
his Claim, and tacitly wave their own Right. ſuffer that what a Man intended for his laſt Ap-
Becauſe a ſerious Purpoſe not declared with due So- pointment ſhould be intended in vain (1). Plin. İ.
lemnity is ſo far only adjudg’d by the Civil Laws 4. Epift. 10. You are wont most religiouſly to obſerve
inſufficient to transfer Right, as it ſeems to require the Wils of the Deceas’d; the bare underſtanding of
that others ſhould be excluded, who might chal- which (however it be expreſs’d) is to a good Executor
lenge a Right to the ſame thing upon another Bot- the ſame as the niceſt Form of Law. Idem 1. 2. Epift. 16.
tom. Therefore, if the Buſineſs be not brought in- I have fix'd it as a kind of Private and peculiar Law
to Court, the want of thoſe Solemn Forms requir’d to my ſelf, to defend a Will as Perfe&t, though deficient
by poſitive Statutes, doth not in the leaſt affect or in fome Legal Point. Idem 1. 5. Epift
. 7. This Tefta-
impair it
, provided it have all Conditions beſides, ment, if you regard the Law, is null; but if you coni
,
which otherwiſe, and according to the general Law der the Intention of the Deceas’d, is firm and valid
.
of Nature, are fufficient to conſtitute a Right. So As for my part (though I fear the men of my own Pro-
that the Failure in point of Form, ſeems to prejudice feſion will not reliſh very will ſuch a Declaration), I am
the Heir by Will only, if he is oppos’d by theſe more ſwayed by the Teſtator's Intention, than by any
whom the Law would have advanc'd to the Succef- exactneſs of Law. He that will follow this Example
,
fion, in caſe the Party had died without Will. But ought certainly to be applauded for a Noble and
when theſe are ſilent, and forbear to plead their Ti- Bountiful Spirit. For the fame Reaſon, thoſe who
tle, then for the Teſtator to have any way ſignified deſire the Character of great Benevolence, are care,
in earneſt whom he intended for his Heir, is judg’d ful to perform the laſt Commands or
ſufficient to transfer the Property. And this fomne their Relations or Friends, though ſomewhat bur-
Nations which were either unacquainted, or diſguſt- thenſome to themſelves. On which occaſion we may
Requeſts of
(2) The Story is this, In the Time of Cicero certain Men brought from Greece to Rome a forged Will of L. Minurius Bafilius,
who lefų a great Eſtate, and that they might make it of torce the more eaſily, they made Marcus Craſſus and Q. Hortenfaus, the
Men of the greateſt Reputation at that time, Heirs with them. Theſe Men feared that the Will was forg'd, but becauſe they
were not concern'd in the Forgery, they thought they might take the advantage. But Cicero blames them with reaſon for their
Compliance, by which means they became not only Favourers and Defenders, buc Complices in the Injuſtice, De Offic. 1. 3.
c. 18. See alſo Valerius Maximus, l. 60. C. 4. SI. To this we may add the excellent Sentence which Cicero immediately fub-
joyns, Mihi quidem etiam vere hereditates non honeſt a videntur, fi fint malitiofis blanditiis officiorum, non veritate ſed ſimulatione
quæfitx, (i. e.) To me thoſe real Inheritances ſeem noc honeſt which are gained by fawning Courtſhips and Attendance, and not
by fair Dealings.
Mr. Barbeyrac's NOTES on S 8.
(1) The Latin is, Religiofifſime ſoles cuſtodire defun&torum voluntatem, quam bonis heredibus intellexiffe pro jure est. Neque enim
etiamfi Jure deficerentur,quafi perfe&tas tuerer. And again
, Hoc, ji jus apicias
, irritum est, li defuncti voluntatem effet,ratum do firmymi
mibi autem defunéti voluntas (vereor quam in partem Iurisconsu'ti, quod Tum diéturus, accipiant) antiquier jure esset utique in eo, quod ad
communem patriam voluit pervenire,
voluntates
take

Chap. X.
20 Of Wills and Teſtaments. U? 10 209
to 2001
• be authoriz'd το Δίδωμι τόνδε σοίσι προσπoλoν δόμοις», της ΥΜ και 17 ) )
take notice of that Irregular Will in Lucian (a), Add. Diodor. Sic. 1. 15. C. 19. p. 341. C. Ed. Rho-
Where a poor Man bequeaths to one of his Rich Friends dom. Where he ſpeaks of Amyntas his Gift to the
bis Mother to keep, and to another bis Daughter to Olynthians.
Toto
D10
match her off, and to give her a Portion. Yet ſtill on Thus Hercules ſpeaks in Euripides (Alceſt. v.
the other hand, he is not to be cenſur’d, who doth 1020, &c.) OTVO OTETTY
not refuſe an Advantage allow'd him by the Laws
I TUV 250 TH TL 57 savoT
of his Country (2)
isribiooth
Tuvaline no pod ob ml Nebiy to clot og iliwas
The Queſtions which remain are to be determi 'ESS V 177*s dugo Ogrünes ayer for wordt borbu
ned by the Cuſtoms and Ordinances of particular
"Ex16, rigavvoy Besórwr ne paxlavavo ben poderos
Πράξας δ' όμοι τυχοιμι, νοσήσαιμι και
:
many
)
or fome Heirs, and others Legatees
. As likewiſe, With you I leave the Dame, to be reſtor’d
Whether an Inheritance paſſeth down with a full When I return and lead in Triumph home
conveyance of Right; or whether under the Nature The Thracian Steeds, when firſt the Tyrant's Fate
and Burthen of a Truf? On which Points the Ci This Hand hath ſeald But if my Wiſhes fail
vilians difcourſe at large (4). But this the Law of (Which Heaven avert !) then keep her as Your ownı;
Nature manifeſtly requires, That the Burthens and Add a new Honour to Your Family.
Debts incumbring an Eſtate, Jhall lie on the Heir (5),
Perfon makes over to ano-
Value of the Inheritance, nor ſo as that he mhould ther his Poffeffions after his Death, reſerving to him
be bound to make up the Deficiency out of his own ſelf in the mean time, the Poſſeſſion, and the full
ſeparate Fortunes, unleſs he hath laid a particular Uſe and Profits, but in ſuch a manner, that the
Obligation on himſelf to that purpoſe
.
Donation ſhall, before his Death, be revocable on
IX. We uſually diftinguiíh from Teſtaments
, Do- fome particular Cauſe; as if the other Party ſhould
nations in caſe of Death; by which both Parties liv. afterwards offer him ſome ſignal Injury; or if he
ing and conſenting (1), one transfers on the other a himſelf, being Childleſs when the Grant was inade,
Right to his Goods, if he chance to die. Of theſe ihall alterwards have Illue of his own.
there ſeem to be two kinds eſpecially remarkable. But, if the Donor made his Grant reverfible, not
One, (2), When a Man conceiving himſelf to be on any External Condition, but meerly of his own
under a probability of Mortal Danger, fo grants a Pleaſure, then the Grantee ſhall acquire no Right,
thing to another as not to make it his immediately ſo long as the Donor retains a Natural Ability to
upon his acceptance, but only if the Danger really change his Mind; that is, ſo long as he continues
proves Mortal as he expeéts: Or, when a Man makes Maſter of his Reaſon. For, as on the one ſide, he
his own Death, which he apprehends to be near on is not under ariy Obligation, who may releaſe him-
account of the preſent Danger, the Condition of his ſelf when he pleaſeth, without any Payment or Per-
Grant ; ſo that if he eſcape the Danger, the Grant is formarice ; ſo on the other ſide, a bare Hope, which
void (3). See an Example in Homer, Odyſl. Libmay be taken away purely at anothers Fancy, can-
17. V. 78, &c. It may not be altogether improper not come under the Name of Right. The Right
to rank under the ſame Head the Act of King Philip, therefore of the Grantee ſhall commence only upon
in Livy (1. 32. c. 38.) who finding himſelf under a the Donor's Deceaſe; and conſequently this Act ap-
neceflity of engaging with the Romans in Battle, proacheth near to the caſe of a Teſtament, ftriatly
delivered the City Argos to Nabis, as 'twere to hold fo call'a.it 3910
in truſt; to be reſtored in caſe he got the Vi&tory, but But,
t, when a Perfon moved with the Thoughts of
to be kept if be proved Unfortunate.
any Danger which threatens his Life, fo grants a
look up-
har
(2) See Mr. Hirtius's Diſcourſe, De Colliſione legum, Sect. 3. part 2. in Tom. 1. of his Comments and Opuf. Mr. Buddaus
Seems to be of a contrary
Opinion in his
Treatiſe, De Testamentis Summor. Imperat. c. 1 9 8. but I do not ſee that he has anſwer-
ed our Author's Reaſons. Another thing in queſtion is, whether he that has difannuild a Will, can in Conſcience make
void all the Legacies? And whether one may always in conſcience diſpenſe with the Payment of ſome Legacies of a Teſtator,
which are null in Law, though the Will is otherwiſe valid in it felf? To this I anſwer, Thac if a Teſtator has given any Legacies
for juft Cauſes, as for an acknowledgement of ſome Services
done him to procure ſome advantage to Society, &c. 'tis not only
Knavery but Injuſtice not to diſcharge them. The Reaſon is, becauſe he knows it to be the will of the Dead, though there is
Tome defect in the Form, and his will is ſo reaſonable, that ſometimes the Perſons concerned have an imperfect, if not a per-
left Right, to require the Gifts
. Whereas, when he that ſucceeds a Perſon inteſtare, makes void his Will, he may ſuppoſe that
the Teſtator was ſurprized, or that there was ſome Fraud in making the Will, and ſo much the more, it the Teſtator labours to
difinherit the lawful Heir, it is very hard to obſerve exactly all the neceffary Formalities ; ſo that the Heir at Law may
on it as a thing morally impoſſible, and by conſequence count that Act null which is not agreeable to Law, by virtue of which
he has a Righe to claim the Succeſſion, reſerving to himſelf (as I have ſaid the Execution of all thoſe wiſe and equicable Dil-
poſals which may be found in a Will fo made void.
(3) Scc about the Subject of Succeſſions, as well by Law as will, the ad part of Mr. Daumat's Civil Laws in their Natural Or-
der, and the Interpreters of the Digests, 1. 28. to 39. excluſive, or upon the Inſtitutes, l. 2. from t. 10. to the end.
(4.), This is when the Heir is obliged to another, either at the end of a certain Term, or in fome Cafe, to give up either all
the Inheritance, or pare of it only. See the Inſtitutes, 1. 2. t. 23, 24. and the Interpreters upon the Digeſts, 1. 36.c. 1. ad sena-
Lawful Heirs. Sec an excellent Paſſage to this purpoſe in Mr. de la Bruyere's Characters, in the Chapter, of certain Cuſtoms, prin-
ted at Bruſels in 1697. The Character begins thus: The Law which forbids Murder, Does
it not comprehend in it the Pro,
"hibition of a Sword, Poiſon, Fire, water, Treachery, open Force, and all the means by which Murder may be effected?
(5) See the following Chapter, s che laft
.
Mr. Barbeyrac's NOTES on 6 9.
(1) Mortis caufa donatio est, que propter mortis fit suſpicionem cum magis ſe quis velit babere, quam eum qui donat, magiſque ei
cui donat, quan hæredem fuum, Inftit. 1. 2. t. 7. 61. "See the Interpreters upon this Title, and upon that of the Digests, which is
quored in the following Note.
(2) Tertium genus elle donatieris ait, ſi quis periculo (mortis] motus non fic det, ut ftatim faciat accipientis, fed tunc demum, cum
mors inſecut a, Dig. 1. 9.c.6. De mortis cauſa donat. &c. leg. 2.
(3) Alian" este fpeciem mortis cauſa donationum ait, cum quis imminente periculo commotus ita donat, ut ftatim fiat accipientis, ib.
(a) la Toxar. p. 47. t. 2. Edit. Amít.
+ D d
thing,
1

210 Of Succeſſions to Perſons who die Inteſtate.
Book IV.
thing, as to make it immediately upon acceptance, of Death, and not to hold good unleſs he ſo miſcar-
belong to the other Party, and doth not recal it, ried.
upon eſcaping the Danger, then the Promiſe ihall That kind of Grant likewiſe, by which a Man
be rather put in the Clals of ordinary Donation (4), transfer Property on another
, without the Power of
or ſuch as are made
without any regard to Death. retracting, yet ſo as to enjoy the Uſe and Property
Though in caſe the Grant was very large, and fuch during his own Life (5), is to be reckon d amongt
as will weaken the Donor's Eftate, much more if it the ordinary Donations, or ſuch as are made between
comprehend the whole Pofleffion, it ſhall be prefuin'd Living Parties. 18 seisten
to have been made only upon his preſent Proſpect
hold
(4) Ubi ita donatur mortis caufa, vt nullo cafu revocetur, caufa donandi magis eft, quam mortis cauſa donatio, é ideo perinde ba.
beri debet, atque alia quævis inter vivos donatio, Ibid. leg. 27.
(5) See what is ſaid, 1. 5.c.4. 8 1. n. 1. following concerning Gifts among the Living.
atrod samounit hi boot bris I
stomTow abot
10
Tot et
| 11วร
ว่าง
LWUZU X 25 court rent hvad
TIMUR TOY oi morti v CHA P. XI.
Visults out
2010
OITE Tovo disco
19 oplo
ma iv tolgt
divtale Of Succeſſions to Perſons who die Inteſtate.
1. Succeſſion to Perſons that die Inteftate depends | XI. Or does not diſinherit them.
610
am
upon a Preſumption of their Will.
Of the Right of Repreſentation.
II. Tet as it is agreeable to Reaſon.
XIII. Parents muft ſucceed for want of Children.
III. Children are preferred before all others. XIV. And for want of them the neareſt Relations in
IV. Parents are to maintain their Children.
their Order.
suri
V. What is meant by Maintenance.
XV. Whether Friends may be preferred before
VI. Who are to be accounted Children ?111
fool Kindred?
VII. What more than Maintenance is due to Children, XVI. Or Benefaflors before Relations?
and why?
ON
XVII. The Order among Kindred.
VIII. It is not neceſary that Goods ſhould always be XVIII. The Civil Laws allow a large Power of diſpo-
equally divided among Children.
2011 Jing Eſtates.
IX. Legitimate Children are to be preferred before XIX. The Heir of the Deceas'd, how far he is obli-
Natural.
ICH ged to pay his Debts.
X Provided that the Father owns them.
XII.
A Coording
Nature
any particular expreſs Act of the for- Body, and next to theſe for the reſt who are allied
mer Lord, the Properties of things are ſaid to paſs to us in the degrees of Conſanguinity: For nearnels
in Succeſſions to Inteſtates(1). For Property having been of Blood commonly unites and engageth Mens Minds
at firſt endued with ſuch a Force and Power, as in a particular Affection; and almoſt all Perſons
that by virtue of it, a Man was enabled not only have this deſire implanted in them, that they eſpe,
to do what he pleas'd with
his Goods during his own cially wiſh well to their own Families, and would
Life, but likewiſe effectually to transfer them upon have them ſucceed and flouriſh as much as poſſi-
others after his Death ; it did not ſeem probable that ble.
if a Perſon was found to have made no Settlement As to Natural Duties, one of the chief of them is,
of his Goods whilſt he lived, he was therefore wil- That we take due care for the maintenance of thoſe,
ling they ſhould after his death become, as it were whom Nature hath enjoin'd us to cheriſh with a peculiar
derelict, and lie free to any that would take poffef- concern and regard; as likewiſe, that we fhem our
fhew felves
fion of them (a). In this caſe then, Natural Rea- grateful towards our Benefactors.
ſon ſuggeſted, That Men ought to follow the pre Now although it might ſo happen that theſe Pre-
Jum'd Will of the Deceas’d, or ſuch a diſpoſal as he ſumptions ihould often vary from the real Intenti-
might moſt probably be ſuppos'd to have deſign’d. on of the Deceas’d, yet the Peace and Tranquility
Now in doubtful matters ever one is ſuppos’d to have of Mankind required, That no particular Conje-
deſign’d that, which is moſt agreeable both to his ctures ſhould be eaſily admitted againſt theſe com-
Natural Inclination, and to the Engagements of his mon Rules ; ſince by this means a Door would be
Duty (b).
opened to endleſs Contentions. And therefore the
IŤ. The Regular Courſe of Natural Inclination is preſent Affair in the Intentions of the Deceas'd is
this, That we ſhould labour to make the moſt plen- conſider’d, not ſo much according to what it was, as
Mr. Barbeyrac's NOTES 01 Chap. 11. § 1.
(1) As this ſort of derivative Acquiſition is founded upon the Tacic Will of the dead Perſon, it is conſequently natural accor-
ding to the Diviſion laid down above in c. 1o. $ 1. n. 1. But becauſe there may intervene divers Diſpoſals of the Civil Law,
which for the promoting of Peace do or ought to regulate as exactly as poſſible all that concerns Succeſſions to Perſons that die
Inreftate, in this reſpect Acquiſition is mixt, ſince it contains as much and ſometimes more of the Civil than of Natural Right,
(a) Pindar. Olymp. Od. 10. Πλτα και λαχων ποιμένα, &c.
Thoſe Riches grieve the dying Man
Which Serangers Hands muſt ſeize
(b) Comp. Grot.. 1. 2. C. 7. $ 3.
according

CHIAP. XI.
Of Succeſſions to Perfons ubo die Inteftate. 21
a
according to what it ought to have
been, and agree. Inheritance, before the Relations of the Deceas’d,
ably to the Rules of Duty (1), Amongſt which one he might feem to have performed the former Act
Ruptures and Quarrels amongst others
. Hence it is nefactor were preferr’d
, in the expreſs Will of the
expedient for the cominon Peace, that ſome general Deceas’d, 'tis but Equity that the ſaid Will ſhould
Method ſhould be follow'd in this Buſineſs, though be obeyed.
the Intention of ſome few ſhould happen to be ne From all which it appears, that Natural Reaſon
glected, rather than that by endeavouring to ſatisfie in deciding the
caſe of Succeſfion, upon default of
the Deſire of every private Perſon, we ſhould involve Teſtamentary. Diſpoſals
, regards the Intention of
our felves and others in endleſs Difficulties. the deceas’d Party, not as it was ſtrictly in it ſelf,
Beſides, He who would have his own particular concerning which there is often very little Afſu-
Purpoſe abſolutely obey'd, ought to have expreſly rance ; but according as it agrees with the common
fignified thus much. Thus nothing is more uſual, Inclinations of Mankind, and with the Meaſures of
than for a Father to love one of his Children with Duty, and ſo as that no Fuel may be adminiſtred to
a more ardent Affection than the reſt : And then Controverſies and Contentions (a).
who doubts but he is willing an extraordinary Pro This Judgment of Natural Reaſon is ſeconded in
viſion ſhould be made for his Darling's Subſiſtence? all States by Civil Ordinances, as well that the A-
Yet if he die Inteftate, they ſhall divide the Inhe- varice of ſome Perſons might not ftir up deſperate
ritance by equal Shares; not as if ’twere repugnant Quarrels amongſt thoſe who ſeem'd to have equal
to the Law of Nature, to allot one Child a larger Reaſon on their lide; as that this whole Affair
Portion than another, but becauſe there would ariſe might be wiſely accommodated to the publick Safe-
infinite Diſputes in Families, if the Father's Affe- ty.
&tion were to be the Meaſure of parcelling out E III. In the Succeſſion, therefore to Inteſtates, by
fates
. The ſame Inconvenience would follow, if a the guidance of Reaſon, and by the conſent of all
Man dying Childleſs ſhould leave ſeveral Brothers
, the known Kingdoms, Children have the preference
to whom he expreſs’d very different degrees of kind- of all others, even of Parents themſelves (1). See
neſs in his Life-time.
2 Corinth. XII. 14. Rom. VIII. 17. If Children, then
Again, 'Tis no uncommon thing for a Man at his heirs. Ariſtot. Nicom. VIII
. 14.
Deceaſe to leave behind him a Kinſiman in ſome re Parents have a more certain knowledge that ſuch Per.
mote Degree, for whom he had never any particu- ſons are their Children (*), than Children can have that
lar Paſſion, and to whom he was never oblig'd for ſuch are their Parents. And in this caſe there feems
any Service or Favour ; whereas, on the other ſide, to commence a ſtronger Relation from the Cauſe to the
he may have ow'd all his Fortunes to the Kindneſs Effe£t, than from the Effect to the Cauſe.
of a Stranger. Who will not ſay, That the Deceas’d Iſaus, Orat. V. (t).
fet a much greater Value on his Benefactor, in this The Law it ſelf aſigns over to the Son the Goods of
Cafe
, than on his Relation? Yet becauſe to enter the Father, and allows not him to make a contrary Will
into a Compariſon between the Ties of Blood, and who hath Legitimate IlJue. Idem. Orat. II. If a Man
of Gratitude, muſt have occaſion d many Contro- deceaſing leave Daughters lawfully begotten, he can give
verſies difficult to be reſolv'd, it hath been the Judg- away nothing, nor make any diſpoſal without their Cona
inent of all Nations, that in the caſe of Inteſtates, ſent. And again, a little after, The Law ſays, a Man
a Kinſman ſhall be preferr’d to a Patron or Beneſa- Shall diſpoſe of his Goods at his own Pleaſure, if he
ĉtor. Eſpecially, ſince if a Perſon on account of a leave no Legitimate Sons; but if he leave Daughters,
Kindneſs beſtow'd, were to ſtand in the Roll of their pleaſure is to determine his Diſpoſal, and not his
Mr. Barbeyrac's NOTES on $ 2.
(1) This may fuffice in my Judgment to anſwer the Difficulties which Mr. Bynkerſhoek, Obſerv. l. 2. c. 1. propounds, where he
ſays, That Fathers and Sons do often not love each other, and Brothers rarely live amicably, much leſs other Relations: That
they alſo who are neareſt related by Blood, moſt eaſily quarrel, and conceive more implacable Hatred againſt each other than
Strangers or indifferent Perſons. The fame Author alſo maintains, that to prove that the Laws are nor founded upon the Pre.
Tumprion of the Will of the
Dead, 'tis ſufficient to conſider that a Wife is excluded from fucceeding to her Inteftate Husband,
although ſhe muſt be ſuppoſed dearer to him than a Parent, and quotes thereupon, Gen. 2. 24. But beſides that there are divers
degrees of Affection, and tho’ he may love his wife with much
Paſſion, as it ſometimes happens, though not often; it doth noc
therefore follow, that he would have her to be the Heir of all his Goods. It only proves, that in ordering Succeffions to Ince.
ſtate Perſons, regard is had to the intereſt of the State, and the preſervation of Families, as well as the ordinary inclination of
private Perſons, who nevertheleſs often agree in their Defires with the Intentions of the Lawyers. For who is there that does not
defire that his Eſtate ſhould go to his Family? Moreover, Mr. de Bynkerſhoek furniſhes us with Arguments that the Roman Law
fogages us to follow, if not altogether, yet at leaſt ſo far as the publick Good permits the will and Affection of the dead Per.
1on, as appears
from a whole Chapter of the fame Work, 1. 1.c.19. where the Author explains the Law
very well, which ſays,
That a rather diſcharges his Dury as he ought when he makes his Son his Heir. Perinde habebitur atq; Si ſua manu pater tuus te
heredem fcripfiffet
, FUNCTUS DULCI OFFIC10, Cod. 1. 9. 6. 23. De his qui fibi adftribunt inteftam, leg. 1. We alſo know, that
Wives are not
altogether excluded from fucceeding to the Goods of their Husbands, and that the Laws call us to them, when
the Relations by Father's and Mother's fide are
wanting. Maritus do Uxor ab inteftato fibi invicem pro antiquo jure ſuccedunt, quo-
ties deficit omnis parentum liberorumve seu propinquoruin legitima vel naturalis ſucceſio, fiſco excluſo, Cod. 1.6.c. 18. leg. 1. Vnde
Vir do Vzor. See the fame Title in Digeft. 1.38. t. 1, and the Interpreters upon it,
Mr. Barbeyrac's NOTES on 6 3.
(1) Cum ratio naturalis, quafi lex quadam tacita liberis parentum hæreditatem addiceret, velut ad debitam jucceffionem eosvocando;
propter quod bo in jure civili Tuorum hæredum nomen iis indu&tum est, ac ne judicio quidem parentis, niſi meritis de caufis fummoveri ab
ca fuéceſjione poſunt, &c. Dig. 1. 48. t. 20. De bonis damnatorum, leg. 7. princ. Sec allo Mr. Bynkerſhoek's Obſervations, l. I. C. 19.
(*) Μάλλον ίσασιν οι μνείς τα εξ αυτών, ή τα γεννηθέντα, ότι εκ τέλων και μάλλον συγωκεύασαι το αφ' * τα κυνηθίνι, ή το
γεννώμενον τω ποιήσανι.
Ο Παurs Greek is, “Ο νόμG- αυτός αποδίδασι το υιεί τα τά πάθεG, και ο διαθέθαι έα ότω άν ώσι παίοις γνήσιοι, Orac, 5.
And again, Ούη διαθέτει το ενα να εν, και ει των έαν, άνευ των θυγατέρων, έαν τις καταλιπών γνησίας τελευτά.
(a) Add Bæclør, ad Grot. 1. 2. C. 7. $ 13.
+ D d 2
own.
above quoted.

212 Of Succeſſions to Perſons who die Inteſtate.
Book IV.
Con 011
in the . or ;
own. Therefore with their Daughters Confent, they to endeavour as far as in them lies, that the Life
may give and bequeath, or appoint any method of Suc- which they have beſtowed ihall be fupported and
cefron. But without ſuch Approbation, they cannot a- preſerved. And thus the Children will have a pera
dopt an Heir, or put their Fortunes into other fe&t Right of receiving Maintenance from their Pa.
Hands.
od WIDTU
rents. Yet this Right is hindred from producing
Add. Lib. 48. t. 20. Leg. 7. Princip. D. de bonis all its Effects by the Natural Weakneſs of Children
damnator, DEM SITE:
under that Age in which they cannot provide for
Julian in Cæſarib. (1). It is the Legal Cuſtom to let their own Support. And conſequently they do not
the Sons ſucceed to what the Fathers poſeſs; and this ſo much want Right as Power and Strength to exe-
is a Rule which we all deſire to ſee obſerved.
cute that Right; only in fomne Points the Civil Or
Thus Valerius Maximus obferves (L. 7. C.7. Sect. 2) dinances help them out, and compel their Parents
that the procreationis vinculum, the Band of Genera- to keep and feed them, upon refuſal. Though thro
tion, is the ſtrongeſt and cloſett Tye which can affect the Wiſe Ordering of the Creator, the Natural Af
Mankind. De
fection of Parents is of fo great Force, as that com-
That which ſo highly favours the Childrens Claim monly ſpeaking, they joyfully undertake and dif-
is, not only the Obligation laid by Nature on their charge their Duty, without the compulſion of the
Parents, to provide for their Maintenance and good Civil Government.
Inſtitution, but likewiſe that ſtrong and vehement V. Not only thoſe things which are neceſſary for
Affection, which can only be extinguiſh'd, (and the preſervation of Natural Life fall under the Term
that very rarely ) either by the enormous Wicked- of Maintenance or Alimony, but thoſe likewiſe which
neſs of the Children, or by the unuſual Barbarity of fit and prepare a Man for a Social and Civil Life.
the Parents.
And the former are due 'till ſuch time as the Chil-
IV. As to that Maintenance, which Parents owe dren are able to ſupport themſelves by their
their Children (1), it hath been doubted by Authors, Induſtry. As for the Meaſure of what ought to be
whether the Obligation to pay it, were Perfect or ſpent on Education, in training up Children for a
Imperfect, or whether it belong'd to expletive or to Civil Life (1), it is to be ſtated according to the For-
attributive Juſtice (a). 'Tis the Opinion of ſome, tunes of the Parents, and the Genius and Capacity of
That Parents do indeed owe their Children Mainte- the Children. Thus much at leaſt is required, That
nance, but then 'tis by the latter kind of Juſtice only, they be enabled to become honeſt and uſeful Members
and not by the former ; ſo that Parents would a&t very of humane Society. But this is a general Rule in the
inhumanely ſhould they deny them this Aliſtance; yet whole Affair ; That as Nature doth not command Pa-
Children have no Right to challenge it from them a rents to pinch and defraud their own Inclinations, and
gainſt their Wills
, this being the proper Effe&t of exple- to make themſelves miſerable for the ſake of their IL-
tive Juſtice : though Civil Statutes may inveſt Children fue; fo a Parent plac'd in a high and wealthy Conditi-
with a full and perfect Right in this Matter. But we on, is no doubt, in fault, if he do not take care that
are rather inclined to think, That Parents lie under his Children be brought up after the moſt exact and ac-
a perfe&t Obligation to maintain their Children, fo compliſh'd Manner of Inftitution. (til
long as they are unable to maintain themſelves; VI. Under the general Name of Children (1) are
and this Duty ſeems to be laid upon them, not on- comprehended not only thoſe of the Firſt Degree
,
ly by Nature it ſelf, but by their own proper Act, but thoſe too of the Second, &c. whether deſcend-
bringing
(
g from Sons Daughtersin caſe their nearer
would be in the higheſt manner injurious to their Iſſue, and more proper Parents are not able to maintain
ſhould they have given the Children Life, for nó them (2). DET
other Reaſon, but that they might afterwards ſee Farther, Maintenance is due not to Legitimate
them Periſh. By the Act of Generation therefore Children alone; but to Natural, and even to Ince-
they ſeem to have voluntarily bound themſelves, ftuous Iſſue (3). For what reaſon is there that the
Own
cenu
1 2 3 4
9DWITO
23
(5) His Words are, Παισιν νομιμόν επιτρέπειν τας διαδοχές και στο άπαντες εύχονlαι.
Si o sabo Mr. Barbeyrai's NOTES on 6.4.
(1) Every one almoſt knows, that among the ancient Greeks and Romans 'twas thought that they had a power to expoſe or
May their own Children, and that Chriſtianity had much ado to aboliſh char barbarous Cufton, as appears by Mr. Noodt's Trea-
tiſe, De partus expofitione de nece apud veteres, which was reprinted in 1709.
(2) See l 6.c. 2. $ 4. following.cap
be is to have been looking out
3062) 97 979.3 ech 100
Mr. Barbeyrac's NOTES on S 5.
(1) See Lib. 6. c. 2. $ 6. 12. following.
but 1
Mr. Barbeyrat's NOTES on $ 6.
(1) Liberorum appellatione nepotes & pronepotes, cæterique qui ex his deſcendunt continentur Etenim idcirco filios, filiafque
concipimus atque edimus, ut ex prole eorum earumve diuturnitatis nobis memoriam in ævum relinquamus, Dig. I. 50. t. 16. de verborum
fignificatione, leg. 220. See alſo leg. 56. and Inſtit. I. 1. C. 14. Qui teſtamento tutores dari poffunt, leg. s.
(2) Ipſum autem filium vel filiam, filios vel filias, & deinceps alere patri neceffe eſt, non propter hereditates, ſed propter ipſam
turam & leges, que do d parentibus alendos effe liberos imperaverunt, & ab ipfis liberis parentes, fi inopia ab utraque parte vertitur
,
Cod. 1. 6. t. 61. de bonis que liberis in poteftate patris, &c. leg. 8. S's. See alſo the Digeſt, 1. 25. t. 3. de agnoſcendis G alendis li.
beris, leg. 5. S 1. s. and leg. 8.
(3) See Grotius, 1. 2. c. 7. $ 4. numb: 4. and $ 6. and Mr. Daumat's Civil Latvs in their Natural Order, Part 2. l. I. t. I. Sect. 2.
$ 8.' 'Tis certain that a Baſtard has as near a Relation to his father as a lawful Child; and many among the Greeks made no dife
ference between theſe two forts of Children, as Mr. Le Clerc has obſerved upon Gen. 21. 10. where he alledges this Authority.
'Odvole toisyuncioes icon aterat
A Baſtard's equal to a lawful,
"A TELVTO Zensco yunoico é XH Quary .
An honeſt Man is always rightly born,
Soph. in Alcadis apud Stob. Serm. 77.
The Ægyptians, as Mr. Le Clerc proves in the ſame place by a Paffage out of Diodoras Siculus, counted none of their children
Baſtards, though they were begotten of their
Slaves which they had bought. And we may obſerve that the Patriarchs of the
Old Teſtament had an equal regard to the Children of their Concubines, as of their lawful Wives, as appears from the Example
of Jacob, who divided his Goods equally between the Children he had by Leah and Rachel, and choſe he had by his cwo
Concubines. The ſame thing is ſtill in uſe among the Mahometans, as our Author obſerves below, $ 9.
(a) Vid. Grot. dift. loc. Sect. 4.
Poup eyod
Poor

CHAP. XI.
Of Succeffions to Perſons who die Inteſtate. 213
poſe.
Laws ga
upon
Maintenance; this is abſolutely falfe: For, every on a Suppoſition that the Cauſe of their Dif-inheri-
Poor innocent Infant ſhould be ſuffer'd to famiſh for It is well enacted by the Roman Laws, That every
another's Sin? Yet if the latter be left together with Parent who diſ-inherits his Child, ſhall be oblig'd ex-
the Legitimate Iſſue, they ſhall not eaſily chal- preſly to give his Reaſon for ſo doing; and that foie
lenge to be admitted to equal Shares, unleſs the certain Cauſes only thall be fufficient to juſtifie
Parents inade expreſs Declaration to this Pur- him in this Proceeding. Nay farther, the fame
gave the dif-inherited Children an Action (4),
In reſpect of theſe ſeveral parts of Maintenance, de inofficioſo Teſtamento ; Of a Will not made accord-
the Parent's Deceaſe during the Minority of ing to Natural Affection and Duty. The Deſign of
the Children, the Inheritance is not only theirs if which was not to bring into Diſpute, Whether or
he died Inteſtate, but farther, it cannot rightly no the Teſtator had a Power of tranſmitting his
be taken from them by his expreſs Will fo far Goods to others, rather than to his Children, upon
as is neceſſary for the obtaining this End. For it juſt Cauſes; but to diſcuſs and examine the Reaſons
doth not ſeem probable that a Child of theſe Years which mov'd the deceas’d to make a Settlement con-
ſhould be capable of committing any ſuch Offence trary to the common Inclinations of Mankind. And
as might render him unworthy of fo needful a Sup- if, upon ſuch a Hearing, it was difcover'd that the
port.
Father thus neglected his Iſſue, either through his
VII. Whatever exceeds this Proportion of Main- own abſurd Fancy and Humour, or through the
tenance, is due to the Children when able to pro- fraudulent Intruſion of others, the Inheritance was
vide for themſelves, not ſo much by any expreſs by publick Authority avowed to thoſe to whom it
Command of the Law of Nature, as upon this Prin- would otherwiſe have deſcended, had the Father
ple, That commonly ſpeaking, Parents deſire that conſulted with Reaſon and Conſcience in his laſt
none ſhould fare better than their own Children (1). Diſpoſal. And therefore Cicero (5) well replies up-
Therefore 'twas a very ſingular Diſpoſal, that of on Erucius, who charg'd his Client Rofcius with a
Crates the Theban, who lodgʻd his Money in the Deſign to diſ-inherit his own Son, It ought to have
Hands of a Banker upon theſe Terms, That if his been the Buſineſs of the Accuſer, to lay open all the
Children proved Ignorant, it ſhould be reſtored to them; Sins and Vices of the Young Man, which might be fup-
but if they happen’d to be Philoſophers, it ſhould be pos’d able to incenſe the Father to ſuch a height, as
diftributed amongſt the common People ; becauſe Men that he ſhould once entertain a Reſolution of doing Vi-
of that Profeſſion could be in want of nothing. As olence to Nature it ſelf, of baniſhing that Affection which
to what ſome have advanced, That Parents get all was ſo deeply rooted in his Mind; and, in a word, of for-
for the ſake of their Children, and therefore the getting utterly that he was a Father. 'Tis remarka-
Children, even in the Parent's Life-time, have ſuch ble under what Colour the diſ-inherited Children,
a Right to their Goods, as ſhall be valued againſt by the ſame Laws, mov’d for Relief: For it being
them, in other Caſes, beyond the Neceſſaries of neceſſary that they ſhould ground their Complaint
Man in his Gettings hath firſt of all an Eye to him- tance was unjuſt, they pretended in the Form of the
felf, and labours chiefly on his own Account. Horat. Action, That their Parents at the time of making ſuch
lib. 2. Epiſt. 2. v. 190, &c.
a Will had loſt the uſe of their Reaſon.
Still, as to other matters, a Father ought ſo to fa-
Utar, & ex modico, quantum res poſcet, acervo vour his Children as not to lay aſide his juſt Regard
Tollam, nec metuam quid de me judicet hares, to other Duties. Hence, when he may be judg’d
Quod non plura datis invenerit.
to have made ſufficient Proviſion for his own Fami-
ly, he is not in the leaſt hindred from employing
Juvenal. Sat. 14, V, 136, 137,
Manifeſta phreneſis his Goods in Acts of Gratitude and Liberality (6),
Ut locuples moriaris egenti vivere fato. though to the leſſening of his Children's For-
tunes. Thus, in caſe a Man hath either receiv'd
But what remains above his Private Neceſſaries, he extraordinary Kindneſſes from another, or is able by
is willing ſhould paſs to thoſe who are deareſt to a ſeaſonable Beneficence to put ſome great Genius,
him, as commonly, his Children (3) are preſum’d to now ſtrugling with Poverty, into a way of doing
be. And Children have thus far only a peculiar great Service; what reaſon is there but that he
Title to hope for their Parent's Eſtate, as that in ihould be allow'd to deviſe fome part of his Goods
caſe of no expreſs Will to the contrary, their Claim to ſuch excellent Uſes? It's plain, Antiquity high-
is preferr’d to all others; and becauſe it very rare- ly celebrated the Action of King Attalus, who hav-
ly happens, that Parents are induc'd to lay aſide ing been oblig’d by his Brother Eumenes with very
this ordinary Affection.
woor
Mr. Barbeyrac's NOTES on S. 7. in onze
(1) This ſhort Story might have been put better in another place to wear
(3) See Mr. Thomafius's Diſcourſe, entitled, De legitima viventis, c. 3. $ 23, doc. publiſhid and maintain’d by way of Diſpu-
tation at Hall in 1700. where it appears what we are to think of Legitimacy, or of that portion of Goods, be it greater or leſs
,
of which, according
to the Laws and Cuſtoms, Children can't juftly be deprived of by the Authentick will of their Father. For;
as Grotius obferves, 1. 2. c. 7 n. 3. Natural
Right obliges to give a neceffary Maintenance to Children, but what is more than that,
they have no other Right than what the Conſtitutions of the
Civil Laws give them. But if any defire
to know the exact Quora
of the Goods that ought to deſcend to Children, and other things which concern their Legitimacy, let them conſult the Inter-
preters of the Digeſts quoted in the following Note, and Mr. Daumat's Civil Laws in their Natural Order, Part 2. 1. 3. t. 3;
(4) Inofficioſa querela, which is when the Diſpoſals of Parents are looked upon as contrary to their Duty. See upon this Sub-
ject
, Inftit
. 1. 2. c. 18. and Digest. 1. 5. t. 2. De inofficiofo teftamento, as also Mr. Daumat's Civil Laws in their Natural Order, Part
2. 1. 3. t. 2. and the Obſervacions of Mr. de Bynkerſhoek, 1. 2. c. 12.
(5) Cicero's Words are, Id erat certi accuſatoris officium, qui tanti ſceleris atgueret, explicare omnia vitia do peccata filiis, quibus
ircenfus parens potuerit inducere, ut naturam pſam vinceret, ut amorem illum penitus infitum ejiceret ex auimo, ut denique patrem ele
(6) See Mr. Le Clerc's Reflections upon what he calls good or bad Luck in the matter of Lotteries, c. 12. p. 189, &c.
ſingular
fefe obliviſceretur.

214
Of Succeffions to Perſons who die Inteftate.
Book IV
na make Vortue alone the Rule
ſingular Favours, left his Kingdom to Eumenes's Son, their Brothers Shares For 'tis a very fooliſh Ar-
though he abounded in Male Illue of his ow11 (7). gument to imagine that a Father muſt needs act
VIII. Neither doth a Father lie under any Ne- contrary to his Duty, in making an unequal diſtri
ceflity of dividing his Goods among& his Children in bution of his Goods
amongſt thoſe whom he hath
equal Shares; but he may ailigu to one or two fome equally begotten. Therefore Pliny (d) ſpeaking of a
what above the reſt, as an extraordinary Bounty; Lady who had left Two Thirds of her Eſtate to a
either on account of ſingular Merit, or of great and Nephew, and but One Third to a Niece
, calls it
,
illuſtrious Hopes, or even of particular Affection (a) Honeftifimum Teſtamentum, A moſt horejt and worth
So likewiſe in diſtributing Portions, a juſt regard Teſtament.
may be had to the Credit of the Family, that it
And hence too it may be appointed not only by
may hereafter retain its Strength and Splendor. If Statute, but by bare Covenant likewiſe, That Chil.
this Intereſt cannot be fecur’d upon an equal Di- dren born in Concubinage, or in ſuch Marriage (4)
viſion of the Patrimony between many Children, as is conſtrued good and juſt only in a Natural ſente,
the Father may without any breach of the Law of not in the Eye of the Law, ſhall claim no more than
Nature, deviſe the chief part of his Goods to one, neceſſary Maintenance, or at leaſt ſhall be excluded
and command the reſt to ſit down contented with from the main Inheritance @).
ſmaller Portions. Hence the Rights of Primnoge And here, by the way, we cannot but wonder
niture (1) obtain’d among many Nations, which ac- why St. Auſtin (f ) fhould paſs ſo ſevere a Cenfure
cording to the moſt ancient Inſtitution, conferr’d on on the Voconian Law, by which Female Iſſues were
the Eldeſt Son the Regal Government of the Fami- incapacitated to receive in Inheritance above ſuch a
ly, the Domeſtical Prieſthood (2), and double Share certain Sum. It's plain the Spartan Law was far
of what his Father poſſeſſed. Which double Propor- more grievous, which utterly forbad the giving
tion was deſign’d to defray the charge of Entertain- Portions to Virgins; for this Reaſon, as Plutarch
ments, and of Religious Cereinonies; as Grotius con- tells us (8) ; Left Some ſhould remain unmarried for
ceives (6) (c).
want of larger Fortunes ; and others again be courted
On the contrary there have not been wanting Na- for their Riches; but that every Man in ſeeking out a
tions, where the younger Brother ſucceeded to the Partner for himſelf, fiould look wholly into the Man
their Option, to chuſe what part they like. and Standard of his Choice. Nevertheleſs, this is a
Which Cuſtom is built on this Principle, That the point which requires great Caution and Prudence
,
Elder Brothers have for a long time enjoyd the Benefit left a Father ſhould fow the Seeds of Envy and Ha-
of Education from their Parents ; of which the Younger tred amongſt his Children, if, without very weighty
being often depriv’d by too untimely a Loſs, they de- Cauſe, he Thould ſeem to have treated with unequal
ſerve ſome Confideration to requite and comfort them
them. Favour thoſe who were equal in Merit and (b) De-
under their Diſadvantage.
gree.
And the Divine Law of Deut. 21. 17. is
Tho' the latter of theſe Inſtitutions feeins more grounded on the ſtrongeſt Reaſon ; left the Father
agreeable to low and mean Families, the former to charm’d with the Enticements of his now beloved
the Great and Noble.
Wife, ſhould either frame a falſe Cauſe for diſcard-
So again, When Daughters inarry into other Fa- ing the Firſt Born, the Son of a former hated one;
milies (3), 'tis not neceſſary that they ſhould re or ſhould catch at every little Failing to his diſad-
ceive Fortunes out of their Father's Eſtate equal to vantage. Tis indeed altogether the ſafeſt courſe (5),
not
(7) The Story in Plutarch is of Attalus Philadelphus, to whom Eumenes his Brother when he died left his wife and the Crown
of Pergamus: For although he had ſeveral Children by his Queen, yet he left his Crown to Attalus the Son of her firſt Husband,
till that Prince came to be of full Age to reign. Neither of theſe Examples is much to our Author's purpoſe.
Mr. Barbeyrac's NOTES on 6 8.
(1) See upon this Subject Mr. Buddeus's excellent Diſcourſe, encicled, De Succeſfione Primogenitor um. It is the third among his
Seleáta Juris Nat. Gent. to which we may joyn another Diſcourſe in the ſame Volume, entitled, De Comp. offic. $ 31,&c.
(2) It is not certain that Prieſthood was a Right of Primogeniture. See Mr. Le Clerc on Gen. 25.31.
(3) See chiefly the Diſcourſe of Mr. Perizonius, De Lege Voconia, where he lhews that char Law fixed at an hundred thouſand
Selterces, which make 2500 Crowns of our Money, the Portion of any Woman, whether an only Daughter or Siſter.
(4) Hence it is that Princeſſes and other Women of Noble Families, when they marry into other families, ſometimes renounce
the Succeffion to a Kingdom, or to the Eſtates of the Families from whence they are deſcended; ſo that neither themſelves nor
Heirs can put in any Ciaim to them. See Mr. Buddeus's Diſcourſe, De Teſtamentis Summorum Imperantium, Speciatim Caroli II. Hiſ:
pania Regis, c. I. $ 39, &c. and c. 2. § 1o, &c.
more
(5) In general the ſafeſt diſtribution of our Goods when we die is according to the uſage of our countrey, in my opinion,
The Laws have better contrived it than we can, and we had better commit a Miſtake by their direction, than hazard it rally
by our own Choice. They are not properly ours, fince a Civil Preſcription made without us has deſigned for the good of our
Succeflors. And though we have fome liberry allowed by them, yet I take it to be the greateſt and moſt apparent Cauſe, why
many are deprived of thoſe Eſtates to which their good Fortune entitled them, and common Juſtice would have given them,
and ſo we abuſe our liberty without Reaſon to follow our idle and private Fancy - We take too much to heart our Succeſſions
by a Male Iſſue, although we could make our Names Eternal, and value too much our vain Conjectures of what ſhall be, which
fill us with Childiſh Hopes 'Tis meer Folly to make extraordinary Choices upon the account of ſuch Imaginations, in
which we are ſo often deceived. The pleaſant Dialogue of Plato berween a Lawgiver and his people (De Legibus, 1. 11. Tom. 2.)
will be a Reputation to this Paffage. Is it not then, ſay they, lawful for us when we find our End approaching to diſpoſe of
2018
(a) See Gen. 48. 22. (b) Add Deut. 21. 17. Of the extraordinary Prerogative of the Firſt-born amongſt the Japoneſe. See
Bern. Varen. Defcript. fapon. c. 15. (c) In locum Dear. cit. (d) Lib. 7. Epift. 24.
(e) Vid. Grot. I. 2. c. 2. 1. 8. fub fin.
Boecler. ad d. I. (f) De Givit. Dei, l. 3. c.31. His Words are, Ea lege quid iniquius dici aut cogitari poßit, ignore.
not what could be ſaid or thought of, more unjust than that Law. The Law he ſpeaks of was made at the Motion of Cato the Cen-
for, and Enacted, That none ſhould leave a Daughter above five and twenty thouſand Seſterces in Inheritance, as Paulus Manu-
tius (de L. L. Rom.) ſhew'd from Dio. Call 1. 56. Though Aſconius Pædianus (ad Orat. Cicer. in Verrem de pretura urb.) reports
the thing thus: Voconius prefer'd a Law, That no Cenſus, (i.e.) no very Rich Perſon ſhould make his Daughter his Heiress,
faid before, the Ancients call'd thoſe Perſons Cenſi, who own'd themſelves before the Cenſor to be worth an hundred thouſand Seſterces
.
Add Liv. Epir, 1. 41. Quintil. Declam, 264. Gell. 1, 7. 13. 17. 6. (8) Apoth, Lacon. 227, 228. Edit, Wech. (h) See Gen. 37: 4.
our
I hnow

CHAP. XI.
Of Succeſſions to Perſons who die Inteſtate. 215
about it, it muſt have been followed.
not to recede in this Matter from the direction and Injury ſhall thereby accrue to his Children who are
diſpoſal of the Laws of our Country. Which made
my properly Legitimate, or to any who have obtain'd
Lord Bacon (a) obferve, That Younger Brothers, tho? the next Right after them : Under Civil
Govern-
otherwiſe commonly Fortunate, are feldom or never ſo, ment he muſt proceed in the Affair as the Laws
where the Elder are diſinherited.
permit and direct (b) (i). Ariſtophanes (c) reports,
Hence it is, that in caſe the Father dies Inteſtate, it was one of Solon's Laws, That upon failure of Le-
and the Laws of the Land ordain nothing to the gitimate Offspring, the Inheritance fhall be ſhared by
contrary, Children ſucceed to the Inheritance with the next of kin: But that a Baſtard ſhall not be deemd
equal Shares : Becauſe, when the Point is doubtful, next of Kin, nor any Relation be suppoſed between him
thoſe who ſtand related to the Deceas'd in an equal and the proper Sons. On the contrary, amongſt the
degree, are preſum’d to have been equally beloved. Mahometans, as to the point of ſharing the Father's
Now thoſe likewiſe are accounted Equal Shares, Eſtate, there is no difference obſerved between the
which, though not ſtrictly fo, becauſe inferior per- Sons of the Wife, the Concubine, or the Servant-
haps in value to the reſt, yet have been taken by Maid.
any one of the Coheirs, either by his own choice, When a Man is deſirous to raiſe Illue rather by
with the conſent of his Fellows, or by their Amig. a Concubine (2) who hath engag‘d herſelf to be true
nation, or by the deciſion of Lots: Quintilian's to his Bed, than by a proper Wife, for the benefit
Obſervation (Declam. 5. p.65,66. Edit. Ludg. Bat.) is of his Children by a former Marriage, the Sons of
not unworthy our Remark. We have the Jane Na the Concubine ſhall, even without (3) any expreſs
tural Affe&tion towards all our Children, without any Will of the Father, be poſtpon’d; and upon recei-
difference or degree; yet taking any one of them by ving moderate Portions, ſhall leave the main Inhe-
themſelves, we commonly find ſome peculiar Reaſon for ritance to the others. Yet in caſe a Man hath there-
our Fondneſs, and without breaking the equality of their fore taken a Concubine, that he might avoid the
Endearment to us, there is ſomewhat again which by a Pride or the Expences of a Wife, or will not admit
Tacit Inſtinct of the Mind engageth us to ſet our Love her to his Name and Honour, or for ſome other Po-
deeply upon each in particular, as if he were the only litical Reaſons, or on account of fome Covenant
Object of it. One is recommended by his Precedency or Obligation which he lies under ; then the Pub-
in Birth ; another by the Innocence of Infancy; a third lick Ordinances of the Cominon-wealth are to de
by a ſweet Aſpect, and a Face that invites a Kiſs : Some termine, whether ſuch Children ſhall be admitted
are eſpecially valued for their boneſt Gravity and ſevere to an equality with others born in Lawful Wed-
Plainneſs of Temper : In ſome we love their very Mif- lock; or whether upon failure of theſe they ſhall
fortunes and Calamities, and embrace with a peculiar exclude the next of Kin. For if the Man were ab-
pity a Maim'd'Limb, or a Weak and Diſtemper'd Body. folutely free from the Reſtraint of Poſitive Laws, I
But fill the general Equality holds good; whilft what- ſee nothing that could be offer'd in prejudice of
ever any of them ſeems to want to render him amiable the Concubinary Iſſue in this Cafe; ſince the Co-
in one reſpect, is made up to him by ſome other advan- habiting of their Father and Mother amounted in
tage above the reſt.
Natural Conſideration to a true Marriage : Eſpeci-
IX. But we are obliged to add on this Subject, ally if the Father in the Buſineſs of their Educa-
that not only the Laws of particular States, but tion, and in his Actions and Expreſſions of Affecti-
Natural Reaſon it ſelf allows more favour to Legi- on towards them, hath never made any diſtinction,
timate than to Natural Children; though the latter Hence I ſhould be of Opinion, that Jacob's Sons
partake no leſs of the Father's Blood than the for- born of his Handmaids, Thould have ſucceeded to
iner. For they who owe their Birth to a Man's ir- equal Shares with the reſt, even upon ſuppoſition
regular Luft, without any ſerious Intention, can on that their Father had made no ſuch expreſs Diſpo-
no account enter into compariſon with thoſe who fal, becauſe we do not find that he ever treated
Were begotten for the increaſe and defence of his them in a different manner. But ſtill, if the Father
Family, and upon the deſire of having Heirs to ſhall particularly declare, That he refuſeth to enter
fucceed him. But if any perſon is inclined to ad- into folemn Marriage, for this Reaſon, That what
vance a Natural Son to the Station and the Rights he hath may deſcend to the neareſt of his Collateral Kina
of Legitiinate Iſſue, in a ſtate of Nature, he inay dred, as fome Political Conſiderations may, now
fairly do it after he hath once taken care that no and then inove a Man to do) then even the Con-
our Goods as we pleaſe? O God, what Cruelty is this ! May we not, according as we find our Family or Friends have been fer-
viceable to us in our Sickneſs, old Age or Buſineſs, give them more or leſs, as we think fit. To whom the Lawgiver replies in
this manner: My Friends, who muſt roon die cetainly, it is hard for you to know your felves, and what belongs to you accor-
ding to the Inſcription at Delphos. As for me who make Laws, I hold, that you know not what is good for your felves, nor
what is fit for you to enjoy. Both your felves and Goods belong to your family, as well in preſent as to come, but both your
Family and Goods belong more to the State. Wherefore for fear that lome Flatterers in your old Age, Sickneſs
, or ſome other
Hunour, ſhould draw you to make an unjuſt Will unbecoming
you, I muſt take care, For having reſpect both to the publick
Intereſt of the Nation and good of your family, I will eſtablim Laws, and make
you fenfible, that (as it is reaſonable) private
parcially regard things to take as much Care as I can of the common good, and ſecure what you neglect. This long paffage of
montagne, I hope, will not be tireſome to the Reader, 1. 2. See alſo Charron of Wiſdom, 1. 3. c. 14. n. 38. and Bacon's Serm.
Mr. Barbeyrac's NOTES on S 9.
(!) See Dr. Potter's Antiquicies of Greece, l. 4. C. 15. See alſo s 6. n. 3. above.
(2) See Lib. 6.C. 1 $ 36 following.
(3) In the Original Latin the words are, Etiam expreſa voluntate patris, which is kept in all the Editions, the laſt put out by
Hirtius in 1766 not
excepted. Bus there
can be no doubt but the Word line after etiam is omitted, and ſo it ought to be ren.
(2) ESay -- towards the End.
(b) Vid. 1. 5. 6. 27. 1.6.& 7. C. de Natural. lib, (c) in Avibus, (d) Add Becler, ad
cubinary
Fidel. c. 7. in fine.
:
Grof. d. 1. Sect. 8,

216 Of Succeſſions to Perſons who die Inteſtate.
Book IV.
Strangely
Altage
IN
cubinary Children in the faireſt Caſe ſhall be al- ceiv’d, unleſs there be direct and manifeſt Evidence
low'd to claim no more out of the Eſtate than a of the contrary So that every one ſeems to be as
bare Maintenance, or whatever the Will of their Fa- it were in poſſeſſion of this Right, that he ſhall be
ther, or the Laws of the Land allign them more (a). deemn’d the Son of him who appears to be joyn’d in
As the bare Law of Nature knows no difference Marriage with his Mother (1). And no Man, un-
of Rank and Degree, fo according to that, is the leſs he is out of his Wits, will diſturb himſelf in
ſame thing whether a Man have iſſue by a Wife of this Poffeffion, and accuſe his Mother of Adultery
a more Illuſtrious, or of a more obſcure Condition, for the ſake of finding a new Sire.Tacit. Hift
. 4: 55
.
provided ſhe is honeſtly betroth’d to him. If there- Julius Sabinus with his Natural Vanity, was
fore in any place the Children of a leſs noble Mo- exalted by afcribing to himſelf the Glory of a falſe Öri-
ther are allow'd leſs Privilege and Favour, this is ginal ; pretending that bis Great-Grandmother had
wholly owing to Poſitive Conftitutions. Which like been very nearly acquainted with Julius Cæfar in his
wiſe as they may upon account of ſome Reaſons of Gallick Expedition.
State poſtpone the Concubinary to the Legitimate
Race, and not admit them with the Aſcending Line Jupiter aut falſus pater eſt, aut crimine verus, vous
upon failure of the Deſcending : So they can ſcarce
in Equity utterly exclude them, if there was no O Jove's a Falſe Father, or in Sin a True. to
riginal Fault in the Act of Generation. But then
wold
theſe are by all means to be diſtinguiſh'd from Chil. If others attempt to bring this Matter into diſpute
;
dren begotten in a way naturally linful, as in Adul- it ſhall be incumbent on them to prove their Charge:
tery or Inceſt: Who, how clear foever they may be As for inſtance, That the pretended Father at the
of any ſhare in their Parents Guilt (b), yet ſhall time of the Conception was diſabled by Sickneſs, or was
on account of it be obliged to reſt ſatisfy'd with abſent in a diſtant Countrey (2). In Xenophon (Hift
.
Maintenance only, and thall not be admitted with Græc. 1. 3. p. 289. Edit. H. Steph.) Ageſilaus
, after
the other Children, who were begotten on the hope the Death of Agis King of Lacedemon his Brother,
and proſpect of inheriting their Father's Poffeſſions. endeavours to prove Leotychidas Illegitimate upon
But the Parties could entertain no ſuch hope of rai- theſe Reaſons, That his Father had ſome time dil-
fing Heirs, when they concurr' in theſe Impurities; own'd him; that he exceeded his Father in Comli-
ſince they wiſh that their Sin may perpetually layneſs of Body ; that he was born Ten Months after
conceald, rather than be the means of producing the parting of his Father and Mother; that his Fa-
thoſe who ſhould as it were bear
publick Teſtimony ther Agis had expell’d his Mother from the Royal
to the Shame and the Wickedneſs of their Parents. Bed.
X. Grotius (e) farther remarks, that there are two XI. As to the ſecond Condition, it is judg’d ano-
more Conditions ſtill required in the Succeſſion to ther Exception againſt a Son's ſucceeding to an In-
Inteſtates, That the Children appear to have been really teſtate Father, it it appear that his Father hath ex-
begotten by him whoſe Eſtate they claim, and that there prefly deſired and declared the contrary: As, lup-
be no Tokens extant of a contrary Will. For no Man poſe (1), if he hath either abandon’d (as was uſual
ſhews a Fatherly Affection for Children begotten ainongſt the Ancient Greeks) or diſ-inherited him,
by others; and a preſum'd Will muſt always give as 'twas a Cuſtom among the Romans.
place; when contradicted by an expreſs Declaration We have before intimated, that very great and
and Diſpoſal. As to the firft of theſe Conditions, weighty Cauſes (2) are requir’d to juſtifie either of
That ſuch a perſon was the Father of another, cannot theſe Proceedings. Grotius adds, That Suſtenance is
always be either demonſtrated by indubitable Argu- ftill to be allow'd to the Abandon’d or diſinherited Son,
ments, or ſo clearly made out by Teſtimony, as in unleſs his Crime deſerv’d Death. Though I can hard-
the Mother's Cafe ; cſpecially where Women live ly ſee how it is poſſible that a Son during thoſe
under no other Guard or Reſtraint beſides their own Years of Minority in which his Father naturally
Modeſty and Conſcience: The main Proof therefore owes him Suſtenance, can be guilty of ſuch an Of
in this point is, the certainty of Marriage ; by fence, as ſhall deſerve either Capital Puniſhment
which Union the Wife both engageth her Faith to or Diſ: herifon.
be true to her Husbands Bed, and likewiſe is plac’d XII. On the Propoſition which we before ad-
as it were under his Inſpection, he at the ſame time vanced, That Parents are oblig’d to afford Suſtenance
receiving a Power over her Body. Now all Perſons to their Children, not only of the frit, but of farther
are preſum d both to obſerve the Faith they have Degrees, in caſe their proper Parents who ought to
engag’d, and to exerciſe the Power they have re- perforin this Office are extint, is chiefly founded the
Mr. Barbeyrac's NOTES on § 10.
(1) Semper certa est matér, etiamſi vulgo conceperit. Pater vero is eſt, quem nuptia demonſtrant, Digeſt. I. 2. t. 4. De in Jus van
cando, leg. 5.
(2) The words of Ageſilaus are ſo miſrepreſented by our Author for want of throughly underſtanding the Greek, that I have
thought fit to give the Reader a new Tranſlation of them. Ageſilaus then alledges, That Agis never own'd Leotychides for his
Son, and that Leotychides his Mother, who muſt needs know better than Agis, had difownd that the ever bore him, (for chere
which fignifies only better than he; That by an Earthquake cauſed by Neptune, Agis was tols'd out of his Bed from his wife in
the fight of all the World, which evidently proves, that he was not the Father of Leotychides, which was better confirmid by
the time of his conception, which is an infallible fign in theſe Matters. For when Leotechides was born, it was Ten Months a.
Theſe Realons are not very concluding. See upon the laſt Article Foan
. Vincent, Gravine Origines Juris civilis, 1. 2. p. 301, 6
Mr. Barbeyrac's NOTES on 11.
(1) See Dr. Potter's Greek Antiquities, 1. 4. c. 15. in fine, and Iſaac Caſaubon upon Diogenes Laertius, 1. 1. $ 94.
() of Paris's com
pany at the Aealing of Helen.
(a) Add Bucler. ad Grot. d. l. Sect. 8. (6) Vid. Gratian, c. 3, br. Diſtinct, 56. (c) Diet, loc. Sect. 8.
Steph.
Equit
)

CHAP. XI.
Of Succeſſions to Perſons who die Inteſtate. 217
upon them.
Equity of that Right term’d, The Right of Repreſen, their parents, and not Parents to their Children, Moſes
tatione ; by virtue of which, Children are ſuppos’d paſſed this Caſe over in filence, as Ominous and Unlucky,
to fill the Place of their Deceas’d Father (1), ſo as to and contrary to all Pious Wiſhes and Deſires : Left the
be allow'd the ſame ſhare in the Family Inheritance, Father and Mother ſhould ſeem to be Gainers by the
as their Father, were he now living, would receive; Immature Death of their Children, who ought to be
and conſequently to ſucceed on the level with thoſe afli&ted with most inexpreſſible Grief
. Tet by allowing
who ſtand in their Father's Degree (2). And it would the Right of Inheritance to the Uncles
, he obliquely ada
indeed be a lamentable Misfortune, if beſides the mits the Claim of the Parents, both for the preſervati-
untimely loſs of their Father, they ſhould farther on of Decency and Order, and for the continuing the
be depriv’d of thoſe Poffeffions, which either the Eſtate in the jame Family.
Rule of the Law, or the Deſign of their Progenitors Some Parents too have the Additional Title of an
had given their Parents juſt hopes of enjoying (a). Infirm and Indigent Old Age; under which fad
But if in any Place the Civil Conſtitutions will not Condition their Children were otherwiſe oblig’d to
admit of this
Repreſentative Right, the Children who maintain them: As one of the Attic Laws exprefly
have been ſo unhappily bereav'd of their Father and enjoin’d (2). If aus Orat. 7. The Lap commands us
of their Hopes, muſt endeavour to bear the Cala- to maintain our Parents, under which Name are com-
mity as an Affliction which Providence hath laid prebended niot only our Father and Mother, but our
Debut
Grandfather. For theſe are the firſt of our Kindred,
XIII. Upon failure of Iſſue in the firſt, and the and from theſe deſcend the Goods and Fortunes which
other deſcending Degrees, (b) Reaſon ſuggeſted that their Poſterity enjoy. Theſe therefore we are neceſſa-
Inheritance ought to turn back into the Line of Af- rily bound to ſupport, even though they ſhould have no-
cendants ; as well in confideration that, for the moſt thing to leave us. Add. Grot. d. l. Sect
. 5. & Ziegler
part, either the Poſeſons themſelves, or at leaſt, ad d.l. Yet in caſe a Father hath without Reaſon
the firſt Seeds and Principles of them which the grievouſly hated and injur'd his Son, without any
Children afterwards increas'd, proceed from the Pa- lubſequent Reconciliation, the Son may juſtly ex-
rents, as becauſe their extraordinary Benefits give clude him from the Right of Inheritance (3). It's
them an eſpecial Title to this Reward: Who ſince the ſame with himn who expos’d his Son when an In-
they would much rather have defired, That their fant, utterly neglecting his Support: For here no
Children ſhould inherit their Fortunes, yet when they doubt the Claim of the Foſter-Father, who hath un-
furvived them, contrary to the ordinary courſe of dertaken the Care and Burthen of the Child's Edu-
Nature, 'twas but equitable they ſhould receive, cation, ought firſt to be admitted. Nay farther, it
however, this Melancholy Comfort, of fucceed- ſeems reaſonable, That no Adoptive Father ſhould,
ing to what the Children poſſeſs’d. 'Tis a Condition in this point, be preferr’d to a Natural Parent; that
(as Pliny obſerves) abundantly unhappy, for a Father he may recover what he hath expended on bringing
to be the ſole Heir of his own Son (1). Panegyr. c. 38. up another's Child. We are likewiſe to obſerve, That
Vid
. L. 5. t. 2. 1. 15. D. de inoffic. teſtam. Lib. 29. the Lawyers do not admit of Repreſentation in the
t. 4. D. fi quis omiffa caufa, &c. Leg. 26. Cod. Lib. Aſcending Line as they do in the Deſcending. That
3. t. 28. De inoffic. teftam. & t. 25. de Inftitut. &c. is, If a Man die without Iſſue, leaving a Father, and
Leg. 9. & L. 6. t. 56. ad Satum Tertull. & Lib. 3. a Grand-Father by his Mother's ſide, the latter of
t. 3. de Seto Tertull.
theſe ihall not be allow'd to make Claim in the room
Pbilo the Jew, (*) reporting, That Moſes eſtabliſh'd of his Daughter. A Rule which ſeems to be ground-
this Order of Inheritance, That the Sons ſhould ſtand ed on this Conſideration, That naturally the Hopes
förf, the Daughters next, then the Brothers, and in the of Succellion do not afcend, but defcend : Where-
fourth place the Uncles by the Father's ſide, uſeth this fore, the Son had indeed Hopes of ſucceeding his
as an Argument to prove, that Fathers likewiſe may Father, and might tranſmit it the ſame Hopes
inherit what their Sons leave behind; For 'twould to his own Iſſue, but the Mother had never any
be ſenfeleſs (ſays he) to imagine, that the Uncle Should Hope or Deſire of inheriting after her Children ; and
be allow'd to ſucceed his Brother's Son, as a near Kinf- fo could not, contrary to the Order of Nature, con
man to the Father, and yet the Father himſelf be a vey back any ſuch Hope to her own Parents : And
bridgd of that Privilege. But inaſmuch as the Lam conſequently, the nearer Claimant here excludes
of Nature appoints, that Children ſhould be Heirs to very Juſtly the more remote (4).
Mr. Barbeyrat's NOTES on Ġ 12.
(1) Sine dubio nepos filii loco ſuccedit, Digeft
. l. I. t. 6. De his qui ſui vel alieni juris ſunt, leg. 7. Quotcunque autem nepotes fus
erint ex uno filio, pro uno filio numerantur, ib. 1. 27. t. 1. De excuſationibus tutorum, &c. leg. 2. $7.
(2) This Succeſſion by Deſcent (ſucceſio per ftirpes) is diſtinguiſhed from Succeffion by Heads (fucceffio per capita) thus. In the
laft all the Coheirs have an equal Portion, whereas in the other ſeveral Children have no more all together than a Portion in the
Inheritance equal to what their Father had ; and to what every one of the Coheirs had, who are in the ſame degree as he was
whom they repreſent. See Juſtinian's Novels, 117. c. 1.
Mr. Barbeyrac's NOTES on S 136
(1) Pliny's Words are, Sic quoque abunde miſera res est, pater filio folus hæres.
The Words of the Digest are, Nam et ſi parentibus non
debetur filiorum bæreditas propter votum parentum, & naturalem erga filios
charitatem, turbato tamen ordine mortalitatis
, non minus parentibus quam liberis piè relinqui debet.
(6) Philos Greck 15 this, Και τέταρω και θείοις απονέμει τάξιν, αινιλόμενΘ- ότι και πατρός ένοιγή: άν Υιών κληρονόμοι, πανύ και
ένηδες υπολαβείν, ότι πατρG- αλλού νέμων κλήρον αδελφισε ολα των προς και πατέρα συγγένειαν, αυτόν αφείλετο και πατέρα τ δια-
τοχής, αλλ' επειδή ο νόμο φύσεως και κληρονομείται της ονείς των παίδων, αλλά μια τέτες κληρονομεϊν, το μεν άπυκλαίον, και πα-
λέμφη μου ησύχασεν, ίνα μου πατέρα και αντερ προστατεύειθαι δικάσι τα επι ωωμώρους στεκνοις απαρηγόρητα πάνθη, πλαγίως δ' αυτές
εγάλεσε
τους πείοις έφιάς
, να καμφοτέρων ξεχάσεται, και τα πρόπουλο, και μη τήν εσίαν άλλοτε θαι.
(3) That Greek Orator's words are, Kex evet ys ovou répev To's govias, zovéis 5 eloi witne, sy matig, sj temG, ġ thing
και τέτων με τους και πατής, έoν έπ ζώνέκαναν και αρχή τα γενές εισί, και τα εκείνων παραδίδοται τοις εγγονοις ολόσες ανάγκη τρέ-
ΦΗ, αυτές εςι καν καταλίπωση.
(3) See Juſtinian's Novels, 115. C. 4. and Mr. Daumat's Civil Laws in their Natural Order, Part 2. l. 2. t. 2. Sect. 2. 9 4.
(4) The' Words of the Novel are, si autem plurimi adſcendentium vivunt, hos præponi jubemus, qui proximi gradu reperiuntur,
maſculos do fæminas, five paterni, five materni ſunt.
(a) Add Bæcler. ad Got. d. l. Sect. 6. (6) Vid. Gret. 1. 20.7 l. 5 ibique Ziegler.
+ Ee
XIV, When

218
Book IV.
Of Succeffions to Perſons who die Inteſtate.
XIV. When the Deſcending and the Aſcending So Homer,
Lines both fail, the Succeſſion to Inteſtates devolves A hearty Friend deſerves a Brother's Love,
on the Collateral Kindred. As to the order in which
they are to be admitted, where the Civil Statutes do 30 And Euripides,
not expreſly ſettle it
, 'tis to be determind by Natural
A Stranger to our Line,
Conjecture : Which always favours that Perfon, whom If once in Mind and Manners firmly tied, by
we preſume to have ſtood faireſt in the Affection of bIs worth a Thouſand Kinſmen.
the deceas'd: Yet ſo, as that we meaſure this Affe- odte
booba
ction more by the common Inclination of wiſe and 13 And indeed it frequently happens, that we take
ſober Men, and according as it tends to the Preven- more Satisfaction in the Company and Converſation
tion of Quarrels, than by the moroſe Hunour of of an indifferent Perfon, than of one related to us
fome few particular Perfous. Now according to the in Blood, and intruft many things with the Secrecy
Judgınent of wiſe Men, Natural Reaſon in this caſe and Fidelity of the former which we conceal from
pays an epecial Regard to nearneſs of Blood, yet the latter. In fine, We addreſs our ſelves more rea-
fo as at the ſame time to conſider from what Source dily to ſerve the Friend, than the Relation; becauſe
the reſpective Poleſions ſeem'd to flow to the de- he, on the other fide, is the more ready of the two
ceas'd (1), or who formerly parted with any thing (2), to alliſt us in any Difficulty. noiteita
or ſuffer'd any Loſs upon account of his coming in But it cannot hence be concluded, That by virtue
to the World. Thus Ariſtotle's firſt Rule (a) is, of a general Cuſtom, coming up almoſt to the force
The Affe&tion between Parents and Children, and his Law, a Friend is to take place of Relations, though
next
, The Love between Brethren, ariſing from their the deceaſed Party ſhould chance to have exprefled
Relation to the same common Stock, and improv'd by more Tokens of Affection towards him, than to
the likeneſs of Tears and Education. After theſe fol- wards them. For in the Buſineſs of tranſnitting an
low Brother's Children, and other Relations joind Inheritance, we are not guided only by Kindneſs
to us by Virtue of that Fraternal Union. And then and Good-will, but we conſider farther, on whom
(all theſe being firſt conſider’d, whom Nature, as it is moſt proper and convenient that our Fortunes
were, neceſſitates us to love and eſteem;) in the laſt ſhould defcend. And ſince Men are carried on by
place thoſe are admitted, whom either paſt Kind- a general Propenſion, to wiſh the Family in as good
neſſes or Agreeableneſs of Temper and Manners, a Condition as poſſible, from which they derive their
or peculiar Likeneſs of Inclinations, or known Fide- Original, therefore 'tis commonly moſt convenient
lity, recommends and endears. Tully (3) placeth the that our Goods ſhould continue in our own Line.
Degrees of Kindred in the Order following: The Beſides, 'tis no neceſſary. Conſequence to ſay, I was
firſt Society is in Wedlock ; the next in Children; it highly delighted with this perſon's Familiarity and
comes then to a Family, and a Community of all things
. Converſe; therefore 'twas my Inclination likewiſe
The Relation of Brothers come next; and after that, to transfer my Poffefſions upon him. For this Friend-
of Brothers and Siſters Children ; who when they are too fhip between Perſons not allied in Race, generally
many for one Houſe, are tranſplanted into others, as in extends no farther than to a mutual Signification of
to Colonies. And then follow Matches and Aúiances
, Good-will, a Communication of Deſigns, and the
with increaſe of Kindred, conſequent upon them. Nom ordinary Services and Offices of Life. But before I
the Relation of Blood and the Kindneſs that ariſeth can be conceiv’d, to have join’d Houſes, as it were,
from it, neceſarily endears Men to one another. with a Stranger, by conveying to him my Eſtate,
XV. But the high Encomiums given to Friend- twill be neceſſary to produce an Expreſs and Legal
ſhip in Authors, may raiſe a Doubt, Whether Friends Will to this purpoſe. Thus, although according to
are not ſometimes to be preferr'd to Relations (1)? the Ancient Manners of the Romans, in the order
Of all Societies, ſays Tully, none hath more of Excel- of common Duties, After Parents and Children, the
lency, or of Strength, than when good Men, alike in firſt Place was given to Pupils or Wards; the ſecond to
Manners, are united by a Familiar Acquaintance. Clients or Dependents (2); the third to Gueſts; and
Woo Hoga
the laſt to the Kindred by Blood and Marriage,
accor-
Mr. Barbeyrac's NOTES on $ 14.
(1) That is to ſay, if the Goods or Eſtare came by the Father, they ought to paſs to the Collateral Kindred on the Father's
fide, but on the contrary, if they came by the Mother, the Collateral Relations of her ſide ought to be preferred.
(2) That is to ſay, That what Right a Man hath parted with to another perſon, as ſoon as he is dead, it ſhall recurn to the ſame
Man again, or to his Heirs. See s 17 following
(3) Off. 1. c. 16. Ofche Relation between Brochers ſee Plutarch de fratern, amor. and Xenophon, 1. 8. Cyrop. in Cyrus's laſt Speech,
and 1. 2. Socrat. Memorab. Add Bæcler. ad Grot. di&t. loc. f. 9,10,11. Towards illuftrating the Obligation between thoſe of the
fame Blood , ic may not be improper to mention the Law received in the Kingdom of Tonguin, by which all Quarrels ariſing amongſt
Perſons chus allied, are referid to the deciſion of their common Kindred, and not brought into the ordinary Courts of Juſtice; as
we are told by Alexander de Rhodes, Itiner. I. 2. c. 7, 8. Mr. Hirtius adds, That there is a Law of the like nacure at Pádua, abouť
which Marcus Antonius Planco has compoſed a Book on purpoſe.
Mr. Barbeyrac's NOTES on 6 15.
(1) The Original of theſe Quotations is, viz. Of Tully. Omnium focietatum nulla præftantior, nulla firmior, quam cum virá
boni, moribus fimiles funt familiaritate conjunti.
of Homer.
Οι αν η κατγνήτου χερείων
‘Os ten įtaip tarian TAVUUENA cidn.
And of Euripides. “2, 8sIs Testới quyTake, Surgiº sy
Μυρίων κρίσων ομαίλων αν.eu κεκλήθαι φίλο.
Further, we may confult upon this queſtion, Mr. Buddeus's Diſcourſe, encicled, De Comparatione obligationum, que ex diverſis
hominum Itatibus oriuntur, $35,6 c. among his Selekta Jura Nat. Gent.
(2) Aulus Gellius's Words
are, Conveniebat autem facile, conftabatque ex moribus populi Romani primum juxta parentes locum tenere
pupillos debere fidei, tutel eq; noſtre creditos [Ji neceffe effet in opera danda faciendoque officio alios aliis anteferre] secundum eos proximum
locum, clientes habere, qui fese itidem in fidem, patrociniumq; noftrum dediderunt, tum in tertio loco esſe hofpites, poſtea esſe cognatos ad
fineſque,
(*) Nicom. 8. c. 14.
ding

CHAP. XI. Of Succefrons to Perſons who die Inteſtate. 219
ding to the Degree of Nearneſs in which they ſtood į for a little tiine, be the Steward and Keeper of what
yet in tranſmitting Poffeffions this Method of pro- was beltow'd, or ſhould reſtore it with large Increaſe
ceeding was not in the leaſt regarded. Farther, if at his Death. Therefore, when there is no expreſs
Friends in the caſe of Inteſtates, were at any time Diſpoſal extant in favour of the Friend, the Right
to have the Advantage of Kinſinen, this would o- of the Kinſmen ihall obtain : Yet ſo as that toge-
pen a wide Field for Quarrels and Contentions, as ther with the Goods of the deceaſed, they ſhall
well amongſt the Friends themſelves, if they hap: likewiſe take upon themſelves his
. Obligation to-
pen’d to be more than one, as between them and wards this great Benefactor ; and ſhall endeavour,
the Relations. For to take more pleaſure in a Man's as far as in them lies, to repay it in a moft grate-
Company, or to communicate Affairs more freely ful inanner, acknowledging by whoſe Aíliſtance they
with him, is not preſently to be look'd on as an In- arrive at fo ample an Inheritance. Nor is it rea-
fallible Token, that he ſtands higheſt in our Affe- fonable for any Man obſtiriately to urge againſt this
ation. Many times, a Jocoſe or eaſie Temper, E- Judginent, that ſaying of Ariſtotle (1). "We ought
quality of Years, or Sagacity of Judginent, render rather to requite a Benefactor, than to oblige a Friend,
the Acquaintance of a Friend more pleaſant or more if both cannot be done together : Or that of Cicero (2),
profitable to us, than that of a Relation, who pof- There is no Duty more neceſary, than that of repay ng
fibly may want the fame Advantages. Yet when Kindneſſes
. And again; "There being two kinds of
we are about to diſpoſe of our Goods, we are ſeldom Liberality, one of beſtowing, the other of returning a
fway’d by this Conſideration, to favour the former Benefit; whether or no we will beſtow, depends on our
more than the latter. Heſiod's Advice will here be own Choice; but not to return the Favours of a good
good,
Man, is abſolutely unlawful, provided it may be done
Let not thy Friend thy Brother's Rights Invade (3): cion (3), (in Plutarch's Apophthegms) who being ſe-
without injuring any other Perfon. Or that of Pho-
Laſtly, The Degrees of Kindred are eaſily diſtin- veral times called upon to give ſomewhat towards the
guilħd and reckon'd up, but who will undertake to Expence of a Sacrifice, whilſt all the reſt contribu-
ſettle the Degrees of Friendſhip in fo exact an or ted that were about him, anſwer'd, It would be a
der, as to leave no room for Cavil and Diſpute? Shame to give you before I pay this honeſt Man: point-
XVI. But ſtill 'tis urg'd with better Pretence, ing to a Credítor of his that ſtood by. Add. lib. 39.
That thoſe Friends at leaſt are to be preferrd to Re- t. 5. 1. 12. D. de donation. Becauſe indeed, the Bu-
lations in the caſe of Succeſſion to Eſtates, by whoſe fineſs of Succeflions to Inteftates, by no means can
Bounty, Counſel or Alliſtance the reſpective Eftate be, or ought to be exactly ſquar'd in all reſpects ac-
was acquir’d, it being but Equitable, that the Goods cording to the Rules obſerv'd in conferring and in
Ahould return to the place, whence they Originally returning Benefits. For the latter aré guided by the
flowd. Yet here likewiſe, there will be moſt plen- Virtues of Humanity and Bounty, and, properly
tiful Matter for Contentions ; the cutting off of ſpeaking, are vouchſafed to thoſe only, who had no
which ought to be made the chief Aim and Deſign ground to expect them from us
, but what is owing
of all Laws. For a Friend putting in his Claim to the Suggeſtions of theſe Virtues in our Mind.
with ſuch a Plea, might be well anſwerd to this Pur- Whereas the former are built on other Foundations;
poſe: That either what he takes for Merit was not
on the Obligation we lie under of making Proviſi-
the conferring, but the returning a Kindneſs; or, on for ſome particular Perſons, on nearneſs of Blood;
That if he was the firſt Benefactor, he hath ſince re- and on that Propenſion to advance, improve, and
ceiv’d a ſufficient Requital: Or, That he gave with preſerve our own Family, enjoin'd' by the Dictate
out any hope or proſpect of Return; and deſired, of Nature, Il rus Orat. 6. (4)." All Perſons as they ap-
That his Bounty ſhould reach not to the Perſon on proach near their End, are provident in diſpoſing of
ly, but to the Family of his Friend: Or, That what what they poſſeſs, teſt they ſhould bring their Fan:ily to
he did was undertaken upon the Principle of Glory, Ruinand Deſolation. And in this Affair, that which
or of preſent Advantage: That, in caſe we had ought to be our principal Cafe, is, That we eſtabliſh
not found his Aſſiſtance, we did not want Oppor- fo clear a Method as ihall be expos’d, as little as
tunity of being reliev'd in our Diſtreſs by other poſſible, to Controverſie and Doubt. Now, there
Means: That it cannot certainly be determin’d how can be no fuch Way or Method more ready than
much his Aid contributed to our acquiring thoſe this, That in default of an expreſs Diſpoſal by
Goods which he deinands to inherit : And then a- will, the inheritance ſhall paſs down according to
gain, That he who hath been only uſeful to us in get- the different degrees in which the Relations of the
ting a thing, cannot preſently require, That we deceaſed ſtood nearer to him one than the other.
ſhould admit him to hold the thing in common Hence Authors have remark’d, That Succeſſions
with us. Farther, That the good Offices of Friends to Inteſtates proceed in a contrary courſe to the Rule
would be turn'd into a Mercenary Service, or ra- of common Kindneſs; it being in the former the
ther into perfect Uſury, if they were to be advan- more neceſſary Duty to Give, in the latter to Repay:
ced to the Eſtate of Inteſtates, before the Relations As, in the caſe before us, our Children have
the
of the deceas’d. For then a Kindneſs to another Preference of our Parents, to whom we are inuch
could not be fuppos’d to be conferr’d with any o more indebted and engaged. Lucian Abdicat.
ther Deſign, than that the Receiver ſhould only 'Tis the Ordinance and Appointment of Nature, that



(3) Hefiod's Words are, Maldi reborgvoito ícov model étaiegv. See allo Mr. Stacy's Treatiſe of Friendſhip, p.115
Mr. Barbeyrac's NOTES on S 16.
1) Αriftotle's Words are, Ευεργέτη ανταποδοτίον χαιν μαλλόν, ή εταίρω δοτέον, εαν αμφοίν μη ανέχεται.
(2). Cicero's Words are, Nullum officium referendæ gratia magis neceſsarium est. Alſo, Cum liberalitatis.genera ſint; unum dandt
beneficii, alterum reddendi demus necne in noftræ poteftate est non reddere bono viro non licet, modo id facere poffit fine injuria,
(3) Phocion's Words are, Puderet me vobis dare, & huic, (dreves demonſtrans) non reddere.
(4) Ζακτ’s Greek is, Πάντες οι τελευτήσεις μέλλογης πρόνοιαν ποιενται σφών αυτών, όπως μη εξερεμώσωσι τις σφετέρες αυτών
+ Ee 2
the
bixx

220 Of Succeſſions to Perſons who die Inteſtate.
Book IV
the Affe&tion of Parents towards their Children ſhould of cutting off all Diſpute, in caſes where either the
exceed that of Children towards their Parents. Comp. exprefs Will of the Deceaſed, or the National Laws
Bæcler. ad Grot. d. 1. Yet in what hath been here are filent. Yet indeed in the whole Subject and
offer’d, we would not be underſtood to inſinuate, as Compaſs of the Civil Ordinances, there is ſcarce
if the Duty of Gratitude were to be allow'd no place any thing about which they are found more careful
in the laſt Diſpoſal of our Fortunes; but only, and ſolicitous than about the Diſpoſal of Inheri
that 'twould be inconvenient to go about to ſet- tances, not only for the Prevention of Quarrels a-
tle a general Method for the Eſtates of Inteftates tomongſt Relations, but likewiſe becauſe 'tis the In-
be guided by, taken barely from the preſum'd Will tereſt of the Publick, to have this Buſineſs ſettled
of the Party Deceaſed, touching the Exerciſe of this and moderated according to the Ends and Reaſons
Vertue,
of particular Governments. Hence in ſome places
,
XVII. From what hath been laid down, it ap- the power of making Wills is left very free and
pears, that of all the Collateral Line the Brothers wide; in others it is more or leſs abridg’d and re-
ſtand' neareſt to the Inheritance; as well on the ac- ſtrain’d.
Amongſt the Romans 'twas one of the Laws
count of the moſt ſweet and hearty Affection by which of the Twelve Tables (1), That whatever a Maſter
they commonly are engagd to us, as becauſe they of a Family, Jettled or bequeath’d with regard to bis
on the ſcore of raiſing their Brother's Fortunes, re- Family, or to his Fortunes, ſhould so ſtand. Which
ceiv'd ſmaller Portions out of their Father's Eftate. was borrow'd from the Attic Syſtem of Law compo-
Quintil. (1) Declam. 321. pag. 509. init. Edit. Lugd. fed by Solon : For thus Plutarch (*) reports, That
Bat
. What Friendſhip can be fo happy as that which the Ordinances of his, by which he gave free Subjekts
imitates brotherly Affé&tion ? Certainly, when we would the liberty of making Wills
, which they never en
complement thoſe whom we take for our Friends, Flat- joy'd before, was molt greedily embrac’d, and was e-
tery it ſelf cannot invent a higher Endearment than ſteem'd moſt juſt and right. Now the Reaſon which
the Name of Brothers. With whom the Siſters are inoved Solon to the palling this Act, was not that
likewiſe to be admitted, at leaſt to thoſe Goods he intended to defraud the neareſt Relations of their
which were either brought by the Mother, or late- Right of Kindred, but that by ſetting before Men's
ly acquir’d; but they have not the ſame Title to the Eyes this common Advantage, he might engage 'em
Father's Poſſeſſions, which are uſually deſign'd to all to contend with each other in good Offices, and
preſerve the Splendor of the Family; whereas Wo- that Relations might keep the greater Affection and
men, for the moſt part, marry out of their own the ſtricter Ties amongſt themſelves, conſidering
Line. Brothers by the Father's ſide, in the paternal that they muſt exceed Strangers in Kindneſs and
Inheritance exclude thoſe by the Mother's fide; as Good-will, if they deſired to be admitted before
again, in the Fortunes left by the Mother, the latter them to the Wealth of the Family. Demofthen.
have the Preference of the former
. In Goods newly adverf
. Leptin. p. 374. Edit. Genev. When Solon
gotten ſince the time my Father married the Mother enacted by Law, That every Man who wanted Legiti-
of my Half-Brother, 'tis convenient that I ſhould mate Igue, ſhould appoint for his Heir, whom he pleas'd;
carry off the largeſt Share; ſince toward the acqui- he did it not to rob the next Blood or Affinity of their
ring theſe Goods the Man uſually contributes more Right of Kindred, but that by propoſing this commor
than the Woman. Upon Default of Brothers, the Advantage, he might engage Men to contend with each
Brother's Sons fhall come in; though it ſhould ſeem other in Good Offices (2). Beſides, It ſeems more ſuita-
that theſe ought at the ſame time to let in the Great- ble to Liberty, and to the full extent of Properties
,
Uncles, becauſe they too had ſinaller Fortunes, on That no one ſhould be forc’d to leave his Goods, but
account of dividing the Eſtate with the Father of to thoſe only whom he loved more than others. To
the Deceaſed. The ſame is to be ſaid of Siſter's which we may add, That we often conceive more pro-
Sons, and their Great-Uncles by the Mother, with bable Hopes that a Stranger to our Blood may better
regard to the Mother's Goods. And this Order and employ our Pollefions in the Service and Aſiſtance of
Method ſhall be continued down in all other Inſtan- Virtue, than Jome near Kinſman, whom the Expe&tati-
ces; but ſtill with this Proviſo, That where the Pa on of a Rich Inheritance frequently ſeduceth to Luxury
ternal Line fails, there the Mother's Kindred ſhall be and Idleneſs (a). And laſtly, That 'tis fome Com-
admitted to the Father's Eſtate, and ſo the Kinſmen fort, under the Neceſſity of a Mortal Condition, if a
by the Father, to the Mother's Goods, upon failure Man may conſign over what he hath got by his own La-
of her own Line.
tour, to thojė whom he looks upon as his deareſt
XVIII. But we ought well to obſerve, That the Friends (b). This Exception only there was in So-
Rules which we have propos’d for the determining lon’s; That thoſe ſhould not be permitted to make Wills
this Matter are ſtiled Natural, not becauſe they are who had Ligitimate Male-Children living, to whom the
fo exactly preſcrib'd by any Precept of the Law of Paternal Inheritance was beyond all Controverfie due
.
Nature, as that they cannot be alter’d, but becauſe It cannot be denied, but that under this ample
they are in the higheſt Manner agrecable to the Power of diſpoſing of Goods by Testament, there
Law of Nature, and ſeem to be the moſt ready Means crept in, as well at Athens as at Rome, a prodigious
Mr. Barbeyrac's NOTES on § 17.
(1) Quinailian's Words are, Quæ poteft amicitia effe tamen fælix, que imitetur fraternitatem ? Certe quotiens blandiri volumus his
qui esſe amici videntur, nulla adulatio procedere ultra
hoc nomen poteft, quam ut fratres vocemus. Read Cyrus's Speech to his Chile
dren in Xenophon Cyropæd. Lib. 8. Va!, Maximus, l. 5.c. 5. and Stobxus, Serm. 82.
(1) See this law quoted, Lib. I. c. 6. $6. n. 6. aforegoing. See alſo two Dilcourfes of Mr. Thomafius's about the Original of
on 18.
wills, and the formalities uſed in making them, doc. entitled, the one, Prima do initia fucceßionis testamentarie apud Romanos,
the other, De ſenſu legis Decemviralis teſtament ariæ, both printed ar Hall in 1705.
(4) Plint arch's words are, Oή, και βάλεται τις επιτρέψας, ει μή παίδες και εν αυτό, δεναι τα αυτά φιλίαν τε συγγενείας ετίμησε
(2) Demosthenes's Greek is, o my son av Sure vóuov, det var Séval ta é autã oras äv ms Bénetas taip pus mai des bo zvýsion, ex
εν αποστρήσω τις εγγύτατα τω γένει
η αγχισείας, αλλά ένα εις το μέσον καταθείς τίωωφέλαν,
εφάμιλλον ποιήσω το ποιείν άλλές έν,
() Theocrit. Idyl. 10. The Living waſte the Fortunes of the Dead, (b) Iſocrat. Æginet.
on nito
Spawn

CHAP. XI.
Of Succeſſions to Perfons wbo die Inteſtate. 221
poor
Spawn of Cheats, like a Peſtilential Infection, ſuch Beſides, That the Rights of Kindred were honour'd
as Paraſitical Flattery and Inveigling, eſpecially of with the higheſt Reverence, and inoſt ſacred Vene-
old and childiſh Perſons, Circumventions, Forgery ration amongſt thoſe People, appears from what the
of Writings, and the like.
fame Hiſtorian afterward remarks. Thegreater aum-
Bodinus (a) chiefly objects againſt theſe Teftamen- ber of Relations any Man hath, whether by Blood
or
Conſtitutions of Solun, That they allowed Men by Marriage, the more Reſpe&t is paid him in his Old
to bequeath by Will Real as well as Perſonal Eſtates. By Age: Nor are any Rewards allow'd to comfort Perſons
which means, as he obſerves, whilſt many of thoſe under the Misfortune of being Childleſs. Every one
Eltates might happen to fall on one Perſon, there looks on it as his neceſſary Obligation, to undertake the
arole a vaſť Inequality of Wealth between the Sub- Quarrels of bis Father or of any, near Kinſman, as
jects, whence the Poor grew envious towards the well as their Friendſhips and Alliances
. In many
Rich, the Rich proud and infolent towards the parts of Germany at this day, if a Man hath a Son
Poor; Miſchiefs that have a peculiar Tendency to born to him, 'tis an uſual Exprellion to ſay, He hath
the diſturbing and fubverting of Government: Efpe- got an Heir.
cially fince the Proverb is often made good, That Again,
It doth not appear why a Nation, ſuch as
the more a Man hath, the more he ſhall have. But the Old Germans then were, quite ignorant of the
Bodinus obſerves, That 'tis the intereſt of States, ways of heaping up Wealth, content with the
where the Supreme Power is lodg’d in the People, to accommodation of Houíhold Conveniencies, and
take care that ſome few Perſons do not exceed the reſt ſcarcely deſiring any farther advantage from their
by too vaſt a Diſproportion. Which likewiſe was the Fields, their Cattle, and their Pains in Hunting, than
Reaſon of that Jewiſh Law (b), forbidding the per- a daily Subſiſtence; why ſuch a Nation ſhould have
petual Alienation of Land, and of that other, by any reaſon to deſire the privilege of Teſtaments. It
which Women who had receiv'd Land in Inheritance, being an idle and unneceſſary care, for thoſe who
were enjoin’d to Marry into their own Tribe, leaſt to follow this way of Life, to covet to themſelves any
otherwiſe the Land ſhould paſs from one Tribe to large extent of Land. Nor is the making of a Will
another (c).
ſo neceſſary a conſequence of Property, but that a
Ariſtotle (3) amongſt his Rules for preſerving a State or People may introduce ſome one uniform
Democratical Government, gives this as one, That Method of Inheritance, without any ſuch expreſs
Inberitances ſhould defcend not by Teftament, but by Diſpoſal. And this will eſpecially hold good of that
Kindred, and that no Perſon Mall have more than one People, who, as Tacitus informs us, aligned ſuch a
Inheritance, becauſe thus the Fortunes of Men will be Tract of Land to ſuch a number of People ; who after-
kept more upon a Level. What Miſchiefs were in- wards parcelld it out into private ſhares, according to
troduced into the Spartan Common-wealth by that the worth and eſteem of particular Perſons. If it be
Liberty of Teſtaments which Epitades, the Ephorus ſaid, That theſe Men were wont, however, at their
ſet up in oppoſition to Lycurgus's Laws, niay be read Deceaſe, to leave ſome fort of Orders and Injuncti-
at large in Plutarch's Life of Agis (d). Amongſt o ons to their Family, we deny that every Act of
ther Nations, Men were allow'd no Liberty in this this kind comes up to the Nature of a Tefta-
Point ; or if they had any ſuch Privilege, it was ment (h).
very much abridg’d reſtrain’d
This Method of Succeffion, as 'tis the moſt plain
OF f the Hebrew Laws on this Particular, Selden and ſimple, and moſt agreeable to the common In.
(e) and Grotius (f) give a full account. Of the clinations of Nature, ſo hath it an eſpecial Tenden-
Ancient Germans, Tacitus (8) reports, That they had cy to the keeping up an equal proportion in the
no ſuch things as Wills or Teſtaments
, but every Man's Wealth of the Subjects, to the ſecuring a ſupply of
Children were his Heirs and Succeffors: and, in default Natives in a juſt and proper Number, and to the
of Children, thoſe of the next Degree, as Brothers and preſerving the Eſtates and the perpetuity of Fami-
Uncles by both Parents
. Which place of the (4) Hiſto- lies (i).
rian, why we ſhould interpret with ſome in this It hath likewiſe been the common Opinion, that
manner, That the Germans, who had not yet learnt this muſt prove a new bond of Affection between Re-
the uſe of Letters, did not make uſe of Formal and lations, and engage them more heartily to promote
Written Wills after the Roman Cuſtom, which Ta- each others good, whilft they conſider'd, that they
citus for the moſt part hath an Eye to in that Deſcri- were, of neceſſity, to ſucceed each other in their
ption, we cannot yet find ſufficient Reaſon. For a- Poffeffions. To this place belongs the Paſſage of
mongſt the Romans themſelves Teſtaments by Word Plato, Lib. XI. de Legibus, quoted by Grotius, and
of Mouth (5), and without Writing were alſo al- explained by Bacler. Alſo that Pliny in his Panegyr.
low'd. And therefore if Tacitus had deſign'd to ob- c. 37. fo high commends that the twentieth part was
ſerve, That only Written Wills were thoſe with which releaſed to the Heirs of Families, Quod manifeſtum
the Germans were unacquainted; he would have ex- erat, quanto cum dolore latum, diſtringi aliquod, &c.
preſs’d himſelf more particularly and diſtinctly. becauſe 'tis plain, that Men would bear it with great
(3) Aristotle's Words are, Και τας κληρονομίας μη κατα δέσιν ναι, άλλα κατα ανΘ, μηδε πλειόνων ή μιάς και αυτόν κληρο-
you to. Što y$ är öpuedámeega ai sciai dav, e Tüv migwy eis iu moet av av, ne sisusto nacías, Ariftot. I. s.c.9. in fin. See allo,
1.2.c.9. p. 329. "See Mr. Thomaſius's Diſcourſe, De origine Succeſfionis teſtament ariæ, $ 39, doc.
(4) Viz. Mr. Becler upon Grotius, c. 6 p. 235. See Mr. Buddeus's Diſcourſe
, De Teſtamentis fummorum imperantium, &c.C. 1 $9.
5) we call theſe fort of Wills, Teſtamenta Nuncupativa, or Nuncupative Wills, becauſe the Teſtacor nuncurabat bæredem aut
woluntatem ſuam, (i.e.) he named his Heir or his Will. By the Roman Laws they were as good as written Wills, provided, that
the Teſtator declared his will by word of Mouth in the preſence of ſeven Witneffes, Inſtit. 1, 2 t. 10 g 14.
(b) Levit. 25. 10. Upon which ſee Mr. Le Clerc's Comments. (c) See Numb. 36. 8.
(e) De Succeſſionibus ad bona Hebræorum, eſpecially in c. 24. (f) Add Numb. 27 v. 8, &c.
(b) Thé Arabian Impoſtor hath likewiſe publiſh'd Laws to regulare Succeſſions, in his Alcor an under the
(i) See Bacon's Hien. VII. P. 127.
(6) Cap. 20.
(a) Lib. 5. c. 2. De Republ.
(d) Add Ariſtot. Polie. 11. 9.
Chapter of Wives.
Grief

222 Of Succeſſions to Perſons who die Inteftaté.
Book IV.
For, as Quineti-
Grief, or rather never endure it, to have any de- mon to them both, That they ſhall diſcharge the Debts
falked and taken from thoſe Goods which they by of the Deceas’d. And that not ſo much on ac
Blood and Relation merited, and which they looked count of any Tacit Engagement which they have
upon as their own, and to deſcend to the next akin, entred into to this purpoſe (a), as becauſe theſe Debts
as their Inheritance. And Publius Syrus (6) ſpeaks, are à neceſſary Burthen affecting the Poſſesſions in
Haredem fcire utilius eſt, quam quarere, i. e. It is the manner of a Tacit Mortgage.
better to know than ſeek an Heir
, v. 255. And yet lian obſerves (1), Such is the Nature and Condition of
thoſe Governments ſeem to have ſettled the Matter an Inheritance, that the Creditors muſt firft be ſatisfied
with moſt Prudence, which left Men the privilege before it can effe&tually take place. And ſo much on-
of diſpoſing by Will thoſe Goods only which they ly is to be reckon'd a Man's Eftate; as remains when
acquired by their proper Induſtry, ordaining, That all are paid their own (2). Whence, likewiſe
, 'tis
whatever they received from their Parents or Ance- moſt highly agreeable to natural Equitý; that the
ſtors, ſhould paſs down again to their neareſt Relations. Heir be not charged with Debts above the Value
For by this Method all the Reaſons produc'd on both of the Inheritance. Nor ſhould we omit what Ga-
ſides of the preſent Queſtion, are moſt happily briel the Sionite tells us in his Book of the Manners
brought to a Temperament and Union.
of the Eaſtern Nations, That the Muſſulmanni when
It is altogether ſtrange to the Manners and Cu- they make their laſt Will, are bound to reſtore all that
ſtoms of us Europeans, what we are told of the People they have taken by Robbery or Violence, to the proper
of the Kingdom of Siam, That thoſe who aré Men Owner, from whom they receive a formal Diſcharge
of Subſtance amongſt them, are commonly oblig’d to par; in writing : And if they know not the Perſon to whom
cel out their Wealth into three Diviſions, one of which reftitution ſhould be made, they lay out the Sum in pub-
goes to the King, another to the Prieſts, (whence like-lick Buildings, as Hoſpitals
, Moſques or Bagnio's, or
wiſe the Funeral Charges are defray'd) and the third elfe bequeath it to the Poor, or to ſome Religious Or-
only to the Children. And no leſs ſtrange is the Pra- der.
ctice of the Ethiopians on the Coaſts of Guinea ; In Ferdinand Pinto, Cap. 21. the Chineſe Hermit
where the Goods of either Parents do not deſcend adviſeth Antony de Faria, who had been guilty of
to their Children, but to the neareſt of their other Sacrilege, to do theſe three things for his Souls
Kindred.
Health; to reſtore what he had taken away, to beg
XIX. The Heir by Will, and the Heir at Law, pardon for his Offences with Tears, and to diſtribute
though they ſucceed in a different manner to their largely in Charity to the Poor. Add. Cap. 60.
reſpective Eſtates, yet have this Obligation com-
19W
(6) Gruter in his late Edition of Publius Syrus reprinted in 1708. reads theſe words diverſely thus, Hæredem ferre honeſtius eft,
quam quærere, (i. e.) It is more prudent to reſolve to leave that perſon for an Heir, whom the Laws appoint for our Succeſſor,
than to ſeek for another to whom to give our Goods, which is a different ſenſe from the other reading.
Mr. Barbeyrac's NOTES on S 19.
(1) Quin&lilian's Words are, Nam patrimonii in alium tranſituri, ea ratio eſt ut primum credito ſatisfiat. The ſame Author had
before faid, Bona porro que ſunt, ut opinor, Ea quæ detrahi alienis deprehenja ſunt.
(2) So the Law teaches, id enim bonorum cujuſq; intelligitur, quod ari alieno ſupereſt, Digeſt
. I. 49 t. 14 de jure fifci, leg: 11. See
1. 3 6.6 de calumniatoribus, leg. 5 in princip. Lib. I. t. 7 de religiofis do ſumpt. funerum, leg. 14 S 1. Lib. 16 t. 3 depoſito vel con-
tra, leg. 7 $1. Lex Wiſigothorum, l. 7 t. 2 c. 9.
(a) On which Reaſon depends that diſpoſal of the old Roman Law which we meet with in 1, 29. c. 2. 1. 8. Dig. de acquir. vel
omitt. hæred.

b wo
2010
CHAP .

CHAP. XII.
223
Of Uſucapion or Preſcription.
CHAP. XII.
Of Uſucapion or Preſcription.
How Ufucapion and Preſcription differ. VII. Many refer Uſucapion to Civil Right.
What Uſucapion is by the Roman Laws, and VIII. Whether Uſucapion can ariſe from a tacit Dei
where it takes place.
reli&tion of the Proprietor.
How far honeft Dealing is required in Uſuca- IŇ. It ſeems to depend upon the tacit Agreement of
pion.
Nations,
Continual Poſſesſion is required.
X. How Uſucapion may be prejudicial to Children
The Reaſons of introducing Uſucapion.
not yet born.
Whether the Law for Uſucapion le penal. XI. Uſucapion is alſo in uſe among divers Nations,
.
II.
III.
IV.
V.
VI.
ire
I to theſe different Names are frequently taken for the
wiſe concerning that Method of Acquiſition by very fame Notion; and the latter now prevails in
which he who hath gotten Poffeffion of what was the common Ue, and is the Term by which we render the
tentions, and hath alſo held it for a conſiderable It may be worth our while to premife, what the
time without being diſturbid or oppoſed, obtains the Roman Law appointed or directed in this matter;
full Propriety of the thing thus poſſeſs’d, ſo as to becauſe we ſhall hence eaſily gather how far the Bu-
extinguiſh all the Right and Legal Claim of the for- fineſs depends on poſitive Conſtitutions, and how
mer Owner. This the Roman Law terms Uſucapio, far on the Laws of Nature.
becauſe the thing is, as it were, taken and acquired II. Preſcription, as Modiftinus (a) (1) defines it, is the
by long Uſe or Poléſion.
Addition of a Property, but means of long Poſelor
The Word Preſcriptio in the ſenſe of the ſame continued to the Term of Tears fixed by the
Law, Cu-
Law imports ftriély (2), that Plea, Demur or Ex- jacius and others, on the Authority of Ulpian, uſe
ception, by which the Perſon thus in Pofleffion in- the word adeptio inſtead of adje&tio, Acquiſition in-
validates the Claim of the firſt Proprietor. Though ſtead of Addition; but we do not apprehend that
Mr. Barbeyrac's NOTES on Chap. 12. $ 1.
(1) This is a very conſiderable ſort of Acquiſition. See n. 1. upon s 1. of chap. 10. It hath alſo a place among ſeveral People
in the manner, which ſhall hereafter be explained. The Author in his Abridgment of the Duties of a Man and Citizen,
I.1.C 12. $ 14. ſpeaks of two other kinds of Civil Acquiſitions. The firſt is that which is gained by the Sovereign or the Laws
which deprive a Criminal of all, or at leaſt part of his Goods, and confiſcates them or gives them to the Perſon damaged, which
is treated of at large, 1. 8. c. 3. The other is obtained by Arms, or Right of War, Buc fee what is ſaid of this, c. 6. § 14. above.
(2) The word Prafcription will beſt expreſs the Latin Uſucapio in our Language, and therefore we ſhall treat of ic under that
Name, unleſs ſome ſpecial Reaſon oblige us to uſe the word Uſucapion.
Mr. Barbeyrac's NOTES on $ 2.
(1) Beſide, Preſcription has not only reſpect to Property, but it deſtroys other Rights and Actions, when Men are not careful
to maintain them, and preſerve the uſe of them during the time limited by the Law. Thus a Credicor who has not demanded
his Debt during that time, diſcharges the Debtor. And he that has enjoy'd the Rent of certain Lands ſo long, can't be difpoffefſed,
though he has no other Title but his long Poffeffion. See Mr. Daumat upon this Subject in his Civil
Laws in their Natural Orders
Part 2. 1. 3. c. 7. Sect. 4. and Mr. Titius's Obſervations on Lauterbach, obr. 1033. As alſo, in his fus Privatum Romano-German.
1.2.c. 9. We thall hereafter explain, how far Preſcription is of Natural Right, and what Civil adds to it. As to what we have
to ſay about the Preſcription of things Incorporeal and their Rights. We are to obſerve, that by Natural Right alone Preſcrip:
tion does not aboliſh Debts ; ſo that though the creditor nor his Heirs have not demanded any thing for a long time, his Right
is not extinguiſhed, nor is the Debtor fully diſcharged. This Mr. Thomaſius proves in his Díſcourle, De Perpetuitate debitorum
pecuniariorum, printed at Hall in 1706. Time, ſays he, in it ſelf is of no force, either to get or loſe ones Right; it muſt be
accompanied with ſomething elſe, which muſt give it that Power. For no Man can be deprived againſt his Will of that Right
he has got by the conſent of another, but by his own free Releaſe. He does not diſengage himſelf by acting contrary to his En
gagements ; and in delaying to execute them, he lays new Obligacions upon him to indemnifie the perſon intereſted, ſo that the
Engagements of a bad Paymaſter becomes greater and ftronger every day, and can't
be judged by Natural Right alone to change
their Nature, and come to nothing at a cercain period of time. It is alledged in vain, that it is the Intereſt of all Mankind,
that Proceeding in Law ſhould not be eternal: For 'tis no leſs the common Intereſt of Man, that every one ſhould keep his Words
and that bad Paymaſters ſhould not enrich themſelves without contradiction at the Expence of the Lender; that Juſtice be done,
every one obtain his own Right. Moreover, 'tis not the Lender that troubles Mankind in requiring what is due to him,
þut the Debtor, who owes, and will not pay. For it he paid his Dues, there would be no ground for an action. Nor is that
Pretence better grounded, "That 'tis the Negligence of the creditor in not demanding his Debe, that is the cauſe of his loſing his
Bight, and authorizes the Preſcription. This can only have place among ſuch as live one with another in the independent ſtare
of Nature. Suppoſe the creditor be very negligent, can his innocent Negligence deſerve more to be puniſh'd than the noxious Maa
lice of the Debtor ? Or ought he not rather to be punilhed for his Injuſtice? Did he defer the Payment ſo long a time without any
vil defigo, yet is he not as much to be blamed for his Negligence? Does not the Obligation of keeping Word, oblige the Debtor to
thould it fal rather upon the
creditor than the Debtor ? Or rather ought noe the
Negligence of this laſt be puniſhed and ſo much
becauſe this gets by Preſcription, and the other loles ? But if we conſider things abftraétly from the Civil Laws, which
require that a Debt ſhall be demanded within a certain ſpace of time, the creditor can't reaſonably be accuſed of Negligence, bea
todellow more time than he has promiſed, and tis fufficient for the Debtor, that the time is come, when he agreed to pay. Be-
herves rather to be praiſed, than accuſed of Neg igence, as Mr. Thomafius proves particularly. Laſtly, There is no cauſe to be.
thing in kind, but the value
of what he borrowed, he does not properly poſteſs the Goods of another; and fo can't be thought
prekeep it as his own. On the contrary, he muſt be eſteemed to be always in poffeffion of his Right; till he has renounced it ex-
the Romans, as far as the Emperor Constantinus's Time. This whole Diſcourſe is worth our reading.
tehoots, and thews, that without that, Prescription can have no place by the Laws of all people yer kaowa to us, nor by thoſe of
(a) Digest. 1. 416. 31. 3 D. de vfucap. leg. z.
the more,
this

224
Of Ufucapion or Preſcription.
Book IV.
3
Things conſecrated or ſet apart 10
pore
this makes the leaſt difference in the thing. For fcribing. And the third Perſon, the honeſt Poffef-
he that having gotten Poffeffion of a thing with ho- for, is likewiſe ſtop'd in his Right, by that Fauli
neſt Intention, continues his Poffeffion to that deter- which is ſuppos’d to affect and attend the thing ari-
minate Period which the Law expreſſeth, may be fing from the unjuſt Means by which it was before
ſaid to have ſomewhat added to him, which he hi- acquired : For though, properly ſpeaking, there is
therto wanted. And again, he to whom the Law no Fault or Blemiſh in the thing conſidered by it
thus adds any new Property, may be ſaid to have felf, yet inaſınuch as it was taken from the foriner
acquired or obtained it. But
Owner, in an Unjuft and Villainous manner, it
To proceed, As every Man who is otherwiſe ca- ſeem’d Equitable to enae, That his Right ſhould
pable of acquiring Dominion, is likewiſe capable of not hereby ceaſe or be extinct; and at the ſame tiine
preſcribing; fo by this Right of Preſcription, we to take effectual Care, that 110 one ſhould be a Gainer
may acquire Dominion over both forts of things, by his Wickedneſs. For, ſince three Years Prefcri-
Moveable and Immoveable, unleſs they are parti- ption is ſufficient for moveable things, it had been
cularly excepted by the Laws.
eaſie for Thieves ſo to ſecure their Booty, by carry-
And Firſt, Freemen are thus excepted (2): For ing it off, and putting it into other Hands, as that
ſince Liberty is fo ſweet a Comfort, as no one can the lawful Owner ſhould not be able in a ſearch of
be preſum'd to have neglected any Opportunity of three Years to diſcover it.
recovering, 'tis juſtly ſuppos’d that the Party in this Beſides, Amongſt the Reaſons on which the Right
Caſe continued ſo long under Servitude, and did not of Preſcription is founded, one is the Negligence of
put in his Claim to be releas’d, only out of Igno- the Owner, in ſeeking after them. But now, fince
rance of his preſent Condition, not that by this ſtolen Goods are uſually concealed with the ſtricteft
Continuance, he tacitly conſented to be a Slave. So Caution and Cunning, this Reaſon cannot take place
that this long Patience under his Misfortune ought againſt the Perſons who loſt them. Yet notwith-
rather to make him a more worthy Object of ſtanding all this, ſince it was by ſome ſubſequent
Pity, than to be interpreted to his Diſadvantage. Laws enacted, That all Actions after a conſtant
Religion are likewiſe excepted, and ſo too are the drop, and be extinct, the Preſcription likewife of
Goods of Minors, during their Non-age: For by ſtolen Goods
, as well as other Preſoriptions, ſhall be
reaſon of their unexperienc'd Years, the neglect of valid, at Civil Law, alter fo long a Period (5), and
challenging what is their own, cannot be ſo far ſhalloverthrow the Claim of the former Proprietor:
charg’d upon them, as that they ought on this ac- Which how unreaſonable ſoever it may appear to
count to loſe it; and it would be too hard and ſevere fome, who look upon it as very abſurd that Injury
if they were to ſuffer for the Careleſneſs of their and Impunity ſhould, by length of time, turn into
Guardians : Further, the Law excepts Stolen Goods, a Foundation for Equity and Right; yet it deſerves
Runagate Servants
, and things gotten by (3) Vio- Excuſe on account of the general Advantage ariſing
lence, though ſome third Perſon hath obtain’d the from it to the Publick. Becauſe it highly concerns
Poſſeſſion of them by honeſt Means.
the publick Peace, that Suits and Quarrels ſhould at
Thus the Laws of the Twelve Tables ordain, Rei length be finally quaih’d, and not ſuffer'd to run
furtive eterna authoritas, eſto, Let the Claim againſt on for ever, and that the Propriety of things ſhould
things ſtolen hold good everlaſtingly
. For, as to the not hang perpetually in Uncertainty and under
Robber himſelf, his Crime hinders him from pre- Diſpute (6). And becauſe within the compaſs of
(2) In general, all that is nor concerned in Commerce. Our Author has forgotten in his enumeration of things not ſubject to
Preſcription, as Publick Places, Goods that belong to the Publick, what is due to the Treaſury, and the Prince's Demeſnes
,
which are all mentioned in cheſe Laws. Sed aliquando etiamſi maxime quis bona fide rem poffiderit, non tamen illi ufucapio ullo tem-
,
.
capionibus do longi temporis præſcriptionibus, SL Furtive quoque res, do que vi poßenerunt, nec fi pre tieto longo tempore bona fide pol
sesse fuerint, uſucapi posſunt, ibid. § 2. Res fiſci noſtri ufucapi non poteſt, ibid. § 9. Vſucapionem recipiunt maxime res corpo:
rales, exceptis rebus San&tis, Sacris, publicis populi Romani & civitatum item liberis hominibus, Dig 1. 41. t. 3. leg. 9. Præſcriptio
long& posseſſionis ad obtinenda loca juris gentium publica concedi non solet, ibid. leg. 45. Veluti fi pupilli fint, &c. ibid. t. I leg. 48.
We may alſo except ſuch Goods as fall by chance to an Heir, which the Father had alienated before his Son was of Age, Cod
.
1. 7. t. 40. De annali except. leg. I. $ 2. Things which a Teſtator has forbid to alienare. See Cod. l. 7. t. 26. De uſucapione pro
emptore, &c. leg. 2. An Eſtate in Dower, Dig I. 23. t. 5. De fundo dotali, leg. 4. 16. and ſuch like things.
(3) Quod ſubreptum erit, ejus rei æterna autoritas eſto, as the Athenian Law ſpeaks, mencion’d by Aulus Gellius, 1. 17. c. 7. and
taken out of the Twelve' Tables, where we may ſee that Authoritas ſignifies a Right of Property, or a Right of claiming Goods
again. See Cod. l. 7. c. 26. De ufucapione pro empto, leg. 7.
(4) Que ergo antea non motæ ſunt altiones, triginta annorum jugi ſilentio, ex quo jure competere ceperunt vivendi ulterius non habeant
facultatem, Cod. I. 7. t. 39. de preſcriptione 30. & 40, annorum, leg. 3. as alſo the following Title, de annali except. &c. leg. I. and
Cujacius's Obſervations, l. 10. C. 12.
(5) Præfcriptio longiſſimi temporis, ſo called to diſtinguiſh it from preſcriptio longi temporis, the ordinary Term, Cod. l. 7. 6. 22,
33, 34, 35. and which was regulated by the nieaſure mentioned, $ 4. n. 6, 7. folloiving. The Emperor Juſtinian being over
perſwaded by the Clergy of Emeſa or Emiſa, a City of Syria, who
by reaſon of some teigned Titles, contrived to plunder ſome
of the richeſt Families of the City, made a Law, That the Goods of the Church, City, Hoſpitals, and other places fet apare for
Religious
and Charitable Uſes, thould not preſcribe under the ſpace of an hundred Years, Cod. I. 1. t. 2. De Sacrofan&tis Ecc'eſis
,
leg. 23. But the Fraud being diſcovered, and this new Law cauſing a great number of Ađions, Juftinian himſelf corrected it, and
reduced the Privileges to the Term of forty Years, at leaſt in the Eaſtern Churches, Nov. 9. 111. See Cujacius's Obſervations
,
1. 5. c. S. and a good Diſcourſe of Mr. Werthof, Profeſſor at Helmſtadt, entitled, vindicia Giotiani Dogmatis de preſcriptione inter
liberas gentes, $ 30. Yet we muſt not confound Preſcription of an hundred Years with Time immemorial, though they often
come much to the fame. See Grot
. 1. 2. c. 4. 5 7. and the Diſcourſe above quoted, printed in 1696. $ 18, doc. In fine, It was
Theodoſius the Younger, and not Theodoſius the Great, that eſtabliſh the Preſcription of Thirty and Forty Years. See the ſame
(6) 'Tis upon this Reaſon, as well as upon the Negligence of the Proprietor to claim his Goods again, that the Roman Lawyers
have founded the Right of Preſcription. Bono publico ufucapio introdueta est, ne fcilicet quarundarum rerum diu & fere femper incerta
dominia effent, cum ſufficeret domino ad inquirendas res fuas ſtatuti temporis fpatium, Dig. 1. 41. t. 3. leg. 1,
23
thirty

Chap. XII.
225
Of Uſucapion or Preſcription.
dic. leg. 24.
thirty Years Mankind ſeem to put on a new Face, ted true Owner (2). Liban, Declam: 1. pag. 194.
it was thought very Inconvenient that the following Edit. Pariſ. A Man doth not become juſt Pojeljor of a
Age ſhould be diſturb'd upon every ſlight Occa- thing barely by taking it to himſelf, but by holding it
innocently. Hence when the Lands, which were for-
fion.
Beſides
, when a Man had been without ſuch a merly King Apion's, being left to the Roman Peo-
part of his Goods for thirty Years together, he was ple, every Man ſeiz’d on what part he liked beft:
juſtly ſuppos’d to have ſat down quietly under the Tacitus calls this way of proceeding, Diutina licentia
Lols; fo that there was no need of troubling fo & injuria, A long continued Licentiouſneſs and Inju-
long a Poffefſion on his account. The ſame Rea- fice, According
to the Civil Law, 'tis enough if
ſon will hold for that (7) Preſcription which is foine- a Man had this bona fides (3), this Uprightneſs and
times allow'd in Criminal Caſes ; it ſeeming Integrity of Thought at his firſt entring on the Pof-
Unneceſſary to bring to the Bar, Offences comnit- feflion, though he happen afterwards to diſcover
,
ted almoſt an Age fince, the ill Effects of which, that the Perſon who convey'd it to him was not the
time it ſelf hath ſufficiently purg’d and effac’d, ſo juſt Proprietor. But the Canon Law requires the
that the true end of Puniſhment is ſuperſeded. ſame Integrity through the whole Term of Years on
III. But that Preſcription may effe&tually proceed, which the Preſcription is built (4); fo that if a Man
ºtis requiſite that the Party, receiving the thing at comes in the mean time to know that the thing was
the Hands of a falſe Proprietor, do obtain this Por: made over to him by one who had no. Right to
ſelfion by a juſt Title (!), or upon ſuch Grounds as diſpoſe of it, he begins immediately to be obliged
are eſteem'd fufficient in other Caſes for the trans to reſtore it to the lawful Owner, and from thence-
ferring and the acquiring of Property. And conſe- forward detains it mala fide, foully and diſhoneſtly;
quently, that he aēt in this Matter bona fide, with eſpecially in caſe he go about to hide it from the
fair and honeſt Intention; that is, that he be able Owner's Knowledge by Craft and Deſign. Which
to alledge a ſufficient Reaſon why he thus poffefſeth Judgment ſeeins to approach neareſt to the Srict-
it, and be perſwaded in his Mind, that the Property neſs and Sanctity of the Law of Nature (5): Inaſinuch
was transferr'd really on him, and himſelf conſtitu- as upon the introducing of diftin&t Properties, all
(7) Querela falſi temporalibus præſcriptionibus non excluditur, niſi viginti annorum exceptione, ficut cetera fere crimina, Cod. l. 9.
t. 22. ad legem Cornel. de falſis, leg. 12. See 1. 1.C. 9. § 6. above, and what Mr. Titiús ſays, Obſervat, on Lauterbach. Obferv.
1124. As alſo Mr. Thomaſius's Diſcourſe, entitled, De Præſcriptione Bigamix, which is the 8th among thoſe ar Leipfick.
Mr. Barbeyrac's NOTES on 6 3.
(1) Vt qui bona fide ab eo qui Dominus non erat, cum crederet eum Dominum esse; rem emerit vel ex donatione aliave quavis juſta caufa
acceperit, ise uſucaperet, Inſtit. l. 2. c. 6. princip. Diutina ſucceſſio tantum jure fucceffionis, fine juſto titulo obtenta, prodesse ad pram:
ſcriptionem hac fola ratione non poteſt, Cod. 1. 7. t. 33. de preſcript. longi temp. &c. leg. 4. Nullo jufto titulo precedente poſſidentes,
tatio juris quærere Dominium prohibet. Idcirco cum etiam ufucapio ceffet, intentio Dominii nunquam abſumitur, 1. 3. t. 32. De rei vins
(1) Libanius's Greek is, Ου δεν τω λαβείν ες το δικαίως κλήσαθαι, αλλά το χωρίς έγκλημα των έχειν.
(3) Vt in his omnibus cafibus ab initio eam bona fide capiat.Quod in rebus mobilibus obſervandum eße cenſemus, ut in omnibus
juſto titulo posseſſionis antece ſiris juſt a detentio, quam in re habuit non interrumpatur ex poſteriore forſitan alienæ rei ſcientia, licet ex tia
$ulo Lucrativo ea cæpta eſt, Cod. 1. 7. 6. 31. De uſucapione transformanda do ſublata differentia rerum mancipi, & nec mancipi, &c.
leg. 1.
(4) Unde oportet, ut qui preſcribit, in nulla temporis parte rei habeat conſcientiam aliene, Decretal. l. 2 t. 26 de prafcript, Can. 20.
(5) Mr. Thomaſius maintains, That by Natural Right an honeſt intention is not neceſſary to make a Preſcription even in the
beginning of Pofleffion, provided ſo long a time is run out, that it may reaſonably be preſumed, that the crue Proprietor has re-
linquiſhed his Poffeffion of his Goods. For, ſays he, in whatever manner we ger into the Poffeſſion of the Goods that belong to
another, from the moment that he to whoin they belong, knowing that they are in our Hands, and being able, if he pleaſes, to
claim them, declares, either Exprelly or Tacitly, that he will let them reft there, we become the lawful Owners of them as
much as if we had a juft Title to them originally. Theodoſius the Younger, who eſtabliſh'd the Preſcription of Thirty Years,
did not require any good intention in the Poffeffor ; 'twas Fustinian who at the perſwafion of his Counſellors added that Condi-
tion in certain Cales, and the Canon-Law afterward improving, the Civil required a perpetual good intention in all ſorts of Pre-
ſcription. The Clergy of the Roman Church by this means tound out a way to recover Tooner or later all the Ecclefiaftical Re.
venues that had been alienated, although thé Pofleflors had peaceably enjoy'd them by an immemorial Cuſtom. Ambitious
Princes alſo made their advantage of this Hypotheſis to uſurp thie Lands which they pretended to recover to their Eſtates, under
this excuſe, that the Lands of the Crown could not be alienated, and to thoſe who enjoy'd thoſe Goods which had been aliena-
ted, poffeſied themſelves of them by a bad deſign ; ſince they oughe to know, that in ſuch Cafes no good Purchaſes can be
made. Hence it appears, that the Maxim of the Canon-Law, whatever ſhew of Piety it may ſeem to carry, is built on a Foun-
contrary to Natural Right, ſince it creates many diſturbances among Men, whoſe Quier requires that there ſhould be an
end of all Actions and Differences
, and at the end of a certain time Poffeffors by fair dealing ſhould be ſecure againſt all Claims.
Theſe are Mr. Thomaſius's Notions, which I have collected from divers parts of his works. See his Diſcourſe concerning the
Perpetuity of Pecuniary Debts, s 3. in Not, lit. K. & $ 27. 32. As alſo his inſtit. Juriſprud. Divin, I. 2. c. 1o. $ 193, 195, 2016
with the Chap. Fundament a jur
. Nat. & Gent. which anſwers it, $ 14, doc. As for my felf
, I own, that if the true Maſter of a
thing bought, or ufurped and gotten from him, in a word, by foul Dealing, doch noc pur in his Claim, nor declare any defire
of recovering it for a long ſpace of time, though he knows very well in whoſe Hands it is, and there is nothing to hinder him
from obrain
ing his Right, in this
caſe, i fay, the unjuſt Poffeltor becomes the lawful Proprietor, provided that he hath fome
way or other declared that he was ready to reſtore it, if it had been demanded : For then the ancient Owner acquits him, and ma.
nifeſtly renounces, though Tacitly, all his Pretenfions to it. And thús our Author determines it in his Element. Juriſprud. Univers:
P: 76.7. But if he that takes poffeffion honeſtly of the Goods of another comes to diſcover his Error before the time of Pre-
fcription is expired, he is obliged to do the Duty of an honeſt Poffeffor
. See what is ſaid in the next Chapter. But if conti
buing always in his honeſt Intention, he come to the time of Preſcription, whether it agree with the Maxims of the Natural Law
only, or the Civil Laws have reduced it to ſomething leſs, the Right of the ancient owner is entirely extinct, as I ſhall here-
after ſhew. The whole amounts to this, Thar as the 'honeft poffeffor, who preſcribes, is the Occasion, though innocent,
that the other is debarred of all his Pretences, he ought to aſſiſt him as far as he can to revenge the wrong done by a third per.
Intention is always neceſſary to keep the Conſcience quiet
, yet this is no impediment but that Humane Laws may overlook this
Condition either wholly or in part, to avoid great numbers of Actions
. And to obtain this
End, it may be very fit not to require
f good intention in Preſcriptions, 'to which they have fixed ſo long a time, or to demand it at leaft in the beginning of the Pol
the Clergy conſiſts not ſo much in this
, that the Determinations of the Popes require a perpetual good Intention in him that
preſcribes, as in this, that they will have the Goods of the Church look'd upon as not capable of being alienated, either abfo-
that the De ineafnes of the Crown cannor be alienated judily, and that Preſcription has no place among fuch whº have no de
or under ſuch Conditions as will make all Preſcriptious void. As for what Mr. Thomaſius ſpeaks of Princes
, who affirm,
pendance one upon another in a ſtate of Nature. See the lan Paragraph of this Chapter, and Lib. 8. c. 5:$9.
* Ff
Meni
See alſo Can. 5.
dation
Intely,

226
Of Uſucapion or Preſcription.
Book IV.
60
06
Men were ſuppoſed to enter into an Obligation, For he cannot by his own Ignorance and honeft In.
That they would, to the utmoſt of their Power, let e- tention, atone for the Fault of the deceaſed whom
very Perſon enjoy his own again, when they should hapo he reprefents
, and whoſe Rights he takes in full up
to be in But on
the Compilers of the Civil Law were contented with
A longer ſpace of Time is required for preſcri-
ſecuring the outward Innocence of Men's Actions; bing againſt one that is abſent, than one that is pre-
and authoriz’d the Poffeffor quietly to enjoy what ſent (6).
he had honeſtly gotten ; leaving to the reſpective So again, Moveable things may paſs into Preſcri-
Owners the whole Care of ſeeking after their ption, ſooner than Immovable
. (6) The reaſon of
Goods, and of challenging them upon a timely Dif- which latter Conftitution ſeems to be, That Immo
vables are judg’d a much greater Lofs than the con-
covery.
IV. Another neceſſary Condition in order to Pre-trary, that they are not ſo frequently made the Sub-
Scription is, “ That it be founded on conſtant Pof-ject of Commerce between Man and Man; that tis
feffion, ſuch as hath not been interrupted either not ſo eafie to acquire the Poſſeſſion of thein with
Naturally (1), as if the thing hath returid in the but knowing whether the Party that conveys them
mean while to the former Owner
, or hath at any be the true Proprietor or the falſe; and confequent-
a time laid abandon'd or forſaken: Or Civilly (2), ly that they are likely to adminiſter much leſs oc-
as if the Owner hath been actually engaged at caſion to Controverſies and Suits. Plato's Rules for
“ Law with the Poffeffor for the Recovery of what the Preſcription of Movables are as follow; “ If a
“ he loft; or at leaſt; by folemn Proteſtations hath thing of this kind be uſed openly in the City, let
put in a Salvo to his Right.
“ it paſs into Preſcription in one Year; it in the
Becler and Ziegler in their Annotations on Gro Country, in five Years ; if it be ufed privately
tius (a) obſerve farther on this Subject,
" That the “ in the City, the Preſcription ſhall not be com-
Space of time during which the Prime Poſſeſſor pleated in leſs than three Years. If it be thus
“ holds the thing of which we ſpeak, ſhall be reck “ held with privacy and ſecurity in the Country,
"oned to the Benefit of him that ſucceeds (3) in the Perſon that loſt it ihall have ten years allowi
“ the Poffeffion; provided that both the former, and“ him to put in his Claim (c). As for the Preſcri-
“ the latter firſt entred upon it, with honeſt Minds, ption of Immovables, this the Conſtitution of Plato's
“ and upon a juft Title: For otherwiſe the Prime Pol- Coinmonwealth was not acquainted with.
ſeſſor ſhall not be allow'd to inake over his Time V. The chief Reaſons which the Learned in the
to the next Holder; and conſequently if the former Roman Law aſſign for the first introducing of Pro-
came to the Poffeſfion by diſhoneſt Means, the perty are to this purpoſe; “ That in order to the
“ time he paſs’d in it ſhall not be computed towards a avoiding of Confuſion, and the cutting off of Dif-
“ the Preſcription of the latter, though he, for his putes and Quarrels, it is of great conſequence to
own part, obtain’d the Poſſeſſion fairly and juſtly, « the Publick Welfare, that the Proprieties of things
And this Rule takes place as well in a general “ ſhould be fixt and certain amongſt the Subjects
.
Succeſſor, an Heir, a Particular, as a Buyer, a Which would be impoſſible, ſhould perpetual Indul-
Grantee, &c. But then here is the difference be- gence be allow'd to the Negligence of former Own-
tween theſe two kinds of Succeſſors; the laſt of 'em, ers, and ſhould the new Poffeflors be left in conti-
though he cannot reckon the time of the diſhoneſt nual fear of loſing what they held.
Acquirer, to lengthen out his own, yet in caſe he Then again, Trade and Commerce could not other-
himſelf was not privy to the wrongful Dealing, the wife fubſiſt in the World : For who would ever con-
fault of the ſaid Acquirer, if it cannot be uſed for tract with another? Who would ever make a Pur-
his Advantage, ſhall not turn to his Prejudice; but chaſe, if he could never be ſecur'd in the quiet pol-
he ſhall be allow'd to compleat the Term of Pre- fefſion of any thing convey'd to him ? Nor would
ſcription in his own Perfon (4). Whereas 'tis other it be a fufficient Remedy in this Cafe, That if the
wiſe in the caſe of a general Succeſſor, or an Heir (5): thing ihould be thus challeng’d by a third Party,
6
CC
66
Mr. Barbeyrat's NOTES on S 4.
(1) See the Digeſts, 1. 41. c. 3. De ufurpat. uſucapion leg. 5. & 15. Thus we loſe a thing, or are depriv’d.of it.
(2) Utramq; autèm posseſſionem ita demum esse legitimam, cum omnium adverfariorum filentio do taciturnitate firmatur, interpella
tione vero do controverſia progresſa non posſe eum intelligi posjéforem, qui licet posſeſſionem corpore teneat, tamen ex interpofita conteſtati-
one, do cauſa in judicium dedu&ta ſuper jure posseffionis vacillet ac dubitet, Cod. 1. 7. c. 33. de acquir. & retinenda poffeffione, leg. 1o.
(3) Plane tribuuntur acceſſiones pofféffionum his, qui in locum aliorum ſuccedunt, five ex contra&tu, five voluntate, beredibus enim do
his, qui ſucceſſorum loco habentur, datur acceſſio teſtatoris, Dig. 1. 44. t. 3. de diverſis temporalibus præſcript. & de acceſſionibus poffels
ieg. 14. 1. Præterea ne vitiof& quidem poréfioni ulla póteſt accedere, fed nec vitioſa ei que vitioſa non eſt, 1.41. t. 3. de acquir. vel
amitt. posseſ. leg. 13.
(4) Si quis loci vacantis poffeffionem propter abſentiam aut negligentiam Domini, aut quia fine fucceffore decefferit, fine vi nancifcatur,
quamvis ipfe mala fide poſſideat (quia intelligit ſé alienum fundum occupaje) tamen fi alii bona fide accipienti tradiderit, poterit ei longa
PoDeftone res acquiri, Inñit. 1. 2. c. 6. 97: Diutina pogreſio qua prodeje cæperat defun&o, & hæredi & bonorum poglejtori continuatur
,
licet ipfe ſciat prædium alienum esſe. Quod ſi ille initium juſtum non babuit, Heredi, co bonorum poßfesori, licet ignoranti, posteljio non
prodeji, ibid. 12. Cum hæres in jus omne defun&ti fuccedit ignoratione ſua defun&ti vitia non excluditur. uſucapere non poterit, quod de.
fun&tus non potuit, Dig. 44. . 3. de diverſ. temp. præfcript. &c. leg. 11. 5.
(5) The honeſt Poffeffor preſcribes in ten Years againſt a perſon preſent, but not under twenty Years againſt one abſent, al-
though he that keeps the thing be poſſeſſed of it unjuſtly, Cod. 1. 7. c. 33. de præfcript. longi temporis decem vel viginti annorum
leg. 11. & Novel. Juſtin. 119. c. 7. See the next Note.
(6) Preſcription for Moveables is gained in three Years, whereas for Immoveable 'tis not gained under ten years againſt
perſon preſent, and twenty againſt a perſon abſent. Ne Domini maturius ſuis rebus defraudentur _cautum eft, ut res quidem
mobiles per triennium, immobiles vero per longi temporis pole ſionem (i. e, inter præſentes decennio, inter abſentes viginti annis ) uſucapi
.
antur, Inftit. I. 2. t. 6. princ. By ſuch as are preſent, is meant ſuch as are in the ſame Country. See Cod. 1. 7 t. 33 de preſcript,
longi temp. &c.
(a) Lib. 2 Co 4 $ 9. (6) Vid. Inſtit, ubi ſupra. (c) De LL. l. 12, p. 990, 991. Edit. Wech.
the

CHAP. XII.
Of Uſucapion or Preſcription.
227
30
the Perſon from whom we receive it ſhould be o But indeed the principal aim and deſign of the
bligd to make it good (1); for after ſo long a courſe Law concerning Preſcription, is not to punith Mens
of Tiine, Thouſands of Accidents might render him Defaults iii this reſpect, but to provide, that the
incapable of giving us this
Satisfaction. And what State be not diſturb'd by uncertain Titles, and by
grievous Commotions muſt ſhake the Coininonwealth Properties in conſtant doubt and fufpence. Though
if at fo vaſt a diſtance of Years, ſo many Contracts it's true, that by a Perſon's being denied to ſue for
we to be diſannulld (2), ſo inany Succe&fions to be Recovery, when he hath long neglected it, he ſuf-
declared void, fo many Poſſeſſors to be ejected? It fers ſome loſs or damage as a neceſſary conſequence.
was therefore judgʻd ſufficient to allow ſuch a ſpace, Beſides, To be excluded from fome Advantage,
as large as in realon could be deſired, during which lying open to thoſe only who are vigilant and indu-
the lawful Proprietors might recover their own. ftrious in their own Affairs, doth not come up ſtrict-
But if through Sloth and Neglect they ſuffer'd it to ly to the Nature of a Puniſhment. For we cetainly
flip (3); the Prætor might fairly reject their too uſe a Figure when we ſay,
“ That an idle Temper
late importunity. And though it might ſo happen “ is a fufficient revenge to it felf: Or, That 'tis
that now and then a particular (4) Perſon loſt his ad “Puniſhment enough to the flothful and unactive,
vantage of recovering his Goods, utterly againſt “ that being ſhut out from all Poſts of Honour, they
his Will, and without his Fault, only becauſe he are conſtrain’d to paſs their Days in Obſcurity
was unable to find out the Poffeffor; yet the Da Beſides, The Affertion is not true,
" That thoſe
mage and Inconvenience ariſing from that general “ who ſuffer their Goods to be with-held from them
Statute to ſome few private Men, is compenſated by by Preſcription, are really Offenders againſt the
the Benefit it affords to the Publick. But we ought “ Commonwealth. They indeed do maniteſtlý in-
well to obſerve, That before we can charge the An- jure the Publick, who either abuſe and ſquander a-
cient Proprietor with Careleſneſs and Sloth, we muſt way their Subſtance, or whilſt they fit brooding
ſuppoſe, That he had a convenient ſeaſon to exert over it, and are Proprietors only in Name, and let
his Diligence.
it grow uſeleſs for want of Application. But now a
Hence it is highly agreeable to Reaſon and Equi- thing that is gain’d by Preſcription, is however un-
ty, That the time during which a Country hath beender the care and manageinent of fome Perſon ; ſo
the Seat of War, ſhall not avail towards Preſcripti- as ſtill to be ſerviceable to the Occaſions of the Com-
on: As Honorius particularly decreed, “That no one munity. And 'tis altogether the ſame thing to the
“ fhould reckon towards the procuring of Prefcri- State, whether ſuch a piece of Ground, for Inſtance;
ption, that ſpace of time in which the Vandals be in the hands of this Man, or of that, provided
the Roman Ground (a).
it doth not lie quite neglected, without any one to
VI. But there's no neceſſity, that in order to af- cultivate and improve it!
ſert the Juſtice of Civil Governments, in eſtabliſh To theſe Reaſons we may add farther, That when
ing the Right of Preſcription, we Mhould have re- any private Perſon receives advantage from ano-
courſe ( with a certain Author (b) to that power of ther's Puniſhment, 'tis neceſſarily ſuppoſed, that he
executing Puniſhment on the Guilty, with which was before conſiderably hurt or endamaged by the
the chief Magiſtrate is inveſted. As if the Law de- Party offending. Whereas he who commenceth a
nied an Action to thoſe who for ſo long a time for- Proprietor, by the Right of Preſcription, can on no
bore to challenge their own, for this Reaſon only, account be ſaid to have ſuffer’d'harm from the Ne-
becauſe the Parties deſerve to be put into the Liſt of glect of the Party whom he thus ſucceeds. Nor doth
Criminals
, for ſuffering Preſcription to be pleaded a- he rightly apply to the preſent purpoſe thoſe Words
gainſt them; whilſt by thus neglecting their Proper- of 1. 31. of Book 16. t. 3.D. Depofiti, &c. Male me-
ty, they not only prejudice the common Good of the ritus publice, &c. " He that hath deferv'd ill of the
Society, but likewiſe Sin againſt their own Nature, “ Publick by embezilling what was deliver’d to
which hath in all Caſes an eſpecial regard to the “ him in charge, ought to be left to ſtruggle with
Publick Advantage: And that therefore as Solon or Poverty, that he may ſerve for an Example to de
dain’d a Penalty againſt thoſe who were idle and ter others from Wickedneſs.
negligent, ſo here the neglect of the Proprietor is Since then the Law concerning Preſcription is not
puniſh’d with the loſs of his Property.
a Penal Statute, 'tis idle to diſpute, Why the Nega


ſtaid upon
moveri non
nimis
Mr. Barbeyräc's NOTES on 6 5.
(t) See Lib. 5 ci Š Š 5 following at the end.
(2) It was a judicicus Reflection made by Aratus of Sicyon in Tully's Offices, l. 2. c. 23. Et quinquaginta annorum posseſiones
&quum putabat, propterea quod tam longo (patio multa hereditatibus, multa emptionibus, multa dotibus tenebantur fine
injuria. He did not think that Poffeffions of 50 Years ſhould be diſturbed, becauſe in ſo long a cime many things in Inheritances,
Purchaſes and Portions might be held without an Injury to any.
(3) The Roman Lawyers hold, That they who ſuffer their Goods to become ſubject to Preſcription, may be thought to alië-
nate them. Alienationis verbum ufucapionem continet. Vix eſt enim ut non videatur alienare, qui patitur uſucapi, Dig: 50. t. 16.
De verbor. Significat. leg. 38. in princip.
(4). The Ignorance of the ancient Owner hinders not the Preſcription. The Civil Law orders things ſo, that he that lofeth
the Poffeffion of his Goods, may claim them again, if he can diſcover in whoſe Hands they are, but ie doth not fuppoſe it a
thing abſolutely neceffary that he ſhould actually diſcover them. The Proof of that Condition, ſays the Emiperor" Juſtinian,
would run us into new Perplexities. Ut bono initio posledionem tenentis, & utriuſque partis domicilio requiſito, fit expedita queſtio pro
rebus ubicunque poſitis, NULLA SCIENTIA vel IGNORANTIA EXPECTANDA, ut altera dubitationis inextricabilis oriatur occaſio,
cod 1. 7. c. 33. de prafcript
. longi temporis , &c. leg
. 12. It is fufficient then in general to preſume that he against whom the Por
hiffor preſcribes has a competent knowledge, and it was upon the account of this preſumption, that the ſame Emperor took
Moveables, and two for immoveables. Sed & fi quis res alienas Italic is tamen, bona fide poſidebat per biennium, miſeri rerum Do-
mini excludebantur, & nullus eis ad eas refervabatur regreglusquæ &- nejcientibus Dominis procedebat, quo nihil inhumanius erat. si
Homo ABSENS L’NESCIENS TAM ANGUSTO TEMPORE SUIS CADEBAT POSSESSIONIBUS, "Ibid. t. 31. ne uſucap. tranſa
form. &c. leg. 1.
(4) Procop Hit, Vand... 1. I, C. 3
(6) Hugo de Roy, de eo quod juftum eſt, 1. 3. t. 3. 4.
* F f 2
ligence
228
Of Uſucapion or Preſcription.
Book IV.

66
man-
66
65
a
ligence of the Proprietor ſhould be rather punifhd contrary to the Law of Nations, is as follows : “ That
,
y the loſs of the neglected Goods, than by ſome according to the ſaid Law, no Man can conſtitute
Pecuniary Mul&t? Though it is very evident, that 6 another as the true Proprietor of a thing, unleſs
fuch a Mulet could not procure the true End of the
" he were himſelf ſo before : Whereas, by the Civil
Civil Conſtitutions in this Affair, which was, “ To Law, he who receives a thing from one who was not
cut off all thoſe Suits and Quarrels that would the Proprietor, may yet obtain the Property of it
“ for ever have been ſpringing up, and to enſure, himſelf, if he can preſcribe for it in the uſual
at leaſt, a quiet Enjoyment to long Poffeffors
, ner. To which De Roy (c) again replies, “ That
« whofe Cafe entitles them to inore than ordinary " in the Buſineſs of Preſcription, the Seller, or a.
" Favour.
ny other Non-proprietor conveys nothing more
For in the firſt place, the Matter muſt have been “ than the Title and honeſt Poſleflion; but that the
brought into Court by the Claim of the former Pro Property is wholly added either by the ſtanding
prietor, where the Cauſe would have been the more Law, or by the publick Magiſtrate, who even ac-
difficult and perplex’d, by reaſon of the things con cording to the Law of Nations is inveſted with
tinuing ſo long in other Hands; and then the pre juſt Power to inake new Ordinances, and to trans-
fent Poffeffor was to be ejected, whence a new Hard “ fer Properties from one Perſon to another, out of
fhip would ariſe. For if the Fine were to go to fair and reaſonable regard to the Publick Good;
the Magiſtrate, then the Poſſeſſor's Juſt Title, and " the Party who thus ſuffers for his own Neglect
,
honeſt Intentions were likely to ſtand him in 110 “ really conſenting to this conveyance of his Pro-
ſtead. Nor if the Poſleffor himſelf were to receive perty, or at leaſt being preſum'd to conſent
the Fine for a Comfort and Recompence, would all " by his long Silence.
the Doubts be hereby reſolv’d. Becauſe, ſhould the Some maintain Preſcription to proceed from Civil
Fine be leſs in value than what the Poffeffor loſeth and Poſitive Law, upon the ſtrength of this Argu-
by quitting his Hold, he muſt ſtill be, in part, a ment; that in caſe a Man hath not originally ob-
fufferer: But were it as much, or more, then the An- tain’d a Right on ſome other Bottom, the bare
cient Claimant would get little by his Suit. There- length of time can give none, as being deſtitute of
fore there cannot be, in the Point before us, a more all power to produce any Effect. For though every
ready way to Peace and Quietneſs, than to declare, Thing, ſay they, is done in time, yet time it ſelf can
that after the Terin of Years appointed for Prefcri- do thing.
ption, the Right of the foriner Owner ſhall ceaſe Now as to the Reaſon here propoſed, thus much in-
and be extinct.
deed is certain, “ That it depends wholly on the
VII. By what Law Preſcription was firſt ſet on “ determination of poſitive Law, why Preſcription
Foot, the Learned are not well agreed : Moſt aſcribe “ ſhould be rather compleated at the Tenth or
its Original to Civil or Poſitive Law, and oppoſe it Twentieth Year (for Inſtance) than at the Ninth,
to thoſe Methods of Acquiſition, which are com or at the Sixteenth : Yet no one can deny but
monly ſaid to proceed from the Law of Nations, that the conſent of all Nations, to which they were
Nay, Cujacius (a) goes ſo far as to affirm, " That moved by the Care of the common Peace, might be
Preſcription doth really contradict the Law of able to aſſign fomne Moral Efficacy to the Courſe of
Nations, in that it takes a Man's Property from Years; at leaſt fo far, as that in proceſs of time,
« him, without his Conſent: That it interferes like- fome certain Preſumptions and Favours on the ſide
« wiſe with Natural Equity, though only for the of Perſons in Poffeffion, ihould be granted to defend
“ fake of Publick Good; whilſt it endamageth Pri- and confirm their Right, though attributed to other
vate Owners, but turns to the Benefit and Ad- Cauſes than the bare time it ſelf. For though pure
vantage of the Conmunity. To which De Roy Natural Reaſon, and the Agreement of all the
6 anſwers (b), That each particular Proprietor in World, do not fix any one point of time as the ne-
ſubjecting himſelf to thoſe Laws which eſtabliſh ceſſary Condition of obtaining a future Right, yet
Preſcription (1), doth at leaſt implicitly conſent they might allow this effect to a ſpace of very coil-
to that tranſlation of his Right. Another Reaſon fiderable extent and latitude.
urg’d by Cujacius, to prove this Eftabliſhment to be
Mr. Barbeyrac's NOTES on S 7.
(1) This is a very good Reaſon. For the Laws may limit the Right of Property many ways, and make them paſs from one
to another without the expreſs Conſent; nay, ſometimes againſt the will of the anciene Proprietor. So that tho' Preſcription
had no Foundation beſides Natural Right, yer 'tis not unjuſt, that the Laws give it an Authority among Members of the ſame
Kingdom. For, as I ſhall fhew hereaiter, 'tis ſo far from being contrary to Natural Equity, that it is very conformable to it,
and anſwers the End and Deſign of Property it ſelf
. Upon the whole, a good deſign is neceflary to preſcribe with a good Con-
ſcience, as I have ſaid $ 3. n. 5. whether the Civil Laws require it or no. I alſo ſuppoſe that Preſcription is fixed at a time long
enough, as we ordinarily reckon it. For in my Judgment an honeft Man could lets help himſelf among the Romans, when the
Preſcription for Moveable Goods was made in one Year, and Immoveable in two, in which the Emperor Juſtinian did acknow-
ledge there was ſome Injuſtice, as I have ſhewed above, 85. n. 4. Upon this ground Preſcription is not an odious Right, noe
contormable to Natural Right, although mr. Placette lays "tis, and in his Treatiſe of Reſtitution, 1. 5. c. 6 compares it to an una
Right, and that the Jubilee always reſtored the ancient Proprietors to the Poffeffion of their Goods, though voluntarily alienated.
forbad the perpetual Alienation of their Immoveable Eſtates (and not of their Goods in general, as Mr. La Placette exprefiles
it.) See 1. 5. c. 5. $ 4. following. In fine there is nothing in the Law of Moses that condemns Preſcription as an unjufl Efia
Lands is odious, and not conformable to Natural light. The other Exaniple which this Author adds, is nor berter apply.d.
Although the Jebarites had maintain’d themſelves feveral Years in the poffeffion of the City Ferufalem, after God had given the
quence can fairly be deducted, and Mr. La Placette ought to remember that when the Ammonites claimed certain Lands, which
they affirmed to be theirs, feptha oppoſed them with this argument, 'That the Ifraelites
had enjoyed the peaceable poffeſion
of them 300 Years, which was enough to ſecure the Property to them. See Judzes 11. 25.
(a) Add Leg. 1. Dig. de ufucap.
(6) Dict. loc.
() Lib, 3 t. 46.8.

Others

CHAP. XII.
229
Of ufucapion or Freſcription.
૮૮
66
CC
" the future (e).
6. Perſon who thus knows the Matter, and hath his
Others have choſe to expreſs themſelves doubtful “ther by Words, or by any expreſs Deed, or Overt
ly and timorouſly in the matter; being ſenſible of Act, but in which we prefume his Inclination to
the vaſt Advantage which the Law for Preſcription " leave them, from his neglecting to enquire after
brings to the Publick; they thought it probable, them, and to challenge them again. For even
that from the very Nature of the thing, and its an Non-performances or Oiniffions, confider'd with
tecedency to any poſitive Ordinance, Preſcription is
" their due Circumſtances, do, in Moral Account,
of Force to transfer Property; ſince Natural Reaſon paſs for actual Deeds, and may prejudice the
in the ſtricteſt manner commands the doing of thoſe Non-performer. (d) But before we can preſume
things which conduce to the common Benefit and upon a Man's Intention from ſuch an Ömiffion
Peace. But then they qualifie this Affertion, by " 'tis neceſſary that the Omiſſion did not ariſe from
adding,
“ That though the Light of Reaſon ſug pure Inculpable Ignorance. Wherefore thoſe who
geſts that the thing is highly fitting, and that 'tis are in Polleflion of other Men's Goods, do then
expedient it ſhould be enacted by a poſitive Con only gain the Property of them by the Tacit.
“ ftitution, yet 'tis not altogether fo neceſſary, as “ Content of the former Owner, when he knows
to be immediately eſtabliſh'd by the meer Law " them to be thus pofſefs’d, and yet forbears to chal-
46 of Nature,
lenge them upon a convenient Opportunity. Fot
Again, Many do not ſtick to acknowledge, that " there can no other Reaſon be allign’d, why a
Preſcription is not repugnant to the Law of Nature;
that it carries Natural Equity along with it, that "free choice to determine accordingly, ſhould yet
it is grounded on the faireſt Right, and, as it were, " be utterly negligent and ſilent in it, but thisz
on the Law of Nature; yet they decline to aſſert in " that he hath no longer any care or concern for
plain Termis, “ That 'tis a direct Command of the " the thing detain’d, nor will reckon it his own for
fame Law (a).
VIII. Grotius (b) undertaking to ſhew that Pre “ Farther, As to the raiſing this Preſumption of
ſcription doth truly belong to the Law of Nature, a Man's voluntary Neglect to demand his Pro-
and conſequently, that it may be pleaded as a fair perty, length of time affords a very ſtrong Con-
Title amongſt thoſe who are wholly governd by the jecture: For 'tis hardly poiſible, but that in a
ſaid Law, in relation to each other, lays the Foun “ courſe of many Years, we ſhould gain Intelli-
dation of it in the Tacit Dereliction of the former gence that our Goods are in other Hands, and
Proprietor : For the proof of which (1), he ſuppoſeth “ have Opportunity of recovering them, or at leaſt
before-hand, " That Nature allows every Man to “of interrupting the Poffeffor’s T'itle, by declaring
renounce and abdicate his Right when he thinks
" and proteſting againſt it.
fit to hold it no longer. Now that this deſire of Again, If we were at firſt hindred from putting
" abdicating ſhould be able to produce any Effect in our Claim through Fear, this Fear too will in
“ in relation to others, 'tis neceflàry that it diſcover “ tine vaniſh, and we ſhall be likewiſe able to
“ it ſelf by ſome certain Tokens; it being incon provide ſo well for our own Security, as to be in
gruous to humane Nature to derive any outward no langer of ſuffering from the unjuſt Detainer.
Efficacy from the bare Internal Acts of the Mind. As to the Objection (2), That no one can eaſily be
« Theſe Tokens are either Words or Deeds. If the preſum'd to throw away his own;
6. "Tis anſwer'd
“Will be expreſs’d by Words, then there's no need by affirming on the other Hand, that no one can
" of waiting for the Term of Preſcription, ſince be thought willing, that a thing which for fo vaft
the Right is immediately transferr'd on the o a while he hath not at all regarded, nor given
"ther Party. And it is the ſame when a Man de any one Indication of Care about it, ſhould any
" clares his reſolution concerning a thing by ſome more appertain to him.
poſitive Deed; as ſuppoſe, if he either caſt it Though all this be very plauſibly alledgʻd, yet
" from hiin, or abandon it; unleſs the Circum- 'tis certain that a long continued Silence doth not
ſtances be ſuch, as that we ought to conclude that always give us ſufficient Ground to ſuppoſe a Tacit
he either rejected, or reliquiſh'd it only for a Dereli&tion.
For, as it may happen that a Man,
time, with intention to demand and reſume it a- for the longeſt ſpace we can fix, might either have
gain hereafter (c). Thus if the Right Owner of been ignorant of his Right, or hindred from aſſert-
a thing ſhall knowingly deal and bargain about ing it through want of Power and Apprehenſion of
the
ſame thing with another who hath the actual Danger ; (f) fo again, if he claims his Goods, tho’
poſſeſſion of it, he ſhall juſtly be deemed to have after never ſo long a Seafon, 'tis manifeſt that he
given up his own Right, ſo that it ſhall fall and did not before abſolutely abandon and give them
be extinct upon the very Moment of compleating over. And conſequently this Foundation for Pre-
any ſuch Bargain or Tranſaction. Preſcription ſcription will not be ſuch, as ſhall hold univerſal-
therefore can take place in thoſe things alone ly, or extend to all Caſes.
which the former Owner hath not renounc'd ei-


C6
Mr. Barbeyrac's NOTES on § 8.
(1) We may conſult Mr. Wherthuf's Diſcourſe already quoted, viz. Vindicia Grotiani Dogmatis de preſcript. inter gentes liberas;
19, loc. where he makes a kind of Cominent upon that place of Grotius.
(2) Grotius comes at length to the Concluſion, and having anſwerd directly in oppoſing the Reaſon which our Author hini,
Telf confutes afterward, he infers, that we ought to ſuppoſe every Man honeſt till the contrary appears.
(a) Add Grot, do 2 c. 4 . 9. Becler. & Ziegler
. ad dict. loc. f.1. (6) Lib. 2 c.4 f. 3, &c. (c) Add Lib. 41 t. 1 l. 9 Sect. ult
D de A.R.D. 1.8. Lib. 14 7. 2 ad L. Rhod. 1. 8 Lib. 47 t. 2 leg. 43 f. 11 D. de furtis, 1. 2 t. 14 l. 2 1. 1 D. de pa&is.
(d) Vid. Numb. 30. 5.12. D. 1.22 7. I l. 178. 1. de Uſuris, &c. Lib. 41 t. 1 leg. 44 D. de A. R.D.
(e) Add Bæcler. ad Grot. d. 1, Sect. 5 & Ziegler. ad l. d. (1) Vid. Can. 13, 14. Camp. 16. quæft. 3, in Gratian.
230
Of Uſucapion or Preſcription.
Book IV.

03
As to that other Reaſon offer’d by Grotius (3), to tle. But the particular ſpace of time within which
prove that a Dereli&tion may be prefum'd from long ſuch an Innocent Poffeffion grows up to the force
Silence, " Becauſe we muſt not believe that Men and ſtrength of Property, we do not find preciſely
are ſo uncharitably diſpos’d towards each other, determiiled, either by Natural Reaſon, or the uni
as that they would ſuffer any perſon to continue verfal Conſent of Nations; but it is to be adjudgd
“ in a perpetual courſe of Sin, for the ſake of a by the Opinion of good and true Men upon the
periſhable Enjoyment; this doth not at all affect Cafe
, not without ſome conſiderable degree of Lati-
the preſent Queſtion. For, beſides that it ſeems a tude. Yet ſo as that this Latitude ſhall not be cavill'a
little too ſimple to flatter our ſelves with ſo large and pick'd at, with the like Sophiſtry as Horace
Promiſes of Men's Conſcience and Piety; (a) he that hath uſed on another Occaſion:
comes to a Poffeffion by honeſt Means, and with In-
nocency of Intention, (and him only we have pro-
Scire velim chartis pretium quotus arroget annus :
nounc'd capable of commencing Proprietor by Pre - Scriptor ab hinc annos centum qui decidit, inter
Scription,) is really in no Sin; becauſe the manner Perfectos vetereſq; referri debet, an inter
of his obtaining the Poffeffion fully perſwades him, Viles atque novos ? excludat jurgia finis.
that he obtain’d the Property together with it. And Eft vetus atq; probus centum qui perficit annos. 10
it doth not appear that any Man's oblig'd volunta Quid, qui deperiit minor uno menfe vel anno,
rily to call in queſtion his own Right, eſtabliſhed Inter quos referendus erit ? vetereſne poetas,
upon a Lawful and probable Title. But if the de An quos & præſens & poſtera reſpuet atas?
lidt
taining of another's Goods after this manner, were Iſte quidem veteres inter ponetur honeſte,
indeed, in it ſelf Sinſul, the Guilt were to be taken Qui vel menſe brevi, vel toto eſt junior anno. 110
off, not by the Silence of the Owner, but by his Utor permillo, caudaq; pilos ut equine
expreſs Confellion, and the Renunciation of his Paulatim vello, S demo unum, demo etiam unum, &c.
Right, did he reſolve to give full Relief and Satis-
Epiſt. 1. L. 2. v. 35, &c.
faction to the Conſcience of the Poffeflor. But in
this Caſe, the Poſſeſſor's Right would not be uwing I'd know what Years an Author's Ripe for Fame;
to Preſcription, but to the folemn Act of the former Suppoſe a Century gone; where ſhall his Name
Proprietor.
Be fix'd? ith’Ancient Roll of finiſh'd Wit,
IX. Amongſt theſe different Opinions, this ſeems Or the Vile Modern? let the Bounds be fet.
to be clear and evident, That as the Propriety of He's old and ſtanch at a full Century's Date.
things was introduced out of a regard to the Common What if he dropt a Month, a Year too late; - koled
Peace, ſo it flows as a Conſequence from the ſame with the old Heroes ſhall he ſhare the Prize,
Principle, that they who have been 'let in to the Or ſink with thoſe our Children ſhall deſpiſe
, **
Poffefſion of any thing upon a fair and honeſt Pre- Upon their Father's Judgment? We'll prejume
ſumption, ſhould at length be ſecured in the Enjoy. Him of full Age who comes ſo near the Sum.
inent of it; and that others ſhould not be allowed I'll hold you to't, 'till by degrees I clear
to raiſe perpetual Suits and Quarrels about their Ti- The Horſe’s Tail, and pick it Hair by Hair.
(3) In truth the Silence of the Proprietor proceeds commonly from theſe things only, viz. either he knows nor who hath his
Goods, or he is ignorant of his own Right to them, or he hath ſome Reafon, more or leſs ſtrong, why he doth not put in his
Claim. So that we can't lay it down for a Principle in general, that there is a racit forſaking of Goods properly ſo called. 'Tis
almoſt always againſt ones will that he is deprived of his Poffeffions, and if the Civil Laws ſuppoſe the Voluntary Negligence of
the Ancient Owner, they ſuppoſe no leſs the Poſſibility, which I have obſerved above, s s. n. 4. Men are not commonly ſo
careleſs as not to know their Intereſts, nor if they appear, to maintain them, eſpecially when the thing they are about is any
thing conſiderable. And the Preſcription is made moſt commonly not againſt the Proprietor of the thing himſelf, but againſt
his Heirs, who are ſubject to be ignorant of their Right, or are unable to preſerve it by a ſimple Conteſt, which has place at
leaſt in a Preſcription of time immemorial. we muſt find out ſome other Principle which ſuppoſes rather the Sentiments that
the ancient Owner ought to be of, than what he really is. And this in my opinion will not be hard to find, if we arrend to the
nature and deſign of Property it ſelf. I ſay then, that the natural uſe and effect of the ſettling of Property of Goods is not to
aflure every one of a Perpetual Right of whár once belonged to him for ſo long a time as he ſhall be difpoffeiled againſt his Will
,
In reality the Duration of the Right of Property depends not abſolutely on the Right of Poffeffion, as I have ſhewed above, c. 6
S 1. n. 1. This would reduce Right to nothing, and deſtroy the End for which it was establiſh’d. But yet it is not leſs contrary
to that End, that the long Poffeffion of another ſhould deſtroy his Claim, who has not voluntarily renounced his Right to ſuch
Goods as are not in his power. All our Goods which we enjoy are of char nature, that a thouſand Accidents can deprive us of
them againſt our Will, and make them paſs innocently into anothers hands. They are deſigned to maintain Commerce in the
World, and ſo to remain no longer in the Patrimony or Family of the Proprietor, to whom they are often of little uſe in them.
ſelves, than he can part with them for ſomething he wants. Moreover, if the End of Property requires that the Proprietors
ſhould enjoy what they have peaceably, and not be in danger of loſing their Right from the moment that they are in poffeffion
of a thing, it is no leſs requiſite, in my Judgment, that he who believes, and has reaſon to believe himſelf the lawful Proprietor,
ſhould never be ſubject to be deprived of what he has honeſtly gor, and to which he has a juſt Title. It may
be
and no Man can be certain that there is no ſecret fault in the Acquiſition he is pofſeffed of. Beſides, in things of a Moral Na-
ture we muſt judge according to appearance, and according to the common Proverb, Not to be, and, Not to appear, are all one.
So that when a Putative Property, if I may ſo ſpeak, produces the ſame effect as a more real and more inconteſtable one, becauſe
the Right of the true Owner does not appear, theſe two ſorts of Property may well paſs for one and the fame in time, and the
Right of the Pucative Proprietor may quite exclude the Claim of him who might receive one. This is the more juſt, becauſe the
contrary would produce a thouſand Troubles in Society; and the more honeſt the Poffeffors are, through whole hands the things
have paſs’d ſucceſſively, the greater Right will the laſt poffeffor be thought to have, how ſmall a time foever the others may
have kept it. From whence i conclude, that the ancient Owner, and much more his Heirs, ought at the end of ſuch a confi-
derable time to renounce freely all their Pretenſions, and that if they do nor
, the Right of the honeſt Poffeffor is not a whit the
leſs well founded. There is nothing to be perceived, as we ſuppoſe it, neither in the Nature of the thing it felf, nor in the
Quality of the Perſon of whom he held it
, that can give him occafion to ſuſpect thac there is any defect in his Title, and Pris
not his fault, if he co whom it appertains, without knowing it, has nor diſcover’d, or not been earneft in ſearching into it. Ina
word, it is a great Misfortune for the ancient Proprietor, for which he has reaſon to comfort himſelf : and if the Poffeffor be-
comes afterward the true Owner, he is ſometime obliged to reſtore the thing, nor by the Rigour and Rule of Juſtice properly.fo
called, but by a free Motion of ſome of thoſe Verrues that require us to releate his Right, as if a rich Man can preſcribe againſt
a poor Man, or one in mean Circumstances, &c.
(a) Add Zieg'er ad Grot. loc. citat. Sect. 8.
every one's Cafe,

But

CHAP. XII.
231
Of Uſucapion or Preſcription.
ܕܘܫܕ܂
IL
܂ ܘܝ
latter, leſt he ſhould undeſervedly ſuffer Damage, ligence would have enquired after his own, ſhould
de ſuis do legitim. hæred. do lib. 50 f. 101. 231. D. de verb. fignif.
But in fixing the particular Period, a regard ſhall greed upon by general Conſent, for the ſake of the
be had both to the Ancient Owner, and to the new publick Peace, that he who poſſeſſed a thing in his
Pofleffor. To the former, left he ſhould be too foon own Name, neither by violent Detention, nor by
excluded from the Privilege of following and find fraudulent Concealment, nor by a precarious Title
,
ing out what he hath loft. In which point Natural hould be prefund the true Proprietor of it, till
Equity requires that Preſcription fhould not be com- any one was able to prove the contrary : And that
pleated in fo little time between abſent Parties
, as he who had held a thing honeſtly obtain'd, a very
between thoſe who are both on the Spot. To the long Seaſon, during which any Man of ordinary Di-
when 'tis too late for him to gain Redreſs by con- defend his Hold againſt the Tardy Claimant, who fo
victing the firſt Injurious Detainer (2), from long negle&ted to make his Challenge.
whom the thing was honeſtly receiv’d; or when X. Upon theſe Principles, and it we place the
the thing is fo riveted to his Fortunes and Eſtates, Reaſon of Preſcription not barely in the Dereliction
as to make the chief Bottom upon which they de- of the former Owner, we may with the more eaſe
pend. Hence, inaſinuch as Movable things paſs in reſolve this very intricate Queſtion,
Cominerce to others more frequently than Immo or no, or after what manner, Children not coine
vables, ſo that having gone through ſo many Hands,“ into the World, can loſe their Right by the Tacit
'tis more difficult to find out the Perſon by whom “ Dereliction of their Parents and Anceſtors? Which
they were firſt convey'd, 'tis but reaſonable to al- we may underſtand two ways, either of ſuch Pre-
low a longer ſpace for the recovering the former fcription as was compleated before Children were
than the latter, eſpecially, ſince thoſe likewiſe do Born, or of ſuch as only commenced in their Fa-
much fooner ſuffer and decay by Uſe than theſe : ther's Time, and was coinpleated at his
Death. In
For it would little avail the former Proprietor, to the former Senſe, if we take the Negative ſide, we
receive his Goods when impair'd and waſted, and are encounter'd with this Difficulty, that Preſcri-
render'd unfit for his Service. And tho' a Man at ption thus underſtood, will not in the leaſt contri-
his firſt gaining ſuch a thing of anothers, may have bute to the Peace of Empires and Dominions; moſt
made a very advantageous Bargain, or though his Goods being in their Nature capable of deſcending
Tit'e coſt him little, yet it ſeems hard, and an ob- by Inheritance to Poſterity; and therefore 'twould
vious matter of Complaint, that any one ſhould be be in vain for the Preſcriber to overthrow the Claim
forc’d to part with a thing that hath now a long of the Father, if the Son might afterwards renew
time grown, as it were, into his Patrimony and In- the Suit. But if we incline to the Affirmative Part,
heritance: And the rather, becauſe on the other it will ſeem ſtrange how Silence or Negligence ſhould
hand, we have reaſon to believe, that he who hath prejudice thoſe who were unable to prefer an Aktia
contentedly wanted a thing during a great part of on, or ſo much as to ſpeak a word, and indeed, who
his Life, within which he hath been able to make were not yet in Being, or how the Default of one
fufficient Proviſion for himſelf by other means, Perſon ſhould thus turn to the Damage of another.
will not think it an Injury or Hardſhip that he be Which doubt Grotius (a) hath taken off by the fol-
oblig'd to want it for ever. To which may be ap- lowing Remark: That a thing not yet exiſtent
ply'd that of Tully, Off. 2. C. 22. Where's the Equity, can have no Accidents, fo a Perſon who is as yet
that an Eſtate poſeſs'd many Tears before, ſhould be 110 part of Nature, can have no Right, and con-
got by him that had it not, and be loft by him that bad ſequently nothing can be ſaid to be taken fröin
it (3)? See the Story of Aratus the Sicyonian, in the " him (b). By him, who is as yet no part of Na.
next Chapter. So that upon taking in all theſe Con ture, we mean him who is not conceiv’d, not he
fiderations, it will be no difficult Task for a fair “ who is conceiv’d, but not Born: Becauſe the lat-
and honeſt Arbitrator to find out ſuch a Term for« ter in many inſtances of Right (1), is already
Preſcription in particular Caſes, as ſhall be agreea fuppos’d to be a Member of humane Society (c).
ble to Natural Equity. Though 'tis the better way It may be added in Confirmation of this Judgment,
in Civil States, that all the points of Controverſie That the Goods of Parents do only then begin to
may be brought within a narrow Compaſs, to fix in belong to their Children, when the Parents them-
general fome certain and neceffary Bounds at which ſelves
hold and enjoy them till the very tine at
Preſcription ſhall commence Valid, according to the which the Children ought to inherit them. Which
Nature of the Subject. We are therefore altogether Rule may be thus extended to a larger Compaſs:
of Opinion, that Preſcription as it abſtracts from He that is not yet in Being can acquire no Right,
the Points of time eſtabliih'd by Civil Ordinances, unleſs by the Intervention of another already in be-
it
were, the Corollary, or Appendix of Pro- ing, from whoin the Right ſhall be deriv'd to him
perty. And by conſequence, that when the Pro- upon his coming into the World, yet ſo as that it
perty was firſt introduc'd (4), it was likewiſe a. ſhall obtain no Effect in Relation to hiin, till after
Mr. Barbeyrac's NOTES on S. 9.
(2) The Original in all the Editions of it, has it per Evi&tionem. This is an Inadvertency of our Author, who doubtleſs meatic
per Evi&tionis preſtationem.
(3), The Latin of Cicero is, Quam autem habet æquitatem ut agrum multis annis aut etiam Saculis ante poffesjum, qui nullum has
buit
, habeat, qui autem habuit amittat.
(4) There needs no Agreement to be ſuppoſed. See what is ſaid upon the former Paragraph, Note 3. The Author argues
upon the falfe Notion he has formed to himſelf of the Original of Property, which we have contured in its place.
Mr. Barbeyrac’s NOTES on $ 10.
(1) See !. I, C. 1. 8 7. n. 4. above.
(6) M. Senec. Controver. I. I c. 6 p.93 towards the End, Edit. Gronov. Before we obtain'd any
Anual Exiffence, Nature bath the whole Government of us, and casts' us into what Fortune the pleaſeth. Our true Rate and Value then
commenceth, when we are at our own Diſpoſal.
(c) Vid. lib. 37 t. 91. 7 prins. D. de ventre in poßeff
. mittend. & lib, 38 t. 161.7 D.
he
66
is, as
(a) Lib. 2 c. 41.10 1. 2.

232
Of Uſucapion or Preſcription.
Book IV
cs
ſelf; or if, by any change whatfoever it ceaſe to be for the other Party. Nor, doth it ſeein fo very
he is actually Born. And this happens when any ption heretofore begun, ſtops during the Years
thing is acquir’d or deliver'd to another, to be held
“ of Minority (4),and upon their Expiration runs on
in ſuch a manner as that he ſhall be able to tranſ effectually again. Yet I am of Opinion, there
mit it to his Succeffors. Yet here there is an obſer- may be a Caſe, in which the Favour of Poſtellion
vable difference ; for ſome things are fo conferr'd ſhall over-balance the Favour of Minority: As for
on another, as that the intereſt of the Giver is not Inſtance, ſuppoſe it ihould fo happen, that when I
at all affected, whether the thing deſcend to the want only a Month or Two of compleating my Pre-
Heir, or not, though ſo far as he is concern’d, he ſcription, and it is Morally certain that the Anci-
grants the Receiver free leave thus to tranſmit it. ent Proprietor will not within that ſpace give me
But other things are conferr'd after ſuch a ſort, as any trouble about the Title, and if he ſhould then de
that the Donor retains a Right over the manner of ceaſe, leaving an Infant Heir, it would be unrea
.
holding, which he himſelf appointed, ſo that it can- fonably hard, if after five and twenty Years Pol-
not be altered without his Conſent. Now which ſeilion, I ſhould be thruſt out of my hold for want
ſoever of theſe ways we ſuppoſe a thing poſſeſſed by of thoſe two Months: Eſpecially, if it be now im-
any Man, with the power of tranſmitting it to his pollible for me to recover Damages of him from
unborn Poſterity, if it happen by any means to be whom I received what is thus challenged ; as
intercepted or alienated before the Birth of the Heir, might have done, had the diſpute been ſtarted be-
he is not in the leaſt injured thereby ; unleſs the fore the Goods devolv'd upon the Minor. Here
Title or Pretenſion to it (if not the thing it felf) certainly, if the Buſineſs be referr’d to the Arbitra-
were expreſly left him in the manner of an Inheri- tion of an honeſt Man, and one who knows that
tance. For in the former Cafe, ſince both the thing the Grounds and Reaſons of Preſcription are not to
holden, and the way of holding it are fully in the be drawn barely from the Neglect of the former
Poffeffor's Diſpoſal, if he convey it away from him- Owner, he will give Judgment for me rather than
his, all the Right he had
to it is immediately extin- grievous, that a Right which under the Father
guiſhed; and conſequently cannot be derived upon as we may fay, at its laſt Gaſp, ſhould utterly ex-
his Heir
as yet unborn, who can claim no Right to pire under the Minor Son: And eſpecially, becauſe
Goods of this Nature held by his Anceſtors (2), but Men eſteem it a much greater Hardſhip to let go a
what they deliver to him,as it were from hand to hand, thing which they have held a conſiderable time,
after he is actually in Being. But in the latter Caſe
, than to be debarr'd of what is not yet come to their
inaſmuch as the prime Donor ſtill reſerved to him- Hands.
ſelf a power over the Tenure (3), if his Conſent be XI. Froin hence it appears, that they too (1), who
obtained, the Poffeffor doth not at all damnifie thoſe are ſubject to no Cominon Law beſides that of Na-
that come after him, ſhould he either alienate the ture and of Nations, may alledge againſt each others
thing or give it over for loſt by whatever Accident Claim, a long, uninterrupted, and honeſtly obtain-
it was convey'd from him. Though all this be true, ed Poffeffion : And ſo much the rather, as publick
yet Pififtratus was of another Opinion; as appears Poſſeſſions cannot be diſturbed without far greater
from his Epiſtle to Solon, where he gives the follow- Confuſion and Danger than Private. Though it
ing Reaſon amongſt others for his ſeizing on the Go- muſt be confeſſed, that in Controverſies between
vernment ; I have not uſurped what belong’d Princes and States, it is frequently not altogether fo
to others; I only claim that by my own juſt Neceſſary to appeal to Preſcription, ſince the Right
" Right and Title, which the Athenians, having of the Poffeffor(2) may, or at leaſt ſhould be deduc'd
« firſt confirmed by Oath to Codrus and his Fami- more folidly from other Foundations. And Bæcler
6c ly, afterwards took away (a).
(b) hath obſerv'd before us,
6
That thoſe who in
The Queſtion taken in the latter of the two Sen " this Buſineſs of Preſcription, mention only the
ſes which we obſerved it to be capable of, is deni " Point of Time, often intend to ſum up their whole
ed by the Civilians; for they ſay,
6 That Preſcri “ Claim in this ſhort Expreſſion: Under which are
was,
(2) The Words of the Roman Law are, Item Labeo fcribit etiam eum, qui poſt mortem patris ſenatoris natus fit quaſi (enatoris filie
um esse. Sed non proprie ſenatoris filius dicetur is, cujus pater ſenatu motus eſt, antequam iſte naſceretur. Si quis conceptus,
quidem fit, antequam pater ejus ſenatu moveatur, natus autem poſt patris amiſ am dignitatem, magis eſt, ut quaſi ſenatoris filius intel-
ligatur, tempus enim conceptionis fpe&tandum pleriſque placuit, (i. e) An Infant that is born after the Death of his father, who was a
Senator, ſhall be eſteemed a Senator's Son, if his father kepe his Dignity to his Death; but he ſhall not be eſteemed a Senator's
Son, it his Father were removed from the Senate before he was born ; but if he were conceived before his Father's Degradation
but not born, he Mall be accounted as it were a Senator's Son in regard to his Conception.
(3) See l. 8. c. 5. $ 9. following.
(4) The Words of the
Civilians are, Non eſt incognitum id temporis quod in minore ætate tranſmiſſum est, longi temporis præſcripti
.
oni non imputari. Ea enim tunc currere incipit, quando ad majorem ætatem Dominus rei pervenerit, Cod. 1. 7.0.35. Quibus non objicie
tur longi temporis præſcriptio, leg. 3.
Mr. Barbeyrac's NOTES on S 11.
(1) The famous Father Du puy, Counſellor and Library. Keeper to the King of France, maintains the contrary, in a Diſcourſe,
entitled, Whether a Preſcription is of force among Sovereign Princes? It is found in a Collection of ſeveral Treatiſes touching
the Rights of Chriſtian Kings, printed at Paris in 1655. and ar Roan in 1670, but Mr. Wherthof Profeffor at Helmſtadt, has con.
fured it fully in his Vindicia Grotiani Dogmatis de preſcriptione inter gentes liberas contra illuſtrem ſcriptorem Gallicum Petrum Puteau
This work, quored before, is worth the reading, though atter what I have ſaid in my Notes, as well as this Author in
the Text, 'cis eafie to ſee on which ſide the Truth lies. I ſhall only obſerve, that Mr. Whert hof requires that he would explain
by
what Right the Crown of
France has paſs’d to the Carlovingians by the means of Pepin, and to the Capetians by Hugh Capet, if it
be true, according to the Principle of that French Author, That the Succeffors of an Ufurper can never acquire a lawful Right of
force againſt the Pofterity of the King unjuſtly dethroned.
(2) But it is true alſo, that moſt times the other Titles are not ſufficient, becauſe in paffing from one Poffeffor to another,
and by different Titles, 'we Thall find at laſt ſome of them diſhoneſt and faulty, which will deſtroy and render uſeleſs all that des
pend on it, how good ſoever they be in themſelves, if the length of time which has paſſed ever tince, will not purge the foulaeſs
of the Original.
(a) Diogen. Laert. in Sola??. 1. 1.1.53. (b) Add Groß, dict. loc. Sect. 2.
.num.
likewiſe

CHAP. XII.
233
Of Uſucapion òr Preſcription.
or
« likewiſe to be underſtood the Adjuncis of Time, indeed in Cauſes of this Nature, 'tis always a fair
" as the quitting the thing which is now the inat- Prefumption in favour of the Popelor's Right, that
« ter of Diſpute, or the Intention of quitting it, during
ſo long a ſpace, no Perſon elle hath put in his
< or any Tokens of renouncing the Right and Title. Pretenſions. For theſe Matters are uſually of ſo ve-
« And ſince the Plea of Time is in the main plauſi- ry great Importance, and are tranſacted to openly
ble, eſpecially with Vulgar Hearers, ( as if it and in broad Day, that if a Third Party hath any
gave an Advantage to other Proofs,) it is a po- Right in the Caſe, he can neither be long ignorant
« litick Stratagem to urge this Notion in general, of it, nor want occaſion of preſerving it, at leaſt by
s and in grofs, willfully avoiding all Explications declaring and proteſting againſt the Ufurper,
Additions which might be able to give ſtrength Therefore tliere can happen very few Caſes, in
" to ſuch a thing as Time, which of it ſelf can which Dominion and Sovereignty ſhall not be the Con-
produce no Effect; and inſtead of them, to heap ſequences of Preſcription, when a State or People
ир
Inſtances and Examples of former Diſputes, have poſſeſs’d themſelves of any thing upon a Peace-
« that the Diſcourſe may ſeem more full, and may ful Title. And as for what they gain in War, it is
carry a fairer Colour as to the main Point. hardly neceſſary to plead Preſcription on that Ac-
Tacitus (a) calls it by no better Name than Vani- count. For ſo long as the Hoſtility continues, the
loquentia, Impertinence or Idle Talk in Artabanus, poſſeſſion of all that hath been won from the Ene-
when he laid claim to the Ancient Bounds of the my, is ſupported only by Force and Violence; and
Perſian and Macedonian Empires:
at the fame tiine the Enemy hath a Right of reco-
Sapores, as Ammianus Marcellinus (b) informs us, vering his Loſſes by any means he can uſe: Efpe-
renewed the ſame Claim many Ages after ; to whom cially, if, having given any unjuſt occaſion of the
Conftantius gave this Anſwer in his own way; Quarrel, he is ready to make Satisfaction. Hence,
« That 'twas ſtrange he ihould forget how the Per- inaſmuch as a War may be protracted for more than
“ fians were enſlaved by the Macedonians ; the latter Fifty Years, they who loſt any Place at the firſt
" of which Nations which being ſubdued by the breaking out of the Difference, may regain it by.
“ Roman Power, their Bonds-men could not but fall Force at any time before the Buſineſs is adjuſted by
“ under the ſame Dominion (c).
a Peace.
Thus likewiſe, Solyman the Great Turk would of The Numidians, in Livy (e), pleading Preſcription
ten ſay,
“ That he had a Right to the City of againſt the Carthaginians for a Tract of Land,
Rome, and to all the Weſtern Empire, as being (which bore the Name of Emporia,) talk to this pur-
“ the lawful Succeſſor of Conſtantine, who had remov'd poſe; " That the Right was ſometimes held by the
the Imperial Seat to Byzantium. Yet in the moſt * State of Carthage, and ſometimes by the Kings of
Noble Examples upon Record, you will find, that " Numidia, as either had opportunity to ſeize upon
beſides the Argument of long continụed Poffeffion, it; and that the Poſſeffion was always in the
ſome Title or other capable of producing Sovereign- « Hands of thoſe who appear’d ſtrongeſt in the
ty, hath been at the ſame time alledg’d.
Thus Iſocrates (3), under the Perſon of Archida When a Peace is concluded, 'tis eaſie to ſee what
mus, having ſhown in the firſt place that the Lace- both ſides are to hold for the future; and then what
damonians became Maſters of Meſſene by the Title is yielded up by one Party, the other immediately
of a Juſt War; afterwards brings in the length of acquires with full Right, and hath no need to wait
Poffeffion, as a kind of Secondary and inferior Proof: for the Title of Preſcription. If any Third Perſon
“ Nor are you Ignorant, ſays he, that all the World lays claim to the ſame thing, he will be ſure to de-
agree, Poffeffions whether Publick or Private, clare his Pretenſions in good time; and if poſſible,
" ſhould after a long Period of Time, be fix'd and whilſt the Treaty is in agitation : For afterwards
confirm’d, and paſs as lawful Inheritance. To Warriors will not eaſily be prevail'd upon to reſtore
which he ſubjoins, that the Title of his Country to what they have won by the Sword, to thoſe who were
Meſlene, was not controverted heretofore, when a Idle Spectators of the Quarrel (f).
fair Opportunity was offer'd to that purpoſe (d). And
(3) Iſocrates's Words are, 'Andai Mir Sinetro Únes aénn. Derz ŐTT ta's x Záceis, xj tai's išias, rj ta's xoivas, šv émérntal mond's
χρονα, κυρίας, και πατρώας άπαντας είναι νομίζει.
(6) Lib. 17.c. 5. (c) In Zonaras, Tom. 3. ad ann. 354. See likewiſe Herodian, 1.6.c.6.
(d) Add Alberic. Gentil. de Jure Bellig l. 1. c. 22. (e) Lib. 34. c. ult. (f) Vid. Grot. l. 3. C. 6. Sect. 7.
• Field.
(a) Ann. 6 c. 31.
+ Gg
СНАР,

234
Book IV.
Of the Obligations which ariſe
CHA P. XIII.
of the Obligations which ariſe immediately from Property.
1. Every one is obliged to abaſtin from anothers X. But not them he has neglected to gather.
Goods.
XI. He is not obliged, who has given away, what
II. Others Goods kept by us are to be reſtored,
was given him, but with a diſtinction.
Which is proved.
XII. Nor if he has ſold what he bought with a difino
IV. And illuſtrated.
Etion alſo.
V. Contracts made about others Goods, are void, as XIII. Hum may he recover the Price, who has really
Soon as they are known.
Jold another Mans Goods.
VI. What is gained by anothers goods, muſt be re- XIV. Whether if a Man buys anothers Goods, be ought
fored.
to reſtore them to the Seller?
VII. An honeſt Polleſor is not bound to reſtore, if XV. He that has anothers Goods, and knows not the
the Goods are decayed, or loſt.
Owner, may keep them.
VIII. But he is bound to reſtore the preſent Fruits. XVI. Whether what's given for a bad Reaſon muſt be
And ſuch, as are ſpent, if he muſt have ſpent
reſtored.
others of the like Value.

IX.
Aving enquired into the Nature and Origine of
II. Farther, When the things of one Man come
which it is eſtabliſh’d, it follows that we conſider (where under the General Name of things we com-
thoſe Obligations, which upon the introducing of prehend likewiſe our Right over Perſons, ſo far as
Property affect Mankind, immediately (1) and on it may be profitable to us, as the Right of Maſters
their own account, without the Intervention of o over their Servants,) we are to conſider, whether the
ther Duties. Of theſe the firſt is, That every Man thing be ſtill remaining or not.
ſhall ſuffer another who is not engaged in Hoſtili As to things which remain, there ariſeth this Ob-
ty againſt him, to diſpoſe of his own Poſſeſſions, ligation concerning them ; That he who is in poſlef-
and likewiſe quietly to hold and enjoy them; nor fion of what belongs to us, ought to employ his ut-
ſhall either by Force or Fraud, impair, divert, or moſt ability towards putting it again under our Com-
draw them to himſelf. Whence it appears, that mand. Which obligation doth not exert its force
Theft (2), Rapine, removing of Boundaries, and the till ſuch time as the Party in Poſſeſſion comes to
like Crimes are forbidden by the bare Law of Na- know that the thing is ours.
ture. Euripides (a) ſpeaks excellently to this pur We add, That he employ his utmoſt Ability, or
poſe;
do as much as in him lies; for no one can be bound
to an Impoſſible Performance. Nor is he oblig’d
God hates the Violent, commanding all (3), to put himſelf to charges in making the Reſtitution;
To live on what their Honeſt Pains procure ; and whatever Expences he hath been at on any thing
And not to feed their Wants with Mutual Spoils. on that account, he may fairly demand of the Owner,
Oppreſſors ſhould be baniſhe'd humane Race, and may detain the thing till they are paid. But 'tis
Unworthy of the Name. One Common Heaven enough if he ſignifie, that another's Goods are in his
Gives Light and Air to Man; one Earth a Seat, Hands, (b) and that he will be no hindrance to the
A Scene of Induſtry, where all may ſtrive
Owner in the Recovery of them. And theſe Rules
To raiſe their Stock, and ſpread their Fortunes wide; are ſo true, that the Roman Laws forbid Men to
But not to rob, or force their Neighbour's ſtore. challenge their own when found by others, fine pa-


to other
Mr. Barbeyrac's NOTES on Chap. 13. § 1.
(1) The Duties which concern Property may alſo be conſidered with Relation to the Owner himſelf, who is obliged to
obſerve, according to the uſage of Right, all the Law of Nature. And ſo he'll do very ill to abuſe his Goods in any manner
,
which may redound to the contempt of the Deity, or prejudice of his Neighbour. On the contrary, he ought to make uſe of
them to the Glory of God well underſtood, and to the putting his Laws in practice ; and laſtly, to procure an advantage
Men, as well as to our ſelves. Titius Obferv. 313.
(2) The Roman Lawyers ſay poſitively, that Theft and Robbery are contrary to Natural Right. Furtum eſt contre&tatio rei
frauduloſa, lucri faciendi gratia vel ipſius rei, vel etiam uſus ejus, posſesſioniſue quod lege Naturali Prohibitum eſt admittere. Digeft.
Lib.47. Tit. 2 De furtis Leg. 1. $ 3. See alſo Lib. so. Tit. 16. De verb. fignif
. Leg. 42. Salmafius in his Treatiſe De vfuris,
c. 9. raiſes great difficulties about it, but in Mr. Hertius's Judgment not worth repeating.
(3) Euripides's Greek is, Μισε ο ο Θεώ την βίαν, κή τα δε
Και θαι κελεύει πάντας, εκ ές άρπαγας
'Edmonto the ris av
Κοινός γδ όξιν έρανός παι βe9τοίς
Και και, αν και χρή δώματ' αναπληρεμένες
Τ' αλλότρια μη χάν, μ' αφαιρείσθαι βία.
We have alſo two fine Fragments of Menander upon this subject, both of them recited by Clemens of Alexandria Stromat. 1,5-
p. 605, 606, and by Euſebius Præp. Evang. 1. 13. C. 13. and which are alſo found in Mr. Le Clerc's Collection lately publiſh'd.
They are the more remarkable, becauſe they confirm what I have proved at large, 1. 2. C. 4. & 3. Note 4 before going. For we
may ſee by the common Notions of the Heathens delivered in their Plays on the Theater, that to pleaſe the Gods, we muft not
cover other Mens Goods, nor debauch our Neighbours Daughter, or Wiſe, but be Kind,' Serviceable, Charitable, doc.
(a) Helen. v. 909, loc. (6) Vid. D. Lib. 10. 6. 4. I. 1. f. 3. De fugitiv. We ſpeak here all along of the Innocent and
well-meaning Poffeflor; for the Obligations which lic on the diſhoneſt poffeflor are open'd in another place. See the next Pardº
graph towards the End.
ftione,

CHAP. XIII.
immediately from Property.
235
time,
Etiove, without ſome Bargain in order to give the into another Man's Hands, he might intercept or
Finder Satisfaction (a); whilſt they affirm at the ſame conteal them from us ; much more, if he might de-
" That he who takes up any thing of ano- tain ſuch a thing openly, and repulfe us with Vio-
« ther's with a deſign of converting it to his own lence, when we attempted to make good our Claiin.
“ Uſe, is guilty of Theft, whether he knows the And therefore as in a State of Communion, 'tis a
“ particular Owner, or not (b). (c) Yet if I become matter of Right that each Perfou ſhall be allow'd
Maſter of a thing upon a Juſt Title, and with ho- to uſe the Common Store as fully and freely as the
neft Intention, I am not bound to call my own reſt; ſo upon the firſt appropriation of things,
Right into diſpute, and to give publick notice that when all other Perſons did, as it were, renounce their
ſuch a thing is in my Cuſtody, to the end that it Right to what any one had received as his private
be challeng’d, if it ſhould happen to belong Share, the diſtinct Proprietors are ſuppoſed to have
to another. For when the manner of my getting the made this Agreement amongſt themſelves (1), “That
Poſſeſſion was in no reſpect Faulty (i), my Inno “ he who chanced to be in poſſeſſion of another's
cence and Integrity clear me from all Imputation Goods, after he knew it to be anothers, ſhould
of Guilt in detaining another's Goods.
" cauſe it to return to its Owner. For the Power
This farther Reſtriction is likewiſe to be under- and Virtue of Property would be too weak, and the
food in the preſent Duty; “ If he who was before keeping of things would require too much Expence,
“ the true Owner, hath ſtill any probable means left as well
as too much Care and Trouble, if theſe ſtray'd
« of his recovering what he loſt; that the Obligation Goods were only then to be reſtor’d when the Owner
we are now aſſerting, may not be thought to over- made a formal Challenge of them; becauſe he muſt
throw the Right of Preſcription (d).
very frequently be ignorant which way they are
III
. Now that this Obligation is ſufficiently found- gone, or where they are lodg’d.
ed in the bare Notion of Property, appears evident. As to a Man's being bound to reſtore a thing when
For fince a perſon may happen, by many Accidents, claim'd by the owner, 'tis altogether the fame caſe
to loſe his hold, and be thrown out of the Poſſeſſion whether he got poſſeſſion by honeſt or by diſhoneſt
of what is really his own, our Goods, and eſpe- Means: For this Obligation doth not ariſe from any
cially thoſe which are movable, would be in a very Default, or any Fact of ours, or from any particu-
flippery and uncertain Condition, if when they ſtray lar Covenant made with the Claimant, but from the
Mr. Barbeyrai's NOTES on $ 2.
(1) The Edition of this work put out in 1706 adds, after Vitioſi, theſe Words, Aut ſuspetti, i. e. Faulty or Suſpicious, words
too important to be left out, for if we have the leaſt Suſpicion, that the thing belongs not really to him, who is about to make
it over to us, we muſt not take it, and if we do receive it, we reduce our ſelves to a neceſſity of reſtoring it fully, leaſt our Suf
picion ſhould prove true.
Mr. Barbeyrac's NOTES on S 3.
(1) There is no need of ſuppofing ſuch a general Agreement, as we have proved upon c. 4, 6. The Obligation of reſtoring
the Goods of another is as Natural a Conſequence of Property, as it is not to take them. But this Obligation ought to be under-
ſtood in ſuch a Maoner as not to deſtroy the Rights of an honeſt Poſſeſſion, or a Putative Property, which as I have before ob.
ſerved, $ 8. Note 3. produces the ſame Effect, as a Property more real, and inconteſtable, ſo long as the real Owner appears nor.
This neither Grotius, nor our Author, nor any other, that I know of, were aware of, and therefore have been puzzled very
much to determine ſeveral Caſes, which have faln in upon this Subject, and ſo many times their Solutions were inconſiſtent one
with another, which proves ſufficiently that their Principle upon which they argued, was not found. I ſay then, that one of the
Principal uſes of our Goods being to Trade with all, and that uſe requiring, that the honeſt Poffeffor ſhould be reputed in all re-
ſpect
, the lawful Proprietor, luch a Poffeffor can be obliged to reſtore only what is in Being, i, e. what he has not parted with,
nor is in any manner periſhed, for he then has nothing and ſo can reſtore nothing, as our Author himſelf acknowledges, in re-
ſpect to what is given away, or fold again, as it was acquired, and to what is ſpent or loft. Moreover, all char che honeſt Poſ-
feffor hath done, or performed, as ſuch, upon the account of the Goods of another, which he believed his own, is as valid, as
to him, as if he had diſpoſed of a thing to him, of whom no other Perſon can claim any thing, and the Profit, which might re-
dound to him by ſuch Goods, while he was in the Poffeffion of them, or when he parted with them, belongs to him by Con-
fequence. For as he was, and ought to he ſuppoſed the true Proprietor, the Rights and Profits of the Property did abſolutely
accrue to him, ſo long as he had no reaſon to ſuppoſe otherwiſe. And then it the ancient Owner recovers his Goods, he begins
again, as we may ſay, at a new Expence, to follow his Buſineſs. The peaceable enjoyment of the honeſt Poſſeſſor, is as a kind
of Interregnum, which has interrupted the power of the true Proprietor, but feaſes to the Purazive Proprietor the effects of his
Management, while he was in full Authority. This being agreed on, we may fee in my Judgment, how far the Natural Obliga.
tion of reſtoring the Goods of another extends, when Men have had an honeſt Poffeſſion with a jult Title. If he hath diſpoſed
of them by any
Good, and irrevocable Act to a third Perſon, who has honeſtly received them, he is only obliged to affift, as
much as he can the old Owner to make him, who has wrongfully taken and retain'd his Goods, to give him Satisfaction, and
to declare to the New Poffeffor the Right of the true Proprietor, that he may do what he ought in the caſe. But if the thing
is, yet in the hands of the honeſt Pofleffor, or he has got the Poffeffion of it without Charge, or it has coſt him
ſomething. In
the firſt Cafe, as when a Perſon has obtained a thing by Free-gift
, or has found a thing, he ought to return it fairly and readi-
ly without any demand, at leaſt, if it has occafioned no greater expence to him than is made up by the keeping of it. In the
Other Cafe, if one has bought it, or taken it to pawn, it is juft, that the true Owner, who would recover his Goods, ſhould re-
pay the honeſt Pofleffor, what he has given, otherwiſe he may keep the thing, and if the other do nor redeem it before the time
of Preſcription is come, ie then entirely changes the Owner, ſo that the firſt can have no Title to it
. By theſe Principles it is
cafe to determine clearly all the Queſtions, which can concern this matter, as we ſhall ſee in the Notes upon the following Para-
graphs, where I ſhall rectifie our Authors Notions. Although he is not ot the ſame Sentimenrs with Grotius, yet he reaſons in
general according to the Norions of that Great Man, whole Authority ſeems to overſway him here. This I mention not by meer
Conjecture, for in his Elements of Juriſprud. Univer), which was the firſt work, that I attempred to comment on, he rook no.
tice of the weakneſs of Grotius's Opinion, and determines ie in ſuch a Manner, as can't be well grounded bar by ſuppoſing the
Principles, that I have diſtinctly eſtabliſhed, for he ſays, That as yet the Civil Laws of ſeveral People permit any one to take his
Goods where he finds them; nevertheleſs, if we conſider Natural Right, the true Proprietor may not take it immediately from
the honeſt Poffeffor, though he may from the Perſon, who deprived him of his Goods ; for, adds he, why ſhould the honeſt
Pofíeffor loſe it, or be proſecuted more than the true Owner, feeing'eis not his Faule, Lib. 1. Def
. s. $25. p.77.78.
(a) Vid. Lib. 47. t. 2. 1. 43. I 9. D. de furtis. Lib 19. t. 5. 1. 15. D. de Præſcript. verbis & Lib. 12. t. 5. f. 5. D. de cond.
(b) forephus antiq. IV. c. 8. He that takes up Gold or Silver in the Way, let him ſeek out the perfon who loſt it,
and by the help of the Cryer, "Tet him reſtore it in the same place where 'twas found ; and let him be perſwaded, that 'tis a very ill way
of gaining Profit, to enrich himſelf by the damage of others.
in the place above cired.
(c) Concerning this, ſee c. 6. 1, 12, (d) Comp. Grot.
G g 2
thing
1.
ob turp. cauf.
4
236
Of the Obligations which ariſe
Book IV.
,
thing it ſelf; or rather from that general Covenant Province had taken it away, and preſented it to him
made with the Claimant, but from the thing it felt; in his own Name, he immediately gave back the
or rather from that general Covenant to this purpoſe, Horſe to the Poor Woman; and having no others at
which we ſuppoſe to be the neceſſary attendant of hand from his own Stable, was content to make ule
Property. He then who obtain’d the thing honeſtly, of the next he could borrow. Which, they tell
is barely oblig?d to make Reftitution ; but he who was the riſe of that Cuſtom which afterwards ob
procur'd it diſhoneſtly, beſides the necesſity of Re- tain’d, for the Emperors to carry in their Train a
ftitution, hath likewiſe contracted a Guilt
, and is great number of Horſes, for Supplies in caſe of any
on that account, liable to Puniſhment. Good Faith, ſuch Accident (d).
or honeſt Intention, doth then ceaſe, at leaſt, in the The Example of the Spartans,whichGrotius mentions
Court of Conſcience, when a Man hath full aſſurance, (e), who condemned their General Phebidas for feiz-
that what he holds belongs to another (a). Though ing on the Cadmean Fort, and yet ſtill kept the Place
'tis enough to ſecure him from humane Puniſhment, in their Hands (f), doth not come up to our Point:
if he were thus well-meaning and ſincere only at his For they were, no doubt, injurious and diſhoneft
firſt entring on the Poffeſion,
Poſſeſſors, and therefore were bound to Reftitution
IV. This is confirin'd and illuſtrated by the Di- by another Principle. Nor is the Story of M. Gral-
vine Law it ſelf, Deut. XXII. 1, 2, 3. And left any Sus, and Q. Hortenfius more proper in the preſent
ſhould imagine that the Duty there enjoined is to Queſtion, as Tully (8) gives the Report : Some
be paid to Friendſhip only, 'tis exprefly added, Perſons, Jays be, brought out of Greece to Rome a
Exod. XXIII. 4. that the fame ought to be perform’d Forged Will of L. Minutius Bafilius, a very Weal-
to an Enemy.
" thy Man; and the more eaſily to carry their Point,
Joſephus (b) hath given us this Gloſs on the Law put down M. Craſſus, and 2. Hortenſius, two who
which we are now mentioning : “ If any Man “ had the greateſt Power and Intereſt in the City,
(Says he) find Gold or Silver in his way, let him as Joint-Heirs with themſelves. The two Gentle
“ ſeek out the Party who loſt it, and reſtore it by men, though they ſuſpected the Deed to be Coun-
" the Hands of the publick Cryer, in the very place terfeit, yet relying upon their own Innocence in
“ where he took it up, judging with himſelf, that " the Matter, did not refuſe to make this ſmall Ad-
no Advantage can be good, which ariſeth from a vantage of the others Wickedneſs. What then?
“nother's Damage. The ſame he muſt do with re " Is it enough that they appear to have had no hand
gard to the ſtray Sheep and Cattle he meets with " in the Fačt? I am not of that Opinion: For he
in the Defart. If he cannot preſently find out certainly is to be cenſur'd as Unjuſt, who, not
" the Owner, let him retain the things in his own only forbears to drive off an Injury froin another,
Cuſtody, calling God to witneſs, that he intend-6 but aids and encourages it. Here the Gentlemen
" ed not to make a Gain of what belong’d to his had as great a ihare in the Crime of Forgery, as
Neighbour. Yet the Mortal Hatred which the Receivers are ſaid to have in that of Theft ; inal-
Jewiſh Nation profeſs'd againſt all others, afterwards ſuch as they apprehended themſelves to have been
turn'd this Natural, into a Civil Law, to be put in put into the
Will for no other Reaſon, but that their
practice only towards their own Country-men (c). Name and Authority might protect the Authors of
One of the moſt remarkable Inſtances of Reſtitu- the Cheat.
tion which Hiſtory affords, is that of the Emperour From the ſame Head we may diſcover the Cu-
Theophilus, Who when a Woman cry'd after hiin in fton of awarding Wrecks to the Prince (1), or to
his Progreſs, and claim'd the Horſe which he rode, the State, to be diſagreeable to Equity (h). As we
finding upon enquiry that the Governor of a certain may likewiſe gather the Abſurdity of that Practice


in

Mr. Barbeyrac's NOTES on $ 4.
(1) See Mr. Hertius's Note on that place, and his Diſcourſe, De Superioritate Territoriali
, $ 56. in the II. Tom. of his como
, .
ment. da Opuſc. There are ſome places in Germany, where the Preachers ſcruple not to pray to God in the Pulpit
, that he would
make many Shipwracks upon their Coaſts. And Mr. Thomaſius maintains, that neither theſe Prayers, nor the Cuſtom it ſelt are
abſolutely unreaſonable, or diſagreeable to the Rules of Charity or Juſtice, for though, as he ſays, in the cime of the Wreck,
there is no deſign to abandon utterly what is caſt away, yet there is no hopes ordinarily of recovering it, and we know chat
there is as much reaton to fear that the Goods are utterly loſt, as if they had been caſt into che main Ocean: Beſides, the Owner
of the Coafts may, at the place, where he has a Right to demand Cuſtoms of Strangers, uſe all means to repay himſelf for the
Expences he is at in maintaining the Port and Shore. We may add to this, that it is often very hard to know whoſe Goods and
Merchandizes thoſe are, that the Sea throws upon the shore. "So that they are a kind of Alluvions, which by the Right of Nu-
tions, is a lawful way of getting. The Publick Prayers made on this Subject ought not be underſtood, as if they begged of God,
that he would make a great number of Shipwracks, but only, that he would cauſe that the Sea ſhould not retain the Goods
caft into it, but diſcharge it felf of them by caſting them upon their Coaſts rather than any other, for what reaſon is there for
us to ſuppoſe, that ſuch Holy Church men ſhould every day beg Gods help for a thing contrary to all Natural Right; or at leaſt
,
that ſome of their Brethren ſhould not Charitably adviſe them of fuch a dereftable Sin, which they had been guilty of ſo long a
time? Theſe are the Reaſons of the Author, of whom he ſpeaks, which he delivers in his Diſcourſe, De Statuum Imperii potea
ſtate Legiſlatoria contra fus commune, printed at Hall, in 1703, 42. The manner in which he juſtifies the Prayers fo manifeft-
ly abſurd, ( to ſpeak no worſe of them ) would make us believe that he is not in earneſt
, and that he diverts himſelf with the
want of Conſcience in the Clergy. As for the Confiſcation of the Goods belonging to ſuch as have ſuffered Shipwrack, the Pro-
prietors who caſt them away, do not look upon them altogether loft, but that they reſerve to themſelves a Right of claiming
them, if ever they happen to be caſt upon the Shore, as they know it often comes to paſs. See above, c. 6. $12. And 'tis not
by theſe Misfortunes, that the maintenance of Ports and Shore ought to be upheld: The Toll would be too Exorbitant and Odi
ous; ſuch as looſe their Goods would at this
Rate pay for thoſe that have the good luck to ſave them, and get to the end of
their Voyage. That it is no leſs a Shipwrack, than if it happened in the main Sea, as Mr. Thomaſius ſays, ſhews plain enough how
frivolous the Presence of making Satisfaction is, and the d fficulty of knowing the true Owners of the Merchandizes, which the
Sea
(c) Vid. Selden De
(d) Curopalat. de Off
(a) Vid. Lib. J6. c. 3. 1. 1. Sect. ult. D. 1. 2. 1. 3. 1.4. d.pofiti, vel contra. (6) Antiq. I. 4. c. 8.
7. N. G. Sec. Hebr. 1. 6. C.4. do Grot. in Annor. ad d. 1. Sect. t. Add. Polyb. I. 6. c. 31. princip.
Conſtant. Cedren. (2) Ubi Supra. n. 3. (f) Plutarch das Cornel. Nep. in Pelopid. (8) Off. 3. c. 18.
Giot. I. 2. c. 7. f. 1. & Becler. ad d. l. Fac. Godofred de Imperio Maris, c. 11. Jo. Loccenius de Jure Maritimo, l. 1. C. 7.
Bodin, de Repub. I. 1. c. 10. Gramond Hiſt, Gall. Lib. 16, and others.
(b) Vid.

Chap. XIII.
immediately from Property.
237
.
we
CC
in ſome Countries, by which the Stolen Goods when
Charge, or whether you ſhall pay it into the Trea-
when diſcover'd (2), are not reſtor’d to the Owner, but
ſury? If we regard only the Law of Nature and
are claim'd by the Publick Treaſury (a).
" of Nations (3), the Money is to be given back (4),
V. Inaſmuch as this Engagement to reſtore the to the Party who committed it to your Truſt; it
Goods of others ariſeth from a General Agreement re conſider the end of Civil Government, and the
amongſt all Mankind, a Bar is hereby put to all " Rule and Method of Poſitive Laws, you ought
particular Contracts made about a thing which is " rather to throw it into the Publick Stock. For
any way kept from the true Owner ; the effect of " he who hath deſerv'd ill of the whole State, ſhould
which is, that when the thing is known to be ano “ be left to ſtruggle with Poverty too amongſt his
ther's, any Bargain about the conveying it to a third < other Inconveniencies, that his Example may de-
Party, becomes Null and Void (1), And this too is ter others from offending.
the Ground of Diogenes's Jeſt on two Thieves, one But indeed, ſince Sovereign Rulers have even by
of which had plunder’d the other ; “ One (he ſaid) the Law of Nations a Power to puniſh Criminals in
5 had ſtolen fomewhat, but the other had loſt no- their Fortunes and Eſtates; when ſuch a Penalty is
« thing (b).
juſtly decreed againſt a Malefactor, 'tis
agreeable to
As to that Law of the Digeſt (2) produc'd by the very Law of Nature, that all his Goods should
Ziegler (c), to prove that a Contract made after ſuch be forfeited to the Governinent. Yet that the Con-
a Diſcovery, is not always evacuated or hindered fiſcation of Goods ſhould attend any one particular
by the force of Property, it is really no prejudice Crime rather than others, is purely owing to the
to what we now aſſert: For in the caſe there alledg’d, Appointment of Poſitive Conſtitutions. The conſi-
the intereſt of the Creditor is more concern'd that deration of that Benefit which accrues to the Pub-
the Pledge ſhould remain ſafe, than the Intereſt of lick from Penalties duly inflicted, (the Reaſon urg’d
the Debtor who owns it; and the Debtor cannot by Tryphoninus) did indeed ſhew that ſuch a Penal
challenge the Pledge, unleſs upon Payment (d). Sanction ought to be approved of; but it was not,
The Judgment of Tryphoninus, in the ſame place of properly, the cauſe why the (5) Treaſury ſhould have
the Digeſt, upon the other Caſe which he there pro- the advantage of the Criminal, as to challenging
poſeth, doth not to me appear Satisfactory: “A the which he had lodg’d in other Hands. For by
& Man caſt for a Capital Crime, ſays he, hath depo- the Sentence of the Court all the Right and Proper-
ſited an hundred Pounds in your Hands; the Man ty of the condemn’d Criminal over his Goods was
is afterwards tranſported, and his Goods confifca- taken from him, and conferr'd on the Government;
" ted; the Queſtion is, Whether you ſhall reſtore and conſequently, what he forinerly gave in Truſt
,
" the hundred Pounds to him who gave it you in is to be deliver’d' back not to hiin, but to the pub-
Sea caſts up, proves only, that they ought to be adjudged to the firſt comer, without examining, if there be reaſon to demand
them, and if the Owner can't be found, if they belong to the Lord of the Country as firſt Occupant: In a word, The Cuſtom
of which we are ſpeaking can't be juſtifyed, but by ſuppoſing that Property is loſt with actual Pofleffion, an Hypotheſis, which
I have ſufficiently confused above, Chap. 6. § 1. Note I.
(2) See l. 3. c. 1. $11. Note 3. foregoing.
Mr. Barbeyrai's NOTES on $ 5.
(1) This is only when there is no honeſt Intention. But when the contract is performed already, before we are aſſured, char
the thing belongs to another, we neither can, nor ought to break the Bargain. And the Ancient Proprietor hath nothing to do to
demand his Goods of him, who is not in Poſſeſſion of them, and had a full Right to diſpoſe of them, as I have ſhewed above,
8. 3. Note i.
(2) The words are, Item Pomponius, l. 34. fcribit parvi referre res noftras, an alienas intuleriinus, fi tamen noſtra inter fit ſalvas
met Etenim nobis magis, quam quorum ſunt, debent folvi
, & ideò ſi pignori merces accepero (ob pecuniam na ticam) mihi magis, quam
debitori, nauta tenebitur, li ante e as ſuſcepit, Digeft. Lib. 4. Tit. 9. Nauta, Caupones, Stabularii
, &c. I. 1. $ 7.
(3) Incurrit hic, & alia infpe£tio, & bonam fidem inter eos tantum, inter quos contra&tum eſt, nullo extrinfecus adfumpto æſtimare
debeamus, an reſpectu etiam aliarum Perſonarum, ad quas id, quod geritur, pertinet, exempli loco, latro ſpolia que mihi abſtulit, po-
ſuit apud Seium inſcium de malitia deponentis, utrum latroni an mihi reſtituere Seius debeat? 'si per ſe dantem, accipientemque intuemur,
bac eft bona fides, ut commiſſam rem accipiat is
, qui dedit
, si totius rei aquitatem, que ex omnibus perſonis, quæ negotio ifto continguntur,
impletur, mihi reddenda funt, quoi (for 1o we muſt Read with Grotius ) fatto ſceleſtiſſimo adempta ſunt, de probo hanc effe juſtitiam,
que ſuum cuiq; ita tribuit, ut not diſtrahatur ab ullius perſone juſtiore repetitione, Digeſt. I. 16. t. 3. Depoſiti vel contra, Leg. 31. 8 1.
See l. 3. c. 6. STI. at the end atoregoing.
$9) Reus capit alis Judicii depoſuit apud te centum libras, is deportatus est, bona ejus publicata ſunt, utrumne ipſi hæc reddenda an in-
publicum deferenda fint ; fi tantum naturale jus, Go Gentium intuemur, ei qui dedit, reſtituenda funt, fi civile jus, do Legum ordinem magis
in publicum deferenda funt. Nam malè meritus publicè, ut exempla aliis ad deterrenda maleficia fit, etiam egeſtate laborare debet, Ibid.
princip.
(5) See Mr. Noodts Probabilia furis, 1. 3. C. 2: As to the thing it ſelf, there ought, as I think, ſome diſtinction to be made,
If we ſpeak of a truly wicked Perſon, who is guilty of Enormous Crimes
, and who appears to be hardened in Sin, 'cwill be a
means to make him go on in his evil Courſes to reſtore what he has intruſted us with. But if the Criminal be condemned for
things which are not
Evil, but only as they are forbidden by the Laws; or if ſome violent Paſſion, Tempracion or Habit, affift-
ed by his Temper, has hurryed him into the Commiſſion of an Action heinous in its Nature ; we may nor only, but we ought,
to reſtore our Truſt faithfully to the unhappy Perſon. And in this he doth nothing contrary to the Duty of a
good Citizen. For the end, and deſign of the Laws, which puniſh with a general Confiſcation of Goods, requires that all that
appears, or can be diſcovered, ſhould be confiſcated, but it doth not require that every one ſhould go and declare what he has
In his Hands, belonging to the Criminal
. This were to enlarge the ſeverity of the Law, whereas it ought to be micigared, as
far as poſſible, and if it exprelly Commands, thar none Thall conceal any thing that is his, it ought to be incer prered in ſuch a
manner, as to imply, that he hall be guiltleis if he undergo the Puniſhment to be inflicted on ſuch as have the Courage to run
the hazard of ſerving an unhappy Perfon. The Tyes of Relation and Friendſhip, which it is the intereſt of the publick to fa-
lour and cheriſh, make this interpretation Reaſonable, ſince it is common to truſt a thing with a Relation or Friend, and if he
fiad, that by purcing the thing entruſted to him into the Treaſury, he deprives Children or other Innocent Perſons of a thing,
ma foever the Crimes, which have brought this Puniſhment on him, there is no humane Law can be fo underſtood as to oblige
him in Conſcience to diſcover the Secrets
, or betray the Intereſt of them, who ought to inherit the thing entruſted to us, and
have done nothing to deſerve to be diſappointed of it.
(a) Vid. Ant. Matthe, de crimin. tit. de furtis, c. 4. 1. 4:
(2) See a full Inſtance in B. XVI. c. 3. 1.31. 1.1. D. depoſiti vel contrá.
(6) Diog. Laert, 1. 6. f. 54• (c) Ad. Grot. d. I. Sect. 1.
in my Judgment,
lick

238
Of the Obligations which ariſe
Book IV.
lick Receivers. Becauſe all kind of Property, whe- Fruits or Profits of it
, ſuch as are now remaining;
ther it ariſeth from Poſitive Ordinances, or froin ſo much ſtill being deducted as amounts to the
the Law of Nations, hath this effect amongſt others, Charges of producing, gathering or preſerving them.
That he who is in poffeffion of any thing over which VI. But if what we have honeſtly gotten, though
the ſaid property extends, Thall be bound to re- really belonging to another, hath been as honeſtly
ſtore it to the Party who at preſent appears to be ſpent, then it ſeems moſt agreeable to Natural Equi-
the true Owner (5). What Demurs and Exceptions ty, that we ſhould not pay the whole Value of it
the Law of reſtoring things given in charge admits to the Owner, but only the Advantage they brought
in other Caſes upon account of particular Circum- us, or ſo much as we were made the richer by it;
ſtances, is frequently ſhewn by Authors
. Vid. Ci- provided ſtill that the Owner hath not been requi
ceron. Off. 3. C. 25. Šeneca de Benef. 1. 4. C. 10. Am- ted for what he loft, ſome other way. For if I ho-
brof. de Off
. l. 1. c. ult. To which may be added neſtly acquire and conſume what was ſtollen from
what Polybius (in excerpt. Peireſc. p. 172.) reports you, when you have already received full Satisfa-
of Ariarathes King of Cappadocia, who having reco- ction from the Thief, you can then demand nothing
ver'd the Kingdoin from Orophernes, demanded of of me, how much foever I have been a Gainer by
the Prienians the forty Talents which Orophernes had my Bargain. The ground and reaſon of this
put into their Hands; and upon their refuſing to Aſſertion is not ſo much to be taken from the End
deliver them to him, fell upon their City with Fire of Property (1), (which was eſtabliſh'd that every
and Sword, in Polybius's Opinion very unjuſtly. Tho' Man might, according to Proportion, enjoy his own;
this Action of Ariarathes may be commended, if we whereas he who gains by what is mine, hath more
firſt ſuppoſe that Orophernes had injuriouſly depriv'd than his Proportion, as I on the contrary have leſs ;)
hiin of his Crown.
as from the following Conſideration; That a thing
Upon this Natural Obligation to Reſtitution, the in which I have not loſt my Property, either by my
Compilers of the Civil Law have built a great num own free Conſent, or by Default, or by the Right of
ber of additional Rules (a). And this too is the War, ſtill belongs to me; as doth likewiſe all the
Ground of claiming by Judicial Proceſs (7), what is Fruit and Product of it. When ſuch a thing there-
detain’d from us, together with all the Actions which fore hath fallen into another Man's Hands, who hath
border on that Claim; and in ſome fort, the Aktion made an Advantage by ſpending it; his Honeſty and
of falſe Debt (8); the Action for Recovery of what good Intention ſecure him indeed from all Guiſt and
we have given (9), either upon ſoine Reaſon, which Cenſure; yet he can on no Pretence with-hold the
Reaſon hath not been made good, or elſe upon no Profits when I lay Claim to them (1), becauſe they
Reaſon at all (10). Though theſe Actions are ſaid are to be look'd on as the Reſidue, or the ſurviving
likewiſe to depend upon a kind of imaginary Con- part of the thing, at leaſt they are the proper
and
tract (1). For when we deliver a thing without in- neceſſary Fruit proceeding from it. Hence tis one
tending it for a matter of pure Bounty, it is ſup- of the moſt common and proverbial Sayings (2),
pos’d to be given by the one Party, and receiv'd That no Man ought to gain by another's Loſs: That is,
by the other on this Condition, That it ſhall be de- by ſuch a Lofs as he did not himſelf procure either
livered back, in caſe there appear no Reaſon why it by his Conſent or Default, ſo as to be the cauſe of
was given.
the Damage, or to have it any way imputed to him:
What hath been ſaid about the Reftitution of the For it can be no Sin in me, to take an Occaſion of
inain Thing or Subſtance, extends likewiſe to the Advantage from the Loſs or Damage of another (3),
when
Mr. Barbeyrac's NOTES on S 5.
(6) There are, adds our Author here, ocher caſes, in which the Law, which commands to reſtore our Truſt, admits of Ex-
ceprions, as when a Man who has put his Sword into our keeping, becomes delirious, and then comes to demand ir, or when he
that hath puc a Sum of Money into our Hands, raiſes War againſt the State.
(7) Rei Vindicatio, See Digeſt. I. 6. t. 1. and what I have ſaid above, c. 9. $ 8. Note 4.
(8) See above, l. 3. C. 4. § 5. Note 4.
(9) See Chap. 9. of this Book, S 4. Note s.
(10) Conditio fine caiſa, is when we promiſe or give a thing for a Cauſe, which is ſuperſeded, or upon a Condition, which
was never performed, as if one receives a Portion in order to a Marriage, which was never accompliſhed, but was diſannulled.
(11) In the Opinion of the Roman Lawyers there is no obligation to another, which is not founded on the conſent of him,
who is bound by it; when there appears no figns of a Conſene in certain things, wherein Men are nevertheleſs obliged, they
ſuppoſe ir, and call it a Quaſi Contra&t. Buc in all the caſes that they alledge on this Occafion, and which reſpect the Manage.
ment of anothers buſineſs by Commiſſion; the tranſacting of Publick Affairs in Secrets; the Adminiſtration of a Guardianſhip;
the Addition or Acceptation of an Inheritance, and the Payment of a thing nor due. In all theſe Caſes the Obligation proceeds
either from a Tacit Agreement, properly ſo called, or from a poſitive Laiv, or from ſome Maxims of Moral Equity only, and
there is no need of feigning the formal Conſent of a Perſon, wholly i norant of what paſſes. See what I have ſaid above, 1.3.
6. 4. § 2. Note 3. and Institut. l. 3. t. 28. De obligationibus, que quaſi ex.contra&tu naſcuntur.
Mr. Barbeyrac's NOTES on 6.
(1) He may very well diſpenſe with it, fince as I have Thewed above, $ 3. Nore 1, all the time that he was the honeſt Pofa
feffor, he acted as Mafier, and to was really, ſo that the Profit he had from it, was a Pare or Revenue, which came from the
Goods of another, but was an acquifition made by virtue of his right of Porteffion, and it ought to remain his with 10 much
the greater Reafon, becauſe 'tis almoſt always, one way or other the Fruit of his Induſtry.
(2) The words of the Digeſt are, Jure Nature &quum eft nemirem cum alterius detrimento, co injuria fieri locupletiorem.
(3) Demades, the Athenian, condemned a Man of his City, who profeſſed an Art of feeling things neceflary for Funeralschis
Judgment ſeems to have been ill given, becauſe he made no Profit but by fome Man's Damage, and by the fame Realon all gaia
neſs of Corn, the builder by pulling down of Houſes, the Officers of Justice toy Law-Suits and Quarrels, the Grandure and calle
ing of the Clergy Supported by Mens Deaths and Vices, no Phyſician is much pleaſed with the Health even of his friends
, as can
Ai cient Greek Comedian ſpeaks, nor a Soldier with the reace of his country, and to of the Reft. And which is worſe, if every
(a) Vid. I. 25 t. 2. 1.25. D. de a&t. rer. amotar.
(6) Vid. Grof. I. 2. C. 10. f. 2.

CHAP. XIII.
immediately from Property
239
.
2
૮૮
66
Alterius fua ut comparent coinmoda.
1.6. t. 1. 1. 20. 50. D. de rei vindic.'
D. de bered. petit. do 1,6 t. 1. 1. 27. f. 5. 1. 31. 1.48. 1. 65. D. de rei vindic.
petit. G 1.6, t. I, d. 52. D. de rei vindic.
when it was not of my own procuring (a). It VIII. Secondly, “ Such a Poffeffor through ho-
is obſervable that in the Books of the Roman Laws neſt Miſtake, is bound to reſtore not only the
many caſes are determiitd according to the Equity thing it ſelf, but likewiſe ſuch Fruits or Products
of this general Rule (4), with ſoine difference from " of it as are ſtill remaining; becauſe, in Natural
the ordinary Tenure and Strictneſs of the Letter.
Eſtimation, he that is Owner of the thing, is
Vid. Inftit. lib. 4. tit. 7. Upon the ſame Foundati Owner too of the Fruits (d). Yet here they do di-
on the Action which they term (5) de in rem verſo ftinguiſh between the Fruits of the thing, and the
ſeems to depend. Vid. D. lib. 15. tit. 3.
“ Fruits of the Man's own Labour. Grotius is of O-
VII. From the Rules already propoſed may be pinion, That the former only ought to be given up,
drawn a ſatisfactory Deciſion of many Points uſual " and not the latter; becauſe theſe are not due to
ly controverted as well by Lawyers as Divines ; " the thing it ſelf, though perhaps they could not
which we think it may be proper to tranſcribe out “ have been procured without it. Others think,
of Grotius : Firſt, He that honeſtly and inno- that even the latter Fruits Should be reſtored, and
cently gains Poſſeſſion of what is anothers, (for alleđge a Law of the Code (e) in favour of their Af-
« of him only we would here be all along under- ſertion (1). And indeed this Judgment ſeems to
“ ſtood; inaſmuch as the diſhoneſt Poſſeſſor doth not come neareſt to the Rule of Kindneſs and Humani-
only ſtand oblig'd on account of the thing it felt, ty, provided this Clauſe be ſubjoined, that the ho-
“ but is farther obnoxious by his own Crime :) So neſt Poſſeſſor may in this caſe deduct, as well the
long as he continues in this Integrity (b), is bound Expence which the thing hath put him to, as a due
to no Reſtitution, in caſe the thing periſh or be reward for his Labour (f): As likewiſe that to pre-
loſt; becauſe he neither enjoys the Subſtance, nor vent troubleſome Suits, the Proprietor upon claim-
any Fruit or Advantage of it (c). We add, That ing his own ſhould not be too raking and greedy,
he doth not ſtand bound, though it ſhould have hap- ſhould not (as we ſay) Sweep Duft and all : For after
pened to periſh by his Default : For his honeſt In- the Buſineſs hath been qualified by theſe two Alle-
tention was to him in the place of Property (1). viations, it will ſeldon happen that the honeſt Pof-
Now a Proprietor though he loſe his Goods through ſeſſor ſhall have much to give up out of the Advan-
his own Neglect(2), yet is thought to ſuſtain ſufficient tage he made by his own Induſtry.
Damage by the Loſs, and is liable to no farther Pu IX. Thirdly,
66 Such a Poffeffor is bound not on-
niſhment : But we are to pronounce otherwiſe, if " ly to reſtore the thing, but likewiſe to ſatisfie for
the Perſon in Poffeffion, underſtanding the thing to the Fruits which he hath ſpent (1), ifit appcar, that
be anothers, voluntarily made away with it to a “ he would have ſpent as much otherwiſe (8): For
void Reſtitution.
“ he is judged to be ſo much the richer, whilſt by
one would ſearch themſelves he'd find that our Wiſhes inwardly are for the moſt part raiſed and ſupported by the Expence of a.
nother, which being confider’d, it comes into my Mind, that Nature does not in this ſwerve at all from her general Courſe, for
Phyſicians hold that the Original growth and increaſe of every thing is the Alteration and Corruption of another, for as Lucretius
ſays, 1. 2. v. 752. 753.
Nam quodcunque ſuis mutatum finibus edit
Continuò hóc mors eſt illius, quod fuit ante.
This Chapter of Montagnes Eſſays, to which the Avthor refers us, and which is the 21th of the firſt Book was ſo ſhort, that I
thought, that the Reader would no more grudge to read it, than I have done to copy it out. See Seneca de Benef. 1.6. c. 38.
from whence 'tis almoſt all taken.
(4) See Examples of this in Grotius's B. 2. c. 10. 1. 2. n. 2, doc.
(5) The words are, Quod cum eo, qui in alieriâ poteſtate eſt, negotium geſtum effe dicitur, & Digeſt. 1.15. t. 3. De in rem verſo.
Mr. Barbeyrac's NOTES on $ 7.
(1) This Approbation of the Author is remarkable, but he ſaw nor the Conſequences of it, and it follows from all the other
Principles of his Deciſion of the following Caſes.
(2) The Roman Law a' ſo diſpenſes with the honeſt Poffeffor in reſtoring what is loſt, through his Negligence, and what he has
conſumed, or laviſhly ſpene, believing it was his own. Quemcunque igitur fumptum fecerint ex Hereditate, si quid dilapidaverunt,
perdiderunt, dum re ſua se abuti putant, non præftabunt, Digeft. 1. s. 1.3. De Hereditatis petitione, 1.25. $11. Sicut autem ſumptum,
quem fecit, deducit, ita Ji facere debuit, nec fecit, culpe hujus reddat rationem niſi bonæ fidei poſſe for est
, tunc enim, quia quaſi ſuam
Rem neglexit, nulli quereld ſubje&tus eft ante petitam Hereditatem, ibid. leg. 31. $ 3. Mr, La Placet:e nevertheleſs in his Treatiſe
of Reſtitution, 1. 4. c. 5. p. 257. adds this Reſtriction, at leaſt, if there be no fault in the Gerter. Indeed this appears more a.
grecable to the common Principles, but yet we may diſcern from hence that choſe Principles are not found.
Mr. Barbeyrac's NOTES on § 8.
(1) The truth is, the honeſt Poffeffor may keep both, as belonging to him by a full Right according to the Principles that we
have above eſtabliſhed, $ 3. N. I. So that let the Rules of the Civil Law be what they will, I believe, that
conſidering Natural
Righe only, upon the whole Matter, a good Intention produces the fame Effect as to the Poffeffor, as a real Property, as the Re-
man Lawyers themſelves have agreed by this Maxim (making only an Exceprion in ſuch Cafes, as the Law has ordered otherwiſe).
Bona fides tantundem poffidenti præftat quantum veritas, quoties Lex impedimento non eft. Digeft
. 1. 50. t. 17. De diverſ. Reg. Jur.
Mr. Barbeyrac's NOTES on S 9.
(1) If the honeſt Poffeffor may lawfully keep the Fruits produced by Nature, as I have afferted in the foregoing Note, by a
much tronger reaſon is he excured
from reſtoring the Fruits ſpent. The Interpreters of the Roman Law do not agree, that
the
Civil Laws oblige to Reſtitution in this laſt Cafe, although the Author cites ſome Texts for it. See Vinnius upon the Inſtitutes, 1, 2.
tos. De Rerum Diviſione, 935. Num. 9. 10.
(a) See Mont aigne's Em. I. 1. c. 20. Cicero, 08. 3. c, 5. 'Tis againſt Nature to increaſe our own Advantage, by the Damage of
another man. Which is borrowed írom that of Terence, Andr. A. 4. Scen. j.
Hoccine eſt credibile aut memorabile,
Is this to be believed, or can't be thought
Tant a recordia, innata tanquam ut fiet,
That any one can be ſo vile and naught,
Ut malis gaudeant, atque ex incommodis
As to rejoyce in ch' ills of other Men,
That to themſelves advantage they may gain.
(6) Comp. Ziegler. ad Grof. d. I.
See Digeſt. I. 50. t. 17. De diverfis Regulis Juris, leg. 206.
(c) Vid. D. 1.5. t. 3. I. 40. D. de hered. petit, do 1. 6. t. 3. D. de rei vindic.
(e) Lib. 3. t. 32. leg. 22. de rei vindic. (f) Vid. l. 5. t. 3. 1. 36. f. 5. 1.38, 39.
(8) Vid. lib, ubi fup. l. 25. 1. 8, 9, D. de bered.
* ſpending
leg. 136.
(d) Add.

240
Of the Obligations which ariſe
Book IV.
ſpending anothers Goods, he hath faved his own thinks himſelf to have ſomewhat fuperfluous ; and
(a). Yet here we are of Opinion, That beſides the Li- conſequently, his Inclination to give, is judged to
mitation above added, it ihould be likewiſe conſider- have proceeded from his Opinion, that the thing
whether the well-meaning Poffeffor be able to reco- which he thus diſpoſed of, and which proved to be
ver of the Party, who fold him the thing, ſo much anothers, was more than he wanted for his own Ule.
as he loſeth upon its being claim'd by the true And as to that Obligation which arifeth from
Owner (2). If this is impoſſible to be done, the ſuch a Bounty in the receiver, it is by no means
Poffeſfor is ne'er the richer by the Bargain, when he reckon d amongſt thoſe things which are capable of
is forced to reſtore what he bought, and yet can- being rated at a ſet Price; and therefore he who
not make himſelf whole by recovering the only expects an uncertain return for what he hath
Price he gave. As to the Example of Caligula actually beſtow'd, doth not, in the leaſt, appear to
produced from (b) Sueton, who tells us " That have been made richer by what he parted with on
to when he reſtored any exil?d Princes to their Do- this Proſpect (d). But it is to be conſidered likewiſe
minions, he gave them up likewiſe the Revenues, farther, whether the preſent be ſtill remaining in the
“ which had been brought in the mean-time into laſt Receiver's Hands or not: It it be, the Proprie-
“ the Roman Treaſury. We may obſerve, that he tor ſhall claim it directly of him, and not trouble
believed their Kingdoms to have been unjuſtly taken the Intermediate Receiver: If not, the main Bur-
from them, and conſequently himſelf to be in diſho- then ſhall ſtill fall on the Perſon who either now
neſt Poffeffion. Or it he did not condemn his Pre- poffefſeth the thing, or hath been inade richer by it.
deceſſor’s Act in this Matter, yet it may ſtill be que- But the Intermediate Poſſeſſor ſhall only come in for
ſtioned, whether he reſtored theſe Fruits and Profits a finall Share in the Burthen, inaſmuch as he too
out of ſuppoſed Duty and Conſcience, or out of perhaps had an Opportunity of making fome Ad-
meer Generoſity. So that we take it to be the truer vantage (e).
Judgment to affirm, that the Innocent Poſſeſſor is XII. Sixthly, “ If ſuch a Poffeſſor having firſt
obliged to reſtore the Value of what he hath ſpent, bought the thing, ſhall afterwards have alienated
when he cannot recover Damages of the Perſoni whó it, he ſhall not be bound to give the Owner any
cheated him with this falſe Title. For in that Cafe, more than the Overplus of the prime Coſt (1); or
he cannot be ſuppoſed to have enriched himſelf by « ſo much as he hath gain’d by his Bargain. But
the Purchaſe. And it ſeems a greater Hardſhip to “ if it firſt coſt him nothing, and yet he hath fold
pay the Value of a thing that is ſpent and gone, it, he ſhall then be obliged to give up the Price
than to reſtore the thing it ſelf were it forth-com “ received (2), in caſe the Owner cannot recover the
ing.
thing it felt of the preſent Poffeffor ; and unleſs
X. Fourthly, “ Such a Poffeffor is not bound to " the former Party hath ſquander'd away the Price
" make good thoſe Fruits or Profits which he ne-
" he took, which if not ſo eaſily gotten, had not
glected to take ; becauſe he neither hath them, been ſo prodigally ſpent. But he who puts a
nor any thing elſe in their Room. And his Neg- thing off for juft ſo much as it coſt hiin, is no Gainer
,
ligence about what was his own, or in all reſpects being ſuppoſed only to recover his own. Nor can it
the ſame as if it had been his own, is adjudg’d to be ſaid in this caſe, that the Price ſupplies the room
be a ſufficient Prejudice to him (c).
of the thing; unleſs he parted with it out of a kna-
XI. Fifthly, ** If ſuch a Poffeffor having re- viſh Deſign: Becauſe otherwiſe, the Owner is to
“ceiv'd the thing as a free Gift, ſhall have after- challenge his Goods from the Hands of him who is
“ wards beſtow'd it on another, he is not obliged now in Poſſeſſion.
to make Satisfaction to the Owner unleſs it appear There is a Law of the Digeſt (f) urged in the pre-
that he would have given as much ſome other fent Caſe, which runs thus ; If after a Thief hath
way (1); for then the ſparing his own Stock will “ fold the Goods he ſtole, the Owner of them ſhall
be reckon'd a matter of Gain and Advantage to by violent means get the Price out of his Hands,
“ him. This Account ſeems to ſuppoſe a Diſtincti " he ſeems to be guilty of Robbery as much as
on between Donations out of Duty, and Donations “ other Party was before, and to be equally obnoxious
out of meer Bounty; as that the foriner only are to to the Law. For all agree that the Advantage of a
be made good in the Caſe before us, and not the lat- Stollen thing, or the Money into which it is turn'd,
ter. Becauſe ordinarily ſpeaking, no Man is preſu- is not it ſelf likewiſe Stollen. But this Law proper-
med to give, in this gratuitous manner, unleſs hely reſpects Civil Governments. For thoſe who live
the
(2) Either this Exception is ill grounded, or it may be extended to other Caſes, which the Author does nor. From whence
it appears that theſe determinations are not very cohærent.
Mr. Barbeyrac's NOTES on 11.
(1) It is true, 'cis of ſome advantage, but then 'tis as true, that as he might receive the Preſent, and make it his own, ſo he
had alſo right to alienate it in what manner he pleaſed. And ſo what he ipared of his own Goods, is lawfully gotten by him,
and conſequently all the Diſtinctions, which our Author hereafter makes, are needleſs.
Mr. Barbeyrac's NOTES on S 12.
(1) From what has been ſaid in the foregoing Notes, it follows, that the honeſt Poffeffor is not obliged to reſtore the value of
the thing, nor the gain he has made by parting with it, whether he bought it, or it was given him. so that the Authors Diſtin.
ctions here are alſo ſuperfluous.
(2) 'Tis for this Realon, that Mr. La Placette maintains, and upon this Suppoficion ſays, Thar as it is agreed, that we
mult reſtore a thing if it be in Being, he is perſwaded, that we can't keep the Price, that aroſe from it. Treat. of Reſtitutes,
1. 4. c. 5. Obſerve whither unfound Principles will carry Men, when they are once engaged in them.
(a) Add. I. 46. C. ;. l. 47. f. 1. D. de ſolution. (6) Calig. c. 16. (c) Vid. 1. 6. t. I. 1. 78. D. de rei vindic,
(d) Vid. l. 5. t. 3. 1. 25. 1. 8. D. de bæred. petit. Coinp. Ziegler. ad Grot. d. l. 1. 7.
(e) Add. Struv. Exercitat, XI. f. 13.
(1) Vid. I. 47. t. 2. 1.48. Sect. ult. D. de furtis.
in

CHAP. XIII.
241
immediately from Property.
them, as the thing it ſelf.
may demand the Price to be refunded? Some take of Right which ariſeth from expreſs Contract.
in a State of Natural Liberty, may as fairly ſeize ſuch a Purchaſer forefaw with fair probability, that
by Violence the Price of what hath been ſtolen from the true Owner would hardly recover his Goods by
XIII. Seventhly, Such a Poffeffor, though he riſe above what the actual Pofleffion which he re-
purchas’d the thing at a conſiderable Expence
, ftores may be valu’dat
, then tis abſolutely requiſite
yet
is bound to reſtore it, and cannot require his that what he expended ſhould be repaid hiin. But
« Charges of the Owner, but of the Seller. For, whether he who redeems the thing in this Cafe ihall
e otherwiſe, the Right of Challenging would turn be allow'd an Action (4) againſt the Proprietor, ſuch
“ to no account (1), if the Challenger were to re as they term Negotiorum geftorum, or to recover the
« fund the Price. And he who buys a thing of a- Charges he hath been at in the Proprietor's Buſineſs,
« nother whoin he might fufpect not to be the true it is the Province of the Civilians more nicely to
« Proprietor, ought to have provided particularly State and Enquire. (d) The reaſon which Grotius
« for his own Security, in caſe the
thing ſhould at- offers for his omitting to determine that Matter, is
,
« terwards happen to be claim'd: Though this Con- Becauſe the aforeſaid Action ariſeth purely from
dition of ſecuring the Buyer's Title, is indeed im " the Civil Law, having none of thoſe Foundati-
ply'd in all Contracts of Sale, according to Na-ons to reſt upon, from which bare Nature intro-
“ tural Equity (a).
“ duceth an Obligation in the Cafe. But tho’’tis
To the Rule above-mentioned the following Ex- not indeed the Concern of the Law of Nature to exa-
ception ought to be added ; “Unleſs in a caſe where mine or determine to what particular Action at Ci-
* the true Proprietor could not in all probability vil Law, the preſent Caſe may be, or ought to be
« have recovered poſſeſſion of his own, without reduc'd; yet it cannot be deny'd, but that the very
“ fome Expence: As ſuppoſe the Goods were de- Action above ſpecifyed, of recovering Charges on
“ tain'd in the hands of Thieves or Pirates, and from account of Buſineſs manag’d for another, hath a
* them purchas’d. For here the honeſt Man who Foundation in Natural Equity, and in Tacit Com-
delivers the Goods, may fairly deduct ſo much as pact. For it cannot on any pretence be requir’d of
the Proprietor would have gladly ſpent to regain me, that I ſhould by my kind and generous Alli-
them: Becauſe, the actual Poffeffion, eſpecially when ſtance to preſerve or improve another Man's Goods
not to be recovered without difficulty, is capable of altogether gratuitouſly, and without receiving what
being rated at a certain Value, and the Proprietor I am out o Pocket in his Service (5). It ſeems there-
when reinſtated in it, is adjudgʻd to be, on this ac- fore the moſt plain and natural way of reſolving
count, ſo much the richer (2). Whence aroſe the fuch Caſes, that the Party who redeeins a thing after
Cuſtom for Perſons who have loſt any thing, to pro- this Manner, as likewiſe he who tranſacts any Buſineſs
miſe Mýrutegv, a Reward and Encouragement to on another's behalf, be ſuppos’d to hold the thing
the Finder. (b) For the ſame Reaſon, though the which he hath redeemed, or about which he hath
buying of what's already our own be void, accor- employ'd his Money or his Pains, as a Pledge or
ding to the ordinary courſe of the Civil Law, yet Mortgage, till ſuch time as he receives Satisaction.
Paulus affirms it to be good and valid (3), if it be Yet it there be no Fruits of his Labour remaining,
firſt agreed upon, that the poſſeflion of what's our which he might take hold on for his own Security,
own may be purchas’d, when remaining with another. and if the other barbarouſly deny to pay him for
'Tis propos'd as a farther Queſtion on this point, his ſo uſeful and profitable Aliſtance, I am not of
" Whether a Man who buys a thing thus detain'd, opinion that he may apply the ſame Means towards
purely with deſign to convey it to the Owner, aſſerting his Right, as are uſed in that other kind
but
the Negative part; becauſe, ſay they, “ The Right all he can do ſhall be to expoſe the ungrateful
accruing to the Proprietor cannot be taken off by Wretch to publick Hatred and Deteſtation, as one
" this Allegation of the Buyer. (c) But indeed, if who doth not deſerve the leaſt Inſtance of Good
Note 1.
Mr. Barbeyrac's NOTES on §. 13.
(1) It is ſufficient, that the Proprietor can always recover the ſame thing in Specie from whomſoever is in Poffeffion of it by an
honeſt Intention. We are ſometimes glad to recover our Goods at any Expence, either becauſe the things are rare, or we have
great need of them, or becauſe we take fingular Pleaſure in the Poſſeſſion. Further, We know nor that the thing belongs to us,
and in that caſe we do or ought to count, that 'tis all Profic, if we obtain Reſtitution, or we know not what's become of it; and
in this caſe we ough to look upon it either entirely loft, or very hard to be recovered, to that we ought to be ſatisfyed in pay-
ing the honeſt Poffeffor that which he has given. But if we believe that it is bought very dear at the Price, and ſo had rather
leave it in the Hands of the honeſt Poffeffor, 'tis not the fault of this latter; and there is no reaſon why he ought to loſe his
Money rather than the other his Goods. You'll ſay perhaps, he ſhould have taken better Security. But we ſuppoſe he hath
taken all the Care he ought, or could. The Neceſfity and Nature of Commerce in this Life permits us often to have no certain-
ty, that the Perſon of whom we buy, for example or taking a thing to pawn, is the lawful Proprietor of it, or can make a valid
Contract with us about it, much leſs require perſonal Securities, and make them in force in caſe of Eviction. See above, s 3.
(2) See the Interpreters of Petronius, Chap. 97. Edit. Burman.
(3) The words are, Rei fue emptio tunc valet, cum ab initio agatur, ut posseſſionem emat quam forte venditor habuit, co in judicio
Do gefionis potior effet. Digeft. l. 18. t. J. De contraben. Emptione, &c. 1. 34. $ 4.
(4) A&tio negotiorum geſtorum is when one does the Buſineſs of any Man, upon his own Head, without any Commiſſion, or ex-
preſs Order on his part. See Digeſt. 1. 3. c. s. De negotiis geſtis, and 1. 5. c.4. § 1. following.
(5). This Tacit
, or feigned Agreement is no ways neceſſary. It is ſufficient to ſay, thar if we do not repay, nor ſatisfie him, who
out of his mere Good will has done ſome bafinels for us, we ſhall do him Wrong, which is forbidden by the Law of Nature,
Titius's Obſervat. on Laute, bach. 96. See above, $s. Note II.
(e) Vid. Lib. 5. t. 3. 1. 22. & D. d: bered, petit. 1. 25 princ. & Sect. 1. & Lib. 18. t. 1. De Contrah. Emp. buc. Leg. 16.&c: C. Lib.
& C. de rei vindic. Lib. 21. t. 2. 1. 1. D. de evitt. bc. Lib. 14. t. 2. 1. 2. 1. 3. D. de L. Rhodia, & Lib. 8. t. 45.
1:16. D. de evi&t. & Lib. 6. t. 2. 1. 2. C. de furtis. (b) Vid. Moſch. Idyll. 1. imitated by Apuleius, Meram. 1.6.
(c) Vid.
Lib. 50. 6. 17. 1. 11. D. de diverſ. reg. juris. (d) An A&tio negotiorum geſtorum is, when one Man has done for another 'a Bu.
fineſs unknown to him, without any commiſſion or any expreſs Order from him. See B. III. c. 5. D. de. Negotiis geſtis.
6. c.32
1.
3.
+ Hh
Will
1

242
Of the Obligations which ariſe, &c.
Book IV
2
6 them upon
16
CG
Will from Mankind (6). The Roman Laws have
Poſſeilion of a thing, and knows not whoſe it is
,
conſider’d the Equity of ſuch a Reſtitution, in hand-
6 is not, by the Law of Nature bound to give it to
ling the like Cafes (a). And in the whole Compaſs
" the Poor; though ſuch an Appointment by Civil
of this Affair, Terence’s Remark ought to paſs for 6 " Ordinances would be very juft and commendable.
a general Caution, that Jus fummum fumma
lapec The Reaſon is, becauſe by the force of Property
malitia (b); “ The higheſt Right is very often the none can claiin a Right in the thing beſides the Pro
higheſt Wrong
prietor. But now to the Party here concern'd, the
XIV. Eighthly, In the Opinion of Grotius, “ He not appearing of a Proprietor, is the ſame as if there
“ who buys another Mans Goods, cannot return really were none : Which is indeed a general Rule
the Hands of the Seller, and demand in other Caſes. And therefore there's n10 body who
« back his Money in their ſtead. Becauſe ſo ſoon as hath a better Title to hold the Goods, whilſt the
ever they came under his Power, there commenc'd Owner is unknown, than he who after this fair and
“ in hiin an Obligation of reſtoring them to their upright manner is at preſent in poſſeſſion of them.
true Owner. In which Cafe, we are of a diffe XVI. Tenthly, What Grotius afferts,
rent Judgment: For certainly I am not bound to
Fee taken either on a diſhoneſt account, or for an
purchaſe a thing which I knew to be anothers, only “ honeſt Service, yet ſuch as ought to have been
that the true Maſter may recover his Goods, and perform'd gratis, is not to be reſtor’d, we allow;
that I
may
loſe my Money (1). When therefore I if the neceſſity of Reſtitution is to be deriv'd whol?
find the thing which I bought to belong to another ly from the Propriety of things, conſider'd by it
Owner, and am unwilling the Claim ſhould be di- ſelf (1). For thus, he, to whoin any thing hath
rected againſt me, either to avoid the trouble of the paſs”d with the Conſent of the former Owner
, cannot
Diſpute, or becauſe I deſpair of getting my Money be obliged to refund it. But when the Cauſe of re-
again of the Seller, I thould think, that I might ceiving ſuch a Fee was diſhoneſt
, as ſuppoſe Extor-
fairly recede from ſuch a Bargain, (provided it were tion, then there ariſeth an Obligation to reſtore it,
not too
late,) to avoid the drawing upon my ſelf an from another Principle. And
under the general
unneceſſary and unprofitable Contention; yet ſo as Name of Extortion ought to be comprehended all
that I ſhould be at the ſame time obliged to diſcover Ways and Methods (though not ſo violent) of pick-
to the Owner, upon his demand, where his Goodsing Mens Pockets by corrupt Dealings : As when
are lodg’d, that ħe may have an opportunity of re- Magiſtrates refuſe to adminiſter Juſtice without a
gaining them (c).
Bribe (d) (2).
XV. Ninthly, He who comes honeſtly by the
That a
(6) David in 1 Sam. 35: 7, 15, 21. ſent his Men to demand a reward for his Mens Pains in guarding Nabal's Flocks, and was aa.
gry at his Denial, which he reſolved to revenge, and not a verbal affront only.
Mr. Barbeyrac's NOTES on § 14.
(1) But he Treats not here of a Bargain of Sale, which never was perform’d, for no body, I think, can imagine, that in this
cafe we ought to pay the Money, and having got the thing to be ſold, cauſe it to be reſtored to the true Owner. The Author
ſeems to leave us to gueſs at his
Senſe, which conſiſts in a Tacit Conſequence from what he has before formerly afferred, and
ſeems to be this. One is nor obliged to hold to his Bargain, when he diſcovers that the Goods are nor the Sellers own; nay, He
may endeavour to break it, though he has already paid the Price agreed on, and received the Goods. 'Tis not yet altogether the
ſame thing, eſpecially, if we argue from the Authors Principles. He had better, as the Commentator upon Grotius does, have
applied the Proverb, True Charity begins at Home; and what I have ſpoken of the honeſt Poffeffor will put the thing our of
doubt. The Law quoted by the Author makes nothing to his purpoſe, as will be diſcerned at the firſt Sight.
Mr. Barbeyrac's NOTES on § 16.
See what is ſaid above, 1. 3. c. 7. $ 6. Note 2.
Our Author quotes here i Sam. 12. 3, 4. upon which ſee Mr. Le Clerc's Comment.
(a) Vid. Lib. 11. 6. 7. 1. 14. f. 13. D. de religioſ. do ſumpt. funerum & Lib. 3. t. 5. l. 6. f. 3. D. de negot. geft. do Lib. 14. t. 2.
1. 1. D. de lege Rbodia. (6) Heautontim. Act.
4.
Scen. 5. v. 47, 48 (c) vid. Lib. 6. c. 1. 1. 17. princ. D. de rei vindic. do
Ziegler, ad Grot. d. I. Sect. jo. (d) See i Sam. XII 3, 4: Where Samuel's Intention ſeems to have been, nor to make
thew of any extraordinary Sanctity, but to declare by that folemn Proteſtation that he had in no reſpect tranſgreſs'd che common
Ducy of a Judge; and conſequently, that he had not deferv'd by any Fault of his to be thruſt out of his office, by the creation of
a King. See before, B. III. c. 7. Sect. 9.
3
OF

Lib. 2. cap.3. § 23. note 3. Ex hoc jure gentium in
221
OF THE
LAW of NATURE
AND
NATION S.
BOOK V.
By William PERCIVALE M. A. Student of Chriſt-Church.
CHAP. I.
Of PRICE.
I. After Property, the Meaſure of Things muſt be in-| X. The Cauſes why the Common Price riſes and
troduced.
falls.
11. What is the Moral Quantity of Things.
XI. The Common Price is not fufficient for the Com-
III
. How many kinds of Price.
merce of Man's Life,
IV. What is the Foundation of the Common Price of XII. Hence an Eminent Price wis ſet in Money.
Things.
XIII. Which, for the moſt part, was made of Metals.
V. Many Profitable Things have no Price, and why? XIV. How far the Governors of Societies may ſet an
VI. Why the Prices of Things Riſe.
Eftimate upon Money.
VII. Of the Price of Fancy.
XV. In ſo doing, they ought to have refpe&t to Land.
VIII. Of the Lawful Price.
XVI. The Value of Money is alſo ſubječi to an Altera-
IX. Of the Common Price.
tion,
S
INCE Things that are the Subje&t of Pro- different Nature may be compared together, and made
perty are of different Natures, and adminiſter equal to one another. Now Things are thus com-
differently to Human Neceſſities; and ſince it pared, and found to be equal, or unequal, in reſpect
often happens, that either the ſame Thing of their Quantities ; for Equality is nothing elſe but
belongs to many, (the Parts of which are an Agreement of Quantities : And therefore we muſt
not in all reſpects alike ) or that (1) Things conſider the Quantity of Things and Aations, as far
of a different Nature are to be exchang’d for one as they are uſeful to Human Life, together with the
another : Hence it becomes neceffary for Men to agree Foundation and Common Meaſure of that Quan-
upon fome Common Meaſure, by which Things of a tity.
II. We
Mr. Barbeyrac's NOTES on Chap. I. § 1.
(1) Commerce is a Conſequence of Property of Goods, and Price is the Conſequence of Commerce, or a Thing neceſſary to ac-
commodate each other by way of Exchange, to which all Commerce in general is to be reduced. So that the Roman Lawyers have
reaſon to referr the Settlement of Commerce to the Law of Nations, underſtood in the manner that I have explain’d it elſewhere.
- Dominia diftin&ta, agris termini poſiti, ædificia collocata : commercium,
Lib
. 1. tit. 1. De Juſticia, & Jure Leg. 5. Mr. Thomaſius nevertheleſs maintains, that Commerce is nor of the Law of Nations farther,
than by affuming that Right from ſuch general Cuſtoms as have proceeded from the corrupred Manners of Mankind, and which are
Growth of it. See the Diſcourſe, De Jure Statuun Imperii dandł civitatis, $ 14. and that, De Pretio affe&tionis in rebus fungibiles
non cadente, chap. 1. 9 5. both Printed at Hall in Sucony. But this reſpects another Queſtion, which rather relates to Divinity, than
See Leb.i. cap, 1. § 11. aforegoing.) It is ſufficient, that in the State thar Things now are, Commerce, as well
Propriety of Goods, is neceſſary among men, in the Condition they are ; ſo that we may fay, that the Sertlement of Commerce in
Commerce is a Conſequence, and one
to the chief Uſes of property, we muſt be careful not to extend the rights of Property to far, as
General is very conformable to the moſt pure Reafon, and the Law of Nations, to called in the moſt agreeable Sente.
Laſtly, As
the Civil Law.
+ I i
to
222
Of P RICE.
Book V.
Grotius, l. 2.
The Foundation of the Price or
upon ſome other Account. And therefore there muſt or Conveniences, or Pleaſures of Human Life. Hence,
II. We find then, that Things are ſaid to be equal
, proper Price, it is neceſſary to confider diſtinctly, firft
,
not only as they agree in the three Dimenſions, but in upon. what it is founded ; ſecondly, what it is that
fome other reſpeet. Thus Honour, Labour, and raiſes or finks it.
Wages are ſaid to be equal, or unequal, not by reaſon Value of any
Action or Thing, is, (1) Fitneſs to pro-
of their agreeing, or diſagreeing in Dimenſion, but cure, either mediately or immediately, the Neceſſaries
,
be fome other Quantity, beſides that which is term'd in common Diſcourſe, we call thoſe Things that are
Phyſical and Mathematical
, tho' Philoſophers have uſeleſs, Things of no Value ; and thoſe Men too we
hitherto talk'd of no other. Which is evident, if we ſay are of no Value, that are unprofitable Burthens of
conſider, that the Nature of Quantity in general, the Earth. Thus the Cock, in the Fable, fet no Value
does not conſiſt in the Extenſion of Subſtance, but in upon the Jewel, becauſe of no uſe to him.
Things being capable of having a Value put upon C.12. § 14. is of Opinion, That Want is the moſt natural
them, and conſequently of being compared together
. Meaſure of the Price of Things. Where if he means that
But ſince Things receive a Value, not
only from their Want, in its own Nature is the Foundation of Price, or
Natural Şubſtance, but alſo in reſpect of ſome Moral that therefore Men only value a thing, becauſe they want
Conſideration; it follows, that beſides the Natural, it, it will not univerfàlly hold true. For, if ſo, thoſe
there muſt be alſo a Moral Quantity (a). However, Things that are ſubſervient to our ſuperfluous Pleaſures
Things of the fame Nature and Goodneſs receive a wou'd bear no Price, which yet the Luxury of Man
Value even from their Natural Quantity, as a great has ſet a great Rate upon. For we do not really want
Diamond, cæteris paribus, is more valuable than a any thing, but what we cannot, unleſs with great Incon-
finall one ; which yet we have not always a Regard venience, be without, Mat. 9. 12. But if his meaning
to in the Valuation of Things of a different Species, be, that the Want of the Buyer raiſes the Price, I own
or Goodneſs; for a great Dog is not always inore it is commonly fo; but, that it is the Natural Mea-
valuable than a little one, or a great Maſs of Lead fure of Price, that the more a Man's Neceſſities preſs
than a ſmall piece of Gold.
him, the more may be juſtly exacted of him, no honeft
How Perſons are Morally valued according to Opi- Man will admit : Nor does that (2) place of Ariſtotle
,
nion (b); and their Actions, according as they are pro- cited by Grotius, make for the purpoſe: For the
dučtive of Merit or Demerit, has already been dif- xpeich, or (3) Want, he ſpeaks of there, which in a
courſed of in its proper place (c). My Deſign here manner preſerves and holds together alí Cominerce
,
is only to treat of the Moral Quantity of Things and is not the Foundation of Price, Þut of Bartering only.
Actions, as they are conceiv'd to have ſome Uſe in the For if Men wanted nothing but what they could
common Affairs of Life, and as they are capable of ſupply themſelves with, there would be no Bartering,
being compared together in order to Commerce. This or Exchanging Commodities, but every one would
we call Price, which is the Moral Quantity or Value keep and enjoy his own (4).
of Things or Attions, by which they are uſually compared
V. Yet it is obſervable, that ſome of the moſt uſe-
together in order to Traffick.
ful Things of Huinan Life have no Price ſet upon
III. Price may be divided into (1) Proper and them; either becauſe they are and ought to be free from
Eminent ; the firſt is placed in Things and A&tions, Property; or becauſe they are excluded from Com-
ſo far as they are capable of procuring
either the Neceſ- merce; or, laſtly, becauſe they come within the reach
faries or Conveniences, or Pleaſures of Life: The other of it, no otherwiſe than as Appendages of ſome other
is placed in Money, which is ſuppoſed to contain Thing : beſides, the Law has remov'd ſome Actions
virtually the Prices of all Things elle, and to be the from Commerce, and thereby exempted them from
common Meaſure and Standard of them.
Price. Thus the Air, the Sky, the heavenly Bodies,
IV. For the right underſtanding the Nature of the and the vaſt Ocean not being appropriated, can bear



to do a conſiderable hurt to Commerce. We have ſeen the Uſe of this Remark in the two laſt Chapters of the preceding Book ;
and 'tis proble that it may ferve elſewhere to decide ſeveral Caſes better than they uſually are.
Mr. Barbeyrac's NOTES on $ 3.
(i) The Author faith Pretium Vulgare; but if we ſhould tranſlate it ſo, viz. a Vulgar or Common Price, we ſhould confound that
fort of Price with the other, that is treated on at $9, Pretium Commune, i.e. the Genus with the Species. Moreover, the Terms
Proper, or Intrinſick, do in themſelves much better expreſs the Notion in which our Author underſtands the word Vulgare, in this
place, as any one may eaſily perceive.
Mr. Barbeyrac's NOTES on 6 4.
(1) It is one of the general Reaſons ; 'for that which is of no Ufe, paſſes commonly for a Thing of no Value. But whence
comes it then, that Water, and ſome other Things very uſeful for Life, are not rated at any Price? as our Author ſpeaks a licele
lower. We muſt therefore add another Reaſon here, I mean, That Things that are capable of Price, ought to be not only of ſome
Uſe, if not truly, yet at leaſt in the Opinion and Affections of Men ; but alio of ſuch a Nature, as not to be ſufficient for the Needs of
the world. And ſo the more ufeful and rare a Thing is in this laſt ſenſe, the Higher or Lower the Proper and Intrinfick Price will be
If the Faſhion of a Thing paſſes away, or few Men eſteem it, then it becomes a good Bargain, how dear ſoever it was before. On
the contrary, if a Thing that is common, and coſts little or nothing, becomes Rare, nothing more needs to ſet a Price on it,
and ſometimes to make it very dear; as appears, for Example, by Water, in Dry Places, and a certain Times, as in a Siege, orci
By this Principle, we muſt explain and rectify all that our Author hath ſaid concerning the Foundation of Price in General. See Titius's
obſerv. on Pufendorf. CCCXXXI, and on Lauterbach. Obſerv. D. III, as alſo Mr. Thomaſius's Juriſprud. Divin. Lib. 2. c. 11. $ 33, Gr.
and his Diſcourſe De Pretio Affe&tionis, c. 1. $ 10.&c.
(2) Ariſtotle's words are, & dexe &ví tin cánla yelpas 7670 da ta danbea ri xpéia, ñ warla owéxes.
33 So Ariſtotle exprefly ſpeaks, "Orın xsele cwexter si 8v, 29.01
, ott ze er xperia ion dannawv, i dippóricos, pero
*x dan
dilov9. i.e. Want
includes one thing, which Mews, that if Men jłood not in need of one another, neither both, nor either of them
(4) Ariji. Polit. 1. c.6.(), " Bartering obtains in every thing, and began naturally, from fome Peoples having more than they had
occaſion for, and others having lefs : For then they were forced to exchange, 'til they had furnitha themielves with what they
$ wanted.

(2) See B. I. C. I. $ 22.
(6) See B. 8. C. 4.
(c) See B. I. c. 8. See B. 8. c. 3. $ 18, &c.
no

CHAP. I.
223
OF PRICE
Head;
no Price, how ſerviceable ſoever they may be to hu- pretended. And hence, by the way, it appears how the
man Life. And the Law having forbid (1) Things Cauſe that (5) Demoſthenes pleaded before the Judges,
ſacred to be brought into Commerce (2), has thereby about the Shadow of the Aſs, ought to be decided :
exempted them from Price, altho' ſome of them have For he that hired the Aſs could not hinder the
nothing in their own Nature to render them incapable Owner from lying down where the Shadow of the
of it
. Nor can any Price be aſſign'd for a Free-man's Beaſt fell, but mighr immediately have taken it away,
it being a Contradi&tion to be Free, and at the by driving the Aſs to ſome other place. Laſtly,
ſame time expoſed to Sale ; for he is no ſooner ex whatſoever A&tions either divine or human Laws
pos'd to Sale, but he ceaſes to be Free: And there- command to be done gratis, or forbid to be done at
fore, even upon this Account, (3) Liberty is ſaid to all, and ſo exclude from Commerce, cannot be brought
be an invaluable Thing, becauſe the Advantages of it under any Price. Of which nature are thoſe ſeveral
are fo great, as to exceed all Value. Here 'tis worth A&ions which have ſome ſupernatural Effect aſſign'd
obſerving, what Philo Fudæus, de Spec. Leg. p. 597 to them by divine Inſtitution; as Remiſſion of Sin, bý
Edit. Genev. delivers, Prices were ſet upon thoſe the Abſolution of the Prieſt ; the Application of ſpi-
' who had devoted not only their Goods, but them- ritual Benefits, by means of the Sacraments; and fuch-
ſelves; not according to their Beauty, or Stature, like: Which whoever confers upon another for any
or fuch-like, but according to their Age and Sex: valuable Confideration, is guilty of Simony ; and to
· for the Law fixes CC Silver Pieces Price for a Man, meaſure ſuch Things with Money, is look'd upon as
from the 20th to the both Year of his Age, and Impiety and Irreverence towards the Divine Au-
CXX upon a Woman ; from the 5th to the 20th thor (a). Unlawful too it is, to beſtow Eccleſiaſtical
Year LXXX for a Man, and XL for a Woman; Preferments for Money, upon unworthy Perſons,
from Infancy to the 5th Year XX for a Man, and which ought to be given to deſerving Men gratis (6)
XII for a Woman ; if paſt the 60th Year for a Man Neither ought the Rewards and Teſtimonials of Vir-
LX, for a Woman XL. All of the ſame Age and tue and Learning to be ſold to thoſe that don't deſerve
Sex are rated at the ſame Price, for Three good Rea- them; not only becauſe by this means they grow
• fons: iſt, Becauſe the Dignity of the Vow is the ſame, cheap, but becauſe ſuch Men are often, by a pompous
· whether Great or Mean Perſons make it. 2dly, In Title, recommended to publick Employments, to the
the caſe of a Vow, Perſons ought not to be rated great prejudice of the Common-wealth (c). And in-
upon the ſame Terms with Slaves expoſed to Sale; deed, 'tis a ſhame to the Men of Letters, that ſome
for thoſe are more or leſs eſteem'd, according to the ſhould take fuch Liberty, as Fabius of Bentivoglio (d).
Beauty and Vigour of their Bodies
. 3dly, and expreſs’d in Teſt, who going to make a certain Per-
chiefly, Becauſe with God there is no Reſpect of fon a Doĉtor, met by chance an Afs, that yawning with
Perſons, as there is with Men. See Levit. ch. 27. an open Mouth, look'd as if he were Laughing: To
Many Things alſo have no Price, becauſe they are whom, Why laugh you, ſays he, you filly Creature? We
not capable of being poſſeſſed ſeparately by them- can make you a Do&tor too, if you have but Money (e).
ſelves, which yet very much enhance the Price of the The Praštice of the Chineſe is otherwiſe, of whoſe
Thing they appertain to; as the want of them takes Examinations and Preferments, vid. Neuhof. in Gen.
from it not a little (4.) Thus the lying open to the Defcript. Sina. c. 3. Plin. Nat. Hiſt. 1. 16. c. 4.
Sun, a clear and wholſom Air, a pleaſant Proſpect, Oaken Crowns were the noble Badge of the Sol.
the Winds, Shades, &c. confider'd ſeparately in them • diers Valour, but now of late are Marks of the Em-
ſelves, bear no Price, becauſe they cannor be enjoy'd peror's Clemency; ſince, by reaſon of the Licen-
without the Land they belong to; but yet of what ' tiouſneſs of our Civil Wars, it ſeems meritorious
Moment they are in the Purchaſe of Lands and Te not to kill a Subje£t. O happy Times! which have
nements, no Man is ignorant.
rewarded ſuch noble Services with Honour only,
Pliny, Nat. Hift
. lib. 1 2. cap. 1. ſays of the Plane- and, when other Crowns were valued for the Gold
Tree, That the People pay Taxes for the very Shade they were made of, would not allow the preſerving
of it. Thus in Holland, thoſe that have Wind-mills a Subječt, to be rewarded with any thing that might
pay a Yearly Tribute for the Publick Wind, as is 'bear a Price; thereby clearly profeſſing, that they
6
C
printed at Hall in 1707,
deemed
Mr. Barbeyrac's NOTES on $5.
(..) By Res Religioſa, the Roman Law underſtands principally Places where any thing had been buried. See Inſtit. B. 2. t. 1. 1.8, 9.
and Dig. B. 11. t. 7. de Religos. Lo Sumptib. Funerum, &c.
(2) This Privilege, which is granted to Things facred, belongs not only to Temples, and other Things ſet apart immediately to the
Service of God, but towhat's neceſſary for the Maintenance of Miniſter's, and all that appertains to them. This Privilegę, ſay I, owes its
Original to the pious Fraud of the Miniſters intereſted, and in the Chriſtian Church the Clergy have not only imitated the Pagan
Prieſts in that reſpect
, but have perhaps outdone them.' See Mr. Thomafius's Diſcourſe De Bonorum Sæculariſatorum Natura, $ 2, c.
(3) Libertas ineſtimabilis Res eft. Digeſt. lib. 50. tit. 17. De Div. Reg. Juriſ. Leg. 106. I rather quote this Law, than that Paf-
{age of Philo, cited by the Author at large, becauſe it ſpeaks only of the Valuation of Perſons devoted to God, which are to be re-
Valuation made according to Age and Sex, without any regard to Stature, Beauty, or ſuch-like things. But tho' Free
Perſons are not the Subject of Commerce, it doth not follow that they can't be made ſo, as Mr. Hertius obſerves, in reſpect of the
Advantages to their Freedom. See lib
. 3. chap. 1. 97,8. before-going. The Right of Governing Free-Men is alſo capable of Valua-
tion, and is of a Nature that may be alienated, if we will. See Grotius, lib. I. chap. 3. $ 12. and what this Author ſays, lib.
(4) See lib.4. ch. 5. 5 2. above.
(5) See Plutarch. de Dec. Oratoribus, and the Scholiaſt of Ariſtophanes de Veſpis, v.191.
(a) See A&ts 8. 20.
(6) Add. Decretum Gratiani, Cauſ. 1. Quæft. 1, 2, 3. (c) Vid. Plin. Nat. Hiſt. I. 16. C. 4.
fanum Nicium Erythræum, Pinocotheca 2. C.29.
(e) Ovid. de Arte Amandi, l. 20.7.163. Secum habet ingenium, qui cum libet, ac-
cipe dicit.
of Ii 2
thought
7
ch. 6.
$ 16. following
(d) Vid.
224
Of PRICE.
Book V.
C
are,
3
' thought it a Sin to even ſave a Subject, for the ſake Spices. • The Ægyptians do not permit their Paper-
of Lucre.' Thus a Judge ought not to ſell that Juſtice reed to grow in many places ; by which they pro-
which he ſhould adminiſter gratis (6).
cure a Scarcity, and conſequently raiſe the Price,
bụt hinder the common Uſe and Advantage of it
(a) Non bene condułti vendunt perjuria teſtes, · Strabo, l. 17. p. 550. Plato Euthydemo, p. 211. G
Non bene feletti judicis arca patet.
Ed. Wéch. That which is ſcarce is valuable : Water
Turpe reos empta miſeros defendere lingua, " is not valued, altho' the moſt uſeful Thing in the
Quod faciat
magnas turpe tribunal opes.
· World. Mamertin. Paneg. Julian. c. 11. n. 3. Ed.
Turpe tori reditu cenſus augere Paternos,
Cellar. Curious Dainties are not valued for their
Et faciem Lucro proſtituiſe ſuam.
Taſte, but for their being hard to be gotten.'
Beſides, a Thing is ſtill more valuable, when 'tis not
Plutarch, in the Life of Romulus, p.25. talking of the only ſcarce, but alſo comes from remote Places
Duty of Patrons towards their Clients,adds,
Tis account- Pliny (d) tells us of two Boys, the one born in Aſia
,
ed a mean and ſordid thing for thoſe who are Rich to ac the other in France, who were wonderfully alike,
cept of a Fee from thoſe that are Poor. From whence and whom therefore the Merchant ſet a prodigious
the Cincian Law afterwards had its Original : Illic cla- Rate upon, and the Purchaſer look'd upon nothing, in
moſi rabioſa fori Furgia vendens improbus, iras & his whole Eſtate, to be more valuable. For the Am-
verba locat. Šen. Herc.fur. v. 171, c. Vid. Quint.bition of Mortals eſteem thoſe Things moſt, which
Inſtit
. Orat. l. 12. c. 9. The Roman Laws thought it few Men have in Common with them; and on the
mean to ſet a Price upon Philoſophy and Civil Know- other ſide, thinks meanly of thoſe which are ſeen in
ledge. Vid. 1.50 t. 18. leg. 1. $ 4,5. D. de Extraordin. the hands of every one. Nay, fo perverſe we often
cognit
. and Grot. in Flor.Spar. in h. l. and Quint. Inftit
. as to eſteem a Thing the more, becauſe it is forbidden
Orat. 1. 12. c. 7. where diſputing whether a Price its being forbidden, whets our Curioſity. And there?
ought to be ſet on Eloquence, among other things, fore Lucian (e) with Reaſon ridicul'd thoſe, who in
ſays, It may be a Means of rendring Things Cheap, to put Winter load themſelves with Roſes, and are pleas'd
a Price upon them. A Ruffian, or a Sorcerer, can't
with them when ſcarce and out of Seaſon; but
juſtifie his being hired, for Money, to kill a Man. nauſeate and deſpiſe what is in Seaſon, and agree-
A Scholar ought not to debaſe his Style and Learning
( able to Nature.
in writing Scandal ; nor ought any Man to proſtrate But generally we ſet a great Value upon nothing but
his Credit
, by maintaining an Unjuſt Cauſe, or to what raiſes us, in ſome meaſure, above the Rank and
ruin a Juſt one by Perjury ; and many more of the Condition of others ; and for this reaſon Honours
fame Stamp
particularly, are more valuable, for being ſcarce.
VI. There are ſeveral Reaſons why the Prices of . The Rewards of Virtue ought to be chaſte and fa-
Things ſhould riſe, or fall, why one thing ſhould be cred, not to be communicated to wicked or mean
preferr'd before another of as great or greater Uſe • Perſons; for Things that are ſcarce and difficult,
For here the Neceſſity of the Thing, and the Emi are recommended to Men by the Rewards that at
nency of its Uíe, does not always take place. Nay, • tend them (f). Tho' indeed it proceeds from the
we generally find the moſt Neceſſary Things are Corruption and Pravity of Human Nature, that we
Cheapeſt ; becauſe, by the peculiar Providence of God, value real Goods more or leſs, according as few of
Nature affords a greater Encreaſe of them. What- many poſſeſs them in Common with us.
'ſoever is neceſſary for Mankind, the Divine Provi- Goods are never the worſe, becauſe others poſſeſs the
'dence has contriv'd that it ſhould not be dear, or like ; nor the better, becauſe others want them. Thus
hard to be got, as are Pearls, Gold, Silver, and my Health is not the leſs valuable to me, becauſe
other Things, which neither our Body, nor Nature others alſo enjoy theirs ; nor the more, becauſe others
requires : but as for thoſe Things we cannot fafely are fick. Nor is my Knowledge leſs worth, becauſe
be without, ſhe has plentifully diſpers’d them others are Knowing too; nor wou'd the Value of my
throughout the World (b). That which chiefly Wiſdom riſe, ſhou'd other People prove Fools. He
raiſes the Price, is Scarcity, · Thoſe Things that therefore that prides himſelf in ſeeing others want
are ſcarce, ſays Sextus Empiricus (c), are valued : the good Things which he is Maſter of, ſeems indeed
' thoſe that grow amongſt us, and are every-where to take Pleafure in other Mens Misfortunes: And, on
to be had, are quite otherwiſe
. If Water were the other fide, he that thinks his own Goods the
' difficult to be met with, how much more valuable worſe, becauſe others poſſeſs them in Common with
would it be than the Things we inoſt value now him, ſeems to be moved with Envy (8).
Or, if Gold lay in the Streets as common as Stones, But indeed, as in many things, ſo in this, the
" who do you think wou'd value it, or lock it up?' general Courſe of Mens Lives deviates from right
And therefore ſome have thought it a Maſter-piece Reaſon. Hence it it, that the Luxury of Man has
in Trade, to procure a Scarcity. As the Dutch, in fet moſt unreaſonable Rates upon many things, which
many Parts of the Indies, root up the Cloves and Human Nature could eaſily be without: Which ſome
Nutmegs, to prevent too great a Plenty of thoſe think were contrived on purpoſe, that there might




For my
C
(6) The words of the Digeſt are, And Philoſophi Profefforum numero fint? Et non putem ---- quia hoc primum profiteri eos oportet,
mercenariam operam Spernere. Proinde ne furis quidem Civilis Profeſſoribus jus dicent : eſt quidem res fan&tiſima Civilis sapientia, ſed que
pretio nunmario non fit aftimanda nec dehoneſtanda, lib. 50. tit. 13.' De Extraordinariis
Cognitionibus, Goc. Leg. 1. 9.45. We may add,
That the Roman Law allowed neither the Immunities, Privileges
, nor Rewards to Poets, that it did to the Profeſſors of other Sci-
ences, of which Monſ. le Clerc gives the Reaſons in Tom. 1. of his Parrhafiana, p.si, C.
(a) Ovid. Amor. lib. 1. El. 10. V. 37, OC. (6) Vitruv, de Architect. 1. 8. in the Preface.
(c) Pyrron. Hypoth. l. I. C. 14.
p.29. Ed. Genev,
(d) Lib. 7. cap. 12. (e) In Nigrino. p. 38, 39, Ed. Amft.
(f) Cic. de Invent. l. 2. c.39. vid. Corn. Nep.
Miltiad., c.5. (8) See Numb. II. 28, 29. Mark 9. 38, 39.
be
CHAP. I.
225
of PRICE

as they
never any
two
C.
C
de Maria
« Price can be ſet upon them. Id. l. 37. Promhat no
19.
19
be fome Uſe in vaſt prodigious Riches. What migh have them not åre as happy as thoſe that have them.
ty
Rates ſome Pearls bear, Whofe Goodneſs conſiſts in For Mankind is fo whimlical and filly, as to think
juch a Degree of Whiteneſs, Largeneſs, Smoothneſs thoſe happy who poſlēls Superfluitiés
, rather than
and Weight, (1) Qualities o hard to be match'd
, that thoſe
who abound in all the Neceflaries and
and Con-
of thoſe Pearls are found alike! veniencies of Life. And therefore it ought to be rank'd
Plin. Nat. Hiſt. 1. 9. c. 35. • Pearls bear the greateſt ainong the ſenſeleſs 'Opinions of the common People,
* Price of any thing; they were firſt brought to Rome to value Things, either for their being new, or ſcarce,
when Alexandria was taken, not long before Sylla's or hard to be gotten, or brought from far, unleiš their
Time; but a little after were ſo much in Falhion, Goodneſs alſo and their Uſefulneſs recommend them.
• that even ordinary Women affected to wear them Charron de la Sagelſe, 1. 1. c. 39. num. 11. and 1. 2.
• for they uſed to ſay, A Pearl to Women, when c. ic. num. 2. Agatbarcid. de
they appeard in Publick, was as good as a Li&tor. ing of Alilei and Calandrini, whole Country abound-
• Idem. ibid. Some Jewels are ſo valuable, that no ed in Gold, ſays, barter'd
Our " Quantity of Braſs, but gave double for Iron. For
• Coral amongſt the Indians bears as great a Price as they proportioned their Rates according to the Plen-
their Jewels do amongſt us. Idem. I. 32. c. 2. Ad. . ty or Scarcity of the Commodities, in which we
have not ſo much Regard to the
Nature of the Thing,
• L. 13. c. 15. L. 37. C. 4. L. 6. c. 17. Of Silk. With
ſo much Pains, and ſo far is it brought that Women are of daily Uſe, and eſpecially ſuch as relate to Pro-
. when they appear in Publick may be ſeen through. viſion, Apparel, and Arms, riſe in their Price, when
. At this Day Amber with us bears a moderate Rate, they become neceffäry as well as ſcarce ; as in a Dearth
• in the Eaſt it is vaſtly dear. (2) Nay, the Folly of of Corn, or in a Siege, or in ſlow Voyages, where
Men fanfies there muſt be ſomething extraordinary Hunger and Thirſt are craving to be ſatisfied, and Life
in what coſts inuch. Heliogabalus ordered the muſt be preſerv'd upon any Terms. Plin. Nat. Hiſt
.
Prices of the Dainties provided for his Table, to be 1.8. c. 57. Quintil. Declam. 12. p. 176. Ed. Lug.
repreſented to him greater than really they were ; for Bat. In a very great Scarcity any thing that can
that he ſaid, created an Appetite to them. magis be bought is cheap. When Hannibal beſieged Cafili.
illa juvant, quæ pluris emuntur, Juv. Sat. 11. v. 16. num, a Mouſe was fold for Two hundred Pieces of
Luxury has impos’d a Price upon the very Dregs Gold ; and he that fold it died of Hunger, whereas he
Sea caſts , Curt. 1. 8. c. 9. n. 19. that bought it was preſerved. The Prices of Artificial
Old Plate receives a Value from the Fame of the Things, beſides the Scarcity of them, are much raiſ-
Workmen ; Braſs from a few Mens Folly.' Sen.Con- ed by the (3.) Neatneſs of the Art. < In which L.
fol. ad Helv. c. 11. Fanus Nicius Erithræus (a) 'Mummius was ſo ignorant, that when he had taken
tells us of Tulips, that thirty Years ago (when he Corinth, and thereby got Pofleſſion of the Statues
writ this) they lay upon the Top of the Alps, and Pićures drawn by the ableft Maſters, he pro-
without any Care or Notice taken of them: Yet, claimed to thoſe whom he had hired to tranſport
when they were brought to Town, the People, them into Italy, thát if they loſt them, they ſhould
fond of them for their Rarity, ſet ſuch a Price find him new ones, Vell. Pat.l. 1. C. 13, The Re-
upon them, as that every Root fold for above putation of the Artificer adds Credit to ſome, and o-
a Hundred' Crowns. But after they had encreaſed thers are the more valuable for the Character of their
and grew common, their Price funk ſo low, that hard- former Poffeffor. As Lucian (6) mentions one, who
ly any thing was cheaper. “ As our Deſires are, ſo had bought Epictetus's Earthen Lamp at three hun-
are our Efteem of Things; and there's no End of dred Denarii, hoping, no doubt, to get Epictetus's
raiſing the Prices of Things, unleſs we firſt ſet Wiſdom, by ſtudying by that Light. Thus the City
Bounds to our Extravagancies, Cicero in Verrem, Cuſco in Peru was in fo great Requeſt
, that even the
4. C. 7. China and Earthen Wares are the dearer Seed that grew near it, tho' really no better than
for being brittle. For 'tis an Argument of Riches, any other, was yet of more Value than that which
and a glorious piece of Extravagancy to have a grew elſewhere (c). In ſhort, the Difficulty, the
Thing that ſhall immediately be wholly deſtroyed. Elegancy, the Uſefulneſs and Neceſſity of the Work, the
Plin. l.
33. The Brittleneſs make Cryſtal the dearer. Scarcity of Workien, (d) their being Maſters in the
For among unskilful People, the Danger, which Art, their not being under a Neceſſity of Work-
Ought to ſink the Price, raiſes it, Sen. de Ben. 1. 7. ing, all contribute to the raiſing of the Price.
C. 9. Strab. l. 2. p. 85. Ed. Genev. Of precious That fort of Work is moſt artificial, which de-
Stones, that are ſo much valued, that thoſe that pends leaſt upon Fortune ; that the moſt fordid,
G
1.
6
Mr. Barbeyrac's NOTES on 6 6.
(1) Etenim qui modus eſt in his Rebus cupiditatis, idem ejt aftimationis : Difficile eft enim finem facere pretio, nifi libidini feceris: i. e.
In theſe things, the Value of them is according to Mens Defires. "Tis hard to fet Bounds to the Price, 'till you have limited your
Deſires after chem. Cicero in Verr. lib. 4. chap. 7.
(2) Hence it was, that by the Roman Law, an Eunuch-Slave which was above ten years old, and underſtood fome Art, was valued
at more than a Slave that pretended to Phyſick. See Code, lib. 6. tit. 43. Commun. de Legat. & Leg. 3. princip. and Mr. Thomafius's
Diſcourſe de Pretio Affe&tionis, &c. chap. 2. $15.
(3) 'Tis becauſe curious works are rare. So that the Author improperly diſtinguiſhes berween the Rarity of fuch Things as are
related with it : as is evident from other Examples alledged by him. See Mr. Thomaſius's Diſcourſe de Pretio Affe&tionis; and
chap. I. S II.
(a) Pinacoth. 1. 3. C. 17. in the Life of F. Barclay, who was a great Admirer of them. (b) Adverſus indo&tum, p. 386. Ed. Amſtel,
Garcilaſo de la Vega Comment. Reg. 1. 3. c.20. (d) The Athenians had more need of good ſtrong Roofs to their Houſes, than
the famous Ivory Statue of Minerva, yet I had rather be Phidias than the beſt of Carpenters. For a Man muft be rared, not accord-
ing to what he can do, but according to what Reputation he is in; eſpecially, fince few can Draw or Carve finely: but any one is
'Mines.' Xen. Mem. Socrat. p. 435. in fin. l. 2.
capable of being a Carpenter, or a Porter. Cic. in Bruto, c. 73. Thus Nicia gave-a Talent for a Servant to look after his Silver-
which
226
Of PRICE.
BOOK V.
Ad Leg. Falcid. Leg. 62, 63. and
which moſt defiles the Body; that the moſt ſervile, King is pleas’d to be taken with it. But here ſome
' which is of moſt Labour to the Body; that the obſerve, that the Fancy of the Buyer ought not to
moſt ignoble, which requires the leaſt Virtue.' Arift
. raiſe the Price of the Commodity, unleſs ſome other
Polit. l. 1. C. 7. (11.) And again, " That Exerciſe, Cauſes concur. The (2, Roman Laws make no Al-
Art, or Diſcipline is to be reputed mean, that renders lowance for the Fancy of the Party in the Reftitution
• either the Body or the Soul unfit for the Pra&tice of Damage done by Chance (a): And yet Merchants
of Vertue. Pol
. 1. 8. C. 2. (4) . As for the more frequently raiſe the Price, when they ſee the Buyer
• noble Arts, fome are more worth than they coſt; fond of the Commodity. Diodorus Siculus (6) ob-
you purchaſe of a Phyſician Life and Health, ferves what an Advantage the Italian Factors made of
Things invaluable; of a learned Tutor the Li- the Drunkenneſs of the Gauls : They bought them
· beral Sciences, and the Adornment of the Mind : Wine, and fold it at moſt unconſcionáble Rates ; for
, a
a their
Things they teach us, but for their Labour. Sen. Wine for a Butler.
de Ben. I. 6. c. 15.
However the Affe&tion of the Seller may fairly raiſe
VII. But ſometimes it happens, that ſome certain the Price, if to be he ſignifies it to the Buyer ; for to
Things are valued at a high Rate, by ſome particular part with a beloved thing, for the ſake of the Buyer,
People only, which may be call’d the Price of Fancy. deſerves ſome Conſideration (c). Laſtly, The Price of
It was a Saying of a certain Arabian, " Whatſoever is Things is ſometimes enhanced byforne vicious
· dear, altho' it be dear, yet if I have a fanfie for it, Habit of Mind, as Vain-glory, Cruelty, and the
it is not dear; nor can any Thing, that pleaſes, be like (d).
' ſaid to coſt too much. Leo Afric. 1. 3.
All VIII. And theſe always, raiſe the Prices of Things,
• Gifts are valued, as they are acceptable to the Re- as their Contraries always lower them. But, in order
ceiver. Liban. Declam. 41. p. 870. D. Ed. Pariſ. to regulate the Prices of particular Things, pro hic &
And this, where Animals are the object, proceeds nunc, and to reduce them to a juſt Standard, we nuuſt
from a fort of Acquaintance with them (1), or, be- remember, that in the ſtate of Nature every one has
cauſe they know how to ſuit themſelves with our power to put what Price he pleaſes upon his own
Humour ; or becauſe we have eſcaped ſome imminent Goods, as being, in that ſtate, the fole and ſupreme
Danger by their Aſſiſtance ; or perhaps they are the Maſter of them. For, in this caſe, ſhould another price
Remembrancers of ſome fignal Event. Beſides, fome my Goods, it would ſtill be in my power to accept
Things are recommended by the Friend that gives or reject it; and thus I ſhould, in the end, put the
them, ſo that we would not part with them for ſeve- Price upon them my ſelf: and tho' I lay never fo ex-
ral others of the ſame Goodneſs.
travagant a Rate upon them, no Man can have any
cauſe to complain ; for, no one ought to be concernd
Mihi linteum remitte
how much I magnify my Riches in my own Fancy;
Quod me non movet æſtimatione,
and they who think the Price too great, may let it
Verum eft μνημόσυνον mei fodalis.
alone. And therefore, if any one has a mind to my
Catul. Carm. 12. 11, 12, 13. Goods, 'tis fit I ſhould put what Price upon them
Acceptiſima femper
I pleaſe : as, on the other ſide, ſhould I 'force my
Munera funt, Author que pretiofa facit. Commodity upon another, I muſt take what the
Ovid. Epift. 17. v.71, 72. Buyer, who is indifferent, will be pleas’d to give me.
Indeed, if any one, through Ill Nature, or Hatred,
Many alſo put a Value on Things, becauſe ſome great or Envy, refuſes a Man in want, either to ſell at all,
Man whom they are willing to compliment, has or at leaſt ſells upon hard (1) unreaſonable Terms,
expreſs’d an Efteem for them. Thus, this or that then, and only then is there cauſe to complain. From
Proviſion or Apparel riſes in its Price, when the whence it follows, that in a ſtate of Nature, the
(4) Reſpondetur, quædam pluris, quam emuntur. Emis à Medico rem ineſtimabilem vitam, o valetudinem bonam : à bonarum Artium
preceptore Studia liberalia, & animi cultum. Itaque his non Rei pretium, ſed Operæ ſolvitur, quod deſerviunt , quod à rebus ſuis avocati nobis
vacant. Mercedem non meriti, ſed Occupatione ſuæ ferunt. See Quintil. Inftit. Orat. lib. 12. chap. 7. in fin. Pythagoras blamed thoſe
that took Money of Young Men, for teaching them ſuch Things as were not to be valued : Meator ofs átorów to egitlovtası
Jambl. de Vit. Pythag. chap. 34. num. 245.
Mr. Barbeyrac's NOTES on $ 7.
(1) I have a little corrected this Place, to make it agree with what he has ſaid in his Abridgment of the Duties of a Man and Citizen,
lib. 1. chap. 14. 94. and have alſo been obliged to make ſome little Alterations a little farther ; for this Paragraph, and ſome others
in this Chapter, are very diſorderly placed.
(2) The words are, Sí ſervum meum Occidiſti, non affe&tiones æftimandas effe puto, (veluti fi filium ſuum naturalem quis occiderit, quem
tu magno emptum velles) ſed quanti omnibus valeret. Sextus quoque Pedius ait, Pretia rerum non ex adfe&tione, nec utilitate fingulorum,
ſed communiter fungi. Digeſt. lib. Ad Leg. Aquil. Leg. 33. See alſo lib. 35. tit. 2.
Mr. Thomaſius's Diſcourſe De Pretio Affectionis, &c. chap. 3. $ 12, 13.
Mr. Barbeyrac's NOTES on $ 8.
(1) Mr. Thomaſius, in his Juriſprud. Divin. l. 2. c. 11. $ 13. diſtinguiſhes between
a Thing of the fame Kind, and a Thing which is
capable of an Equivalent ; for only the firſt can be priced as high as we pleaſe. As for the other, if in a Loan,or Exchange, for Example,
one pretends to value his Wine or Corn at an higher Rate,altho in reality they are of the fame Nature and Goodneſs as that of the other
Bargainer
, Mr. Thomaſius ſays, " That he offends againſt the Natural Equality of Men, which doth not allow us to weigh our own and
other Men's Goods in an Uneven Balance, and judge differently of them, or of what appertains to them, without a juft Cauſe. We
may alſo add, That the Nature of Commerce, by which Prices are ſettled, requires Equality ; for there is a viſible Inequality, when
Things of the fame Kind and Goodneſs are eſtimated at a different Rate : Whereas, when we are creating about Things of a different
Nature, beſides that they can't be fo exactly equalled, the Eſteem which the Proprietor hath for it, may be reſpected in the Valua-
tion, as a part of the Price, and ſo reduce the Exchange to a juſt Equality.
(a) Vid. Lib. 9. 6.2. l. 34. D. ad L. Aquil. & Lib. 35. t. 2. Leg. 36. ad Leg. Falcid.
(b) Lib. 5. c. 26. p. 304. The ſame
d.l. 6. 17. relates, “That the People of Baleares valued one woman at the Rate of four Men, they were ſo prone to Venery:
(c) Add. 1.62. f. 1. 1.63. D. ad. L. Falcidiam. (d) What Rates the old Gauls fet upon the Heads of their Enemies, ſee in Diod.
Sic. l. 5. 6. 29. p. 307. and Strabo, b. 4.


9.
tit. 2.
Price

CHAP. I.
227
OF PRIG E.
Price of every thing is to be determined by the Agree- more or leſs may be demanded and given. Of this
ment of the Contractors; nor can any one be ſaid Price Seneca is to be underſtood, when he ſays, (2)
to have offended againſt the Law of Commerce for What matter how much it is, ſince the Buyer and Seller
making the beſt of his Market, provided he has not agree upon it: The Value of Things is according to the
been Inhuman towards the Neceſſitous (a).
Market ; when you have commended them, they are
But in a regular Government the Prices of Things worth fo much as they can ſell for, and no more.
are determined, either by an Order from the Magi- De Benef
. 1.6. c. 15. And Law 63. of Book 35. 1, 2.
ſtrate, or ſome Laws, or elſe by the coinmon Judg- of the D. ad. L. Falcid. “ The Prices of Things are
ment and Eſtimate of Men, together with the Con (3) not fix'd according to the Fancy, or Uſe of
fent of the Parties : The former may be call’d the particular People, but as they are valuable to every
Legal, the other the Natural Price (b). The Legal is Body. See allo Law 33. of Book 9. 1. 2. of the D.
always preſum'd to be conſonant to Juſtice and . ad L. Aquiliam. In ſome Places (ſays Ariſtotle,
Equity, unleſs the contrary does evidently appear : · Nicom. 9. 1. towards the end ) the Laws allow no
for ſometimes groſs Ignorance, and, more frequently, · Action for voluntary Commerce; thinking it reaſon-
Hatred or Favour towards the Buyer or Seller, or ſome able that the Creditor ſhould entirely depend upon
other Corruption, or private Intereſt, interpoſes. The " the Honeſty of the Debtor : For they thought the
Legal Price is fix'd, as it were, in a Point, and admits Debtor fitter to judge how much ought to be paid,
of no Latitude, but the leaſt Exceſs becomes Injuſtice. 'than the other.
than the other. For many Things are differently
And when 'tis fix'd (as moſt commonly it is) in Fa rated by thoſe that are in Poſſeſſion, and thoſe that
vour of the Buyer, the Seller cannot in Juſtice demand · deſire to be in Poſſeſſion of them : every one ſetting
more ; but the Buyer may, with the Conſent of the
a great Rate upon his own. But a Return ought
Seller, ſink below it, provided he does not fall ſhort ' to be inade according to the Opinion of him that
of the loweſt Degree in the Natural Price: and the ' is to make it ; which perhaps ought to be adjuſted,
Seller may lawfully take leſs, provided it does not not according to the Value he puts upon the
tend to the Prejudice of others of the fame Trade. Things, when in Poffefſion of them, but according
But if the Price be fix'd in Favour of the Seller, then to the Value he puts upon them before he had
the Buyer cannot lawfully preſs the Seller to take leſs, them. (c)By reaſon of this Latitude, they generally
who yet, if he thinks fit, may take it (2), for any Man divide the Natural Price into three Degrees; the low-
may recede from his own Right: However, in this eſt or favourable, the middle or reaſonable, the high-
caſe, the Seller may take more, provided it does not eſt or rigorous : within which Degrees, any thing
exceed the (3) higheſt Degree in the Natural Price. may be bought or fold dearer or cheaper. But of
On Labour, the Price is generally fix'd in favour of what Extent this Latitude may be, it is not eaſy to
the Labourer ; on Commodities, in Favour of the give a Rule that will reach all Caſes : But that may
Buyer. In ſome Places, a more ſubtle Method is be ſaid to be the juſt Price, which is generally
taken to prevent unreaſonable Prices; as in Greece, agreed upon by thoſe who ſufficiently underſtand the
the Fiſhmongers were not permitted to fit, but obliged Market and the Commodities. Hither may be re-
to ſell their Filh ſtanding, that fo, by the Tediouſneſs ferred that of Varro de Ling. l. 4. (*) Pretium eft,
and Tireſomeneſs of the Poſture, they might be forced quod æfimationis emptioniſque cauſa conſtituitur :
to ſell them while they were ſweet, and at a moderate dictum a peritis, quod hi foli poſjunt facere recte id.
Rate.
Yet Salmaſius, de Uſuris, ridicules the Derivation,
IX. But the Natural Price, which is not fix'd by and that with Reaſon.
Law (1), admits of ſome Latitude, within which
C

(2) It is not always allowed to give a Price lower than what is ſet by the Law; and this takes place chiefly, when the Tasation is
fixed, not for the Intereſt of Private Perſons only, but for the Publick Good, and as a Sumptuary-Law. Nor may we always content
ourſelves with leſs; which ought principally to be obſerved, when the Magiſtrate, by fixing a Price, endeavours to hinder Monopo-
lies, or to encourage Merchandiſe and Commerce in general, as Mr. Thomaſius las very well obſerved in his furiſprud. Divin. ubi
ſupra, $ 56, 57.
(3) See Athenaus, 1.6. C.2.
Mr. Barbeyrat's NOTES on $ 9.
(1) The common Price, according to Mr. Thomaſius, ubi ſupra, $ 24. hath alſo place among thoſe who live in the independent
State of Nature. For as he ſays, It would be very hard to maintain any Commerce,if every one ſhould always over-value his own Goods,
and under-value another’s. The beſt way to preſerve an Equality between Perſons nacurally Equal, is, that every one ſubmit himſelf
to the Judgment of the greater Number, and ſo there is reaſon for ſuch an Eſtabliſhment in Nations, as this, That both Bargainers
Nhould ordinarily govern themſelves by the Eſtimation which their Equals make of Things of a like Nature. So that if Men do not
follow that Eſtimation, they may be thought to offend, nor truly againſt the Law of Rigorous Juſtice, but againſt the Laws of Humanity,
and Natural Honeſty.' 'Tis alſo a great Imprudence, in Trading, to value our Goods ar ſo high a Price, as to find no Buyers ; as ir
often happens, when Men over-value their Goods at more than they are thought worth by ſuch Men, as commonly deal in them, and
underſtand them. See the fame Author's Diſcourſe, intituled, De Æquitate Cerebrina, Leg. 2. Cod. 2. de Reſcindenda Venditione,
(2) Seneca's Words are, Quid intereſt quanti ſint, cum de pretio inter ementem, & vendentem convenerit, Pretium cujuſque Rei
pro tempore eſt. Cum bene iſta laudaveris, tanti ſunt, quanto pluris venire non poffunt.
(3) He treats here of the Value of a Damage, and not of what may be given or required in Buying and Selling, or making any othe:
Contract. See the Diſcourſe, quoted c. 2. $ 34:
(*) A Price, in Latin Pretium, is that which is appointed upon the account of the Value and Buying of a Thing, ?ris fo cilled
from Peritis, i. e. ſuch as are skilful, becauſe they only are able to fix it.
chap. 2. $ 24.
(a) See Gen.41.49. & 47.13,&c. (b) That is, as Mr. Barbeyrac has ir, the Ordinary or Current Price.
(C) Vid. Grot. 1. 2. C.12. T. 14. & Ciceron. Verrin. de Signis. Qui modus est in his rebus Cupiditatis, idem est æftimationis.
X. In
228
Of PRICE.
BOOK V.
X. In regulating this Natural Price, Regard is to at all times, rais d by the Plenty of the Buyers.
be had to the Labour and Expence (a) of the Mer- Again, The Seller ought to have Allowance made
chant in Importing and taking care of his Goods; him for the Lofs enſuing, or the
Gain he foregoes, by
for upon
this Ground it is that a Merchant can juſtify ſelling at that time when the Buyer is Importunate:
his felling ſo much dearer than he bought : But this For it would be unreaſonable to expect me to part
Regard is only to be had to thoſe Expences which they with my Goods, but upon ſuch Teims as to be no
are uſually put to ; extraordinary Chances have nothing Loſer by them Beſides
, the Loſs or Gain, by reaſon
to do here. And therefore it can be no Reaſon for a of ſlow or prompt Payment, may be, and indeed al-
Merchant to raiſe his Rates, becauſe he happen'd to ways is, brought into the Account : For (4) a Dav
break his Leg, or to fall fick, or becauſe part of his is part of the Price ; which is more if paid down
Goods were caſt away, or ſtolen ; unleſs Tuch Acci- upon the Nail, than if paid ſome time after ; for in
dents contribute to the Scarcity of the Commodity; the mean tiine, I might, perhaps, turn and apply it
much leſs can he bring in his own extravagant and another way to my Advantage (d). And therefore
fuperfluous Expences. But his Time, his study, his (e) Polybius commends the Generoſity of the Younger
Care, in getting, preſerving, and ſorting his Com- Scipio,' for paying his Siſters their Portions forth-
modities, as alſo his Servant's Wages, may fairly be with, which he was not obliged to do 'till two or
rated by hiin. And it would be inhuman, and tend three Years after, and that too at Rome, a City
to the Diſcouragement of Induſtry, to allow a where no Man gives away any Thing at all, or pays
Tradeſman, or a Man of any other Calling, no a Penny before it be due ; fo diligent is every Body
more Gain than juſt enough to ſupply him poorly ' in getting Money, and ſo much Advantage do they
and ſparingly with the Neceſſities of Life. The Dif (make of the Time.'
ficulty alſo, and Length and Danger of the Voyage, (5) Laſtly, We may add, what Themiſiacles, when
may be brought into the Account, as alſo the different he was going to ſell his Farm, gave a publick Ad-
Value of Monies and Commodities in different Coun-vertiſement of (), That he had a good Neighbour.
tries. Beſides, the Way of Sale may alter the Caſe; Houſe, ſays Sadus (8), that has got ſuch a Neigh-
for they who fell by Retail may demand fomewhat bour as you, (ſpeaking to a Raſcally few), may polſbly
more than thoſe who fell by Wholeſale; their Trouble ſell for Ten Drachma of bad Money ; but there is
being greater, and it being more advantagious to have hopes, that when you are gone , it may be worth an
a good round Suin paid down at once, than to receive l'undred. A good Neighbour therefore raiſes the
the ſame by little and little. But what ſudden and fre- Price of a Farm ; eſpecially in a Country where the
quent Alterations the Markets adnit of by reaſon of good old way of the Spartans obtains (h), who made
the Plenty or Scarcity of Buyers, Money, or Com- free with their Neighbours Servants, Dogs, and Horſes
,
modities, is well known. For the Scarcity of Money as if they were their own : And when a Man wanted any
and Buyers proceeding from ſome particular Cauſe, Thing that his Neighbour was Maſter of, he need but
meeting with a Glut of Commodities, finks the to open bis Store-houſe, and to furniſh bimſelf from
Price (b). As, on the other ſide, the Plenty of thence with what be bad occaſion for. The Cauſe of
Buyers and Money, or the Scarcity of the Commo- raiſiug the Price of Slaves, in fuftin, was very un-
dity, raiſes it (c)(1). Beſides, it helps to lower the uſual, and not a little owing to Cruelty : The Price
Price, when the Seller forces his Commodities upon of the Theban Captives was rais’d, ſays he, not for
us of his own accord, as if they lay upon his their being ſerviceable to the Buyer, but out of Hatred
hands (2), for that proceeds from a Scarcity of Buy- to the Enemy (i)
.
ers; and beſides, in this Caſe, the Purchaſer has often XI. But, when moſt Nations had degenerated
no Occaſion for the Thing, nor would buy it but from their primitive Simplicity, 'tis eaſie to imagine
that he thinks it a good Bargain : And indeed, in that this proper Price could not fuffice for the Dif-
ſuch a Cafe we often buy, not ſo much for our own, patch of Buſineſs and Commerce, which daily en-
as for the Seller's fake. And therefore, when Things creaſed : For, Commerce conſiſted in Bartering only;
are ſold by Auction, or Inch of Candle, they often and Work was paid in Work, or elſe in Commodi-
go off for leſs than otherwiſe they would féll for ; ties. But after our Luxury had encreaſed our Necef-
it being the Condition of that ſort of Sale, that (3) fities, and we, not content with the Produce of our
the Ware Mould go to the higheſt Bidder : And yet, own Soil, had a mind to the Delicacies of other
ſometimes, the Warmth and Emulation of the Com- Nations, 'it was hard for any one to poſſeſs fuch
pany riſes above the ordinary Price ; which is indeed, Goods, for which any other would be willing to


See alſo l. 18. tit. 2.
Mr. Barbeyrac's NOTES on S 10.
(1) I have added this Period taken out of our Author's Abridgment De Oficio Hom. do Civ.B. I. 1. C. 14. 5. 6. where 'cis ſaid, a high
Price is ſet upon a Thing, when 'tis ſold only to pleaſe One importunate to have it, and without which Intreary it would not have
been ſold. Any One may ſee that this ought not to have been onnitted.
(2) Eſpecially, where Cato's Rule of Good-husbandry is obſerved, which Plutarch relates in his Life, Nothing is cheap that is
' ſuperfluous ; but what we have no occaſion, for altho’ 'tis ſold for a Farthing, it comes dear.' 'Tis a Proverb, Merx ultronea
putet, Profter'd Ware ſtinks.
Plutarcb's Words are, 'Onws jy und èv ejavov ) Saterlov, dra' ITIS dãy, xãy easdeix me
negoung, wonañ rou iſ ev.. In Vit. Caton.
(3) See Chap. s. $ 6. following.
(4) Nam Dies ſolutions, ficuti Summa pars est Stipulationis
. Digeft. 1. 2. tit. 13. De Edendo, Leg. 1. § 2.
De in Diem addictione, Leg. 4. $6. & Leg. 15. in fin.
(3) In all this Paragraph the Author treats only of the Outward Circumſtances, which help to raiſe or leſſen the Price of Things
.
But we ought always to ſuppoſe that the Natural and Internal Qualities of the Things themſelves do very much alter the value,
becauſe chefe intrinſick Qualities or Circumſtances encreaſe or leffen the Benefit we may have by it. To this the Example of Themi-
ftocles, alledg’d by this Author, is to be referred, doc.
(a) See Grot, in the Placé above-cited. (6) Cheapneſs proceeds from a Multitude of Sellers.' Tacit. An. 6. c. 7.
(c) vid. Socrat. Hiſt. Ecclef. 1. 3. c. 7. in the beginning. (d) Vid. Mart. l. 6. ep. 30.
Grot. l.2. c. 12. f. 14. (f) Plut. Apophtheg. p. 185. D. (8) Roſar. Pers. c.4.
(5) Mention'd by Plutarch, Inftit.
Laconicis, p. 238. Ed. Wech. (i) Juſt. l. 11. C. I.
barter

(e) In exerptis Peireſcianis, Add.

Chap. I.
229
Of PKICE.
way
1364
barter thoſe Commodities that we wanted, or which, convey'd backward and forward. And therefore 10
indeed, could be exactly equivalent to them. And, carry on ſuch a Barter, they conſented 10 give and
in a well-regulated State, where the Subjects are di- receive ſuch a Thing, ai Juch a Value,
4s Iron,
vided into various Orders and Ranks, there muſt Silver, or anything elſe : which, at firſt
, was de
needs be ſeveral ſorts of Men which would not be termined by Quantity, or Weight : but after, had a
able to fubfift, or at leaſt very hardly, did the ſimple Stamp put upon it, to ſave the Trouble of Wéighing
of Bartering ſtill prevail. As 'tis very evident for the Stamp is a Token and Demonftration of ſuch
that thoſe Nations which are yet unacquainted with a Quantity. Again, (*) (c) Becauſe an Architect de-
the Uſe of Money, are perfect Strangers to the more ſerves more for his work, than a Shoomaker does for
improv'd and cultivated way of Living Vid. Busbeq. bis ; and it would be difficult for theſe Two to barter
Epift
. 3. where he treats of the Manners of the Colchi, together, it being unreaſonable 10 give a Houſe for a
Add. l. 1. princ. l. 18. t. 1. D. de contrah. Empt. And Pair of Shooes ; therefore, to render ſuch Things
therefore Maximus Tyrius, Dip. 36. p. 344. Ed. Lugd. faleable, Mankind have thought fit, by common Conſent,
A. 1630, is in a ſweet Dream, when he ſays, “ Meat
, to make uſe of a Piece of Silver, which they call
“ Drink, and Raiment and other Neceſſaries Men Money: And this, for the Maintenance of Civil Com-
.“ provide, by bartering Braſs and Iron ; and thoſe munication, they have agreed ſhould be accepted for
" of more. Value, by Gold and Silver. But this is any. Commodity, according to the Value and Price
through the Corruption of Mankind : for without of it... by
“ any Uſe of Metals they might communicate gratis XIII. For this purpoſe, the more noble and ſcarce
to one another, by this moſt juſt Meaſure, that he Metals, Gold (d), (ej Silver and Braſs ſeemed moſt
“ who wants, ſhould provide for his Neceſſity, by proper. Foi as we accept a Man of known Credit
borrowing of him that abounds; and he that and Value, and not every common Fellow for a Surety,
abounds, ſhould lend upon no other Condition, ſo no Man would part with his Goods, which per-
“ than that he in his Turn ſhould be ſerviceable to haps he had acquired with great Labour and Induftry,
for what he might meet with any-where, as a handful
XII
. And therefore the moſt civiliz’d Nations, of Duft or Sand; it was necelſary therefore Money
by Agreement, thought fit to ſet a certain Eminent thould conſiſt of ſuch a Matter as might be conve-
Price upon ſome particular Thing, as a Meaſure and nient for keeping, and by reaſon of its Scarcity ſhould
Standard for the Price of everything elſe ; by the have the value of many Things crouded and united
help of which, one might procure any ſaleable Com- in it. Theſe Qualities are found in Metals, which
modity, and Commerce might be carried on (1) more are alſo of ſuch a cloſe compacted Subſtance, as not
conveniently.. (2) To this purpoſe, Ariſtotle (a) dif- eaſily to be worn out, and yet capable of being di-
courſes excellently, When Want, (ſays he) had made vided into minute Pieces, both which are abſolutely
Bartering neceſary, any ſimple Exchange of Commodi- neceſſary for that which is deſign'd to be a Standard
ties was sufficient to anſwer our preſent Exigences. and Common Meaſure in Commerce. But ſince this
But becauſe we knew not what, or how much we might Uſe of Money does not follow from the Nature of
have Occaſion for bereafter, the Uſe of Money was Things, but the common Conſent and Agreement of
introduc'd; which is; as it mere, a Pledge, or Security
, Men (f); any Thing elſe, in Caſes of Exigency, inay
on which Men have agreed to impoſe ſuch a Power, ſerve in its ſtead. Thus Leather, Paper, and ſuch-
as to make it capable of procuring any ſaleable Com- like, with ſome certain Stamp upon them, have often
modity
. And in another Place (6), When Mens Ne- paſséd for Money, in Times of Neceſſity; which,
cepties were to be ſupply'd from Abroad, by importing when thoſe Emergencies were over, have been ex-
what they wanted, and exporting what they abounded chang’d for the common Species (8). Thus in the
with, it was neceſſary to introduce the Uſe of Money. Kingdom of Congo and Tombutto in Africa (h), and
For every Thing neceſſary for Life could not eaſily be in many places of North-America, a certain fórt of
6 him.
93
ܪ
Mr. Barbeyrac's NOTES on 12.
(1) The Roman Lawyers have well diſcover'd the Original and firſt Eſtabliſhment of Money, ſaying, Origo emendi, vendendique ad
permutationibus cæpit. Olim enim non ita erat Nummus, neque aliud Merx, aliud pretium vocabatur ; fed unuſquiſque ſecundum neceſſitatem
temporum, & rerum, utilibus inutilia permutabat, quando plerumque evenit, ut quod alteri ſupereſt, alteri deſit; ſed quia non ſemper, nec
facile concurrebat, ut cum tu haberes quod ego deſiderarem, invicem haberem quod tu accipere velles, ele&ta materia eſt, cujus publica,
O perpetua aftimatio difficult atibus permutationum, æqualitate quantitatis Subvniret, eaque materia forma publica percuſſa, ufum domi-
niumque, non tam ex fubftantia præbet, quam ex quantitate, nec ultra merx utrumque, ſed alterum pretium vocatur. Digeft. 1. 18. tit. 1.
De contrahenda Emprione, &c. Leg. I.
(2) Theſe Paſſages our Author quotes at Large, but without any great Neceffity.
* The Greek of this Paffage is, Έπει ο οικοδόμG- σλίον άξιον ποιεί το αυτί έργον, ή και Σκυτους, και έργον ανικα-
ταλλάσθεθαι, και το Σκυλά πρός ή οικοδόμον, ανθ' έσοδημάτων δι' έκ ω οικίαν λαζάν, όνταύθα ήδη νόμισαν ταύτα πάνα
ενία, και το αργυειι εερσαγοράσαλος νομισμα τότε χρήση και τους και αξίαν έκασον έκανε διον), άλλαξιν ποιος σας
αλλήλων, και τέτο πολίθικίω κοινωνίαν σωέχειν.
(a) Nicom. I. 5. c. 8.
“ Money was found out, as a Common Meaſure to which all other Things ſhould be referred.
(b) Polyb. 1.1. 6. (9). Nicom. 1.5. c. 8.“ All Things that are barter'd ought to be capable of being
compared together, to which Ule Money is ſubſervient, which, in a manner, is a Medium, for it meaſures all Things : For Money
Was ſubſtituted by Confent, and is therefore call'd vouloped, as being ſuch, not by Nature, but vófaço by the Law ; it being in the
* Pover
of Man to alter it, or make it uſeleſs. Every Thing ought to have a Price ſet upon it, for ſo there
will be continual Traffick ;
5 and where that is, there muſt be Society. Money therefore, as a Medium, renders Things commenfurable, and conſequently equal.
For there can be no Society, where there is no Exchanging ; nor Exchanging, where there is no Equalicy ; nor Equality, but where
Things are commenſurable.
(c) Magn. Moral. l. 1. c. 34. Rhet. l. 1. C. 16. " Money is, as it were, the Race of the Worth
* of other Things; and therefore all other Things are procurable by it.”
(d) Which why it is eſteemed the moſt noble, may be ſeen in Plin. Nat. Hift. I. 33. c. 3. about the end.
Vid. etiam l. 34. c. 14. Plin. Nat. Hift. & Lucian. in Charon. p. 350. Edit: Amjt. where Iron
is preferrd to Gold.
Add. Philoft. in Vita Apollonii Tyan. 1.2. c. 3. () Vid. Polyen: Stratag. 1.3.c.io. n. 1. of Timotheus and Demetrius. Seneca
de Beneficiis, 1. 5. c. 14. at the end. (b) In Leo Afric. 1.7.
+ Kk
Sea-
Nicom. g. c. I.
(e)
1
230
of P R I CEO
Book V.

כל
ments for the
ficient to carry on Trade, unler, would not be ſuf-
Sea-Shell is in Ule
, inſtead of Money. The Apalace coin’d, ſhould be melted down, and no longer pals
chites, a People of Florida (a), uſe certain black and
“ in Payment ; and that for the future the Money
white Grains for Money. The ſmall Money of the
“ ſhould be denominated from the Quantity of the
Province of Caniclu are Lumps of Salt (b), which
“ Metal. For he obferved, that the Emperor was at
are alſo currant among the Abyſines: (c) Tho' cer a greater Expence in Largeſſes, by being under a
tainly ſuch ſort of Money is capable of carrying on but « neceſſity of giving away Ten Shillings, nay, fome-
a very ſmall Trade. In the Kingdom of Siam the “ times Thirty, Fifty, or a Hundred in a ſingle Piece,
Great Money is Silver, the Small a certain fort of " becauſe he had not a fufficient Stock of ſmaller
Shell (d). And here, by the way, we may obſerve, “ Pieces to diſtribute.” Lamp. 6:39. M I STUDIO
that in Congo they look upon Iron to be a nobler XIV. But altho' the Value of Gold and Silver and
Metal than Gold, or Silver, becauſe theſe are of Money depend upon the Agreement of Men; yet the
little Ufe, whereas that affords moſt convenient Inſtru- fupreme Magiſtrate has not a Power at large of de
.
Braſs was the moſt ſcarce and precious Metal (e); fome certain Conſiderations. And Firſt, All Nations
,
And indeed, laying aſide the Uſe of Money, Mankind that we know of, agree that Braſs is leſs worth than
could better be without Gold and Silver, than without Silver, and Silver than Gold, and that Silver Beats
Iron (I). The Peruvians (f) thought themſelves happy ſuch a Proportion to Gold (k). Again, Money is not
that the Europeans help'd them to Iron Inſtruments
. deſign'd for the Conveniency of Commerce between
And one of their Grandees could not enough ddmire Narives only, but alſo between them and Foreigners
.
a Pair of Sciſfars brought over by the Spaniards
, And therefore, if the Magiſtrate ſhall
raiſe the Money
ſaying, Had the Spaniards brought nothing elſe but extravagantly, he would render it uſeleſs in our Traffick
Razors,Sciſſars, Combs, and Looking-glaſſes. it would have with Foreigners. Indeed, among Subje&ts of
the
eaſily. obliğ'd them to give all their Gold and Silver in ſame Nation (?), Neither the Banker nor the Farmer
. For before that, they ſhaved themſelves can refuſe the King's Money; but whether they like it
with Knives of Stone, not without great Pain. Tas or no, muſt take it in Payment. But between us and
Silver, and Jewels, they ga
gave Foreigners, ſhould not the Quantity and
them their King, not as Tribute, but as a Gift (8) the Metal be fo adjuſted, as to render
Goodneſs of
our
In a certain Country of Arabia, they barter'd an equal leaſt
, as good as that of the Country with which we
Weight of Gold and Silver for Iron; for they abound- traffick, it would be a great Clog and Hindrance to
ed in the former Metals, and wanted the latter (b). Merchandize, and wou'd reduce us again to the Necef-
,
we export as much,
is denominated from the Names of Weight. But or more, than we import; and Foreigners ftand in
that growing inconvenient, it became cuſtomary every need of our Commodities, and we not of theits (m).
becauſeour
Money of a certain Size (2), and to ſtamp it with a chiefly conſiſts in Money, it muſt apparently be much
certain Mark to determine its Value. Alexis Severus leſſen d, when that admits of ſo much Alloy as to
gave order, “ That the pieces of Money of Two, diſcover its own Baſeneſs in its Looks. (1) Po
* Three, Four, and Ten Pound weight, up to thoſe lyænus (n) relates of Leucon, that he commanded all
“ of Fifty, and an Hundred, which Heliogabalus had his Subječts to bring in their Money to have it new
107 bare
return.
P
17;s
to Mr. Barbeyrac's NOTES on § 13.
(1) See Mr. Locke's Philofophical Eſ ay upon the Human Underſtanding, l. 4. c. 12. $ 11.
to (2) From whence that of Juvenal, Sat. 24. V. 291. Conciſum argentum in Titulos, facieſque minutas.
Mr. Barbeyrac's NOTE on § 14.
(1) To avoid the Cheat of Falſe Money, it ought not only to be mixed with a good Alloy, but ſo curiouſly wrought, that the
Labour joined with the Intrinſick Value of every Piece, ſhould make it worth more than it conimonly goes for. This is Mr. Bernard's
judicious Reflexion, made by him, in his News from the Republick of Letters, Mar. 1704. But when Falſe Money creeps into the
Publick Commerce, Private Perſons ought not to bear it, but the Stare ought to take it at the Weight which they received it. Our
Author commends the Juſtice of the Senate of Venice in this caſe, and we have had as great an Inſtance lately of it in England.
Under the Reign of King William III, the Money was in ſuch a bad Condition, becauſe it had been ſo much Clipt in the foregoing
Reigns, in which there was no Care taken to prevent it, that it was diminiſh'd above a Third Fart of the true Weight. This made
Men believe that they had more than they had ; for tho’ the Money had not been leffen'd by Publick Authority, yer in Commerce the
Value was One Third part leſs than it went for, which ruin'd Trade in many reſpects. Mr. Locke took notice of this Abuſe, and
foretold, That in a little Time, if ſome Remedy were not taken, England would want Money to buy Bread, which happen’d in 1695;
inſomuch that the Parliament was obliged to amend it in the beginning of the next Year. That great Philoſopher was one of thoſe
who helped to make it appear, that there was no other way to ſave the Commerce of England, but to Coin the Money anew at the
Publick Charge, without diminiſhing the Price. Whereupon the Parliament following the Advice of this Great Man, given them in
two ſmall Works, “ Made, in the midſt of a terrible War, a Reformation of the Coin, which many Staces would have been afraid to
« attempt in Peace. Some Kingdoms would have Raiſed and Lower'd the Money, only to have brought the wealth of Private Men
« into the Prince's Treaſury, not regarding what Loſs the People had by it : But the Maxims of the Engliſh Government will permit
no ſuch Thing." Mr. Clerc's Biblioth. Choiſe, tom. 6. p.384, &c.
(a) Concerning which, vid. Rochefort. Deſcript. Antillarum Inſul. Part 2. c.8. n. 8. (b) As Paul of Venice relates, l. 2. c. 38.
(c) Franc. Alvarez. c. 46. (d) Vid. fod. Schouten, in Deſcript. Regn. Siam. Add. Polydor. Virgil, de Invent. rer. 1. 2. 6. 20.
Alexand. Neapol. 1.4. C. 15. Budæus ad l. 1. D. de contrah. empt. (e) Herodotus Thalia concerning the Ethiopians.
(f) Garcilas. Comment, reg: 1.1, 21. (8) Idem ibid. l. 5. c. 7. Add, Th, Mor. Utopia, l. 2.
(h) Diodor. Sic. l. 3. c. 45.
Add. Strab. 1. 16. “Iron is therefore ſaid to be better than Gold, becauſe this is defended by that. "
Plin. Nat. Hiſt. 1.34. C. 14. (i) Vid. Plin. l.
33.c.3. (k) •co•If for half a Pound of Gold a Man receives a double Pro-
“ portion of Silver, he receives only a double, whereas he ought to receive a Twefth Proportion. Plat. in Hipparcho, p. 514...;
« Éd. Wech. In the League that the Romans made with the Atolians, they were to give one Pound of Gold for Ten of Silver.” Polyb.
excerp. leg. l. 18,5. Add. Bod. de Rep. 1.6. c. 3. P. 1071, doc. (1) place7
(m) Vid. Polyb. 1.6. c. 47. about the end. (h) Lib. 6. Ci 9. Add? Bedin. de Rep. 1. 5. c. 3. Greg.: Tholofan. Syntag. jurif. univ.
1. 26. 6. 2.
coined;
Lucian. in Charon. d. 1. And

CHAP. I.
231
Of PRICE.
go
Plató (d) in his Common-wealth, to we muſt obſerve what Grotius (i) aſſerts, That the
coined ; and, when he had coin'd it, he order'd every of their own Country for it. The Great Cham at Cam-
Piece to
for Double; and ſo gain'd half of the balu put his Royal Stamp upon a vaſt Sum of Money
Money, without doing Wrong to his people. Indeed, made of the Bark of Mulberry-Trees, which no Man
ſuch a Thing as this may admit of ſome Excuſe, in in his Dominions, upon pain of Death, dared to re-
Caſe of Neceffity, if remedied when that is over. fuſe, or to coin and uſe other (e). The Foreigners
But what Zonaras and Others tell of Nic
. Phocas, too, who traded into thoſe Parts for the Gold, Silver,
cannot be palliated : For he having coin'd a Quan- and the Jewels which they imported, were forced
tity of Light Money, beſides the Weighty that was to take that Money, which they converted into the
Currant, would receive none but the Weighty into his Commodities of the Country, and to exported again.
Treaſury, but made all his Payments in the Light (a). By which means that Prince
heaped up a prodigious
Some Legiſlators, indeed, have taken this Courſe, to Quantity of Gold and Silver. The Perſians call the
extirpate Covetouſneſs, Luxury, and ſuch Vices, by Leather-Money, which an unjuſt King had impoſed
introducing Bafe Money. Lycurgus (6) cry'd down upon them, Shelreva, i. e. Money
impoſed on the
all the Gold and Silver of Sparta, and allowed nothing Subject at the Pleaſure of the Prince. "The Memory
to paſs but Iron, having aſign'd a ſmall Price to a of which has made fuch an Impreffion upon them,
vaft Weight and Bulk of it, ſo that 101. would take that when they would denote the Injuſtice of any
up a large Room, and require a Teem of Oxen to bring
, King, they expreſs it by ſaying, He impoſes Leather-
it Home. By this Means, he utterly rooted out ſeveral Money upon his People (f). On the other hand,
forts of Villany. For who would ſteal, or cheat, or the Care that the Venetian Senate took of their Suba
receive a Bribe which could not be concealed, and jeas, is much to be commended : For when the
which no Man was the better for having in his PojJeſpon, Small Money had been debaſed, and a vaſt Quantity
ſince it could not be applied to any other Uſe. For, they of it crept in among them, that Calamity not being
Tay, be made all the Iron red hot, and quenched it in reinóveable any other way, the Senate made a De-
Vinegar, which, by that means, became brittle and good cree, That whoſoever within ſuch a time, ſhould
for nothing. By the ſame Methods were all idle bring in their Bad Money, ſhould have it exchang'd
ſuperfluous Arts rooted out, when nothing could be for Good. Upon which Account, above Five hun-
got by them : For the Iron Money not paſſing in dred thouſand Crowns were disburſed out of the
Greece, none of the foreign Delicacies could be im. Treaſury (8).
ported' from thence into Sparta, which cut the very XV. But ſince Money is the common Meaſure of
Nerves and Sinews of Luxury. Lyſander (c) brought the Value of other Things
, its Value ought by no
back Gold and Silver into Sparta, and with them means to be altered, but where the Intereſt of the
Avarice. Indeed among other Nations too, CovetoufPublick does evidently require it.
neſs crept in with the Uſe of Money. For as long as (1) the more moderate the Alteration is, the leſs
their Riches conſiſted in Corn, Cattle, and fuch-like, will the Peoples Accompts be confounded. And
the Cumberſomeneſs of their Goods, together with the therefore ſuch a fort of Matter was choſen for the
Difficulty of managing and preſerving that which was carrying on of Commerce, the Publick and Unalterable
fo liable to Corruption, was fure, at length, to put Value of which, conſtantly applied to the ſame Quan-
a ftop to their boundleſs Defire of Encreaſing their tity, might be able to relieve and ſupply all the In-
Store. But now fince the Uſe of Gold and Silver conveniences that were found in ſimple Barter (h).
has been found out, a Covetous Man may embrace But yet as to the Unchangeable Value of the Money,
his Millions.
take off his Subječts from too great a thirſt after Carrency of Money is not naturally derived from the
Lucre, commanded, That no private Man Should have Matter only, nor yet from this or that particular
any Gold or Silver : That the Money which the Sub- Form and Denomination, but from its Capacity of being
jects make uſe of, ſhould be ſuch as paſes no-where compar’d with all other Things, or at leaſt all thoſe
elfe
. But yet that the Publick ſhould have in Poles that are moſt neceſſary. The Meaning of which Place
Sion ſome of the Currant Money of Greece, in caſe they is, that it does not proceed from (2) the Matter (k) of
ſhould have an Occaſion of waging War, of Travelling, the Money only, v.g. its being Gold or Silver, that
or of Sending an Embaſſy: That Travellers, at their a certain Piece goes, pro bic & nunc, for ſo much,
Return Home, ſhould pay into the Publick all the and is equivalent to ſuch a Commodity, (for the
foreign Money they bring with them, and receive that Currency of Money does not only depend upon one
And then too,
Mr. Barbeyrac's NOTES on $ 15.
(1) See the end of the foregoing Note. Mr. Hertius alſo quotes here the Hiſtory of Mr.Thuanus, lib. 8. in the Year 1551, about
the End ; and lib. 129. in the Year 1602. De Reide Annal. Belg. l. 5. in 1586. and Grotius's Hift. Belg. libo s, in the Year 1595.
(2) This is not the Senſe of Grotius : But this Great Man means, as Gronovius explains him, and as it will appear eaſily by attending
to his Words, and the Sequel of his Diſcourſe, That if Money be capable of an Equivalent, 'cis not only becauſe we may give Dollars,
for Example, for Piſtoles, or Pieces of Fifteen or Thirty Souſes for Dollars, but becauſe we may give Money for Corn, Wine, &c.
for, ſays he, we muſt pay, unleſs we have otherwiſe agreed, for Things as much as they are worth at the Time and Place of Pay-
ment. Que eſtimatio
, fi aliud non conuenerit, facienda erit tempore, & loco Solutionis. 'Tis another thing to ſay that if we muſt have re-
gard in Exchange to the Intrinſick or Extrinfick Value of the Species, it happens at the beginning of the Debt: This Queſtion ſhal
!
be handled a little lower, chap. 7. 86,7. The Author doth not ſpeak here, at leaſt directly, of the Value of Money, with reſpect
to the Rareneſs or Abundance of other Things. He ſpeaks only of it in ſhort, at the End of the Paragraph, when he explains the
Words of Michael of Epheſus, a Commentator on Ariſtotle.
(a) Add. Jo. Mariana, Hiſt. Hiſpan. l. 15. C. 9. (b) Plutarch. in Lycurg. p. 44, 45. Ed. Wech. (c) Vid. Eundem in Lyſandr.
(d) De Legibus, I. 5. p.848.
(e) See M. Paul. of Ven., l. 2. c.21, (f) G. Gentius ad Sadi Roſárium Perſicum, c. 3. Add.
Buchanan. Hiſt. Scot. I, 12. p. 450.
(8) Andr. Maurocenus Hift. Venet. l. 14. p.641. We may obſerve out of Plin. Nat. Hift.
1: 6. c. 22. “ That the King of Taprobanes very much admired the Juſtice of the Romans, in that the Denarii, which he had taken,
(b) Vid. lib. 18. 1.1.1.1. D. de contrah. emp.
were all of equal Weight, whereas the Stamp made it appear that they had been coined at different Times." Vid. Solin. c. 66.
(i) B. 2. c. 12. f. 17. (k) Vid. leg. ubi fupra.
+ Kk 2
Piece's
232
Of PRICE.
Book V.

Piece's being equivalent to another of the fame Quan- of Europe vit felf, that the Value of Money has, by
tity and Quality, (for all Conſumable Commodities are degrees, funk very much , infomuch that (as Bodinys
ſuch,) but upon its containing Virtually the Prices of (6) obſerves ) Commodities bear ten times the Price
every thing elſe,) nor from any particular Denomina- they did formerly (1), by reaſon of the Plenty of
tion, as that it is call'd a Ducat, Crown, Dollar, or Gold and Silver. And therefore the old Price of
Florin ; nor from its having ſuch a certain Stamp (a); Land and Wages ought to riſe, cæteris paribus, in the
but from its Capacity of being compared, in reſpect fame Proportion (c). For fuppoſe Commerce to be
of Plenty or Scarcity with other Things, eſpecially carry'd on by
pure
Barter in any Country which
thoſe that afford the more neceſſary Supports of Human affords very little Wine, but abundance of Corn
Life. Now Land does this ; for from it, mediately here, for a ſmall Parcel of Wine, we ſhall receive a
or immediately, proceed moſt Things that Human great deal of Corn: but if, by good. Management, the
Life fubfifts on. And the Produ&t of it being, onė Vineyards ſhould happen to produce a larger Vintage,
Year with another, pretty equal, it may be preſum'd without doubt, for the fame Quantity of Corn, we
to have its Natural Value fix'd and certain, to which muſt give
muſt give a greater Proportion of Wine than for-
the Prices of other Things, at leaſt of ſuch as have merly. In like manner
, when Money.' is fcarce
, in
not received their Value from the Luxury or Folly of Compariſon of other Things, a great many Things
Man, are referr'd, as to a Standard. For 'tis very will be purchas’d with a little Money : but Money,
reaſonable that the Prices of fuch Things as are the on the other hand,
encreaſing, more of it must be
Produ&t of Land, or are maintaind by it, ſhould given for the fame Things. For ſince the Metal, as to
be regulated by the Price of the Land it ſelf
. Since its Natural Price, may be, and often is
, brought into
therefore the Land, every-where, is in private Hands, Commerce, as well as other Commodities, its Value
(mnoſt Mens Eſtates being now in Land ) the Value of muſt riſe and fall according to the Scarcity or
Plenty
Money muſt needs riſe or fall, according as it is of it. And the Eminent Price of Money muſt, necel-
ſcarce or plentiful, in proportion to Land. For every ſarily, follow the Natural Price of the Metal : For it
civiliz'd Nation conſiſting chiefly of two ſorts of Men, is unreaſonable that a Quantity of Silver, conſider'd as
the Farmer, and the Tradeſman or Labourer, if, in a Commodity, ſhould bear a very different Price from
a great Plenty of Money, Land and its Product ſhould what it does when confider'd as Money. For ſo the
feli cheap, it muſt needs break the Farmer ; and on fame Thing, conſider'd as its own Meaſure, would be
the other hand, ſhould Money be ſcarce, and Land greater or leſs than it ſelf, conſider'd as the Thing
and its Produét dear, it inuſt needs beggar the meaſured. And this is the Reaſon why, when the
Tradeſman. Which in Fa& we find true; for when Prices of almoſt every Thing elſe have been altered by
a plentiful Harveſt makes Corn cheap, if the Work reaſon of the Plenty of Money, Gold and Silver have
of the Tradeſman, and thoſe that earn their Living ſtill kept their old Price, an Ounce of Silver being
by their Labour, ſtand at the fame Rate as in fruit- worth about a Crown now, as well as formerly. For
ful Years, the Farmer is found to get little by his if the Price of Bullion, like the Prices of other
plentiful Crop. And the ſame Inconvenience preffes Things
, had been v. g. quadrupled, an Ounce of
the Tradeſman and Labourer when Corn is dear, if Silver now would coſt four Crowns, ſo that little
ſtill their Labour keeps its old Price. Since therefore, would be got by Coining Money.
in indifferent Years, the Commerce between the Le " When therefore the Price of a Thing happens to
bourer and the Farmer is beſt adjuſted, and there is be changed, we muſt carefully diſtinguiſh, whether
then leaſt Coinplaint between them ; it is evident that Change be made in the Value of the Thing, or
tịat in fixing the Price of Money, the greateſt Regard in the Value of Money. The former happens, when
ought to be had to Land, eſpecially where the Country the Plenty of Money ftanding as it was, the Comino-
does not ſubſiſt upon Merchandiſe only, but chiefly dity begins to be more plentiful, or ſcarce, than
upon its own Produce.
uſual; the latter when the Commodity remaining as
XVI. From what has been ſaid, we may judge, uſual, the Plenty of Money has encreas'd, or decreasd.
whether a Farm, that was rated at a Hundred Pounds Thus when in a plentiful Seaſon I can buy a Bufhel of
Two Hundred Years ago, ought not, cæteris paribus, Wheat for One Crown, which, in a Dearth, I cannot
to be rated at more now; and whether the Wages have under Three; the Reaſon is, becauſe the Value
that were large enough then, are not, in all Reaſon, a of Wheat, and not of Money is changed: but when a
little too ſcanty now. For it will not ſuffice to fay, Farm now letts for Two Hundred Pounds, which an
that the pieces of Money have the ſame Weight, Age ago lett but for an Hundred ; the Value, not of
Goodneſs, Name, and Shape which they had former- the Farm, but of the Money, is altered (d). But
but we muſt conſider, that within this Two Hun- altho' Money admits of vaſt Changes, and a Common
dred Years ſuch a vaſt Quantity of Gold and Silver Meaſure ought to be fixed and unalterable, Money,
has been imported into Europe from Africa and the nevertheleſs, is capable of being made a Common
Indies, not to mention the many Silver-Mines of Meaſure. For this Change in Money is never ſo
ly;

Mr. Barbeyrac's NOTE on § 16.
(1) Mr. Hertius quotes a Dutch Hiſtorian, who relates, that the City of Arnheim gave a ſplendid Entertainment to a Duke calld
Arnaldus, with his Dutcheſs, and an hundred and fixty ſix of his Retinue, at no greater Expence than fifty ſeven Dollars of that Country
Money. fo. Iſaac Pont anus, in his Hift. of Gelderl. 1.9. Hence it comes alſo that there are in ſome Places Publick Employments
which have ſuch ſmall Revenues. Salaries alſo remain in the ſame State that they were appointed two or three hundred Years ago,
not conſidering that a Thouſand Dollars now are of little more Value than an Hundred were then.
(a) Vid. l. 1. D. de contrah. empt. ubi ſupra, “ Money is of uſe, not fo much for its Subſtance, as its Quantity.” Alſo l. 46. t. z.
1.94. S. 1. D. de Solution. “ In Money the Species is not ſo much conſider'd as the Quantity.
(b) De Rep. 1. 6. c. 2. p. m. 1028.
(c) Add. Val. Max. 1. 4. C. 3. f.12.
* Gaufed ſuch a Plenty of Money, that the Intereſt of it finking very much, Corofius
rays half in half) the Price of Land was rais’d."
(d) “ The Royal Treaſure, being brought into the Cicy at the Alexandrian Triumph,
Sutok. Auguft. 42. Add. Joſeph, de Bello Judaico, 1.6. c.32. Franc. Lopez de Gomora Hiſt. Gen, Ind. c. 117.

ſudden,

CHAP. II.
233
Of Contracts in General, &c.
09
50
:
veda
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1 The Difference between Bargoins and Contracts,| VI. And into Real, of bare Confent, Verbal, and in
must according ito Mr. Hobbes.
Writing.
II. According to the Interpreters of the Roman Law. VII. In ſome particular Name, and without
III
. Some adviſe about wbat they have delivered.
Name.
IV. Our Opinion about the Difference. Voir VIII. Beneficial and Chargeable.
V. Contracts are divided into ſuch as oblige, 1. one IX. How many ſorts of Chargeable Contracts.
Party only ; and; 2. ſuch as oblige both Parties. X. Of Mix'd Contračts.
Jou ODPR 23
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1200
We are the most property and one
E come now to treat of ſuch Contracts as Pad the general Term which comprehends all the
And, Affairs, wherein Men are concern'd with one another,
Ift. We will enquire into the Difference and they define it in general to be, (1) The Agree-
between Simple Palts and Contracts. Hobbes (a) de- ment of two or more in the Same Thing. Then
fines a Contract to be the Ation of two, or more, they divide Pact into Pact properly ſo calld, and
making over their Right to one another. But ſince Contrat : The former is, when the Object is ſome
in every Contract, either both Parties perform their Matter of no Conſequence, and in its own Nature,
Bargain upon the Spot, ſo as neither truſts the other; (2) incapable of bearing an Action in the Civil Court.
or one performs, and the other is truſted; or neither This they again divide into Simple Pa&, and not
performs, but each truſts the other : To the firſt of Simples which latter they again fubdívide into
theſe only he gives the general Name of Contra&. (3) Legal and Additional
. They ſay farther, That an
not concern the Intrinſick Nature of Contracts and Confirmation of the Law; for it is that that properly
Patts, but regards the Execution of them only: And renders Agreements Legal Patts.
'tis againſt common Senſe that a Sale, v.g. where the us, that this intrinſick Nature may be of two forts, for
Goods are deliverd for Ready Money, ſhould be fome do not retain the general Name of Agreements, ,
call'd a Contra& ; but where the Goods are deliver’d, but are call’d by ſome (4) particular Name of Con-
and the Money not pay'd 'till fome time after, ſhould tra&t; others, altho' of no particular Denomination
be callid only a Pači.
or Form, yet exceed the Limits of Simple Pact, by
II. The Roman Lawyers almoſt all agree in making having a Matter of (5) Conſequence for the Objeći
But
Mr. Barbeyrac's NOTES on Chap. 2. $ 1.
(1) Patum autem à patione dicitur Et eſt Pa&tio duorum, pluriumve in idem placitum conſenſus. Conventionis verbum generale
et, ad omnia pertinens, de quibus negotii contrahendi tranſigendive cauſa conſentiunt, qui inter ſe agunt. Digeft. 1. 2. tit. 14. De Pactis,
Leg. I. S 1, 2, 3. Cujacius Obſerv. I. 2. C. 15.
(2) Nec obejſe tibi poterit, quod dici folet, ex pa&to a&tionem non naſci. Cod. l. 2. tit. 3. De Factis, Leg. 10. Nam ſi conventio,
placiti fine ſtetit, ex nudo pa&to perſpicis a&tionem jure noſtro naſci non poffe. Lib. 4. tit. 65. De Locaco & Conducto, Leg. 27.
Simple Conventions always afford a Valid Exception, as our Author obferves in the next Paragraph, I mean, That when a Simple
Promiſe is made to any one, to require nothing of him, or not to ſue him at Law, which might rightly be done, if after that we lay
an Action upon him, we have debarred ourſelves immediacely of our Action, altho' che Agreement was not confirmed by an Engage-
ment in Form, and the Plaintiff has done nothing on his part to free himſelf from it. Sed cum pactum conventum exceptionem per-
petuam pariat, &c. Digeft. l. 20. tit. 6. Quibus modis pignus, vel Hypotheca Solvitur. Leg. 5. Princ. Igitur nuda Pa&tio obligationem
non parit, fed parit exceptionem. Lib. 2. tit. 14. De Pactis, Leg. 7. 9.4. Si pacifcar ne pro judicati, vel incenſarum ædium agatur, hoc
patum valet.
Nam & de furto paciſci lex permittit. Sed & fiquis paciſcatur, ne depoſiti agat, ſecundum Pomponium, valet
paĉtum. Ibid. § 13, 14, 15. Quædam a&tiones per pa&um ipſo jure tolluntur : ut injuriarum, item furti. De Pignore jure honorario nafcitur
patto a&tio, tollitur autem per exceptionem, quotiens paciſcor. Ne Peram. Leg. 17. $ 1, 2. See alſo Leg. 27. $ 4. In this there is
much Inconſtancy : For why ſhould a Simple Contract be of Force, to hinder us from obtaining what we might otherwiſe lawfully fue
for, more than give a Right to ſue for any thing ? "Thae which can diſchhrge an Obligation, is ie nor capable of producing a
new one?
(3) Ubi obiter monendum cordatiores re&te abſtinere à vocabulo Pactorum veſtitorum. Non enim quia dicitur e. g. ex nuda gratia, ex
nuda benevolentia, etiam dicendum fuerit ex gratia veſtita.
(4) As that of Sale, Hire, Society, Loan, Pledge, doc. Conventiones, que pariunt Aktiones, in fuo nomine non ftant, sed tranſeunt in
proprium nomen Contractus, ut Emptio, Venditio, Locatio, Condu&tio, Societas, commodatum, depoſitum, & cæteris fimiles contraétus. Digeft.
1 2. t. 14. De Pactis, Leg. 7.$ 1.' See 9. 7. following.
(5.) Sed fi in alium contra&tum res non tranſeat, ſubſit tamen Cauſa, eleganter, Ariſto Celſo reſpondit, effe obligationem, ut puta, Dedi
tibi rem, ut aliam mihi dares, dedi, ut aliquid facias, hoc owennafulde, i.e. contractum effe & hinc naſci civilem obligationem.
Ibid. 5.2.
(a) De Cive, Go 2. f. 9.
of

234
Of Contracts in General,
Book V:
j
their
dinergy, who were always
of them, as the Performance of a Promiſe, the De we muſt diſtinguiſh between ſuch as are Affirmative
,
livery of Goods, or the Doing of Work ; and theſe and ſuch as are Negative. The Force of Negative
are properly Contratts
, which by their own Force Paits (where the Agreement is not to demand )
effectually oblige, and which (6) in Juſtice and is both in the Natural and Civil Law, not to be pro-
Equity bear an A&tion. Yet they add, that (7) Simple du&tive of, but to exempt from an A&tion (6):
Paxts may be made A&tionable, by Conſent of the (2) For fince they are deligned in Favour of the
Parties and Patts added to ſuch (8) Contracts as Debtor, that nothing may be demanded of him, they
admit of Equity, partake of the Nature and Force can be of no other Uſe, than to keep off the Demand
of Contracts.
of the Creditor, i. e. to exempt from an Action.
,
,
Actionable in the Civil Court
, and 'tis our Buſineſs want, in themſelves, a Power of Obliging (3). But
to explain the Force they have in their own Na- the Reaſon why the Roman Law did not make them
ture, we cann't therefore follow this Diviſion fo Aētionable, was, to prevent a vaſt Multitude of Law-
cloſely. For 'tis evident, that the Law may deny Suits ; eſpecially conſidering that ſome of theſe Patts
Agreements, even in Matters of Conſequence, an Action proceeded from Unadviſedneſs
, (for elſe they might
in the Civil Court(1). To this purpoſe, ſays Strabo, have been made in Form of Law) and others were
1.15. P. 488. in the beginning, A Truſt of Charge of no Uſe, as tending to no Conſequence, when put
cannot be recovered by Law; Witneſſes and Seals līg- in Execution.
nifie nothing
, for 'tis but a bare Truſt. (*) Sen. de word Caufa, ſo often made uſe of by the Civilians
,
,
Benef. 1 3., c. 15. Wiſhes, That no Debts bad the is plain from Plaut. Afmar. A&. 3. Scen. 1. V. 17.
Benefit of the Law, but were left to depend entirely Sola ego in caſterii (4) ubi quieſco omnis familie
on the Honeſty of the Party: (a) But as to what the cauſa conſiſtit, i. e. omne emolumentum quod ex fa-
Roman Law ſays, that Simple Pa&is admit of no A&tion, milia capis. Thus, if any ſhould agree, not to waſh
(6) Legitima conventio eſt, que lege aliqua confirmatur, do ideo interdum ex pa&to a&tio naſcitur, vel tollitur, quotiens lege vel Senatus
conſulto adjuvatur. De Pactis, Leg. 6. Hence it is, that by the Pretor's Edict, a Mortgage was good and valid, altho' it was founded
upon a Simple Contract only. See the ſame Title of the Digeſts, Leg. 17. 5 2. and Mr. Noodt s Probabil. Jur. 1. 2. c.8. Tis the
fáme, when a Man promiſes to give ſo much in Portion with his Daughter. See Cod. 1.5. t.11. De Dotis Promiffione & nuda pollici-
tatione. Leg. 6.
I ſhall alledge but one Example more, and that is of Gifts among Perſons Living : For the Emperor Juſtinian or-
dained, That tho' One had not delivered a Thing, of which he had promiſed to make a Preſent, nor was under any Engagement in
Form, he ſhould nevertheleſs be obliged in Juſtice to keep his Word ſtrictly. See Cod. 1. 8. t. 54. De Donationibus, Leg. 35. Ss.
()
trears
afterwards of thoſe Impious Perſons who retracted, after they had promiſed to give ſomething to pious Uſes, or to the Clergy,
and it threatens them with Divine Vengeance: TANTOQUÉ MAGIS HÆC FIRMA ESSE, Si piis a&tibus, vel RELIGIOSIS PER-
SONIS, donatio deputata fit ne in præfatis piis caufis, ex quibuſdam Machinationibus, non ſolum indevotus, ſed etiam IMPIVS DO.
NATOR intelligatur, POENASQUE non folum Legitimas, ſed eeiam COELESTES EXPECTAT, &c.
(1) Hæc verba (Rogavit Titius, ſpoſpondit Mavius) non tantum pa&tionis loco accipiuntur, ſed etiam ftipulationis. Ideoque ex ſtipulatu
nafcitur Atio. Ibid. Leg. 7. $ 12. See $ 5. Note 1. following.
(8) Provided, ſay they, that they have been added ſoon after the Concluſion of the Contract; for 'tis nor the ſame if they be
added ſome time after. Solemus enim dicere pa&ta conventa ineffe bona fidei judiciis; fed hoc fic accipiendum eft, ut ſi quidem ex continenti
palta ſubſequut a ſunt, etiam ex parte aftoris infint, ex intervallo non inerant. Ibid. 5'5. See what is ſaid 8. following, and chap. 10.
$ 7. As to Contracts of ſtrict Right, fimple Conventions, tho' made on the ſpot, make no part of a Contract, nor afford an Action in
Juſtice, tho' they ſtrengthen an Engagement. But when they lefſen it, they enter into the Contract, and yield the Defendant an Ex-
ception Valid in Law. Mr. Noodt, De Ufuris og Fænore, l. 3. ch. 1,5. promiſes to ſhew it at large, in a Work which he inticles
De Patis, and is with Impatience expected by all ſuch as know the Sagacity and Ability of the Author.
Mr. Barbeyrac's NOTES on $ 3.
(1) This Paſſage may be explained by another of Nicholas Damaſcenus, related by Stobæus, Serm. 42. Tlap? 'Ivshow's Y TISSOS
sepnon saveir, ni análæbáxns, en bz xeiois, aaa'outù altiãg's wisdous. Among the Indians, if any refuſe to reſtore Money
lent, or a Pawn, the Creditor, or he that has truſted the Pawn, has no Action at Law againſt the Debtor, or Perſon who hath been
trusted, but he muſt blame himſelf for truſting another. Which Perizonius explaining, Tays, They only imply, that theſe kinds of
Suits were rare among the Indians. But there is a ſtronger Paſſage in the ſame Book, where Strabo ſays, upon the Credit of Oneſi-
critus, That thoſe who inhabit in that part of the Indies that is ſubject to Muſicanus, had no Actions at Law but for Murder and Injuries,
Aixlus ö usi , alugóvx, i u@gows. And that for two Reaſons; 1. Becauſe no Man can be aware of the Inſolence of another, as
he may prevent Deception in Contracts : And, 2. Becauſe the State ſhould not be troubled with multitudes of Law-Suits, as the
Greek implies, Ουκ επ' αυτό και το μη παθών ταύτα τα δι' ον τοίς συμβολαίοις επ' αυτω εκάσω, ώσε ανέχετε δε, εαν τις πα-
ege ταίςιν, αλλά και προσέχειν, ότω σισάέον, και δικών πληρέν τσόλιν. This plainly news that it was a Publick Eftablift-
ment, to eaſe the Judges of many troubleſome Cauſes, and not the bare Effect of the Probity and Honeſty of private Perſons in fulfilling
their Contracts; and to the ix ozi xelous of Damaſcenus,and sexlu un E in Strabo, do fignifie. But this is farther confirmed by Ariſtotle,
who ſays, in Ethic. ad Nicomach. I. 8. c. 15. Aid wag evious tétWV eo i Aixas. And again, 'Eviaxã 7' EIEI NOMOI, ofis Éxx-
σίων συμβολαίων ΔΙΚΑΣ ΜΗ ΕΙΝΑΙ, 1. 9. c. Ι. See Grotius, l. 2. c. 17. $ 10. and Cujacius's Obſeru. l. 11. c. 9.
Ælian. 1.4. C. 1. we find, that among the Sardinians there was a Law, importing, that they could bring Idle Perſons to Juſtice, and
make them give an Account how they lived, in theſe words, 'Aggias nous dixan, zij cixã Sævla 'tond xeireats, rj fedóvar ta's
eva
Iwjas, Stod exvla, osv S. See alſo a Paſſage of Plato's, quored l. 3. c. 6. § 10. Note 2. above.
(*) Seneca's Wilh is good and becoming a Philoſopher ; but to aboliſh
all Conſtraint to perform all Voluntary Engagements, is im.
practicable in any State, as Things are, and cannot have place but in an Utopia; as indeed Seneca owns, ſaying, Sed neceſſaria optimis
prætulerunt, &c. Things neceſſary muſt be uſed inſtead of the beſt. See l. 3. 6.4. $6.
(2) See $ 2. Note 2. above.
(3) See l. 3. c. 5.$11. Note 2. above.
4) Plautus's words are miſunderſtood by our Author ; the true Senſe of them is, “ All the Revenues by which I maintain my
< Family, muſt ceaſe, if I do not trade in my Art.” See Gronovius's Obſervat. 1. 4. 6. 26. Moreover, when che Roman Lawyers
ſay, A Contract without a Cauſe obliges not ; they mean not, a Thing that brings fome Profit to one or other of the Contractors,
but, a Thing actually made or given in the ſight of another, to whom we are engaged, without examining whether it be profitable
or not. See s 2. Note 5. above. So when one ſays, I give you this, that you may give me that, or, that you may do that for me;
this is a Contract : But if one ſays, I will give you this, provided you will give me that ; this is an Agreement without a Cauſe. See
(a) See Grot. b.2. c. 18. f. 10. (6) Nuda pa&tio obligationem non parit, sed parit exceptionem, D. Lib. 2. f. 14. De Pactis,
Leg. 1. $ 4.
Vinnius
Moreover, in

Chap. II.
235
That preſuppoſe the Price of Things.
ز
لاب
3
(1) This Divifion is not found formally in the Roman Law; but there is a Law, Digeft. lib. 1. tit. 16. De verbor. Signif. leg. 19.
buntur, aut
their Hands, or comb their Head, or change their rally, as appears from the principal End of the Con-
Linnen for ſuch a Time, (as ſome Slovens have done) trači
, oblige me only that am the Receiver, nor can
what need would there be to trouble a Magiſtrate upon they originally
, affect the Giver: 4 But Accidents may
the Breach of ſuch Agreements? Which indeed are fall out, ſo as to lay an Obligation upon him alſo ; as
ſcarce allowable by the Law of Nature (5)
if I ſhould be at neceſſary Expences for the Thing,
IV. In my Opinion, the Difference between Palt or ſuffer Damage by it, for which the Owner ought
and Contract may be beſt taken from the Object, fo to be anſwerable. In this Caſe the Expences are to be
as to call that (1) Contract which concerns thoſe repaid, and the Damage made good.it:vt i betong
Things and Ations that are the Subject of Traffick, VI. Again, The Roman Lawyers frequently divide
and 16 preſuppoſe Property, and Price; and that Palt, Contract (1)(a) into; Real
, Confenfual Literal, and
by which we Covenant about other Things
. By this Verbal
. The Real is ſo call’d, not becauſe it is con
means Patts, ſtrictly ſpeaking, will take in all nega- verſąnt about ſome real Thing, for all Contracts are
mice Agreements, by which we covenant not tự do, fo; but becauſe (2) a Pre-delivery of ſome real. Com
or not to demand, what otherwiſe we might do or de modity is neceſſary to intitle us to a Deinand of that,
mand : As alſo thoſe Agreements that have for their which gives this Contract its Denomination (h).
Obječt the Exerciſe of our Natural Faculties, fo far as Thus I muſt have received ſomething of my Creditor,
they barely tend to the promoting mutual Profit and before I can ſtand obliged as a Debtor (©): Nor can
Advantage, conſider'd meerly by themſelves, without a Truſt, or Loan be demanded, before it has been de-
any regard to Price or any valuable Confideration: In liver’d to me. But, by the way, the Coutra&t of
a Word, when we agree to do ſome Work that is Lending is one thing ; a Pact, or Promiſe to lend,
not mercenary: Tho': fome Agreements there are, another. A Truſt, one thing; a Promiſe to take in
which not being converſant about Things, may indif- Charge, another.
ferently be called either Pacts or Contraets, as that Conſenſual are fo call'd (3) (d), (not becauſe they
of Matrimony (2). Follo ton
alone require the Parties Conſent) but becauſe they im-
V. All Contra&s may be divided into three Sorts. mediately oblige, upon each Parties declaring his
Firft
, (1) Thoſe that lay an Obligation upon one Party Conſent, by proper Signs. Nor is it neceſſary, that
(*) only, which Condition cannot be (2) changed by any fome Thing Thould be firſt delivered, or ſome Work
thing ex poſt fatto ; as in the Loan of a conſumable firſt done.
Commodity, and (3) Stipulation. Secondly, Thoſe that A Verbal Contract, or Stipulation, (4) (e) as it con-
equally oblige both Parties (1), as in Buying and Sel- fifts in uſual Forms of Asking and Anſwering Queſti-
ling, Letting and Renting, Partnerſhip, &c. Thirdly, ons, is unknown to the Law of Nature.
Thoſe of a middle Nature, as the Loan of a Thing Nor is it more agreeable to that Law, that a Man
not conſumable, a Truſt, a Pledge, &c. Which natu- who has not received a Thing, ſhould be obliged by
Vinnius upon the Inſtitutes, l. 3. t. 14. § 2. 'Tis in this Senſe, almoſt, that the word Cauſa ought to be taken, when we ſpeak of a
Perſonal Action, for a Thing given, and the Cauſe follows not : Condi&tio cauſa data, cauſa non ſecutd. In fine, Tis certain, that in
the Roman Law, when we ſay, for Example, that we ought to reſtore the Goods of another, with the Fruits and Revenues that the
Proprietor hath received from them, we make uſe of the word Cauſa : Nec enim fufficit, corpus ipſum reſtitui; ſed opus eft, ut & caufa
rei reſtituatur. Digeft. 1. 6. t. I. De Rei vindicatione, Leg. 20. And ſo we muſt underſtand it in t. 1. I. 22. De ufuris, o fruétibus,
(5) See what I have ſaid Note 6..on 1. 3. 6.50 $ 9.
Mr. Barbeyrac's NOTES on S. 4.
21 (1) Every Man is at Liberty to diſtinguiſh and range his Notions, as he thinks good. But, in truch, there is no Difference in the
main between Contracts and Simple Agreements, according to the Law of Nature alone.
(2) The Roman Lawyers do not nevertheleſs give the Name of Contract to Marriage, as Mr. Hertius obſerves, tho' they
ſay, Contrahere Matrimonium. Digeſt. Lib. 23. Tit. 2. de Ritu Nuptiarum, Leg. 22. But the Agreement made upon the Account of
Marriage, as to what concerns Goods, may form a Contract, according to the Senſe of the Roman Law, and the Definition of our
Author. Whence it is, that Juſtinian, Novel 119. C. 1. pues a Gift upon the Account of Marriage among private Contracts.
shyan) bodiobor PC ... Mr. Barbeyrac's NOTES on §. 5.
which ſeems to intimace, that every Contract, properly ſo called, is obligatorý to both Parties. But ſee Vinnius upon the Inſtitut.
lib.
3. tit.
14. § 2.
(2) To underſtand this, we ought to read what the Author ſays a little lower of Mixt Contracts. See Vinnius on the Inſtitutes
lib. 3. tit. 15. 5 2. num. 2.
(3) In a Stipulation one of the Contractors muſt demand, and the other anſwer poſitively, after this manner: Doſt tlou pro-
mite to give me, or do ſuch or ſuch a thing for me? Yea, I do promiſe it. Verbis obligatio
contrahitur ex interrogatione
egr Refpon-
PROMITTO. Fide jubes? Fide jubeo. Dabis? Dabo. Facies? Faciam. Inſtitut, lib. 3. tit
. 16. De verborum obligationibus,
Princip.vitngoristni sistem
Tjestente son di masa bebot Mr. Barbeyrac's NOTES on 8 6. to
(1) Obligationem qua lex contra£tu ſunt, quatuor ſunt species. Aut enim re contrahuntur, dut verbis, aut. literis, aut conſenſu. In-
ſtit
. 1. 3. t. 14. De Obligat:
(2) ke
Re enim non poteft obligatio contrahi , nifi quatenus datum ſit, Digeft. l. 2. t. 14. De Paétis. Leg. 17. in princ. See t. 15. of l. 3.
2-
of the Inſtitutes, Quibus modis recontrahitur obligatio
. sigorge i Habits
(3) Such are the Contracts of Selling, Hiring, Society, and Commiſſion. Conſenſu fiunt Obligationes in Emptionibus, Venditionibus,
Condu&tionibus, Sociétatibus; Mandatis. Ideo autem iftis modis obligatio dicitur conſenſu contrahi, quia neque Scriptura, neque præſentia,
opus eft. At nec dari quicquam neceffe eſt, ut fubftantiam capiat Obligatio, fed fufficit eos, qui negotia gerunt, conſentire.
Inſtitut. I. 3. t. 23. De Obligationibus ex conſenſu.
(4) See Nore 3. upon the s aforegoing.
(*) povótadig O.
(+) hifadpo.. (a) Obligationum qus ex contraétu funt, quatuor Sunt ſpecies. Aut enim re contra-
(6) Vid. Lib. 2. t. 14. 1. 17. D. de pa&tis.
(d) Vid. Injtitut. l. 3.t.23. De Obligat. ex Conſenſu. (e) Vid. Inſtitut. ubi ſup. t. 16,
bare
2111
& caufis, &c.
omnimodo
(c) Add.
Val. Max. l. 8.c.2. 4.2.
236
Of Contrads in General,
BOOK V.
fore in the Roman Law, theſe had certain fixed Forms
bare Writings (5Xa) as much as if he had. But yet there containing no more than what was exprefly mentio-
is good Reaſon why this ſhould obtain in the Roman ned, had no proper Form of their own, but one ac-
Law : For ſince the Magiſtrate cannot be ſatisfied of commodated to the Thing; and therefore an Action,
the Truth of a Debt, but by Inſtruments and other upon Account of theſe, was always expreſt in a certain
Proofs, when Writings appear owning the Debt, he Form of Words (c).
muſt preſume upon it, till the contrary be prov'd. VIII. The Diviſion of Contracts into (1) Gainful and
Indeed there are no Contracts
, but what may be ex- (*) Chargeable, makes moſt for our Purpoſe, whereof
preſsd in Writing ; and this may be done two Ways: the firſt brings fome Advantage to one Party gratis,
for either the Contra& may be made, and the Con- as in the Caſe of a Loan, Commiffion or (1) Charge
.
ſent of the Parties declared in Writing; and, in this The latter binds both to an equal Share of the
Cafe, the Contract is then finiſhed, when the Writings Burthen; for here we act, or give, in order to re-
are, in all reſpe&s, perfečted ; which obtains chiefly in celve an Equivalent Upon this ſeems to be founded
Conſenſual
, and ſuch Sort of Contracts: or elſe the the Diſtinction of Contracts into thoſe that admit of
Writing is only an Evidence of a Contract already Equity, and thoſe that are tied up to the Rigour of
finiſhed. Which laſt is to be preſumed, if the Calé the Law. In the former the Magiſtrate has Liberty
be doubtful (b).
to weigh and eſtimate the Thing, according to (2) É-
VII
. Again, Contracts are divided into(1) Named and quity and Conſcience ; in the latter he is oblig'd right
Nameleſs. The former Sort are thoſe, which by rea or wrong (3) to proceed according to the ſtated Forms
ſon of their daily Uſe, have a particular proper Name of Law. Now Reaſon tells us, that Chargeable
aſſigned them, expreſſive of the Form and Contents Contracts are of the former Sort, and admit of a
of the Buſineſs ; and which being mentioned, imme- more looſe Interpretation in the Courts of Equity;
diately fignifies what was done ; (for altho' Bartering, for ſince the Obligation is mutual, neither Party ought
which is reckoned amongſt the Nameleſs Contracts
, to be over-burthened. But Gainful Contracts belong
ſeems to have a Name, yer 'tis a general one, and does to the latter, and do not allow of ſuch a looſe inter-
not expreſs, whether it be the Contract of (2) Goods pretation, or that any one ſhould be bound to do
for Goods, Buying, Selling, or any other.) And there- more than he has expreſly declared; for elſe a Man's
of proceeding; whereas others of leſs frequent Uſe, him (d).





(s) Before Juſtinian, Men might, for 5 Years after the Date of a Noce Obligatory, plead and maintain, that he had not re-
ceived the Money or Goods mentioned; but that Emperor confined it to two Years. See Inſtit. l. 3. t.22. De Liter ærum Obliga-
tionibus. The Proteſtation or Declaration of not receiving, to which the Owner of the Nore has recourſe, is called Querela, or, Ex-
ceptio non numerata Pecunia ; and it belongs to him, of whom it is ſaid to be received, to prove that he did really receive it. The Reaſon
of it was, as it is expreſs’d in the Code, becauſe the Denial of a Fact is not capable of a Proof. Quum inter eum, qui fa&tum
adfeverans, onus ſubiit probationis, o negantem numerationem (cujus naturali ratione probatio nulla est), & ob hoc ad Petitorem ejus Rei
neceſſitatem transferentem magna ſit differentia, l. 4. t. 30. De non numeratâ Pecuniä, leg. 10. May we not ſay, that 'tis managed as
a Diſpute in the Philoſophy-Schools? And if we examine the Thing well, is it not really the Author of the Note that affirms and maintains
the Falſity of the Fact, of which the other is furniſhed with a Proof, reputed valid, till the contrary appears? and by virtue of which
this laſt ought to be ſuppoſed to hold to the Negative, .and conſequently is exempted from Proof, according to the Maxim treated on?
Further, as Mr. Hertius obſerves, 'Tis very rare that any Man purs a Nore into the Hands of him to whom it is made, before he
has received the Money or Thing which is acknowledged due by it, and if he is ſo ill-adviſed, 'tis his own Fault. It may alſo
happen that the Money may be lene without Witneſſes, and ſo the falſe Debtor may thereupon think to keep the Goods of the
Creditor ; and ſo much the more, becauſe the Space allow'd to the firſt to maintain that he has not received, and to oblige the
other to prove it, is too long. Upon the whole, it appears, that our Author repreſents the Idea's and Maxims of the Roman Law
very imperfectly.
Mr. Larbeyrac's NOTES on $ 7.
(1) See $2. Note 4, 5. abofe.
(2) As for Example, if we give a Thing to a certain Perſon to ſell for us, upon Condition that he ſhall keep to himſelf all that
he gets above a certain Price fet him. This is a Contract without Name, which yields an Action in a Form preſcribed. Cum de-
ficiant Vulgaria, atque uſitata Aftionum Nomina, preſcriptis Verbis agendum eſt, in quam necesse est confugere quotiens Contra&tus exiſtant,
quorum Adpellationes nulle jure civili prodita ſunt. Naturâ enim rerum conditum eſt, ut plura fint negotia, quam Vocabula ---
Si tibi
rem vendendam certo pretio dediſſem, ut quo pluris vendiſſes, tibi haberes, placet ; neque mandati, neque pro focio ese a&tionem, ſed in Fa-
tum, quaſi alio negotio gesto, Digeft. l. 19. t. 5. De præſcriptis Verbis, &c. Leg. 2, 3,4, 13. princ. Laſtly, As to what concerns the Na-
cure of Contracts without Name, ſee Mr. Titius on Lauterbach, Obf. 620.
(3) See Digeſt. 1.19. t. 4. De Rerum permutatione, Leg. 1. $ 2.
Mr. Barbeyrac's NOTES on $ 8.
(1) Our Author has forgot to mention Donations made between Living Parties, as well in Chap. 4. as in this; but Mr. Barbeyrat, in
his Firſt Note upon the Firſt Sect. of that Chap. has ſupplied this Defect.
(2) Tantundem in bone fidei Judiciis officium Judicis valet, quantum in Stipulatione nominatim ejus Rei fa&ta Interrogatio, Digeft: l.
3. to s. De negotiis geftis, Leg, 7. Moreover, in the Roman Law, the Number of honeſt Contracts, call'd, Bona Fidei, is not determin-
ed clearly
. See Inſtit. l. 4. t. 6. De A&tionibus, $ 28, 29. nor do the Interpreters agree about them. See Titius in Lauterbach. Ob-
ſerv. 1148, OC.
(3) This goes ſo far, that if we require, for Example, one Dollar more than appears to be due, we loſe our Cauſe. Hic tu si
amplius HS. nummo petiſti, quam tibi debitum eſt
, cauſam perdidiſti, propterea, quod aliud eft Judicium, aliud Arbitrium, Cicer. Orat. pro
Roſcio Comodo, c. 4. Si quis agens, intentione ſua plus complexus fuerit, quàm ad eum pertineat, caufâ cadebat, i. e. Rem amittebat
,
nec facilè in integrum reftituebatur
à Prætore, niſi minor erat viginti quinque annis, Inftic. 1. 4. t. 6. De Actionib. S 33. See Plautus's Muftel-
lar. AF. 3. Scen. 1. $ 123. Sueton. Claud. c. 14. Seneca
, ep. 48. init. Moreover
, this nice Exactneſs was enjoyned, becauſe thoſe who
had the Cognizance of Civil Affairs were commonly inferior Judges, whoſe Power was limited by the Præcor. See Mr. Noodt's cu-
rious Treatiſe De Juriſdi&tione do Imperio, l. 1. C. 13.
(a) Vid. Inftitut. ubi fup.t. 22. (6) Vid. Grot. I. 2. c. 16. S. 30. and hereafter in c.5. f. 2.in fin. ibiq. not.
6. 12. f. 3. (1) Contra&tus Beneficus, (*) Contra&us onerofus. (d) Add. Arn. Vinnius ad. S. 28. Inftit. de A&ionibus, b. 3.6. 4.


(C) Vid. Grot. l. 2.
IX. All

CHAP. II.
Tbat preſuppoſe the Price of Things. 237
his
HA
fignified to divide the panGrotius's Words, A&tus per mutatorii, aut dirimunt partes, aut communionem adferunt, as if dirimere partes
IX. All Chargeable Contra&ts are reducible to four numerable Sorts, according to the infinite Variety of
Heads. Firſt, (1) Goods for Goods ; Secondly, * Work uſeful or pleaſant Actions, which may, in a manner,
for Work; Thirdly, | Goods for Work; Fourthly, *t be exchang’d and perform'd for one another. In vimm.
Work for Goods. Where the Word Work is taken in Marcellinus, l. 16. c. 10. this Sort of Contract is cal-
a large Senſe, ſo as to comprehend even the Deed of led Paltum reddenda viciſarudinis. And in Apuleius in
another Man, Grotius (a) admits of but three, leaving Apolog. Mutuarias operas cum vicinis cambirentz), riz
out Goods for Work: For that, he thinks, falls in with doiTo the third Sort, Goods for Work, belong the Let-
Work for Goods; and indeed there is no real Diffe- ting-out, or Hiring Work, or Day-labour for Money, as
tence between them, for both expreſs that Goods and alſo that Sort of Contraat, by which Goods are le-
Work are barter'd for one another: But in one, the cur'd and free'd from Danger for Money, which is
Contract, in a manner, begins upon the Delivery of call'd Inſuring As alfo, when rany Commodity, con-
the Goods, in the other, upon Doing the Work. So fumable or not conſumable, is given 1 for the Perfor-
that, in the one, the Doer ſeems the Author of the mance of any Work.ch to You to all 101
Contra& ; in the other, the Giver : For in fome Con- - 1 To the fourth Head, Work for Goods, belong thoſe
tra&ts, tho’ both Sides are equally obliged, yet they Contracts, by which any Work is done for any Thing,
take their Riſe from one only. As in Buying, the or for the Uſe of any Thing, or ſuch like (a): Be-
Bayer begins the
Contract ; in Letting, the Tenant,
&c. fides
, there may be Contracts not reducible to any of
To the firſt Head belongs all thoſe Contracts, where theſe Heads, as implying Disjunction (4) F. Such as
one Thing is exchanged for another, as in Bartering were the Nuptial Donatives among the Muſcovites,
frictly fo calld. Where we may obſerve, a Diſtin- of which Sigiſmund Baron of Herberſtein gives this
&tion nice enough, which ſome make between the ge- Account. Thoſe that are invited to the Wedding,
neral Contract of Goods for Goods, and Bartering. preſent the Bride; all the Preſents the Bridegroom
The former is, when the Things exchanged are inde marks, and lays up carefully; when the Wedding is o-
finite, as an Ox for a Mule ; or where, at leaſt
, one ver, he reviews them, and thoſe that be likes, he ſends
Part is fo; as a Horfe for this particular Ox ; Oyl to the Market to be priad; all the reſt be returns back
for Corn in general. But when the Goods in Con- with Thanks. Thoſe that he keeps, he makes amends
tract are determined, v.g. this Ox for this Horſe, it for, at the end of the Year, according to the Value of
becomes Bartering (6). Hither may be referred the them, either in Money, or fomething equivalent. If
or in a different Place ; twhich is now call’d Exchange groomi appeals to the Sworn Apprizers, and forces him
(c). Sometimes indeed Money is given for Money, to fand to their Valuation. But if, in a Year's time,
ſo as to make it perfectly Buying and Selling; as the he does not make a Return, or fend back the Gift, he
Money ftamp'd with Vi&tory, which Pliny (d) tells us fined double. 2. And if be forgets! to have it valued
us, before it had received that Stamp (4), was ac- by the Sworn Apprizers, he is forced to repay it at the
counted Commodity. If Goods are given for Money, Value of the Giver. And this Cuſtom the Common Peo-
the Contraēt is calld Buying and Selling. Sometimes ples obſerve in all sorts of Donatives. The ſame
the Uſe of a Commodity is given for a Commodity, Thing is related of the Preſents the Perſians give li-
as if I lend my Horſe for a Book. Sometimes the berally to Strangers (g); for which, if they do
Uſe of one Thing for the Uſe of another, as if I let receives a greater Return, they not only licom
you live in my Houſe, upon Condition that you let plain, but often revoke what they had given, or the
me enjoy your Land. Sometimes the Uſe of a Thing Value of it.
for Money, which is properly call d Letting and Rent - All theſe Sorts of Contracts have this in Common,
ing. Some Things too we give, in order to receive as that when they are perform’d on both sides, the Par-
much of the fame Sort; fome time after. 3370 ties have no longer any thing to do with one another
Of the ſecond Head Work for Work, there are in- upon this Score. And therefore (6) Grotius (b) calls
Mr. Barbeyr ac's NOTES on § 9.
(1) So the Digeſts diſtinguiſh them, Totius ob rem Dati Tra&tatus -- in his competit speciebus. Aut enim Do tibi, ut Dus, aut do, ut
facias, aut facio ut des, aut facio ut facias, I. 19. t. 5. De Præſcript. Verb. &c. Leg. 5. princip.
(2) See Mr. Noodt's Probabilia furis, l. 4. c. 4. where he recites a Law of the Digeſt. 1. 12. t. 4. De conditione caufâ datâ, caufa
nor ſequuta. Leg. ult. which being corrected by an happy Conjecture, which he propoſes, Thews, for Example, that the Lawyers
upon it as an Exchange, and not a Sale, to give foreign Money for a Slave. See alſo Bern. Briſon. Sele&t. Antiquit. l. 1.c.8.
(3) The last of theſe ſpeaks of thoſe who went up and down to do Husbandry Work the one for the other, Ego adeo fervos tu
quebantur poteſtate proximi Reges numero quinque, regalefque decem, & optimatum ſeries magna, Armatorumque millia triginta & quinque
(4) This is, when one truſts a thing to another to ſell at a cercain Price, on condition, that he either returns the Thing again, or
igitur ipfam Rem debebit incorruptam reddere
, and estimationem de sua convenit. Digen. 1. 19. t.3. De Ætinaprijk.See Plaut. Captiv
.
(6) Grotius's Diviſion is into Diremtorii and Communicatorii, and not Commutatorii, as our Author has it, which he makes the two
Kinds of Contracts, which he calls Permutatorii. Moreover, there is another conſiderable Miſtake in the Original; for we may obſerve
ule ſuch a barbarous Expreſſion ; for if we examine his Words, we ſhall find his Notion to be this, that theſe sort of Acts either re-
gulate the Part that each Contractor ought to have, or make the Things about which they treat common.
(t) Dout des. (1) Facio ut facias. (1) Do ut facias. (**) Facio ut des.
.9 165 Vid. Mornacium ad' l. 5. D. de preſcriptis verbis.
(a) In the aforeſaid Place.
(c) In Latin Cambium, in Greek Kórnubo (d) Nar. Hift. I. 33:
(e) Vid. Totum t. 5.1. 19. D.de præſcrip. verbis. (f) As alſo the Contra&tus eſtimatorius, de quo vid. 1.19. t. 3. D. de
æftimatoria aétione. Add. Plaut. Captiv. Att. 2. Sc. 3. v. 18, &c. (8) Vid. Petrum, della Valle, Itin. Part. 2. Epift. 1.
(6) In the aforeſaid Place.
+ LI
them
not
Jud

looked
or
C. 3
238
of Contracts in General,
Book V.

them Diremtorii, and oppoſes them to thoſe Con- ring. But in Partnerſhip, tho' oue contributes. Mo-
tracts which he calls Commutatorii
, the Completion ney and Work, another only Money, yet it does not
of which conſiſts in having Dealings continued be- ſeem to be a mixt Contract. For it does not become
tween the Parties, as in that of Partnerſhip, where, mixt from the different Performances, (for if I hire a
for one another's Advantage, Two or more joyn, ei- Man tol dig in any Vineyard, to ſow my Ground, and
ther Work or Goods, or Work on one Side, with Goods plant my Orchard, it is all but the Simple Contra£t
on the other. And theſe together with thoſe which of Hiring.) but from our Agreements in Matters of a
we call Gainful, are generally Simple Contracts. différent Nature, by one and the fame Covenant.
of X. But fome Contracts are Mixt, and, as it were, Grotius (f) is of Opinion, that a Contract becomes
compounded of two Sorts ; as if I deſignedly buy á mixt by the Acceſfion of one set to another, as in Sure
Thing for more than the Value, and ſo give the O- tifhip and Pledges. But in this he ſeems not ſo very
verplus of the Price to the Seller; or (1) fell a Thing accurate; for a third Species muſt reſult from a Mix-
for leſs than the Value, and ſo give what is wanting ture properly ſo call’d: Whereas in Suretiſhip, the Se
of the Priceſ to the Buyer: This is partly Giving, part- curity is not mixt with the principal Contract, but is
ly Buying and Selling. Thus Cæfar fold vaſt Farms only added to it, as an extrinfick Confirmation. For
to Servillia for a Trifle (a). If I give greater Wages the giving Security makes no Alteration in the Debt;
than the Work is worth, it will be partly Gift, part- but only makes Proviſion for the Creditor, in caſe the
ly Hire: Which great Men ſometimes do out of Gran- principal Debtor ſhould prove inſolvent. However,
dour, thinking it for their Honour to reward any to ſpeak more accurately, there are in Suretiſhip two
Man's Work more than it deſerves ; and this is part- Contraĉts, which feem to be but one, becauſe the
ly Liberality, partly Contrat (b). And on the other fame Surety hath to do with both Creditor and Deb-
Side, a Man may accept of Part of his Wages, and tor; for there paſſes but a bare Promiſe between the
forgive the reſt (c). If I bargain with a Goldfinith Surety and the Creditor ; and yet, ftri&tly ſpeaking,
to make me Rings out of his own Gold, it will be that Promiſe only thews that he is obliged to make
partly Buying, partly Hiring (d). Tho’ fome look good the Debt, and is not that which obliges him;
upon to be only Buying ; fince in Buying, we not on- for that which obliges him, is, the principal Con-
ly pay for the Materials, but for the Workmanſhip rract, whereby the Surety, by his Promiſe
, has brought
too. And there is little Difference whether the Thing an Obligation upon himſelf to ſupply the Failure of
is already made, or to be made. (2) Nor can I be the Debtor : So that this Promiſe partakes of the
properly ſaid to hire, where the Perſon of the Work- Nature of the Contra&t itſelf. Now this Suretiſhip
man remains at his own Diſpofal (e). When Land is is no Gain to the Creditor'; for he gets nothing by it,
lett out for Rent, it is a Mixt Contract of Selling and but a proper Means of recovering his own. And al-
Hiring, tho' the Law of Zeno makes it a Species of tho’his Security is hereby provided for, yet not the
it felf. A Grant by Fee is ſo far à Gainful Contract
, Creditor, but the Debtor is beholden to the Surety;
as being much greater than the Military Service that for without this Security the Creditor had never en-
is due for it. Indeed as far as this Military Service ter'd into Contract. In
may exacted for the Protection that the Lord gives But when the Surety pays the Debt, then there a-
his Vallal, it partakes fomething of the ſecond Sort of riſes an Account between him and the Debtor. For
Contradt, Work for:Work; yet that which is the in this Cafe (3), he is ſuppos'd to have lent the Deb-
Principal in the Contra&t, belongs to the third Sort, tor the Money, or, which is all as one, to have paid
Goods for Goods. Buc if this Fee be charged with it by his Order and Commiſſion. Now this Act of
the Incumbrance of a certain Quit-Rent, fo far it par- Suretiſhip cannot be reckon d an A&t of Liberality,
takes of Land-renting. Laſtly, Nautick Intereſt, or either in refpe&t of the Debtor or Creditor; for the
what we call Bottomry, which vaſtly exceeds all o Debtor gets nothing by it, and the Creditor, without
ther common Uſury, is mixt of Borrowing and Infu- it, had not entred into any Engagement.
hit
be

Mr. Barbeyrac's NOTES on § 10.
(1) That is to ſay, if the Sum be inconſiderable, in compariſon of the real Value of the Thing, altho' it be much below the true
Price. For if one gives, for Example, as much for a Dollar, as is worth 30 or 40, the Gift then ſo much exceeds, that it ſwallows
the Sale; and if the Diſproportion be yer greater, it cann't be called a Sale but in Jeft
. This was the pretended Sale practifed among
the Romans, when, whatever Price the Goods were of, which one was ſaid to buy, he gave to the Seller, with certain Formalities, a ſmall
Piece of Current Money, which was called, Nummo addicere. Alſo Vlpian ſays in the Law quoted by Mr. Hertius, that a Sale, fuch
as is laſt mentioned, is not good and valid in ſuch caſes, as there ought to be a true Sale; whereas, when a Man fells a thing ac
a very low frice, the Sale is valid, and is only looked upon as a kind of Gift at leaſt, if it be not between ſuch Men as are forbid-
den to give any thing to each other. Si quis donationis caufâ minoris vendat, venditio valet. Toties enim dicimus in totum venditionem
non valere, quotiens univerſa venditio Donationis cauſâ falta eft, quotiens vero viliore pratio res, donationis caufâ diftrahitur, dubium non
eſt, venditionem valere. Hoc inter cæteros, inter Virum vero do Ucorem, donationis caulà venditio fa&ta pretio viliore nullius momenti est.
Digeft. I. 18.t. 1.de contrahenda Emptione, Leg. 38. See l. 19. 6. 2. Locati conducti, Leg. 47.& 1. 41. c. 2. de adquirenda vel amictenda
poffeffione, 1. 10. § ult.
(2) The Words of the Digeſt are, Nec poffe ullam locationem eſſe, ubi corpus ipſum non datur ab eo cui id fieret.
(3) Thefe Fictions of Law are nothing but an empty Circle, uſed unneceſſarily : For the Rules of Equity are ſufficient to thew,
that the Debtor ought to have paid rather what the Surety paid for him to do him Service, otherwiſe he was the cauſe of the
Damage.
(a) Suetonius Julio, c. 50. (6) Add. Mat. 20. 9, &c. I.26. t. 7. L. 12. S. 3. D. de Adminiſtr. do peric. tutorum.
Val. Mar. 1. 5.c. 2. S. 1o. (d) So ſays Grotius in the aforementioned Place, S. 5.
(e) Vid.!. 18. c. 1.1.20. D.de con-
trah. empt. & !. 3. t. 25. 1. 4. Inſtit. de locat. & conduct. (f) In the aforecited Place, f. 6.
© Add.
CHAP.
sanit
CHAP. III.
Concerning the Equality, &c.
239
zou Bond
the reſt (?). And this is plain from the End of ſuch Qualities, but alſo, to the beſt
ſtration ; for ſince Contra&ts are neceſſary for my ob- reckoned in collit. edidi. Bich ought to be told in
-110.) su dos
0 20 cibule 10
NĐ) C H A P. III.
Concerning the Equality that ought to be obſerved in Chargeable
Contracts.ods gamis pas vitraxe do 20
og vi ses i tagiddo ed bloor on i
Doch 12 ni awollot ait olamy
1. The Equality to be obſerved in Chargeable Contra&s. VI. No Man is to be ſcared into a Contract.
II. The Faults of a Thing are to be diſcovered. VII. In Gainful Contracts Equality need not to be ob-
III. The Nature of a Contra& requires it.
Ferved. To
Ohh
W. Whether what concerns not the Thing it felf, muſ VIII
. In a Chargeable Contra&t nothing is ſuppoſed to
be diſcovered?
be given.
V. The Faults known on both Sides need not be men- IX. How Inequality not foreſeen is to be corretted.
bntioned. 2007
X. Whether Over-reaching in Buying be lawful.
abrados
IN
N all (1) Contraĉts that are purely Chargeable, and (+) Conſule de gemmis, de tin&ta murice lana,99
have nothing of the Gainful mixt with them, Conſule de facie corporibufque diem.
where the Law, or the Market has fixt the Prices of
Ovid. de Arte amandi, 1. 1. V. 250, 251.
Things, an Equality ought to be obſerved : Or, one
Party ought to receive as much as the other ; and if And therefore he that is going to make over the Pro-
one happens to receive leſs, he has a Right to demand perty of a Thing, ought to expoſe, not only the good
eft of his (2) Knowledge,
Contracts, for therefore a Man enters into them, that the Defects and Faults of it;
and Faults of it ; for otherwiſe a jult
for his Goods or Work he may receive an Equiva- Price cannot be aſſigned (3). To this Place belongs
lent; which, for certain Reaſons, he prefers to his B. 19.1. 1.1.1.4. 1. D. de Alt. empt
. & Vend. l. 18. t. I.
own Goods or Work.
L. 43. f. 2. D. de contrah. empt. As alſo the whole
this admits of a more accurate Demon- De
19. Where the
up, one one, which
taining thoſe Things which I had no Right to claim; Sale of Cattle and Slaves; and which, if concealed,
and ſince it is preſumed that a Man gives nothing gra- makes void the Bargain : So that the Seller muſt ei-
tis, which he parts with upon Contra&t: We cannot ther take his Goods again, which is call'd Redhibition,
therefore think, that any one defigns to give away, by or abate in the Price; but the firſt was not obſervid,
confequently a Contra&t can give a Right to another vendita, propter minimam caufam , inempta fieri non
Man's Goods, no farther than as they are equivalent debet, Dig. I. 18. t. 1. de contrah. empt. L. 54. So Mr.
to ſomething which that other Man receives (î). Noodt explains this Law very well in his Obſervat. l. 2.
II. Now to find out and adjuſt this Equality, it is c. 9... Add. Gell
. 4. c.2. (4) Cicer. Of. 3.c. 16. It is an
neceſſary that the Parties contracting, be each of them ‘Ordinance of theCivil Law, in the Matter of Eſtates that
alike acquainted with the Commodity and the * Qua the Vender ſhould ſtill tell the Purchaſer the Defects,
lities of it (1).

*

Mr. Barbeyrac's NOTES on Chap. 3. $ 1.
(1) Here is a plain Reverſe of the Order; for our Author does not treat of Gainful or Free Contracts till the next Chapter; and
fo he ought to have created of Chargeable Contracts, and the Equality to be obſerved in them. He is guilty of the ſame Careleſs-
neſs in his Abridgment of the Duties of a Man and Citizen, l. 1. c. 5. but I eaſily helped that, by only changing the 3d and 4th Pa-
ragraphs for the 6th and 7th ; but ſince I muſt change two Chapters here to do it, i dare not uſe that Liberty, and ſo have thought
it enough to advertiſe the Reader of it.
(2) Add, Or break of the Contract quite.
Mr. Barbeyrat's NOTES on §. 2.
(*) That are of any Conſequence.
In Euripides's Cyclops, when Sitenus came to fell Ulyſſes Cheeſe and Milk, Vlyfjes bad him bring it out of his Cave; becauſe
Contracts ought to be made in the open Day ; 'Expésele, võs 98 fueronáu.coi agñad.
1, (+) This Paffage of Ovid's concerns the Prudence of the Buyer, and the Caution he ought to uſe, that he be not cheated, rather
than any Obligation the Seller is under to diſcover the Faules of his Goods.
(2) The Roman Law requires that it be done plainly, and without any Equivocation. Dolum malum d ſe abeſſe præſtare venditor debet,
qui non tantum in eo est, qui fallendi caufà obſcurè loquitur, ſed etiam qui infidiofè loquitur, obfcurè diſimulat. There is alſo another Law to
this Purpoſe, which treats of the Services of Inheritances ; Venditor, ſi cum ſciret deberi ſervitutem, celavit, non evadet ex empto
ditionem ; fi modo eam Rem Emptor ignoravit : Omnia enim, que contra bonam fidem fiunt, veniunt in empti aétionem, ſed ſcire venditorem
celare, fic accipimus, non ſolum fi non admonuit, fed & fi negavit fervitutem iftam deberi, cum effet ab eo quæſitum.
About this
whole Marcer conſult Mr. Daumaut's Civil Laws, in their natural Order, l. 1. t. 2. $ 11. p. 1.
(3) It had better have been ſaid, O:herwiſe the Buyer will not give ſo much. Our Author ſeems to ſuppoſe a Price, below
which nothing is to be ſold. But of this ſee what is ſaid S 9.
(5) Cicero's Words are, Ac de jure quidem prædiorum ſancitum est, apud nos jure Civili, ut in his vendendis vitia dicerentur, quæ nota
effent Venditori
. Nam cum ex 12 Tabulis Satis esſet, ea præftari, que effent linguâ nuncupata, que qui inficiatus effet, dupli pænam ſubiret,
& Juriſconſultis etiam reticentie pena est conftituta... Quicquid enim esfét in Predio vitii id statuerunt, si Venditor feiret nifi nominatim
di&tum effet, prastari oportere.
(a) Vid. Deut. 25. 13, &c. 1. 47. 4. 2. I. 52.5.22. De Furtis. 1.6.1.1, 2. D. de extraord. crimin. l. 32. f. 1. de Leg. Cornel. de falſis.
+ L 12
or
240
Book V.
Concerning the Equality that ought to be
-
o
C. 1O.
or Inconveniencies of the
Eftate ; for it being fuffi- the Law of Contract
. For if I be not engaged in Con-
ciently provided by the Twelve Tables, that every trast, I may lawfully conceal from others leveral Things,
Man ſhould make good what he promiſes, or de tho'l alone am Gainer by it, which if I ſhould dit.'
clares by Word of Mouth, upon Penalty of double cover, other People would ſhare with me. As in
Damages for denying it, the Civilians have ſet a caſe, I ſhould find a Treaſure in a deſart Place, with
Puniſhment upon Concealments too, by enaĉting, out any Owner, no Law obliges me to tell another,
that if the Seller of an Eftare knew any Fault or Er- that he too may partake of it'c. Vid. (2) Mat. 13.44.
ror,
without exprefly acquainting the Purchaſer with For here if the Purchaſer had told of the Treaſure
,
it, he ſhould be obliged to make it good. Add the he had not bought the Field fo cheap. Vid. Grot. i.
Example that follows in Cicero Ambros. de off. l. 3. 2. C. 8. 8:7. Hither may be referred the Story of A-
In Contracts the Faults of the Commodity nicas, who firſt diſcovered the Samojedes, and ſettled
ought to be expreſſed; which, if it be neglected, a Trade with them, related by Lundorpius in bis
altho the Goods be in the Pofféffion of the Purcha- Continuation of Sleidan, ad an. 1607. Cic. Off
. 3.c. 10.
ſer, yet the Bargain may be vacated by an Attion of Says well
, That we ought not to negle&t our own
* Deceit.' (Altho what he there ſays of an A&tion of Advantage, when we can improve it without Inju-
Deceit does not rightly agree with the Roman Laws.) ry to another
. For as Chryfippus elegantly obſerver,
Lattant. 1. 5. c.17. He who does not correct the Er- He that runs a Race, ought to endeavour might and
ror of the Seller, (as ſuppoſe he ſees him deliver by ' main to get the Victory, yet he muſt not lay hands
Miſtake, a more precious Commodity than was a on him that he runs with, or uſe any other foul Play.
greed for,) or who does not own his Servant to be. And juſt ſo it is in human Life, any one inay law-
a Run-away, or his Houſe to be infected, conſulting fully endeavour to better his Condition, but not at
his own Profit and Advantage, is not a Wiſe Man, ' the Expence and Injury of another.' Ambr. has ex-
as Carneades would have it, but a crafty Knave. preſt this Paſſage, Off
. 1. 3. C. 4. In Contracts, that of
Plato (a) makes it a Law, that if a Phyſician buys (3) Val. Max.l. 8. c. 2. S. 1. ought to take place. A
a Slave, who labours under any incurable Diſtemper fair Dealer ought, neither to magnify the good Qua.
of Body or Mind, he muſt ſtand to the Bargain : But ' lities, nor conceal the ill ones of his Commodities.
'
if an unskilful Perſon makes the Purchaſe, the Seller (4) Hither may be referred that of Plato de Leg.
that impoſes upon his Ignorance, muſt be fined double: 1.11. p. 966. The Law which provides againſt the
But if one unskilful Man buys of another, the ſingle Seller's Over-reaching, ought alſo to be extended to
Price is to be reſtor'd (6).
the Workman: And therefore he had beſt take heed
III. This Neceſſity of diſcovering the Faults, ariſes that he does not rate his Work at more than 'tis
from the Nature of the Thing, becauſe otherwiſe a worth, for he cann't be ignorant of the Value of it.
juſt Price could not be aſſign'd, and not from the com And certainly it ought to be allow'd, in a free State,
mon Bond of Humanity, (as if that received a cloſer a Workman ſhould make uſe of Art, which is
Tye by Contraa) nor from the Contractors (1) en a plain Thing, and far from Deceit to impoſe up-
tring into ſome fort of Acquaintance, which may ſeem on the unskilful.” Hither too may be apply'd, that
to oblige them to other Duties, than thoſe that are which (5) Socrates ſays he heard of Afpafia, Good
required by the Nature of Contracts ; for when the Match-makers, that are fincere in their Commenda-
Conditions are performed on both sides, we don't tions of others, do good in making Alliances be-
think ourſelves more obliged to him we dealt with, 'tween Families, but thoſe that are falſe, do no good
than to any other Man, tho' indeed ſuch an Occafion • in commending. For, when the Parties are unde-
may ſometines be the Means of an Acquaintance and ceived, it ſo happens that they hate one another;
Friendſhip with him. And therefore, it is no Conſe " and thoſe too that were inſtrumental in the Match.
quence, that, becauſe it is not againſt the Law of Hu- Xen. Mem. l.2. p. 439. Ed. H. Steph.
manity to conceal a Thing, therefore it is not againſt
Mr. Barbeyrac's NOTES on $ 3.
(1) Our Author ſeems here to refer to Grotius, tho'he names him not, but he miſtakes his Senſe : For that Great Man ſays, i. 2.C.12.
9.9. That Bargainers enter a more particular Society, than that of Men in general, which only
ſignifies, that they who deal together
,
engage themſelves thereby to certain Things, to which they are not obliged as Men; becauſe, as he ſays a little lower, Contracts
are made for the mutual Advantage of the Contractors
. But we muſt not infer from 'hence, either that theſe Engagements extend
farther than the Nature of a Contract ; or, that beſides this Contract, the Contractors, as ſuch, are obliged to one another in any
orher Thing, more than thoſe who never had any Dealings one with another.
(2) This Example is only proper here, fuppofing that the Treaſure belongs of Right to the Owner of the Field; for if the Laws
of the Country
adjudged it to him (as Grotius concludes
from that place, thae the Jews Law did) the Buyer was guilty of a Cri-
minal Artifice, or indirect Robbery, if we conſider the Action in itſelf, without any relation to the Parable, whoſe circumſtances,
we know, are not all to be urged, no more in this than the Parables of the unjuſt Steward, Luk. 16. 1. and Judge, Luk. 18.2. But
to ſpeak my Thoughts, 'tis very uncertain whether it was in Uſe among the Jews, that the Maſter of the Field ſhould have the
Treafure found in it, fince Grotius alledges no other proof than the circumſtance of the Parable, which cannºt be ſafely depended
on. Suppoſing then, that by the Civil Laws,
the Treaſure, unknown to the Owner, ought noc to be left to the Proprietor of the
Place where it is found, nor to be kept for the Prince ; in this caſe I cannor ſee any Cheat in the Silence of the Buyer, for in as
much as the Owner himſelf hath nor diſcovered the Treafure, he has no more Right to it than any other Man, and the Buyer is not
obliged to cell him of what Diſcovery he has made. See l. 4. C. 6. § 13.
(3) Val. Maximus's Words are, Bone fidei venditorem, nec commodorum spem augere, nec incommodorum cognitionem obſcurare oportet
.
Plato
forbids Sellers
to advance their goods too much
; and above all, to Twear that'cis worth ſo much, of coft ſo much, "Era G
öpunt 7e miei a aylès få wwax efi's arisa, De Legib
. l. 11. He orders a little higher, not to pitch two Prices, but to ſee the true
Price at firft. Ο σωλών εν αγορά, ότιέν, μηδιέπίθε άπη διυδ τιμάς, ών άν σωλη.
(4) Plato's Words are, Και αναιρα μόρ ΕρΓο, ξυρσελάτης νομοθάπερ πωλένηξωεξέλευε μη πλέον τιμάν διαπερ-
κανον
, αλλ' ως απλές αλα ταξίας, τούτου και πεντάλες, και το αναρεμάρα. Γινώσκει
" και "AMAγές και αξίαν εν έλαβύρων έν πό-
λεσιν ελέπόθε χρή τεχνη', σαφεί και καψάλι φύσει πράγμαι, ολιαπαράς ή ιδιωτών τεχνάζονα αυτόν ή Δημιοργόν.
) , Tas iv3games eis
κηδείαν, ψάλλομέας δι' εκ όφελών επαινέσαι. Τις δ εξαπατηθέντας, άμα μισάν αλλήλες τε, και προμνησαμένων.
(a) De LL. /. 11,p. 965. Ed. Wech. (6) Plato in the ſame Place, Let no Commendation or Oaths attend the Sale of any
Commodity. () See above B. 4.c. 6. S. 13. and Mr. Barbeyrac's 2d Note apon chis Section.

IV. But
CHAP. III.
241
obſerved in Chargeable Contracts.

to
IV. But as it cannot be doubted, but the Faults another not to tell. Do I tell you, at this Inftant,
of the Thing it ſelf ought to be declared ; ſo whether what is the Nature of God, and what the Happiness,
circumſtantial Matters, which tho’they be not of the or Chief Good of Man, which it much more concerns
Subſtance of the Thing, it ſelf, yet Help in the juſt you to know than the Price of Corn? And yet you
prizing of it, ought to be laid open, both on the ſide will not ſay, that I conceal this from you. But I am
of the Buyer, and of the Seller, has been controverted not obligd to tell whatever is for your Advantage
among the Antients. (1) Cicero (a) has a Cafe to this bear. To this Antipater replies ; les, you are oblig’d,
Purpoſe : An honeſt Man, lays he, Sets fail from if you remember that Men are naturally linked toge-
Alexandria to Rhodes with a Freight of Corn; the ther in Society. Well (ſays Diogenes ) I do not forget
Rhodians being in great Diſtreſs for want of it, and the it : But will you have it to be ſuch a Society, as that
Commodity bearing an excelfiwe Price : This Perſon no Man ſhall have any thing particular in it of his
knows that there are other Alexandrian Ships under own? If ſo, there's no longer any Buying and Sell-
Way, and bound for the ſame Port, and with the ing, but only Giving (2). Here Cícero himſelf ſeems
fame Cargo : Shall he tell the Rhodians there are other to incline towards Antipater's Opinion (6); for he
Merchants coming with Relief, or ſay nothing of it, ſays, (*) This Concealment of the Corn-Merchant is
and make the beſt Market of his Corn that be can not the Practice of an open, a frank, a ſincere, a juſt
,
Antipater is of Opinion, That all the Circumſtances a good Man; but rather of a ſhifting, a cloſe, á de-
ought to be laid open ; ſo that the Purchaſer may not ceitful, a malicious Huckſter. And yet Cicero him
be kept ignarant of any Thing (tho it does not concern felf ſeems to free him from the Imputation of Kna-
the Subſtance of the Thing in hand) which the other very; for a little after (3) (c), he defines Knavery to
knows. Diogenes, on the other ſide, ſays, That the be, The Pretending one thing, and the Doing another,
Vender is bound to diſcover all the Faults, so far as which cannot be objected in this Cafe. And there-
he is obliged to it by the Civil Law, and to manage fore the Merchant did not a&t unjuſtly, in ſaying
bis Bargain without Fraud ; ſo that being to ſell the nothing of the Ships that were coming. For Juſtice
Commodity, he may, without Deceit, make the beſt of only obliges us to expoſe, what immediately concerns
it
. Here, ſays he, I have brought my Corn , I have the Thing it felf; as if a Houſe, by reaſon of its being
expos'd it to Sale'; I ſet no bigher a Rate upon it infected, had been commanded, by the Magiſtrates, to
than others do, nay, perhaps, I can afford it cheaper, be pulled down ; with which Example Cicero illuſtrates
there being now a greater Quantity than there was this Paffage. But nothing of this Nature was con-
before. How is that ? (replies Antipater,) Is it not ceald ; the Goodneſs of the Corn appear’d openly,
our Duty to conſult the Good of Mankind, and ſerve and, at the Time of Contract, was really worth as
human Society? Don't we lie under an Obligation, much as it was ſold for, althoʻlikely to be leſs worth
from our Cradle
, to make our Private Intereſt the in a little time. Nor had the Rbodians a Right, pro-
Same with the Públick, and the Publick the ſame with perly ſpeaking, to know this of the Merchant, as
our Private ? Shall we then conceal that from the never having made any Bargain with him about
People, which it ſo much concerns them to be inform'd it (4) (d). But whether he aɛted againſt the Law
of? To this Diogenes: 'Tis one thing to conceal, and of Courteſy and Good-nature, is another Queſtion,
which
Maſter.
Mr. Barbeyrac's NOTES on $ 4.
(1) Cicero's Words are, Si (exempli gratiâ) Vir Bonus Alexandria Rhodum magnum frumenti numerdm advexerit, in Rhodiorum inopia,
fame, ſumma que annone Caritate, ſi idem fciat, complures Mercatores Alexandrià Solviſe, naveſque in curſu frumento onuſtas, petentes
Rhodum viderit, Di&turúſne ſit id Rhodiis, an filentio fuum quam pluriino venditurus ? Sapientem, do bonum Virum fingimus, de ejus de-
liberatione do conſultatione quærimus ſi celaturus Rhodios non fit, fi id turpe judicet, sed dubitet, an turpe non fit. In hujuſmodi cauſis
aliud Diogeni Babylonio videri ſolet, magno che gravi Stoico, aliud Antipatro, diſcipulo ejus, bomini acutiſſimo. Antipatro omnia Patefa-
cienda, ut ne quid omnino, quod venditor nôrit, emptor ignoret. Diogeni venditorem, quatenus fure civili conſtitutum fit, dicere vitia
oportere, cætera fine infidiis agere, o quoniam vendat, velle quàm optime vendere. Advexi, expoſui, vendo meum non pluris, quam cæteri,
fortaffe etiam minoris, cum major eſt Copia. Cui fit injuria ? Exoritur Antipatri Ratio ex alterâ parte. Quid ais ? Tu cum hominibus
conſulere debeas, o ſervire humane Societati, eâque lege natus fis, & ea habeas principia Natura, quibus parere, & quæ ſequi debeas, ut
utilitas tua communis utilitas fit, viciffimque communis utilitas taa ſit, celabis homines, quid iis adſit commoditatis do copia? Reſpondebit
Diogenes fortaſſe ſic, Aliud eft celare, aliud eſt tacere, neque ego nunc te celo, ſi tibi non dico que Natura Deorum fit, quis fit Finis bonorum,
quæ tibi plus prodeffent cognita quàm Tritici utilitas, sed non quicquid tibi audire utile eſt, id mihi dicere necesſe eſt
. Immo vero, (inquit
ille) necesse est, ſiquidem meminiſti meste inter homines natura conjun&t am Societatem. Memini (inquit ille) ſed num iſta Societas talis
eft, ut nibil ſuum cujufque fit ? Quod fi ita eſt, ne vendendum quidquam eſt, ſed donandum.
(2) Mr. Placette is of our Author's Opinion alſo; but the Paſſage Thews, that Cicero did not much favour the Scholar againſt the
(*) Tully's Words are, Non igitur videtur frument arius ille Rhodius celare debuiſſe. Neque enim id eſt celare, quicquid
reticeas, ſed quum, id, quod tu ſcias, ignorare emolumenti tui causâ velis eos, quorum inter ſit, id ſcire. Hoc autem celandi genus quale ſit,
& cujus hominis quis non videt? Certè non aperti, non fimplicis, non ingenui, non juſti, non viri boni, verſuti potius, obſcuri, aſtuti, fallacis,
malitioſi, callidi, veteratoris, vafri.
(3) This is Aquilius's Definition ; for theſe are Tully's Words, Cum ex eo [i. e. Aquilio quæreretur. Quid effet dolus malus? Re-
Spondebat, cum effet aliud ſimulatum, aliud actum. See Mr. Noodt's Treatiſe De forma emendandi Doli. &c. chap. 2. where he ſhews us,
that this is not a perfect Definition, and that the Prætor only gives an Example of what is comprehended under Dolus, or Deceit ; fo
that he does noc exclude Diſſimulacion, by which One conceals what he does. Thus our Author's Reflexion makes nothing againſt
Cicero ; and 'cis fufficient to anſwer this great Author, That inaſmuch as choſe, from whom we conceal a thing, are not concerned to
know it, there is no wrong done them; fince they have ng Right to require a Diſcovery, which hath place in the Thing we are now
treating of, for ſome Reafons already alledged, and others which will be added below.
(4) I Mall here add Two Reflexions, taken out of Mr. La Placette's Treatiſe of Reſtitution, p. 227. I. “ It ſeems not worſe to ſell
chac a little dear, which thill be ſoon ſold at a worſe Market, than to buy at a good Market, what we know we Mill ſell dear ſome
s liccle time after : For the Heachens, and particularly Ariſtotle, approves of the Action of Thales, who foreſeeing that a great Scarcity
I would happen in a little time, bought a great
Quancity of Corn, by which he got very much. See chap. s. following, at the End.
"And as for what concerns the Chriſtians, they have an Example of Joſeph, who did the ſame thing in Egypt. II. If the Merchant,
being
got to Rhodes, had found that Corn had been brought thither from ſome ocher Place, and he mult fell at a lower Price than
it coſt him at Alexandria, or if his Veſſel had been loſt in a Tempeſt, he muſt have born the Loſs, and no Man would have
(a) Off. I. 3. 6. 12.
(b) Chap. 13. d. l. (c) Chat. 94 (d) Vid. Grot. h. 2. C.12. 1. 9. 1. 3.
66 minded
242 Concerning the Equality that ought to be
Book V.

which I would not eaſily hold in the Affirmative. made it needleſs for Gratidianus to ſay any thing of it;
For, Good-nature does not oblige me to do another nor could Orata be ſaid to be deceived, that knew what
Man a Courteſy gratis, except he be in extreme Title he had bought
. For as Ulpian ſays, L. 19.t. 1.
Want of it. But this was not the Caſe of the Rho- l. 1. §. 1. D. de act. empt. (2) He does not ſeem to
dians, they wanted Corn indeed, but not Money ; for ' have the Thing concealed, who knew it, nor ought
they were famous among the Ancients for their Riches. he to be advertiſed of it, who was not ignorant."
Belides, I am not obliged to do a Kindneſs, when 'tis Add. l. 18. t. 1. l. 43. f. 1. l. 57. f. 3. D. de contrah.
like to tend more to the Detriment of the Giver than empt. Lib. ult. D. de Ædilit. edi&o (3). Upon the
the Benefit of the Receiver. But, in this Caſe, the Mer- faine Principle was founded the Sentence that Marius
chant would have loſt more than the Purchaſers would gave in the Caſe of (c) Fannia, who had been married
have got by the Intelligence. For if he vended it to a to Tinnius ; but upon a Divorce demanded back her
great many Purchaſers at the Market-price, each would Dowry, which was confiderable. He obje&ted Adul-
have felt it but little ; and if any one Man had engroſs’dtery againſt her. The Cauſe was brought before the
the whole, he might thank his own Avarice, if he loft Conſul. After a Hearing on both Sides, it appearing
by it; and indeed we cannot expect, in the common that ſhe had been an immodeſt Woman, and that her
way of the World, that Men ſhould be ſo very exact Husband knowing her to be ſuch, had yet ventured to
in the Performance of this Duty: For, provided the marry her: The Conſul reproved them both, and or-
Love of Money does not tempt the Merchant to cheat der'd him to reſtore her Dowry, and her to be fin'd
us, we may eaſily excuſe them from what the Law of four Ales for her fcandalous Behaviour (d).
Courteſy and Good-nature may ſeem to oblige them to. VI. Beſides, as in all Pacts, fo eſpecially in Con-
V. As for Faults already known to the Buyer, they tracts, neither Party ſhould be forced into a Bargain
need not be mentioned, for, in this Caſe, both Parties by an unjuſt Fear. The Lacedemonians therefore did
proceed upon the fame Foot (a). So likewiſe, where right in reſcinding the Purchaſe of the Land, that the
the Seller has told the Faults, the Bargain ought to Elians had extorted from the Poffeffors thro' Fear:
ſtand good,, for then 'tis manifeſt that the Buyer con- For they were of Opinion, To force a Title from the
ſents to them; (1) Cicero has a Cafe (b) to this purpoſe. weaker, under Pretence of Purchaſe, was no better than
Gratidianus fold to $. Orata thoſe very Houſes which downright Robbery (e) (I). Thus when Cicero (f) ob-
he himſelf had bought of him but a few Years before. je ted againſt Verres, the Pi&tures and Statues which
Theſe Houſes paid a Duty to Orata (which was out of he had brought out of Sicily; Verres thought he could
bis Mind); but Gratidianus made no mention of it in anſwer the Accufation in a Word, by laying (2), I
conveying bis Right. The Cauſe was brought into the bought them. But Cicero replies, that their Anceſtors
Court. Craffus was for Orata, and Anthony for Gra- had wifely enalted, that whoſoever ſhould be ſent Go-
tidianus. Craffus infifted upon the Law, that the Sel- vernour into a Province, should not be allowed to make
ler knowing it, ought to have acquainted the Purchaſer any manner of Pürcbafe: And for that Reafon Money
with the Incumbrance, but did not do it. Anthony ini and Equipage was provided them by the Publick. Slaves
Sifted upon Matter of Equity, that the Incumbrance was indeed were not, becauſe there was ſcarce any Man of
not unknown to Orataj who had fold the Houſes, which Figure in Rome, but had some of them. And yet na
witw
“minded to make good his Damage. Why then might he not make uſe of his good Fortune, which brought him into the way
of
“ Gain ? On this Account (ſays Mr. La Placette) I dare not condemn the Merchants,
who make their Gains, by the Advices which they
“ receive from their Correſpondents in other Countries. As theſe Correſpondences coſt them ſomething, it is juſt they ſhould gain
by them, nor can I think that they are bound in Conſcience to diſcover them to any Body. ”
Mr. Barbeyrac's NOTES on 6 5.
(1) Jus Crasſus urgebat (fays Cicero) quod vitii venditor non dixiſſet ſciens, id oportere preſtari; equitatem Antonius, quoniam id vitium
ignotum Sergio non fuiffet, qui illas ades vendidiſſet, nihil fuiße neceße dici, nec eum deceptum, qui id, quam emerat, quo jure effe teneret.
Moreover, to underſtand the Cauſe of this Suit, we muſt ſuppoſe that Sergius demanded an Abatement in the Price, upon the Account
of the Right of Servitude, which had been heretofore apparently reſerved upon the Houſe, when it was ſold to Marius, which made
it of a leſs Value ; for he affirmed, that ſince that Servitude was known, no Body asked the Price of it.
(2) Vlpian's Words are, Hæc ita vera ſunt, fi emptor ignoravit Servitutes, quia non videtur effe celatus, qui ſcit; neque certiorari debuit,
qui non ignoravit.
(3) To this belongs that of Horace, l. 2. Ep. 2. V. 14, &c.where he brings in a Fellow ſelling a Slaye ; who, after having reckoned.
up his good Qualities, adds,
Semel hic ceſſavit ; oo, ut fit; paid before This Boy was faulty once, he ſtay'd at Play,
In ſcalis latuit metuens pendentis habena.
And when he fear'd the Laſh, he ran away:
Des nummos, excepta nihil te ſi fuga ladat,
Buy, if you like him now, his Faules are told,
by Ille ferat pretium pænæ ſecurus, opinor. 2wind The Dealing's fair, and he may take your Gold,
19' Prudens emiſti vitiofum: di&ta tibi est lex. 429 0467,673 And ne'er be thought a Cheat for what he ſold.
Mr. Creech.
Add l. 29. t. 5.1. 1. f. 33. D. de SCto Silaniano. l. 21.t. 1. D. de Ædilit. edicto, leg. 14. 1. 10.
29.47 Mr. Barbeyrac's NOTES on 6.
Plutarch's Words are, Γνόνες μηδέν δικαιότερον Ε9 βία σειαμίες, ή βία αφελομβίες, sg και ηττόνων λαμβάνειν.
(2) Cicero's Words are, Verbo jam uno repellar, Emi, inquit. - Primum fi id quod vis, tibi
quero,
cujuſmodi tu judicia Rome putaris esſe
, fi tibi hoc quenquam conceffurum putafti, te in Prætura, & imperio tot res tam pretiofas, om.
neſque denique res, que alicujus pretii fuerint
, totâ ex Provincia coemiſſe. Videte Majorum diligentiam, qui nihil dum etiam iſtiuſmodi
ſuſpicabantur
, uerunt amen ea que parvis in rebus accidere poterant, providebant : Neminem, qui cum poteſtate, aut legatione in Provinciam
ejet profe&tus, tam amentem fore putaverunt, ut emeret argentum, dabatur enim de publico, ut veftem, præbebatur enim legibus;
mancipium putaverunt, quo omnes utimur, eos non præbetur à populo. Sanxerunt, NE QUIS EMERET MANCIPIUM
NISI IN DE MORTVI LOCUM, fiquis Rome eſec demortuus? Imo
, fi quis ibidem: non enim te inftruere domum tuam voluerunt in Pro-
vincia
, ſed
illum uſum Provincie ſupplere. Que fuit cauſa, cur tam nos in Provincià ab emptionibus removerunt? Hæc fudices, quod putabant
ereptionem effe non emptionem, cum venditori vendere ſuo arbitratu, non liceret. In provinciis intelligebant, fi is, qui effet cum imperio do por
teftate, quod
apud quem que eſſet, emere vellet, idque ei liceret, føré uti, quod quisque vellet, five effet venale, Jive non effet, quanti vellet
auferret.
que tothom
(ix) Vid. Grot. l. 2. ubi ſupr. n. 3.
(b) De Off.l. 3.c. 16. (c) Plurarch in Mario, p. 427. Ed. Wecb. and Val. Max. l.
8.c, 2. f. 3.
(d) Vid. l. 48.5. 5. 1. 13. f. 9,10. D. ad L. Jul. de adult. (e) Xenoph. l. 3. rer. Grecarum, p. 288.
1, 2, 6.12f. 10. (f) Orat. 9. l. 4.c. s.
Man,
Vid. Grot.

Chap. III.
obſerved in Chargeable Contracts. 31100 24:35
Man, in bis Province, could buy 2 Slave, but in the yet, in a Charge, or a Commiſſion, an Equality may
Room of a dead one ; for they look d upon it to be Plun- ſometimes be regarded, tho indirealy, and by Acci-
dering, and not purchaſing, when the Seller could not dent ; for if any thing, beſides Labour, has
been laid.
ſell at his own Rate. And in a Province, they were con out in folliciting the Buſineſs
, or managing the Charger
vinced, that if the Governour, backd with Power and it ought exaĉtly to be refunded. And the Reaſon is,
Authority, should be permitted to buy what he pleas'd, becauſe in fuch Contracts as thele the Labour is given
it would be brought to that paſs, that he would have gratis, but the Expence (3) tacitly agreed upon to be re,
whatſoever he had a Fancy for, whether expos'd to paid (b).
cin poco della
Sale or no, and at his own Rates. Add. l. 18. t. I. VIN. But in Chargeable Contracts an Equality is to
46.162. D. de contr. empt
. 88 1. 48. t. 11. L. penult
. be fe ſtrictly regarded, that if one Party has received
D. ad L. Jul. repetund. L. 6. l. 2. t.20. 1. in. de his que more than his Due, he muſt not retain the Overplus
metuſque caufa, &c. Conftitut. Sicularum, l. 1. 1. 88. upon Preſumption that it was deſigned for, a Gift. For
ſ. 1. Tacitus, An. 14.c. 14. in fin. When the Pur- Men do not enter into ſuch fort of Contracts, with a
chafer can force him to it
, the Seller lies under a Deſign to give any thing (1) And therefore ſuch a
• Neceſſity of parting with his Goods. Hither may Mixt Contra& muſt not be preſumed, unleſs the Party
be referr'd what Dio Caffus relates of Cæfar, 1. 42. exprefly conſents to it, or it appears that he knew the
who after Pompey's Defeat ſeized upon that Money, Thing to be under-rated. An Exemple we have in
which he had no other Pretence of Levying, than Pliny, l. 7. Epift. 11, & 14. where he ſays, “ He had
under the fpecious Naine of a Loan, tho otherwiſe upon the Score of Friendſhip, ſold Lands for leſs
" he had taken it by Force, as if it had been his Due, 'than they are worth. It was generouſly done of Sce-
and never had any Deſign to reſtore it? But yet (a) vola, who being upon a Purchaſe, bid the Proprietor
ſometimes the Subject may be forced by the Govern tell him, in one Word, what he would have for the
ment in Matters of Sale or Hire: As when Merchants Eſtate; who when he had done it, Scævola told him
are obliged to ſell that which the Government is in · he had undervalued it, and gave him 19000 Seſterces
great Want of; or when their Waggons or Ships, or more than his Bargain. Cic. Off. l. 3. C. 15.
they themſelves are preſt; which, when the Good or IX. From what has been ſaid, it follows, that altho '
Neceſſity of the Publick requires, and a juſt Rate is all the Faults have been expos'd (), and nothing de-
paid, may be fairly allowed of. Sometimes too, the manded more than
s ſuppoſed to be the Va.
State obliges us to buy fuch a ſort of Commodity, of lue; yet if afterwards there appears to have been an
this or that Man only, and no where elſe.
Inequality, without any Fault of the Contractor (as
VII. But 'tis plain, that in Gainful Contracts, this ſuppoſe fome Blemiſh lay undiſcovered, or they miſ-
Equality does not take place; for where an Equality took the Price) it ought to be corrected, and Amends.
is to be obſerved, the Contra& ceaſes to be Gainful made to the Sufferer (d), Nor is it neceffary by the
(1). But when a Preſent is made by way of Recona- Law of Nature (1), that this
Inequality ſhould exceed
pence (2), the Contract is ſomething like Hiring. And the half of the juſt Price. For that famous Law. (e),
which
c
what
hat was
Mr. Barbeyrac's NOTES on G. 7, 8.
(1) The Words are, In ſumma ſciendum eft, mandatum, niſi gratuit um ſit, in aliam formam negotii cadere. Nam mercede conſtituta,
incipit locatio & condu&tio esse, do (ut generaliter dicamus) quibus cafibus fine mercede suſcepto officio mandati, ſive depoſiti contrahitur nego-
tium, in cafibus intervenienti mercede locatio o conduftio intelligitur contrahi. Vid. S. Fin. Inftit. de Mandato, 1. 3. t. 27. 1. 13. & D. I.
16. t. 3. 1. 1. ſ. 9. D. Depoſ. doc. l. 1. $ 9.
(2) The Roman Lawyers call it Honorarium. See Digeſt. l. 11. t. 6. Si menſor falſum dixerit. leg. 1. princ. do 1.50.t. 13. De extraor
dinariis cognitionibus, &c. leg. 1. $ 10.
(3) This Fiction of Law is no ways neceſſary. The Maxims of Équity are ſufficient only to ſecure to him, who has received a
Truſt, or who is charg’d with another Man’s Buſineſs, his Damages and Expences, which he is at in ſerving the Perſon that has en-
truſted him, or given him a Commiſſion.
(1) See the foregoing Chapter, S 10. Note I.
1. Mr. Barbeyrac's NOTES on S 9.
(1) The Words
of the Code are, Rem majoris pretii, ſi tu vel Pater tuus minoris diſtraxerit, humanum eſt, ut vel pretium te reſti-
tuente emptoribus, fundum venundatum recipias, au&toritate Judicis intercedente, vel ſi emptor elegerit, quod deeſt juſto pretio recipias.
Mr. Thomafius has publiſh'd a curious Diſcourſe upon this Law in 1706. under this Title, De Aquitate cerebrinâ Legis 2. Codicis de
reſcind. vend. G ejus fru&tu practico: of which this
is the Abridgment of the moſt conſiderable Matters in it; A Sale or Contract
made null for the Smallneſs of the Price, altho' there was no Deceir or Force otherwiſe uſed, was not known before Dioclefian.
From that time it hath been a Maxim current among the Lawyers, that by the Law of Nature every one may make as advanta-
gious a Market for himſelf as he can, and to that Enå may make uſe of all innocent Arcifices. Whence
they began to make
uſe of
{uch ſharp Terms as theſe, circumſcribere,
circumvenire, which are commonly taken in the worſt Senſe. See the Nores 1, 2. of the follow-
ing Paragraph. After Dioclefian, the Emperors Conſtantine the Great, Gratian, Valentinian and Theodoſius, Honorius and Arcadius re-
peal'd that Law of that Pagan Emperor. Venditionis atque emptionis fidem, nulla circumſcriptionis violentia fa&tam, rumpi minime de-
cet. Nec enim ſola pretii vilioris querela, contra&tus fine ulla culpa celebratus, litigioſo ftrepitu turbandus eft, Leg. 1. See alſo Leg. 4,
7. Dioclefian himſelf ſeems to have retracted it at length, as appears by another Refcript, which is found under the ſame Ti-
the 2d Law there treated on ; but when we examine the foregoing Diſcourſe
, 'tis only a Clauſe put in by Tribonian ; for if the Rea-
tractors has paid more by the half, or received one half leſs than the Thing is really worch. There are all the signs in the World that
the End of the 2d Law, where the Meanneſs of the Price, which nulls a Contract, is fixed to half the full value of the Thing, is
an Addition of Tribonian's : For beſides, that it might have been better placed among the foregoing Words, the Laws of the Theo-
dofian Code contradict it
, and fimply, and in general disallow the Nullity of a Contract, upon the Account of the Smallners of the Price
alone ; and there appears no Footſteps of any Diſtinction of what is above or below the true Price. Tribonian having found in the
Gregorian and Hermogenian Codes, whoſe Compilers nor dreaming to bring the Civil Law into the form of a Syſtem, had gathered to-
gether all the Imperial Conſtitucions and Ordinances before Conſtantine, not troubling themſelves whether they agreed one with ano-
See l. 3. c. 3. $ 12. above.
(6) Vid. I. 12. prin. D. depofici. d. I.
(c) V. Grot. I. 2. C. 12.f. 12.
(2) Add. I. 19. t. 1, l. 13. Princ. S. 1, 2, 3,4. D. de a&t. emp.& 1.21.1.1.1.1. S. 2. D. de adilit. edi&o. (e) Cod. lib. 4. t. I.
44. l. 2. C. de reſcindend. vendit.
ther,

and
that
a

244 Concerning the Equality that ought to be
Book V
even
;מון 1
bur appearing to him hevertheleſs equitable, believed that they might be reconcileak they could not eaſily be accomodared in
directly connevedo
this he
of his Want or Mif-
which refuſes Relief, but where the Inequality is fo Price ; for that Law only defigns the Eaſe of the Mae
notorious,, is purely poſitive, and founded principally giſtrate, and not that one man ſhould be a Gainer at
upon this, that it would be impoſſible to diſpatch Bu- another's Lofs. Indeed they do well to extend the
lineſs, if the Magiſtrate might be appeal’d to for Benefit of the Law to the Buyer (3), as well as ta
every little Injury of this kind. And beſides, the the Seller, which too, they tell us, is to be extended
requires that we ſhould look to all other fort of Contracts
.
about us, if we would not be deceived; for what Among the Fews (b), if one defrauded another
ever Raté the Seller puts upon his Goods, the Price whether Buyer or Seller, the Law afforded no Relief,
is ultimately determind by the Buyer (a); thoºl in- if the Cheat came under the Sixth Pare of the juté
deed the Determination of this Law is too groſs
. Price. But if it exceeded the Sixth Part, the Buyer
For tho' the Magiſtrate ought not to be troubled for might either immediately, or at any time during the
every Trifle, yet I ſee no Reaſon why he ſhould not Negociation, reſcind the Bargain, and recover the
relieve me, if I have been very much injur'd, altho" whole Price: But if the Seller had been the Sufferer
,
not half in half: As if I ſhould fell a Houſe worth he was never barr'd from making a Recovery. And
900 l. for 6002. 'tis hard I ſhould be débarr'd the the ſame Law obtained in the Bartering of conſumable
Benefit of the Law, for the Recovery of the 300l. Commodities, as of Fruit, Corn, and fuch like. But
when in much leſs conſiderable Cafes an Action is the fell only, if injurd, enjay'd the Benefit of this
in the Law of Nature, is not ſufficient to break off a X. To what has been ſaid, the Roman Lawyers
Bargain; ſo where the Damage is great, altho’ it a- have taken a great deal of Pains to reconcile á Paſſage
mounts not to half the juſt Price (2), the Bargain ought in the Digeſts (c), (1) which ſays, That in Buying
to be reſcinded, or the Price made up. And this and Selling, the Parties may (2) Naturally Over-reach
Greatneſs of the Damage is to be eſtimated, either by one another. Of which Grotius (d) ſeems to
the Exorbitancy of the Price, or the Poverty of the give a good Explication. For he thews, that May
injur'd, which ſometimes renders the Lofs intolerable and Muft do not always denote that it is Lawful,
to him, which a richer Man would not be ſenſible but only that it is fo far permitted, as that the Sufferer
of. Nay, even where the ſaid Law is in Force, the can have no Remedy, in caſe the other inſiſts upon
Buyer is obliged, in Conſcience, to make up
very the Bargain, and, being tax'd of Injuſtice, replies,
great Damage, altho' ir comes not half the that it was nothing but what was agreed upon betwixt
them:
a , which he
to each of
them. After
of
ſeveral Alterations in it, that it might make for his Purpoſe evidently, as among others this. Inſtead of Repetitionis in Reliquum,
PRETII NOMINE VILIORIS, copiam minime conſequatur, as the Laws of Gratian, Valentinian, and Theodofius import, he
put,
vilioris pretii noinine, &c. This manifeſt Corruption made all-that he had to ſay of Dioclefian's two Reſcripts plauſible." And I will
add, tho' Mr. Thomaſius did not obſerve it, that there is Reaſon to believe, that in Book 8, the Word Paulo is alſo inſerted in the ſe-
cond Period, before Minore pretio. The Canon-Law having afterward approved the Foundation of the Law of the Juſtinian Code,
it was look'd upon as a Concluſion flowing from indiſputable Equity, and paſſed for a Rule in all the Courts, except Magdeburg;
where ſuch Political Ordinances are almoſt quite aboliſhed. Nevertheleſs Mr. Thomafius maintains, that it cann't be brought into
Practice, becauſe the common Price, by which the Damage muſt be regulared, is very changeable and uncertain ; ſo that it is very
hard to fix a Moiecy or a Quarter, &c. Further, a great Damage, ſuch as that we are ſpeaking of, cann't be done in a Contract, wich-
out ſome great Grief to one of the Contractors at leaſt, and then there's no need of Dioctefian's Law; or the Fault may be on both
Sides ; and then we muſt judge according to the Principles eſtabliſhed above. Lib. 3. c.6.9 6. See more in the following Nore,
(2) But Mr. Hertius obſerves here and in his Diſcourſe De Lytro, Sect. 2. $ 22. How doth this agree with what our Author ſays,
c. 1. $ 8. of this Book? Grotius alſo ſays, Thar as to ourward Actions, the Inequality to which both Parties have confented, and there
has been no Lying nor Concealment of any thing that ought to have been diſcovered, luch an Inequality paffes for Equality ; ſo
that in the Civil Law, no Action in Juſtice lay before the Conſtitution of Dioclefian, (ise. before Law 2. ſpoken of in the foregoing
Note). Likewiſe,
between ſuch as are united only by the Law of Nations, no Restitution can be required, nor any Man be forced to
make good ſuch Damages, l. 2. c. 12. 8 26. n. 1. It is true that he adds, that this is only an outward Permiſſion, which is of no Force
in Foro Confcientia, tho it may be ſtrengthened by Cuſtom. But this ſuppoſeth, that the fixing a Price in Contracts is grounded
on the Nature of Things themſelves, or depends on the Will of a third Perſon ; whereas the Truth is, that laying aſide all Fraud, and
all Orders of the Civil Law, 'tis the Conſent of Parties that fixes the juft Price ; ſo that after their Agreement, there is no In-
jury done contrary to Juſtice, properly ſo call'd. See Mr. Thomafius's Diſcourſe, quoted c. 2. $. 15,&C. 'Tis another Caſe to de-
termine, whether we may commonly uſe this Right (See c. 1. 8 9. Note 1.), or whether we do amiſs in uſing it againſt the Laws of
fortune. Upon which Account he that compoſed Dioclefian's Reſcript, may be freed from the Blame which Mr. Thomaſius charges
on him fup. $ 32. that he confounds the Rules of Humanity and Juſtice: For in the Stile of the Roman Lawyers, Humanum eft ligni-
fies, 'Tis Juft, Equitable, and Reaſonable, Gc. See, for Example, Code l. 1. t. 14. De Legib. G Senatus conſ. Leg. 8.
(3) Cujacius maintains Obſervat. xvi. 18. do xxiii. 32. that it was not allowed by the Roman Law.
Mr. Barbeyrac's NOTES on § 10. sair
(1) Idem Pomponius, ait, in pretio emptionis do venditionis naturaliter licere contrahentibus se circumvenire. Digeſt. 1. 4. t. 4. De Mino-
ribus, Leg. 16. 9.4.
(2) This Explication of the Word, Naturally, is not proper; for it is never taken by the Roman Lawyers ſo far as I know,
Cuſtom,; and tho’ it may ſignify fo in Authors, yet it follows not, that we may fo explain it here. Nothing is more common in the
Body of the Law, than to lignify by Naturaliter, a Thing agreeable to Natural Reaſon, or the Law of Nature; and ſo it is to be una
derſtood here. And ſo circumvenire (or as another
Law has it, circumfcribere) fignifies here any Innocent Art to get as good a Bargain
as we can. The Word Dolus here is taken in a good or bad Senſe; and ſo Lucretius uſes the Word Decipere, in chefe Verſes
.
Vt puerorum ætas improvida ludificetur,
That th’ Careleſs Age of Boys may to be cheated,
Deceptaque non capiatur.
And being deceived,
may not be defeated.
(a) To which may be applied that of Cicero, off. 1. 3. c. 17. “Laws and Philoſophers provide againſt Frauds different ways, the
Laws regarding only Matters of Overt Act, whereas Philoſophers judge according to Equity and Reaſon.'
G. 1.6.6. 5. (c) Add. l. 19. t. 2. I. 22. 1. 3. D. locati, &c. (d) L. 2.C. 12. 1.26.
2
!
PAULO
LUT
for
(6) Selden de J. N.
Mr.
CHAP. III.
Concerning the Equality, &c.
45

Zibi Mavis
defired a quick Trade, which could not be without make me upon. Plin
. Sh. To
them: And he that won't open his Eyes, as the
agree a
in a certain Price.' Anacharſis in Diogenes La-
Saying is, muſt open his Purſe.
Add. Lex Cu- ertius, B. 1. f. 105. did not abſurdly call the Market,
javior
. 1.15..C.. Tit. and Capitulare Caroli, 2.5 7A Place to gheat one another in, and deſtin’d to Co
c. 210. In Xenoph. de Memorab. Socr. l. 2. towards * Vetouineſs. Add. l. 18. t. 19. D. de dedilit. edito.
the End, this Rule is given, 'Tis a Piece of good Huf- Every Man has naturally a great Deſire of increaſing
bandry, when a valuable Thing can be bought cheaper this Stock, and the efore) Trade could hardly be cat
10 buy it. Add a witty Saying of Cicero's in Gellius
, ried on in a Society, were there not fome Incourage-
1. 12. c. 12. Vid. Sen. de Beneficiis, l. 6. c. 38. Where ment for Induſtry. Vid. l. 17. D. de Contrah. empt.
he diſputes whether Demades did well, at Athens, in He deſerves to be laugh’d af
He deſerves to be laugh'd a who ſuffers himſelf in
condemning one who got his Livelihood by providing
Things neceſſary for Funerals, having prov'd that he make Bargainmore ungrateful,becaule
it expoſes the Folly of the Maker.
the Death of a great many people. Add
Capitulare
Caroli, l. 1.C. 131. As for the Inſtance of Facob (3)
his Craftineſs is the more excuſable, becauſe he had Inſidias fieri pretiumque avellier ante
to do with a deſigning Man, who endeavoured every Quam mercem oſtendi?
over-reach him, (a) and who impos a hard Cohen Hor: Sát. n. 1, L 2.5, 103, 104, tés
upon
for keeping his Sheep, and yet making him ftand to Would you be cheated, the Occaſion's fair ?
all Accidents. So alſo the Word, Naturally (b), does Since you would Buy before you ſee the Ware.
not always fignify what ought to be done by, or what to vladly moito 11990 Mr. Creecb. in
is congruous to the Law of Nature, but what is cu- Beſides, .each Party! feemas By tacit Conſent, (ſince an
i Cor. 11. 14. Doth not even (4) Nature exa&t Equality, even by the nicelt Scrutiny, is ſo dif
itſelf teach you, that if a Man have long Hair, it is a ficult to be determina) to indulge one another the
Thame unto him. Yet here the Word Kwav, to have Liberty of deviating a little from the trad Price. And
long Hair, may be taken for too nice a Care in adorn- therefore it ſeems to be the received Law of the Mar-
ing the Hair, which Women ſeem to claim as their ket, rhat every one ſhould be free to make his beſt
"Right, and which ſeems too effeminate in a Man (c). Advantage of Buying and Selling, provided there be
Tho' indeed it is diſagreeable to the Dictates of Na-1 no Deceit in the Commodity itſelf (d). For if there
tural Reaſon for a Man to aſſume that Habit, which be, the Opinion of Fulgentius (e) will take place, who
Length of Time has appropriated to Women, and fays, That Mercury was therefore ſuppoſed to be the
by which their Sex is diſtinguiſh'd froin ours. But to God of Trade and Thievery, becauſe there is no Diffen
return to the Matter in hand. Lib. 4. t. 44. 7. 48. C rence between the Cheating and Lying of a Tradeſman,
vendit. (5).
a
Buying and Selling, for the Buyer to beat down the “pberi fined a Young Man for Buying a Farm at a
Price, and the Seller to raiſe it, till after many Words cheap Rate; and the Reaſon they gave, was, be-
on both sides, the former riſes in his Bidding, and the caule fo young a Man was ſo much given to Lucre.
Ictter falls a little from his Demands; at laſt they Æl.V. H, 1. 14. c.44.
at laſt they Æl.V. H, 1. 14.0.44.2 bilo da
se
way to
« The E-
INC
Ć
Mr. Thomaſius ſupra 8.29. prefers another Explication, but not fo exact or natural; tho' in the End it comes much to the ſame. It
ſeems alſo to me that in the Law of the Digeſts
. lib. 19. tit. 2. locat. &c. Leg. 22.5 3. Theſe Words, quod pluris & minoris ſit, ſignify
that which is worth more or leſs, and not what the Buyer eſteems lefs worth, and the Seller more, at the Beginning of a Marker, aš
that able Lawyer underſtands them.
(3) See Mr. Le Clerc's Note upon Gen. 31.12.
31. 12. 1995
(4) St. Piul ſpeaks there only of the Cuſtom that was ſettled in his Time ; from which he could nor depart without a
Mark of Singularity, and offending againſt common Decency. The Word, Nature, is often oppoſed to Inſtruction, and we know
that Cuſtoni is a ſecond Nature ; ſo that we have not need of a Maſter to teach us, what has been once ſettled in a
Country.
(5) It will be convenient to fet down the Law encire, for the Reaſon alledged by me Note 1. of the preceeding Paragraph:
Si voluntate tuâ fundum tuum filius tuus venundedit, Dolus ex calliditate, atque inſidiis emptoris argui debet, vel metus mortis, vel cruin
ciatus corporis imminens detigi, ne habeatur rata venditio. Hoc enim folum, quod paulo minore pretio, fundum venditum ſignificas, ad rem
ſcindendam venditionem invalidum eſt
. Quod fi videlicet CONTRACTUS emptionis, atque venditionis cogitaffes ſubſtantiam, & quod emp-
tor viliore comparandi, venditor cariore diftrahendi votum gerentes, ad hunc Contra&um accedunt, vixque poſt multas contentiônes paulatim
Venditore, de eo, quod petierat detrahente, emptore autem huic, quod obtulerat, addente, ad certum conſentiant PRETIUM, profesio
perſpiceres, neque bonam fidem, qu& Emptionis atque Venditionis conventionem tuetur, pati, neque ullam rationem concedere, reſcindi propter
boc conſenſu finitum contra&tum, vel ftatim, vel poft pretii quantitatis difceptationem, nifi minus dimidiâ juſti pretii, quod fue-
mat tempore Venditionis, datum esset, Ele&tione (jam) emptori præftità ſervanda. Cod. 1. 4. t. 44. De reſcind. Vendit. Leg. 8. See the
Title De Ædilicio Edićto, Leg. 18,15. & de contrahenda emiptione. Leg. 71.
com
menstlé
(b) Mornacius upon the Words naturaliter licet circumvenire, explains naturaliter by cupuas dexterouſly;
but he is in the wrong :. For that Word does not belong to circumvenirebut to licet. (c) According to that of Ovid, Ép
4. Heroid. v. 75. quSint procul à nobis juvenes, ut fæmina, compti.
(d) Add. Mich. Montaigne, E. Bc1c.20.5 (e) Mytholog. I. 1. c. 23. Should NOS TIVID a to business
(a) Gen. 31. 39.
OD
4. d
Door ons dood bou 2012 sids diw obuustoa
howed over bra ob o: ohutsu
+ Mm
bob at disi 9V
so
udo con A 10
246
Book V.
Equi
valent.
W
a а
an
and I
e his coch..
b) See what we have ſaid upon this in
o now to u mode
mo ad 53001 Home STAR
Oct buildin buc nedions or CHA P. IV: Boris
ISOTNO:97
M viva
visvi
Ta oli aidt bros
Of Gainful Contracts in particular. maria contend
getoond tot on
but not Iron Ston W.82,5 zilobna ob 12,61
the DOD Vol 1
1. What a Commiſſion is?
V. Whether a Commiſſion can be ſatisfied by an
II. The Special Refpe& bad to it by the Romans.
un argomentin
III. The Perſon commiſfioned ought to be very dili- VÍ. Of a Loan, and bowo it differs from a voluntary
gent.
Grant.
lgoed voor 100*3 10 or
IV. How far he ought to be indemnified.
VII. Of a Charge. In sit tot a
Sad a glucoud, drtusa stane su
E come now to conſider ſome of the prin- on his Authority. This Contrat indeed does not di-
cipal Contraĉts more particularly ; which, rectly and in itſelf, preſuppoſe Property and the Price
tho’ they have been handled very copiouſly of Things, but only by Accident, lo far as the Perſon
by the Roman Lawyers, yet, ſince moſt of what they giving the Commiſſion is concern'd to repay to the Per-
have ſaid, has been taken from the Law of Nature Ton receiving it, whatſoever Charges he happens to be
and Nations, may fairly be brougbt back to their pro- at in the Management of it: for his Labour only is
per place. Of Gainful Contratis (1) the chief (a) is fuppos'd to be promis'd gratis. Now, if any Man un
(2), whereby one Man undertakes dertakes another's Buſineſs, unknown to him, and ma-
gratis another Man’s Buſineſs, at his Requeſt
, and up- nages it with Succeſs, the Roman Law allows him (3)
* 270orit
food to the
Mr. Barbeyrac's NOTES on Chap. 4. § 1.
Gifts among the Living; for Gifts among the Dead are diſcourſed of l. 4. c.9. $ 5. This Author in his Abridgment of the Duties
of a Man and Citizen, l. 1.C.. 12. $ 13, 14. oppoſes a free Alienation of Property or Gift to a Contract. Thac which made him not
to range Gifts with Contracts, was, without doubt, the great Reſpect he paid the Roman Law in chat Place, which nevertheleſs calls
them ſometimes a Contract, as in Code, l. 2.t. 20. De his que vi, metuſque caufà gesta ſunt, Leg. 7. & 1. 7. t. 39. De Præſcript. 30 aue
40 annorum, Leg. 8. princ. which, according to Mr. Thomaſius, De Arrhis Emptionum, ss. is the Effect of the Careleſsneſs and
that I ſhall therefore briefly treat the Living this place
Donation then is a Contract, by which we transfer freely the Property of a Thing that belongs to us, to another Perſon, who accepts
the Benefit, whether we releaſe it to him the ſame Moment, or reſerve to ourſelves the Uſe and Poffeſſion; ſo that the Contract is
bare Agreement makes the Act valid. See c. 2. S. 2. Note 6. above.
.
. If the Gift
be it
without very great Reaſon. Aliæ autem Donationes ſunt, que fine ullâ mortis cogitatione fiunt, quas inter vivos adpellamus que .
fi fuerint perfetta, temere revocari non poſſunt. Perficiuntur autem, quum Donator ſuam voluntatem ſcriptis, aut ſine ſcriptis, manifeſtave-
rat, Inſtit. 1. 2. t. 7. Dat aliquis ea mente, ut ftatim velit accipientis fieri, nec ullo cafu ad ſe reverti, o propter nullam aliam cauſam, quam
ut liberalitatem & munificentiam exerceat. Hæc proprie Donatio appellatur, Digeft. I. 39. t. s.Leg. 1. princ. Abſenti, five mittas, qui fe-
rat, five quod ipſe habeat, fibi habere eum jubeas, donari re&te poteft. Sed fi neſcit Donat & Rei Dominus non fit, doc. ibid. Leg. 10.
Non poteft liberalitas nolenti acquiri. ibid. Leg. 19.92. 'Tis, for Example, a good Reaſon, 1. When, the Receiver does not ſatisfy
the Charges and Condicions upon which the Gift was beſtowed. Generaliter ſancimus omnes Donationes lege confe&tas firmas, illibatafq;
minere, fi non quaſdam conventiones, five in ſcriptis donationi impoſitas, five fine ſcriptis habitas, quas Donationis Acceptor
Spoſpondit, minime implere voluerit. Cod. 1. 8. t.54 De revocand. Donat. Leg. 10.. We muſt alſo place in the ſame Rank, 2. The
great Ingratitude of the Receiver, viz. If he makes an Attempt upon the Life or good Name of the Giver ; if he has offered to him
any great Wrong or Violence; if he has maliciouſly cauſed him any confiderable Loſs or Damage; if the Giver, being reduced to
great Neceſſity, he refuſes to relieve him ; altho', according to moſt Interpreters, this laſt Caſe is not contain’d in the following Law.
Ši non donationis Acceptor ingratus circa Donatorem imueniatur, ita ut injurias atroces in eum effundat, vel manus impias inferat, vel ja&ture
molem ex infidiis fuis ingerat, que non devem cenſum ſubſtantiæ Donatoris imponat, vel vite periculum aliquod ei intulerit, ibid. We may
add alſo, 3. The unexpected Birth of a Child, which happens to the Giver ; for it is to be preſumed, that he would have kept
his Goods for his Children, if he had had any; and ſo he gave with this tacit Condition, that if he had any Children, his Gift
ſhould be null
. Si unquam libertis Patronus filios non habens, bona omnia, vel partem aliquam facultatum fuerit Donatione largitus, do
poſtea ſuſceperit liberos, totum quicquid largitus fuerat, revertatur in ejaſdem Donatoris arbitrio, ac Ditione manſurum, ibid. Leg. 8. Yer
ſeveral Interpreters maintain that he ſpeaks only of the Caſe expreſsa, viz. A Gift beſtow'd on a Freeman, by him who had been his
Maſter, and given him his Freedom.. See. Vimius on the Inſtitutes, 1.2. t. 7.8 2. But were it ſo, 'cwould be a pure civil Conſticucion;
for if we conſider the Law of Nature only, the Reaſon which authorizės a Revocation here, ought to be of Force as to all other Per-
ſons. But it is true only, when the Giver beſtows all his Goods, or the moft Part; for when the Gift is inconſiderable, in compariſon
of what the Giver has left, we may reaſonably preſume that he may not do it, and that he had ſome Hopes of Children, eſpecially
if the Receiver is not well furnith'd himſelf. 4. A Gift may be revoked in part, when the Giver has not reſerved Goods enough to
portion ſuch Perſons as he ought not
to diſinherit; for in this caſe the Receiver ought to return enough to make up a Portion for luch
as have a Right, and of which the Giver cann's diſpoſe to their Prejudice. See Code l. 3. t. 29. De inofficiofis Donationibus, 6.4. 3o.
De inofficiofis Dotibus. Bur chiefly Mr. Daumat’s Laws, in their Natural Order, Part 1.l. 1. t. 10. oughc to be conſulted.
(2) "See Mr. Noodt's Probabil. Jur. l. 4. c. 12. & ult. where he diſtinguiſhes between a Commiſſion, and certain Things which
may
confounded with this ſort of Contract, cho' they have no relation to it.
(3) The Expreſſion of the Roman Law, Utiliter gerere, fignifies only to do a thing for the Advantage of him for whom we ma;
nage, which
Prudence engages us to do, and 'cis likely he would have done himſelf ; ſo that provided it is not our Fault, we need
noe warrant the Succeſs, and we have Right to demand all neceſſary and needful
Expences
, tho' the Buſineſs has not ſo good ante:
vent as was hoped for. ís autem, qui negotiorum geſtorum agit, non folum, Si effe&um habuit negotium, quod geſfit, a&ione"
iſta utetur,
(a) Here our Author, as has been obſerved in another Place, has forgot to mention Donations between Parties living as
Contracts. See his firſt Note upon this section.
(*) Mandatum.
B. 3. C. 9.

be
Principal
red
CHAP. IV.
249
Of Gainful Contracts in particular.

Minor (b).
, cthe Villain
an A&tion for Buſineſs done, which is founded upon fices our common Advantages may be carried on. Why
what we may properly call a (4) Tacit Commiſſion (a), do you undertake a Commiffion, if you deſign to me
as is the (5) Obligation between a Guardian and a glečt it, or to make a Gain of it? Why do you intrude
your ſelf into my Concerns, and by your pretended
II. The old Romans were extreamly exact and con- Kindneſs; clog and binder my Deſigns? Stand off
, I cani
fcientious in the Diſcharge of this Truft. For they get another to do it for me. Yon undertake the Bura
look'd upon
it to be founded upon good Nature and then of an Office which you think you can go through
Friendſhip (1), the great Bands and
Cements of Hu- with, and which never ſeems beavy to thoſe who are not
man Society; and therefore deſervedly had thoſe in light themſelves: This therefore is the baſeſt of Crimes;
Deteſtation, who under ſuch ſpecious Pretences ſhould becauſe it violates the two moſt ſacred Things, Friend-
deceive one who lays himſelf open to their Mercy, ſhip, and Faith. For no Man commits bis Buſineſs, but
by having too good an Opinion
of their Probity (C). 10 a Friend, nor truſts any but whom he thinks faith-
(2) In private Affairs, ſays Cicero, our anceſtors ful. The greateſt of Villains therefore muſt be be who
thought guilty of the bigheſt Crime, not only bim that breaks in upon Friendſhip, and at the ſame time cheats
managed bis Commiſſion knaviſħly
, for his own Gain him, who had not been capable of being thus cheated,
Care, and therefore judged the Breach of Truſt to be ſcio, c. 38, 39. (t) Plautus Mercatorė, Aa. 2. Sc. 3.
as bad as Theft. For where we cannot be preſent our V.42. A Young Man ſays to his father, I have heard
ſelves
, the Fidelity of our Friends is preſumed to ſup often fay, That every Wife Man ought, in the
ply our Place; which, whoſoever violates, impugns the ' firſt Place, to look after a Commiſſion entruſted to
Safeguard of every Man, and, as much as in him lies,
• him.'
diſturbs Society. We cannot do every thing our ſelves; III. For the fame Reaſon (1) the Roman Laws te-
at some things ſome are better than others. And there. quire, that a Commiſſon ſhould be executed with the
fore we contra& Friendships, that by mutual good of. utmoſt Diligence, altho’undertaken purely for the Be
you
O nefit
ſed ſuficit fi utiliter geſit, etſi effe&tum non habuit negotiam, & ideo, ſi inſulam fulfit, vel fervum agrum curavit, etiamfi inſula exuſta
eft, vel fervus obiit, aget negotiorum geftorum. Digeſt. l. 3. t. 5. De negotiis geſtis, Leg. 10. 91. Negotium gerentes alienum non interve-
niente specia'i fatto, (and not pa&to, as Mr. Bynkerrhoek has prov'd well, Obf. 1. 7.) caſum fortuitum praſtare non compelluntur, Cod.
1. 2. t. 19. De negot
. geſtis. Leg. 22. It is not ſo with him who has gotten Poffeſfion of what belongs to another diſhoneſtly, who
has been at ſome Expences for his Maintenance; for if the Work he has employ'd them in comes to nothing, 'tis ſo much the
worſe for him, for he cann't retain the Thing, till he has recovered his Damages; becauſe he muſt be thought to act for his own
Intereſt only, without any Regard to the lawful Proprietors. On the contrary, he is anſwerable for all things that are loſt chro' his.
Negligence; and the Owner of the things has an Action againſt him for managing his Affairs. This is the Determination of the Ro-
man Lawyers. See Mr. Noodt's Probab. Juris, l. 3. c.9. I further ſay, That by the Law of Nature only, ſuch a diſhoneſt Poffeffor de-
ſerves, in Strictneſs, to loſe all his Expence, tho' he had ſome regard to the others Profit, and the Effect continued ſo that the
Proprietor got by it,
(4) See what hath been ſaid above, l. 4. C. 13. $ 5. nute 11.
(5) It is not neceſſary to ſuppoſe here either a cacit Commiſſion, or a Quafi-Contract, as the Roinan Lawyers ſpeak. The great
Maxim of the Nacujal Law is, That we ought to do no Man a Damage; and if we have done any, to make it good again. This
Law is to general, indiſputable and indiſpenſable, that it is ſufficient to eſtabliſh all relative Obligations, as well of Guardians
and Pupils, as of thoſe who have taken upon them the Care of others Affairs at their Requeſt, and ſuch as have faithfully dif-
charged it. It were eaſy to prove it, if the thing were not clear in icfelf. See what is ſaid l. 3.6.6. $ 2.
Mr. Barbeyrac's NOTES on § 2.
(1) Mandatum niſi gratuitum, nullum eſt; nam originem ex officio & amicitiâ trahit, contrarium ergo eſt officio inerces : interveniente
enim pecuniâ, res ad locationem, & condu&tionem potius reſpicit, Digeſt. l. 17. t. 1. mandati vel contra, Leg. 1.
$ 4.
(2) Tully's Latin is, In privatis rebus, ſi qui rem mandatam non modo malitioſus geßiſet, ſui quæftus, aut commodi caufa, verum etiam
negligentius, eum majores Summum admiſije dedecus exiſtimabant. Itaque mandati conftitutum eft judicium, non minus turpe quam furti.
Credo propterea, quod quibus in rebus ipſi interesse non poffümus
, in his operá noſtra vicaria fides amicorum ſupponitur, quam qui ladit, oppuga
nat omnium commune Præſidium, & quantum in ipſo eſt diſturbat vita ſocietatem. Non enim possumus omnia per nos agere, alius in alia eft
re magis utilis. Idcirco amicitiæ comparantur, ut commune commodum mutuis officiis gubernetur. Quid recipis mandat un, fi aut negleEtu-
rus, aut ad tuum commodum converſurus es. Cur mihi te offers, o meis commodis officio ſimulat o officis, & obftas? Recede de medio, per ali-
um tranſigam. Suſcipis onus officii, quod te putas ſuſtinere posſe, quod minime videtur grave iis, qui minime ipfi leves ſunt. Ergo idcirco
turpis hæc eſt culpa, quod duas res fan&tiffimas violat, amicitiam fidem ; nam neque mandat quiſquam fere nifi amicis, neque credet ei
niſi quem fidelem putat. Perditifſimi igitur eſt hominis, fimul & amicitiam diſſolvere, & fallere eum qui lafus non esset, niſi credi-
diffet.
(4) Plautus's Words are, Sepe ex te audivi, Pater, res mandatæ omnes Sapientes primum prævorti decet.
Mr. Barbeyrac's NOTES on 3
(1) The Words of the Code are, Suà quidem quiſque rei Moderator, atque arbiter, non omni a negotia, ſed pleraque ex próprio animo facit ;
aliena vero negotia exa&to officio geruntur, nec quidquam in eorüm adminiſtratione negle&tum ac declinatum culpa vacuum est, i. 4. t. 35. Man-
dati, vel contra, Leg. 21. The Interpreters do not agree about the Degree of Care and Exactneſs, for want of which the Perſon con
cerned is authorized to require Damages of him who has undertaken his Affairs, either at his own Inſtance, or the other's Requeſt
.
Some affirm that he is anſwerable both in the Management of the Affairs, and in the Commiſſion, for the leaft Fault ; but others fay,
ºtis ſufficient to attend the Affairs of another with that Application that he ordinarily does his own. See Vinnius upon the Inſtitutes;
!: 3. t. 27. $ 11. num. 2.0 t. 28. § 1. num. 3. and Mr. Hertius's Päræmia Juris Germanici, l. 1. c.35. $2,3. Nor may we wonder at
ſuch a Difference of Opinions, fince the Roman Lawyers themſelves do not fully agree about the Nature and Degree of Negligence for
which we are reſponſible in moſt Contracts, or, at leaſt, they expreſs themſelves very ambiguouſly in the Writings that we have left us.
This Mr. Thomaſius makes appear at large in his Diſcourſe Printed at Hall in 1705, enciculed, De uſu prattico Do&trina difficillime furns
Romani de culparum præſtatione in Contra&tibus. He alſo obſerves there, that by reaſon of the infinite Variety of Circumſtances, it is
impoſſible to ſettle any general Rule, which may extend to all Cafes in this Matcer. As for myſelf, 'tis my opinion, that in whac
manner ſoever we have taken in hand another's Buſineſs, or are charged with their Affairs, we are always obliged by the Law of Ni-
ture, independent on the Civil Laws, to do all we can in them, but not more, at least, if we have not thruſt ourſelves improperly
(a) See above in B. 4. c. 13. S. 7.
(6) Vid. l. 44. t. 7. I. 5. princ. f. 1. D. de Obligat, & Alim.
hi. D. de his qui not. infam. 1. 17. t. 1. L.I.T. 4. D.mand.iti, &c,
(s) Vid. 2. 3. t. 2.
+ M m 2
und
248
Of Gainful Contratts in particular. BOOK V

fit. Idem in nitendo, quod ſemel admiſißet, a agi put abat, quâ nihil i
erat curâ, ut non man har ſed fuam rem videretur agere. Nunquam ſuſcepti negotii ei
nefit of the Perſon intruſting it (a). Of this Corn. the ſame holds good of any Lofs that happens, by rea-
Nepos gives us Atticus (2) as a perfect Pattern (b), ſon of the Truſt, but not of ſuch a Lois as' is only
He never mode any Promiſe, but with great Care and occafioned obliquely by it: And therefore thoſe Da
Caution ; for be did not think it a Piece of Generoſity, mages only are to be made up, which directly proceed
but rather Levity, to promiſe more than he could per- from the Commiſſion, and not thoſe which happen only
form. But when once he had undertaken any thing, by the Bye, whilſt the Buſineſs was on Foot. To this
he was as indefatigable in the Proſecution of it, as if Purpoſe is that Pallage in the (1) Digeſts (f): The A-
it had not been his Friend's, but his own Concern : In gent fhall not account to the Perſon employing him all the
ſuch a Cafe be look'd upon his Reputation to be at ſtake, Expences, tho' perhaps ſome of them bé had not been
than whick nothing was more dear to him (c). para at, were it not forbis Commiſſion (2), as if he bas
But if we hope to ſucceed well in giving a Com- been plunder d, or ſhipwreck'd, or put to Charges by bis
miſſion, we ought to conſider and form our Opinion own, or his Servant's Sickneſs
. For ſuch Expences as
of the Man from his paſt Diligence, and the Tenor of theſe ought to be imputed to Chance, and not to the Com-
his former Life: For he that truſts a profligate Perſon miſſion. Indeed, when a Man, of his own accord, upon
may thank himſelf for his Diſappointments, unleſs he no other Motive than his own Good-will, takes upon
particularly takes upon him to be more diligent than himſelf the Management of another's Buſineſs (3), he
ordinary (3), and is capable of being fo. We read a is ſuppos’d willingly to run the Riſque of all Caſualties
,
pleaſant Story of a Man (d) who had fore Eyes, and that unexpectedly happen in human Affairs. But, the
came to a Horſe-Do&tor for Relief; the Doctor anoint- Caſe is alter’d, when a Man is commanded to manage
ed his Eyes with the fame Ointment he us’d amongſt another's Buſineſs; for there he that commands is con-
his Horſes ; upon which the Man falls blind, and the cern’d to bear him harmleſs, fince, in this Caſe, the
Cauſe is brought before the Judge, who acquits the Perſon in Commiſjon had not Power to act otherwiſe.
Phyſician ; For if the Fellow, ſays hé, had not been an But when a Man undertakes a Buſineſs, in its own Na-
Aſí, he had never applied himſelf to a Horſe-Do&toru ture hazardous and dangerous (4), he is fuppos’d (un-
IV. On the other hand, the * Agent ought to be re- leſs he exprefly declares againſt it) to take upon him
paid whatever Charges he has been at in the Execu- the common Accidents that uſually attend ſuch a
tion of the Commiſſion. For having promis'd Nothing Buſineſs (8).
gratis but his Care, Diligence, and Fidelity, a tacit V. It is a celebrated Queſtion, Whether a Commif.
Compact is ſuppos’d to have been made for the Re- fion can be ſatisfied by an Equivalent? which we find
payment of Charges : And indeed it would be hard to elegantly debated in Gellius (b). (1) The Queſtion,
render a Man's Kindneſs expenſive to him (e). And ſays he, is, W bether having a Commiſſion given, and
" Orders
and unneceſſarily upon a Thing, in which we could have no Proſpect of Advantage, or the Nature of the Engagements, either expreſs
or tacir, into which we are entred, does not require a certain Degree of Ability and Accuracy, whether we can attain to it or not.
For I underſtand, by what we are capable of, all that a Man can do for himfelf in the Things which he is moſt concerned for. (See
$6. note 2. following.) But let it be well underſtood, that we muſt not extend this beyond the End and Natnre of a Contra&t; for
we never engage to take care, or be at Expences eatraordinary, nor to neglect other Affairs leſs important in themſelves, to attend
other Mens, as perhaps one would do, if he acted for himſelf. Theſe Principles being laid down, 'twill not be hard, in my opinion,
to determine, after an attentive Examination of Circumſtances, when Men are reſponſible for the Faults they have committed, in
relation to Contracts.
(2) His Words are, Quicquid rogabatur, religioſè promittebat, quod non liberalis, ſed levis arbitrabatur polliceri, quod præſtare non pol-
pertaſum est. Suam enim exiſtimationem in ea re
(3). Our Author had better have obſerved, That,
when we do not know the Charater of a Perſon, we cann'c require greater
Care than he uſually beſtows on what he loves beft; for he cann't be thought to engage himſelf farther; and it is not his Fault, if
we have too good an Opinion of him, eſpecially if he has not contributed to beget it.
Mr. Barbeyrac's NOTES on 84.15
(1) The Words are, Non omnia, que impenſurus non fuit, mandatori imputabit, veluti quod ſpoliatus fit à latronibus, aut naufragio
res amiſerit, vel languore ſuo Suorumque apprehenſus, quædam erogaverit. Nam hæc magis cafibus quàm mandato imputari oportet. See
alſo Mr. Daumat's Civil Laws in their Nat. Order, Part 1.1.1.t. 15. Se&t. 2. $ 6. dio
(3) But when he makes a Journey on purpoſe, as we ſuppoſe, the Loſſes which happen by Chance ought to be look'd upon as the
real Conſequents of the Execution of the Contract ; for if he had ſtaid at home, he had not been exposd either to the Tempeſt or
the Thieves. Aud ſo they ought to be put among the Expences of attending upon his Commiſſion. Another thing is, when he
falls ſick; for it is not a fufficient Proof that it was an Effect of the Fatigues of his Journey; but if it were, he ought alſo to repay
his Agenc the Charges of his Sickneſs. But I am poſitive that he ought not to regard what it coſt him more than if he had been
at home. See the following Note.
(3) Upon what is that Preſumption grounded? I ſhould father affere, that he that takes upon himſelf a Commiſſion, will execute
it at his own Charge ; for, according to this Author, here is no Agreement to give his Labour only, and ſince Misfortunes may hap-
pen every Day, the Commiſſion may be very chargeable, if it be upon the Account of the Agent. So that I do not ſee that he en-
gages himſelf
to bear the Loffes to which he is expoſed, more than the Charges he muſt be at in diſcharging his Commiſſion. The Truth
is, We may on the contrary hold, that 'no Man willingly runs the Riſque of unforeſeen Accidents, which, it is probable, would not
have happend to him without the Commiffion, eſpecially if he has not fairly conſented to it, which is not common. Such as ac-
cept Commiſſions, in the Execution
of which they are ſubject to the like Accidents, will not, nor can be ſerviceable in that Cafe ;
and thofe who have Power and will, may as well do it out of mere Liberality, ſo as to require no Satisfaction for their Misfortunes,
nor any Repayment of the Expences they have been at in executing their Commiſſion.
(4) Not at all, unleſs he fo declar’d. See the foregoing Note. On the contrary, The more dangerous a Thing, is known to be
we have the leſs Reaſon to believe that he would meddle with it, if he did not think he ſhould be indemnified from all ill Ac-
cidents.com Oto VIPAV ar to
Sin
mwi ni sada viniqo si Mr. Barbeyrac's NOTES on § 5.
(1) His Words "are, In Offciis capiendis, cenſendis, judicandi que, que grace, KaShnorle, Philoſopbi. adpellant, queri ſolet, an negotia
tibi dato, & quid omnino faceret definito, contra quid facere debeas, li eo fa&to videri pollit res eventura prosperius, exque utilitate ejus,
(a) Vid. Jac. Gothofred. ad Lég. 23. D. de Div. reg. juris. In Vita Attici, c. 15. 1. (c) Ter. And. A&t. 4. Sc. T. v. s, &C.
(d) Sadus, Roſar. Perſ. c. 7. (*) Mandatarius, &c.
See Grot. B. 2.c. 12. S. 13.
(f) B. 17. t. 1.1.26.5.6.D. Man-
dati, &c. (8) Wid. Mornace ad. h. 26. 5.6. D. Mandati, & 1.17.4.2. L. 52. 5. 4. pro Socio. (h) L. 1.C. 13.
carius.
Pin
COM
(6) In via
qui

CHAP. IV.
249
Of Gainful Contracts in particular.
Theo
C6
כל
a
« Orders how to manage it, you ought to aa Coun- nently interpoſe his own Judgment: Tho'rithis is
ter,
if it ſeems for the Advantage of him that gave to be ſaid for the Architect, that Mutianus ſending a
w it? Thoſe that hold the Negative, argue, that ma- Man, skilful in the Art, and fignifying to him wliar
have determined to haye their Bulineſs done af Uſe he deſigned the Beain for, feemd, in a manner,
ny
« ter ſuch a particular manner; and therefore he whole to adviſe with him about it (2) (b). On the other fide,
“ Buſineſs it is, having deliberated and fixed upon a we have an Example of Mildneſs in the Emperor A-
« Method, it ought not to be done otherwiſe, althodrian (c); for when the People had demanded ſome
« ſome ſudden unexpected Accident ſhould promiſe a thing in a tumultuous manner, he ordered the Cryer
« better Iflue; for fear, in caſe of Diſappointment, the to proclaim Silence. But he fearing the Conſequence
« Guilt of Diſobedience, and the Puniſhment due to of ſuch an harſh and unuſual Word, ſtretched out his
“ it ſhould unavoidably follow: Whereas, ſhould the Hand, and having thereby procurd Silence, cry'd a-
Thing fucceed right, Thanks be to Providence : But loud, This is what the Emperor would have, with
yet an ill Precedent would be introduc’d, for break- which the Emperor was not offended. “ One time,
"ing in upon well-laid Counſels, and the Sacredneſs 6 when Commodus found the Bath too warm, he or-
Others, on the contrary, are of “ der'd the Keeper of it to be thrown into the Fur
Opinion, « That the Inconveniencies that may hap- “ nace': But the Servant who had received the Order,
pen, upon acting Counter to Order, ought to be " threw in a Sheep-skin, by the Stink thereof to in-
compared with the Probability of ſucceeding; and " duce the Emperor to believe his Order to be put in
“ if the former appear lighter and leſs than the lat « Execution.” Lamprid. in Commodo, c. I. Grotius
« ter, then ought we to proceed accordingly ; for (d) is of Opinion, that a Commiſſion may be diſcharg-
“ fear of lofing an Oyportunity, which Heaven, in ed by an Equivalent, provided it appears that it was
«* this Cafe, ſeems to offer : Neither need we fear ſuch not preſcribed to be manag‘d under any particular
a Precedent, if thoſe that follow the Example ne- Form, but under the general Conſideration and Prof
”
of ſome Advantage, which inay obtain'd as
fome Precepts of Prudence,“ Particularly, Regard well one way as the other. bow sdi det
STUP
“ is to be had to the Temper and Nature of him of In ſhort, the State of the Caſe is this : In fome
« from whom the Commiſſion is receiv'd ; that he be Commiſſions the Buſineſs only is ſpecified, and the Ma-
not of a cruel, rough, untractable, inexorable Diſpo- nagement of it left to the Diſcretion of the Agent :
“ fition (a), for in ſuch a Caſe, the ſafeſt way would Sometimes the Management too is preſcrib'd, but ra-
“ be to ſtick to his Orders.” He adds as an Example,
He adds as an Example, ther by way of Advice, as ſeeming beſt to him that
Craſmus Mutianus, “ Who ſent an Archite&t for the gives the Commiffion; but yet ſo as not to exclude the
greater of two Beams, to raiſe his Battering Ram Agent from uſing his own Method (e), if it ſhould
but the Architect thinking the leffer the fitteſt, ſeem beſt at the Point of Execution. But laſtly, The
“ brought that ; upon which Account Mutianus or- Method is ſometimes ſo ſtrictly preſcribed, that the
“ der’d him to be ſcourged, for he imagined that Dif- Agent cannot depart from it, let what will happen.
cipline would be trampled upon, and Authority de- Here 'tis plain that a Commiſſion is ſatisfied with an
{pis’d, if a Man, under Command, inſtead of o. Equivalent in the ſecond Café
, not in the Third. To
beying the Orders of his Superior, ſhould imperti. this Purpoſe we have a Caſe in the Digefts (3) (3)
with;
b
OSAO) 300
tiam ſuam unâ in parte defixerint, do re
re ſemel ſtatutâ, deliberat âque cujus negotium id profi-númque effet, nequaquam put averint con-
tra di&tum ejus effe faciendum, etiamſi repentinus aliquis caſus rem commodius agi poſle polliceretur ; nè ſi ſpes fefelliget, culpa imparentiæ,
indeprecabilis ſubeunda effet; fi res fortè melius vertiſet, Diis quidem gratiâ habenda, sed exemplum tamen intromiffum videre-
tur, quo bene conſulta confilia Religione mandati foluta
corrumperentur. Alii exiftimaverunt incommoda prius, qua meruenda effent, fires
amplior ſpe quantum poteft firma eſtenderetur, tum posse adverſum mandat a fieri, cenſuerunt ; né oblata divinitus rei bene gerendæ occaſio am
mitteretur. Neque timendum exemplum non parendi crediderunt, ſi rationes duntaxat hujuſmodi non adeffent. Cum primis autem reſpicien-
dum putaverunt
ingenium naturamque illius, cujus res, præceptumque effet, nè ferox, durus, indomitus, inexorabilifque fit, qualia fuerunt
Pofthu-
miana imperia & Manliana ; nam ſitali Præceptori ratio reddenda ſit
, nihil faciendum effe monuerunt aliter, quam præceptum eft. But our
Author did not uuderſtand thefe Words, Sunt enim non pauci qui fententiam, &c. for he alledges them as the Foundation of their Reaſons
who held the Negatives, as if they ſignified, That there are many Men, who having eſpouſed one Parry, will never forſake it, &c.
whereas A. Gellius ſays only, That there are ſome Men, who determine in Effect Pro and Con in the ſame Queſtion, &c. we ought to
obſerve, that in the Sentence which begins with Neque timendum exemplum, &c. there is ſomething corrupred, tho” the Senfe does not
clearly diſcover it. See 7. Fred. Gronovius's Note upon it.
(2) Mr. Montagne fpeaks fomething to this Purpoſe ; blaming Two French Ambaſſadors, who under a Prerence of not engaging the
Maſter on the worſt Side would not give him a true Account of Affairs, and then goes on. However that be, I would not be fo uſed
in my low Sphere. We are ready to withdraw Obedience upon every Occaſion, and ufurp upon our Mafters
. Every one aſpires na-
turally to Liberty and Authority, and therefore to a Superior no Advantage is to be ſo prized, as fincere and Native Obedience
.
The Office of a Commander is ruin’d, if Men may obey at Diſcretion, and not thro? Subjection ( which is A. Gellius's Notion, who
ſays, Corrumpi & diſſolvi officium omne imperantis ratus, ſi quis ad id, quod facere juſſus eſt, non obfequio debito, fed confilio non deſiderato
reſpondeat) as Craffus Mucianus fhews, &c. But if we ought to conſider that ſuch a ítrict Obedience belongs only to poſitive and
preciſe Commands, Ambaffadors have more free Orders, which in many Things depend principally on their Management. They
don't barely execute them, bur frame and faſhion their Maſter's Will according to their own Judgment. I have known fome Perſons
acting by others Commands, reproved for following the Inſtructions of their Kings Letters, rather than the Opportunity of diſpatch-
ing Afairs. Men of Underſtanding blame the Cuſtom of the King of Perſia now in uſe, which ryes up their
Agents and Lieutenants
fo ftri&tly to their Orders, that they cann't do the leaſt Thing without them. This Delay, in a Kingdom of ſo vaſt an Extenr,
produced great Derriment to their Affairs. So Craſſus writing to an Artiſt, and telling him to what Uſe he deſigned the Maſt;
Did he not forbid him
to make uſe of his Advice, or interpoſe his Determination ? Eſſay, f. 1.
(3) The Words are, Mandavi in hæc verba, Lucius Titius Gaio fuo falutem. Peto & mando tibi, ut fidem dicas pro Publio Mevio a-
pud Sempronium, quæque à Publio Solut a mihi non fuerint, me repreſentaturum hæc epiſtola mea manu ſcripta, notum tibi facio, quæro, fi non
(a) As was Piso in Seneca de Ir a, l. 1. c. 16. (b) Add. Mich. Montaign. EJ. 1. 1.C.16. (c) Vid. Xiphilit. Epit. Dionis ann. 118.
& Zonare, Tom. 2.
To I.D. Mandati.
(d) L. 2. C. 16. 5. 21. (C) As in the Proverb, Mitte ſapientem & ipfi nihil dicas. (f) L. 17.t. 1. l. ulta
has
fiden
250
Of Gainful Contracts in particular.
BOOK V.

2.
•
C
& Action. I. 1. $ 4. Here let us apply and explain at the ſame Time what we have ſaid, S 3. Note 1. If we conſider the Thing in itſelf,
I commiſſion you to be Surety to Sempronius for Ti-
. of the Perſon : Yet this Liberty is not to be taken,
tius, you don't make yourſelf a Surety, but give Şem- but in caſes of Neceſſity, (4) for all the Force of
pronius a Commiflion to iruf Titius. If you have Authority would be eluded, and the Coinmon-wealth
been at Expence upon this account, the Queſtion is, would be often brought into Danger, if a Miniſter, of
Am I reſponſible? Which is declared in the Affirmative, his own Head, thould take upon him the Part of the
For I gained my End, which was, that Sempronius Should Governour. So Otho in Tacitus
, H. L. 1. C. 73. ſpeaks;
truft Titius, and whether he does it by your Suretiſhip, If every Man, when he is commanded, is allowed to
or your Commiſſion, it is all alike to me; and I am ask Queſtions, there is an End of all Authority. And
obliged by one, as well as the other, to repay what you again, l. 2. c. 39. Tis a poor Commendation for a
have laid out upon this Account.
Soldier to comment upon, rather than execute the
But, as I obſerv'd above, we muſt carefully diſtin- Commands of his Superior. Add. lib. 49. t. 16. 1.
guilh (2) between the Commiſfion of a Superior, and the f. 15. D. de re militari, & Liv. 1.44.C. 34. Yet Mi-
Commiſſion of a Friend; which two are widely diffe- niſters of great Abilities, do well in negle&ting the
rent, and agree in nothing but the Name : And there- fooliſh Orders of their Prince. See 2 Kings xviii
.
fore what the Civilians have ſaid upon the latter, are 6. Vid. Valerius Maximus Lib. 3. Chap. 8. Se&t. I.
very injudiciouſly apyly'd to the former. For, in Cor. Nepos, Epam. Chap. 7, 8.
Thus Bavalan did.
private Affairs, 'tis eaſy to preſume, that the Method ' wiſely in not putting in Execution the Murther of
is preſcribed only by way of Advice, ſo as to leave Clifon, which his Maſter, the Duke of Bretagne
Room for the Diſcretion of the Agent. But when a · had intruſted him with. See the Story in Buffer's
Buſineſs is enjoyn’d by a Superior, the bare Execution Hiſt. Franc. l. 11. p. m. 391. and Mezeray, p. 526.
of it is ſuppos’d to be meant; and, in this Caſe, it will tom. 2. Par. Edit. Tis remarkable, that the Vice-
not be lawful to depart from the Method preſcrib’d, Roy of the Indies had a fair Opportunity of ſeizing
unleſs Leave be given (as frequently it is) by an ex upon the City Aden, but yet did not do it, becauſe
preſs Clauſe to deviate from it, as Occaſion ſhall re ' it was againſt the King's Command, when yet the
quire; or unleſs the Words, interpreted according to Taking of that Place was of the greateſt Importance.
Reaſon, and the received Rules of Speech, ſo as to Hier. Ofor, de geſtis Emanuel
. 1. 11.
anſwer the Deſign of the Commiſſion, can warrant the VI. (+) A Loan (that is when we allow another
doing of it. For that Senſe that the Meaning of his gratis (1) the Uſe of any Commodity not conſumable)
Words fairly imports, is to be preſum'd, the Meaning carries along with it theſe Conditions; that it be (2)
fide juffiffet, ſed mandaſſet creditori, & alias egiffet, quam quod] ei mandatum effet, an a&tione Mandati teneretur. Reſpondet. Teneri.
See Arn. Vinnius upon the Inſtitutes, Lib. 3. c. 27. De mandato 5 8.
(4) Otho's Words are, sis cur jubeantur, quærere fingulis liceat, pereunte obſequin, etiam imperium intercidit. See alſo, Lib. 2. C. 39.
Tit
. Liv. l. 44. Ch. 34. & Digeſt, l. 49. t. 16., De Re militari, Leg: 3. $ 15. A Vice-Roy of the Indies, having a good Occaſion
to take the City of Adena, would not do it, tho' it had been a conſiderable Advantage, becauſe he had no Order for it from his
Maſter, the King of Spain, as we are told by Hieron. Oſorius, De Geſtis Emmanuelis, l. 11.
Mr. Barbeyrac's NOTES on § 6.
(1) The Roman Law defines Commodatum or a Loan thus, Commodata autem Res tunc propriè intelligitur, fi nullâ mercede accepta,
aut conſtitutâ Res tibi utenda data 'est, alioqui mercede interveniente, locatus tibi ufus Rei videtur : Gratuitum enim esse debet commo-
datum. Inſtit. l. 3. t.15. § 2. i. e. A Thing lent is properly then, when a Thing is granted to thee to be uſed, without
any
Reward
accepted or agreed for, otherwiſe if there be any Reward, the Uſe is hired, for Lending is free. See Mr. Daumat's Civil Laws in
their Natural Order. Part. 1. l. 1. tit. 5.
(2) The Digeſts thus ſpeak in this caſe, Alias tamen [is, qui utendum accepit] exa&tiffimam diligentiam cuſtodienda rei preſtare com-
pellitur, nec ſuficit ei eandem diligentiam adhibere, quam ſuis rebus adhibet, ſi alius diligentior cuſtodire poterit, l. 44. c.7. De Obligat.
He, that has borrowed a Thing, is bonnd to take no greater Care of it than he does of ſuch Things of his own, as he molt eſteems;
I ſay, as he moſt eſteems, becauſe we may obſerve, that the moſt negligent Perſons are very careful of ſome Things, which affect
them much. Their Careleſneſs uſually about their Affairs proceeds from this, that they do not affect them enough to make them reſo-
lute to conquer their Inclination to Eaſe, or to divert them from ſome Buſineſs they are about, or to keep them from ſome Plea-
ſure, that they love better. As to ſuch Objects as offer themſelves to their Embraces, or when ſomething extraordinary ſtirs them
up, and rouzes them, they know how to put forth themſelves and take good Methods, and juſt Meaſures enough, unleſs they be
Men very dull; ſo that the Rule I give, ſerves not to authorize or excuſe their Negligence. Every one has commonly Care enough
of the Affairs and Goods of another, when he does as much as he would do for himſelf in Matters of the greateſt Concern to him,
and I require ſuch a Degree of Exactneſs, whereas the Lawyers allow Men to come ſhort of it in ſome Contracts. A Man can't
diſpoſe of another's Intereſts, as he may of his own; and ſo when he has the Affairs or Goods of another in his Hands, he is thought
to be engaged not to neglect any thing that concerns them. But when he hath enlarged his Care and Diligence ſo far, 'cis all our In-
tereſts can require, it he is not evidently engaged in any thing more; buc if the care of our own Goods and Affairs To interferes
with the Care of another's Goods and Affairs, that we can't attend both at the ſame time, it is natural for the firſt to prevail
, every
one being more thoughtful (all Things elſe being equal) of himſelf than of others; ſo that this Order ought not to be reverſed, un-
leſs it be to ſatisfy ſome ſpecial Engagement, either expreſs or tacit. We will now return to the Contract, of which he is creating.
I ſay then, that altho' a Man be not mindful of his own Concerns, but abandons all, yet is he no leſs anſwerable for his Negligence,
when he has hurt, or loſt what he has horrowed; for it is cercain, that if ſuch a Thing had belonged to him, and
loved it much,
or had ſome extraordinary Reaſon to keep it well, and do all he could to preſerve it, he would have taken more Care of it. Bup
vvhen he has done all he can in this caſe, the End and Nature of a Loan, conſidered in itſelf, can require no more of him, tho
other more fit and wiſer Perſons might have managed better, and ſecured it more from Miſchances, unleſs there be ſome cacit Agreer
inent, not only to indemnify the Proprietor, in caſe the Thing borrowed ſhould be ſtole or much damaged, but alſo to pay
it happen to periſh in our Hands, eſpecially, if it be by our Fault, provided, that it might have been cafe in the Lender's Hands, in-
deed few Perſons will lend otherwiſe
, eſpecially, if they ſuffer by the Lofs. We bear it, tho' with Trouble, and are uneaſy to ſee a
Thing defaced or abuſed, provided we can make uſe of it as formerly, or can reſtore it at a ſmall Charge; but when 'tis quice
1poiled or loſt, we trouble not ourſelves in the leaſt to diſtinguiſh, whether it was by the Fault of him, to whom we lent it to do
him a Pleafure or not. We believe it fufficient to conſider, that if he had taken care of it, it had eſcaped that Accident, and that
Pe was not our Fault, that it was expoſed to it, while it was in the Hands of him that uſed it.
(a) Which Becier takes Notice of in his Diſſertat. de religione mand.iti. (+) Commodatum.
carefully
a he
for
16,
Chap. IV.
251
Of Gainful Contracts in particular.

De o
SKOG
Let us ſee therefore in what ſuch a Loan as this,
(7) So the Digeſts , ,
4
carefully preſervd, and with the ſame Diligence himſelf; but without ſuch an urgent Neceſſity, a Loan
that prudent Men keep their own (2). (3) That it be ought (5) nor to be demanded before the Tine (e!
not put to any other Uſe, nor made Úſe of any farther
than the Perſon lending deſign'd it (b): Laſtly, That and (*) a Grant at Will and Pleaſure differ and agree.
it be return’d in the ſame State and Condition as when In reſpect of the Object and the Uſe they agree, for
it was borrowed (c); indeed what Detriment it ne the fame Thing that may be lent, may be granted
ceſſarily receives (4) from the ordinary Uſe of it, during Pleaſure, and the Uſe
, in both Caſes, is given
need not be repaird, for that the Owner is ſuppos'd gratis. But they differ, in that the Loon is a Con-
to give gratis (d). Beſides, if I lend a Thing for tract, the Grant is not ; the former obligatory on both
ſuch a certain Time, and in the mean while by ſome Sides, the latter only on one. The Loan is given for
unforeſeen Accident want it my felf, the other is obli- a certain Time or End; the Grant only during the
ged to deliver it immediately upon Demand: For no (6) Will of the Giver. The Receiver of the Loan
Man is prefum'd to lend his Goods, but ſo long as he muſt make good all Damages; the Receiver of the
can conveniently be without them. And he muſt be Grant, only thoſe that happen by his (7) Knavery,
either very careleſs, or have a Deſign to impoſe upon or grofs Negligence (f).
VOME bola
another, who lends thoſe Things which he is likely 0 It may indeed be doubted, whether the Receiver of
to want himſelf. And therefore a Loan for a certain a Loan is bound to ſtand to thoſe Chances which it was
Time, is upon Condition, that the Owner ſhall not, not in his power to prevent, and this (8) is generally
in the mean time, have urgent Occaſion for the Thing held in the Negative (8). But, in my opinion, we
ough
(3) To uſe it otherwiſe is a Kind of Robbery, according to the Roman Lawyers, whoſe Expreſſions here are a little extravagant.
Sive is
, qui rem utendam accepit, in alium uſum eam transferat, qu.im cujus gratia ei data eft, furtum committit; veluti ſi quis argentum
utendum acceperit, quafi amicos ad cænam invitaturus, & id peregrè fecum tulerit: aut fi quis Equum geſtandi cauſa commodatum fibi
.
naſcuntur, $ 6. Bur the ſame Lawyers add, that if the Owner of the Thing borrowed permits us to make another Uſe of it, than
was exprefly agreed for, and knows what is done, he is not then to blame. Placuit tamen eos, qui rebus commodatis aliter uterentur,
quam utendas acceperint, ita furtum committere, li se intelligant id invito Domino facere, eumque ſi intellexiſſet, non permiſurum ; at si
permiſſurum credant, extra crimen videri, optima fanè diftin&tione, quia furtum fine affe&tu furandi non committitur. "Inſtitut. ubi
ſup. $ 7.
(4) The Words of the Digeſt are, Si reddita quidem fit Res commodata, ſed deterior reddita, non videbitur redd ta, niſi quod intereſt,
præftetur. Lib. 13. t. 6. Comod. vel contra, l. 3. S 1. Si commodavero tibi equum, quo utereris ad certum locum, ſi nulla culpâ tuâ inter-
veniente, in ipſo Itinere equus deterior faltus ſit, non tenerus commodati; nam ego in culpâ ero, qui in tam longum iter commodavi, qui eum la-
borem ſuſtinere nom potuit. Ibid. l. 23.
(5) Without which he muſt take other Meafures to provide himſelf. Sicut autem voluntatis, & officii magis, quam neceſſitatis eſt
commodare, ita modum commodati, finemque præfcribere, ejus eſt, qui beneficium tribuit. Cum autem id fecit (id eſt poſtquam Commodavit)
tunc finem præſcribere do retro agere, atque intempeſtive ufum commodat& rei auferri, non officium tantum impedit, ſed et ſuſcepta Obligat in in-
ter dandum, accipiendumque, geritur enim Negotium invicem. Igitur fi pugillares mihi commodafti, ut debitor mihi caveret, non re&te fa-
cies importunè repetendo ; nam ſi negaſet, vel emiſem, vel teftes adhibuiſem. Digeſt. ut fupra, Leg. 17. $ 3:
(6) So the Digeſts direct, Precarium eſt, quod precibus petenti utendum conceditur tamdiu, quamdiu is, qui conceſſit, patitur. Lib. 43.
t. 26. De Precario, Leg. 1. Prinç.
order, Illud adnotatur, quod culpam non præſtat is qui precario rogavit, fed folutn dolum præftat ; quanquam qui com-
modum ſuſcepit, non tantum dolum, ſed culpam præftat. Nam immerito dolum folum præftat is, qui precario Rogavit, cum totum hoc ex li-
beralitate deſcendat ejus, qui precario concefit, & fatis fit fi dolus tantum præftetur. Culpam tamen dolo proximam contineri, quis merito
dixerit. Ibid. Leg. 8. $ 3. See Cujacius obſerv. 4.7. But Mr. Thomaſius in his Diſcourſe, De culparum Præftatione in contrattibus,
Chap. 1. $ 48, &c. fhews, that the Diſtinction berween a Loan, and Grant at Will is grounded only upon the Subtlecies of the
Roman Law, and that there is ſomething of Humour, in the Reaſon, that Vlpian alledges here, as well as in the Compariſon, which
he elſewhere makes between a Grant at will, and Gifts bețween the Living.
(8) They are grounded upon this Law among others : Quod vero Sene&tute contigit, vel morbo, vel vi Latronum ereptum eſt, aut quid
Simile accidit dicendum eſt
, nihil eorum esſe imput andum ei, qui commodatum accepit, nifi aliqua culpa interveniat. Proinde et fi incendio, vel
ruinâ aliquid contigit, vel aliquod damnum fatale, non tenebitur, nifi fortè, cum poſſit res commodatas Salvas facere, ſuas prætulit. Di-
geſt. Lib. 13. t. 6. Commodati, vel contra, Leg. s. 84. See alſo, Leg. 19.& l. 44. 6. 7. De Obligat. G A&tion, 1. 1. $ 4. Bur from
theſe Words, Niſi forte, cum poffit, &c. feveral Lawyers infer, Thar in a common Danger a Man ought rather to ſave a Thing bor-
rowed, than his own Goods ; and they add this Provifo, If the firſt be not of leſs Value. Whereupon Mr. Titius maintains, that theſe
words, ſuas prætulit, mean not, That he choſe rather to fave his own Goods, then what he had horrowed, but only that when he
could have ſaved both, he took not Care of any but his own, and fo it became his Fault. Indeed all that goes before, thews, that
Vlpian will have the Borrower anſwerable for his own Negligence only, and nor for Miſcaſualties, which he could noc foreſee ; To
that theſe laſt Words muſt be explained by ſuppoſing ſome Circumſtance, by which it may appear, that the Borrower was in fault
for he is nor always obliged to prefer the Preſervation of another Man's Goods before his own. The Interpreters generally hold,
owes it ought to pay the Overplus. But this Determination is plainly falſe ; for upon what Account is he, to whom the Thing bor-
rowed belongs, obliged to pay the Value of thac which is loſt, to ſave his ? He is in nowiſe the Cauſe of the Damage received; and he
has not promiſed to indemnify us in caſe fuch a Thing happens, which are the Foundation of every Natural Obligation to make good
the Loſſes of any other Perſon, nor is there any Civil Law that authorizes ſuch a Determination, And, indeed, who is there who
would rather ſuffer his own Goods to be loſt then preſerve them, on the Condition of paying a Thing of a greater Price, than whac
he ſacrificed, to ſave them? Laſtly, ſuppoſe, that the Borrower ſhould prefer the Preſervation of his own Goods before what he
has borrowed, altho' they were of leſs Value, 'cwould cnly follow from thence, that, ſince he has only uſed his own Right, the
Owner of the Thing borrowed, can lawfully demand nothing in this caſe; as on the other ſide, if he neglects to uſe his own Right,
he can lay the Fault on himſelf only. But it is ridiculous to affirm, that, becauſe he has preferred
the Saving of the Thing borrowed
before his own, that the Lender ought to account to him for it, and make good his Lofs, ſince he recovers no more than his own.
Wherefore Mr. Titius concludes
, thàc as often as it happens, that there is not cime to ſave Two Things of equal
Value, and a like
expoſed, which
ever of them he fervės, 'tis fo much the better for the Owner, and ſo much the worſe for the other. Obſerv. on
Lauterbach, Obſ. 392. Moreover, the Author before quoted, alledges a Paſſage in Virgil
, where the Word, Preferre, bears much the
Tame Senſe, by a like Figure, as he affirms it doth here. Mr. Noodt makes ufe of it in his Obſervat, l. 2. c. 15. to explain another
(a) L. 13. t. 6. 1. 5. 1. 5. D. commodati. (6) Vid. Val. Max. l. 8.c. 2. 1. 4. And Gellius, l. 7.c. 15. Vid. I. 13. t. 6. le 5. f. 8. in
fin. D. Commodati, 6-1.47.c.2.1. 54. f. 1. De furtis. (C) Vid. l. 13.6. 6. I. 3. 1. 1. D. commodati. (d) Add. l. ult. D. commodati.
(e) Vid. D. ubi ſup. 1. 17.1.3, 4. D.commodati. (*) Precarium. (f) Vid. Wiſſemback ad D. Diſp. 24. 1. 19.
(8) Vid. l. 13. 6. 6. commodati, &c. 61. 19.01.44.6.7. 1. 1. f. 4. D. de oblig. alt.
a
I aw
252
Of Gainful. Contracts in particular.
BOOKIV

upon
Loan was ſtole; sand yet ſuch a Robbery might be the Loſs (C). (ie why the Lender Ihould ſtand to
,
not have added that Reſtriction, which was underſtood of itſelf. It had been ſufficient that Circumſtance alters not the Nature of
ore after ...? for him who lends, to loſe his Goods to do a
ought to diſtinguifh, whether or no the Damage had may be preſum d willing to run the Riſque of ther.
happen’d, if the Thing had continued in the Owner's And thus I think that Law the 18. prin. and 1. 5.
Cultody (a): for if it had, no Reſtitution is due ; [but & 7. D. commodati ought
if it had not, it ſeems due in Equity : for otherwiſe I well approve of what-is ſaid in l. 19. D. dicteszi.
a Man's Generofity and good Nature might be too which does
expenſive to him, if beſides (9) the free Uſe of his 4. 12. f. 1. D. dict
. tit
. But yet if the Borrower, when
Goods, he muſt be deprivd of the Perpetuity, of he might have fav'd the loan preſerves fomething
them, which-he had not been but upon this account
. more Valuable of his own, he becomes reſponſible
Nor is there any Reaſon why he, rather than the o- For tho' no Man can blame him for lettịng that perifh
ther, (10) ſhould bear the Burthen of the Misfor- which was leſs Valuable, yet ſince it might have been
tụne, fince the other (11) was the Occaſion of it. fav’d, and was loft for the Benefit of the Borromer,
The Roman Law (b) gave the Lender Damages if the there is no Reaſon,
c(12) On the other, fide it is
committed without any Fault in the Perſon robb’d. ſonable, that if any, Expence has been-laid out
Indeed if a Man, by Fire, ſhould loſe all and be re the Loan, beſides what was neceſſary for the Uſe of
ducd to extream Poverty, it would be Inhuman to it, (13) the Owner Whould repay it (d)ori neruots
demand the Value of the Loan; and ſince Fire, Ship VII. (+) A Charge is (1) when we commit to ano-
wrack, and ſuch Chances ofçen happen, the. Lender ther's Truſt and Cuſtody any Thing belonging to us to
Law taken out of Vlpian, 'tis in Lib. 12. of the Æneids, where Funo ſpeaks to the Nymph futurna, That ſhe was loved by her Hus-
band bercer than all his other Miftreffes, becaufe ſhe was troubled at, and perfecured him with all her Force, Scis, ut te cun&tis –
PRETVLERIM. See Servius, who alſo alledges a in Saluſt of the like Import with Q. Curtius's, Lib. 6. c. 4. num. 18.
Mare
re Caſpium Dulcius cæteris. The Caſpian Sea is ſweeter than the other, as if there were a certain Sea of ſweet Water. See the
Art of Thinking, Part 2...c. 10, &c. where it is proved, that in Comparative Propoſitions, the Poſitive doth not always agree with
both Members of the Compariſon. Mr. Noodt treats upon this Matter more at large in his Julius Paulus, c. 7, where he produces
other Examples of like Nature. But notwithſtanding all this I do not think it neceſſary to jovn in the Explication of Mr. Titius
upon
theſe Words. Nifi fortè cum poffit Res commodatas ſalvas facere, ſuas pretu'it, which is alſo found in the Receptæ Sententiæ of Julius
Paulm, 1.2. t. 4. 5 3. with this Difference, that there he reads, rem commodat am ( ſuam, the Singular for the Plural, as if this Max-
im had paſſed into a General Rule, that every one is reſponſible for the ſmalleſt Faulcs (culp& Leviſſimæ) in ſuch Things, as are bor-
rowed for his own Advantage only. (See Digeſt. Lib. 13. t. 6. Leg. 5. $ 2.) The Lawyers look upon it as an Omiffion, which amounts
to the greateſt Fault and Neglect for a Man to prefer the Saving of his own Goods before what he has borrowed, tho' chere was no
and they have no regard to the Concurrence of the Intereſt of the owner, who hath lent, and that of the Borrower. íf Vlpian had
only affirmed, that the Thing borrowed ought to be paid for, when it might have been fecured, as well, as a Man's own, he
need
for him to have ſaid, Nifi fortè res commoda-
tas ſalvas facere potuerit,
ſaved, or no, the Thing belonging to us,
the Fault, ſince the Thing borrowed might at the ſame time be ſaved. We then ſee that the Senſe of the Words mentioned, comes
to this. At leaſt, if he might have ſaved the Thing borrowed, whereas at the ſame time he ſuffer'd ic to be loft. But here the Law,
yers are not aware that they make a ſpecial Caſe, which muſt be determined by ſome other Principle than their Culpa leviſima, and
ſince they will have the owner of the Thing borrowed to bear the Loſs, when it happen'd by Chance, and without the Fault of the
Borrower, they ought to eſteem, as a Thing of the greateſt Force, the Impoffibility of faving the Thing borrowed, without ſacri,
ficing our own Intereſts. Wherefore let us conſult what is ſaid Note 2. of this s, where we ſhall find more natural and more co-
herent Deciſions of this Marter.
(9) This Reaſon, Mr. Titius, Obſerv. on Pufendorf, 365. ſays, proves nothing, becauſe the Lender knows well, or ac leaſt ought to
know, that theſe ſort of Accidents may happen, and ſo cacitly conſents that they be ſubject to theſe Hazards, Dangers, and For-
tunes. Otherwiſe it may be anſwer'd, that the Borrower had better have hired the Uſe of the Thing lent, than to be engaged to
pay for the Thing borrowed, if it be ſpoild without his Fault. But beſides, that there is almoſt ever a tacir Engagement, contrary
to what is ſuppos'd, as I have ſaid Note 2. we ought to believe that the Borrowers live at eaſe; (for if they are in Streights, we
may preſume that the Owner of the Thing borrowed, would generouſly take upon hinıſelf all fortuitous Accidents) and to have
no Reaſon to complain, ſince the Uſage of what is lene them gratis, either ſpares them a Buying it, or is very advantagious, be-
cauſe they could not, for the preſent, be accommodated any other way, or, after all, the Benefic may be thought equivalent to the
Kindneſs, than it ought to be to him who borrows, to reſtore the ſame Thing, or the Value, in caſe any Accident happens, while
he has them in uſe. The Maxim uſed by the Roman Lawyers, upon another Occaſion, may be applied here. Et fi iniquum, dam-
nofum cuique eſe officium ſuum. Digeft. I. 29. t. 3. Teſtamenta quemadm. aperiantur, 1. 7.
(10) The Reaion of it is clear, anſwers Mr. Titius, ubi Jupra, that when a Thing is ſpoiled without any Man's Fault, the Loſs
mult redound to the Proprietor, provided all things elſe be equal. See the Nore foregoing.
(11) This is true ; but then the owner of the Thing borrowed, has freely conſented to it, as Mr. Titius ſays, but a Loan is uſually
made on another Account, as I have obſerv'd ſeveral times before. The Laws of the ancient Germans order exprelly, that if a
Thing periſh or be loft, while 'tis in the Poffeffion of the Borrower, he muſt pay the Owner for it, as Mr. Thomafius's tells us in his
Diſcourſe already quoted, De culparum præſtatione in Contra£tibus, c. 2. $ 18.
(12) Moſes there ſays, if a Man borrow ought of his Neighbour, and it be hurt or die
, the Owner thereof not being with it, he shall
Pay for it, but if the Owner thereof be with it, the Borrower ſhall not pay for it. The Reaſon of this, without doubt, was, that the
Owner being abſent, could not take care of his Goods, nor fee whether they were endamaged or loſt by the Fault of the Borrower.
Beſides, if the Borrowers were diſcharg'd of the Loſs in the Abſence of the Owner, it might give an Occaſion to uſe the Thing borrow-
ed ill, or to neglect it, and feign it loft, when 'tis not. As to the Law of the Digeſts cited here by the Author, he entitles it Com-
inodati vel contra, and it ſhould be Depoſiti, &c. As it is here determined, that ill Chances are ſometimes to be put to the AC-
count of the Perſon entruſting another, Mr. Pufendorf informs us, " That there is more Reaſon that the Borrower ſhould indemnify
the Proprietor for the Loſs that happens by a like Accidenc. See alſo Exod. 22. 13, 14, 15. And'd. I. 19. princ
. D.commodati.
(13) So he that has borrowed a Horſe or a Slave, ought to maintain them at their own Charge; buc if either of them become
fick, the Charge of the Cure muſt be born by the owner. Poſſunt juſte cauſa intervenire, ex quibus cum eo qui accommodaffet agi de-
beret, veluti de impenſis in valetudinem ſervi faktis, quave poft fugam requirendi, reducendive ejus caufâ fa&ta effent ; nam cibario-
rum impenſą, naturali ſcilicet ratione, ad eum pertinent qui utendum accepiſtet. Digeſt. ubi fupra, $ 2.
Sold Mr. Earbeyrac's NOTES on $ 7.
(1) So the Digeſts define it, Depoſitum eſt, quod alicui cuſtodiendum datum eſt, si veſtimenta feruanda Baineatori data peri-
erunta fi quidem nullam mercedem fervandorum veſtimentorum accepit, depoſiti eum teneri, da dolum duntaxat preſtare debere puto, quod
fi accepit ex condu&to, Dig. l. 16. t. 3. Depofiti vel contra, Leg. 1. princ. & 88. See Mr. Daumat's Civil Laws in their Natural Ora
der, Part 1. l. 1. t. 7.2.16
(7) Vid. Grot. I. 2. C. 12. 1. 13, n. 1. (6) Vid. D. ubi fupra, l. 21, 22. (c) Vid. l. 5. f. 4. D. commodati.
d. Add. vbi fupra, l. 18. 1. 2. D. commodati. (+) Depoſitum.
be

Chap. IV.
253
Of Gainful Contracts in particular.
be kept gratis (a . And here the Truſtee is bound to a certain time, I may, nevertheleſs, if I pleaſe, change
preſerve it diligently, and to return it upon (2) De- my Mind, and demand it (5) fooner (f: A Paffage
mand (b). Yet ſometimes Circumſtances may ſo happen in Quintilian (g) ſeems counter to this. Some Charges,
as to excuſe him from inaking a Return even then. ſays
he, are depos’d to be returnd at Demand; ſome
A Charge (c), which you have received from a ſober at ſuch a time. How was this depoſed? To be paid you
Perſon, you ſhall not (3) return when he is drunk, or when you had left off being extravagant : But when
extravagant, or mad; for in ſuch a Condition he is not you demanded it, you had not parted with your Extra-
fit to make uſe of it. Nor all you return it to Deb- vagancies, and therefore it was not due; nor can be be
tors or Slaves, whoſe Creditors and Maſters lie in wait ſaid to have broke his Truſt for refuſing to reſtore it
for them ; for this would not be to return, but to be at a time when you yourſelf own he could not be forced
tray the Charge. Suppoſe a (a) Man (d), in his Sen- to it. To this I anſwer, If he that demanded it was
fes, leaves a Sword in your Keeping, and demands it the very Perſon that depoſed it, it ought not to be
when he is mad; in ſuch a Cafe, to reſtore it is a with-held; but if another had depos'd it, ſuppoſe him
Crime, and the Refuſal of it a Duty. What if you whoſe Heir the Demandant is, the Truſtee could
Should receive Money in Truſt for him, and then find not be obliged to reſtore it, before the Conditions re-
that he is taking up Arms againſt bis Country, Would quired were performed (h).
you return the Money? Certainly not ; becauſe it would As for the Degree, it is allow'd on all Hands, that
be againſt the Commonwealth, which ought to be pre- ordinary Diligence is ſufficient, for the Contract is
ferr d. To reſtore (e) a Charge, is in itſelf a com not for the Truſtees, but the Deponent's Advan-
mendable thing ; yet all Times and Places may not be tage, and it is his own Fault if he depoſes his Goods
proper for it. Sometimes the reſtoring it may be as in the Hands of a careleſs Perſon: And for this Rea-
bad as the diſowning it. The Owner's Advantage oughtfon the Truſtee does his Duty, if he takes the ſame
to be conſulted, and if the reſtoring it tends to his Pre. Care of the Charge, as he does of other Things, and
judice, it ought to be witheld. Ambr. Offic. l. 1. c.
Ambr. Offic. l. 1. c. applies the ſame Diligence about that as about his
ult. brings theſe Inſtances. ' If a Man who had en own Affairs (6), be it never ſo ſmall (i). But ſince;
• truſted Money to you joins with the Barbarians a- in a Charge, ſome Offices of Friendſhip do uſually in-
gainſt his Country, or, if any preſent be likely to tervene (for no Man depoſes but with a Friend, or one
o rob him of it; or, if he be mad, and cannot keep that he has a good Opinion of) I think, generally
o it, you ought not to reſtore it. Would it not be à ſpeaking, that Care is required in the Management of
. Breach of Duty to give a mad Man his Sword ? Or à Charge, which diligent, induſtrious Men uſually
. to reſtore any thing ſtolen, to the Prejudice of him take about their own Affairs. Nay ſometimes a more
that loſt it?
exact Care is neceſſary, not only when it is exprefly
But if I had agreed to call for the Charge at ſuch promiſed, but when the Condition of the Charge re-
6
(2) Præterea.& is apud quem Res aliqua deponitur, re obligatur (teneturque a&tione Depoſiti) quia & ipſe de eâ Re, quam accepit, re-
fituenda tenetur, Inſtit. l. 3. t. 15. Quibus modis re contrahitur obligatio
, 8 3. See alſo Digeſt. ubi fupra, Leg. 12. $ 3.
(3) Seneca's Words are, Depoſitum reddere res eſt per ſe expetenda, non tamen ſemper reddam, nec quolibet loco, nec quolibet tempore.
Aliquando nihil intereſt, utrum inficier, an palam reddam. Intuebor utilitatem ejus cui redditurus fum, & nociturum illi depoſitum ne-
gabo, 1. 4. c. 10. de Benef.
(4) Cicero's Words are, Neque femper depofita reddenda ; fi quis apud te gladium fanâ mente depofuerit, repetat infaniens, red-
dere peccatum fit, non reddere officium. Quid? fi is, qui apud re pecuniam depoſuerit, bellum inferat Patrix, reddáſne Depoſi-
“cum? Non credo ; facies enim contra Rem publicam, quæ debet effe cariffima.” Plato explaining, that Maxim of Simonides, That
Juſtice conſiſts in rendring to every Man his Due, ſays A Thing entruſted, is due to him of whom we hold it ; yer we ought
not to reſtore it to him, if he be nor in his Senſes; becauſe among Men, who are nor Enemies, this is not to render a Mau his
due, when it may tend to the Prejudice both of the Giver and Receiver. His Words are, Ti oñs x?? Equævinles, aérovle, og fãs
λέγειν τει δικαιοσώης ; "Οτι (ώσ' οί) το τα οφειλόμμα εκάσω αποδιδόναι δίκαιον όξιν. δήλον και ότι και τέτο λέγει, όπερ
άρτιέλέγομεν, το, τον παρακαλαθεμένε τι οτιϊν, μη σωφρόνες απατενή ποδιδόναι, καίτοιγε οφειλόμενον πε τετο όξιν, ο παρα-
κατέθεο τοίς και φίλοις οίε οφείλεις του φίλες αγαθόν μέν τι δPράν, κακόν 3 μηδέν. Μανθάνω ώ δ' εγώ, ότι και τα οφει-
λόμδυα Σποδίδωσιν, ός αν το χρύσιον αποθεώ παρακάλαθεμδύω, εάνπερ ή απόδοσις, και η λήψις βλαβερά γενή), φίλοι ώσιν, ο, το
Simon.cp6 dvwv zý o Sredidos
. Dé Republ. l. 1. t. 2. This remarkable Authority may be added to what Mr. in his Probabil.
Juris has alledg’d, l. 3. c. 2.
(3) The Words of the Digeſts are, Si depoſuero apud te, ut post mortem tuam reddas, do tecum do cum hærede tuo, poljum depoſiti
agere
, posſum enim mutare voluntatem, & ante mortem tuum depoſitum repetere. But this hinders not, but that we may refuſe to re-
turn to our Truſt, unleſs he who put it into our Hands order'd it to be given to ſome third Perſon, after a certain Term of Time.
As for Example, If any one command us to deliver ſuch and ſuch a thing to his Heir after his Death, unleſs he be debauch’d. And
thus we may allow what Quintilian hach faid here. For as for the Perſon who hath entruſted us, we cann's lawfully refuſe to deliver it ac
SHOW
(6) The Words of the Digeſt are,
c. Sed is, Capud quem rem aliquam deponimus] etianıfı negligenter rem cuftodicam amiſeric
< Lecurus eft ; quia enim non fua gratia accipit, fed ejus à quo accipit, in eo folo tenetur, fi quid dolo
perierit. Negligentiæ vero
e nomine ideo non tenetur, quia qui negligenti amico rem cuftodiendam committit
, de fe queri debet, magnam tamen negligentiam
placuit in doli
crimine cadere, 2. 44. t. 9. De obligat. Akion. Leg. I. $5. Quod Nerva diceret, latiorem culpam dolum
effe
, Pro-
culo diſplicebat, mihi veriffimum videtur ; nam etfi quis
non ad eum modum, que mhominum natura deſiderat, diligens eft, nifi ta-
men ad ſuum modum curam in depoſito præſtar, fraude non carer ; nec enim falva fide minorem iis quam ſuis rebus diligentiam præ-
Habit," l. 16. t. 3. Depoſiti,&c. Leg. 32. Mr. Thomaſius, in his Diſcourſe De culp
. præst. in Contract. c. I. $ 42. obſerves very well,
That 'tis not without Reaſon that the Roman Lawyers, who require of a Proctor the greateſt Exactneſs, make not a Perſon en-
than a Thing entruſted of the perſon to whom it is entruſted ; for a Truſt is a kind of Proctorſhip, by which
a certain Perſon is ob-
liged to keep what he is entruſted
with. It is true, that in both theſe
Contracts we ought to take the greateſt Care and Exact-
neſs which
we are capable of, i.e. as I have explained it above, as much as we would have for our own intereſts,
about things we
moſt prize
. The Laws of Society and Neceſſity of Commerce engage us to it ; ſo that any Man who leaves his Goods in the
keeping of another may expect it. If the Truſtee will not do all he can for him that depends on him, he ought to refuſe the
* Truſt; bur fince he willingly accepts it, 'cis juſt that he ſhould take the Tame Care which he would readily do in his own Cafe.
Vid. lib. 16. t. 3. Depoſiti, &c. leg. 1. princ. f. 8.
(6) Vid. Inftit. l. 3. t. 15. & l. 12. f. 3. D. depoſiti, ubi fupr.
() Philo Jud. de plantatione Noach.
(d) Cicero Offic. l. 3. c. 25.
t. 3. l. 1. f.45, 46. D. depoſiti.
(e) Vid. Sen. de Benef. 1. 4. C. 10. (f) Vid. lib. 16.
t. 7, l. 1. f. 5. D. de obligat. & a&t.
(8) Declam. 245. . (h) Add. Val. Max. l. 7. C. 3. 1. 5. inter externa. (i) Vid. lib. 44.
+ Nn
quires
his Requeſt.
23

254
Of Gainful Contra&ts in particular.
BOOK V.
may
quires it, as if it be very valuable, or if one's whole of it. But, in the former, no body deſires that I
Fortune depends upon it (a). Which Carefulneſs
Which Carefulneſs ſhould be obliged to fit up, and watch by iny Charge
does not conliſt in having it Day and Night before our Night and Day, it being enough it I lay it up in a
Eyes, but that we lay it up in the ſafeſt Place we can, convenient Place, and never view it, unleſs when fome
and where it is likely to receive leaft Damage. And particular Occaſion requires, as I uſe to do with ſuch
therefore although I fatisfy the Laws of Friendſhip, Things of my own (9). To the Law in Exod. 22. 12. W
if I take the ſame Care of my Friend's Goods as I do it be ſtolen from him, he hall make reſtitution unto the
of my own, nor can any one, in Modeſty deſire more; Owner thereof
. Grotius adds this Gloſs,
Provided it
yet it is fit, when I cannot ſave both, that I neglect my be by palpable Negligence, which does not much differ
own, if of little worth, to preſerve my Friends that from Knavery (10).
is more valuable; for Inſtance, in a Fire, I ought to It may bear a Queſtion, Whether the Truftee
preſerve a Cheſt of Gold and other precious Things, make uſe of the Thing entruſted with him? To which
or full of Deeds and Writings of Moment, rather I anſwer, That if the Charge can poflibly receive a
than ſome of my own poor Houſhold-ſtuff. But then ny Damage in the Uſe, he ought nor to do it without
the Deponent will be obliged to pay ine the Value of the Owner's Conſent. Scavola in Gellius, l. 7. c.
1.
thoſe things which I ſuffered to periſh for the Pre • He that uſes a Thing that was fimply committed to
fervation of his, as well as other Expences and Loſſes his keeping, or puts it to other Uſes than the Own-
received upon the Account of the Charge. But if a er gave him leave, is guilty of Theft (11). But if
Man ſhould prefer the Preſervation of his own mean the Thing be never the worſe for being usd, as if I
Goods to the more valuable Charge of his Friend (if ſhould lay a Silver Cup for Ornament on the Side
it has not been covenanted to the contrary) he can be board, or make fome ufe of it for the Entertainment
thought only to have(8). violated the Lawsof Friendſhip of ſome extraordinary Gueſt, I don't fee any Harm in
and Good-nature and cannot be forced to make good the this, provided the Owner is not particularly concern-
Value of the Thing; for he is no Gainer by it, and the ed that no Body Mould ſee it, and the Truflee knows
Intermiſſion of Acts of Friendthip and good Nature does that he is to ſtand to whatever Riſque it may run by
not oblige to the Reſtitution of what Loſſes may happen being ſo usºd. But when the Owner has lock'd or
thereupon. But the Reaſon why the Roman Lawyers ſeald up the Charge, we ought not, upon any Account
,
require a leſs Degree of Diligence in a Charge than to open it (b). Nay, a conſumable Commodity given
in a Commiſſion, is, becauſe the latter is managed by in Charge, altho' neither lock'd nor ſeald up, inay
our own peculiar Ad, and which therefore we have in not be made ufe of by the Truſtee (12), unleſs he be
our own Power to direct in every little Circumſtance able to reſtore the fane in Quantity and Quality upon
De.
(8) Thomaſius, in his Diſcourſe aforementioned, $ 44. does not think this Determination good; for he ſays, "We do not offend
againit the Laws of Humanity, unleſs there be no Engagement. And ſince, according to our Author, when one ſuffers the Loſs
of his own Goods to ſave a Thing of greater Value, with which he is entruſted, he may make him pay for his Lofs ; We muft owin,
that in Strictneſs he is obliged to ſave a Thing committed to his Truſt at the Expence of another of leſs Value, which belongs to
him, as he is alſo obliged to be at all neceſſary Expences to preſerve his Truft. As for me, I believe that this laſt Caſe, and Tome
others, are out of the Extent of our Engagement to General Contracts. The interfering of our own Intereſt with that of a Perſon
whoſe Buſineſs we have voluntarily taken in hand, or Goods to keep, begers a tacit Exception, which may nor take place; bue
then it muſt be judged of by other Principles, I am not indiſpenſably obliged to neglect my own Affairs, tho' leſs conſiderable in
themſelves, to attend another Man's, that I have undertaken ; at leaſt, I am not expreſly engaged to ſuch a Preference, or the Na-
ture of the Thing itſelf doth not require it neceſſarily. Nor are we any more obliged in Rigour to ſave what is committed to our
Charge, to the Damage of a Thing of leſs Value that belongs to us; for beſides that, whatever Diſproportion there may be, if we
conſider the Things in themſelves, what is of leſs Value, may be of greater Worth to the Truſtee than the other is to him that has
entruſted it to him. He may have ſometimes a very great Occaſion for the Thing he muſt ſacrifice, or he may fer a great Eſteem on
it for ſome particular Reafon, or the Loſs cann't eaſily be made good. As therefore we do not commonly engage to do all we
can for the Security of our Truſt, inafmuch as at the ſame time we do not think of the Preſervation of our own Goods, we are
not, properly ſpeaking, in Rigour obliged to ſuffer the Loſs of any Thing that belongs to us for this Reaſon only, because it is of
leſs Value than that which we have in our keeping. To this we may add, that in the Trouble into which we fall by an unforefeen
Accident, we have not ſo much Preſence of Mind, for the moſt part, as to conſider what Things are beft worth ſaving, or if we
Thall have time enough to ſave this or that. We generally run to that which comes firſt into our Mind; and as it is natural to think
of our own more than of another's Goods, no Man can think it an Injury, if we prefer the Preſervation of our own Goods, tho
of leſs Value, before that of another's. It is alſo very often hard to know whether we can preſerve our Truſt, tho' we neglect our
own Goods. I conclude, All muſt be left to the Conſcience and Friendſhip of the Truſtee.
(9) Buc ſays Mr. Thomaſius, ubi fupra, 9 43. As there are divers ſorts of Affairs which require a different Care, and more
or lefs
Application on the part of the Proctors ; ſo there are divers forts of Truſts, which muſt be differently kept, and with more or leſs
Watchfulneſs. One fort of Care we muſt have of an Houſe, another of a Slave or Domeſtick Servant, another of a Jewel, or
Some other precious Thing, another of ſuch things as are not portable; and therefore we are ſatisfy'd to place them in a Court,
'or fome ſuch Place, c. fo that 'cis not true to ſpeak generally and without Reſtriétion. 'Tis luifficient to put a Thing in a con-
venient Place; and when that's done, we cann's any more conclude that a Truſtee is only anſwerable for his Knavery and gross
Negligence, than we may infer, for the fame Reafon, that the Seller, before the Delivery of his Goods, is alſo reſponſible for his
Knavery, and the fame Degree of Negligence, and nothing elſe.'
(10) Mr. Le Clerc fully thews, by the Connexion of the Diſcourſe, that it is underſtood that the Theft was committed either in
the Sight, or with the Knowledge of the Truſtee.
(1) The Words are, Sive is apud quem res depoſita est eâ re utatur - - - furtum committit.
(12) Mr. Sary's Deciſion upon a caſe which he propounds in his Treatiſe of Friendship, appears a little too ſevere, not to ſay
ſour. I am not afraid to ſay (theſe are his Words) that he, to whom a Thouſand Livres are entruſted, may not make ufe al
them to fave the Life of his Friend, who is fallen into the Hands of Thieves, who threaten to take it away, if that Sum be nor
paid by a certain time. This is a Cafe , in which we ought to forget thae we have any Truſt
, becauſe in having fach
a Sum entruſted
to us, 'tis as if we had none : For it is not lawful for us either to open or force the 'Cheſt where it is. And if
we dare to do it, we commit no lefs Crime than if we broke open our Neighbour's Houſe, and took that Sum; the only
Diffe
rence is
, that the Law puniſhing this laſt with Death, and taking no Notice
of the other,
leaves our Punifhment to Infamy
tho', in the main, 'tis the ſame thing. The Sum entrufted, is in the Hands of the perſon truſted, nor as in his Houſe, but in his
Houſe to whom it belongs ; and ſo when the Truſtee makes uſe of it, he ſteals it no leſs than if it were not entrufted to him,
(a) Add. Ambr. Off. I. 2. C. 2 go:
(b) Add. lib. 16. t. 3.10 1. f.36. D. deposit.
C
¢

CHAP. IV.
255
Of Gainful Contracts in particular.
fooner for being deliver's ſecretly and without that all the Expences laid out upon the Charge ought
Demand : For we are often in fo great want of ſuch fort tenuate the Crime, that the Truſtee, having the Charge
of things that we cannot part with them on any Terins. put into his Hands, has an Opportunity of playing
Laftly, tis well ordained in the Roman Law, that whő- the Knave (which is otherwiſe tempting enough) laid
ſoever ſhould diſown a Charge, which the Deponent, in his Way, whereas the Thief has no ſuch Tempta-
in Diſtreſs, had repoſed with him, as being in danger tion, but of his own Accord ſeizes upon other Mens
of Fire, Shipwreck, Tumult
, or ſuch like, ſhould be Goods, and, which is more, breaks in upon that com-
find double ; for ſuch inhuman Villariy deſerves to be mon Security which makes every Man's Houſe his
ſeverely (13) puniſhed, which does not ſcruple to make ſafeſt San&uary. Nor is a Guardian guilty of a leſs
a Gain of thoſe Men who ate the Obje£ts of Com- heinous Crime, who debauches an Orphan committed
paffion. Vid. l. 1. f. 1, 2,4. D. depoſiti, d. 1. Quintilian, to his Truſt, and received into his Houſe (b)amol bna
Decl. 245. adds, ' A Charge ought to be reſtored the Since the Keeping only is given gratis, it is plain
• : ,
Nay, I think it a worſe Crime to diſown or with-clared in the Digeſts (6), That if a Charge be receiv-
hold a Charge, than to commit a Robbery : for here ed at Afia, to be reſtor'd ar Rome, it muſt be at the
only Juſtice and Property are violated, but there Friend- Expence of the Owner, not of the Truſtee odore Vok
ſhip and Good-nature too ſuffer (a). Nor does it ex-91 103
ent
" he took it out of the Houſe of the crue Proprietor.' Pag. 125, &c. This Author, does not diſtinguiſh whether he be able or noe
to pay
the Sum entruſted to him, which he made uſe of to ſave the Life of his. Friend all that he ſays tends only to prove, thar,
fone; that he made uſe of what he had in keeping. But this is one of the Cafes of Neceſſicy, which are above the common Rules;
and whoſe Exception is included in all Engagements. Whatever a Man can do for himſelf, that he can certainly do in the like Cir-
cumſtances for his Friend, who is his ſecond ſelf and we ough to have
ſuch a good opinion of him who cruſts us, as to believe
that he would lend us his Money for that Uſe freely,
and ſo he may be thought tacitly to conſent to it.
I proceed farther, and
Say, That ſuppoſing the Sum depofired be inconſiderable, in reſpect of the Eſtate of him to whom it belongs, I cann't ſee buc
that it may be made uſe of to ſave the Life of a Man and a Friend; tho' we do not think him rich enough to pay ſo great # Sum
under a long time, if ever. If it be allowable
, as I have prov'd above, l. 2.c. 6. not only to take the Goods of another, but alſo to
run the Hazard of one's Life to preſerve his, is it not much more excuſable to take the Liberty of diſpoſing of a Thing truſted
a of
a of
of the Op-
portunity that Providence has given him, where he máy preſume upon the conſent of him who has committed that money to his
keeping. It is much like, as if a Man, being purſu'd býr í his Enemies or Thieves, takes the finit Horſe he lights of co make his
Eſcape, tho' the Maſter is neither preſent. nor knows it.
uo agi
(13) The Words of the Digeſts are; Prætor ait, quod neque tumultus, neque incendii, neque ruine, neque naufragii causa depoſitum fit,
in ſimplum, ex earum autem rerum, que ſupra comprehens& ſunt in ipſum in duplum cum extante neceffitate deponat, creſcit per-
fidie crimen.
to zuignon
(a) In Piſidia the Breach of this Duty was Capital, Nicolaus Damafcenus. (6) Add. Arift. Prob. Sect. 29. Qua 2 & 6. Allo l. 1
Jo 2. do 67. princ. D. de furtis. (c) Lib. 16. 1. 3. 1. 12. princ. D. depofiti,
ivos
ni blogit odala bun
boni
oldalona
let the Reaſon be never
who robs to ſave his Friend; for this laſt commits there is a great deal of Difference between chis Action and that of a Man
us,
in
201 2111
e contra.
on beri Donito
bisa Tortoto: Lubbe
CH A P. VITO A quin
Of Chargeable Contracts in particular; and, Firſt, of Bartering,
Buying and Selling. kontroly
I. of Exchanging or Bartering.
V. What the Buyer ought to perform to the Seller, and
II When a Contrat of Buying and Selling is compleat.
III. Of the Loſs or Gain of a Thing fold.
VI. Of Baying in Hope and Expeâation.
IV. Of ilgreements commonly join'd with Sales. VII. Of Monopolies.
O
F Chargeable Contra&ts, Bartering is deſervedly modities may be immediately compara together.
eſteem'd the Chief; for in Days of Yore (1), The firſt fort is, in a manner, Buying and Selling, for
before Money was found out, there was no other here the things are rated according to their Prices on
Method of maintaining Commerce
. The Dutch made both Sides ; which fort of Bartering is, at this Day
modsties
, Vid. Tacit. de Morib. Germ. c. 5. ()
. Now And therefore there is no Reaſon to conclude that
Bartering may be made two ways; either the Com- pure Bartering was in uſe at the time of the Trojan
modities may be valued for Money, and then, inſtead War
, as moſt do from that Paſſage in Homer, Ilíad.
of Money, exchanged for one anothet ; or the Com- ». v. 472.



Mr. Barbeyrac's NOTES on Cháp. 5. 5 1. A
(1) See about this Diſpute Mr. Gravina, Profeſſor of Law at Rome, his Origines Juris ciuilis, l. 2. p. 248, 6C.
(a) See Grot. B. 2. C. 12. 1. 3. 1. 3.
NA 2
"Ey hey
256
Of Chargeable Contracts in particular ; and
BOOK V.

Limon
at
20.
MS
of the ti
two 19
by
, ,
is mention made memnon
hoonmedes's
t he did it, becauſe, in Sell, but to exchange for
the Price of other Things pandry, it was uſual to
,
art gets reafon of their Beauty, received great Prefents from
"Ey Sev dz civilovio noen roucaules ?Ayduci, i oni u their Gallants, were calld washévas cinpecięcias, Vir
"Aldot men xarxa, "addorio di Savi ordaigas, vaid ss gins who gain Oxen: But granting that Coind Money
"ANNO O pivoīs, änaar de aurbios Brequiv, V W aid was not then known among the Grecians, yet the Ule
"Axlot of dvd@getród'eausd 1000 m to sud toit of Gold and Silver, by weight, might poſſibly have
stop web pogut realid prom i da bo boos obtain'd in Commerce. Indeed, that many Nations
The Grecian Chiefs their cheerful Bowls prepare, con ufed Money before the Trojan War, is plain enough
And barter Braſs and Steel for ſumptuous Fare2 pisi from Holy Writ. esob bitiw baritinu
Some truck with Slaves or Skins of flaughter'd Kine, This Place of Homer puts me in mind
of the Con-
And ſome the Ox itſelf exchange for Wine. I co troverſy between Caffius and Sabinus (c) Vherber, be-
2110'83 Vis i !o guiage ait sonia
fore Money was in ufe, or now, ſince the Use of it
, it
Fora Soys Pliny (a), I wiſh we could quite layzaſide the might be call d Selling, if y. g. I should give my Cloak
Uſe of Gold, which all good Men Speak againſt, and for a Coat? Sabinus allerted that it was, from this
Pat:
which was found out to the Deſtruction of Mankind. ſage of Homer, as if the Grecian Army had bought
How much happier was it when one thing was exchang'd Wine with Braſs, Iron, and Men ; but oiviziate does
for another ? As (if Homer may be believed) cores dones not properly ſignifie to buy Wine, but to procure it by
at the time of the Trojan War : For then, I ſuppoſe, any means whatſoever, as among the Latines, pabula-
Commerce was ſet on Foot for the Conveniencies of ri, lignari, frumentari, ſignify to forrage, to get Wood
Life. He tells us, That Some purchas’d with Hides, and Corn by any Method whatſoever (). The other
fome with Iron, others with Plender : The bea bimſelf Opinion indeed feems more feaſible, becauſe it is olie
was an Admirer of Gold, yet be fo rated Things, as thing to buy, another to ſel; the Buyer one Man, the
to make Glaucus-exchange bis Golden Arms of a bun. Seller another; the Price one thing, and the Commodi-
dred Oxen Price for Diomedes's of nine. Hence it is ty another ; but for theníame Man to be Buyer and
Cattle,
2.
Jawab
is more for to
forts of Bartering; for if
Booty for other Commodities ; for their Booty. does we ſuppoſe the Things to be firſt rated by Money, the
not always conſiſt of Money, and they do not fcruple Buying will be reciprocal, and therefore not abſurd for
to take other Things that come in their way. And the ſame Perſon, in a different refpe&t, to be both Buy-
therefore it does not follow that Money was" not in er and Seller.
Uſe at the Time of the Trojan War, becauſe the Sol Under the Name of Bartering may be brought the
diers purchas'd Wine with their Plunder : Nay, there reciprocal Donations which commonly paſs between
d'exa öxsuocło rónavla, Ten Talents of Gold, & O- changing of Arms between Glaucus and Diomedes (d),
dyſ. 0. v. 393. Each of the Phæacian Princes gives U- which, for the Inequality, may perhaps be ftild Foo-
lylles, xsvooro Tádavlov TleńEVIQ, A Talent of vene- lifhneſs on Glaucus's fide, but cannot be calld Inju-
rable Gold. And altho' that Gold in Odyd. v. v. 11. is ftice in Diomedes. Maximus Tyr. Diſſert. 23. ſays,
call’d, zsúcos worudaídan@, yet it is not probable, · Glaucus rated his Purchaſe from the Occaſion, not
that all Gold was then wrought, or us'd only for Cups. according to the real Value.' And again, Differt. 24.
and fuch fort of Veffets. Nor does it appear why Ho-Nor had he that receivd the Golden Arms more
mer ſhould give ſuch a Veneration to Gold, if it had not than his Due, nor he that received the Brazen, leſs;
been then the Standard-Price of other Things. Beſides, but both did generouſly; the Inequality of the Mat-
Wol.uolaidan @ may fignify any Materials capable of ter being made up with the Equality of the Deſign
being finely wrought upon. As for Homer's calling that each had of obliging the other. Add. Iſocr. ad
Glaucus's Golden Arms fixatójbola, or worth an bun- Nicocl. in princ.. Among the Ruſſians there is a Mar-
or ket for holy which they do not pretend to
Oxen,
old time, the greateſt Riches confifted in Cattle of bl
. But fince Money has been introduc'd, the Con-
which Oxen being the chief, becauſe of the abſolute tra&t of Buying and Selling has been moft'in Uſe (1),
, e
common way quivalent to it, is acquir’d for a certain Sum of Mo-
of ſpeaking did not immediately grow out of uſe
,
out of uſe
, ney: And here the firſt Enquiry is, when the contratt
And therefore it is obſerv'd (b), that Maidens, who by Seller relinquiſh the Thing, and the Buyer take Pof-
"
1ennego Tuqato im od part 2
70(*) of this Opinion the Digeſts ſpeak thus, Sed veriar eſt Nervi @ Pracuti sententia, permutationem non emptionem hoc eße. Nam
ut aliud eft vendere, aliud emere, alius emptor, alius venditor ; fic aliud eft pretium, aliud merx, quod in permutatione diſcrni non poteft,
uter emptor, uter venditor fit, abi fupra,
(2). Max. Tyrius's Greek is, our'S te dobiv] Xpuods onéov, šte tus cng at derelice & geaards kra77o», dix ad dugóteegis van my
&x=ı
ineteede er tal avíow tans 1oosesio tñ quarum nobene. See Mr. Davis's Notes on it. We may alſo add here, That by
the Roman Lawan Exchange is a Contract without a Name, for which there lies no Action in Juſtice but the Delivery of the Thing
exchanged is made on both sides. I $ce Digeft. I. 19. t. 4. De rerum permutatione, and Mr. Daumat's Civil Laws in their Natural or-
der; Part 1. l. I. to 3ogde'i osti moit
Mr. Barbeyrac's NOTES on $ 2.
(1) The Words of the Digeft are, Et si quidem pecuniam dem, ut rem accipiam, emptio & venditio eft. So we may
an Inheritance..a Debt, in a Word, all ſorts of Rights, Names, and Actions. See Digest. de hæreditate, vel aftione vendita, l. 18. C. 4.
(a) L. 33. C. I.
(b) As Dydimus remarks, ad Hom. II. v. 236. (c) Vid. Lib. 18. t. t. I. t. D. de contrah. empf.
(d) Vid. Hom. II. d. l. ()
Olearius icin. Perf, I. 1. c. i.
of
3
Brafs ones,
ones, évved@ora, or
bom
we may ſell a Service,
.
CARRY
Selon
CHAP. V.
Firſt, of Bartering, Buying and Selling
257

3
Laſtly,
, quos, , , o
feffion of it? According to the Roman Laws (2) the the Knowledge of the Thing is always neceſſary for
Contraét is compleated as ſoon as both Sides have a- the determining of the Price; and it is imprudent to
greed upon the Price ; and then the Buyer can force buy without ſeeing it, where we cannot depend upon
the Seller to deliver up the Thing ; and the Seller can the Word of the Seller.
oblige the Buyer to take it, and to pay down the Price The determining of the Commodity by Weight,
immediately, or at the Time appointed (a). Meaſure, or Number (e), is not properly a Condition
But the Contract may be incompleat, and not ca of Sale, unleſs the Thing be fo, as not to ſerve my
pable of bearing an Action, either upon a general or Turn, but in ſuch a Quantity. However, for putting
particular Account
. The Firſt is, when the Buyer the Contra& in Execution, it is neceſſary to meaſure,
and the Seller (b) (3) are not agreed, but ſtill endea- number, or weigh (6), for we cannot otherwiſe ſpe-
vour to bring one another to their own Terms , where cify the Thing, and let it apart from thoſe of the
they are both free to give back and break off the (7) fame fort. Nor, without this Meaſuring, can the
Bargain, having not yet contracted an Obligation, pro-
pro- Goods be deliverd, or Property transferr’d; for I
vided there be no Deceit nor Deſign in either Party to have no other way of determining what belongs to
illude the other, which indeed obtains in all Con- me, and what to the seller. Sometimes indeed". we
tracts. The Latter is, when the Bargain turns upon buy at a Lump; and then Meaſuring is only for Ex-
fome Conditions (c) (4) either expreſt or underſtood; periment, not for the rating of the Commodity for
as if the Ware is firſt to be feen or tafted (d) (5), for in that Cafe, the Meaſure does not preceed the 'De-
hére the Bargain goes upon a Suppoſition that the livery; it being one thing to ſell this Velfel of Wine
Thing will not only appear as the Seller had repre- that holds ten Gallons, and another to ſell ten Gallons
fented it, but that it will then pleaſe too. For indeed out of this Velfel (8).
soul to sala
WYSOV vibob
) ilai
Wanaoto)
(2). Altho' the Buyer pays nothing down, nor gives Jany Earneſt, Eft autem emptio Juris Gentium, & ideo conſenſu peragitur, &
inter abfentes contrahi poteft, & per nuntium do per literas, Digeſt. de contrahendá Emptione, Leg. 1. $ 2.2 Emptio con venditio con-
trahitur ſimulatque de pretio convenerit, quamuis nondum pretium numeratum fit, ac ne> arrha quidem data fuerit, Inſtit. 1. 3. f. 24.
() As when they have not agreed upon the Frice, but only have ſaid, we ſhall well agree, rui fell it at a reaſonable Price, &c.
It is the ſame, according to the Roman Lawyers, when we ſay, I'll ſell it for what you pleaſe, for what you think reaſonable, &c.
Illud conſtat imperfe&tum eſse negotiuan, cum emere volenti, fic venditor dicit, QUAN TI velis
, quanti aquum putaveris, quanti aftimave-
vis, habebis emptum. Digeft. ibid. Leg. 35. § 1. Some ask, Whether a ſimple Contract to ſell or buy, obliges to any thing by the
Law of Nature and Nations? Mr. Thomaſius, in his Diſcourſe De Arrhis emptionum, 5.23. denies
it abſolutely, and the Realon, ſays
he is clear, There is only a looſe Conſent which is come to no Determination, and which gives no Right to him
to whom the
· Promiſe is made to demand any thing : For how can he pretend that he hath bought or ſold any thing actually? But if one has
no Mind to ſell, 'tis eaſy to evade his Promiſe by exacting an enormous Priceby
no Mind to buy, he can as eaſily get off by very ſmall Offers, or by engaging him to very hard Terms. Or how
can à Mai pretend to be endamaged, ſince there is neither any Goods ſet out, non Price
but to declare that he is ready to conclude the Bargain,
d he hath nothing to do
Bargain, if he refolves to mogo Ponce formed and he
and to take away.. all
Ground of Complaint, he may-alledge that he has broken his Word, and ſo lay all the Blame on him that the
compleated ?' But if we will judge of the Thing by the ſole Right of Nature and Nations, I do not think that
that any Man can come
fully into the Sentiments of Mr. Thomafius. I diſtinguiſh here between an uncertain Promiſe, which neither ſignifies, or engages any
Man, and a real Promiſe, upon which the Perſon, to whom it' is made, may depend : The firſt ſort may be eluded after the man-
ner that this able Lawyer hach repreſented, becauſe we have promised to fár
only as we pleaſe to keep it, and ſo he, to whom the
Promiſe is made, has no Right; but the other ought certainly to be ordered fo, as not co come to Nothing, and the Promiſer can't
elude it ar his own Pleaſure. Let us clear this by an Example ; I fee a Thing uſeful to me in another's Poffeffion, and ask him whe-
ther he'll ſell it me? He anſwers, Yea. Whereupon I go away without bargaining, or requiring him to lay it aſide for me. In this
Cafe 'tis plain, that if the owner of the Goods fells them to another, and refuſes to fell them to me afterward, when I come a-
gain to deſire ir, he does me no Injury, for he is under no Engagement to me, no otherwiſe than that we might have agreed, if I
had at that inſtant bargained; but ſince I neglected it, it is ſo much the worſe for me. And this hath chiefly a Place, when he that
declared his Price at that inſtant, is a Trader by Profeſſion, and deals in Things of that Nature, for we know well, that it we do
not take ſuch Men at their word, when they offer to ſell a Thing at ſuch a Price, we do nothing; by a much greater Reaſon they
are free to ſell
, or not, when nothing is faid. But ſuppoſe that I lay to a Tradeſman by Profeffion, May I depend upon it that you'll
ſell me ſuch or ſuch a Thing? And he thereupon poſitively promiſes me that he'll keep it for me, then he tacitly engages that he'll
fell it me at a reaſonable Rate, if I deal with him for a Thing whoſe Price often varies, or aš the uſual Price, if there be any
for it ; provided that I come ſoon to buy it, or in the time agreed on ; for if I let the Time paſs, or, if it were not fet, I ſtay a long
time before I come again, the other Contractor is releaſed of his Word, by reaſon of the Occaſions which he may loſe of ſelling his
Goods to Advantage, for before this he was nor free to recant, becauſe I might fail of accommodating myſelf elſewhere.
(4) The Words of the Digeſt are, Conditionales autem venditiones tunc perficiuntur, cùm impleta fuerit conditio. But this is not ap-
propriated to a Bargain and Sale only. All ſorts of Agreements follow the fame Rule, See what is ſaid above, Lib. 3. c.4. Quod
Şub conditione res venierit, ſay the Roman Lawyers, ſi quidem defecerit Conditio, nulla eft Emptio, ficuti nec eſt Stipulatio. Digeit.
1. 18. t. 6. De Periculo & commodo Rei venditæ. Leg. 8.
(5) Guſtus enim ad hoc proficit ut improbare liceat, Digeſt. lib. 18. tit. De contrah. empt. Leg. 34. $. 5. Difficile autem eft ut quiſ-
quam fic emat, ut ne deguſtet. Ibid. tit. 4. De periculo & commodo rei venditæ, Leg. 4. $ 1.
(6) As for Example: If I buy ſome Cloth for a Suit, and the Piece holds not out fo many Ells as it ought,
(7) Si id, quod venierit, appareat, quid, quale, quantum fit, & pretium, co purd' venit, perfe&ta eſt emptio. Digeſt. De periculo &
commodo Rei venditæ, Leg. 8. princip. In his quæ pondere, numero, menſuráve conſtant, ſi omne vinum, vel oleum, vel frumen-
tum, vel argent um quantumcunque effet, uno pretio venierit, idem juris eft, quod in ceteris rebus. Quod ſi vinum ita venierit, ut in fingulas
amphoras; item vleum ut in fingulas metret as ; item frumentum ut in fingulos modios, item argentum ut in fingulas libras certum pretium
diceretur, - - .-& de his que numero conſtant, si pro numero corporum pretium fit ftatutum. Sabinus & Caſſius tunc perfici emptionem
exiſtimant, cum adnumerata, admenſa, adpenſáve ſint ; quia venditio ſub hac conditione videtur fieri, nt in Singulos metretas, & modios,
o , 5
(8) This is not appropriated to Sales, buc to all ſorts of Agreements. Contra&tus venditionum, vel permutationum, vel Donationum,
quod intimari (non] eſt neceſſarium, dationis etiam Arrharum, vel alterius cujufcunque caufæ, [quas tamen] in ſcriptis fieri placuit, trans-
aftionum etiam, quas in inſtrumento recipi convenit, non aliter vires habere Sancimus, nifi inſtrumenta in mundum recepta, ſubſcriptioni-
buſque partium confirmata, o ji per tabellionem confcribantur, etiam ab ipso completa, & poftremo à partibus abſolut a fint, Cod. lib. 4.
(a) Add. lib. 19. t. 5. D. de preſcript. verbis, &c. Leg. s. ſ. I. Sine pretio nulla venditio est. Lib. 18. 1.1. & 1.19. 1. 34. f. 5, 6.
1.35. 1. 1, 5,6,7. D. de contrah. empt. &c. (6) Vid. D. ibid. Leg35. f. I. (c) Vid. D. ibid. Leg. 7. 1... See above in B.
3. Ch. 8. (d) Vid. D. ubi ſupra. Leg 34. 1. 5. (e) Vid. D. ubi fupra.
i
on him that the Bargain is not
Rule
tir. 21
258
Of Chargeable Contracts in particular ; and
Boon V.

ben
of the Contract confi.!
Seller. It is indeed moſt natural commodity by the gence ought not to turn to the Loſs of the Seller. Be.
may be demanded to whom the Damage,
8. Mr. Van Eck, a .
Laſtly, the Bargain is incompleat, if the Parties (a), to the Buyer; (3) altho? it be not yet deliv er’d, and
particularly
, agree to have one anothers Conſent ex altho" the Seller remains Maſter of it. By Riſques
preſt in Writing, and the Writings be not yet finiſh’d. they mean the Accidents țis liable to, from external
But 'tis another thing, if this Writing is defign’d on Injuries, as Theft, c. or internal Decay proceeding
ly for a Help of the (9) Memory, or an Evidence of from natural Cauſes (6) (4). But how can the Da
the Thing. What the Hebrews obſervd, in relation mage belong to the Buyer, when he is not yet the
to this Contra&t, is curiouſly taken notice of by Sel-. Owner, whereas the Loſs of a Thing is to the Owner
den, De F. N. & G. ſecund. Heb. 1. 6. c. 1899.4. Add To which fone anſwer (5)(C), that that Trite ſaying
,
a Place of Theoph. in Stobeus, Serm: 42. ali
The Lofs is to the owner, is true, when the Owner is
III. And here we muſt take ſpecial Care to diſtin- oppos’d to thoſe who have barely the Uſe and Cuſto
guiſh between the Contralt it felt, and the Execution dy of the Thing ; and not to thole who have Right in
of it. The Contrat is compleated as ſoon as the it, and a Power to call for it as their own. Which
Commodity and Price is agreed upon, provided there Diſtinction is founded upon this Reafon
, that the Buy
no Condition added, that can fuſpend the Obliga- er might, and ought to have immediately taken Pof
tion, or any thing elſe, that can leave room for either ſeſſion of the Commodity, and to have paid down the
;
, as ſoon as the ſides, the Riſque belongs to the Buyer, not only be-
Contra& is compleated, it ſhould be put in Executi- cauſe he is the owner, but becauſe the Seller, after the
on ; or that as ſoon as the Price is agreed upon, the Completion of the Bargain, in reſpect of the Buyer
,
Buyer ſhould deliver the Money, and receive the Com- is not conſider'd as Owner, but as Truſtee of ſuch a
modity. Which they call Trucking with Ready Mo particular Commodity, for which, if it be loſt with-
ney (1). Vid. Plaut. Afin. A&. I. SC. 3. V. 47: As alſo out his Fault, he ought not to be reſponſible.
Plato de Leg. l. 11. in his Commonwealth enacts, (6) But after all, ſince it is the Seller's Buſineſs to
• That whatſoever is bought and fold, be done in ſuch give the Buyer Poffeffion, if he has not diſcharged this
a certain Place of the Forum, the Seller delivering Duty, I do not ſee why be, rather than the other, ſhould
'the Commodity, and the Buyer paying down the not ſtand to the Loſs of it. For the Anſwer, That e
Price immediately
Perfon, having promis'd any certain Thing, does not
But when there is ſome time between the Completi- ſtand oblig'd in caſe the Thing be lojt, does not come up
on of the Bargain and the Delivery of the Thing; it to our Caſe (d): For there the other Party was to
fit of the Commodity belongs in the mean time, to and unjuſt for a Man that had promiſed a certain
the Buyer, or to the Seller? (2) 'Tis well known Species, upon the Loſs of it, to be bound to make good
that the Roman Law, as ſoon as ever the Bargain is the Value. But in ſuch Dealings, as admit of no La-
compleated, imputes the Riſque of the Cominodity titude, the Caſe is altered; for why ſhould the Buyer
tit. 21. De fide inſtrumentorum, &c. Leg. 18. See Inſtitut. l. 3. t. 24. De Emptione & Venditione princ. We ought to obſerve that in this
S, altho' the Author pretends only to relate the Determinations of the Civil Law, he ſo mixes his own Notions with theirs, which he
endeavours to rectify and reduce to the Simplicity of the Law of Nature, that 'cis not poſſible to diſincangle them in a Tranſlation.
(9) This is commonly preſumed till the contrary appear. Fiunt enim de his Cobligationibus que conſenſu contrahunt ur] ſcriptura, ut
quod a&tum eft per eas facilius probari poßit, do fine his autem valet, quod a&tum eſt, fi habeat probationem, ficut & nuptia ſunt
, licet
teſtatio fine Scriptis ſit habita. Digeft. lib. 22. tit. 4, de fide inſtrumentorum, &c.
Mr. Barbeyrac's NOTES on $ 3.
(1) This is what is called Græcâ fide mercari. See Plaut, GC. as in (f) p. 392.
(2) The Words ot the Law are, Quum autem emptio & venditio contra&ta fit, periculum rei vendit & ftatim ad emptorem per-
tinet, tametſi ea res tradita emptori non ſit. Itaque ſi homo mortuus ſit, vel aliquâ parte corporis lafus fit, aut ædes tota, aut aliqua ex
parte, incendio conſumptæ fuerint, aut fundus vi Aluminis totus, vel aliquâ ex parte ablatus ſit, ſive etiam inundatione aqua, vel arboribus
turbine deje&tis, longe minor, aut deterior eße cæperit, emptoris damnum eſt, cui necesse eſt, licet rem non's fuerit naltus, pretium folvere.
Quicquid enim ſine dolo & culpâ venditoris accidit, in eo venditor ſecurus eft. Inſtit. lib. 3. cit. 24. $ 3. The Negligence for which the
Seller is reſponſible, if there be no Cheat, is, what the Roman Lawyers call a ſmall Fault, which is oppos’d to the Care which a good
Maſter of a family commonly has of his own Affairs; for they require ſuch a Degree of Exactneſs in all Contracts as may be for
the Advantage of both Parties. Si nihil appareat conveniſſe, talis cuſtodia deſideranda eſt à venditore, qualis bonus Paterfamilias fuis
rebus adhibet, quam fi præftiterit, & tamen rem perdidit, ſecurus effe debet. Digeft. lib. 18. tit. 1. De contrah. empt. Leg. 35. $ 4.
Sed ubi utriuſque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in ſocietate, & dolus, & culpa præftatur. Lib. 23. tit. 6. Com-
modati vel contra, Leg. 5. § 2. As for me, I hold to what I have ſaid in the foreging Chapter; and, without having regard to that
Diſtinction about the Advantage, which accrues by a Contract, either to each of the Parties only, or to both together, I believe
that the Seller, and every other Perſon, who is engaged exprefly or tacitly to preſerve a Thing that belongs to another, in any wiſe
is reſponſible for whatever happens, if he has not done as much as he could or would for himſelf, and his own Intereſts, in chings
which he values moſt.
(3) Yea, when he has delivered it, provided he has not received the Payment, or given Credit, or taken ſome Pawn, or accept-
ed a Security, Sane qui nondum rem emptori tradidit, adbuc ipſe dominus eft, Inftitur. ib. See alſo Lib. 2. tit. 1. De diviſione rerum, S 41.
(4) Res domino perit, ſay the Lawyers ; a Maxim taken out of this Law of the Code, Lib. 1. tit. 24. De pignoratitiâ a&tione, Leg. 9.
Pignus in bonis debitoribus permanere, ideoque ipſi perire in dubium non venit.
(5) In Mr. Hertius's Edition theſe words are inſerted here. This hath not Place but in Contracts, wherein one of the Con-
tractors hath in his Hands the thing that belongs to another, and not in theſe, wherein one of the Contractors owes the other a
• certain thing in ſpecie. Or, as others expreſs it, the Loſs is the Owner's, when, doc.' The Engliſh Tranſlator has heal'd this Breach
by skipping it.
(6) We may add here what Cujacius, and ſome other Lawyers affirm, thar, according to the Roman Law, all Accidents, before
Delivery, muft fall upon the Seller. See Cujacius upon Leg. 33. of the Digests. Tit. locati condutti, in his Treatiſe ad Africanum, Lib
.
That the Learned cann't reconcile this Law with the common Opinion ; and as for himſelf
, he declares freely, that he may
ſay,
without any Injury to the Roman Lawyers Repucation, that they never were perfectly agreed about that Marcer.
(a) This not only reſpects Contrads of selling, buc likewise all other Compacts, vid. C. lib. 4. t. 21. De fide inſtrumentor. &c: Less
17. Vid, Inſtit. lib. 3. t. 24. De emptione o venditione princip. (6) Vid. d. tit. de peric do commod. rei vendita.
lib. 4. t. 24. De Pigneratitia a&tione, Leg. 9. (d) According to lib.45. t. 1. leg. 33. 1. 83. 8. 7. D. de verb.oblig. G lib. 35• *.
2.1.30. f. 4. D. ad L. Falcid. in fine, o lib. 4. t. 3. Leg.18. S. 5. D. dę dolo malo.
(c) Vid. č.
who

CHAP. V.
Firſt, of Bartering, Buying and Selling. 259
Tarties ;
Cattle, which at preſent are as fome diſtance, and the containd in it, and that every Subject conform him-
ch. He than
who has not yet had the Delivery made him accord. For there, by the Delivery we alienate our own, but
ing to the Contract
, be deprived of the Goods, and here the Alienation is made to us. What has been here
yer pay the Seller the Price of them (a)
faid of the Damage may be apply'd to the Gain
The beſt way to diſcover natural Equity, in this alfo (9) (d).
Point, is to diſtinguiſh whether the Delay, was ab IV. Moreover 'tis uſual for this Contract to be
folutely neceſſary, (7) for the Delivery of the Com- qualified with the Addition of ſeveral other Pacts, ac-
modity ; or only occafion’d through the Default of cording to the Pleaſure of the Contractors, or the
Buyer or the Seller?
concern'd no farther than that each Party ſtands to
The firſt Caſe may be put thus, fuppoſe I buy his Agreement, provided nothing abſurd, or unjuſt is
Seller'in driving them to me, happens to have them ſelf to the Law of his Country, as he expects to have
intercepted by Robbers
, Wolves, or ſome other Acci- his Contract Valid in it. Thus nothing is more com-
dent : in this caſe no doubt the Loſs is the Seller's. mon than to agree upon Payment of the Money ſome-
Where the Delay has not been neceflary, but oc time after the Delivery of the Thing; and alſo, that the
cafion'd by the Seller, (8) then too the Loſs lies at Thing hall not be deliver'd till ſuch a time; the Proper-
his door.
ty, in the mean time, together with the Gain or Hazard
But if the Buyer be the Occaſion of it
, then he attending it, lying in the Seller (1) (e).
ſtands to the Loſs of it. For the very Moment, that Beſides
, We frequently practiſe what the Civilians
the Coinmodity was due, and the Seller ready to make call (2) Addictio in diem, which gives the
Seller Leave
Delivery of it, the Property paſt to the Buyer, and the to accept of any better Bargain, that ſhall offer it
Thing then began to belong to him only (6). And ſelf by ſuch a day. This may be done (3) two ways.
therefore, if the Seller out of Kindnefs keeps in Cu- Firſt, When the Bargain is compleated, but upon
Con-
ftody the Goods, which the Buyer did not ſo much dition that it ſhall be null, if better Terms offer them-
as coinmit to him in Truſt, 'tis unreaſonable to ex- felves. Or Secondly, if it be only agreed de futuro,
pect, that he ſhould ſtand to the Caſualties that may that it ſhall be a Bargain, if better Offers are not made
attend them. But in Caſe the Buyer had committed f). In the former caſe, the Property paffes over to
them to his Cuſtoày, then muſt they be look'd upon the Buyer ; in the latter, it remains in the Seller, till
as a Charge, and conſequently the Receiver muſt be the Completion of the Contrazt.
free from whatever Caſualities may happen to them. What they call (4) Lex Commiſioria makes (5) void
In which Caſe, the Delivery of the Commodity ought the Bargain, if the Price be not paid by ſuch a Day.
to be made by a Fi&tion brevis manus (c), otherwiſe And in this Cafe, either the Seller may immediately
than is done in the Loan, or Letting of a Thing. deliver the Goods, and in Default of the Payment,
(7) The Roman Lawyers fay alfo, That in this laſt Cafe the Seller is bound to Damages and Gains, i. e. he ought to indemnify
the Buyer from the Loſs he has had, or the Profit he has miſs’d of by his Delay. si res vendita non tradatur, in id quod intereſt
,
agitur ; hoc eft, quod rem habove intereſt emptoris;, cum per venditorem fteterit, quo minus rem tradat, omnis utilitas emptoris in a-
ſtimationem venit ; que modo circa ipſam rem confiftit. Neque enim fi potuit ex vino (puta) negotiari de lucrum facere, id eſtimandum est
non magis quam ſi triticum emerit, &c. Dig. lib.19.
(8) In this Cafe the Lawyers affirm, . That if one buy Wine, upon Condition that he'll come, and, being meaſured, will draw
ic at a certain Time; the Seller, after the Term, may pour out the Wine, to make uſe of the Hogſheads, having given Notice to
the Buyer firſt. Licet autem venditori vel effundere vinum, fi diem ad metiendum preſtituit, nec intra diem admenſum eſt, effundere au-
tem non ftatim poterit, priuſquam teſtando denunciet emptori, ut aut tollat vinum, aut ſciat futurum, ut vinum effunderetür. Digeft
. lib. 18.
tit. 6. De periculo aut commodo rei vendicæ, Leg. 1. $ 3. It is true, that the Seller is more to be commended, if he utes nor his
Right, but fells the Wine as well as he can, or buys other Veſſels for his Uſe, to favour the Buyer. Si tamen cum poffit effundere,
non effundit, laudandus eſt potius commodius est autem conduci vaſa nec reddi vinum, niſi quanti conduxerit, ab emptore reddatur,
aut vendere vinum bonâ fide, i. e, quantum fine ipſius incommodo fieri poteſt, operam dare ut quam minimo detrimento fit ea Res emptori.
But it is doubtleſs a Precept of Right, oppofite to the Rules and Laws properly ſo called, of which Mr. Noodt treats in his Fulius
Paulus, c. 10 &11. The Permiffion is evidently unjuſt, and yet is not leſs full and entire in the foregoing Words; and it is noced
with Reafon, that Grotius did amiſs in placing this Example in the Number of Things good and innocent, altho' it be commendable
to abſtain from it. Interdum enim licere dicitur, id quod re&tè ex omni parte, piumq; eft, etiamfi aliud quid fieri pofſit laudabilius, Lib. 3.
ch. 4. § 2. num. I. See 7. Samuel. Strykij Tra&. de Jure Liciti Sed non Honeſti, Ch. 2. $ 97, &c.
be ſold, and a Flood adds ſomething to it, 'tis the Purchaſer's Gain. Sed do si poſt emptionem fundo aliquid per illuvionem accefferit, ad
emptoris commodum pertinet : Nam & commodum ejus eße debet, cujus periculum eſt. Inft. Lib. 3. tit. 10, 24. De empt. & vend. 5 3.
Mr. Barbeyrac's NOTES on 6 4.
(1) The Words are, Quod ſi fugerit homo, qui veniit aut ſurreptus fuerit, ita ut neque dolus ueque culpa venditoris intervenerit ;
madvertendum erit, an cuſtodiam ejus ufque ad traditionem venditor Suſceperit. Sanè enim fi Suſceperit, ad ipſius periculum is caſus pertinet :
fi non, ſecurus ejt. Inftit. ibid.
(2) This is what the Lawyers call, Addi&tio in diem, of which the Digiſts treat, Lib. 18. tit. 2. and thus define it, In diem addi&tio
ita fit : Ille fundus centum efto tibi emptus, niſi ſi quis intra Kalendas Janularias proximas meliorem conditionem fecerit quo res d Domino
abeat. Leg. 1. ibid.
(3) Nam fi quidem hoc aétum eſt, ut meliore allatà conditione, diſcedatur, erit pura emptio, que ſub conditione reſolvitur : fin autem
hoc a£tum eſt, ut perficiatur emptio, nifi melior conditio adferatur, erit emptio conditionalis. Ibid. Leg. 2.
(4) Lex Commiſſoria is created of Digest. Lib. 18. tit. 3. thus, « SI AD Diem Pecunia foluta non fit, ut Fundus inemptus
fit, ita accipitur, inemprus effe fundus, fi venditor eum inemptum, effe velit, quia id venditoris cauſa caveretur : nam fi aliter
acciperetur, exulta villa in poteftate emptoris futurum, ut danđo pecuniam inemptum facerer fundum, qui ejus periculo fuiſſet.
* Nam legem commifforiam, quæ in venditionibus adjicitur, fi voler, venditor exercebit : non etiam invicus. Sed fi fundus re-
* veniffet, Arifto exiſtimabat, venditori de his [fructibus] judicium in emptorem, dandum eſſe: quia nihil penes eum refidere opor-
"teret ex re, in quam fidem fefelliffet. Digeſt. ubi ſupra, Leg. 2, 3, 4.
(5) That is to tay, if the Seller think fit, for 'tis for his Sake, that this Clauſe is added; otherwiſe when a Thing fold wich a Com-
miffory-Clauſe happens to be loit, it renders the Sale null, ſo as not to pay for it, and to the Seller lofes both his Money and
Ziegler ad Grot. l. 2. c. 12. f. 15. (6) Vid. fupra, l. 4. c. 9. f. 5. (c) See above in B. 4. c. 9. f. 9.
(d) Commodum ejus esse debet, cujus efi periculum, Vid. Inſtit. 1. 3. t. 24. 1. 3. De empt. & vendit: (e) Vid. Inſtic. ibid. Vid. Caton.
re rufticâ, c. 80. (f) Vid. lib. 18. 5. 2. 1. 2. D.de in diem addit,
ani-
Goods.
de
claim
Воок у
pecu-
So the
260 Of Chargeable Contracts in particular ; and
claim them again with the Emolument (a): or elſe the fal, that is, if the Buyer be hereafter diſpos’d to part
Goods may be kept in Poffeſſion, till the Payment be with the Commodity, (10) he muſt let the Seller
actually made : which laſt ſeems to be the ſafeſt Way, have the firſt Refuſal at the ſame Rate he would fell
for generally this Clauſe is deſign’d in favour of the it to another. In many Places certain Perfons pretend
Seller, to (6) ſave him from being put to any_Trou- to this Privilege by Law; as the Landlord in (11) the
ble in queſt of his Money : whereas, the Trouble Sale of his Tenant's Stock, the Creditor in his (12)
would be the ſame, were he to recover his Goods out Debtor's Goods, the Neighbour (13) in the Purchaſe
of the Hands of an ill Paymaſter (b).
of a neighbouring Farm, (14) any Member in a
(7) Sometimes too either the Laws of the Land, Thing that belongs to the Society, and the next a Kin,
or the Parties themſelves grant one another the Li- in the (15) Goods of their Relations, which is
berty of breaking off the Bagian (t), which is done fe- liarly call’d Retractus Gentilitius, or the Family Pria
veral ways ; for ſometimes a Clauſe is (8) added, vilege (16).
that
upon Tender of the Price at any time, or by ſuch Uſual too it is, at the ſelling of Land, to except
a certain Day, the Buyer ſhall be obliged to reſtore one Spot, and the Uſe of it; as Prodigals
, when they
the Goods to the Seller, or his Heirs (c). And this fell their Eſtates, do ſometimes reſerve a Title to as
certain Day may be expreſs’d with a different Deſign, much as may ſerve for their Grave, to which many
either to ſignify the Term, after which the Seller think Virgil alludes, Ecl. 3. V, 104, 105.
may have power to break off the Bargain : or the
Term, to which, and not longer, ſuch a Liberty ſhall Dic quibus in terris, & eris mihi magnius Apollo,
be granted. Where 'tis obſervable, that as this Power Tres pateat Cæli ſpatium non amplius ulnas.
of redeeming is deſign'd in Favour of the Seller, who
ſometimes upon urgent Occaſions, is forc'd to part Tell where the Round of Heaven,which all contains,
To three ſhort Ells on Earth our Sight reſtrains.
Tell that, and riſe Apollo for thy Pains.
the Buyer ; for it is to his Advantage, if he be not
forc'd to quit the Poſſeſſion
of his Purchaſe in ſome Thus Menius, when he ſold his Houſe to the Cenſors
ſhort time, to be at length ſure of the Perpetuity, of for a Baſilicon, reſerved the Right of one Pillar to
it (9). Soinetimes too, when the Sale is made in Fa- build upon, that from thence he and his Pofterity
vour of the Seller, the Buyer is allow'd the Liberty might ſee the Gladiators that uſed to fight in the
to bring back the Commodity whenever he pleaſes, Forum (e)
or at ſuch a certain time, and the Seller is obligd to What the Divine Law preſcribes about Redemp-
refund the Money (d). The Emperor Marcus, in tion, may be read in, Lev. XXV. 13, &c. (f).
want of Money, having ſold all his Imperial Furni- The (17) Reaſon of which Injun&tions was taken
ture, afterwards gave leave to the Purchaſers
, for any from the particular Conſtitution of that Common-
" of them, to bring back their Purchaſe, and receive wealth founded by Moſes; for his Deſign was
their Money.' Ful. Capitol.
that an equal Degree of Liberty ſhould flouriſh
Another more eaſy fort of Redemption, is what they amongſt them ; to which End, it was neceſſary
call fus wegtiuñows, or, the Privilege of the firſt Refu- to hinder any from engroſſing to themſelves ſo much

CC
(6) Or rather we run no Hazard here, whereas the other way there is great Hazard.
(7) Retraétus, ſeu pa&tum de Retrovendendo, as the Lawyers ſpeak, and our Author ſays, Retra&tus comes of the Word retrahere,
which according to the Roman Lawyers fignifies, to reſume, what has been alienated. See the Digeſts, lib. 50. tit. 8. De adminiſtrat.
rer. ad Civit. pertinentium. Leg. 9. § 1. The Cuſtom of Redeeming a Thing ſold, allowed by the Law, is called a Legal Retracting,
but that which is done by the Agreement of Parties is a Conventional Retracting. Some think this has a near Relation to a Bargain
of Pawn. See Mr. Thomaſiul's Diſcourſe, Intituled, De'uſa pra&tico accuratæ diftin&tionis inter emptionem cum paéto de retrovendendo,
Contra&tum Pignoratitium. Printed at Hall. in 1707.
(8) So the Code ſpeaks,“ Si fundum paréntes tui eà lege vendiderunt ; ut five ipfi, five hæredes eorum Emprori pretium quando-
"cunque, vel intra certa tempora obtuliffent, reſtitueretur ; teque pararo ſatisfacere conditioni di&tæ, hæres emptoris non paret,
sur contractus fides ſervetur, actio præſcripris verbis, vel ex vendito tibi dabitur.” Cod. lib. 4. tit. 54. De pa&tis inter empt. & ven-
ditorem compoſitis. Leg. 2.
(9) The Words of the Digeſt are, Si convenit, ut res que venit, fi intra certum tempus diſplicuiſſet, redderetur, ex empto a&tio eſt, doc.
Digeſt. lib. 18. tit. 5. De reſcindenda vendit. cc. Leg. 6. tit. De contrah. empt. Leg. 3. lib. 21. tit. 1. De Ædilitio edi&to, &c.
Leg: 31. $ 22.
(10) The Laws is, “ Qui fundum vendidit, ut eum certâ mercede conductum ipfe habeat ; vel fi vendar, non alii fed fibi diſtra-
hat, vel fimile aliquid paciſcatur : ad complendum id, quod pepigerunt, ex vendito agere poterit.” Digeſt. lib. 18.tit. 1. De contrah.
Empt. Leg. 35.
(11) So the Code has it, Et fi quidem hoc dominus dare maluerit, do tantam præſtare quantitatem, quant am ipſe revera emphyteuta ab
alio recipere poteſt, ipſum dominum omnimodo hæc comparare. Cod. lib. 4. tit. 66. De jure emphyt. Leg. 3.
(12) In this laſt Caſe, the Creditor, to whom much is due, muſt be preferred according to the Roman Law, Cum bona veniunt debi-
toris, in comparationem extranei, & ejus qui creditor cognatujve ſit, potior habetur creditor cognatuſve : magis tamen creditor, quam cogna.
tus; & inter creditores potior is, cui major pecunia debetur. Digeft. lib. 42. De rebus Auctoricate Judic. poſted, &c.
Leg. 16.
(13) See the Greek Novel of Romanus called Lecapene, which is abridged by Cujacius, Feud. lib. s. tit. 15. By a Law of the Code
the Inhabitants of a principal City could not ſell their Poſſeſſions to any, but one of the ſame City, Lib. 11. tit. 55. Non licere habi-
tatoribus Metrocomia, loca ſua ad extraneum transferre.
(14) As for Example thoſe that are Legatees in common. See Cod. lib. 8. tit. 54. De Donationibus, Leg. 34. 5 2. Feudor.
Lib. 5. tit. 14. &c.
9010
(15) See the Law quoted above Note 12. of this S. and Digest. lib. 4. tit. 3. De Minoribus, &c. Leg. 35. Go lib. 11. tit. 1. De come
trabend. Emptione. Leg. 62. Princ.
(16) Here the Quotation out of the Law of Moſes, and what our Author fays upon it ought to be placed.
(17) For, lays our Author lower in a Parentheſis, I do not approve the Reaſon alledged by Grotius upon v. 29. that it is more eafia
to find a Dwelling and Subſiſtance. But Grotius explains here only how one might fell the Fee fimple of an Houſe in the City, and
not a Country Houſe.
(a) Vid. lib. 18. t. 3. leg. 5. D.de lege Commiſſor. (6) Vid. I. 2, 3. D. d. c.
(1) Retra&tus. (c) Vid. C. lib. 4. t. 54. de
paétis inter empt. Oo vendit. compoſitis, leg. 2. (d) Vid. Liv. l. 31. C.13.
(e) Vnde Menianorum nomen ejuſmodi proje&tis adhæ-
file creditur. Aſcon. Ped, in Divin. Cicer. C, 16. p.328. Ed. Græv. (f) Upon which place fee Mr. Le Clerc.
cit. 5.
Land,

Chap261
V.
.
Firſt of Bartering, Buying and Selling. U
ſhip and (18) Tyranny might be introduc'd. The pointed, and to give the Reed for at the time ap:
Land, as might make others diveſted of their Patri- the Contract, and the additional Paets. The Buyer
mony, dependent on them ; for fo by degrees
, Lord is obligd to pay
the Price :
Receiver a good Title to it,
ſame End did (*) Lycurgus propoſe to himſelf, I mean, (1) to pay him with his own ,
and not ano-
when he divided the Territories of Sparta into ther Man's Money (a). And if he pays another Man's
39000 Parts : which he diſtributed among the Peo- Money, and it happens to be challengd by the
ple by Lot; and forbad them to encreaſe, diminiſh, Owner, he is obligd to pay it over again, and as
fubdivide, or fell. Among the Lacedemonians, it was much more as the Receiver lofès, by having it thus
held unlawful and diſhonourable to fell Land that had challengd. As for the Seller, he is obligd (2)
been a long time in the Family, Heracl. de Pol. to deliver the Goods bargain’d for with ſuch Quali-
Beſides, there is another coinmon way of Selling, ties as the common Nature of Contraås, or (3) the
which they call per averfionem, where Things of dit- particular Agreement requires, and that too at
ferent Value are not rated ſeparately, but fold to the time appointed (b). And if
, between the Comple-
gether.
tion of the Bargain, and the Delivery of the Goods,
Laſtly, Things are ſometimes fo fold, as to return the Seller ſhould repent, and be deſirous to retuțn the
again to the Seller after a certain Term of Years, Money
Money with Amends, (4) the Buyer nevertheleſs is not
without his being oblig'd to refund the Price. obligʻd to accept it;
but ť may force him to ſtand to his
in England Gentlemen fell their Ground for 30, or 35 Bargain, unleſs in point of Good-nature he be other-
Years, upon Condition that the Buyer ſhall build upon wiſe perſwaded, but if, through the Default and
it after luch a particular manner ; which fort of Con- Knavery of the Seller, the Delivery cannot be made,
tract is ſomething like that of Renting.
the Money together (5) with Damages is to be reſtored.
V. As for any other Obligations between the Buyer What the Law is, when the Seller is not in the Fault,
and the Seller, they eaſily appear from the Nature of we have ſaid above.
Thus
mehr
(18) Our Author here relates a Sale in Groſs, and briefly, per averfionem, as the Lawyers ſpeak; but, beſides that he ſpeaks
Yomething of it in the beginning of $ 6, we may ſee, that 'cis not fitly placed here, where he treats, nct of the divers Sorts of Sales,
but only of the Terms and Conditions added to a Bargain and Sale, whether by Whole-ſale, or Re-tail. Wherefore I have been bold
to leave out this ſhort period, equally ſuperfluous, and fit to confound our Underſtandings. 0
Mr. Barbeyrac's NOTES on S 5:
(1) Emptor autem nummos venditoris facere cogitur. Digeft. lib. 19. tit. 1'. De actionibus empti, & venditi, Leg. 11. § ž. See Cod.
lib. 4. tit. 49. Leg. 7. For want of Payment at the time, the Buyer ought ro pay the Incerest of his Money, Ex vendito a&tio venditori
competit ad ea conſequenda, que ei ab emptore preſtari oportet. Veniunt autem in hoc judicium infra ſcripta : In primis pretium, quanti
res venit: item uſur & pretii poſt diem traditionis : Nam cum re emptor fruatur, æquiffimum eſt eum uſuras pretii pendere. Dig. Lib.
13
$ 19, 20.
(2) The Interpreters of the Roman Law do not agree here; for ſome think the ſame Thing ought to be delivered, if it be in our
Power ; but others affirm, that if we do not put it into the Hands of the Buyer, yet the is diſcharged from paying Damages of
Intereſt. See Vinnius upon the Inſtitutes, lib. 3. tit. 24. princ. where he recites and confures, at the ſame time, the Reaſons of
the laſt
. Mr. Van Eck nevertheleſs takes their Part, but obſerves, at the ſame time, in his Principia Juris Civilis, under the Title
De Aétionibus Empti do Venditi, s 9. That this Cafe ought not to give añy great Trouble to the Judges or Lawyers, becauſe
the Damages and Intereſts may furpaſs the Value of the Thing itſelf, and in ſo doing it becomes very hard to keep what is fold
up to the Price it was ſold for. Mr. Thomaſius ſays, " That he fell into this Miſtake by miſunderſtanding fome Laws, where 'tis
* ſaid, that the Seller, for want of delivering his Goods, ought to bear the Loſs and Intereſt: Theſe Laws ſuppoſe that the
Thing ſold either cann't be deliver’d, becauſe it is periſhed, or is grown worſe by the Seller's Fault
, or that it ought not to be dee
livered, becauſe the Buyer has no Occaſion for it; as when froviſions are not brought in at the Time agreed on, and ſo the Buyer
has no way, but to be contented with reaſonable Damages. Whereupon ſome imagine, tho' improperly, thać a Seller has his
Choice, either to deliver the Goods, or pay Damages and coſts. See the Diſcourſe, De Pretio affe&tionts, &c. c. 2.9 8. However
this be, this Choice is directly contrary to the Natural Intention of a Bargain and Sale, and very hurtful to Commerce.
(3) The Law is, “ Ex empto, actione is, qui emit, uritur ; & in primis fciendum eft, in hoc judicio id demum deduci, quod pra-
« fari convenit. Cum enim fit bonæ fidei judicium, nihil magis bonæ fidei convenit, quam id præſtari, quod inter contrahentes
~ actum eſt: Quod fi nihil convenit, cunc ea præftabuncur, quæ naturaliter inſune hujus judicii poreſtate. Et imprimis ipfam rem
præſtare venditorem oportet, id eft, tradere: Quæ res, fi quidem dominus fuit venditor, facit & emptorem dominum. Si non
" fuit, tantuni evi&tionis nomine venditorem obligat, fi modo pretium eſt numeratum, aut co nomine ſatisfaciunt.” Digest. Lib.
19. tit. I. $ 12.
1101 in the totales
(4) On the other side, the Buyer cann’t, unleſs the Seller conſent to it, avoid taking the Thing fold, and pay for it. This
Conſent is ſo neceſſary by the Roman Law, that unleſs he will pay double, or can obtain a Reſcripc from the Emperor, the other
Contractor cann’t be obliged, againſt his Will, to forſake his Bargain, and neither the Treaſury, nor Soldiers have any Privilege here.
De contratu Venditionis & Emptionis jure perfe&to, aiterutro irvito, nullo recedi tempore bona fides patitur ; nec sex Refcripto noftro, quo
jure fifcum noſtrum uti, Sæpe conſtitutum eſt, Quamvis enim duplum afferas pretium emptori, tamen invitus ad reſcindendam ven-
ditionem urgeri non debet. Cod. Libs 4. tit. 44. De reſcind. Vendit. Leg. 3 & 6. See Leg. 7, which is a Reſcripc directed to A. A. Mu-
rocolus, and other Soldiers. But as ſometimes Pledges muſt be given a Circumſtance which our Author ought not to forget) it is
good to know what Effect they produce. Mr. Thomafius hath publiſhed a Diſcourſe on this Subject in 1702, quoted once before,
and which is reduced to this in general. He ſays, That it belongs to the Seller alone to give Earneſt commonly, and they are at
the ſame Time a Proof that the Bargain is made, and a Security of execuciog che Engagements entred inco. As to the laſt, either
they oblige to the Penalty impoſed in caſe of a Delay, either in the Seller, who delivers not his Goods at the time, or in the Buyer
pays not at the Term fixed; infomuch that the one loſes his Earneſt, and the other pays
double, and yer is no leſs bound to ſtand
to his Bargain ; or they leave a Liberty to recant,
ſo that a Man is diſcharged from all Lofſes, and this is preſumed in a dubious
Caſe, or when the Parties are otherwiſe agreed. But if the Bargain be broke by Confent, he that has received the Earneſt is oblig-
ed to restore it : But if the Eagagements on both sides be performed, the Earneſt muſt be reſtored or deducted in the Paymenti
Mr. Thomafius looks upon ic as cercain, that Earneſt is never given, but when the Marker is ended, and the Bargain made, which he
hews us to agree wel with the Principles of the Roman Law, altho the Interpreters of ic ulually draw other Concluſions
from it
.
I ſhall content myſelf to recite what is ſaid in the Inſtitutes. Nam quod arrhæ nomine datur, argumentum eft emptionis o venditionis
contraéta Ita tamen impurè eis (emptori & venditori) recedere concedimus, nifi jam arrharum nomine aliquid fuerit datum. Hoci
enim ſubſequuto, five in ſcriptis, five fine fcriptis venditio celebrata eft, is qui recuſat adimplere contra&tum, fi quidem eſt emptor, perdit
quod dedit : Si vero venditor, duplum reftituere compellitur, licet ſuper arrhis nibil expreſſum fit. Lib. 3. cit. 24. princip.
(5) The Words of the Digests are, Nec videtur abesſe (do!us malus] li per eum fa&tum eft aut fiet, quo minus fundum emptor poſſideat.
Erit ergo ex empto a&tio, non ut venditor vacuam pofféffionem tradat ; cum multis modis accidere poterit, ne tradere poffit, red ut
dolus malus ejus aftimaretur. Dig. lib. 18.tit. 1. De contr. empt. Leg. 68.9.2.
(*) Pleat. in Vită. (a)Vid. D. lib.19.4.1.leg. i1.1.2.& C. lib. 49. leg. 7. & leg. 13. f.19. Dirbi ſup. (6) Vid. l. 11.fas,&c. D. de A&.empta
b)
foo
01531
who
(6) Bur

262 Of Chargeable Contracts in particular ; and
BOOK V
for
he
was a
But here
ty of Fifh,
at the
Right of Owner ; .
(6) But if a Man fells the fame thing to Two, of Sale altho' afterward the Thing happens to be a.
and
has as yet deliver’d it to neither, without doubt bove, or below the Price. The fame obtains at den
the firſt Bargain ought to take place; and much ra- &tions, and where Things of different Prices are ſold
ther, if the Thing has been already deliver'd to him altogether (2) at a Lump: for all ſuch fort of Bargains
But yer, in this cale, the knaviſh seller ought to make have ſomething (3) of Chance in them (e): Such as
Satisfaction to the laſt Purchaſer, for whatſoever was the Caft of a Net (f), bought of the Milesian
Loſs he is at by being thus diſappointed. But ſup- (8) Fiſher-men, which occafioned a famous Suit be-
poſing the Delivery to have been made to the laſt, he, tween the Fiſher-men and the Buyer of the Calt;
upon the Grounds of the Civil Law, will be preferr'd they having drawn out a golden Table in their Ner, the
to the other: For
receiv'd the Thing of the owner, Buyer claim'd it as his, for that he had bought what-
gainft hím: Not å real one, "for he was not yet
Ma- whereas
the Fiſher-men, on the other fide, contended
Iter of the Thing ; nor a perſonal
, for no Intercourſe that the Bargain had regard only to what Fiſh ſhould
had paſſed between them : Neither can the Seller have be caught. And indeed they ſeem to have been in the
any Pretence to revoke the Bargain (a) (b). Grotius right, for in explaining any
Contra&t
we ought to
(c) too, in this Cafe, prefers the Title of the laſt, Be-
Be- conſider the Intent of the Contra&tors; and here 'tis
cauſe by the Delivery of the Thing, the Buyer makes over evident, they had no Thoughts of Goid, but of Fifh
all bis Right, which is not done by promiſing to fell it. only : nor does it make for
for the Buyer
that
it
Grotius does not ſeem to be conſiſtent with Purchaſe of Chance;
that was only defign'd to
himſelf; indeed the Promiſe to fell is not ſelling, but extend to the Quantity
h, and not to any Thing
yet he had afferted, that the Property is made over elſe
, which by great Fortune might come to the Net.
very Moment of Contra&, although the Thing And therefore the Table ought to be look'd upon as a
be not delivered : and therefore after fuch a Sale, no Treaſure found by Chance. 159
Right can remain in the Seller, any further than what As for the Deciſion of the Oracle, which adjudged
tends to the Delivery of the Thing into the Hands to the wiſeft, that plainly favour'd of the (4) Crafty
of the Buyer; and confequently whatever Bargain the Covetoufriefs of the Prieſts
, who thereby bid fair for
Seller concludes afterwards, it is null and cannot ſtand the procuring ſuch a glorious Prey to themſelves:
in Prejudice of him, who before has got a Right to For what Mortal would arrogate to himſelf the Title
it. And this being granted, I queſtion whether the of the Wiſeft Man. According to that of Sophocl.
favourable Plea of Pofleflion, thus unjuſtly acquired, Antigone. 257. Edit. H. Steph. All Prieſts are greedy
can always hurt the Title of the firſt Purchaſer. of Gain. See Val. Max. I. 4. c. 1. f. 7. inter externa.
Moreover, fince a Man does not loſe his Right in a Mornac. ad. I. 12. D. de act. empt. &c.
Thing by being deprived of the Poffèffion of it, and VII. In this place fomething may be expe&ted to be
ſince a Man may honeſtly come by the Poſſeffion of ſaid concerning Monopolies, Whether any, or all of them
another's Goods ; if therefore, ſuch a Poffeffor ſells be againſt the Law of Nature, or no ? For 'tis an odious
a Thing to a third Perſon, he does not extinguiſh the Name, and the Laws of many States brand it grievouſly.
transfer to another But here we muſt exempt ſeveral Things from the invi-
a bertet Title than (7) he had himſelf. And there. dious Title of Monopolies, which indeed
are not fuch. For
fore, although the Deſign of the Buyer be to acquire ſure 'tis prohibited by no Law,nor can it come under the
a Property in the Thing, yet fince the Thing, which is Naine of a Monopoly, if only one Man, in any Town, has
thus fola, either ignorantly or deſignedly, is another got the way of making ſome fort of Manufa{ture, or
Man's, it is as much as can be expected, if the Seller if one Man on
only has got ſuch a ſort of Grain in his
(8) gives the Buyer free Poffeffion, and puts him in Ground, or if ſome certain Connodity be the Pro-
Power of ufing it, and bears him harmleſs, (9) if his duce only of one particular Country. Since there
Title be diſputed (d).
3102 e is no ſuch Produce of Alume in any other Country
,
VI. There is alſo a peculiar fort of Sale, where the • which yet is of great Ufe, it is not to be wondred
Purchaſe is no certain Thing, but Hope and Expe&ta-eh at, that the Lipareans have the Monoply of it, and
tion only, on whichi by Agreement of the Parties, a ſetting whát Prices they pleaſe upon it, make vaft
Price is laid. Nor is there (1) any Default in this fort ' Returns. Diod. Sic. I. 5. c. 10. p. 293. Ed. Rhodon.
Obne blot sa on About 01 rolmo
(6) So the Code tells us; Quotiens duobùs in folidum prædium diftrahitur jure : manifeſti juris eſt, eum cui priori traditum est, in deti-
nendo dominio esſe potiorem. Cod. lib. z. tit. 32. De rei vindicatione, Leg. 15. See Digeſt
. lib.' ou tit. 2. De publicana in rem alti-
one, Leg. 9. 9 4.
matalguns
(z) The Words of the Digeſts are, Traditio nihil amplius transferre debet, vel poteſt, ad eum qui accipit, quam est qpud eum qui
tradit. Si igitur quis dominium in fundo habuit, id tradendo transfert: Si non habuit, ad eum qui accipit nihil transfert. Digeft
. lib. 476
cit. I. De adquir. rerum Domin. Leg. 20.13 do woulici s bordado estam Donc voily go to w wond
(8)
. Sive tota res evincatur, five pars, habet regreffum emptor in venditorem. Digeft, lib. 31. tit.2. De evictionibus, doc. a.
(9) Quod ſine ullius damno pars, que putatur effe vendentis, per longam poffeffionem ad emptorem tranfit. Digeft. lib. 41. tit. 2. De ac-
quir. & amico. Poffeff. Leg. 43. princ. 1
Sabalo ni 5057
duch Mr. Barbeyrac's NOTE S on § 6. vumoint : bazitate 15 000
This one on
(1) Thoʻthere comes nothing of it : Aliquando tamen, & fine re venditio intelligitur
, veluti cum quafi alea emitur ; quod fit, cum
captus piſcium, vel avium, vel miffiliun emitur. Emptio enim contrahitur, etiamfi nihil inciderit : quia ſpei emptio eſt. Digeſt
. lib. 18.
De contrah. empt. Leg. 8. $ 1.2%
(2) Per averfionem, an Expreſfion of the Roman Law ? As for Example, in Law 62. 8 2. of the Title laſt mentioned, Res in aver-
fione empta, fi non dolo venditoris fa&tum fit, ad periculum emptoris pertinebit, etiamfi res adfignata non fit. See Cujas Obſerv.8.15.
3) veluti cum futurum jaftum retis à Piſcatore emimus, aut indaginem plagis pofitis à venatore
, au pantheram
ab awéwpe. Dig. lib.
19.tit. 1. De actionibus empti & venditi. Leg. 11. § 18. INTE
(4) The Greek is, Tò méYTIXOV S távoindequergevo. Soph. in Antigon. p. 257. Edit. F. Sreph. *silo
See Mr. Vandale, in his Treatiſe
De Oraculis, & de Idolo latina ſuperfiitione, or Mr. Fontenelles Hiſtory of Oracles.
de rei vindic. leg. 15. (c) Add. d. 1. f. 15.
23 Add Plaut. Pers
. A&t. 4. Sc. 4. @ Vid. 1:39. 6. 4. 1.9. princ
. D. de Publicans. But yet add plån. 1.8. Ep. 2.. See Sueton
.
in Auguft.c. 75:
(f) Concerning which lee lib. 18. t. 1. 1. 8. D. de contrah. empt. 1.11. f. 18.1. 12. D. de alt empt.
in Solon, p. 80. Edit
. Wech. Tays between the Fiſher-men of cos
, and a Milefian Stranger. Diog, Læert. lib. 1. f. 28. berween forme
young Men of lonia, and the Milefian Fiſher-men in Thaletes:
me
dais VAO
bucator on a
Polont 14 d
(8) Plut.

CHAP. V.
Firſt, of Bartering, Buying and Selling 263
Latew,
Apprentilhip at it, a
For Monopolies, as ſuch, imply that others too would ties of Life. Nor even then muſt the Merchants be
fell the ſame did not one Man ingrofs the whole allowed to enhance the Price of thoſe Things at their
Trade to himſelf
. And therefore, he who alone brings Pleaſure; for it is againſt Reaſon to give a few an
a Commodity from a Foreign Country, cannot be ſaid Opportunity of ſcraping up exorbitant Riches out
to fer up a Monopoly, provided he does not hinder of the Fortunes of the Relt, when the Publick gets
others from importing the ſame. Nor is it unlawful nothing by it.
for any Nation, that abounds in one particular Çom Laſtly, It ſeems unjuſt that Tradeſmen, of Farmers
modity, to bargain with another Nation to let them ſhould be forced to tell their Manufactures, or the
only have the Trade of it (1), for any one may fell Produce of their Ground to certain People only, who
his own when and to whom he pleaſes ; indeed when ' ſell the ſame to others by Retail ; for by this Means the
we happen to have a Superfluity of what another Riches of the State may come into the Hands
cannot be without, then the Law of Humanity re to the Detriment and Oppreſſion of the reſt.
quires, that we ſhould not make ſuch a Bargain to the I cannot but take notice, by the way, that
Prejudice of others. But if a Man, without contracting Grotius (a) brings the Example of Foſeph, when he was
with the Owners, ſhould of his own Head, aim at a Viceroy of Egypt, in Juſtification of Monopolies; tho
Monopoly by hindring ſome by Force, and others by that Example is not much to the Purpoſe : For neither
clandeſtine Contrivances from coming to the ſame did the King hinder others from buying up the Corn
Place, and by that means lay a Neceſſity upon all others in the Years of Plenty, nor any from ſelling, who had
to buy of him, it is plain that he offends againſt the too much: Neither had the Alexandrians in Strabo (6)
Law of Humanity, and impudently breaks in upon the the Monopoly of Indian and Ærhiopick Commodities
Liberty of the reſt.
from any Privilege, but from the Situation of the
As for Monopolies among private Citizens, it can- Place.
not be accounted illegal, or oppreſſive, that every one But a Monopoly, properly ſo call'd, as having the
is not allowed to ſet up what Trade he pleaſes, but Force of a Privilege, cannot be ſet on foot by pri-
thoſe only who have gain'd a right by the Charter of vate Men: For how can a private Man juſtify his
the Corporation ; thus in moſt Cities of Europe no hindring others from meddling with ſuch a ſort of
Man can open a Shop, or betake himſelf to any par- Commodity, when he has no Command over, nor can
ticular Trade, but he who has ſerved fome time anlawfully uſe Force againſt them; and therefore the
do not depend upon Rights and Privileges, but are ge-
Beſides
, the Magiſtrate may give one Man, or nerally carried on by clandeſtine Frauds and Combina-
one Company of Men the ſole Power of Importing tions : As if ſome few by a Trick ſhould debat others
certain Commodities from certain Places, excluſive of from Trading to thoſe Places from whence they have
all others. And there may be ſeveral good Reaſons their Commodities, or ſhould hinder thoſe that have
for the granting ſuch a Privilege. For it requires vaſt them from bringing them to Market : Or, if they ſhould
Charges to ſettle a Trade with a very remote Nation, enter into a Combination to buy up all ſuch fort of
and perhaps after great Expences it may not ſucceed Commodities, and then Itifle them, that fo the Scarci-
at all, and therefore the Authors of ſuch a Commerce ty may enhance the Price. Againſt whom may
ought, in reaſon, to have Security, that others may be apply'd that of Apollonius Tyaneus in Philoftr. 1. 1.
not intercept gratis what they have eſtabliſh'd at their
C. 12. in the Beginning (3). "The Earth is the Mother
great Riſque and Charge; and beſides ſuch privileg’d * of all, for the is Juſt; but you being Unjuſt have
Companies are better able to aſſiſt the Publick with i made her only a Mother to your ſelves. The Kna-
their Riches, upon any Emergencies, than private very of ſuch ought as much to be corrected, as thoſe
Perſons: By this means too a greater Trade may be who (c) enter into Compact to raiſe extravagantly the
carried on, and with better Credit: Nor is this Me- Prices of other Things, by agreeing privately to fell
thod liable to ſo many Tricks and Shifts, ſince the nothing under ſuch a Rate : Which
piece of Roguery
Gain comes into the common Bank to be di- Labourers and Workmen are ſometimes guilty of (d).
vided proportionably amongſt them all. But as for I cannot diſcommend the Sagacity of Thales, who
theſe Privileges, a prudent Government will not grant rented all the Olive-yards, having foreſeen by his Skill
'em, but where the Commodities are imported from in Aſtrology, that there would be great Plenty of 0-
remote Places, and with great Hazard ; and which do lives that Year (e) (f.
not ſo much concern the Neceſſaries as the Superflui-
in it.
Mr. Barbeyrac's NOTES on $7.
(1) See above, Lib. 3. c. 3. $ 6. & lib. 4. c. 5.9 10.
3) The Greek is, 'H yn wahlwy ustne, dexdece 8. sucs öt fokor Öves, heroinde atled quite móvor urréer. Philoſtrat. de vita
Apoll. Tyan, lib. 1. c. ag. in fin. Ed. Olear.
(a) L. 2. C. 12. f.16. (b) L. 17. p. 549. Ed. Gen. Caſaub. (c) vt in Velabro Olearii de quo vide Eraſm. adag.
(d) Add. Plin. l. 8. c. 37. de erinaceo, L. un. C. de Monopol. L. 6. D. de extraord. crim. and Cujacius Obf. 10. 19.
re) Arist. Polo
b. 1. c.7. (11.) Diog. Laert, l. 1. ſ. 26. (f) Vid Cicer. de Divinat. l. 1. C. 49.
of 0 0 2
CH A P.
264
Book V.
() it is left to
he was bound to at the Architect had computed it,
CH A P. VI.
Of Renting and Hiring
Hiring.ito
1. What Things Hiring hath Common with Buying. HI. The uncertain regularly to the Loſs of the Leſer
.
II. The certain Uſe of a Thing, if it be intercepted, IV. Whether the ſame Work may be Let to many
tends to the Lofs of the Lelor.
together.
R
Enting and Hiring (*), whereby the Uſe of a greeing upon the Price, is ſuppos’d to oblige himſelf
Thing, or Labour is granted for a certain Rate to the common Price of it; ſo in this Contract
(1), bears fome Affinity to Buying and Selling, and may if Terms are not agreed upon, (4)
be brought under almoſt the ſame Rules (a). For the the Equity of the Perſon Renting or Hiring, who is
Rent or Wages anſwers the Price; and the Uſe of the nevertheleiš obligd to give as much as is uſually gi-
Thing or the Labour anſwers the Property which is ven (d). That way of paying for a Work of Plea-
acquired by Buying ; and as the Contra&t of Buying fure, which Ariſtotle (e) mentions
, (+) is a perfed
and Selling is compleated when the Price is agreed Cavil
. A certain Perfon promis'da Muſician the bet-
upon, fo is this of Renting and Hiring, when the ter he play'd, the more he should be rewarded. The
Parties are agreed about the Rent and Wages (2) (b). next Day, when the Muſician claim'd his Promiſe, be
And as a Thing ſells the cheaper, when ſold in Favour reply'd that be bad repay'd Pleaſure with Pleaſure. (5)
of the Seller, and the dearer when in Favour of the But Ariſtotle was right in ſaying, He had as good re-
Buyer ; fo in Renting and Hiring, ifa Man is at a Loſs ceived nothing, ſince he did not receive that which he ex-
for a Tenant, or wants Work, he is contented with petted. Redtius fimilem cavillationem adhibuit Bochoris
ſmall Rent or Wages ; but if his Land or Work is apud Plutarchum Demetrio, pag.901. D. Quum qui-
ſought after, he may demand much greater. Laſtly, dam amaret Thonidem meretricem, popofcit illa ingen-
as in Buying and Selling 'tis generally the Seller's Bufi tem pecunia
fummam. Adoleſcens inde, cum in somnis
neſs to name the Price (c), and the Buyer ultimately ſibi viſus elet cum illa concumbere, liberatus eft libidi-
reſolves upon it; fo is it alſo in Renting and Hiring (3)
. ne
. Ob id mercedem ab illo inftitit Thonis judicio exi-
Whoſe Buſineſs is it to aſſign the Price? He who de gere. Cognita caufa juſſit Bocchoris illi quantum po-
"livers the Thing, or he that receives it ? He who de Aulaverat Thonis argenti in vas numeratum buc at-
• livers it ſeems to leave it to the other : As they ſay que illuc manu ja&are, ac meretricem umbra frui
.
Protagoras uſed to do, for whatever he taught, he Quanquam Sententiam hanc arguit Lamia iniquitatis.
· left it to the Scholar to ſet a Value upon whát Neque enim, inquit
, ademit meretrici umbra pecunia
"he learn'd, and was paid accordingly. Arift
. Nic. 1.9. cupiditatem, Somnium vero amore adoleſcentem expe-
C. 1. Tho' concerning this Cuſtom of Protagoras divit. In this Contra&t alſo if any Damage happens
he himſelf thus ſpeaks in Plato, in the Dialogue that to the Labourer, whilft he is about his Work (5), tis
bears his Name.
is this, when I have taught his own Loſs, and not the Hirer's (H). Among the Epheſi-
any one, if he pleaſes, he gives me as much
Money ans there was a remarkable Law concerning Architects,
as I demand ; if not I bring him into the Temple, that if the Charge in Building amounted to a fourth
'
But as be who buys any Commodity, without a ket (8).

My way
Mr. Barbeyrac's NOTES on Chap. 6. . 1.
(1) The Words are, Locatio & Conduétio proxima est emptioni & venditioni, iiſdemque juris regulis confiftit. Nam ut emptio & ven-
ditio ita contrabitur, de pretio convenerit, fic eo locatio de conductio ita contrahi intelligitur fi merces conftituta fit : "Et competit loca-
tori locati a£tio, conduttori verò condu&ti. Inſt. Lib. 3. tir. 25. Quæri folebat de locatione & condu&tione, ſi forte rem aliquam utendam
vet fruendam tibi aliquis dederit. Ibid. S 26 At cum do ut facias, fi tale fit fa&tum, quod locari ſolet, puta ut tabulam pingas, pecunia
data, locatio erit. Digeſt
, libe 19. tit. 5, De Fræſcriptis verbis, &c. Leg. s.$ 22 See more of this matter in Mr. Daumat's Civil
Laws in their Natural Order: Part. I. lib. 1. tit. 4.
(2) The Contract of Hiring may be renewed by a tacit Hiring anew, when the Time being expired, the Tenant continues to en-
joy the Thing Hired without any Oppoſition from the Leflor; for, in this caſe, both of them are ſuppoſed to enlarge the Contract
for the ſame time, and on the ſame Conditions. Qui impleto tempore condu&tionis remanfit in condu&tione, -reconduxiffe videbitur.
- ipſo anno, fed non in ſequentibus annis. Digeſt. lib. 19. tit. 2. Locari, &c.
(3) Plautus's Latin is, s. A. Indica, fac pretium. Po, Fua merx eſt, tua indicatio eft. And Ariſtotle's Greek is, 'O gS megi ukua
έoικεν επιτρέπειν εκείνων (τω πε5λάβούλι).
(4) Here, as in a Macter of Sale, every one may, make his Marker as advantagious, as poſſible, for himſelf, Quemadmodum in e-
mendo do vendendo naturaliter conceffumeft, quod pluris Tit minoris emere ; quod minoris ſit pluris vendere; & ita invicem se circumſcribere':
ita in locationibus & condu&tionibus juris eſt. Dig. lib. 19. tit. 2. Locat. & Cond. Leg. 22. $ 3.
(+) This was done by Dionyfiuis the Tyrant, to one chat plaved on the Flute to him, to whom he had promiſed a
(5) Ariſtotle's Greek is
, Quoney as a punt è giveats
, stars épis) west Tuz Zeyn.
(6) For Example, If a Smith, in working for us, break his Hammer or Anvil, we are not bound to pay for them. Nam etfi
Faber incudem aut malleum fregerit
, non imputaretur ei, qui locaverit opus. Digeft. lib. 14. tit. 2. De Lege Řhodia, &c. Leg. 2: 51
In like manner, if a Tranſport Ship, being Thattered by a fierce Tempeft, is forced to put in at ſome place to amend any Defect, the
Expence muſt fall on the owner of the veſſel, and not on the Paſſengers. Navis adversa tempeſtate depreſsa, i&tu fulminis deuftis are
mamentis & arbore, & antenna, Hipponem delata eſt, ibique tumultuariis armamentis ad præſens comparatis Oſtiam navigavit, & onus
integrum pertulit : Quæfitum eſt an hi, quorum onus fuit, Naut & pro damno conferre debeant? Respondit, Non debere: Hic enim fumptus
inftruenda magis navis, quam conſervandarum mercium gratiâ faétus eft. Ib. Leg. 6.
(*) Locatio & Conductio. (a) V. Inštit. ibid. do 1. 3. t.25. princ.
(b) V. Inſtit. ibid. do 1.19. t.2. D. locati. Which yet
how it may be tacitly prolong d. V. l. 13. f. 11. 1.14. D. h. t. (c) Plaut. Pers. Ad. 4. Sc. 4. v. 37. "'Tis your Ware, you ought
to ſer the Price.'
(d) See Mat. 20. 4, 7. (e) Nicom. I. 9. c. 1. Vid. & Plut. de auditione, p. 41. D.& de fortuna Alexandri, po
333, 334. (f) Vid. lib.14. t. 2. l. 2.1.2. 1. 2. loto 1.6. D. de lege Rhodia. (3) Vid. Vitruv. l. 10. præf.
d a great
Reward.
II. But

CHAP. VI.
265
Of Renting and Hiring.
Wlar
the Contract ceaſes alſo(a). And upon
fome anſwer in ſhort, that if the Thing it felf p
pends on him, and to that end, to be at all neceſſary Expences, or reimburſe the Tenant for them, the condu&to fundo, ſi con-
a
intercepts the Uſe of it, or renders it worſe, Ought ibe this, is founded the Law of Şelfoftris an Egyptian
Loſs to be the Landlords, or the Tenants ? To which King : That if the Violence of the River ſhould waſh
tilhes (1), the Loſs belongs tº the Landlord: but as portionably abated in his Rent (b). Again, we mult
for Bartenneſs and other Miſchances, which intercept diſtinguiſh between thoſe things, where the Landlord
only the Uſe of it, they are, unleſs provided againſt may and ought to aſſign (3) a certain and determined
by Covenant, generally at the Loſs of the Tenant: Uſe: And thoſe, whoſe Uſe, as to Quantity, is un-
And the Landlord may juſtly damand the full Rent certain and depends upon Chance, and which, upon
agreed upon, although perhaps the Tenant has not that Account, neither can, nor onght to be determi-
made ſo much of his Land as was expected. For, ned. To inſtance in the former fort ; I hire a Houſe
the Landlord gave the Tenant Power to make the to dwell in, which my Landlord is oblig'd to make
beſt of it; and the Hopes of the Produce when habitable, and therefore if the Violence of a Storm,
they made the Bargain, was really worth ſo much; or my Neighbour's Fire ſhould intercept the Uſe of
and therefore fince he made good his Part, ?tis but it (4), I may fairly with-hold in Proportion ſo much
fair that the other ſhould alſo make good his.
of the Rent. For the Rent was determined for the
But to canvas this Queſtion more nicely, 'tis Uſe, which the Houſe, in the Condition it was in at
manifeſt
, (2) when the Thing periſhes, without the making of the Bargain, was capable of afford-
the Tenant's Fault, he is not oblig'd to make it ing during the whole Time I had bired it for ; and
good, but from that time his Rent ceaſes. For the Uſe being leſtened, without any Fault of inine,
the Title to the whole Rent is founded upon the Rent ought to be leſſened alſo, unleſs it be im
Preſumption that the Thing be in Being, during mediately repaired without any conſiderable (5) In:
the Time included in the Contract , but if the Thing convenience, or Lofs to me (f). And ſo, if a Tenant,
Mr. Barbeyrac's NOTES on 2
(1) This is the Opinion of Grotius, lib. 2. c. 12.9 18. where, to take notice by the Bye, Gronovius has expreſs’d his Words very
badly. Sicut Res domino perit ; for he makes that great Man láy, That if a Thing be bought, and once delivered, and it be lost,
it muſt be accounted to him who is actually the owner of it, and not his whoſe it was a ſtrange thing! as if any Man queſtioned
ir! He need not be very acute to fee, that Grotius ſpeaks, on the contrary of a Thing Told, but not delivered; which neverthe-
leſs, according to what
is ſaid in the Beginning of s 15, is to be at the
Hazard and Peril of the Buyer, whoſe Loſs he makes pa-
fallel with that of Fruits, which being ſold, and eſteemed, as we may ſay, delivered to the Farmer, yet the Loſs
belongs to the
Owner : Even fo a Thing ſold is ſuppos’d to be delivered to the Buyer, altho' it remains ſome time in the Seller's Hands.
(2) The Words of the Digeſt are, Si ager terræ motu corruerit
, ut nuſquam fit, damno domini esle ; oportere enim
agrum præſtart
conduttori, ut friti poffit. Dig. lib. 19. tit.2. locati & cond. Leg. 15. 9 2. Si capras latrones citra tuam fraudem abegiffe probari potest,
judicio locati. cafim præftare non cogeris : aut que temporis, quod inſecutum mercedes ut recuperabis. Ibid. Leg. 9. 94.
(3) As the Author applies himſelf only to treat of the Queſtion about Accidents, that happen to the Thing hired, and does only
by the Bye, and in an imperfect manner, ſhew the Engagements of him who lets his Goods or Labour, I ſhall fupply this Defect in
a few Words. I. He then that lets our his Eftare; ought, 1. To put the Thing into a condition to be ſerviceable for what it is
hired, and fixedas in the Manner and Way
2. To uphold it in that Condition, as long as it de-
4 , if be not
by . is: , quored 5. . In
dultor ſua opera aliquid neceſario vel utiliter aitcerit, vel adificaverit
, vel inſtituerit, cum id non conveniffet, ad recipienda ea quæ im-
pendit ex conduéto cum domino fundi experiri poteft. Ibid
. Leg. 55. SI See allo Leg. 61. of the fame Title. 3. To leave the Thing to
the Tenant, till the Time that 'tis hired for is expired, at leaſt, if there happen no Caſe which may probably be excepted, if it
were foreſeen; as, if the Maſter of an Houſe hath need of it himſelf, or will make føme neceſſary Repairs, if the Tenant
no Rent for a conſiderable Time, or pulls down the Houſe, or uſech it fo that it may be feared he'll ſee it on Fire, or does in it,
or ſuffers ſome unlawful Trade to be maintained. Adi; quam té condutam habere dicis, fi penſionem demino in folidum foluiſti, invitam
te expelli non oportet, nifi propriis uſibus Dominus eam recesſariam effe probaverit, aut corrigere domum maluerit, aut tú malè in re locata
verfata es. Cod. lib. 4. tit. 65. De locato & conducto, Leg. 3. See alſo Leg. isi & Digest. lib. 19. tit. 2. Legs 30 princ. 35. 54. $ 1
56.61. & Nov. 14. C. I. A Sale, and in general every Alienation of Property, made in Favour of him who is not the Heir Gene-
tal, diſannuls alſo the Contract of Hiring, (See Mr. Hertius's Parcemia Jur. Germ, lib. 1. c. 47.) but ſo that the Land fold, and
thoſe that repreſent him, are obliged to make good the Damages and coſts of the Tenant, if the Purchafer, for Example, or the
Legatee, will uſe their Right. Qui fundum fruendum, vel habitationem alicui locavit, fi aliqua ex causà fundum vel «des vendat, cú-
rare debet, ut apud emptorem eâdem pa&tione do colona frui, & inquilino babitare liceat, alioquin prohibitus is, aget cum eo ex condu&to.
Digeft. lib. 19. tic. 2. locaci, &c. Leg. 35.9 16 See alſo Cod. lib. 4. tit. 65. Leg. 9. Qui fundum colendum in plures annos locaverat,
deceffit, do eúm fundum legavit : Caffius negavit cogi posſe Colonum, ut eum fundum coleret, quia nihil hæredis intereffet. Quod fi co-
lonus vellet colere, & ab eo, cui legatus effet fundus, prohiberetur, cum hærede a&tionem colonum habere, & hoc detrimentum ad hare-
dem pertinere, &ci Digeſt. ibid. Leg. 32. See Mr. Titius's Obſervations on Lauterbach, 597,8c. Laſtly, The Landlord ought noc
to indemnify the Tenant for any Faults he ſuffers by reaſon of the Faults of the Thing hired, which he knew, or ought to have
known. As for Example, If a Man hires Hogſheads leaky, and loſes his Wine by it. But 'tis not fo, if a Man hires a Fafture,
where there grow ſuch Weeds as burſt the Farmer's Cattle ; for, in this caſe, it is ſufficient to demand no Rent, at leaſt, if he
prove
a Mixture of good Graſs with the Weeds. Si quis dolid vitiofa ignarus locaverit
, deinde vinuim efluxerit, tenebitur in id, quod intereſt,
hec ignorantia ejus erit excuſata. Et ita Caſſius ſcripſit, Aliter, Ji Saltum paſcuum locaſti, in quo herba mala naſcebatur, hic enim fi pe-
cora vel demortua ſunt, vel etiam deteriora fattá, quod intereſt, præftabitur, li ſciſti, fi ignorâfti, penfionem non petes. Digeſt. ibid. Leg
19$ 1. Thus much for the Hiring of Things. II
. He that lets out his Labour, ought, 1. To attend faithfully to his Buſineis,
or the Work he undertakes: 2. Finiſh it in the Time agreed on, if poſſible
. Nor leave it without ſome great Reafon, ſuch as may
be credibly thought an Exception to his Engagement, if it had come into his Mind. 4. To make good the Damages which he
may cauſe to him for whom he labours, either by his Negligence or by his Ignorance, at leaſt until he knew his inability, and did
not for that Confideration paſs him by, for then he can blame none buc himſelf, and the other is diſcharged from doing better than
he was able. See Note 3. of the following S:
(4) So the Digeſts order, “Si yitiatum ædificium neceffario demolicus effet, pro portione, quanți dominus prædiorum locaffet,
quod ejus temporis habitatores habitare non potuiffent, rationem duci, & tanti licem æſtimari.” Ibid. Leg. 30. princip:
(5) So the Words are, “ Habitacores non, fi paulò minus commodè aliquâ parte conaculi uterentur, ftatim deductiouem ex mercede
facere oportet; ea enim condicione habitatorem effe, ut fi quid tranſverſarium incidiffet, quamobrem dominum aliquid demoliri o-
porteret, aliquam partem parvulam incommodi fuftineret; non ita tamen ut eam partem cænaculi dominus aperuiffet, in quâ mag-
ufus habitacor haberec." ibid. Leg. 27. princip. Moreover, that the Proprietor is obliged to make neceſſary Reparati-
ons, appears from Leg. 15. So of the ſame Title.
(a) Vid. lib. 19. t. 2. leg. 15. f.2. in fin. & ibido do 9. f: 4. D. locati.
(c) Vid. 1. 15.1.1.1. 30. D. hit.
(6) Vid. Herød. Euterpe, l. 4. C. 7.fo 126
ou
est
at
pays
SC
266
Of Kenting and Hiring.
BOOK V.

or a Farmcr, (6) by force of Arms, be drove out of dium propafed in the (2) Digelis, (6) may be rightly
his Houſe, or Farm, 'tis manifeft, the Rent from that applied here
, If the produce bappen zo periſh by
time ought to ceaſe; for, in this caſe, the Thing is Floods
, or by Birds of Prey, or, by the Inroads of an
morally loſt to the Owner, till the Enemy be ejected. Enemy, or by a t light or Drought, the Landlord ought
But if the Corn be gathered in, and then plundered to make Allowance, and the Reaſon added is, left the
by the Enemy, the caſe is altered ; and the Tenant is Tenant, beſides the loss of what Corn he had fowed,
then obliged to ſtand to the Lofs. bus tou ſhould be fori'd to pay the Rent of the Ground 100, aná
As for Labour ; if a Man be hired only for the fo bear a double Misfortune. But if the Corn proves
Diſpatch of ſome tranſient Buſineſs, and any Mif- bad, unit nothing happens more than ordinary, the Less
chance hinders him from performing it, he can have is then the Tenanr’s. Where it appears that this Me-
no Title to his Wages : But if a Man takes another dium
confifts in a Diviſion of the Miſchances to which
into his Service for a continued time, and fuch an Ac- the Produce is liable, into ordinary and extraordinary
cident happens, in common Humanity he ought not (), for if the Rent was to be abated for every little
to diſcard him, or to abate his Wages (7), eſpecially Loſs
, it would give continual Occaſion for impertinent
if there be Hopes that he may make Amends by his Law-ſuits
. And therefore the Rent of Land is deter-
future Diligence for the time he has loft ; or if his mined according to the middle Produce, computing
former Behaviour has deſerved ſuch Favour.
one Year with another, left the Farmer upon every
III. But as for thoſe Things, whoſe Produce is un- little Loſs ſhould have Occaſion to complain ; and
certain, as Fields, Orchards, Vineyards, Rivers for yet ’tis difficult to lay down preciſely how great the
Fiſhing and ſuch like ; as a plentiful Produce is to the Loſs ought to be for the Abatement of the Rent, which
Benefit of the Tenant, fo a bad one is to his Loſs: may better be left to the Diſcretion of an honeft
Nor in Striętneſs of Juſtice can he deſire any of the Rent Man conſidering all Circumſtances, than to the Determi-
to be abated by reaſon of a poor Harveſt, eſpecially ſince nation of any general Rule.
the Barreneſs of one Year is made up by the Plenty Sometimes a Farmer takes Land. upon Con-
of another ; for a good Husband is not uſed to let dition to pay his Landlord the whole Produce
or rent ſuch Things for one Year only (a). Ner of it, deducting firſt the Value of his Labour.
can that common Objection take place here, That no And here the Farmer is, as it were, an Hireling,
Body ought to grow rich at another's lofs : For the and if the Year prove Barren, the loſs is to the Lani
Landlord might urge the ſame in a plentiful Year for lord only.
the raiſing the Rent, whom in that Caſe the Tenant If the Tenant ſhould by any Accident have the Uſe
would have no Regard to. For, becauſe the Produce of the Land intercepted, and the Landlord ſhould, in
is more one Year than another, the Landlord had ra- the mean time, let it to another, or reap the Profit
ther be ſure of ſuch a Rent, than depend upon the himſelf, which otherwiſe would be due to the Tenant ;
Uncertainty of the Seaſon : And, on the other ſide, whatſoever Gain he makes of it, he ought to refund it
the Tenant lays out a Certainty for the Hopes of an to the firſt Tenant, or elſe to receive it in part of Payment
uncertain Gain, for which, if it fails him, he can for the Rent. The Duty of the Tenant and Land-
blame (1) no Body but himſelf. However that Me- lord in reſpect of any Thing or Labour let out to (3)
See in the ſame Title, Leg. 33. in fine, O 35. princ.
See Digeſt. lib. 40. tit. 7. De ſtatu liberis, Leg. 4.9 5. Collumella de Re Ruſtica, lib. 12. c. 1. in fin.
Mr. Barbeyrac's NOTES on §. 3.
(1) Piny junior nevertheleſs pleaſes himſelf much in ſeveral Places of his Letters, in the Releaſes which he made to his Farmers
in chat very Cafe. See lib. 8. Er. 2. & lib. 9. Epiſt. 38. lib. 19. Ep. 24. But it appears by thoſe Letters, that, beſides the Vanity,
he had ſome future Intereſt in ſo doing.
(2).“ Servius omnem v'm, cui refifti non poreſt, dominum colono praſtare debere ait ; ut puta, Aluminum, graculorum, ſturnorum,&
“ fi quid fimile acciderit, aut fi incurſus hoſtium fiar. Si qua tamen vitia ex ipfâ re oriantur, hoc damno coloni effe : veluci ſi vinum
“ coacuerit, fi raucis aut herbis ſegetes corruptæ fint. Sed otſi labes facta fit, omnemque fructum culerit, damnum coloni non elle,
ne ſupra damnum ſeminis amiſli mercedes agri præſtare cogatur. Sed ſi uredo fructum oleæ corruperit, aut folis fervore non
" adſueto id acciderit, damnuin domini futurum. Si vero nihil extra conſuetudinem acciderit, damnum coloni effe. Idemque di-
“ cendum fi exercitus pra teriens per laſciviam aliquid abftulit.” Ibid. Leg. 15. § 2. See Cujac. Obſervat. 15.28. Mr. Titius on
Lau erbach, obſerv. 610. believes, that this Circumſtance in the laſt Law, unleſs the Loss of the Farmer be unſupportable, ought to be
chiefly regarded : For a bad Harveſt is ſo far from being prejudicial to the Farmer, that we may ſee that ſuch as hold great Farms
love a Year of Scarcity more than one of Plenty, becauſe the leſs Proviſion there is, the dearer they ſhall ſell their Corn; ſo that
according to this Author, all that is ſaid of Abatement of Rent muſt have reſpect only to little Farmers. But when certain Pro-
vifions become very cheap, for Reaſons independant on a good or bad Harveſt, there is no Cauſe that an Abatement of Rent ſhould
be deſired upon that Account, becauſe the Price of Things is common'v very chargeable. This is determined in the following Law,
underfood in the manner that Mr. Bynkerſhoeke hath explained it learnedly and judiciouſly, according to his Cuſtom. Cum quidam
de fru&tuum exiguitate quereretur, non effe rationem ejus habendam, Reſcripto Divi Antonini continetur. Digeft
. ubi ſupra, Leg. 15. SS.
This Lawyer explains, at the ſame time (Obſerv.lib. 2. c. 12.) another Reſcript of Antoninus's, recited in the ſame Place. Item alio
Refcripto ita continetur. NOVAM rem defideras, ut propter vetuftatem vinearum Remifio tibi DETVR, ibid. i.e. A Man that hach
taken an oid Vineyard to farm, ought to impute it to none but himſelf, if it bear nor as much as he expected, becauſe he mighc
have known that before he hired it.
(3) The Words are, “ Conductor autem oninia fecundum legem conductionis facere debet, & fi quid in lege prætermiffum fu-
“ erit
, id ex bono & aquo præſtare. Qui pro uſu autem veſtimentorum, aut argenti, aut jumenci, mercedem, aut dedit, aut pro-
« mifit
, ab eo cuſtodia talis defideratur, qualem diligentiffimus paterfamilias fuis
rebus adhibet, quam fi præſtiterit, & aliquo caſu for-
“tuito eam rem amiſerit, de reſtituendà i à non tenebitur.” Inſtit. lib. 3. tit. 25. S. “ Celſus etiam impericiam culpæ adnume.
“ randum cenſuit. Si quis viculos paſcendos, vel farciendum quid, poliendumve conduxit, culpam eum præſtare debere, & quod
“ imperit à peccant culpam eſſe, quippe, ut artifex (inquit) conduxit.” Digest. ut ſupra, Leg. 9. gs. See allo $ 2, 3. & Leg 11, 12:
13, 25. $ 3, 4, 7, 8. 27. 30.9 4. 38. 55. $ 1,2.60. $ 2.61. princ. I have ſaid at the End of Note 3. upon the 5 aforegoing, how it
is to be underſtood, That we muſt judge by the Principles of the Law of Nature
only, what is here laid of the Ignorafice
and Inability of
him who takes upon him a Work or Labour. As for the Care that the Tenant ought to have of what he hires, the Lawyers are not well a-
greed about it ; ſome will have him anſwerable for the leaſt Negligence, and others for ſmall Faults only. See Mr. Thomaſius's Dif-
courſe De Culparum Præſtatione in contra&tibus, C. 1. $ 22. Whac i' have ſaid of a Bargain and Sale in Note 2. upon $ 3.
going Chapter, ought to be applied here.
(a) Vid. D. ubi supra. (b) L. 15. 1. 2. D. h, t. (c) Vid. I. 25. 1.6. D. h.t. Where it is well added, The Tenant cughe
to bear contentedly a moderate Loſs, when an immoderate Gain is not taken from him.

of che fore
Hire

CHAP. VI.
Of Renting and Hiring.
269
?
a ; a
suche Service be
Hire, is ſhewd in Inftit
. 1. 3. t. 25. 9.5.& in D. ubi made, the cheaper they grow : And therefore thoughi
ſupr
. 1. 9. f. 2, 3, 5. 1. 11. l. 12. 1. 13. l, 25. 1. 3, 4,7,8. my, Labour be never the greater to me by being ap-
1. 27. 1. 30. f. 4. 1. 38. 1. 55. f. 1, 2. 1.6o. 1. 2. 1.61. ply'd to many, yet I can (3) demand a Price upon Con-
princ. D. h.t (4).
ſideration that my Knowledge will be leſs worth the
Hither may be referr'd the Law in Egypt , more it is communicated. Some indeed are not willing
relating to Phyficians ; who, if they took Care that the Salary, which a Man receives for teaching the
of their Patient, according to the Direction of the Liberal Sciences ſhould come under the Denomination
publick Book, were nor anſwerable, if he died under of Hiring, becauſe Learning cannot be ſold for Money';
their Hands ; but if they acted againſt thoſe Directi- and ſo they are for making this, one of thoſe Con-
ons, they were tried for their Lives (a) Alexander de tracts which want a Name, reducible to the 4th Ge-
Rhodes b) relates that in the Kingdom of Tunquin, neral Head, Work for Goods (d). Be çit as it will, it
they agree
with the Phyſician for a certain Rate at the ſeems to have this in common with Hiring of La-
Beginning of the Diſtemper, but which he does not re- bour, that the Honefty and Induſtry of the Party only,
ceive till he makes his Cure ; and if the Parient miſ and not the Event is to be regarded ; ſo that although
carries, he has nothing for his Pains; by this means one's Labour happens to be in vain, yet the Salary a-
they think to quicken the Diligence of the Phyſician. greed upon may be demanded. In the
The ſame Author tells us of a Phyſician, who being IS
odt nou hmo Beidt noch
conſulted and bargaining for his Fee, faid, That were
the Patient a loung Man, he would not cure him, under . Scilicet arguitur, quod
lava in parte mamilla
14.103 Scudi, but ſince he was Old, he would be con- " Nil falit Arcadico juveni. Juv. Sat. -7. V. 159, &C.
tented with 20, becauſe the Life he should reſtore was
not likely to laſt long.
Pay, Sir, for what The Scholar knows no more
IV. But if my Labour, ſuppoſe in a journey, can be At Six Months End, than what he knew before.
ſerviceable to many, and I am hired by one Perſon, to Taught or untaught, the Dunce is ſtill the ſame,
the full Value, Can I exact the ſame Price from others Yej ſtill the wretched Maſter bears the Blame.
alſo ? Grotius (c) is of the Opinion I may, if the Law
of the Land does not interpoſe; for it has no Relati- Sometimes that which Pliny mentions of the Taran-
on to the Contract which I made with the firſt: Nor dus or Buff, N. H. 1. 8. c. 34. may be applied ; when he
is
my
Labour the leſs valuable to him by being ſervi- appears in his own Genuine Complexion, he is like an
ceable to others alfo. However ſuch a Contract as Afs. x 'Tis an excellent Mafter that can make a Fool
this, does not ſeem agrecables to Equity and Good-na- wiſe, Eurip. Hipp. Coron, p. 921,922. Nature is too
ture, tho' perhaps it is not ftri&tly unjuft
. For when violent and powerful for any Diſcipline, Lib. Decl
. 29.
one Man alone has paid for the whole Labour, if it Though ſometimes that may be reply'd which Lucian
can do ſervice to others alſo, without being the more mentions in Hermotim. Tom. 2.p.m.1203. The Speech
painful to the Performer ; in reſpect of them (1), it which Aureng-Zebe the great Mogul made ro his Tu-
ought to be tankt among thoſe : Favours, which are of tor, is worth obſerving, Vid. Bernier de rebus in regno
no Expence to the Doer, and are yet Beneficial to the Mogotis geſtis, Part. ult. p.m. 57.
Receiver. But yet fince 'tis hard that the firſt Con-4 (4) Eſchines acted directly, counter to this ſort of
tractor ſhou'd bear the whole of the Burden, it is (2) Contract, for he gave People Money to come and hear
but reafonable, that the others ſhou'd contribute to him (ë)! And ſo did the pompous and Ambitious Rhe-
him theit Proportion. Thus if I hire a Ship to my toricians at Rome, who by Intreaties and Entertainments
ſelf, Owner
my did what they could to get themſelves. Auditors. So-
and if I am diſpoſed to admit of it, the Ad. crates did not demand Money of his Auditors, but
vantage redounds to me only.
wondred, That a Man profeſſing himſelf to be a Teacher
Bur
" yet in Arts and Sciences, which receive of Vertue ſhould inſiſt upon so mean a Reward, and not
a Value from the Scarcity of ſuch as underſtand rather look upon himfelf to be the greatest Gainer, in
each, though the fame Trouble would inform
not to fear, left he, whom he made and Ho-
for ſuch ſort of Arts, the more common they are neſt, ſhould forget to be Grateful to bis Benefactor (f).
(4) We follow the Notions of the Roman Law, whịch looks upon the Tenant, (Conduktor ) as he that undertakes a Work or La-
bout, and the Landlord (Locator) as he that lets it at a certain Price to be paid him. But 'tis the Impropriety of Language which
makes the Notions confus'd : For, in the main, he that lets his Labour and Work for Wages to a Perſon, who is to find Matter for
him to work on, is no leſs a Landlord, than he that lets an Houſe or Land. As for Bargains at a Price agreed on, where the Under-
taker finds the Materials, and is at all Expences, this is propetly Selling. See c. 2. $ 10. above.js
Mr. Barbeyrac's NOTES on 6 4.
(i) This only proves that we can require no more of another than he has expreſly agreed to pay, But if after the former is
(2) This is not always neceſſary; for, provided that the Perſon hired doch not neglect the Affairs by him undertaken, if ac
ſame time he cann't attend upon another's, he may be allowd to make that ſmall Gain, as a little Perquiſite, which we are con-
tenced he ſhould haye.
(3) Sometimes alſo that which every one gives is ſo ſmall a Thing, that what is paid for the Labour of all together, is little
enough for the Labour of teaching one only.
(4) This story is founded only on a bad Tranſlation of theſe words, 'Eguíat e's ö di negdoes nolais ai; which fignify the con-
tfary, That Eſchines took Money of his Auditors, as Aldobrandinus obſerves.
(a) Diod. Sic. Lt. c. 82:
(b) Itin. Part. 2. c. 30.
(c) L. 2. c. 12, f. 19. (d) Vid. L. 50. c. 13. l. 1. f. 4. D. de
cogn. Vid. Sen. de Benef. 1. 6.c. 11. How poor Schoolmaſters are often cheated of their Wages, is fhew'd in Lucian, de mere
(e) Vid Diog, Laert. l. 2. 1. 62. (f) Vid, Xenoph, Apomnem. I. 2. p. 426. Ed. H. Steph. in fin.
Leave;
done to him freely.
CHE
extraord. cogn.
cede con:lu&t.
ibora
СНАР,

BOOK V
Sino, olen en
268
igns totoria dos
parla di sbor
Moto C H A P. VII.
Of the Loan of a Conſumable Commodity.
1. WÞat a Loàn is, and what a Conſumable Commodity. VIII. The Doctrine of the Jews about Ufury.
II. A double Uſe of theſe Things.
IX. That Uſury is not contrary to the Law of Nature,
III. For what Things, we are wont to be Credited.
is proved.
IV. Of tacit Lending.
X. The Arguments to the Contrary are anſwered.
V. Whether Lending be an Alienation.
XI. Some Contracts are much the ſame as fury.
VI. What if Money be Altered in the intrinſick Value? XII. The Evaſions ufed to avoid the Diſgrace of
VII. Or in the extrinſickValue? at und die
Uſury.
OU A
TI
"HE Loan of a( a) Conſumable Commodity is found-be ſold by Tale ; for the Number, in that caſe, does
ed
upon
this Condition, that the ſame Quantity not ſpecify them, but only denotes the Quantity of
and Quality be returned in kind (b). Things thus lent are the species (b).
called (1) Conſumable (e), becauſe they are conſumed II. The Uſe of theſe Conſumable Commodities is ei.
and periſh in the Uſe : (2) And therefore 'tis enough ther ordinary, or extraordinary. The latter is, when
if the fame Sort of Things, tho' not the ſelf fame In- a Man borrows (1) to make an Appearance of being
dividuals be returned. The (d). Loan of a conſumable better provided , than really he is ; for fometimes
Commodity differs from the (e) Loan of any other Thing 'tis of great Importance to be thought Rich ; as if
not conſumable, and from the of) Uſe of a Thing let a Man, in order to gain upon the Affe&tions of his
out to bire, in this reſpect. In the two latter, the ſelf Miſtreſs, ſhould borrow a Sum of Money and
ſame numerical Thing that was lent, or let out, is to thew it for his own : in this caſe, the Money is
be reſtored, and no other without the Conſent of the not taken up as a Conſumable Commodity, nor is the
Creditor : And that, not only becauſe the Value of Borrower ever Owner of it; and therefore
, he ought
ſuch ſort of Things is not always capable of being to return the very fame in Specie
. But the Ordinary
exa&tly adjuſted (3) (8), but becauſe it was exprefly Uſe of ſuch Things conſiſts in the Loſs of them; or,
the Condition of the Loan or Letting. Whereas in in other Words, I can't directly apply them to my
the Loan of a Conſumable Commodity , if, for Example, Uſe, unleſs they be conſum'd, and 1o become loft to
my Neighbour borrows a Buſhel of Wheat, and re me. This is plain in Corn, Wine, and other Things
turns me another Buſhel of the fame. Goodneſs, I am that turn to Nouriſhment ; And Money it felf I can't
ſuppos’d to have received my own.
make uſe of in buying Neceſſaries, and paying Debts,
Theſe Conſumable Commodities are ſaid to conſiſt of unleſs I part with it : So that although the subſtance
Number
, Weight and Meaſure, as being thereby de- of the Money remains, yet as to me it is utterly loft.
termind and ſpecified; whereas other Things have And therefore, when ſuch Things as thefe, to the end
their Quantities determind by Nature. And there, they may be put to their ordinary Uſe, are made over
fore, Conſumable Commodities are peculiarly termed to another
, not with a Deſign to barter, but with a
Quantities : But other Things which don't come under Deſign to have the ſame return'd again; ſince the Spe-
this ſort of Loan, are call'd Species. And here we cies, that was delivered, muſt be confum'd, the Reſtitu-
muſt obſerve, that, v.g. Oxen are not therefore a Con- tion muſt neceſſarily be in the ſame kind (2).
ſumable Commodity becauſe 50, or 100 of them may
III. Money,
cler
Mr. Barbeyrac's NOTES on Chap. 7. $ 1.
The Words of the Inſtitutes are, " Mutui autem datio in iis rebus conſiſtir, quæ pondere, numero, menſura conſtant, veluti
mus, ut accipientium fiant. Et quoniam nobis non eædeni res,ſed aliæ ejuſdem naturæ & qualitatis redduntur : inde eciam mu-
tuum adpellatum eft, quia ita à me tibi datur, ut ex meo tuum fiat.” Inſt. lib. 3. tit. 15. See Cujas Obl. 11.37.
(2) Res fungibiles. See what is ſaid Lib. 1. c. 2. § 10. Note 3. The Word Fungibilis is not found in the Roman Law; buc Functio
is uſed in the fame Caſe, tho' it may be doubred whether the Ancient Lawyers called, Res quæ in genere ſuo fun&tionem recipiunt,
what the Modern have abridg’d into Res fungibiles. The Law upon which it is grounded, is plainly corrupred, and ought to be
read, in all Appearance, as Mr, Bynkerſhoek explains it, Obſerv. 1. $ 10. Mutui datio confiftit in rebus, quæ pondere, numero, menfurâ con-
Stant, quoniam eorum datione poſſumus in creditum ire. ' Quæ in genere fuo Solutionem recipiunt per functionem quam ſpecie. Digeſt
. lib. 12.
tit. 1. De Rebus creditis, doc. Leg. 2. $1. i.e. (if we underſtand tam . - - before quam ſpecie). In theſe ſort of Things we pay
what we owe, by reſtoring another Thing of the fame Kind and Quality, as well as by returning the game we have received.
(3) The Words of the Digeft are, Nam in cæteris rebus ideò in creditum ire non posſumus, quia aliud pro alio invito creditori ſolui
non poteft. Digeft. lib. 12. tit. 1. De Rebus creditis, &c. Leg. 2. §. 1.
Mr. Barbeyrac's NOTES on $ 2.
(1) So the Law ſpeaks, Non poteft commodari id, quod ufu conſumitur, nifi fortè ad pompam vel oftentationem quis accipiat. Sæpe eti-
- am ad hoc commodantur pecuniæ; ut dicis gratiâ numerationis loco intercedant. Dig. lib. 13. cic. 3. Commod. vel contra. Leg. 3. $6.4.
(2) The true Character of Things, call’a Conſumable Goods, is, that they periſh in the uſing, as our Author fays. Now there are
two forts of conſumption. 1. Natural. 2. Civil. Natural Conſumption hath place either in ſuch Things as are loſt in the Ufe,
as thoſe are which we eat and drink ; or in ſuch as are lubject to be eafily deſtroyed, tho we do not meddle with them, as the
Fruits of Trees, &c. For as for thoſe which decay inſenſibly, as we uſe them, but don't altogether periſh, as Cloachs, Earthen
(a) Res fungibilis. (b) Vid. Inſtit. l. 3. t. 15. princip. (C) Vocantur res, que mutuo dantur, fungibiles, ſeu que functio-
nem in fuo genere recepiunt, ideo
, quia quodlibet ex iſto genere rice alterius ita fungitur, feu alterius vicem ſubit, ut qui ex eodem genere,
eadem qualitate do quantitate receperit, idem recepiſſe cenſeatur. D. L. 12. t. 1. l. 2. f. 1. qua funktionem, &c.
(e) Commodatum. (f) Locatum. (8) Vid. D. ubi ſupr. de rebus creditis, leg. 2. f. 1.
Diſert. de æqualitate a fun&tione in mutuo.
(d) Mutuum.
(b) Add. Jac. Godofredi
Ware,

Chap. VII.
Of the Loan of a Conſumable Commodity. 269
2020
(2) The Lawyers are
III. Money, (which commonly goes by Number, or as ſuch. And therefore the Foundation of theſe Aēti-
Counting,) Gold and (1) Silver in Bullion, Bread, c. ons inay not improperly be call'd a (2) Tacit Borrow-
(which paſſes by Weight) Corn, Salt, Wine, Beer, ing (d). Thus Mauritius the Emperor having given
Oil, &c, which are ſpecified by Meaſure) and, in ge- Childebert, the French King, Money to drive the Lom-
neral, all ſorts of Proviſion; as Fleſh, Eggs
, Milk, bards out of Italy, after he had made Peace with
and even entire Animals, confider'd as Proviſion, come them, demanded it back: Childebert indeed would nor
under the Name of Conſumable Commodities (a). For ſo much as vouchſafe him an Anſwer, but that was
ſuppoſe I am to make an Entertainment, and have becauſe he was more powerful than juſt. Paul Warne-
not Proviſion enough at Home, or Money to buy it; frid. de geſt. Longobard (4).
I may borrow of my Neighbour, not only Eggs and V. Some Years ago Salmaſius and ſome Civilians
Fleth, but Fiſh, Lobſters, Hares, Hens, Geeſe, and e- had a Diſpute, Whether the Loan of a Conſumable
ven Sheep and Calves, upon Condition to repay him Commodity was an Alienation ? Now it is plain,
again in kind (b). Fair Paper may likewiſe be brought fince the ordinary Uſe of ſuch Things confifts in
under the ſame Denomination, as being conſum'd in the Conſumption of them, they muſt be made
the Uſe; for Paper once fcribbled upon, is loft for over to the Receiver, with full Power to diſpoſe of
any other Writing. In ſhort, under this Denomina- them as he pleaſes ; which cannot be done without
tion may be reduc'd any Sort of Comniodity, which can inveſting the Property in him. But becauſe the Cre-
be determin’d by any certain Meaſure, and which, (if ditor gives, in order to receive back, and the Debtor
after it has been apply'd to its genuine and principal receives, in order to refund ; therefore neither is the
Uſe, it cannot be intirely reſtored again to its former Eſtate of the one leſſen'd, or the Eftate of the other
Condition,) is capable of being repaid in kind. For increaſed by it. Unleſs the Creditor may be rather
ſuch ſort of Things altho’ they are generally the Matter thought a Loſer, having only an A&tion againſt the
of Sale, yet ſometimes happen to be borrowed. Debtor's Perſon in lieu of his Money, which, by Rea-
As if v. g. I ſhould procure à certain Quantity ſon of the Trouble aud Uncertainty attending it, may
of Cloth for my own Uſe, and Thould let a Friend, be reckon'd leſs worth than the Money it felf. And
who has immediate Occaſion for ſome of the famé hence it is, that as Debts, due
to any Man, are look'd
fort, and has not wherewithal to buy it, make uſe of upon as part of his Fortune : ſo a Man is ſuppoſed to
it, upon Condition to return me as much and as good be worth only fo much as remains to him after his
of the ſame kind.
Debts are paid. And he that owes more than his
IV. And this Contract is perform'd not only ex- Eſtate comes to, may fairly be ſaid to be worth leſs
preſly, but ſometimes tacitly: As ſuppoſe I ſhould than nothing. To this Purpoſe was that Saying of
pay a Man Money by Miſtake, which I did not owe; Cæſar's, that he wanted 2500 H.S. to be worth no-
or ſhould give a Man Money for ſome Reaſon which thing, App. de bello civil
. 1. 2. p.432. B. Ed. H. Steph.
afterwards does not appear ; in this Caſe the Roman Hence Money borrowed is call’d as alienum, another
Law admits of an (c) Action for Money paid where not Man's Money ; not that the Perſon borrowing has not
due, and for ſome Reaſon which does not appear. For the Property of it, but becauſe he receivd it upon Con-
fince ſuch Money was not paid as a Gift, but as a dition to return as much. On the other ſide, he who
Debt, or for the procuring an Equivalent, and yet the is out of Debt, may ſay meo ſum dives in ære, The Mo-
Receiver became Maſter of it; it is the ſame Thing (1) ney that I have is my own. In a word, he that lends
as if it had been borrowed, and may be demanded back Money does indeed alienate it, yet ſo as neither to
Ware, &c. they don't belong to.this Place : and 'twas an Overſight of Tribonian to exclude Cloaths from the Number of an Uſu-
fract, properly ſo call’d. Inſtitut. lib. 2. tit: 4.9 2. Conſumption Civil hath Place in Things, whoſe Uſe conſiſteth in being alienated,
altho' they have a continual Being. Such are not only Money, but all Things we barter with, as alſo Thir gs made uſe of in Building,
and all other Materials for Compoſitions, and Work. See lib. 4. c. 7. § 10. above. Upon this Foundation there are two ſorts of Things
calld Conſumable Commodities: One, which are ſuch in their own Nature, and unchangeably füch; the other which depend up-
on the arbitrary Will of Men, and murable Appointment. The firſt are ſuch whoſe ordinary Uſe conſiſts in their Natural or Ci-
vil Conſumption: I fiy, ordinary Uſe ; for tho' the Owner may lend ſometimes, for Example, a Sum of Money, merely for Form
and Appearance, and a Beam only to ſupport a Building ; yet, as that is rare, it has no regard to Laws, which reſpect Things
that commonly happen only. The other ſort of conſumable Things contains ſuch, as tho they may be uſed or lent without
Conſumption, are often appointed to be ſold, or are dealt in after ſome other Manner; ſo that according to the Deſign of him
of whom they are borrowed, they are ſometimes for Conſumption, and ſometimes for Uſe. As for Example; when a Man who
has a Library for his own Uſe, lends me a Book, he intends that I ſhould return the ſame Copy again ; ſo that if I would give
him another as good, he is not obliged ordinarily to accept it : But if he of whom I borrowed the Book, be a Bookſeller, or
Trader in Bocks, 'tis fufficient that I return him another Book as good, becauſe, as he keeps it for Sale only, 'tis indiffe-
rent to him, whether I reſtore him the ſame Book, or another as good. Tis the fame in other ſorts of Goods, un-
leſs they be ſuch as are very rare, or curiouſly wrought, as ſome ſort of Pruggs not common, a Watch, Mathematical Inſtru-
ments, an Air-Pump, or other Inſtruments to try Experiments
, &c. becauſe 'tis hard to find others of the ſame Nature and Good
neſs, which may be returned for what's borrowed. This is taken out of Mr. Thomafius's Diſcourſe before quoted, De pretio af-
fe&tionis in Res füngibiles non cadente, c. 1. $ 16TC.
Mr. Barbeyrac's NOTE on 6 3.
(1) We may give Gold for Silver, and pay it in other kinds, unleſs it be otherwiſe agreed on. See Corn. Van Bynkerſhock's
Mr. Barbeyrac's NOTES on S 4.
(1) It is not neceſſary to ſuppoſe a tacio
Lending. The Nature of the Thing ſufficiently ſhews the Necefſity of Reftitution,
as appears by the Author himſelf
. But if it be fufficiene to render an 'Equivalent, yet it does not follow that it ſhould be by
virtue of a racit
. Loanbut 'tis becauſe it cann't be otherwiſe reſtored, or becauſe 'cis all one whether the Thing be recover'd in
ſpecie
, or by an Equivalent. See what is ſaid of Quafi-Contracts in ſeveral Notes above, and among others on lib. 4. c. 13. $13.
. .
at Intereſt. Perhaps, that the creditor might evade the Law againſt Vfury. For ſhould the Debtor refuſe paying Uſe for what
he thus took away, he would have an Action of Robbery againſt him. 'Quaft. Gr&c. p. 303. Edit. Wech.
(a) Vid. D. ubi fupr. I 2. f. i. D. de reb. credo to
data cauſa non fecuta. (d) which is otherwiſe called by the Chilians Quafi-Contractus.
(b) Add. Plin. N. H. 1.9. c55. To() Condi&tig indebiti, condi&tio cauſa
this p posti,
leffen
Obferv. 1.96
do 100

a 70
Of the Loan of a Conſumable Commodity.
BOOK V.
my
leffen his own Eſtate, nor (1) to add to that of his For Example, if I ſhould lend 100 Guineas in Specie,
Debtor.
when they go for 26 s, and afterwards they ſhould
VI. It is a Queſtion of greater Moment, Whether, if riſe to 30 s, I can't demand more than 26 s, the Gui-
. Change, happens in the Money, between the Borrow- nea, if my Debt be paid in Silver, and if the Payment
ing and the Payment, regard muſt be had to the Value be made in Guineas I muſt deduét 4 s. from each, and
of Money, as it was (1) at the time of Payment ? ſo receive not much more than 86 Guineas in Specie.
Here moſt think fit to diſtinguiſh between the And on the other, hand, if they link to 22 s. and
intrinſick Goodneſs of Money, and the extrinfick; Payment be made in Silver, I can demand 26 s. for
whereof the former conſiſts in the certain Quanti- vry Guinea. But if I be paid in Guineas, I ought to
ty of ſuch, or fuch a Metal : the latter publick have an Addition of 4 s. to each, and ſo to receive a-
Rate, or Value impos'd by the Magiſtrate. If bove 118 Guineas in Specie.
the Change happen in the intrinſick Value, as fup But yet this does not clear the Buſineſs, for againſt
poſe the Metal" becomes baſer or lighter (for the the former Determination, the Creditor may make
Change in Money is generally for the worſe) then they his Exceptions, for had he kept his Guine as, the In-
think the Money ought to be reduc'd to the Value creaſe had been to him ; which if he be now forc'd to
it bore at the time of Borrowing. For this Contract loſe, another makes a Gain at his Lofs: And the
obliges not only to reſtore the ſame Thing in kind; fame Plea may the Debtor have in Bar of the latter.
but in Goodneſs alſo; (2) indeed otherwiſe the ſame And therefore we muſt enquire further, iſt. Whether
Quantity would not be reſtord. And therefore, if any certain Sort of Money was lent, v.g. Guineas in
for Example, in Money newly coin'd a fourth Part of Specie, upon Condition that ſo many ſhould be re-
the intrinſick Goodneſs be wanting, for fool
. lent in turn d in Specie, and in no other Money ; or 2dly,
old Money I ought to receive 1251. in the new. In Whether they were paid as common current Money
like manner if I lend another 100l., half of which is or 3dly, Whether all the Money of the Nation, or
perfectly Alloy, I ought to receive only sol., when the 4thly, Only that Particular Species has undergone a
Baleneſs of the Coin is redreſs’d. For tho' it be in Change. In the iſt
, Caſe, without Diſpute, the Num-
the Breaſt of the Government to Raiſe or Lower the ber of Guineas is to be return’d. In the 2d, the foriner
Value of Money, yet if the extrinſick Valuation, dif- Deciſion takes place, and therefore the Value of Gui-
fers very inuch from the intrinſick Goodneſs of neas in ſuch a Loan muſt be referr'd to ſome other
the Coin, (ſince Regard muſt be had to Foreigners, Species as a Standard ; v.g. ſo many Guineas of 26 s.
unleſs we would reduce our Commerce with them to The 3d Caſe, where the Change affe&ts the whole
pure Bartering) the Price of Commodities will be Body of the Money, in Compariſon of the Plenty or
determined rather by the (3) intrinfick Goodneſs, than Scarcity of other Things, may be determin’d from
the extrinſick Value and Denomination of it. For fup- what has been ſaid in Chap. 1. §. 16. although it hard-
poſing the Money diminiſhed a 4th Part, we thould
give 125 7. for that which we us’d to pay but 100l. the Money affe&ts the Payment of an old Debt. As for
And therefore if a Man ſhould pay me an Old Debt the 4th Cafe, when the Value of any one Species riſes
of 100 l, in ſo mach new Money, he would really pay without any Intrinſick Alteration, all the other Money
me a 4th Part too little.
(1) muſt needs have been debaſed. Thus v.8. when
VII
. But if, without any Alteration in the intrinſiek Guineas roſe from 26 si to 30 s. it was a ſign that the
Goodneſs
, the extrinſick Value fhould riſe or fall; then Silver Money in its Intrinſick Value was grown worſe
.
Regard ought to be had to the Value of the Money, And therefore in this caſe, if Guineas were lent
as it was at the time of Contract, and the increaſe or de- in Specie, and the Payment be made in Silver, Gui-
creaſe of it ought to be at the Gain or Loſs of the Debtor. neas ought not to be valued as lent at 26 s. but at 30s.
in are.
Mr. Barbeyr ac's NOTE on 6 s.
(1) That is to ſay, as Mr. Placette, in his Treatiſe of Intereſt, obferves, Chap. 12.p.133. If he thar lends, transfers the Pro-
perty of a Thing to another in Specie, yet he reſerves the Value. Now the Value always exiſts, and we know what it is. We
put it into the Hands of the Debror, but he is nor the Owner ; for if that were, he might diſpoſe of it as he pleas'd, by giving,
ſquandering, or playing it away, which he is not certainly allowed. But the Creditor, on the contrary, can make a Preſent of it to
the Debtor himfelf, or any other. He may call it in, forbear it, ſpend it, or diſpoſe of it as he pleaſes. See the reſt of this
Chapter, and the foregoing, of the Treatiſe from whence I have taken it. Hence it is, as our Author obſerves, that a Debt is cal-
led, Æs alienum, i. é. Another Man's Money; not but that a Debror acquires a Property to the Species he has received, but becauſe
he gets it on Condition to render the like Value again. On the contrary, a Man who owes nothing may ſay, Meo Sum dives
Mf. Barbeyrac's NOTES on 6 6.
(1) See Francis Hotoman's Quæft. illuftr. Qu. 15, 16. upon this Queſtion, where it is determin’d otherwiſe than it is here, but not
from ſolid Principles.
(2) So the Digeſts ſpeak, “ Cum quid mutuum dederimus, etfi non cavimus, ut æque bonum nobis redderetur, non licet debito-
“ ri deteriorem rem, quæ ex eodem genere ſit, reddere; veluti vinum novum pro vetere : nam in contrahendo quod agitur, pro
« cauto habendum eft, id autem agi intelligitur, ut ejufdem generis, & eadem bonitate ſolvatur, quod datum ſit.” Dig. lib. 1.2
tit
. 1. De Rebus credit. &c. Leg. 3. we may add to it, that if the Money had remained in the Hands of the Creditor,
he had loft
nothing by leflening the species; and fo in the Alienation, this Conſideration paffes into a Rule. “ Alienatio quum fit, cum fuz
" caufa dominium ad alium transferimus, quæ eſſey futura, fi apud nos ea res manfiffet : Idque toto jure Civili ita fe habet, præ;
terquam fi aliquid nominatim fit conftitutum.” Digeſt. lib. 18. tit. 1. De contrah. empt. &c. Leg. 67. In fine, In all this we muſt
fuppoſe that the Time for Payment was not paſſed; for if the Alteration of the value of the species was made, when the Debtor
delayed the Payment, or after the creditor would not receive the Payment, it is ſo much the worſe for him to whom he was bound,
that the Money was not paid in a Species of the Goodneſs and Value, according to the Rule of the Law. Vnicuique ſua mora nocet.
3) This appears by the following Law. Pro imminutione quæ in eſtimatione Solidi fortë tra&tatur, omnium quoque pretia specie-
rum decreſcere oportet. Cod. lib. II, tit. 10. De veter, numiſmatis poteſtace, Leg. 2.
Mr. Barbeyrac's NOTES on $7.
it is read Valore agetur
, for augetur ; but the Fault is ſo manifeſt, that he might without Scruple correct it in his own. As for what he
(1) Mr. Hertius ſays here. That the Text is corrupted in all the Editions. It is true that in the Swediſh and Franckfort Editions
Lays, that OB ought to be added after Augetur, I ſee no Reaſon for it
, but think it contrary to the Realon and Senſe of the Author,


,
But

Now they had two ſorts of Ufury; the one was (e) ſuch a Contra&t as this ; Says the Seller, if you buy
СНАР. VII. Of the Lo.in of a Conſumable Commodity. 271
But if common Money was lent, the Debtor gets the vine Laws, but was obliged to Reftitution only. But,
Advantage of the Rife, unleſs the Largeneſs of the Sun, if the Ufurer himſelf was Dead, his Heirs were not
or the Enormity of the Change may plead for ſome ſo much as obliged to that ; for they did not refund
Confideration in behalf of the Creditor.
Money, or any other Conſumable Commodity, but only
As for other Conſumable Commodities, provided Plate, Cloaths, Inſtruments, Cattle and ſuch like,
they be return’d at the Time and Place appointed (2), which had been received upon that ſcore. And this
(w) Pris little regarded whether their Price has Rifen was done in Honour of the Deceaſed, and out of Re-
or Fallen; but the Advantage of the Rife, and the ſpect to his Memory, and that too only if it appear'd
Loſs of the Fall belongs to the Creditor, unleſs they that he repented of it, and had Thoughts of making
had agreed about it otherwiſe.
Reſtitution before he died; for otherwiſe the Heirs
But when the Debtor is backward in his Pay- were not oblig'd to refund at all. Beſides, Private Men
inent, and the Price, in the mean time, happens to were not permitted ſo much as to receive a ſmall Pre-
be altered, the Roman Lawyers are at a Lofs to what fent from their Debtor, while he continued ſuch ; the
Time or Place the Valuation ought to be aſſigned: It Lawyers indeed might, for they were preſun'd by no
ſeems inoſt reaſonable that it be adjuſted according means willing to Violate the Precept againſt Ufury,
to the Time and Place of Payment. But, if it be but to receive it purely as a Gift and not as Intereſt. ut
through the Debtor's Fault that the Payment is pro By that which they called the Reſemblance of Ufury
tracted ; and the Price, in the mean time, alters, it they were forbidden to receive any Profit, or Acknow-
ought to be to his Loſs (6).
ledgment of the Kindneſs, (altho' utterly beſide the
VIII. Whether Uſury, which is generally given for Contract
, and after the Expiration of it,) except the
the Loan of Money, be repugnant to the Natural and Payment of the Principal before the time appointed.
Divine Law ? is a Queſtion that has been warmly de- And this again they divided into two forts ; The One
bated (1.) Which ought to be Canvaft more nicely, which related to the difference of the Time, in
becauſe moſt people are not of the Perſian's Opinion, which ſomething was perform'd by the Debtor, to
Who, as Plut. relates in his Book againlt Horrowing, the Profit and Advantage of the Creditor: The Other,
among tbeir Sins, give the ſecond place to Lying, but which related to the different manner of Contra&t.
the firſt to Borrowing, becauſe it often happens that The former they again divided into Antecedent and
they that Borrow, Lie. Tho' Herodotus
, in Clio, in Conſequent. By That, they underſtood whatſoever a
my Opinion better afſigns the firſt to Lying, the next Man, deſigning to borrow, gave to the Perſon, upon
to Borrowing. How the old Hebrews explain the Di- whom he had this Defign, in hopes to bring him to it
vine Law (C), relating to Ufury, Selden (d) gives a the more eaſily. By This
, whatſoever the Debtor af
large Account; viz. they thought it (2) was unlawful ter the Receipt of the Loan beſtowed upon the Crea
not only to receive but even to give Ufury ; and that ditor in order to prolong the Time of Payment. Nay,
the very Scriv'ners, Notaries, Witneſſes, and Procurers they would not fo much as allow the common Offices
of ſuch Bargains contracted a Guilt. However, the of Humanity to be perform’d by the Debtor to the
Money of Orphans was allowed to be put out to In- Creditor, unleſs what was uſed to paſs between them
tereſt to a Rich Man, provided he gave the Gain to before the Loan.
the Orphan, but bore the Loſs himſelf.
The latter fort was thought to have Regard to
Uſury properly ſo called, which was covenanted for, and to Day, you ſhall have it for 90 l. but if you put it of
received at the Beginning, or during the Contract ; And till to Morrow you ſhall pay
a 100l. Here the Delay,
other was called (f) The Reſemblance of Ufury, and mate, that 10 l. is to be paid as Uſe. In this caſe the
was forbidden only by the Decrees of the Elders. Law did not oblige to a Reſtitution, nor did there lie
A Man was guilty of Uſury properly
. ſo called, not an A&tion againſt the Party in the Civil Court. Yet, he
only when he received back a Conſumable Commodity
á Conſumable Commodity who offended againſt theſe Decrees of the Elders, was
with Increaſe, but if by Reaſon of ſuch a Loan, he liable to Corporal Puniſhment. He likewiſe, that re-
lived in another's Houſe Gratis till he was paid'; or ceived a Farm in Pledge, was not allowed to let the
gave leſs Rent for it, than otherwiſe he would have fame to the
Owner for Rent, for that lookt like Uſury.
done ; or if he received an Emolument from a Pawn But, theſe obtain'd only between Hebrew and He-
left with him upon Account of the Debt. And yet brew ; of a Gentile they might lawfully demand Uſu-
a: Man never ſuffered in their Courts for receiving ry, from Deut. XXIII. 20. Nay, they thought them-
Uſury, as was uſual for the Violation of other Di- felves commanded to do it, in order to drain them of

d
«
(2) The Words of the Digeſt are, “ Vinum, quod mutuum datum erat, per judicem pecirum eſt: quæſitum eſt cujus temporis
« æſtimário fierer.
Sabinus refpondit, fi dictum eſſet, quo tempore redderetur, quanti tunc fuiffet, fi non quanti tunc cum
petitum effet. Interrogavi, Cujus loci pretium ſequi oporteat ? Refpondet
, fi conveniffer, ur certo loco redderetur, quanti eo loco
effet ; fi dictum non effet, quanti ubi effet peritum." Dig. lib. 12. tit. 1. De rebus credit. &c. Leg.22. See Lib. 13. tit. 3. De
condu&tione triticaria, Leg. 4. & tit. 4. De eo quod certo loco dari oportet. Leg. 3. lib. 17. tit. 1. Mandati vel contra, Lez. 37. lib. 45.
tit, 1. De verbor. Oblig. Leg. $9.
Mr. Barbeyrat's NOTES on 8.
(1) This Paſſage of our Author might have been left out, becauſe the Queſtion here debated, refers directly to the Lender,
and nor to the Borrower.
(2) This is certain; and God forbad it for ſome ſpecial Reaſons, which our Author ſpeaks of a little lower; ſo that nothing is
more ridiculous than the blind and malicious Zeal of certain Modern Authors, who, co thew their Reading, have blinded the Eyes of
the People, by quoting the Talmud and Spaniſh Rabbins, who explain the Law in Deut. 23. 19. ſtrictly. I fhill ſpeak upon the Paſſage
Luke 6.35. in Note 6. upon $ 9.
(a) Inſtance in Wine, lib. 12. tit. 1. l. 22. D. de reb. cred. (b) Add. lib. 13. 6. 3. 1. ult. D. de condi&t. Triticaria. & t. 4. D. de
eo quod certo loco, &c.
(c) Which is extant, Exod. 22. 25. Lev. 25.37. Deut. 23. 19. (d) De 3. N. do 6. fec. Heb. L. 5.6.6
(e) : Typ ni. e. Uſury fixed and determined. (f) 7777 pax i.e. The Duſt of Vfury.
† P p 2
their
272 Of tbe Loan of a Conſumable Commodity.
Book V.
their Riches and weaken thoſe Nations which God had they were oblig’d to exerciſe towards others all the
otherwiſe deſtin d to Deſtruction. Yet Leo of Modena common Duties of the Law of Nature (2) (3). And
(a) ſays, That Text is to be underſtood of the ſeven therefore, if Uſury be againſt the Law of Nature, I
Nations only
, that dwelt in Canaan? and not of the o- don't ſee how the God of Holineſs could indulge that
ther Gentiles : of whom it was not lawful to receive Nation, which he had peculiarly fan&tified, in the
Uſury. But yet that many, by reaſon of the Miſeries Practice of it, and in a manrer charge them to
of a long Captivity, and their Lands being with-bolden violate a Precept of the Law of Natuie, in
from them, and for want of a better way of getting Prejudice of thoſe who had never injur'd them; if
a Livelihood, had degenerated from the Integrity of indeed that Paffage in Deut. XXXIII. 20. (d: ought
ther Forefathers. But he proteſts that to be faljé, to be expounded not of the (4) Canaanites only, but of
which ſome ſpread abroad, That the Jews every Day any other Nation.
take an Oath to do what they can to cheot the Chri There ſeem to be ſeveral good Reaſons why ſuch
ſtians, and, he fays, it was invented to render them a Law againſt Uſury ſhould more eſpecially obtain
odious.
amongſt the Fews. The firſt may be taken from the
IX. Let us now conſider, whether what has been Genius of the People ; for they were as much addicted
thus pun&tually obſerv'd among the Fews, be the to the ſcraping up of Riches then, as now ; in which
Dietate of the Law of Nature; or the poſitive Law they thought their greateſt Happinefs to confift. And
of God; and that not peculiarly calculated for the therefore, that their Thirſt after Riches might not
Fews, but for all Nations. As for what has been tend to the Oppreſſion of the Poor, God ſeems to
added by the Jewiſh Elders, 'tis plain, that is alto- have provided by this Law. But yet leaſt too great
gether poſitive, and impoſed only to prevent Cavils, a Violence ſhould be offer'd to their Inclinations,
which deſigning Men had found out to evade the he permitted them to uſe greater Liberty among
Force of the Law. But in general our Opinion of U- Strangers.
Fury (b) (1) is this; provided it does not oppreſs and Beſides, (5) the Conſtitution of that Common-
grind the Poor, but anſwers the Advantage which we wealth required ſuch a Law. For 'tis evident,
our ſelves might have made, or which the Debtor Moſes deſign'd to have it Democraticat, (for ſuch a
does actually make of our Money, (eſpecially if he State may admit of a Chief at the Head of it) and
borrows not out of Neceſſity, but in order to make nothing contributes more to this than to preſerve, as
a Gain of it) the Law againſt it is neither that of much as poſſible, an Equality of Riches amongſt
Nature, nor that of God univerſally obliging all Na- the Members ; and to this end, were the Laws of
but a poſitive Law to the Fews only, founded Jubilee and Remiſſion inſtituted, and thoſe againſt alie-
upon Reaſons in a manner purely Politick. And it nating Land for ever. Lev. XXV 14, 31, 35, 36. Deur.
was generally the Opinion of the Rabbins themſelves XV. 2. Add Num. XXXVI. Which the Law of Solon
(C), that Uſury was neither Theft, nor againſt the reſembles, That an Heirefs ſhould marry her next
Law of Nature, as being founded upon Conſent and Kinſman by her Father's ſide.
free Contract.
And the very Condition of thoſe Times furniſhes us
But the ſame may be evidently proved from Reaſon; with an other Reaſon for the Law againſt Ufury. For
for tho' the Jews were by the Divine Precept join'd that Nation had then a more plain way of Trading
together in a cloſer Tie of Amity than ordinary, yet which conſiſted in Paſture and Husbandry, or Manu-




tions ;

Mr. Barbeyrac's NOTES on $ 9.
(1) I uſe the Word Vſury to avoid the ill Phraſe of Lending at Intereſt
. But ſome Authors who retain ſome Reliques of Pope-
ry, declaiming againſt the common Opinion of the Proteſtant Divines and Lawyers, maliciouſly affect to uſe the Word Vfury a-
lone, and ſay, for Example, that Vſury is allowed, or not allowed, becauſe that Term is become odious through the Abuſe which
is often made, of a Contract innocent enough in itſelf, and originally denoted by it.
(2) This appears by the Law of Moſes itſelf; for it forbids to oppreſs the Stranger, and do him any, Injury, Exod. 22. 21. 23.9.
Deut. 23. 7. 27.19. See Mr. Noodt, De fænore o uſuris, lib. 1. c. 10. p. 66, &c.
(3) And therefore they are deſervedly cenſur’d by Juvenal, Sat. 14. v. 103, 104.
Ask them the Road, and they ſhall point you wrong,
Non monſtrare vias, eadem niſi ſacra colenti;
Becauſe
you do not to their Tribe belong:
Quæfitum ad fontem ſolos deducere verpos.
They'll not betray a Spring to quench your Thirſt,
Unleſs you ſhew them Circumciſion firſt.
Mr. Dryden.
(4) If that were ſo, faith Mr. la Placette, in his Treatiſe Of Intereſt, God would not have excepted the poor Strangers, as they
are not excepted among thoſe that are condemn’d to Death without Mercy. See Lev. 25. 35, 36. Bur cho'God doch not approve
thac Intereſt ſhould be taken of any poor Stranger, he doth nor formally forbid any part; for the Law cited here concerns Pro-
ſelytes, who were, as it were, naturalized, and enjoyed the ſame Privileges as the Hebrews.' See Exod. 12. 48. &c. Numb. 15.
14, &c. and Mr. Noodt, ubi fupra, p. 60. We ſhould rather ſay, as Mr. la Placette alſo does, that the Expreſſion of the Law, which
allows giving of Intereſt, is general, and there is no Reaſon to reſtrain the Senfe. 'Tis to no Purpoſe, that sc. Ambroſe luppoſing of his
own Authority, that the Permiſſion only reſpected the Seven Nations of the Canaanites, who ought to have been deſtroyed, faich
in his Book of Tobias, chap. 15. “That it was a lawful Act of Hoſtility, and that ſince they might have ſlain thoſe Nations by
the Right of War, by much greater Reaſon they might be allowed to ſpoil them of their Goods ; for, as he ſays, Lending on
Uſury was an eaſier Way, and pleaſanter Means to impoveriſh and ruin them. Mr. Noodt anſwers this, p. 65. • That when one
< lends to, or makes any other Contract with an Enemy, he crears with him, not as an Enemy, but as a Man, towards whom com
ſequently he ought to obſerve the Law of Nature and Nations, and on thic Account ſuſpend all Acts of Hoſtility. Further, God
allowed the Jews alſo to take Money at Intereſt of Strangers ; and then we may as well ſay, That God would have Strangers to
impoveriſh and ruin his own People by it. Ms. Noodt urges many other Things
, which utterly overthrow St. Ambroſe's Notion,
and which obviate
all the Evaſions which that Father, and ſuch as are of his opinion, could deviſe. We may obſerve alſo, that
at one Time, the Lending ac Uſury was forbidden at Rome, from one Citizen to another, altho it was permitted in reſpect to the
Latins, who were their Allies. See Tit. Liv. lib, 35. c. 7.
(5) We may find theſe two Reaſons unfolded, and ſupported with ſeveral other Remarks, in the forementioned Chapter of Mr.
Noodt's Book De fænore o uſuris, p. 62, 6c. We ſhould allo do well to read what 7. Frederick Gronovius ſays in his Treatiſe, De
Centeſimis do Unciis Vfuris. Antexees 1. p. 467,6c, which follows his Book De Seſtertiis, &c. Edit. 1691.
(a) De Ritibus Hebraicis, p. 2. C. 5.
(6) See Mr.la Pl acette's Treatiſe upon Vfury.
(c) As Selden in the aforecited Place in-
forms us.
(d) See Mr. Le Clerc upon che Place above-cited.
fa£tures;


CHAP. VII.
in lome G) Share of
Of the Loan of a Conſumable Commodity. 273
factures ; Merchandiſe was ſimple and moderate, the another ; for Uſury låid upon Husbandmen is every
Secrets of Trade and Navigation being not known to where oppreſſive. Beſides, Mofes endeavour'd by that
them; and, in ſuch a State, no one borrows but when Law to endear them to one another; and they had the
he is preſt with Neceſſity. And therefore Deut. more frequent Occaſion to put it in Practice, becauſe
XXVIII
. 12. it is mention'd as an Argument of the then only ſmall Sums were borrowed, and thoſe too
greateſt Happineſs ; Thou shalt lend unto many Nati- by the meäher fort, and ſuch as Itruggled with Want
ans, and thou ſhalt not borrow (a). Since the Gains, and Poverty. From hence Philo Fudeus (c) inforces
in ſuch a Café, could not but be very ſmall, the leaſt the Exerciſe of Charity and Liberality among Fellow-
Uſury inaginable muſt needs be very burthenſome. Subjects (6) Which Vertue the great Legiſlator has
And where the Money borrowed is laid out upon indeed eſtabliſhed by ſeveral other Laws. See Exod.
the Neceflaries of Life, it will be next to impoſible XXI. 10, 11. XXII, 22, 23, 25, 26, 27, XXIII. 4,
ever to recover it ; for how can your Labour be able 5,9, 11, 12. Lev. XIX. 9, 10, 13, 33. XXIII. 22. XXV.
to bring you out of Debt, when it was not ſufficient 6, 10, 11, 35,36, 37, 39, &c. Déut, XIV. 28, 29. XV.
to ſupport you from Borrowing? Upon this Ac- 2, 4, 7, 8, 9, 10, 11, XXIII. 24, 25. XXIV. 10, 11, 12,
count the State of Athens was involved in ſuch Trou- 13, 14, 15, 19, 20, 21. XXVI. 12, 13.
bles, by means of Uſury, that it could not be reme But now Money is borrowed for other Ends, viz.
died otherwiſe than by Means of Solon's vardxoeta, i.e. in order to increaſe and improve one's Wealth.
Shaking off the Burthen. Vid. Plut. Solone, which Mif- When a Man borrows for this Purpoſe, why Thould
chief Rome alſo felt in its Infancy.
another lend for Nothing ? Nay, 'tis an unreaſonable
Grotius (b ) brings this as one Reaſon among others Thing, when you vaſtly improve your Fortune with
Riches of the Jews lay in Husbandry and Money, where the Gain : For I, in the mean time, am debarr’d
as moſt of the neighbouring Nations made vaſt Returns from making that Ảdvantage which I might otherwiſe
by Merchandiſe : And therefore Uſury was allowed have expected by applying it to my own Uſe. Be-
the Jews in their
. Dealings with them, which, with ſides, I have parted with ſomething Valuable, which
very good Reaſon, was forbidden to be taken of one ought therefore to be conſider'd ; for in lieu of my
Money

C
(6) From all that has been ſaid, it appears, that David, Pf. 15. 5. and Ezekiel 18. 13. 22. 12. give this Character of a good
Man, That he giveth not bis Money upon Vfury; but they treat only of the Lending forbidden by the Law, ſo long as the Govern-
mene of the fears was in Being, i. e. that which was done by one few to another. As for the Words of our Saviour JESUS
CHRIST, Luke 5. 34, 35. they ſeem to me, if we conſider them in themſelves, or with their Connexion, not to reſpect Lending
upon Uſury. His Divine Words are, If you only love them that love
e them that love you, what thanks have you? v. 32. And if you do good to them
that do good to you, what thanks have you? Do not Publicans and wicked Men the same? v. 33. And if you lend to them of whom yoù bope
to receive, what thanks have you! Sinners lend to Sinners, that they may receive as much again : But love your Enemies, and do good!
and lend, hoping for nothing, and great ſhall be your Reward, and you mall be Children of the most High, for he is beneficent to the
Unthankful and Sinners. This Phraſe, Hoping for nothing, doth not in the leaſt refer to loving your Enemies, and Doing good to
Lending; and I wonder that no Man, fo far as I know, hath taken notice of it, So lend, hoping for nothing, plainly ſignifies,
Lend, tho' you cann't expect that he that borrows ſhould do the like in his Turn. The Reaſon which our Saviour uſes, is taken
from the moſt noble Motive, and that is, to imitate God, who doth Good to the unthankful and unholy, which makes the Thing
very clear. But if we deſire a greacer Plenty of Proofs and Arguments, let us read Mr. Noodt's Firit Book De Fænore do Uſuris, and
Mr. La Placette's chap. 3. of his Treatiſe of Intereſt. The Truth is, JESUS CHRIST in that Text neither forbids nor approves giv-
ing of Uſury, nor had he any Occaſion to do it, ſince the Jews, to whom he ſpake, according to their Law, could not lend one to
another, bur freely. It belongs therefore to them, who condemn all Uſury in general. to prove, that it is unlawful in itſelf, and,
diſagreeable to our Goſpel-Diſpenſation. But they'll never compaſs their Deſign, ſeeing, that tho they have ſtudied the Natural
and Moral Law with ſo much Care, yet fome of them ſhew not only groſs Ignorance, but at the ſame time Weakneſs and Preſumption
A famous Cafuiit, Bannes 2.2 Quaft. 78. Art. 1. Dub. 1. owns (as Mr. La Placette obſerves) that the Proof which the Words of JESUS
CHRIST afford, takes its Force, not from the Words themſelves, which may have another Senſe, but from the Authority of the
Popes and Councils, which have ſo explained them. Thus the Knot is looſed, and they, who, tho' Proteſtants, dare let out them-
ſelves into grofs Invectives againſt the Opinions of their own Party, ſhew, that 'tis the Credit of the Fathers that they moſt value. But
they make a Noiſe to no Purpoſe. All their Declamations and fierce Contentions ſerve only to ſhew that the Reading of the Fathers
is capable of biaffing their Thoughts, eſpecially when it meets with a ſerious Temper, and ſuch as are more careful to improve their
Memory than their Judgment: For had theſe Men ſo much Zeal for the Honour of the Fathers, as to judge of them ſo long after
their Death, as freely as they would of an Author of the laſt Age, they ought to prove by good Reaſons, either that the Fathers
were infallible, or are not guilty of the Errors imputed to them. And I am willing that they begin, for that End, with Lending
upon Uſury, wherein they think themſelves to triumph; and let them ſee whether they can conture the two Treatiſes before quo-
ted, the One of a Divine, the other of a Lawyer. Waiting for what they'll do, I fay boldly of thoſe Works, and ſome others,
that have diſcover'd the Errors of thoſe ancient Chriſtian Doctors, That they are Iron, Steel, and Diamond for them. See what
fhall be ſaid lower in the Nore on $10.
(7) This is what is called Intereſt Lucrative, or Gainful Intereſt; whereas Compenſative Intereſt is only a ſimple indemnifying a Man
for a Profit ceaſing, and a Damage ariſing. There is no Difficulty of any Conſequence, but in the laſt ; and he muſt ſhut his Eyes
that will not ſee the Juſtice of
ſuch an intereſt
, fince in requiring it
, no more is demanded, than what we had when we lent it. Tť
any doubts of it, he may be fully convinced by reading of the sch, 6th, and 7th Chapters of Mr. La Placette's Treatiſe of Intereſt:
As to Lucrative Intereſt, ſomething may truly be alledged more ſpecious to oppoſe ir? but if we bring a Mind free from Prejudice,
We thall eaſily find that this Intereſt is neither leſs innocent nor lawful than the Compenſative. What Mr. La Placette has laid upon
it is ſolid, and from him I ſhall borrow fome Reflexions. As it depends on the Creditor co lend, or not ; lo ’ris at his pleaſure
when he purpoſes to lend, whether he will put his Money into the Hands of the Debtor for ſeveral Years, or for one only, or for
2 Month, or for a week, or for one Day only. Suppoſing then that he can lend for a Day, or a Week, yet he is willing to lend
for one or two Years, engaging himſelt not to demand it ſooner, why may not fuch a Renunciation, which depends upon him, and
is beneficial to the Debror, be fertled at a Price? When one has a Right of Service upon an Houſe or Field, he can renounce ic
for a Time or for ever, and ſer a Price upon ſuch a Releaſe. The lame Thing hath à Place in the Buſineſs of Homages and Re-
demptions. Upon what Account then is it forbidden to be uſed in the Right we have to cail in what is borrowed ? 'Tis to no
to alledge, that when the Sum lent remains in our Hands, 'tis very probable that it affords us no Profit ; and is it not
then an Injury to our Neighbour to make him pay for the Uſe of it, when we loſe nothing ourſelves ? This Anfwer fùppofes two
Things, and both of them alike falſe. 1. That in treating with our Neighbour, he may enquire what we ſhall loſe by lending
(2) Add. Deut. 15, 7, 8.
(b) Upon Luke 6, 350 (C) D: Charitate
Purpoſe
1
him
274 Of the Loan of a Conſumable Commodity.
BOOK V.

<
oney,
Money I have only an A£tion againſt your Perſon, dead, would either take to Merchandiſe themſelves
,
which can't be proſecuted without ſome Trouble. or would put out their Money to thoſe that doº;
For every Body does not conſider that of Martial, which would make Trade flouriſh, to the great be
B. 2. Epig. 130
nefit of the Common-wealth (b). Grotius (c ) is of
Opinion, That the Legal Intereſt ought to be flased,
Et Judex petit, & petit Patronus : not according to the Gains of ihe Borrower, but the
Solvas, cenfeo, Sexte, Creditori.
Loſs, that thereby accrues to the Lender ; as in tay-
ing and Selling, and other Contracts, no Regard is bad
It may alſo happen by fome Accident or other, that to what the Receiver may make of the Commodity, but
my Debt may be loſt. 6
My Slowneſs, in paying what what goes away from the Seller. And, in this
Í promiſed, has made me aſhamed of my Debt; how- Cafe, ſo much goes away as every N'an, in his own
ever, I may avoid the Cenſure of the world by pay- Calling, might and ufually does make of his A
ing it with Intereſt.' Pind. Olymp. Od. 10. Nay Allowance being made for Hazards, which in ſome cases
ſometimes the Debtor muſt be courted and careſs’d, are more, in others lefs: with whom I ſo far agree
that it may not be lift. And ſome borrow on pur- that no Man can complain, if his Debtor makes a vaſt
poſe to make their Creditors dependent on them. As and unexpected Return of his Money: But yet there
the Mareſchal de Rochelaure, when he was tax’d by is no doubt but I may demand higher Interelt of
Lewis XIII, with taking part with the Duke of him that makes a very Gainful Trade, than I can of
Mayenne, pleaded in Excuſe, That he did not follow another who drives a Poor one.
the Duke, but his Money : For his Debt would be X. The Arguments which are brought againſt Ufury,
but in a deſperate Condition if he did not ſtick cloſe to are eaſily anſwer’d. It is urged that the Loan of a
bis Debtor (a). Beſides it is not feldom that we lend Conſumable Commodity ought to be given Gratis,
be-
to Perſons who are utterly unable to pay. To whom cauſe the Loan of all other Things is fo. But I anſwer
,
that of Martial may be apply'd, L. 1. Epig. 76. that as I have a Power of Granting the Uſe of my
Goods, that are not Conſumable, either Gratis or for
Dimidium donare Lino quam credere totum Rent ; whereof the one is a Loan, the other a Letting : fo
Qui mavult, mavult perdere dimidium. what ſhould hinder me from granting the Uſe of my
Money alſo either Gratis or (1) for a certain Recom-
And therefore ſome are of Opinion, that it would be pence?, But, if you ſhould inſiſt, that that only is a
for the Advantage of the Publick, to allow none Loan which is lent out Gratis ; the Conſequence would
but Merchants to take up Money at Uſe; for this be, that Money lent upon Intereſt ought to be called
would make the Poor induſtrious and force them to by ſome other Name, and not that it is unlawful.
Frugality, who fome of them are not afraid to pay Another Objection is, That Money is a (2) Bar-
Intereſt for Money to maintain their Extravagancies. ren Thing (d), of no Use to Human Life, as are
And Monied Men, rather than let their Money lie Cloaths, Buildings, Cattel, &c. And therefore nothing
ought
5. Laſtly,
2. Ne-
him. 2. This is a Conſequence of the former, Thar every one is bound to do all he can for his Neighbour, if it coſts him nothing.
If the firſt be allowed, Commerce would be eſſentially unjuſt
, for it conſiſts only in endeavouring to get by what one fells; bur
if the Profit made hath nothing contrary to Charity or Juſtice (which is not impoſſible) nothing hinders but that we may lawfully
purſue it. If the other Suppoſition be true, we muſt condemn a Thouſand Things every Day, asd have nothing to oppoſe. As
for Example : I have two Houſes, of which one is of no Uſe to me, but a Charge, becauſe no Body dwelling in it, it runs to
Decay. Again, I have two Copies of the ſame Book, of which one is of no Uſe. Does it follow from thence, that I may not
fell or let out that Houſe or Book? There are a Thouſand ſuch Inſtances, where it cann't be taken ill, if one ſell the Property
or Uſe of certain Things which coſt nothing, and are uſeleſs to ſuch as ſell them, tho profitable to ſuch as buy them. Why then
may we nor do the ſame with Money, in lending it, as innocently as in other Things ? But there is another Proof more exact, and
taken from the fame Matter. A Creditor allows his Debtor to make uſe of his Money lent him; this is ſufficient to encicle him
to pay him Uſe. In ſhort, if we may lawfully ler an Houſe, an Horſe, Oxen, Tools, and an hundred other Things of that Na-
ture, why may we nor do the ſame with Money, and in general, with every Thing that is uſed in Commerce ? Divers Things are
anſwered to this, of which we may find a Solution in the next Paragraph, and iu the Treaciſe from whence this is taken. We
ſhall now only add the five Conditions which Mr. La Placette lays down to make Lucrative Intereſt lawful. 1. That the Creditor
is not otherwiſe bound to lend his Money freely. 2. That the Debtor obliges hinilelf willingly to pay ſuch Intereſt. 3. That the
Debtor may probably get by the Loan. 4. That the Intereſt is not greater than the Advantage he hopes to get by it.
That he does not go beyond the Bounds fixed by the Laws. Let us alſo obſerve, with the ſame Author, (Chap. 18.) That there are
two forts of Profir. 1. Poſitive, when a Man gers that by his Money borrowed, which he could not otherwiſe have had.
gative, which conſiſts not in getting what one has not, but in keeping what we have already, or may at length have, not in grow-
ing more rich, but to prevent being poorer. Borrowing is moſt commonly of this laſt Uſe, which happens ieveral Ways. As for
Example: A Man owes a conſiderable Sum, which he cann't pay, and pays 6 l. per Cent. for it; I lend him the ſame Sum at 4 pero
Cent. ; he really gets nothing, but he actually ſpares 2 per cent. which, were it not for me, he muſt pay to his firit Credicor.
Another hath need of Money, and not getting it, is forced to ſell at a low Price thoſe Goods, which he was ſure to ſell dear
in a little Time ; I lend him Money, which he could not be without, and ſo prevent the Loſs he ſhould have had by his Goods.
On theſe and the like Occaſions it cann't be unlawful to take Intereſt ; for indeed 'cis as good an Office to prevent a Loſs
, as fur-
ther a Gain. Moreover, this is the only, or, at leaſt, the principal Foundation of the Intereſt paid to the Directors
of the Bank called Monts de Piety, an Eſtabliſhment which all the world has found ſo uſeful and profitable to ſuch as are in Neceffi-
ty. We ought only to obſerve, that tho this ſort of Intereſt is not ſo contrary to Juſtice as the other, yet is commonly is more
oppoſite to Charity. The Need of the Borrower is ſuch very often, that he is obliged to borrow either without Intereſt
, or con-
tent himſelf with an Intereſt Compenſative, which hath nor Place ſo commonly in luch Loans as are made to them who borrow to
make a poſitive Gain. To all that has been ſaid, we may join Chap. 5 and 6, of the Int Book of Mr. Noodt's Treatiſe.
Mr. Barbeyrac's NOTES on 6 10.
See Mr. Noodt De Fænore do Uſuris, lib. 1. c. 6. p. 37, G.
8 Here the wicked and lazy Servant ſays to his Maſter,' I knew that thou wert an auſtere Man, who reapeſt where thou haſt not
sowed, and gatherest where thou haſt not ſcattered. By the Senſe is not, that it is Cruelty to take ure for Money lent, which is a
(a) Gramond. Hiſt. Gall. I. 5. Diodor. Sic. 1. 19. C. 24. Plut. Eumene. p.m. 591. C. Edit. Franc. 1620.
lium, de ratione ftatus, l. 2. C. 15. (c) Ad Lucam 6.35. (d) See Mat.25.24.
Thing



(6) Vid. Lud. Septa-

CHAP. VII.
Of the Loan of a Conſumable Commodity. 275
ought to be demanded for the Use of it. To which I over, but the Property muſt too, and vice verſa. For as the
anſwer, that tho’Money is ſo far Barren, as not to pro- Subſtance of Corn, Wine, and Flesh, periſhes in the Uſe of
duce its like ; yet after an Eminent Price has been them ; fo the Money that I expend periſhes to me, as
fet upon it, by the Induſtry of Man it gains a Facul- being remov'd out of my Eſtate. And therefore ſince
ty,
which naturally it had not, and becomes Produ{tive the Uſe can't be diſtinguiſhed from the Thing, nothing
of thoſe Things, which are both in natural and ci- ought to be demanded for the Uſe; it being enough, if
vil Reſpect fruitful. And therefore Uſury is not to the Thing be reſtored in kind. To this I anſwer, that
be look'd upon as a Natural but as (3) a Civil In- indeed the Uſe of a Conſumable Commodity does not
creaſe. Of which however Seneca ſpeaks ſeverely e properly differ from its Subſtance (a) (b) (5), but yet
nough : I fee, Sayshe, Deeds and Bonds and Writings, it does not therefore follow, that the Power to make
the Emblems of Covetoufneſs, which deceive our vain Uſe of it upon an Obligation to return the ſame in
Minds. For what are Uſury and Accounts, but Names Kind ſome time after is not worth ſomething. Now
unnaturally impoſed upon Things for the Support of 'tis a Condition in every Loan, that the Thing be not
Human Avarice? What are theſe Bills of Contract, return d 'till ſome time after; But if I Borrow Mo-
theſe Computations, theſe Prices ſet upon Time, this ney for ſuch a certain Tine,
cruel Intereſt upon Intereſt? They are all Evils of our other Fruitful Commodities, or make a Gain of it
own making, and depend upon our ſelves, they have ſome other way. And thus ſuppoſe I Borrow Pro-
nothing in them of Solidity, that can be either ſeen or viſions, or other Neceſſaries, my Gain conſiſts in this,
held, but are the empty Dreams of a covetous Mind, that
I am not neceſſitated to part with my Goods upon
De Benef. 1. 7.C. 10. (4) Ariſtotle too is ſevere enough ill Terms to procure Bread : Or, my Money, which
upon Uſury, The Art of Uſury, ſays he, is deſerved, muft otherwiſe have been thus expended may now
ly odious, for it makes a Gain of Money it ſelf, and be laid out to more Advantage.
not of that for the ſake of which it was found out And here we may obferve by the way, what Ari-
for the Uſe of Money is to carry on Traffick. But Uſury ſtotle (c) relates of Cypſelus, Who having devoted all
encreaſes it, and is therefore callid tón Quo for the thing his Goods to the Gods of Corinth, the firſt Year paid
begotten is like the thing that Begets; but in Uſury Mo- the Tenth part of them, and ſo for ten Tears together.
ney is both the thing begetting and begotten, and there. But in ſtri& Juſtice this did not ſatisfie his Vow, un-
fore this ſort of Gain is Unnatural, Pol
. 1, 7. (10) to. leſs, for the Relief of ſuch a Rafh one, any favoura-
wards the End. Beſides, Money let out to Intereſt is not ble Interpretation may be allow'd. That Saying of
apply'd contrary to its proper Uſe ; for he who bor- Cato in Cicero (d), who thought Uſury as bad as Rob-
IOWS Money does it at leaſt for the ſake of Barter- bing, and Murther, is to be underſtood only of Extor-
ing. And Property it ſelf was firſt ſettled, with a tion ; which reduces the Poorer fort to Extremities,
Deſign that every Man's Goods ſhould be immediate and adminiſters to the Covetouſneſs of the Rich. Our
ly beneficial to himſelf; and yet it is not againſt Na Anceſtors, ſays the ſame Cato (e), enalted in their
ture, to let out our Goods to another for Rent. Laws, that a Thief ſhould be condemn'd to pay Double
,
There is another Obje&tion, which is ſomewhat nice; but, an Uſurer Qurdruple. And yet he himſelf, if we
In Conſumable Commodities, the Property cannot be diftin- may believe Plutarch (f), did craftily
, enough exerciſe
guiſhid from the Uſe, and therefore the Uſe can't be made that fort of Uſury, which we now call Bottomry.
j
Thing barren in itſelf, but it is a Proverbial Speech, which implies only, that ſome Men require more than others can do. See the
Interpreters upon the Place. It may be better obſerv'd from the Parable, that it proves, that lending ac Intereſt is very innocene;
for if it were ſinful
, we cann't think that Jeſus Chriſt would have put into the mouth of the Maſter of the Parable, who repreſents
GOD himſelf, theſe following Words, Thou wicked and lazy Servant, thou kneweſt that I reaped where I had not sown, and gather
where I have not ſtrawed, you ought to have put my Money to the Bankers, that at my Return, I might have received my own with Uſu-
ry, ver. 26, 27. See further Mr. Noodt, lib. 1. c. 7, 8. De fæn. do uſur. where he confüres at large the Objections which our Au-
thor propounds here, and ſome others. The ſame Lawyer alſo examines in Chap. 9. a Paffage in Seneca, De Benef. lib. 7. C. 10. quoc-
ed alſo here, and proves it only meer Declamacion.
(3) Some anſwer, Thar true it is, that che Debror finds Means to improve the Money borrowed; but that's from li: Induſtry only,
and ſo conclude, he only ought to have the Profit. But (as Mr. Placette ſpeaks, ch. 10.) his Induſtry is not the only Cauſe of the
Profit made by the Money , for tho' Money, without Induſtry would bring no Profit, no more would Induſtry without Money; and
ſo one Part of the Profit muſt be imputed to the Money, and another to Induſtry. This is alſo viſible in fome Contracts of Lecting :
Land will bear nothing, if it be nor tilled ; Tools, let to an Artiſt, will do nothing, not only if they be not uſed, but alſo if there be
not Skill to uſe them. Nevertheleſs, all this is no Hindrance but that the Rent may be paid for the Land, and Uſe for the
Tools : And why then may nor Intereſt be paid for Money, as well as for other Things.
(4) Ariſtotle's Greek is, Eurogutala uichy ji 'Obonos alexs, ded to dism wró voulouco ) * xrñowv, xj šx épregé-
πορίθη. Μεθαβολής και εγένείο χάeιν και και τόκος αυτο που πλέον όθεν και τάνομα σαθ' ελληφεν· όμοια με τα τικτόμδυα τοϊς γεννώσιν
αυτά όξιν ο 3 τόκος γίνε3 νόμισμα νομίσματG» ώςε και μάλισα αρά φύσιν έτG χρηματισμών όξιν. De Republica, lib. I. C.
10. Mr. Noodt. de Fæn. Uſur. lib. 1. c. 7. p. 43. hath obſerved that Aristotle may be confused by Ariſtotle, who, in the Chapter
immediately foregoing, ſays, "That all Things which we poflefs have a double Ufe, one proper and natural, the other improper
and ftrange. As for Example, Says he, Shoes are properly made to wear on the Feet, nevertheleſs we uſe them to get Money, or
Tome other Thing in Exchange for them.” “Εκάς και ο κτήμα/Θ διττή και χρήσις όξιν αμφότερα και καθ' αυτό μεν, Μ' εχ' ομοίες
καθ' αυτό, δι' η μεν οικεία τα πράγμα/G: οίον υποδήμας, ήτε υπόθεσις, και η μέθαβληθική: αμφότεροι και υποδήμας
χρήσεις. Και 8 ο Ματτόμενα τω θεούω υποδήμα]G, αν νομίσμα/G- ή τροφής χρή), τω υποδήμαι, ή υπόδημα, εκ' την
οικείαν χρήσιν και ο αλλαγής ένεκεν γέΓονε· αυτ τρόπον έχει αεει και άλλων κτημάτων. chap. 9.
(s) A Sum of Money (lays Mr. La Placette) which is lent to a Man to be traded with, is not any more ſpent by that, than a
like Sum which is put into the Hands of one that acts by Commiſſion, to be employed for the ſame End, or a like Sum truſted
to a Partner, to act according to our Directions. All of them act after the fame Manner, and with the ſame Intentions. We con-
fefs that he that gives another a Commiſſion, and truſts a Partner, is ſtill Owner of the Money, and always in Pofleffion of an E-
quivalent. And why then may not the ſame thing have Place with reſpect to the creditor and Money lent? We lend nor to the
Man (ſays Mr.
de Beauval very well Hift. de oper. Do&t. O&tob. 1691, p. 66.) but to his
Goods. We reckon upon the Ability to pay,
and not upon the Induſtry or Fidelity of the Borrowero. A Reflection, which Martial puts into the mouth of his friend, Lib. 12.
Quod mihi non credis veteri, Theleſine, Sodali,
You cruſt not me, altho' your ancient Friend,
Credis Colliculis, arboribúfque meis.
'Tis on my Lands and Trees that you depend.
(a) Vid.lib. 7. t. 5. l. 1 and 2.D. de Uſu.eor. que uſu conſumuntur. (b) See Mr. Barbeyrac's Third Nore upon this section.
(C) Oeconom. I. 2. c. I.
(d) Off. 2. in fin. (e) De re rufticâ, princip. (f) Cato Major.
Au-
Ep. 25.

276 Of the Loan of a Conſumable Commodity.
Book V.
mere
Auguſtus very juſtly Cenſur'd fotne Roman Gentlemen, The Alcoran forbids Uſury, and yet the Moors Bor.
for taking up Money at low Intereſt, and letting the row Money to carry on Trade, and allow the Gredi.
fame out at high (a). The Old Romans and Greeks (b) tor half the Gain; but if the Principal happen to be
abbord Ufury, as being burihenfome to the Poor, and lolt, the Debtor refunds that only; but it only part
the Foundation of Suits and Quarrels : The Perfi- of the Principal periſh, the Whole mult be inade
ans, as being not very fer removed from Deceit and up out of the Gain of the Remainder
.
Lying. And certainly 'tis unbecoming a Chriſtian for A Mortgage, whereby a Man receives the Pro-
a Imall Sum to accept of Intereſt from thoſe, whom duce of Land given in Pledge for the Loan of Mo-
it is in a manner Charity to relieve (c). The Greeks ney, is ackowledged to be Lawful (f) (8): But it
took an excellent Method to ſupport their Friends in no Pledge be given, why may enot the Creditor re-
Diſtreſs : For ſeveral entred into a Society, and had ceive ſomething(2) anſwerable to the Produce of it (b).
a Common Cheſt, to which each contributed a cer Grotiis (i): reje&ts the Name of Ufury, but allows
tain Sum every Month; and out of this they lent the Thing For lays he, there are somethings which
Money without Intereſt to any one of the Society, that look like Ufury, but are Palts of another Nature :
Thould happen to be reduc'd' to Neceſſity ; upon Con- as the Amends that ought to be made á Creditor for
dition to refund it, if his Circumſtances ſhould ever the Loſs he is at being out of his Money, and the re-
happen to grow better (d) (e).
gard that ought to be had to the Gain he might have
XI
. In Confirmation of what has been ſaid for the made of it; Nill Dedu&tions being made for Uncertain-
Lawfulneſs of Uſury, it is obſervable that thoſe who ties and Accidents, and the Pains be muſt have taken
are againſt it
, allow of ſome (1) Contraets, which in in the Management of it. Thus it is not properly
effect amount to the fame Thing. Thus, fuppoſe Cai- Uſury to demand a Confideration for the Charges he is
us is furniſh'd with Money, enough to buy a Farm, at, mho lends much Money, and provides it on pur.
which Seius has a Mind to, but wants Money for the poſe; and for the danger of loſing the Principal, where
Purchaſe ;
Caius at the Requeft of Seius, buys the good Security is not given. Now the Intereſt for Money
Farm, and lets it to Seius. No Body can deny but that lent, not to a poor Man, but to one that makes a Gain
this Contract is Lawful. But if Caius ſhould lend of it, we demand upon this very Account, becauſe we
Seius the Money to buy it himſelf, and Seius ſhould are debarred from making that Gain of it, which o-
pay fo much for Intereſt as he muſt otherwiſe have therwiſe we might; and becauſe it is worth ſome
paid for Rent ; I don't ſee but that the Contrat would Confideration to have, inſtead of our Money, only an
be
very Juft. Nay, this latter Contract is much more A&tion againſt the Creditor and certainly 'tis reaſona-
for the Advantage of Seius than the former, for here ble we ſhould be admitted into Part of the Gain made
he purchaſes the Property of the Farm.
of that Money, which we were not oblig'd to lend,
Again, ſhould any one put his Money into an honeſt either in Juſtice
, or Charity. What Honeft Man there
Man's hands, upon Condition to be addmitted into an fore will quarrel about words ? And who would not
equal Share of the Gain, which he ſhould make of laugh at thoſe who pretend they don't take Uſury
it; no Man certainly would call this Contract unlawful. for their Money, but (3) only what they themſelves
But in Equity 'tis the ſame thing, if inſtead of this might have made of it? Beſides, this ſuperſtitious
uncertain Gain, he Bargains for a certain Sum, which Nicety is not at all conſiſtent with the Decrees of the
will never be the leſs Lawful, for being called by the Civil Law; for according to them the Uſury (4) is
Name of Intereſt
.
aſcertain’d and agreed upon before-hand : And the


;
Mr. Barbeyrac's NOTES on 11.
(1). We may add to thoſe ſpoken of here, a Contract between three Contractors, about which ſee Mr. Placette's Treatiſe of Inte-
rest. chap. 14. See alſo Mr. Noodt De Fæn. & Yſur. lib. 1. c. 12. of which the Title is, Mores rigorem Juris Canonici circa Vſuras in-
flexiſſe ad æquitatem Juris Gentium, non omnino improbantibus ejus furis interpretibus.
(2) We ſhall treat of this, chap. 10. § 14. following. Cum debitor (ſay the Roman Lawyers) gratuitâ pecuniâ ut atur, poteſt creditor
de fructibus rei fibi pignerat & ad modum legitimum uſuras retinere. Digeft
. lib. 20. tit. 2. In quibus caufis, &c. Leg. 8. See Mr. Noodt
de Vfuris Fæn. lib. 2. c.9.
(3) Id quod intereſt. And they underſtand by it as the Roman Lawyers do, as well the Profic chat was not made, as the Lofs that
poſitively accrued, Si commiſa eſt ftipulatio ratam rem Dominum habiturum, in tantum competit, in quantum meâ interfuit, i. e. quan-
tum mihi abeft, quantumque lucrari potui. Digeſt. lib. 48.tit. 8. Ratam rem haberi, &c. Leg. 13. See alſo Code, lib. 7. tit. 47. De Sen-
tentiis, quæ pro eo quod intereſt, proferuntur, and Mr Noodt ubi fupra, lib. 1. c. 12. 1. 2. c.6.
(4) In Contracts of Rigorous Right, the Engagements muſt be made exactly in the Forms. Reſpondit [Africanus) pecunia quidem
credita uſuras, niſi in ſtipulationem deduétas non deberi. Digeft. lib. 19. tit. 5. De præſcriptis verbis, Leg. 24. Si pa&tum nudum de pre
Standis ufuris interpofitum fit, nullius eſt momenti. Plaut. Sentent. lib. 2. tit. 14. A bare Agreement gives no Title to Intereſt in Ju-
ſtice, unleſs it be to Bankers, or Exchangers, Comniunities, to ſuch as run great Hazards with their Money, and lend in a way
ſomething like it, or to ſuch as lend Wheat or Barley. Neither can any Thing be required, when we ſay only that we lend upon
Intereſt, without ſettling what the Debtor ſhall pay. Such an Agreement was only valid with Bankers, and Juſtinian, who gave
them that Privilege, ordaind that they ſhall be lookd upon to lend at 8 per cent
. But for a long Time before that Emperor,
Money might be lent at 12 per cent. which was called; uſura Centeſima, but not higher, except, 1. When it was lent at great Ha-
zards ; for the Laws preſcribed no Bounds, no more than
in certain conditional Agrecments.. 2. In lending Proviſions ; for a Las
of Conſtantine, cited in the Theodoſian Code, allowed an Exaction of Three Buſhels of Corn, for Two lent. 3. When any one is
fined a certain Sum by the Judges, and pays it not within Two Months after the Sentence, he was obliged to pay Intereſt from that
Force of the Law, and not from the Agreement of the Parties. As for honeſt Contracts, a bare Agreement made on a ſuddenly
Time, at the Rate of 24 per cent if the creditor fummoned him to pay it, when three months were ended; but it was by the
empowers a Man to require Intereſt. See about this whole Matter Mr. Noodt, lib. 2. c. 3. gr. lib. 3.c. 1, 2, 3, 4, 5.
(a) Suet. in Auguft. c. 39. (b) Appian, 1. 1. de Bello Civili, p. 382. B. Edit. H. Steph. (c) Vid. Siracid. 29. 1, 2,&ic. Pſal
. 15;
(d) That Contribution-Money was called "čegro. (e) Vid. Cicer. de offic. lib. 2. in fin. See Caſaubon's Comment
upon the 16th
Chapter of Theophraſtus's Characters.
(f) Add. lib. 20. t. 2. 1.8. Ö. in quibus cauf. pignus tacite ccontrah.
(8) See hereafter, Chap. 19. Sect. 14. (5) Among the Perſians, Uſury is forbidden, but Mortgages allowed even under the
Lex commiſſoria, Olear, itin. Perſ. L. 5.6. 366 (i) L. 2 C. 12.

Damrages
1

Chap. VII.
Of the Loan of a Conſumable Commodity. 277
.
that while the Roman Commonwealth ſtood, no Intereſt could be dmanded in Juſtice, for the Debtor's Delay of Payment, unleſs
Notes upon this Section.
Damages allowed the creditor, for what he might ſometimes not. Nay, ſometimes if the Thing given
have made of his Money, are among other Reaſons for Sécurity happens to be loft, the Perſon of the
demanded, for Failure of Payment at the timer ap- Debtor is Refponfible for it. But that ſuch a Pur-
pointed, which ought to be ſtated according to the chaſe as this differs only in Name and Shew from
Lofs fuſtain'd, be it what it will; but becauſe it would Uſury, no Mün is fo blind as not to fee (e). V
be difficult to prove and adjuſt it exactly, it is there-Nay, in Confideration of the Uſefulneſs of mode-
fore generally (5) reduc'd to regular Intereſt (a) (b). rate Ufury, the Popes themſelves permitted, under a
Since therefore 'tis lawful to demand Dámages for ſpecious T'icle, Mountains, as they call them, of Piety;
tardy Payment, or becauſe we lofe by not having our that is, they did not allow either Pledge, or Intereſt
Money paid in at the time appointed; why may we to be taken for three Sc. lent to a poor Manu; but for
not Bargain for fomething certain before-hand, up- larger Sums Pledges might be taken for Security, and
on Confideration that our Money is in another Man's every Month ſome ſınall matter paid as Intereſt: and
Power, whereas we were not oblig'd for his Benefit if the Pledge were not redeemed in a Year, it was to
to venture the Loſs, or to neglect the Gain that might be fold by Aułtion, and the Remainder, after a Pay-
be made of it (c).
ment of the Debt, reſtor'd to the Owner. Alex. Se-
XII. Laſtly, It being evident, that (1) Men verus lent publickly at 4. per Cent. but gave many
could not be found who would lend as much Money poor People Money without Intereſt to buy Land,
gratis, as Human Neceſſities and Commerce, (as car and was contented to be paid out of the Produce.
moſt civiliz’d Nations) Vid. Lamprid. Something of the ſame Nature (but
requir'd ; ſeveral Shifts were found out and allowed that they part with nothing gratis, or without Se-
of to evade the Decrees of the Canon Law againſt curity) is ſtill practiſed in Lombardy, ſo called becauſe
Uſury. Among which may be reckon'd the (t) Pur- formerly moſt of the Uſurers in France were Lom-
chaſe of a Tearly Income (d); where for ſo much Mo- bards, and Fews, who afterwards were ſo odious as to
ney, I have ſuch an immoveable thing made over to be expelled the Kingdom. Vid. Hen. Steph. introduci.
me for the Payınent of it : Out of which I receive ad apolog. pro Herodoto, l. 1. c.6. After much Debate,
a certain Rent for ever, or for ſuch a limited or un- Ufury was allowed of in Holland, as a Thing beneficial
limited Time, or for Life. And this Income may, upon to the State, and even thoſe who took it were per-
Payment of the Principal
, ſometimes be redeem'd, mitted to enter into Holy Orders.
(5) The Words of the Digeſt are, In ejuſmodi ftipulationibus, quæ quanti res eſt, promiſfionem habent, commodius eſt certam ſummam
romprehendere : quoniam plerumque difficilis probatio eſt, quanti cujufque inter ſit, do ad exiguam ſurmam deducitur. Digeſt
. li 46. tit. 5.
De ſtipular. prætoriis, Leg. 11. When one owes a Thing in Specie, as the Uſe of it is determined, ſo the Damage which ariſ-
es from a Delay in ſuch and ſuch a Caſe may be fixed, and ſo 'tis not commonly neceſſary to limit the Value at a certain Rate,
which may be a Rule in all Caſes. The Creditor, for want of Payment at his Time, may ſuffer a Loſs many ways, which the Deb-
tor cann't imagine, and as to him may ſeem only fortuitous ; ſo thaç all that the Creditor can prove to be his Due upon Account
of Delay, is only
the Intereſt of the Sum deſired. Mr. Noodi, from whom this Remark is taken, lib. 2. c. 6. thews allo lib. 3. c. 6.
ſome Advance was agreed upon by Contract
. But fome Lawyers having introduc'd a Cuſtom chiefly in Matcers of Companies, the
Emperors enlarged it to all honeſt Contracts without Exception, as alſo to Legacies and Truſts. In contracts of Rigorous Right,
there muſt be always an Agreement in Form, or nothing can be demanded, altho' a Froceſs be entred. In fine, if we add to this
excellent Work of Mr. Noodt's, ſo many times quoted, the Treatiſe of the Learned Salmaſius, entitled, De Vſuris
. De modo vſurarum
o De Fænore Trapezitico, nothing more concerning the Hiſtory of Lending upon Uſury, the Phraſe and Deciſions of the Roman Law
about this Matter can be deſired. See alſo J.Vincent. Gravina’s Origines Jur. Civil. lib. 2. p.333. doc.
Mr. Barbeyrac's NOTES on 12.
(1) Some, ſays Mr. La Placette, ubi ſupra, chap. 1. cann't live without Lending, and others have need of Borrowing. 1. If ie
were not allowed to take Intereſt, what would become of a great Number of Perſons, whoſe Eſtare is all in Money? They'd ſpend
it in a few Years, and how then ſhould they ſubſiſt? 'Tis to no Purpoſe to ſay, they ought to learn ſome Art or Trade, and ap-
ply themſelves to Husbandry and Commerce. This is quickly ſaid. But do we not really obſerve, that there are Labourers,
Tradeſmen, and Merchants enough in the World? Are noc Lands ſufficiently tilld throughout all Europe, unleſs it be in Places ex-
poſed to the Ravages of War? And is it not plain, that there are Merchants and Tradeſmen more than enough, ſince many of
theſe Profeffions cann't get a Livelihood, and many of them that do, are forc'd to ſearch our new Inventions to excite and nou-
riſh Mens Vanity and Intemperance. 2. But (and this Conſideration renders Lending upon Incereſt more neceſſary) how many
mife
rable Men are there, who live only upon borrowing at Intereſt? What would become of many Merchanrs, whoſe Trade depends
entirely upon Funds of Eorrowed Money? How many Citizens and Labourers, who are preſſed from time to time with want of an
hundred Things, which they could not obtain any other Way ? Could they find always Perſons ready to lend them what they want
freely? This might be perhaps, if all Men were charitable, but ſince there are ſo few truly ſuch, and among thoſe that are, few
are in a Condition to lend, whereas many more are in Neceffity than can lend; it's plain that this Remedy has no Proporcion to
Mens Neceſſities: Nay, we may ſay, that what charitable Perſons can and ought to do freely, is nor the hundredth, nay, not the thou-
ſandth Part of what a great Number of Men are continually in want to borrow. So that it is of leſs Importance to Mankind that
we ſhould be permitted ſometimes to lend upon Intereſt, than it is to confine that
Permiſſion to certain Bounds, beyond which
hone may go. See alſo Mr. Noodt De Fæn. & Uſur. lib. 1. c. 6. Experience heretofore convinced an Emperor of the Neceſſity of
Lending money on Intereſt. Bafil the Macedonian, out of an inconſiderate Zeal
, and ill-informed
Piery, having abſolutely forbid it
,
Leo the Philoſopher was obligd to aboliſh that Ordinance, and allow Lending at 4 per cent. knowing, ſays he, that his predeceffor's
Prohibition was prejudicial to the State, becauſe thoſe that had Money would not lend it to thoſe that needed it, ſo that that Law
was above the Attainments of the human Nature. Propter paupertatem res illa non in melius (quem tamen finem Legiſlator propoſuerat)
Sed contra in pejus vertit. Qui enim ante ufurarum ſpe ad mutuandam pecuniam prompti erant, poſt latam legem, quod nihil lucri ex mutua
percipere poffent, in eos qui pecuniis indigent, difficiles atque immites ſunt. Propterea quod humana Natura ad illius (legis] Subli-
mitatem non perveniat, egregium illud præſcriptum abrogamus. Novel. 83.
(2) They are formally allowed by Pope Martin V. Extravagant. commun. lib. 3. tit. I. De Empt. O Vendit. C. I. and by P. Calix,
See Juſtinian's Novela 151. and Mr. Noodt's, lib. 1. c. 12.
(a) Vid. l. 17. 1.3. 1. 22. t. 1. D. de Vſuris. (6) Concerning this, Salmafius de Vfuris, and Mr. Placette de l'Interet, are worthy
(c) Add. Baco. Sorm. Fidel. c. 39. (+) Emptio Cenſus annui. (d) See Mr. Barbeyrac's Firſt and Second
(e) Add. Fran. Horoman. obf. 1. 2. C. 1. do Jo. Labard. Hijt de Reb. Gall. l. 6. p.393.

tus 3. ibid. c. 2.
to be conſulted.
ţ 09
How
278 of the Lgan of a Conſumable Commodity.
Book V:

them to be puniſh'd ſeverely. Before we conclude this Matter, let me add one Word of what is callault and Battery, and cauſe
How much the Laws againſt Uſury are evaded by. It is requiſite indeed, that private Men ſhould be
^)(3) dry Exchange (a) (as they call it) is well known hindred by Law from exacting what Intereſt they
among the Merchants
. To which may be referr'd that pleaſe, and that it ſhould be fix'd at ſuch a certain
ſort of Contra&t, which is called in Spaniſh, Mahatra Rate : Yet a Man may fairly expe&t ſomething inore
,
(6). When a Man takes up Goods upon Truſt at a high when his Money is lent but for a thort time (d) (e).
Rate, and immediately ſells them again to his Credi The Egyptian Law (h) did not permit the Principal
tor at a low one. 'Tis more tolerable when Goods are to be more than doubled by Ufury, and allowed the
bought dear, by reaſon that a long time is allowed for Debtor's Goods to be ſeized upon, but not his Per-
the Payment, and immediately fold to a Third fome-fon: Whatever they got by their Labour, or any other
thing cheaper for ready Money : For hereby juſt Title, was look'd upon as their Goods ; but as
a Man may avoid the Neceſſity of taking up of Mo- for their Perſons, they belong'd only to the Publick,
ney at unreaſonable Intereſts : or, in the mean time, to be diſpos’d of in its Service, according as they were
may make ſo much Gain as to be very able to pay the beſt qualified for the Duties of War, or Peace. Not
Debt at the time appointed. And this is common in
BIOD
Muſcovy (c.).
On od
Olof 903
This is, when Payment ought to be made in the very place where the Sum had been told, ſo that it is really a true Inre-
reft. It is oppoſed to Real Exchange, which is divided into Minute and Local; Minute conſiſts in the Change of Species, when
for Example, Silver is given for Gold, and Gold for Silver, for a ſmall Advantage Exchange Local is, when one takes a certain
Sum" tº return the like in another place. See Mr. Placette about all this, in the laſt Chapter of his Treacife of Intereſt.
(4) The Reafon of it is, and the Author ought to have mentioned it, that tho' the Intereſt ſeems exceſſive, yet it is a ſmall Mat-
ter to the Borrower, who uſually employs the Money to ſuch Ufes as produce a much more conſiderable Profir than he gives the
Creditor for ſo ſmall a Time. Further, beſides Sums that are borrowed for a little Time, there are alſo ſmall Sums, whoſe Intereſt
,
according to the common Ratę, comes to nothing, and is not worth the Creditor's Trouble, (See Mr. La Placette's Treatiſe, c, 22,)
it may happen, that in that little Space, he may loſe the Opportunity of putting out his Money for a long time, or make ſome
conſiderable Advantage of it, for which he would receive na manner of Recompence, if he received not greater Intereſt than he would
receive of a perſon who takes his Money for a longer time. In the Concluſion' thé Author tecites a Cuſtom of the Inhabitants of
Cnasus in Candia, $ 4. above, to ſhew how they eluded the giving of Uſury. At that place luch as borrowed Money at Uſe, took
it by Force, that if they refuſed in earneſt to pay Uſe to the creditor, he might have an A&tion of Aſſault and Battery, and cauſe
Bottomry
Adventure, which conſiſts in Lending Money upon a Merchant's Ship, upon this Condition, that the Creditor loſeth his Money,
in caſe the Vefſel and Goods, upon which it is lent, be loft. As the Creditor runs great Hazards, he requires more Intereſt than
ordinary, proportionable to the Dangers he is expoſed to. The Civil Law allows it, and there is nothing to oppoſe it in the
Law of Nature, Digeſt
. lib.22. tit. 2. De nautico fænore. For the Danger to which the Lender is expoſed is capable of Valuation,
and conſequently he may, on the one Hand, expoſe himſelf to it by the Mediation of a certain Price, and on the other, agree
for the Price with them for whoſe Sake he runs the Hazard. In a word, ſuch a Treaty hath nothing in it oppoſite to Juſtice,
more than a Bargain of Afſurance, of which we ſhall ſpeak in Chap.9. 98. See Mr. Noodt De Fæn. & Ufur. lib. 2. c. 7.
(*) Cambium Siccum. (a) Concerning this, ſee Mr. La Placette's laſt Chapter of Uſury. (6) Vid. Montalții, lit.
provincial. 8. & ad eam Wendrok. not. 3. (c) Olear. itin. Perſ. 1. 3. C.7. (d) Vid. Leonis Novel. 84. (e) See Mr. Bar-
beyrac's Fourth Sect. of this Chapter. ) Diodor. Sic. l. 1.C, 79,
or Great
suoda
:
1
0000
CHAI

CHAP. VIII.
279
TOTO
to w
nje) do so bus at 10
pot esant to
es moqad Bunge
ago
is a Contract (1) by which two, or buted on one he who contributed the Money does
CH A P. VIII. ar to in
OEMA POI misvig pontos
Of Partnerſhip
on to yli po
1. How many ways Partnerſhip may be begun.fi 9 III. Irregular Partnerſhip.
II. Money and Labour are ballanced ſeveral ways. IV. A Partnerſhip in a
1, sideand
and the Uſe of Money
more join together their Money, Goods, or La- on the other, he
bour, upon Agreement, that the Gain, or (2) Loſs ſhall not admit the other to a Share in the Principal ; but
be divided proportionably between them (a). And only to his Proportion of the Gain (2) that might be
here, if every Man contributes equally, each muſt re- made of the Money and Labour join’d together
. And,
ceive an equal Share in the Gain, or Loſs : but (3) if in this Cafe, as he that contributed only Labour has
they contribute unequally, their Shares muſt be ad no Title to any Part of the Money, when they break
juſted according to the Laws of Geometrical Propor- off Partnership;
ſo the other alone, as Owner, is con-
tion (b). And the ſame obtains, if two, or more cern’d in the Riſque that the Moriey is expoſed to, and
join (4) Labour ; or one (5.) Labour and the other in ſuch a Partnerſhip as this, not the Money it
Money (c); or each Party both Labour and Mo- . felf, but the Riſque that it runs, and the Gain thať
ney 15). SA
may be probably expected from it
, is compared with
II. Upon breaking of Partnerſhip, if each Party the Labour. And therefore when the Gain is to be
contributed only Money", "tis plain upon a Di- proportion'd, we muſt not compare the Labour with
viſion, each muſt receive according to his Con- the Principal (as if, one having contributed Work to
tribution. But if both (1) Money, and. Labour was the Value of 100l. and the other 10001. in Money,
contributed it muſt be conſider'd after what manner the former were to receive only a tenth Part of the
the Collation was made: For when Labour is contri- Gain) but to the Riſque and Hazard that the Money is
Partnerpip
Mr. Barbeyrac's NOTES on Chap. 8. S. 1.
(1) Grotius believes it to be a mixt Contract; but ſee what is ſaid above, c.2.9 10. we muſt obſerve that a Partnerſhip is contracted
fometimes tacitly, when, for Example, a Thing being bought in common, 'tis not parted, but without explaining chen elves fur-
ther, they enjoy it equally, each taking the Profic that ariſes, and contributing their Part in the neceffary Expences for its Main-
tenance. Societatem coire, do RE, & Verbis, do per nuncium, poſle nos dubium non eft. Digeſt. lib. 17. tit. 2. Pro Socio, Leg. 4. princ.
See Mr. Hertius's Diſcourſe, entituled, De Societate fa&to contra&ta, which is found in Tom. 3. of his Comments & Opuſcula.
(2) The Digeſts order, Sicuti lucrum, ita damnum quoque commune eße oportet, quod non culpa focii contigit. But if the Loſs comes
by the Fault of one of the Partners, he is reſponſible for it, and ſo he muſt not expect a Recompence of the Loſs which came by
his Negligence, in not doing what he was obliged to by the Contract : For ſo the Digefts appoint, Si Socius quædam negligenter in
fociet ate egiſſet, in pleriſq; autem Societatem auxiſſet, non compenſatur compendium cum negligentia, ibid. Leg. 26. See alſo
Leg. 73. and about this whole Matter Mr. Daumat's Civil Laws in their Natural Order, Part 1. lib. 1. tit. 8. As for Leg. 9.8.1.
which our Author quotes, it concains a Deciſion very harſh and unjuſt; for it requires, that a Partner, who has been hurc by his
Servant whom he purſued, and who belonged to the Partners, ſhould be cured at his own Expence; becauſe, ſays it, tho' he was en-
gaged upon that Expence for the Partnerſhip, yet it was not done in the Partnerſhip. Socius, cum refifteret communibus ſervis vena-
libus, ad fugam erumpentibus, vulneratus est, impenſam, quam in curando ſe fecerit, non conſecutur um pro ſocio a&ione, Labeo ait, quia id
non in Societatem impenſum fit. But was it not in the Buſineſs of the Partnerſhip that he was hurt? The contrary Opinion ought to
prevail with Reaſon; for there is another Latv under the fanie Title, where 'cis faid, that if a Partner going a Journey about the
Buſineſs of the Partnerſhip, falls among Thieves, who take away his Baggage or Money, or hurt his Servants, '
he ſhall be indemni-
fied at the common Charge. Quidam jagariam negotiationem coierunt: alter ex his ad merces comparandas profe&us, in latrones incidit,
fuamque pecuniam perdidit : Servi ejus vulnerati ſunt, reſque proprias perdidit : Dicit Julianus, damnum eſt commune
, ideoque a&tione pro
ſocio damni partem dimidiam agnoſcere debere, tain pecunia, quam rerum cæterarum, quas ſecum non taliſſet focius, nifi ad merces com-
muni nomine comparandas proficiſceretur. Leg. 52. 94. The Law here mentioned, and which is the Lawyer Pomponius's is corrected
by the following one of Vlpian, Secundum Julianum tamen, co quod medicis pro ſe datum eſt, recipere poteft. Quod verum eſt.
ibid. Leg. 6i.
(3) Ariſtotle's Greek is, KaJatis en xenud two molywrią wrów napbársol oi ouubaraóuevos arew, &c. Ariſtot. Eth. Nicom. lib.
8. cap. 16. And the words of the Digeſt are, Conveniens eft
' viri boni arbitrio
, ut non utique ex aquis partibus focii fimus, veluti ſi alter plus
opere, induſtrie, pecunia in ſocietatem collaturus fit. See alſo Leg. 80. of the ſame Ticie.
(4) The Words of the Digeſt are, Duo Societatem coierunt, ut Grammaticam docerent, & quod ex eo artificio queſtus feciffent, commu.
ne 'eorum eſſet. Digeſt. ubi ſupr. Leg. 71.
(s) The Words of the Inſtitutes are, Nam & ita coiri posse ſocietatem non dubitamus, ut alter pecuniam conferat, alter non conferat,
& tamen lucrum inter eos commune ſit, quia sæpe opera alicujus pro pecuniâ valet. Inſtitut. lib. 3. cit, 26. De Societat. § 2. See Die
geft. ſupr. Leg. 29.
(6) As when two Merchants are Partners, and are both concerned in the fame Buſineſs. See Leg. 52.6 4. quored Note 2. of
Mr. Barbeyrac's NOTES on $ 2.
(1) What the Author ſays of Money, muſt be underſtood of Effects, Goods, and every thing that is different from Labour,
and whatever may be reckond to be the stock of the Partners
.
(2) Not more than he thar lers Land to be tilled, makes the Labourer a Propriecor of the Lands, tho' he fecs him Part of the
Fruits; or he who commits a Flock to a Shepherd; on condition that he hill have a Share in the Wool, Milk, and other Profits,
muſt take part with him, when the Partnerſhip is ended. Si in corunda ſocietate artem; operamve pollicitus eſt alter, veluti
quum pecus in commune paſcendum aut agrum politori (Mr. Bynkerſhoek reads it, Olitori. Obſerv. 3. 9.) domus in commune quærendis fru-
Itibus, nimirum etiam ibi culpa præſtanda elt. Digeſti lib. 17. tit. 2. Pro focio. Leg. 52. 5 2.
(a) Vid. lib. 17. t. 2. l. 73. and 1. 52. f. 3, 4. L. 60. f. 1. D. pro Socio. (6) In Partnerſhip, the more a Man contributes, the more
does he receive
. Arift
. Nic
. 1.8.c. 16. In the ſame Senſe ought that in the Digeſts to be explained, I. 29. D. h. t. If it be not
mentioned what Share each Party contributed, they muſt be prefumed to be all equal. (c) Vid. Inftit. 1. 3. 6. 25. De focietate, f. 2.
† 092
this s.
expos'd
280
Of Partnerſhip.
Book V.
.
being in a manner united into Money of the other,
uberet, Gue
expos’d to, which if computed to be worth 100l. each quality will be obſerv’d, if the Inſuring Party receives
Party ſhall gain equally.
a greater Gain than the other, in Proportion to the
The beſt way, in this caſe, is to rate the Riſque of Rifque he runs in bearing the other harmleſs. But for
the Principal, and the Hopes of the Gain, according one to partake (3) of the Lofs and not of the Gain
,
to the Intereſt, that is generally given for Money. is repugnant to the very Nature of Partnerſhip ; for
Suppoſing then this Intereſt to be 6l.per Cent. if one no Body ever enters into ſuch a Contract, but upon the
Party contributes Labour worth 6cl. and the other Profpeck of former Advantage ccs
.
1000l. in Money, they ſhall ſhare Equally of the Gain. IV. Sometimes People enter into Partnerfhip (1) for
But ſometimes the Labour and Money are ſo in- all they are worth (d); in which Cafe each Party,
terwoven together, as to give him, that contributed according to his Condition and the Laws of good
only his Labour, (3) a Share even in the Principal; Husbandry, may take from the common Stock as
lays out his
Money upon unwrought Commodities
, and Circumſtances will induce them to (3) continue long in
another ſpends his Labour in working them up, and ma- ſuch a Partnerſhip as this (f), it would be conveni-
naging them. Thus, if I give a Weaver 100l. to ent to agree at firſt, what Share of the Gain each
buy Wool, and he makes Cloth of it, computing his ſhall pretend to upon breaking off
. Where Grotius
Labour at 100 l. 'tis manifeft, that here both of us (8) obierves, that no Regard ought to be had to what
have an equal Intereſt in the Cloth; And, when it is has been actually gain’d by this, or that Man's Contri-
ſold, the Money muſt be equally divided : Nor, ought butions, but to what might probably have been ex-
I to ſubftra&t the Money, that I contributed at firſt
, and pected from them : For therefore it is that many
then divide the Remainder with him (a). Tudi join their Stocks together, that each may be admitted
III. Beſides, 'tis not unjuſt to enter into ſuch a Pärt- into a Share of what is gaind by the Goods of
nerſhip, as that one Party may have a Share in the others.
Gain, (1) without being in danger of partaking of Now thono Man ought to have his Liberty fo
the Lofs (b). But this is irregular; and a mixt Con- far intrench'd upon, as to be confined to a Pariner-
tract of Partnerſhip and Inſuring : and here (2) an E- Soip longer than he deſires ; yet ſince a great (4) De-
gree
(3) This takes place in other Things as well as Money, as when one allows Ground for a Building, on condition that he thar
builds on it, ſhall have a Moiecy; or, as whenone crufts a Flock to be fed, or a Servant to be fed or caught, on condition that if
it be ſold at the End of ſome Years, the Money ſhall be divided among the Partners. Sed fi puerum docendum, vel pecus paſcendum
tibi dedero, vel puerum nutriendum, ita ut fi poft certos annos veniſſet, pretium inter nos communicaretur, abhorrere hæc ab areâ ergo
fi quis ares dominium non tranftulerit, fed paffus fit te fic ædificare, ut communicaretur, vel ipſa vel pretium, erit focietas. Digeſt.
lib. 19. tit. 5.
Mr. Barbeyrac's NOTES on $ 3.
(1) The Words of the Digeſt are, Contra Quinti Mucii fententiam obtinuit, ut illud quoque conſtiterit, posſe convenire, ut quis lucri
partem ferat, de damno non teneatur. Yer it muſt be underſtood, that in ſeveral Matters of Partnerſhip, if there be Gain on the
one Side, and Loſs on the other, nothing muſt be called Gain, but what remains when Loſſes are deducted. Quod tamen ita intelligi
oportet, ut fi in aliâ re lucrum, in aliâ damnum allatum fit; compenſatione fa&tà, Solum quod ſupereſt, intelligatur lucro effe. Inſtit. ubi
ſupra, $ 2. See Dig. lib. 17. tit. 2. Leg. 29. $ 1.
(2) So the Digeſts ſpeak, Quod ita demum valebit - ſi tanti fit opera quanti damnum eſt. Plerumque enim tanta eſt induſtria
ſocii
, ut plus ſocietati conferat, quam pecunia: Item fi folus naviget, fi folus peregrinatur, pericula ſubeat ſolus
. Digeft, ibid. But all
that is ſaid here of the Equality of the Portions of Gain, ought to be underſtood with this Reſtriction, if iť be not otherwiſe
agreed ; for then the Conſent of Parties ſupplies the Inequality of what each hath contributed of his own. Et quidem ſi nibil de
partibus lucri vel damni nominatim conuenerit, æquales fcilicet partes din lucro do in damno ſpe&tantur. Quod fi expreſſe fuerint
partes, ha fervari debent. Nec enim unquam dubium fuit quin valeat conventio, ſi duo inter ſe pa&ti ſunt, ut ad unum duæ partes perti-
neant, ad alium tertia. Inſtit. ur ſupra, $ 2.
(3) The Digeſts ſo order, Arifto refert Caffium reſpondiſe, Societatem talem coiri non poſſe, ut alter lucrum tantum, alter damnum fen-
tiret, & hanc focietatem Leguinam ſolitum appellare Iniquiffimum enim genus ſocietatis eſt, ex quâ quis damnum, non etiam lu-
crum fpe&tet. Digeſt. ut ſupra, $ 2.
Mr. Barbeyrac's NOTES on $ 4.
(1) So the Digefts ſpeak, Societates contrahuntur five univerſorum bonorum, five negotiationis alicujus, five ve&tigalis, five etiam rei
unius. Digeft. ibid. Leg. 5.
(2) Si ſocietatem (ſay the Digeſts) univerſarum fortunarum ita coierunt, ut quicquid erogaretur vel quæreretur communis lucri, atque
impendii efet, ea quoque quæ in honorem alterius liberorum erogata ſunt, utrinque imputanda. Ibid. Leg. 73.
(3) Nulla ſocietatis in æternum coitio eſt. ibid. Leg. 70. The Roman Lawyers ſay, that tho’a Partnerſhip hath been contracted with
this expreſs Clauſe, never to ſeparate; yet the very Nature of Society, which is the Source of Diviſions and Diſorders, if it be en-
tirely free, requires, that it be permitted to each of the Partners to renounce it, when it ſeems good to him, provided he do it
not at an unſeaſonable Time, and to the Prejudice of others. Si convenerit inter ſocios, ne intra certum tempus communis Res divider -
tur, non videtur convenifle, né Societate abeatur. Quid tamen fi hoc convenit, nè abeatur, an valeat ? Eleganter Pomponius Scripfit fruſtra hoc
convenire. Nam et ſi non convenit, fi tamen intempeſtive renuncietur ſocietati
, esſe pro ſocio a&tionem. Sed et hi convenit, ne intra certum tem.
pus ſocietate abeatur, & ante tempus renuncietur, poteft rationem habere renunciatio, nec tenebitur pro focio, qui ideo renunciavit, quia conditio
quadam, quâ focietas erat coita, ei non præſtatur, aut quid fi ita imperioſus & damnoſus focius fit, ut non expediat eum pati? Digeſt
. ibid.
Leg. 14. See the laſt Note of this Section. Quas diſcordias materia communionis folet excitare. Lib. 31. De Legatis & fidei com-
miſſis, 2. Leg. 97. $ 20.
.
(4) So the Digests order, Venit autem in hoc judicium pro Socio bona fide. Ibid. Leg. 52. 51. Cum in ſocietatis contra&tibus fides ez-
.
4
miferit, an culpâ, i.e. defidia, quæſitum est. Prævaluit culpæ nomine teneri, Sed culpa non ad exa&tiſimam, Sed talem diligentiam, qua-
lem rebus ſuis adhibere folet. Infticut. ubi fupra, $ 9. Tribonian joins here two Laws of the Digeſts, Pro Socio, which do not agree
together, viz. Leg. 52.5 2.6
58. See Mr. Thomafius's Diſcourſe, De Culparum Præſtatione in contraétibus,c. 1.8 24. Vinnius alſo owns,
that the Reconciling of this Section with Leg. 33. of that Title of the Digeſts, Depoſiti vel contra, is a Gordian Knot. As for me,
I have laid down a general Rule about all Contracts, wherein we have the Affairs or Goods of another in our Hands after a
ny manner, that we ſhould act as we would do for ourſelves, and our own Intereſt, in Things that moſt nearly concern us. And
be
(a) Compare Grotius, l. 2. c. 12. f. 24.
(6) Vid. l. 29. f. 1. D. b.t. (c) Vid. l. 29.1.2.D. h. t. (d) Ibid. f. 5.
(f) Vid. l. D. h. t.
(8) D. L.

(e) Ibid.
this
leg. 73:
70.

CHAP. VIII.
Of Partnerſhip.60.00
281
may
he tort In ſuch
1.Teace lome Nations determine Themſelves having voluntarily
' 28 , . n. & , 16.33. The
gree of Fidelity is required among Partners, he ought on whom he depended? Those Crimes are of theblack-
not to break off unſeaſonably
and to the Detriment of efi Hue, againſt which there is the leaſt guard : We
others (a). Upon this point Cicero (6) diſcourſes very defend our ſelves againſt the Malice of others, but to an
ſeriouſly (5). It is accounted, ſays he, a baſe thing to Intimate Friend we
d we lie open : For how can we provide a-
deceive a Partner in ever so ſmall a matter, and with gainst a Partner,whom ſo much as ſuſpect with-
reaſon : For he who enters into Partnerſhip does it out violating vær Duty? Well therefore did our Anceſtors
in hopes of gaining to himſelf an Aliftant. To whom judge him, who deceiv'd his friend in this Point, fit to
therefore can be fly for Succour that ſuffers from him be reckoned amongſt the worſt of Villains (6).
this Practice is the more juſt, becauſe the Roman Lawyers ſay, that Partnerſhip is a kind of Brotherhood. Societas jus quoddam
fraternitatis in fe habet. Digeft. Pro Socio
. Leg. 63. princ. But as for ſuch Miſchances
' as no human Forefight can prevent, nej-
ther of the Partners is reſponſible for them. Ďamna, que in prudentibus (it ſhould be read as Mr. Bynkerſhoek obſerves, 06.10
10. imprudentibus) accidunt, hoc eſt, damna fatalia, ſocii non cogentur præftare, Ib. Leg. 52. $ 3.
(5) Tully's Words are, in rebus minoribus ſocium fallere turpiffimum eſt neque injuria, quod auxilium
at
janxiſe
, qui cum altero rem communicavit
. Ad cujus igitur fidem confugiet, cum per ejus fidem læditur, cui ſe commiſerit. Atque ea funt
animadvertenda peccata maxime, que difficillime præcaventur. Teftir esse ad alienos poffumus, intimi multa apertiora videant neceffe est,
focium vero cavere qui poſſumus ? Quem etiamfi metuimus, jus officii ladimus. Re&te igitur majores eum, qui ſociun fefellifſet, in virorum
bonorum numero non putarunt haberi oportere. Orat. pro Roſcio Amerino. Chap. II.
(6) The Digeſts thus ſpeak, Labeo ſcribit, fi renunciaverit ſocietati unus ex ſociis eo tempore, quo interfuit Socii non dirimi
Societatem, committere eum in pro ſocio a&tione. Nam ſi emimus mancipia, init's focietate, deinde renuncies mihi eo tempore que
tendere
mancipia non expedit, hoc cafu, quia deteriorem cauſam meam facis, teneri te pro ſocio judicio. Digeft. ubi ſupra. Leg. 65.8 s. of which
ſee the reſt.
very w
(a) Vid. I. 65. f. 5, &c. D. h. t. ob(i) Pro Sext. Rofcio, c. 4. Add. Quintil
. Decl. 320.
widot
stood tod
ya shov
2819439 old tuo to,
c5 9fw 10 istas
sa v bu sabato
ich bongille
CHA P. IX.
posted ved stootjate steder in
Of Contracts depending on Chance.cool, parang
1. Bargains mixt with Chance.
V. Contraits in Play.
II. They are us’d, as well in Peace,
90
VI. Of Rafflings.
Ill. As in War.
VII. of Lotteries.
IV. Contracts in Laying Wagers.
VIII. Of Enſurance. Od
WE
E come now to ſuch Contracts as depend upon wealth might ſuffer by it. For as Iſocrates in Areopag.
Chance ; where the Parties refer themſelves to fays, pag. 248. Ed. Pariſ
. Fortune g
governs Lot
fome () uncertain Event, and give Security to ſtand (2) And Callimachus in Hšymn. Fovis, v. 63, 64. For
to, and to be determin’d by it. Some of theſe indeed à Thing that each has an equal Title to, 'tis convenient
have no Relation
to Price, yet moſt of them have ; to caft Lots
. And Philoftr
. in vita Apol. Tyan. 1. 3. c.9.
and therefore, we think fit to diſcourſe of them all Fortune has no Prudence, ſo that the worſt may
together in this place.
II. Theſe Contra&ts may be either Publick or Pri- fuppos’d to enter into Compa&t to acquieſce with
vate. The Publick, are ſuch as concern either War or out Complaint in the Determination of the Lot, as
by Lot (1) in chooſing Judges, iu aſſigning Provinces, Superior uſes Lots about that which he might enjoyn
and in diſpoſing of Offices, when the Competitors, of his own Authority, he is ſuppos’d to depart from
both in reſpect of their Right and their Abilities, his Right, and of his own accord to ſubmit himſelf
otherwiſe ſhould one have a to their Determination.
better Right, his Right might be Prejudic'd : Or The Deſign of theſe Lots is not to ſearch into the
ſhould another have greater Abilities, the Common- hidden (3) Decrees of God, unleſs where he poſitive-
Mr. Barbeyrac's NOTE on Chap. 9. §. I.
(1) Becauſe of the Uncertainty, he to whom the Event is not favourable, cann't reaſonably complain of the Lors that has be-
faln him, and to which he ſubmitted before hand. 'Tis the general Law of theſe fort of Contracts, to which we may referr
Bargains of uncertain Hopes, of which our Author treats Chap. 5. $ 6. above. Mr. Hertius alſo places in the Number of Con-
tracts which are hazardous, the Rențs of Ground loft, and Partnerſhip in all Goods, both in preſent Poffeffion, and future. See
On 2011' i alle STA
the Paræmie Jur. German. of the fame Author. lib. 1. c. 43.
orto in DODAO Doosing its
Mt. Barbeyrac's NOTES on $ 2.
(1) Concerning all theſe Matters, ſee Hadrian Junius's Animadverf. lib. 2. c. 5. of the enlarged Edition in 1708. Tho. Gataker
ſpeaks more exactly and fully in his Engliſh Book, of the Nature and Uſe of divers kinds of Lots, c.46 5. where he treats of this
Matcer, both hiſtorically, and as a judicious Moralift.
(2) Callimachus's Greek is, 'Ex” lockn 18 koung Threes. See alſo Juſtin, L. 1. c. 1o. n. 2. & L. 18.c. 3. n. 9, 10.
Lot is caſt in the Lap, (i. e. in the Hollow of fome Veſſel) but the whole Diſpoſal is of the Lord. But according ro the Language of
Scripture, no more is meant by it, than that men are not Maſters of the Effects wrought by Lots, as Mr. Le Clerc proves very
well in his judicious Reflexions upon Mens good or bad Fortune in the Buſineſs of Lotteries, Go C. 8. which the Reader would
do well to perufe throughly. See alſo Gataker, of the Nature and Uſe of Lors, c. 8. $ 3.4C. And Mr. La Placette's Treatiſe of
Hax ardous Games, C. 2.
ly

282
Of Contracts depending on Chance.
Book V.
Conditions and
calon he munu har en
tiſe of Gaming, lib. 5 16. where chis Queſtion is fully handled,
ly commands it (a), but to put an end to Strifes and
Such a Covenant as this do they enter into, who
Differences (b, or that a Perſon, who otherwiſe has decide their Quarrel by a Duel
, and therefore he that
Power to decide them by his own Authority may a- kills, is not obligd to make Satisfaction to the
void the odium of the Party againſt whom he decrees; ther's (3) Wife and Children for the Loſs; for they
and leave no room for a Complaint of the Injuſtice of join Battle by Agreement upon this Condition to Kill
the Sentence.
or to be Killd. But fince theſe Duels, when under-
But in a Controverſy where the Party caſt is Puniſh- taken by private Men of their own Heads, directly
able by Law, 'tis abſurd to apply any thing of Chancethware the End of Civil Judicature, they are deſerved
for no Man ought to be puniſh’d, unleſs Matter of ly reſtrained by ſevere Penalties. Formerly indeed
Faa be evidently prov'd againſt him: Whereas a Lot, they were allowed of, (but abſurdly, and againſt the
let it fall out how it will, can never be able to undo End of Civil Government) either to clear a Man of a
what has been done, & vice verſa ; and therefore Crime obječted, or to demonſtrate his Right in Con-
Lots are not capable of adjuſting fuch Matters. But teſt (f). Thus heretofore in Germany a Point of
when a Multitude are in fault, and 'tis inconvenient for Law, whether the Uncle, or the Son of the Elder
them all to ſuffer, then indeed the Criminals may be Brother deceas’d, ſhould take place in the Father's In-
puniſh'd by Lot.
heritance; was abfurdly left to the Determination of
In Private Affairs Lots are of great of uſe, either in a Duel (8).
dividing (4) of Inheritances, or conferring upon One a IV. Among theſe Contracts of Chance we may
Benefit, or a Burthen which cannot be divided, and reckon (*) (1) Wagers (b), when two differ about
yet which many have an equal Title to (c).
ſome future or paſt Event, if not known to either
III. Nor are ſuch Pacts as theſe of leſs uſe in War, Party, each laying down a certain Pledge, to be his,
either when the Iflue of the whole is thrown upon who ſhall happen to be in the Right. Theſe Wagers
the Event of a Battle between both Armies (1), ſeem to be Reciprocal Promiſes, and Conditional Bar-
or between two or more choſen out of each gains ;-which are ſo far mixt with Chance, as not ha-
fide (d): Or when ſome dangerous and honourable ving their Event depending on the Parties. The
Poft is to be aſſigned, for which many are equally Riddle indeed propos’d by Sampſon to his Friends,
qualified (e).
ſeems rather a Sport than a Wager (i), it being a Con-
Indeed almoſt all folemn Wars, at leaſt after all teft of Wit, whether he could propoſe a Thing with
Terms of Peace have been rejected, ſeem to ſuppoſe greater Obſcurity than they ſhould anſwer with Acu-
an Agreement between both Parties, that which Side men. But his Friends play'd foul, in ſolving his
ſoever ſhall have the good Fortune to be Conqueror Riddle, not by their own Ingenuity, but by the Trea-
ſhall have Right to give Laws to the vanquiſh'd (2): chery of his Wife. Though perhaps it was not ſo
and this is the Reaſon that no Party can ever urge as very fair in him, to make a private Fact, and not
an Exception againſt any Treaty that he was forced ſome common matter the Subje&t of his Riddle. For
to it by Fear for he who takes the Field, when itis almost importable to find out fuch particular pri-
pos’d to commit the Deciſion
the Deciſion of it to the
V. All ſorts of Plays (1) where the Parties contend
therefore
the for ſomething, carry
Chance of it impoſes upon him. And this too is the ing more or leſs upon Chance. And the more they ad-
Reaſon, that when they come to Articles, the Parties mit of Ingenuity, Sleight, Cunning of Strength, the
engaged are preſumed to ſtand upon equal Grounds as leſs are they concern'd in Chance ; and indeed are only
to the Juſtice of their Cauſe, and whatever Miſchief ſo far dubious, as the degree of Strength or Dexterity
has been done on either fide is forgiven, as ſuppos’d is not as yet manifeſt, or, as fome unforeſeen Acci-
to have been done by Conſent.
dent may interpoſe (k), or as Human Wit and Indu-
(4) See Pf. 16. 6. For the other two Paſſages quoted by the Author, relate only to ſuch rare and extraordinary Occaſions, as
God over-rules the Lots in ; for every Tribe had his Portion of Land exactly in the Places where Jacob (Gen. 49.) and Mofes (Dzit.
33.) had foretold that they ſhould be.
Mr. Barbeyrac's NOTES on $ 3.
pogos
(1) See lib. 8. c.8. $ 5. following. Toitri
(2) See lib. 8. c. 8. $ 1. following. SHO (3) See lib. 3. c. 1. $ 7. above.
Mr. Barbeyrac's NOTES on 6 4. satin
(1) They are allowed by the Civil Law, provided they are not uſed about Things unlawful and diſhoneſt; and he that wins them
by fair Play, may recover them by Law. Si quis fponfionis caufâ anulos acceperit, nec reddit Viktori, præſcriptis verbis a&tio in eum
competit. Plane ſi inhoneſtá cauſa ſpanſionis fuit, ſui annuli duntaxat Repetitio eſt. Digeſt. lib. 19. tit. 5. De Præfcriptis verbis,
Leg. 17. $ 5: See alſo lib. 1.1. tit. 5. De Aleatoribus, Leg. 3. Moreover
, as Mr. Titius on Lauterbach obſerves, Obferv. 294. When
one lays a Wager about a Thing already
done, the Wager i
is no leſs good, cho'one of the Contractors knows the Truth of it certainly.
Indeed, whoever reſolves willingly to lay a Wager with any one without knowing whether he is ſure of what he maintains, or not, he
muſt be thought to run the Hazard to engage a Perſon on the ſure fide, and conſequently, if it ſo happens, muſt blame himſelf
,
an unknown Fact or Accident, one asks the other whether he knows any thing of it ; for in this caſe, if he ſeems to be ignorant
of what
to draw in the other to lay a Wager, he is guilty of Deceit, and ſo the Wager is void. See my Trea-
(2) See Mr. Le Clerc on Judg. 14. 12. doc.
Mr. Barbeyrac's NOTES on S 5.
(1) I have ſearch'd this Matter to the Borrom in my Treatiſe of Gaming, Printed in 1709.
v (a) See Prov. 16. 33. (b) See Prov. 18. 18. (c) Add. Numb.. 24. 13. 30f. 14. 2. Pfal. 16.6.
(d) Vid. Grot. L. 2.
c. 23. 1.10.6 l. 3. C. 20. f. 42. (e) Vid. Hom. 3. M. V. 171. (f) vid. Jur. Canon. cit. 10. De purgatione vulgari, co pajim
Cod.
. Legum antiquarum Lindenbrogii, ejuſq; Glossarium in Vocabulo Campio do Duellium. **(8) Apud Sigibertnm Gemblaceniem
ad ann. 942.
(*) Sponſores. (h) See Mr. Barbeyrac's Firſt Note upon this Section: (i) Fudg. 14.12, &c.
(k) Vid. Virg. Æn. l. 5. v. 328.
ſtry
oort 21
CHAP. IX.
Of Contracts depending on Chance.
283

asy
may
allowable reveau
to whom they are expos’d, it is caſting Lots for them. So it cows higheſt, it may ſeem unreaſonable that he
Itry does not exert it ſelf ſo much at ſome times as every one of the Contributers ſhould have an equal
it does at others. Many are dependent both upon
are dependent both upon Chance for it, in Proportion to their Contributions.
None of which are Naturally Unlawful, for it is by and ſeveral, at certain Rates, buy the Liberty of draw-
Conſent that we engage in them, and each Partying them with this Condition, that he who draws a
ventures Equaļ, and plays for Things that are in his Benefit ſhall receive the Value inſcrib’d upon it. 1104
own Diſpoſal. But becauſe the Publick is concern'd This ſomething reſembles our (t) Lotteries, and
that no Man ſhould mis-ſpend his Eſtate ; and a Man
comes neareſt to that Sort of Contrast, which we call
be eaſily undone by Gaming (3), if he plays high the Purchaſe of Hope, tho there be Hazard enough
(2); at leaſt (4) much Time, which is a precious Thing, with it. The Rule here is, That the Price of all the
may
be conſumed in it (b), and becauſe it is frequent- Tickets ſhould not much exceed the Value of the Be-
ly the Occaſion of Quarrels (c), and ſeveral other (5) nefits; I ſay, not much, for Charges are to be con-
Inconveniences; it is therefore the Buſineſs of the Go- fider'd, and the beſt Benefits may happen to be drawn
vernment to conſider, how far Gaming ſhould be per- firſt, and if ſo, People won't be fo forward to venture
mitted, and how high (d); but generally ſpeaking, upon the remaining Tickets.
all ſorts of Gaming 'tis a ſtanding Rule that no foul of the Poor ; in which Caſe, the Price of all the Tickets
Play be made ufe of, (6) For they that run in a Race together, is generally much larger than the Value of the
aré fuppos’d to contend by Swiftneſs, not by Tricks ; Benefits; which Overplus is in the Nature of Alms and
to endeavour at the Victory by Speed, not by laying on of Charity given after a free and chearful manner (f).
Hands, or tripping up the Heels of their Adverſaries (e). But, in fine, for an Equality in Gaming, it is not
VI. 'Of the ſeveral forts of Gaming, that which we only requiſite, that the Venture on each side ſhould be
call (1) (*) Raffling is, when Many contribute towards equal ; but alſo that the Danger of loſing, and the
the Purchaſe of a Thing, and then leave it to Chance, Probability of winning ſhould bear Proportion to the
which One ſhall have the whole. In this there are Thing contended for ; v.g. in a Game that depends up-
two forts of Contra&ts ; for in reſpect of him who on Skill or Ingenuity, if One Man is twice as Skilful
expoſes his Goods, it is Selling : in reſpect of them as the Other, it is fit he ſhould lay down a double Stake.
if Ten lay down each of him
For, by Agreement, he whom Fortune favours is to
to th
have the whole, and the reſt are to be at the Loſs of who ventures but one Guinea ſhould gain Nine; bụt
what they contributed. The Rule here is, that the then we muſt conſider that it is nine times inore pro-
whole of the Money contributed ſhould equal, and bable thar he loſes than he wins. Upon which Ground
not exceed the Value of the Commodity : And that ſome (8) (2) think it a fooliſh thing to be afraid of
(2) See Mr. Placette's Treatiſe of Hazardous Games, c. 6. who cann't be ſuppoſed to be inclined to looſe Opinions. A Learned
Engliſh Divine a long time ago confuted thoſe of his own Profeffion, who abſolutely condemned all hazarđous Games, as in them-
felves contrary to Chriſtianity, very fully. It was Mr. Gataker, in his forementioned Book of Lots, Chap. 6,7,8. and he has alſo
in Chap. 9. laid down ſuch conditions, as he thinks, Gaming may be allowed on. This Book I ſaw noc till my Treatiſe of Gam-
sing was Printed, otherwiſe I ſhould have had regard to ſo conſiderable an Authority. Was the Vanity of hazardous Playing ever
ſo great? for you compoſe yourſelves to be content to hazard your Money in the Game-houſes. You carry your Pockets full of
Piſtoles to loſe them at one Caſt of the Dice. See the following Verſes.
(3) Fuvenals Words are,
Alea quando
Hos animos! Neque enim loculis comitantibus itur.
Ad caſum tabula, pofitâ ſed luditur arcâ.
(4) Ovid's Words are theſe.
Quique alii luſus (neque enim nunc perſequar omnes)
Perdere Rem charam, tempora noſtra folent.
(5) Nothing is more fine or true than the following Verſes of Mad. Deſhouliers, which, tho' every where known, yer it may not
be unpleaſant to read them here.
Pleaſures are bitter, when they are abuſed:
That he is an honeſt Man, and plays high.
It is good to play a little to divert;
The Deſire of Gerting, which haunts us Night and Day,
But we muſt let it only amuſe us.
Is a dangerous Spur.
The Player, at the firſt Sight, vom
Tho' our Thoughts and Intentions be often good,
Hath nothing humane, but his Appearance, guiott o We begin by being deluded,
And further nothing is ſo eaſy as to imagine this
And conclude by being cheated.
See alſo the Sixth Serious and comical Amuſement.
(6) Cicero's Words are, Seite Chryfippus ut multa, Qui ftadium, inquit, currit, eniti & contendere debet, quam maxime poffit, ut vincat,
ſupplant are eum quicum certet, aut manu depellere, nullo modo debet.
Mr. Barbeyrac's NOT E on 86. old
(1) The Author ſays, Lotaria, which I expreſs’d in my firſt Edition by Lottery; but it may be better rendred Raffling.
Mr. Barbeyrac's NOTES on $7.
(1) This I conceive is meant by Olla Fortune in our Author, tho it cann't be exactly rendred in every Language, moſt Coun-
tries having ſome Terms proper to them. See my Treatiſe of Gaming, lib. 2. c. 2. $ 11. where I oppoſe the Author of the Art of
Thinking, who condemns Lotteries in general, as Arts of Cheating.
(2) This is all taken out of the Art of Thinking, Part 4. Chap. 16. tho our Author quotes it not.
(a) Juv. S. 1. v.88,&c. (b) Ovid. Trift. 1. 2.V. 483, 484. (C) The Alcoran, together with Wine, forbids thoſe Plays
which depend on Chance, becauſe they adminiſter frequent Occaſions of Quarrelling, Cap. de Menſa. (d) Vid. L. II. t. 5.
D. de aleatoribus, & ibi juris Romani interpretes, Phocius, Nomocan. Tit
. 13. c. 29. Selden de Jure, N. & G. Sec. Hebr
. 1.6.c. 11.
(e) Ambr. Of. 3. c.4. Which is caken from the Saying of Chryfippus in Cic. Off. 3. C.10.
(*) Lotoria. (t) olla Fortune.
(f) Add. Martin Delrio Diſquiſit, Magic. I. 4. C. 4.
Chap. 16. and the Laſt, whence our Author has taken moſt of this section.
(8) This may be ſeen more at large in Mr. Boubour's Art of Thinking, Part 4.
Thunder,



284
Of Acceſſory Bargains.
BOOK V.

, . ,
Thunder, for of 2,000000 Men perhaps not one may ſuch Infuring, it is to be ſtated by the common Rate,
periſh by it; and therefore not only the Greatneſs of the or by the Agreement of the Parties. Thus much is cer-
Evil, but the Probability of its not happening ought to tain, that the more or greater the Dangers are, which
be conſidered.
the Commodity is expos’d to, the greater Rate
* VIII. To theſe Contracts, that of Inſuring bears may be demanded for Inſuring it; as if the Seas be
fome Affinity; when for a certain Sum a Man takes inteſted by Enemies and Pirates, more may be demand-
upon him the Riſque that Goods are to run in Tranſ- ded than if only the Uncertainty of Tempeſts were
portation from Place to Place, chiefly by Sea; which, apprehended. And in reſpe&t of them too, more in
if they happen to be loft
, the Inſurer is bound to make Winter than in Summer (a). This Contra&t I have
good. This Contract is null, if either the inſurer mention’d here, becauſe in reſpect of the Inſurer it
knows for certain that the Goods be already ſafe, or chiefly depends on Chance. There is mention made
the Merchant that they be loft
. For the Matter of in Livy (b) of an Inſuring which coft nothing, for they,
this Contract is fuppos’d to be a Loſs conſidered as who bought up Čloth and Corn to be tranſported to
uncertain. Whereas if the Inſurer is certain that the Spain, demanded, That what was on Board ſhould be
Goods are arriv'd ſafe, he runs no Rifque : and if the Inſur’d by the Publick from the Danger of the Enemy
Owner knows that they are loft, he can't demand an- and the Seas ; But what cheats were committed by
other to run the Riſque of them; for what is not in this means we may read in the fame Author (c) (d).
Being can't be liable to Riſque. As for the Price of
(a) Add. Locenius de Jure Maritimo, l. 2. c. 5.
(h) L.23. C. 49.
() L. 25. 6.3. (d) See Mr. La Placette's
Treatiſe of Reſtitution, B. 4. C. 15. where he treats of Infucing.
C HA P. X,
Of Acceſſory Bargains.
Acceſſory Contracts of two Sorts, collect
IX. A Surety can't be engaged for more than the.
II. Variety of Additional Bargains alle
Debtor,
III. An additional Bargain, if it's lewd, is void. omat X. But he may be more ſtrictly Bound.
IV. Sometimes it diſorders Buſineſs.
XI. What Advantages the Law allows a Surety.
V. Being preſently added, is valid, if other Things - XII. Of Bails.
gree.
XIII. The Uſe of Pawns.
VI. Being added after ſome time, in the Negative, is XIV. A Pawn is either fruitful or barren.
liable to an Exception.
XV. Whether a Pawn may be gained by Uſe.
VII. Being affirmative how far 'tis Good.
XVI. What is the difference between a Mortage and a
VIII Of Truſting.
Pawn.
Having me horen westh prineipaw
Contracts that aflebont then dement Contradie, to which they are added be able
ly Acceſſory and have no Exiſtence, but as they are Rigour of the Law And laſtly, Whether they affect
added to others. Theſe may be divided into two the Eſſentials of the Contracts, or ſuch Things as na-
for Some are apply'd in order to add, or take turally flow from them, or ſuch only as are Acciden-
away ſomething from the principal Contract
, and tal to them. Whereof the First®are fo Neceſſary, as
theſe the Civilians call Additional Paits : Others are that no Contra&t can be without them: The Second ge-
added only as a Confirmation and Security to Contracts nerally proceed from theContract, altho’ they be not ex-
already compleated.
preſt; yet ſo as they may be varied by the Parties, with-
II. The Roman Lawyers (a) diſtinguiſh, between ſuch out affecting the Eſſence of it: The Laſt have no Depen-
Additional Pacts as are added before, or immediately dence at all upon the Effence of the Contra&t,but owe
upon the entire Completion of the principal
. Con their Being purely to the Pleaſure of the Parties. More.
are added ſometime after ; Then they examine whe Pacts be added to encreaſe, or to leſſen the Obligatioti
.
Mr. Barbeyrac's NOTES on Chap. 10. 2.
(1) See above, Chep. 2.9 2. 8.
8
Such is the Conſent of Parties, withqut, which no Gontra&t can be made. The expofing of Goods, and ferring the price
are particularly eſſencial to a Bargain of Sale.
) a
ſhall
of a .
(4) As when a Buyer engaged, that in care of conviction
, the. Seller ſhall forfeit 4 times the Price of the Goods, or when they
agree to give ſome Security, or to leave ſome Pledge in hand, &c. See s s. following.
(5) See $ 6, 7. following, and Cujacius's Obſervations, 14, 28. Franciſc. Hotoman's Questo illuſtres, 36, 37. This Matter is much
perplexed by the Interpreters, by reafon of the ſubtle Diſtinctions which the ancient Lawyers have confounded the Law with, and
(d) Add. D. lib. 2. t. 14. de Pu&tis, L. 7. f. 5.





Sorts;
Bobrol
DOO VIA
III Con-

che

Chap. X.
285
Of Acceſſory Pacts. O
may
odll. Concerning all which we inay form theſe follow-
V. III. Palts which are added immediately upon the
1. A Palt ſo affecting the EJence of a Completion of the Courratł, whether they concern the
Contract as to make it Unlawful,or againſt good Manners, Eſentials of it,or thoſe Things wh.ch naturaliy flow from
is Null. For we have proved above that (1) no ſuch Co- it, or thoſe wlrich are purely Accidental to it, are va-
venant can ſtand Good; Thus if a Bride ſhould add a lid if they be not Repugnant to Law. For ſince both Par-
Claufe to her Contract of Marriage, by which She ties are here ſuppos'd to have power to diſpoſe of thele
might be allowed the Uſe of other Men ; or, if a Things, they muſt be obligʻd to what (1) they Conſent
Steward ſhould add it as a Condition that he ſhould to; thus, although it be (2) Natural in Buying and
be permitted to imbezil his Maſter's Goods, they Selling, that the Buyer be put in Poffeffion of the Coin-
would neither be Valid. So it would be ab- modity, yet the Parties by an Additional Pię may or-
furd for a Man to make a Bargain, and at der it otherwiſe (9).
hod
Toggi
the fame time to proteſt that he is forc'd or frightned
into it : or, for a Man in any Contract whatſoever to Thus the Obligation to make good a Defeat be
confeſs that he does not deſign (2) to deal honeſtly (a). augmented or diminiſh'd, beſide what the Nature of
the Contract would otherwiſe admit of; and the fame
air W. I When the Pact So affects the Eſſence of the obtains in (3). Conſenſual Contracts, (4) If between
Contred, as utterly to change the form of it, Regard the Completion and the Execution of them a Paft be
muſt be bad to the Intent of the Contractors; For if Added for this is the ſame Thing, as if the Parties
they deſigned the Contract
, according to the Import proceeded upon a new Contract.
of the words in which it is expreſs’d, 'tis plain that
thie Pact which is Repugnant to it muſt be Null; for The Purchaſe of an Annuity, ſeems to be ſuch a
they cannot be ſuppos d to Will things, which are In- ſort of Borrowing, as may he referr'd hither. For i
conſiſtent and Deſtructive of each other. Thus it receive Money upon Condition to pay ſuch a cer-
would be Ridiculous, if a Man ſhould pretend to buy, tain Man, ſo much Intereſt as long as he lives, pro-
and yet add ſuch a Condition as would make it im- vided that after his Death, the Principal be my own;
poffible for Him to receive the Commodity, and the whereas otherwiſe the Natyre of a Loan requires
other the Money; or, if he ſhould fo Let a Houſe, as that the Principal be return'd to the creditor or his
to make over the Property of it to the Tenant ; or to Heirs.
lenter into Partnerſhip, ſo as to have neither the Gain
mor the Loſs in Common.
VI. IV. A Pact added to a Contract ſome time after
its Completion, if it be Negative and deſigned to take
Bt if the Parties did really intend the Change, and from tħe Obligation, and ſo made in Favour of the
miſtook only in the wording of it, or for ſome cer- Debtor or Defendant, is Valid. Thus ſome time after
tain Reaſons choſe to ſpeak improperly, provided it a Debt has been contracted, the Creditor and Debtor
be not againſt the Laws, it will ſtand Good, and not may enter into Covenant concerning the putting off
bequafh'd for the Impropriety of a Term (1) (b).. the Payment, the Changing the Place of it,
the Obſcurity diſperſed thro' the Fragments which we have of their Writings. See what Mr. Thomaſius ſays in his Diſcourſe, De
Oſu pra&ico accurat & diftin&t. inter empt. cum pa&to de retrovend. do contra&tum pignor. Chap. 11. $ 10:
Mr. Barbeyrac's NOTES on $ 3.
(1) See what I have ſaid upon lib. 3. chap. 7..9 6. Note 2.
(2) This is decided by the Roman Lawyers, Illud non probabis, dolum non effè præſtandum, ſi convenerit : Nam Bac Conventio contra
bonam fidem, contraque bonos mores eft : & ideo nec ſequenda eſt. Digeft. lib. 16. cit. 3. Depoſici, vel contra. Leg. i.$ 7. See allo S35.
and lib. 50. tit. 17. De regulis Juris, Leg. 23.
Mr. Barbeyrac's NOTE on $4.
(1) This muſt be fuppofed in a dubious Caſe, ſays Mr. Hertius here, who quoreș this Maxim about it, Contra&tus non tam nomine
quam animo contrahentium æftimantur, as it is found in the Digeſts, lib. 19. tit. 21 locati, condu&ti, Leg. Is. $ 4. but there is nothing like
it, neither in that Law, nor two others, which the fame Author points at afterward, Digeft. lib. 16. tit. 3. Depoſiti, c. Les. 24, 26.
where we only find ſome Examples, which may have a Reference in ſome mariner to this Subject.
Mr. Barbeyrac's NOTES ôn s.
(1) So the Digeſts ſpeak, Contra&tus enim legem ex conventione accipiunt. Digeft. Depofiti, çoc. Leg. 1.96.. Vid. Leg. 24, 26. ST.
Lib, 2. tit: 14. De Pactis, Leg. 7. $ s. Lib. 18.tit. 1. De contrahenda empt. G. Leg. 7. 8 1. Leg. 79. do Inſtitur. lib. z. tit. 26. De
1,2
(2) We may here ſer down a Sale with a Claſue of Cointniffion. Addi&tio in diem, and a Clauſe for leaving a Bargain, and one of
taking Goods upon
Tcial
, i. e. on Condition, if they don't agree, the
Seller ſhall take them again. See above, Chap. s. 5 2. and
As alio chat ſort of Contract, by which one lends a certain sum on a Loft Fund, ie. that he who hath received it on that Condition,
рау Intereft, either to ourſelves, during Life, or to another Perſon, as long as he lives; but after the Death of the Perfon no-
minated, then the Principal is his to whom it was lent: Whereas commonly, ſuch is the Nature of a Loan, that the Sum borrowed
may be called in by him thar lent it, or his Heirs, which laſt the Author mencions.
(3) See Chap. 2. $6. above.
(4) The Words of the Digeſt áre, ,Vt conſtet in emptione, cæteriſque bone fidei judiciis
, re nondum fecuta poffe abiri ab emptióne. Si
igitur in tot um poteft, cur non & pars ejus pačtione mat ari poteſt . ut quodammodo quafi renovatus contractus videatur!
-OCS S19W 2018 DOO
-7104 Isan. atom
byl Mr. Barbeyrac's NOTES on $6.
(1) See above Chap. 2. f. 3. Vid. D. lib. 2.t. 14. De pa&tis, L: 7. 1. s. lib. 18. c. 1. De contrah. empt. L. 72.
(a) Vid. D. lib. 16. t. 3. Depoſ. vel contra, L. 1. 97.68 35. (6) Vid. D. lib. 18.6. 1. de contrah. empt. &c. L. 8o. 1. 3. lib.
19.1. S. De praſcript. verb. &c. 1.4.8 6. lib. 17. tit. 2. pro Socio, L. s. 1. 2.
dåt. L. 11. f. 18. siamo
(c) Vid. D. lib. 19. t. 1. De alt. empt. Go VET.
t R
the
Socierace, $ 1,20
fhall
25 zo hooc: 00 01
286
Of Acceſſory Pa&ts.
Book V.

or
Years,
It hoc called in one Word Conftitutum or Pecunia
quis tempus dubium timens, amico potentiori fundum manci.
rig. Fur. Civil. lib. 2. p. 448,44 inortet do fine Fraudatione ; Vid. Ciceron. de offic. L. 3. C. 17. O in Topicis, c. 1o. do ad Famil,
Jocietatis: falleře, qui ſe in negotio co
makes
Ghis Son free hding
emui Pon Pawns, and a firm Truſt. As to the firſt of theſe, Among the Ancient Romans
the Species of Money, the Forgiving the Inte- ſhould Covenant, that the Buyer ſhould pay more
reſt, &c.
than the Commodity is worth. Unleſs this be a mixt
Contract of Buying and Giving, I can't ſee how the
VII. V. fy the Law of Nature, as far as bare Paxt Additional Price can be demanded (c).
DON SHORTS
is capable of A&tion, a Paxt added to a Contract ſome
time after its Completion, although it encreaſes the Ob-VIII.
VII. Hither I think may be refer'd what we call
ligation, and to turns in Favour of the Creditor
or a * Truſt, (1) when we make over to another the
Plaintifft
, may be Valid. For the Reaſon why the Roman Property of a Thing upon Condition to have it re-
Law denies it, (viz. becauſe a bare Affirmative Pat does ſtor d again: which I mention among the Additional
not bear an A&tion,) is out of the Verge of the Law of Patts, rather than the Principal Cantracts, becauſe it
Nature (a). Thus ſuppoſe I had bought a Commodity, is always added upon the Delivery of the Thing. And
which by the Bargain is to be delivered by ſuch a Day, this ſeems to be call’d a (2) Truſt: becauſe, whereas
if afterwards we Covenant to have it deliver'd ſooner, otherwiſe when the Property of a Thing is made a
there is no Reaſon but that I ſhould receive the Be- ver to another, he
ver to another, he may diſpoſe of it as he pleaſes, and
nefit of it
. Or, fuppoſe I Let you my Houſe for two either keep it himſelf forever, or part with it to ano-
and we afterwards by Conſent limit the Time ther; by this Additional Pa&t we ſeem to truſt to his
to one, at the End of the Year you ought to quit Pof Honour and Honeſty, that he will not uſe his Proper-
ſeſſion : but then I can't demand the Rent that would ty otherwiſe than according to Agreement, and will
be due for the other Year. And thus in Loan of Mo- be willing to part with it again upon Demand. And
ney, I don't ſee why the time of Payment may not be therefore the Solemn Form of this Contract among
Anticipated as well as put off by an (1) Additional the Romans ran, (3) As honeſt Men
ought to deal
Compact (b); nay altho' no Allowance be made to the together without Deceit. And becauſe the Truſt
Debtor for this (2) Anticipation, yet he has no Injury was ſo very Extraordinary, the Breach of it was there-
done him, if he voluntarily ſubmits to it. But 'tis fore branded with a particular Infamy by the Roman
manifeſt that
his Obligation ought not to be encreas d Laws. *(4) There are three private Concerns, upon the
againſt his Will, and therefore naturally as much as honeſt Diſcharge of which, a Man's Reputation and
is added to him by this Subſequent Pact, ought to be almoſt his Life depends, A Truſt, Guardianſhip, and
taken off ſomewhere elſe. Thus, if the Creditor will Partnerſhip, Cic. pro Roſcio, c. 6. If a Guardian
have ine pay him at another Place, than that which ought to be Faithful, if a Partner, if one entruſted
we agreed upon, I on the other Hand can fairly de ' with a Commiſſion, if one that has receiv'd a Trufi
,
mand an Agreement of ſo much as it is my Intereſt to Id. Topicis.
pay it in the former. But 'tis againſt the Nature of Lns 990610
Bartering and Chargeable Contracts
, that any Palt 15* He who by means of his Truſt has defrauded any
ſhould be added to encreaſe the Obligation ſo much on • One is condemned immediately, Id. pro Cæcinna, c. 3.
one fide, mas to make an Inequality, as if the Buyer But in what Matters the Romans interpos’d this Truſt
and Seller ſhould agree upon ſuch a Price, being the you may meet with every where amongſt their
true Value of the Commodity; and yet afterwards Lawyers":(5) De Fiduciario Patre.Vid. Caium, Inftit:
1. 6.
Olawale Hair
2 รัฐแม่... 2ไร 42 551
Mr. Barbeyrac's NOTES on $ 7.
This is
it in Effect, as appears by theſe two
by theſe two Laws, of which our Author quotes the Firſt; and by this we may obſerve that
little Connexion there is between the Principles and Determination of the Roman Law. Si is, qui & Jure Civili do pretorio de-
bebat, in diem fit obligatus, an conſtituendo teneatur ? Et Labeo ait teneri [conſtitutum adjicit, vel propter has potiffimum pe-
cunias, quæ nondum peti poſſunt, conftituta induéta; quam fententiam non inuitus probarem, habet enim utilitatem, ut ex die obligatus,
teneatur. Sed do citeriore conſtituat- ſe foluturum, ſimiliter tenetur. Digeſt. ut fupra, Leg.
3. $ 2. Lego 4. pris siue se es pod iBobaMr. Barbeyrac's NOTES on § 8. **
(1) 'Tis the Definition that Boethius gives in his Commentary upon Cicero's Topicks, cap. 1o. Fiduciam aecipere dicitur is, cui Res
aliqua mancipatur, ita ut eam aliquando mancipanti remancipet. As for Example, faith he, If in a Conjuncture, when we fear chac
we Friend to buy it
to us again at the ſame Price, as ſoon as the Danger is over.
pet, ut ei cum
personnes
(2) See 1. Menard upon Tully's Oration pro Q. Roſcio Comedo, Chap. 6. in Tom. I. of Gr&vius's Edition, and 7. Vincent Gravin. O-
3
agier
L. 7. Ep. 12.
(4) Cicero's Words
Words are, Si qua enim ſunt privata judicia ſumma exiftimationis, co pene dicam capitis, tria hæc funt, fiducia, tu-
Æque enim perfidiofum & nefarium eft fidem frangere, que continet vitam : & pupillun fraudare, qui in tutelam pera
G
.
(5) Moreover, This Head of Truſt hath Piace in diverſe forts of Affairs, viz. making the Heir of a Family free, Poffeffion for a
Tiine
would
After which the crue Father having redeemed his son, he enfranchiſeth him, and ſo his Free-
dom is effected. See Gaius's Institut. 1. 6. and Roſinus's Antiq. Rom. lib. 9. cap. 1o. But át length theſe pretended Sales were abo:
liſhed, and it was ordained that the Fathers-should appear alone, and declare to the Judges, that they reno unced their Paternal Pow-
ler over that Child that they made free. See Inſtitut. lib. 1. c. 12.9 6. See Mr. Thomafius's Diſcourſe De quaſi-emancipatione Germa.
Childrenes About which ſee the Inſtitutes, lib. 3. tit. 2. De legitima Agnatorum. Succesſione, 58. and Code, lib. 8. tit. 49. De emanci,
norum, printed at Hall in 1703. This Freedom
produced a particular Effect as to the Succeſſion of Fathers to the Goods of their
2012 on.si
(a) In the Laws before-cired. (b) Vid. lib. 13. t. 5. 1. 3. f. 2. D. de conftit, pecun. c
spaltis, c. 9,6 c.
(*) Fiducia.
C
$
.
SO.
110
ou od
1929 3030
002
if a Father
3
as a
to
pationibus

CHAP. X.
287
Of Acceſſory Pacts.
as tila
1,6.- A Truft, was contrafted in Childrens fucceeds cover her again, he enters into a Truft with his friend
*ing to their Father's Goods?, Vid. lib. 3. t. 2. f. ult. and gets him to marry her, and immediately after to
Init de legit, agnat. ſucceſſ. L. ult. lib. 8. 49. c. de emanc. part with her. For after a Divorce, unleſs the Wo-
liber. de fiduciaria poldeſyone. Vid. Budæum. ad l. 2. man be married again, ſhe cant't return to her firſt
lib
. 1. t. 2. D. orig. juris
. Greg, Tholofan. Syntag: juris Husband (a).
1. 23. c. 5. f. 2. Vid. Inft. l. 1. t. 19. De tutela fiducia-
rie. Vid. Bachov. ad d. t. Inſtit. De fiducia circa pig But ſuch a Truſt as evades the Force of the Law,
nis contra&ta. Vid. Ifid. Erymol. 1. 5. c. 25., Cujac. ad ought not to be contracted ; as if I ſhould give a Man,
Pauli recept. ſent. 1. 2. t. 13. Sic & in fidei commiffys who is free from Taxes, my Eſtate in Truji
, in order
inftar fiducia intercedit. Vid. princ. 1. 2. t. 23. Inſt. de to cheat the Tax-gatherers.
fidei commil). & ibi Bachov. &c. We have an Example
of this ſort of Truſt in Livy. L. 32. c. 38. "So Alboi IX. As for ſuch Palts as are added by way of Con-
nus delivered up. Pannonia to his Friends the firmation and Security to Contracts already com ,
· Hunns upon Condition that if the Longobards ſhould pleated, the moſt uſual is that, by which one Man
ever have Occaſion to return, they ſhould reſtore it gets another to be bound for him, ſo as to be Re-
back. Vid. Paul Warnefried. de geſtis Longobard. ſponſible in caſe he ſhould fail. This Perſonal Se-
· L. 2. C. 7. Nabarzanes (in Curtius. I. 5. c. 9.) adviſes curity is required in theſe Three Caſes.com
Darius to make over his Kingdom to Beſſus for a Firſt, Between Man and Man for the Performance
• Time, ſo as to receive it back again when Things of ſomething Valuable, which is callid Suretiſhip. Se-
· ſhould be ſettled. Hercules having fubdued Sparta condly, In Criminal Affairs, which is commonly called
placed Tyndarus the Father of the Dioſcuri in the (1) Bail
. Thirdly, (2), In Publick Concerns, where
Throne, which being his by Conqueſt, he entruſted Security is given by (3) Hoſtages.
with him, upon Condition that he would reſtore it
ſafe and found to Hercules's Sons. Diod. Sic. l. 4. For the right underſtanding the Nature of Sureti-
t. 33. Boetius (in Topic. Cicer. ubi fupr.) begins a ſhip, we muſt look back to the laſt Setion of the fe-
Cafe with, If a Man fearing the Badneſs of the Times cond Chapter to this Book, to which we add, that
ſhould make over in Truſt a Farm to a Powerful being bound for another we make our felves fo far
,
lip, when he ſaw that he muſt fight, and raiſes Forces But then Recourſe may be had to the Principal Debtor,
in al Paris, being ſollicitous for the City of Argos, (4) and the whole with the Charges may be recoverá
zhought it beſt to put it into the Hands of Nabis of him. Now ſinceSuretiſhip is only an additional Con-
King of Lacedemon in Truſt
, to be reſtor'd again, if firmation to a Contract, (5) the Surety cannot
he return'd with Succeſs: but if not, to be (6) kept naturally be obligd to more than the Principal (b);
for bimſelf.
So that if the Principal was obliged only condi-
tionally, the Surety cannot be obliged, unleſs the
Among the Turks, if a Man ſwears to put away, Conditions be made good, nor can he be confin'd
his Wife, altho’ he immediately repents of it, he is to ſuch a Time or Place which the other was not ob-
yet oblig'd to ſtand to his Oath: but in order to re- liged to. And whatſoever (6) Exceptions the Debtor
pationibus liberorum, Leg. 6. Of Lending upon Pawns, ſee Salmafius's Treatiſe of Uſury, cap. 4. & de modo Uſurarum, cap. 14. and Mr.
Noodt's Obſervat. lib. 2. c. 7, 8. as alſo Mr. Thomaſius's Diſcourſe De Uſu pra&tico accurat& diftin&tionis inter emptionem cum pa&to de re-
trovendendo, do contra&tum Pignoratitium, Printed at Hall in 1707. C. 1. 93.& c. 2. $ 20, &c.
(6) See above in Chap. 2.5.6. Vid. D. lib. 2. t. 14. de pa&tis, L. 7. 16. Vid. Leg. $8.& lib. 18. t. 1. de contrah. empt. L. 72. t.4.
de reſcindendâ vendit. L. 1, 2. & C. lib. 4. t. 45. Quando liceat ab emptione Diſcedere, L. I.
Mr. Barbeyrac's NOTES on $ 9.
(1) See above, lib. 2. c. 4. $ 18. and S 12. of this Chapter.
(2) See lib. 8. c. 9. $ 12, 13. following.
(3) See ibid. 5 6.
(4) The Digests ſay, Fidejusfor in judicio fiftendi caufà locuples videtur dari; non tantum ex facultatibus, ſed etiam ex conveniendi faci-
Zit ate, Digeft. lib. 2. tit. 8. Qui ſatis dare cogantur, &c. Lib. 2. princ. But when once a Man is taken by us for a Surety, we ought to
be ſatisfied, unleſs he become poor chro' ſome ſudden Accident. Qui ex caufà improbat ab arbitro probatos, alios improbatos probat :
multoque magis fi ſuâ voluntate accepit fidejuſſores, contentus bis eſſe debet. Quod fi medio tempore calamitas fidejuforibus infignis, vel
magna inopia accidit ;. cauſa cognitâ ex integro Satis dandum erit. Ibid. Leg. 10. $1.
(3) The Words of the Law are, Fidejuſſores ita obligari non poſſunt, ut plus debeant, quam debet is, pro quo obligantur. Nam eorum
obligatio
, acceſfio est principalis obligationis : nec plus in acceſorio potest esse, quam in principali re. At ex diverſo, ut minus debeant, ob-
ligari poſſunt. Itaque fi reus decem aureos promiſerit
, fidejuſſor
in quinque reétè obligatur : contra vero obligari non poteſt
. Item fi ille
pure promiſerit, fidejusſor ſub conditiore promittere poteſt : contra vero non poteft. Non ſolum autem in quantitate, sed etiam in tempore
plus vel minus intelligitur, plus eft enim ftatim aliquid dare, minus eſt, poſt tempus dare. Inſt. lib.3. tit. 11. This Maxim is carried to
far, that if the Surety hath anſwer'd a bigger Sum than what the Debe amounts to, he is obliged to no more. Illud commune eſt in
aniverfis, qui pro aliis obligantur : quod fi fuerint in duriorem cauſam adhibiti
, placuit eos omnino non obligari: in leviorem planè cauſam
accipi poſſunt. Propter quod in minorem ſummam re&è fidejuſſor accipietur. Ibid. Leg. 8.9 7.
(6) The Words of the Digeſts are, Ex Perſona rei, & quidem invito reo, exceptio
& cætera rei commoda fidejuſſori, ceteriſque acceſfio-
nibus competere poteſt, Digeſt. ubi ſupra Leg. 32. Si is, qui fidejuſſorem dedit, ideo non ſteterit, quod Reipublicæ causà abfuit, iniquum eſt
fidejusſorem ob alium neceſitate fiſtendi obligatum esse
, cúm ipſi liberum effet non fiftere, lib. 2. tit. 11. si quis cautionibus, &c. Leg. 6.
The Author quotes alſo Lib. 2. tit. 14. De pa&tis, Leg. 32.
lib. 3. tit. 3. De Procur. & Defenſoribus, Leg. 2. lib. 14. cit. 6.
De Senacuſc.
Maced. Leg. 9. 9 3. lib. 16. cit. 2. De Compenſationibus Leg. 45. Init. lib. 4. tit. 14.
(a) Moncony's Itiner. Tom. I. p.465. compared with Olearius Itiner. Perfic, l. 5. c. 23. (6) Fidejuſſores ita obligari non pos-
funt, ut plus debeant, quam debet is, pro quo obligantur, &c. Inftit.l. 3. t. 21. de Fidejuſſorib
. ") vid. lib. 2. c. 11. D. Siquis cautionibus Go
lib. 2. t. 14. L. 32, D. de pa&tis, lib.3.6.3. L. 51. D.de procurat. lib. 14.
t. 6. L. 9. 3. de SCto Macedon. 1. 26.0, 2.1.4. 1. 5. D. de compens.
+ Rr2
might
288
Of Acceſſory Pacts.
Во ок V.

m the en
DOTC09.pe
for the
up;
The Romans kindly
tho
cannot
ng up all he was
3
for
(4).
that the
cominon
) by giving u
the at undertakes worth tho nota
ought to be a Man of Subſtance and unkno alla Man is worth is altogether
24, 27. Be a Surety, but at your peril, was the saying the one .
Roman Law, wipove.
might make, the Surety can plead to his Advantage
. the Principal; For it was upon their Account that he truft
(1) One that orders another to truſt a third Per- edat all
, and they certainly are to be blam’d who with
fon does the ſame tbing as if he made himſelf a Sure out utmoſt Neceflity derive à Burthen upon themſelves
,
ty; for by ſuch an Order he is preſurned to interpoſe which they ought to have known they were not able
his Credit
. But if he gives Order for 1000l. to bear. And therefore Wiſe (1) Men every where
and the Perfon takes up but socl, he will ſtand re- diffwade us from Suretiſhip, unleſs we would involve
ſponſible for
our felves in unneceſſary Evils (2).
meaning of the Order · was that he
ſhould have Cre- provided for the Ealineſs of Women by the Velleian
dit as far as roocl. But
the Surety
be Decree (a); and by the Roman Law the Principal fatis-
obliged to more than the Principal, yet he may ſome fied the whole Debt (3)
times (8) be obliged to leſs ; as when he
only Part of the Debt, or
under (4) which Favour was not indulgʻd
the Surety
certain Reftri&tions, or upon Condition that the time For he was look’d upon as call'd in for the Relief of
of Payment ſhould be prolonged, or a
or a more conveni-T the creditor that in cafe (5) the Principal ſhould
ent Place aſſigned for it. Letos se on radion 23 prove inſolvent, the Debt might be recovered of him.
- 2 DROIT Pain
Dit bloos ed sin nostelitorji Tho indeed this way of ſatisfying a Debt, by
Surety
Credit
, and able to anſwer the Creditor's Sute, which Humanity may plead, that if a Man be brought to
indeed is fuppos'd by the creditors Acceptance of want by fome fatal Calamity, and not by Luxury or
him. And therefore Vulcan (in Homer, Odyff. e. V. 352, Idleneſs, it ought to ſuffice if we ſtrip him of his Pa-
353.) when Neptune offer’d to be a Surety for Mars, trimony, and not proceed'any father againſt his Perſon.
replies, That the Security was as bad as the Debt ; for
TOT brow Isht nosio ogu
if Mars ſhould run away, Hore should be be able to ſeize Befides, the (6) Surety may be more ſtrictly oblig'd
upon Neptune among the Gods and tools than the Principal, in Caſe he takes upon him by
i zid of Digesto brod Oath, or under a Penalty,
y, what the other barely pro-
* X. But yet it is not impoffible, but the Surety may mis’d. Thus
le but the Surety may mis’d. Thus it is the Cuſtome in ſome Places, in de-
lie under a greater and a ſtrieter Obligation than the fault of Payment, at the time ap
appointed, to oblige the
Principal; for He interpoſes himſelf of his own Ac- Sureties to appear at ſuch a certain Płace, and not to
'till
without whom the Creditor had not enter'd into it. And they call a Pledge. Tho by reaſon of fome Abuſes
,
indeed Neceſſity forces fome People to contra&t a Debt, which proceeded from it, it is now genetally dil
but nothing but Generoſity, and an Oſtentation of Kind- uſed.
neſs, and a Confidence in his Riches engages the Surety
NICO
in another's Concern. And therefore the creditor has, XI. But becauſe Suretiſhip is only an Addition to apo-
ſometimes, more Reaſon to blame the Sureties than ther Man's Debt, it is moſt natural for the Creditor
-do on ottant 10 Duo en 1521 visitors onts
monds coolqoord wooden
sottoto ni muhitno zid otsil or buildo 1sx
(7) So the Digeſts order, Adhiberi autem fidejuſſor tam futur& quam præcedenti obligationi poteſt, dummodo fit aliqua, vel naturalis,
futura obligatio. Digeft. lib. 46. tit. 1. De fidejuffor. &c. Leg. 6.
(8) See Note 2.of this s.
Mr. Barbeyrac's NOTES on § 10. do
(1) Chilon's Greek is, 'Eylúa, mtang data. Diog. Laert. l. 1. p. 73. Prov. 6.1,&c. 11.15. 17. 18.22. 26, 27, 27. 13. Ecclus 29.
is
plenifime comprehenſum eſt, ne pro ullo fæminæ intercede-
rent. Nam ficut moribus civilia officia adempta ſunt fæminis, & pleraque ipſo jure non valent: Ita multo magis adimendum eis fuit id of-
ficium, in quo non ſola opera nudumque miniſterium earum verſaretur, ſed etiam periculum rei familiaris. Digeſt. lib. 16. tit. 1. Leg.
*** They were only diſcharged for the preſent
. Such a Ceffion kept them indeed out of a Gaol, or releaſed them from it; bue
it did not hinder, but if afterward they got any thing, Payment of whar was remaining after the Sale of the firſt Goods, might
he could, over and above a comfortable Subſiſtence, Qui bonis cefferint, niſi folidum creditor receperit, non
tantummodo non beneficium eis prodėſt, ne judicati detrahantur in carcerem, Cod. lib. 7. tit. 71. Qui bonis cedere
quoque qui creditoribus bonis fuis
ceffit, fi poftea aliquid adquiſierit, quod idoneum emolumentum habeat, ex inte.
groin id quod facere potest, creditores experiuntur. Inhumanum enim erat , Spoliatum fortunis ſuis in Solidum damnari. Inft. lib. 4. tit. 6.
'
li bo-
nis juis cefferit, o cum eo creditor experiatur : defenditur per exceptionem, fi bonis cesſerit. Sed hæc exceptio fidejuſſoribus non datur:
ideo fellicet quid qui alios pro
debitore obligat, hoc maximè profpicit, ut cum facultatibus lapſus fuerit debitor, poſfit ab iis; quos pro eo
obligavit, ſuum conſequi. "Inftit. lib. 4.
in their Natural Order. Part. 1. lib. z. tit. 3.
hinup
(5
one has anſwered for a Pupil in an Engagement contracted withour the Allowance of his Guardian,
o
Purely natural, and no Action lay againſt him, Engagement of the Surety is nevertheleſs good and valid.
MARCELLUS fcribit: Si quis pro pupillo fine tutoris auctoritate
tur, quoniam his altio mandati non competit. Digele
. 16. se obligato
, prodigőve
, vel furiofo fidejullerit : magis ege, ut ei non ſubvenia-
(7) obſtagium. This was anciently in Uſe among the German Princes, as Mr. Hertius obferves, and gives ſome Examples of it.
, in
in his Univerſum jus Civile privatum, lib.
that the ſame Cuſtom is ſtill kept up in the
tredoh
(a) D. Lib. 16. t. 1. L. 1. I. 1, 2. (6) V.C. Lib. 7. t. 71. L. 1. do Inftit. L. 4. t: 6. De a&tionib. f. 40..
lib. 4. 5. 14. De Replicationib. 1. 4.
te
o pay where
tit. Yn
eo
3.
,
Laivs i
() .
on of the Debtor
r was
Dutchy" of
Fum, lib. 3. tit. 21.9 9. teacheth
(c) V. Inftit.

CHAP. X.
289
Of Acceſſory Pacts.
1. Aftr.
74 ore indemnite Printed ac. Hall in 1793: $ 2. This ſubſidiary Surety is a ſecond Security, which anſwers for the firſt, and in
to make his Demands firſt to the (1) Principal, and he lays out for the Principal, if the Principal him-
upon Failure there, to apply to the Surety. This felf proves deficient (6). The Perfon that gives
the Roman Law calls Beneficium Excuffionis & Ordi- this Security owes the fáme Obligation to the firſt
nis (2). The Condition of a Surety deſerves Pity, Surety, as the firſt Surery owes the Creditor ; and
for his Kindneſs ruins him, and his good Nature has the ſame Action againſt the Principal, as the firſt
breaks him. But the Creditor cannot with any Face Surety himſelf had.
apply to the Surety, but when he cannot recover
his Debt of the Principal, Quint. Decl. 273 (2) XII. As for Bail (*) or the Obligations, that thoſe
And if the Surety pays the Debt, the Creditor muſt lie under who engage for Criminals, 'tis Obfervable
make over to him all the Right that he had againſt that many of the Ancients were of Opinion, that a
the (3) Principal ; if thar can be of more Service to Man was ſo far Maſter of his own Life, as to have
him towards the Recovery of the Debt, than if he Power by his bare Conſent to engage it for another,
ſued in his own Name, eſpecially if any Pawn had fo far as even to forfeit it for another's Crime. Ando-
been given for Security in Part rit muſt be given up cides (orar. de myſter.) relates, that Manthiteus and
to the Surety. But if ſeveral had bound themſelves Apſepõion fat by the Altar humbly praying that they
for Debt all jointly, and nor each for the whole, might not be put to the Rack, but that their Bail might
in Failure in the Principal
, the Burthen' ought to be be taken, which was no ſooner granted, but they
divided amongft them, and each obliged to pay his mounted their Horſes and fled to the Enemy; leaving
(4) Proportion ; unlefs one ſhould prove inſolvent, for their Bail, who were forced to undergo thoſe 'Tortures
then the Burthen muſt lie the Heavier upon the Reft
. which they themſelves ought to have ſuffered. The
For a Number of Sureties were therefore provided, Story of Damon and Pythias (whom Diod. Sic. in ex
that if this or that ſhould fail, the reſt might be ser cerpt. Piereſc. calls "Phintias) is well known as related
curity to the Creditor (a). (5) Thoſe who entirely by Cicero in libr. de Amicitia. Of whom Manil.
take upon themſelves in their own Name another's 2. V. V. fays,
HW DOV 191019 1030
Obligation (*), iſo as to be eſteem'd as Principals
voastino HOTO Hout to noise ruw bout
in the Eye of the i Creditor, differ in ſome re i to Ei duo qui potuere fequi vadimonia Sponſi : 5.2
ſpeat from Sureties. Whether fuch as theſe can re Optavitque reum ſponſor non posſe reverti
,
cover of the Perſon for whom they engaged, what Sponſoremque reus timuit ne folveret ipſum.
they laid out in his Service, and what Method they
0913111 Page 1
ought to take to do it, is to be Determined according - Once Death was ftrove for, 'twas a generous ftrife;
to the Nature of the Kindneſs ; for this Act in them Not who ſhould keep, but who fhould loſe a Life
may be a Free Donation, or a Commiſſion, or a Loan, or Was their Diſpute, contending to
a Recompence, or fuch like.ud
20 in 16 Each other the great Privilege to die.
aw ideas on 10 SHIV
The Surety fear'd the guilty Friend's Return, CA
"Tis ufual alſo for a Surety to provide for himſelf a The guilty Friend did his own Abſence mourn.
by (+) Counter-Security, whereby he may recover what i brenda a Tona
Mr. Creech.
17. ai nevi: MIT EX Stoted 450 si 100 101
Jon Ob Ribot 10 OS TRA
uit Bos!
10 1919 o so wolls on 1991 wonenti orkonin nun vor o
Mr. Barbeyrac's NOTES on § 11.
(1) See juſtinian's Novels, 4.C. I. Vt creditores primo loco conveniant principalem. Quintilian's Words are, Etiam cum iſtud pericu-
Ium eft ſponſoris, miferabile eſt
, bonitate labitur, humanitate conturbat Non enim aliter Saluo pudor.e.ad Sponſorem venit .creditor,
quam ſi recipere à debitore non poſſit. Declam. 273. But we ought to obſerve by the ancient Roman Law, the Creditor had his Choice
to take either the Principal or Surery, as he pleaſed. Jure noftro eſt poteſtas Creditori, reli&to Reo, eligendi fidejuſſores, niſi inter con-
trahentes aliud placitum doceatur, Cod. lib. 8. tit. 41. De fidejuſſoribus. & Mandatoribus, Leg. 5. See alſo Leg. 3. Mr. Hertius alſo ſays
that it was anciently a Cuſtom in Germany. But as for what he adds, that it was uſed among the Jews, he ought to have brought
good Proofs, for the Text he quotes is nothing to the Purpoſe, as the Reader will be convinced by ſeeing it, Take the Garment of
him who is a Surety for a Stranger, and take a Pledge of him for a ſtrange Woman, Prov. 20. 16. 27. 13.
(2) They are Terms uſed by the Interpreters, and not by the Roman Law itſelf. The Reaſon of the firſt is obvious : The other
is taken from Excutere, which ſignifies in the Roman Law to ſeek whether any one be able to pay, and then to ſeize on him.
(3) The
Law iş, Potuiſti ſane, cum, fifco Solveris, deſiderare, ut jus pignoris, quod fiſcus habuit, in te transferretur, & fi hoc ita fa&tum
is akionibus. uti poteris: quod & in privatis debitis obſervandum est
. Cod. lib. 8. tit. 41. De fidejuſſoribus & mandatoribus,
(4) By the Roman Law the creditor might apply himſelf to either of the Sureties, as he pleaſed, and make him alone to pay;
for it ſuppoſes all the Sureties to be obliged to pay the whole, which yet is not true, unleſs all the reſt prove inſolvent. But the
Emperor Adrian ordained, that if, at the time of the Proceſs, the Sureties were ſolvent, the Creditor could demand of each no more
than his Share. See Inſtitut. Lib. 3. tit. 21. 9 4. And this conſiſted in what the Lawyers call Beneficium Divifionis. See Mt. Noodt, in
his Probabil. Juris, lib. 2.C.I.
(This is what is called Expromiffor; as for Example
, Digeft
. Lib. 12.tit
. 4. De Condict. causa data, doc. Leg. 4. & lib
. 5. tit. 17.
De diuerfis regulis Juris
, Leg. 110. $1. One ſingle Surety is calld Adpromiffor. See Digeſt. 45.
tit. 1. De verborum obligation
. Leg. s.
$2.0 lib. 46. tit. 3. De folutionibus Ø liberationibus, Leg:43. This laſt Law, will be quoted in the next Chapter, § 1. Note 5. Ne-
vertheleſs theſe two Terms, as well as Fidejuſſor are ſometimes confounded by an Impropriety of Speech, common to all Languages
. .
(6) Our Author, as Mr. Hertius obſeryes, confounds a ſubſidiary Security, call'a, Fidejuffor ſuccedaneus, with a Surety to indemni-
indemnitatis, a Counter Security, as alfo divers others have done, as appears by Mr. Thomafius's Diſcourſe De fide-
, : $ ,
refpect to whom this laſt is lookd upon as a principal Debtor. The Roman Law calls him Fidejufor Fidejusſoris. Digeft. 46.
tit. 1
Leb. 8. 12. & Leg. 27. 9 4. And the firſt Surety, is called Fidejusſor principalis, ibid. $ 2, 4. As for the Surety of Indemnity, the
mean by him a Perſon that is not obliged purely and barely for the whole Debe, but only for ſo much as the principal Cre-
ditor has not paid, i.e. if he can recover only one part of his Debt, the Surcry thall indemnify him as to the other. See Digeſt.
ubi
. Supra, Leg. 63,6 lib. 95. tit. I. De verb. obligat. Leg. 116. A.
2016 noin the ording
(a) Add. Phoed. l. 1. fab. 16. (*) Expromisſores. Font. (t) Fidejuſſor judemnitatis.
noizoctor 1
deny
a 904
TO OTH
est, ceſis
Leg. 11.
fy,
Lawyers
(*) Vades.
(1) But
290
Of Acceſſory Pacts.
Book V.

deſign of them is either to amend the Delinquent, or Security of Debts! which bear either a Vulgar or
(1) But that a Surety ſhould by his bare Conſent mit him to Venture ſo much upon the Honeſty of his
make himſelf liable to a Puniſhment, which otherwiie Friend.
ought to be inflicted on a Criminal, does not ſeem a-
greeable to thoſe Rules of Vindictive Juſtice, which The Obligation that Hoſtages lie under, hardly ever
ought to obtain in Human Societies ; indeed if a Man taking place but in Leagues and Civil Government
,
knaviſhly interpoſes himſelf, that theCriminal may have will be diſcuſs’d more conveniently hereafter. B. 8.
an Opportunity of eſcaping Juſtice, he ought to ſuffer C. 8. f. 6.
as much, as it is the Concern of the Magiſtrate that the
other had not eſcaped his Hands; which may ſome-
XIII. Another uſual way of Security, is to give the
times be Capital, eſpecially if he who thus eſcap'd be Creditor fome certain Thing in Pason, till the Debt
like to do more Miſchief (a).
M
be paid ; the deſign of which is, not only that the
Debtor may be incited to a more ſpeedy Payment for
Farther than this, ſuch a ſubſtituted Death is not law. want of his Goods (d), but that the Creditor (1) (e)
ful in the Civil Court : For no Man has ſo much Power in Caſe of Failure may have fonething Equivalent,
over his own Life, as to expoſe it at Pleaſure for no and being in Poffefſion of the Pawn, need not to be at
Publick Advantage, but only to hinder another from the Trouble and Expence of going to Law. And there
ſuffering what he deſerves. Beſides, the End of Pu. fore the Pawn ought to be as much or more Worth
niſhments would be fruſtrated by this means, for the than the Debt it ſelf
. And ſince it is Deſign'd for the
to deter Others; But the Surety is not the Delinquent, Eminent Price, 'tis neceſſary that the Pawn ſhou'd have
as having not by any AZ of his, derived the Guilt the ſame Faculty. So that we cannot approve of the
upon himſelf : And as for Others, they will not be Ægyptian Cuſtom (f) () of Pawning the dead Bodies
deterr’d from offending, by feeing an Innocent Man of their Parents, altho whoever refus d or neglected
luffer, but will either be moved with Compaffion, or to Redeem them was profecuted with the utmoſt Ig-
ftruck with Admiration of ſuch Love and Conſtancy, nominy, and deny'd Burial after Death (2). And for
as does not refuſe even Death, for the ſake of the fame Reaſon it ſeems inhuman to ſeize upon
Friend (b) (c).
the dead Body of a Debtor, that fo his Relations
might be aſhamed into a Payment of that which
It appears therefore that Bail can be no farther ad- otherwiſe they were not oblig'd to.
mitted in Criminal caſes, than as a ſecurity to the Ma-
giſtrate, whoſe Duty it is to proſecute, that the Da By the way, 'tis worth obſerving, that in the King.
mages of the Delinquent ſhall be made Good, or his dom of Pegu a Man may Pawn his Wife and Chil-
Fine paid, or if He be abſent, that He ſhall make his dren to his Creditor ; but if the Creditor, lies with
Appearance, ſo that nothing in the mean-time may be either the Wife or the Daughter thus Pawn’d to him,
Decreed againſt him, as if he were Convi&t; or if he he loſes his Debt, and is liable to no other Punish-
be in Priſon, that he may not be forc'd to Plead in ment (b). 91
Chains. And even in thofe Cafes, the beſt way is
for the Magiſtrate, to let the Surety know before XIV. Things given in Pawon are either ſuch as yield
hand, what Security he expects from him, that ſo Increaſe, or fuch as do not ; as for the former, 'tis u-
he may Conſider whether his Circumſtances will per- fual to allow the creditor (1) the Profits, or a certain
"
Mr. Barbeyrac's NOTE on § 12.
(1) See lib: 2. c. 4. $ 17, 18.
Mr. Barbeyrac's NOTES on S 13.
(1) The Words of the Inſtitute are, Pignus utriufq; gratia datur, o Debitoris quo magis ei pecunia credatur, o Creditoris, quo magis
ei in tuto fit creditum. See alſo about this whole Matter Mr. Thomaſius's Diſcourſe De diftin&t. inter emptionem cum pa&to retrovendo
& contract. pignor. cap. 2.
(2) Juſtinian forbad it under a rigorous Puniſhment, Novel. 60. cap. 1, G 115. cap. s. $ I. as Mr. Hertius obſerves.
Mr. Barbeyrac's NOTES on $ 14.
(1) Called Pa&um &17, xsúrews,
as the Author ſpeaks,
as the Digests expreſs it, ši dilixenois, id eft, mutuus pignoris ufus pro cre-
dito, fa&ta fit, & in fundum & in edes aliquis inducatur : ejuſque retinet portefionem pignoris
loco, donec illi pecunia Solvatur; cum in uſu-
ras fructus percipiat aut locando, aut ipſe percipiendo, habitandove. Dig. lib. 20. t.1. De pignoribus & hypothecis, &c. Leg. 40. 9,13
See Mr. Noodt's Obſervations, lib. 2. c. 9. Mr. Thomaſius in his Diſcourſe De Accurata diftin&t. &c. c. 2.$ 9, &c. maintains, chat by
the Natural Law, independant on the Civil, the Word 'Aylixenous is underſtood of itſelf, as containing the End of the Contract
.
It imports that the creditor ſhall have the Benefit of the Fruits, be what they will, without giving any Account.
mine the Reaſons of that able Lawyer in the Place noted. The Uncertainty of the Produce of
ſuch things as are engaged, is a thing
of great Weight ; for, as Cicero ſpeaks in a Place quoted by Mr. Hertius, The Fruits of the Earth are always at the Mercy of the
Winds and Tempeſts. Tota autem Res Rufticæ ejufmodi fint, ut eas non ratio, neq; labor, sed rei incertiffime, venti, tempeſtateſq; moor
derentur. In Verrem, lib. 3. c. 98,& ult. See Cod. lib. 4. tit. 42. De Vſuris, Leg. 17.
We ſhall exa-
tio, f. 4.
(a) V. 1 Kings 20. 39., (b) Add. Anth. Matth. de crimin. ad l. 48. D. d. tit. 14. c. 2. S.13, &c. (c) V. Grot. L. 2. c. P.1. 1. 11.1.2.
(d) Vid. Lib. 13. t. 7. 1. 35. 1. 1. de a&tion. pignerat. &c. (e) v. Inſtit. 1. 3. t. 15. Quibus modis re contrahitur obliga.
(f) V. Diodor. Sic. L. 1. C. 93. (8) V. Herodor. in Euterp. & Lucian. de Luctu. p. 306, 307. Ed. Amft.
(5) Gafpar. Balb, itiner.
Proportion

CHAP. X.
Of Acceſſory Pacts.
291
ty t
them to
S,
101 DUOW 919
1. for
thus.
the Debt.
Proportion of them, in lieu of Intereſt. As for thoſe be determined, and to ſettle Property which would
which do not yield Increaſe ; they generally bargain, otherwiſe be uncertain, But, in the Calè before us, there
that if they be not redeem'd by ſuch a Time, the can be no Queſtion in whom the Property of the
isis not naturally unjuft
, elpecially if the Pawn does ly appearing upon what acount he left it with me, 1
not exceed the Value of the Debt, and the Intereſt of cannot preſume that he had ever relinquiſh'd it.
it; or if, provided it exceeds it, the Overplus be re-
stabilito
turn’d to the Owner. Tho this the Roman Lawyers But yet the Cafe may fo lappen, as that the Debror
(3) never allow of (a);
needy neceffitous may fairly be debarra the Power of Redempt
People might quickly be ſtript of all they were worth as (d) ifwhen he would have Redeem'd it, he had been
through the Avarice of their Creditors, being often hindred, and has now paſſed it over in Silence ſo long
forc'd to leave in Pawn much more than the Value of as to create a Preſuniption that he never deſigns it-; or
if it be very much to the Creditor's Diſadvantage to
I have the Payment continually put off, it cannot be
But it is reaſonable, that, (4) if the Pawn be not re- thought unjuſt in him to diſpoſe of the Pawn as his
deemd by ſuch a Time, it ſhould be look'd upon as own, eſpecially if by length of Time the Value of the
fold at a fair Rate ſtated then, or ſome time before, Money has been Chang'd, ſo that the Creditor would
by ſome honeſt Man (b).
receive leſs than he lent, ſhould he admit of a Re-
demption. As ſuppoſe a Man had lent another rouol.
In ſhort, as the Creditor ought to reſtore the Pawn 100 Years ago, and had received in Mortgage a Farm,
upon Payınent ; ſo while he has it in his Cuſtody, he which was then worth the Money; in the mean
ought (s) to look after it as carefully as his own, and time the Value of Money has funk half in half, and
if it may be the worſe for uſing, he ought not to put it therefore now, if the Creditor be forced to receive
to any Uſe, unleſs: Leave be exprelly given him by the back his 1000 l. he would receive only enough to pur-
Bargain. And therefore if it receives any Damage, or chaſe half the Farm; whereas, at the time of Ćon-
happens to be loſt through his Fraud, or want of, at tract, it would have purchaſed the whole.
leaſt, common Diligence, he is obliged to make it
good.
XVI. The Roman Lawyers diſtinguiſh between a
Pawon, properly ſo called, and a Mortgage (e); the
XV. It is a receivid (1) Opinion, that a Pawn de- former is the a&tual Delivery of ſome Moveable, the
poſited can never become one's own by Preſcription latter is the bare Alligninent of ſomething Immovable,
©): and
the Reaſon is becauſe the Redemption of a for Security of the Debt: For barely to afſign over
Pawn is ſuch an A&tion as cannot be exerciſed often, Movables as Security, without putting them into the
but once only. Beſides Preſcription was firſt introduc'd Cuſtody of the Creditor, would be ridiculous ; for
to put an End to Sutes, which would not otherwiſe they might be removed away, and ſo not anſwer the
(2) Theſe Reſtri&tions are no ways neceſſary, according to Mr. Thomafius ubi ſupra, $ 13, 14: The Debtor, ſays he, is ſuppos’d,
In this Cafe, to ſell his Eftare for the Sum lent , for which Reaſon - he looked upon it himſelf as an Equivalent. And ſo after the
Time is expired, the Credicor becomes full and irrevocable Proprietor of the Thing pawned, and 'tis the worſe for him if he finds
it leſs worth than the Money lent; as it is alſo juſt, that if he ſells it for more, 'he Thɔnld have the Benefit, at leaſt, if it be noc
otherwiſe agreed on, or the Laws of Charity do not oblige him to recede from his Right.
(3) See Cod. lib. 8. tit. 35. De pa&tis pignorum, & de Lege Commiforiâ in pignoribus refcindenda.
(4) The Words of the Digeſts are, Poteft ita fieri pignoris datio, hypothecave, ut fi intra certum tempus non fit soluta pecunia, jure
emptoris poſſideat rem juſto pretio tunc aftimandam: hoc enim caſu videtur, quodammodo conditionalis effet venditio. Digeſt. ubi fupra,
Leg. 16. $ 9.
(s) Ea igitur, qua diligens Paterfamilias in ſuis rebus præftare folet, à creditore exiguntur. Digeſt. lib.
Digeſt. lib. 13. tit. 7. De Pignoratitia
actione, Leg. 14. See Mr. Noodt's Probabilia furis, lib. 1.c.4. lib. 4. c. 3.6 Obferv. 2. 13. But if without his Fault, the Pawn be
loft, or deſtroyed by a Miſchance, he ſtill preſerves his Right, who remov'd it only from the other Goods of the Debtor. Quam
(diligentiam exaétam fi præftiterit, do aliquo fortuito caſu rem amiſerit, fecurum effe, nec impediri creditum petere. Inſtitut. lib.
tit
. 15. S 4. Mr. Thomaſius, ubi ſupra, 17, 18. expreſſes himſelf a little differently, and ſuppoſes, as I think, without Neceſſity,
that in Things that yield a Profit, the Right of the Creditor to the Thing pawned, is a kind of Property, tho” revocable.
3.
Mr. Barbeyrac's NOTES on $15.
(1) The Interpreters of the Roman Law are nor agreed about this; and the common Opinion, for the moſt part, is, that Pres
ſcription prevails in the Caſe of Pawns. See Grotius, lib. 2. c. 4.S 15. to which Place the Author alludes.
(a) V.C. L. 8. t. 35. De pa&tis pignorum, & de lege Commiſſor. in pignorib. reſcind. (6) V. D. L. 20. t. 1. De pignorib.
& hypothecis, &c. 1. 11. f. 1. do 1. 16. f. 9. (c) V. C. L. 4. t. 24. de Pignoratitia. A&. l. 10. (d) Grot. 1. 3. ; 12;
So alt. puts this caſe.
(e) V. Inſtit. L. 4. t. 6. De a&ionib, 1. 7
End

292
Of Acceſſory Pacts.
Book V у
that the Payment ſhould ſometimes be put off for a for if the Debtor refuſes Payment, the Poſſeſſion of
End for which they were
aſſigned (0) This way of it füffices to affign
fuch an Immoveable
for Security, as
Mortgage is very uſeful among
Subjects of the fame cann't be taken
away, and of which the Law at any
State; for it being abſolutely neceſlary that they ſhould time can give Poffeſfion.
frequently borrow of one another, and as neceffary In the State of Nature ſuch Mortgages are needleis :
conſiderableTime, there would not be Movables enough the Mortgage aſſigned in Security, muſt be detained
for fufficient Security; and it would be too hard to by Force of Arms. Whereas in that State, without
oblige the Borrowers immediately to part with their ſuch a particular Affignment, it is lawful to ſeize on any
Immoveables, as their Houſes or Land (a). And therefore thing that belongs to the Debtor.
Diap 9001
Mr. Barbeyrac's NOTES on $ 16.
(1) Their Words are, Pignoris adpellatione eam propriè rem contineri dicimus, quæ fimul etiam traditur creditori, maxime ſi móbi-
lis fic. At eam quæ fine traditione nuda conventione tenetur propriè hypotheca adpellatione contineri dicimus. Inſtitut. lib. 4. tit. 6. De
Action. » 7. In fine, as to this whole Matter of Pawns and Mortgages
, we may confult Mr. Daumar's Civil Laws in their Natural
Order, Part 1. lib. 3. tit. 1. See alſo Mr. Noodt's Probab. Jur. lib. 1. cap. 8. & lib. 4. cap. 10, 11. 6 ODS. 2. 8. where he corrects ſome
Laws, and there we may ſee, among other things, that according to the Prætorian Law,, a Mortgage was made and concluded
alſo by a ſingle Agreement.
PMBO YOU
on list of a
(a) Compare Exod.f22. 26, 27. Deut. 24. 6. 7ob. 22. 6. 24. 3. Prov. 20. 16. & D.L. 20. t. 1. l. 6, 7. D. de Pignor, &c
Diodor. Sic. l. 1. f.,79. C. lib. 8. t. 17. L. 8. Authent, Agricultores quæ res pign, oblig. poss
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C H A P. XI.
By what means Obligations founded upon Compact may be
diſolved.
The CONTENT S.
1. The most natural Way of diſſolving an Agreement, | IX. The Knavery of one Party frees the other from his
is to perform the Things agreed on.
Obligation.
II. What if one pays a debt for one who knows not of it? | X. As alſo a Change of that Condition on which the
III. To whom we must pay?
Obligation was founded.
IV. What must be paid?
XI. How an Obligation ceaſes by Time.
V. To wbom and by whom may Compenſation be made. | XII. And how by Death.
VI. Where it
may
XIII. Of Delegation.
VII. A Debt is paid by a Releaſe.
XIV. Of Confuſion
VIII
. How an Obligation is made void by a diſagreement. / XV. Of Novation.
be uſed.
WE
TE come now to ſee by what means Oblic perform according to Agreement, yet the creditor
gations thus founded upon Compact may ought to acquieſce, if any other Man diſcharges
be diffolv'd. The moſt natural way is (1) the (4) for the Debtor ; I ſay, for the Debtor, for who-
Performance of the Covenants : for that being ſoever pays (5) upon his own Account, and not
done, the Obligation ceaſes of courſe. And here the Debtor's, does not releaſe him (b). But in
we may obſerve, that ſome Obligations are (2) ſo caſe of Suretiſhip, if the Principal diſcharges the
inherent in a Perſon, that they cannot be per- Obligation, (6) he releaſes both himſelf and the
form’d by any other (a): Whereas ſome may be Surety. Whereas if the Surety pays the Debt, the
done by Proxy, it being all alike to the Party con- Principal is indeed releas'd from the creditor, but
cerned, by whom they be perform’d. Of ſuch a at the ſame Inftant becomes indebted to the Sure-
Nature are all thoſe Contracts which relate to ty (7), even altho' this Payment was made with
common mercenary Work, ſuch as may be done out his Knowledge.
as well by one Man as by another; as alſo thoſe II. But if a Man pays a Debt for another with-
which (3) concern Conſumable Commodities, which out either being his Surcty, or having his Order
if we do but get ourſelves poſſeſs’d of, it is indif- for it, can he recover what he has thus paid of
ferent by what Hand they come to us. In ſuch his own Head? In which Cafe we muſt diftin-
Caſes, altho' it be moſt natural for the Debtor guiſh whether he made this Payment againſt the
himſelf, or ſome other by his Order, to pay and other's Will, or only againſt his Knowledge. In
liber. Leg. 53,
Mr. Barbeyrac's NOTES on Chap. II. $ 1.
(1) Tollitur omnis obligatio Solutione ejus quod debetur, Inſtit. L. 3. t. 20. Quib. mod. tollitur oblig. princip. See Digeft. Lib. 46.
Tit. 3. De Solut, do Liberat.
(2) See what is ſaid Lib. I. Chap. I. $ 19. upon the Diſtinction of a Communicable and Incommunicable Power.
(3) As when one gives another a Garment, or a Cheſt, Loc. to make, for it implies, that the Taylor or Carpenter ſhould do
the work themſelves, or procure it to be done by ſome other of their Trade ; unleſs it be agreed, That he that takes the Work
ſhould do it himſelf
, or there be ſome great Inequality between his own Ability and the other workman's
, whoſe Aſſiſtance he
uſes, Si cui locaverim faciendum, quod ego conduxeram, conſtabit habere me ex locato altionem. Digeſt
. Lib. 19. Tit. 2. Locati con-
dueti
, doc. Leg. 48. Trene. Inter artifices longa differentia est, & ingenii Go nature, & do&trine, & inſtitutionis. Ideo ſi navem de
fabricandam quis promiſerit, vel Inſulam ædificandam, Fosſamve faciendam, da hoc ſpecialiter aštum est ut ſuis operis, id perficiat; fides
jusor ipſe ædificans, vel fosfam fodiens, non conjentiente ſtipulatore, non liberabit reum. Lib. 46. Tit. 3. Dé folut. & liberat. Leg. 3.
(4) If the Debtor does not at all conſent, Nec interest quis ſolvat : utrum ipſe qui debet, an alius pro eo, liberatur enim dos
alio ſolvente, five ſciente ſive ignorante debitore, vel invito eo ſolutio fiat. The Reaſon is, ſay the Lawyers, becauſe he can do
better for the Perſon who is ignorant of what is done for him, than the contrary. Solvere pro ignorante do invito cuique licet :
cum fit jure civili conſtitutum, licere etiam ignorantis invitique meliorem conditionem facere. Digeft. Lib.46. Tit. 3. De ſolut. &
(5) For as the Roman Lawyers ſpeak in the Law, here quoted by our Author, What a Man pays in his own Name does noc
free the Debtor (V. fig. 3. p. 415.) Moreover, we ought to obſerve, that according to the Stile of the Roman Lawyers, which
very ſuitable, and followed by our Author in this place ; the Terms, Debt, Credicor, Debror, and Payment, do not only re-
ſpect the Obligation of thoſe who owe a Summ of Money, or ſome other thing capable of an Equivalent, but in general,
thoſe Engagements which we may be under upon any other Account, as in a Contract of Hiring, or Trufting, &c. Creditorum
non hi tantum accipiuntur qui pecuniam crediderunt, ſed omnes, quibus ex qualibet causâ debetur. Digeſt. Lib. so. Tit. 162
De verborum fignif. Leg. 11. Credendi generalis adpellatio est : ideo Sub hoc titulo Pretor, & de commodato Go de pignore Edicit :
Nam cuicunque rei adſentiamur alienam fidem ſecuti, mox recepturi quid ex hoc contraétu, credere dicimur, Lib. 12. Tit. I.
creditis, Loc. Leg. 1. Solutionis verbo Satisfactionem quoque omnem accipiendam placet, folvere dicimus, qui fecit, quod facere promiſit,
Lib. 50. Tit. 15. de verb. fignif. Leg. 176. See alſo, Lib. 46. Tit. 3. de ſolur. & liberat. Leg. 54.
(6) So the Law is, Item fi reus Solverit,'etiam ii, qui pro eo intervenerunt, liberantur. Idem ex contrario contingit, fi fidejuſſor
Solverit ; non enim ipſe folus liberatur, fed etiam reus. Inftitut. ubi fupra. In omnibus fpeciebus liberationum etiam acceſſiones liberan-
i puta adpromijjores, hypothecæ pignora : præterquam quod inter creditorem do adpromiſſores confufione fa&ta reus non liberatur. , Di-
(7) See Digest. Lib. 17. Tit. 1. Mandati vel conti a Leg. 29.& 40.
geſt
. Lib. 46. Tit. 3. De Solur. & Liber, Leg. 43.
(a) See above in B. S.C, L. f. 19. (b) Nam quod quis fuo nomine folvit, non debitoris, debitorem non liberat. D. L. 5.6.3.
+ S s
the

is
adpellatione
De rebus

Zur
1. 31. princip
294
By what Means Obligations
BOOK V.
the former Caſe 'tis plain (I) he cannot recover it; Knowledge, he (5) may keep the Goods as a
For how can any one impoſe an Obligation upon Pledge till the Expences be repaid him, unleſs the
me againſt my Will, which ought to be founded Improvement is capable of being taken away
upon Conſent ? But becauſe no Body is preſum'd from them.
to throw his Money away, we ought to conſider III. No Payment, or Satisfaction of any Ob.
further, whether he deſign’d what he thus paid ligacion ought to be made but to the creditor him.
(2) as a Gift to the Creditor, er not: If he did ; felf
, or whom he has order'd to receive it in his
the Debtor is not concern’d in it : But if he did Name (?); and if I pay Another by Miſtake,
not deſign it as a Gift; we ought to ſuppoſe, that the Creditor's Title nevertheleſs ſtands good; but
he did it to transfer the Creditor's Right and Title then I may recover of the Other what I thus paid
againſt the Debtor upon himſelf. And altho' the him (2),
him (2). The Creditor is here prefum’d to be ca-
Creditor, at the Payment, knew not of his Deſign, pable of managing his own Concerns (3), and to
but receiv'd the Money as paid in the Name of have a perfe& Underſtanding of the Affair in
the Debtor : yet if he who paid it cannot recover hand. For otherwiſe it would be to throw Mo-
it of the Debtor, the Creditor ought in Equity either ney away, rather than to make Payment of it.
to refund what he thus receiv'd, and ſtill preſerve IV. Beſides, the very Thing muſt be paid that
his Action againſt the Debtor, or elſe to give up was bargain’d for, and not another (i) in its
his Title to the other; eſpecially if he may be ſtead (b); it muſt be paid entire, (2) not mang-
preſum'd to have made his Payment in hopes it led; not partially, nor piecemeal; at the (3) Time
would have been acceptable to the Debtor. Upon and (4) Place appointed; eſpecially if it be the
which account the Roman Law allows him (3) an Creditor's Intereſt to have it paid here rather than
Action for Buſineſs done (a). But ſince the Debtor there, and at ſuch a Time rather than at another ;
may put in his Exceptions, that it was not ac- for the Time is part of the Price (b).
ceptable to him, and that he is not willing to theſe Conditions may be ſuperceded by a new A-
owe this other Perſon ſuch a Kindneſs, his beſt greement, which the creditor is ſometimes forc'd
way would be to (4) ſuppoſe that his Creditor has to comply with, through the Poverty or Knavery
given up his Title to him, and to deal with him of the Debtor, being willing to receive Part ra-
accordingly. But if a Man ſhould lay out anyther than nothing, at another Place rather than
Expence upon another's Goods, without his no where, and after the Time expired rather than
Yet any of
Mr. Barbeyrac's NOTES on Chap. II. $. 2.
(1) Eſpecially if the Debt were not very lawful or clear. See Mr. Daumat's Civil Laws in their Nat. Order, Part 2. Lib. 4:
Tit. I. Se&t. 3. $ 2. We may alſo conſult the reſt of the Title, where the whole Matter of Payments is handled.
(2) But that is not to pay for another, and ſo this Caſe is nothing to the purpoſe.
(3) The Author (as at a) refers us to this Law, Cum pecuniam ejus nomine ſolveres, qui tibi nihil mandaverat, negotiorum geſtorum
altio tibi competit. Cum ea ſolutione debitor d creditore liberatus fit: niſi ſi quid debitoris interfuit, eam pecuniam non folvi. Digeſt
Lib. 3. Tit. 5. De negotiis geſtis, Leg. 43. But there he only is ſpoke of, who pays at the Requeſt of the Debror; whereas our
Author is trearing of the Caſe where paynient is made againſt the will of him whoſe Debe is acquitted ; for it is certain, as
Mr. Hertius obſerves, thar by the Roman Law, no Man could have an Action for Buſineſs done, againſt a Man for whom he has
paid againſt his Will. See Digeſt. Lib. 3. Tit. 5, De negotiis geſtis, Leg. 8. $ 3. as alſo, Lib. 17. Tit. I. Mand. vel contra, Leg. 6.
$. 2. Leg. 40. & Cod. Lib. 2. Tit. 19. De negotiis geſtis, Leg. 24. Here is fome Confuſion in the Senſe, which makes one ſuſpect
that the Author, or Printers, have left out ſome Words, if not a whole Sentence. See the next Note.
(4) The Author ſhould have ſaid, Against his Will, and his Prohibition, and he hath written unawares, pro ignorante, for pro in-
vito; and perhaps he put the one for the other, if there be not a greater Omiffion here, for the word ignorantis is met with
again in the next Sentence, and we can't ſee why the Author ſhould paſs clearly from the firſt Member of the diſtinction to the
laſt, and not particularly treat of this.
(5) See Lib. 4. Chap. 13. $ 13. I don't ſee well what this Period does here, having no relation almoſt to the Subject.
Mr. Barbeyrac's NOTES on $ 3.
(1) The Words of the Digelt are, Solutam pecuniam intelligimus utique naturaliter, ſi numerata fit creditori. Sed do fi jufru
ejus alii folvetur, vel creditori ejus vel futuro debitori, vel etiam ei donaturus erat : abſolvi debet. Digeſt. Lib. 46. Tit. 3. De Solu-
tionibus, loc. Leg. 49.
(2) The Words of the Digeſt are, Indebitum est non tantum quod omnino non debetur, fed & quod alii debetur, ſi alii folvatur.
Digeſt. Lib. 12. Tit. 6. De condi&tione indebiti. Leg. 65. $. 9.
(3) So we can't pay a Pupil without the conſent of the Guardian ; Pupillo ſolvi ſine Tutoris Au&toritate non potest. Digeſt
Lib. 46. Tit. 3. De Solut. & Liberat. Leg. 6.
Mr. Barbeyrac's NOTES on S 4.
(1) See the Law quoted above, Chap. 7. S 1. Note 3. So that he who owes Money can't, unleſs the creditor agree to it,
make over any Debt to him in payment : Eum, a quo mutuam ſumpfiſti pecuniam, in ſolutum nolentem ſuſcipere nomen Debitoris tui,
compelli juris ratio non permittit. Cod. Lib. 8. Tit. 43. De Solution . do Liberation. Leg. 16. See what hath been ſaid Chap. 7. $ 3.
Note 1. and $ 6, 7. upon the ſeveral Species in which a Payment of Money lent, may be made. See Mr. Thomaſius's Diſcourſe,
De pretio affe&tion. in res fungibiles non cadente, Chap. 2. $ 3, doc.
(2) At leaſt, if (as the Roman Lawyers ſay) there be not any ground to conteſt the other part of the Debt, for in this Caſe
the Judge may and ought to oblige the Creditor to receive what the Debtor offers him without prejudice to the reſt : Quidam
exiſtimaverunt, neque eum qui decem peteret, cogendum quinque accipere, & reliqua perſequi : neque eum, qui fundum ſuum diceret, par;
tem duntaxat judicio perſequi. Sed in utraque cauſa humanius facturu's videtur Prætor, ſi a&torem compulerit ad accipiendum id, quod
offeratur : cum ad officium ejus pertineat lites diminuere. Digeſt, Lib. 12. Tit. 1. De rebus creditis, Leg. 21. Moreover, as it or-
dinarily behooves the creditor to be entirely ſatisfied, he is not obliged to be contented with part of payment, unleſs it be other-
wife agreed on, Quia lepe do Solutio exaétio partium, non minima incommoda habet. Digert. Lib. 10. Tit. 2. Famil. erciſcunde,
Leg. 3. See Lib. 22. Tit. 1. De ufuris, &c. Leg. 41. 's 1. Lib. 20. Tit. 1. De pignor. de hypoth. Leg. 19. Vinnius Inſtitutes, Lib. 3.
Tic. 30. princip. Num. 5. do feq.
«(3) The Words of the Digeſt are, Is qui certo loco dare promittit, nullo alio loco, quam in quo promiſit, solvere, invito ſtipulatore,
poteft. Digeſt, Lib. 13. Tit. 4. De er, quod certo loco dari oportet, Leg. 9.
(4) The Time was one part of the Bargain. See Chap: 1. 8 10. above. Yet Payment may be made before the Time, a lon-
ger Time being granted ordinarily for the advantage of the Debtor, that he may diſcharge his Debe with leſs Inconvenience
to him, Quod certa die promiſſum eſt, vil ſtatim dari poteſt : totum enim medium tempus ad folvendum promiffori liberum relinqui ina
telligitur. Digeſt, Lib. 46. Tit. 3. De folut. liber. Leg. 70. Yer fomerimes the Term is fixed for the Creditor's Benefit, and in
that Cafe he may refuſe Payment. See Digeſt, Lib. 46. Tit. I. De verb. oblig. Leg. 122.
(a) V. L. 3. t. 5. de negotiis geſtis, 1. 43. & ult. (b) Vid. Martial, L. 6. Ep. 30,
never.



Chap. XI. founded upon Compact may be diſſolved.
295
tion. &ic. usid to be obſeru’d.
never. Tho' ſometimes Equity requires that the (1) Compenſation, which is by oppoſing Debt to
Payment be put off and accepted in Parcels, Debt, or when a Man ceaſes to owe me, becauſe I
when it can't be perform'd immediately or all at apparently owe him as much of the fame Kind.
once. Thus the Athenians having made a Vow to For ſince as much (eſpecially in Conſumable Commo-
facrifice to Diana as many Goats as they ſhould kill dities) is the ſame, and where the Debts are mutual,
Enemies, when they could not procure ſo many in if I receive, I muſt immediately refund as much:
the whole Country, they decreed to facrifice soo Therefore to abridge ſuch needleſs Payments, 'tis
every Year (a). Sometimes too there is no other moſt convenient for each Party to pay himſelf
Way of ending the Sute than by forcing the Debe by retaining his own (d); eſpecially ſince there is
tor to pay an Equivalent.
no Paying and Receiving without (2) ſome Trou-
'Tis manifeſt that the creditor only can remit the ble in it: And it would be very imprudent in me
Debt, and not his Servant or Steward, without his to pay firſt, when I need not do it, and ſo to puc
expreſs Order. But if the Debtor's Steward tranſ- it in the other's Power to be behind hand in his
ads with the Creditor, and compounds for leſs than Payment to me (e).
the whole, the Gain does not redound ( 5 ) to the But this Compenſation does not take place, but
Steward but to his Maſter; and it would be Theft between thoſe who are Creditors and Debtors to each
and purloining in the Steward, if after having other; for (3) if I have ſo much due to me from
compounded with the Creditor, he ſhould bring a Third Perſon, I cannot obtrude that upon my Cre-
the whole Debt in his Accounts, and put what he ditor for Payment, unleſs this Third and he be
got by Compoſition in his own Pocket.
join'd in ſuch a Partnerſhip as to have all their Obli-
The Creditor is ſuppos’d to be ſatisfied, if he ac- gations and Rights in Common; for then their
cepts of a Pawn as Payment, or takes it in Truſt Goods may be look'd upon as one and the fame
till Payment be made, or if it be ſold, and the Patrimony. Nay, if they be Partners in one fort
Price receiv'd in lieu of the Debt. And if a Man of Commodity only, (4) Compenſation will take
owes Money by ſeveral different Bonds, and (6) Place, if one be my Debtor and the other my Crea
pays part, the Payment ought in Favour to be ap- ditor for that Commodity ; for ſo far they are to
plied to the moſt burthenſome (b). The Way be eſteem'd the ſame Perſon. So, if I owe Mo-
which Vitellius (c) took to pay his Debts was very ney to him who is my Debtor's Heir; or, if the Cre-
ſcandalous; when he went to Germany he was ſo ditor of him whoſe Heir I am, is indebted to me,
intangled, that his Creditors would ſcarce diſmiſs his (5) Compenſation may take place. And thus I may
Perſon upon any Security ; who a little after, when oppoſe Debt to Debt, altho'myCreditor is againſt
he was made Emperor, and return’d to Rome, hid it; for with what Face can he demand me to pay
themſelves. But he order'd them to be brought him, when he declines paying me?
before him, and told them, That he had reſtor'd Since this Way of Compenſation cannot be put in
them Safety for their Money, and demanded back Practice, but between thoſe who are mutually
the Bonds and Inſtruments of Contract.
in Debt to one another, it follows, that I cannot
V. The Obligation is ſometimes releaſed by oppoſe to my Creditor what he owes another,
(3) Mr. Hertius quotes, Digeſt. 17. Tit. I. Mandati vel contra, Leg. 10. S. 3. Leg. 20. and Lib. 26. Tit. 8. De adminiſtrations doen
periculo Tutor. vel curat. Leg. 58. princ. But in the
laſt he crears of Turors and Curators, who Trade with their Pupils
Money,
and in the two firſt of them who cake upon them a Commiſſion freely, ſo that they can't be applied, but by an Analogy or
Accommodation, to what our Author ſays of them who are the Servants or Stewards of the Debtor, Miniſtri aut Diſpenſatores.
(6) That is to ſay, If, for Example, of cwo Debts one be contended and the other clear, the Payment ought not to be made
to the firſt but the laſt. In like Manner Payment ought rather to be made of a Debt, which, if it be nor diſcharged, will bring
ſome. Trouble on the Debtor, or a Condemnation to Damages and Loſs, or concerns his Reputation, than of another from which
the like Conſequences are not to be feared, and ſo of a Debe with a Security rather than without one ; of a Debe which is ow'd
in his own Name, rather than where he is only a Security; rather of a Debe for which he has given a Pawn or a Mortgage, than
upon his bare Promiſe ; rather of a Debe for which the Time is come, than for that whoſe Time is not come; rather of an old,
than new Debt; racher of a real and single Debt, than of a Condicional. Quotiens quis debitor ex pluribus caufis unum debitum fola
vit: eft in arbitrio ſolventis dicere, quod potius debitum voluerit folutum: do quod dixerit, id erit solutum. Poffumus enim certam le-
gem dicere ei, quod folvemus. Quotiens vero non dicimus id quod folutum ſit, in arbitrio eſt accipientis, cui potius debito acceptum fe-
rat, dum modo in id conſtituat folutum in quod ipſe, fi deberet, effét foluturus, i. e, in id debitum, quod non eſt controverſia, aut in ali-
ud quod pro alio, quis fidejuſſerat, aut cujus dies nondum venerat. Et magis quod meo nomine, quam quod pro alio fidejuſſorio nomine
debeo, & potius, quod cum pæna, quam quod fine pæna debetur potior habebitur cauſa ejus pecunie que ſub infamia debetur
fub hypotheca, vel pignore contralta est vetuſtior contra&tus a te Solvetur. Digeft. Lib. 46. Tit. 3. De Solut. do liberat. Leg. 1,
Mr. Barbeyrac's NOTES on 9. 5.
SI. (1) The Words of the Digeſt are, Compenſatio, est debiti do crediti inter ſe contributio, Digeſt. Lib. 16. Tit. 2. De compenſdo
tionibus, Leg. 1. Si caufa, ex qua compenſatur, liquida'ſit, & non multis ambagibus innodata, ſed poffit judici facilem exitum fui pre-
Stare, Cod. Lib. 4. Tit. 31. Leg. 14. 9. I.
(2) The Digest fo directs, Unuſquiſque creditorum ſuum, eundemque debitorem potentem ſummovet, ſi paratus eſt compenſare. Ideo
compenſatio neceſſaria eſt, quia interest nostra potius non folvere, quam folutum repetere, Digeſt. ubi ſupra, Leg. 2, 3. Dolo fácit, qui pes
tit quod redditurus est, Lib. 44. Tit. 4.
(3) The Digest ſo orders, Creditor compenſare non cogitur, quod alii quam debitori fuo debet : quamvis creditor ejus pro eo, qui conve-
nitur ob debitum proprium, velit compenſare, Digeſt. de compenſationibus, Leg. 18. 8.1. See allo Leg. 16.princip. & Cod. Lib. 4. Tic.
31. De compenſationibus, Leg. 9:
(4) So the Digeſts ſpeak, Si duorei promittendi focii non fint: Non proderit alteri, quod ftipulator alteri reo pecuniam debet, Digeſt,
45. Tit. 2. De duobus reis conftituendis, Leg. 2
(5) This hath place by the Civil Law, when the Heir will nor enter upon the Inheritance, 'eill an Inventary is made, becauſe
he will not repreſene the Dead in all Things, but will only he obliged to expend ſo much as may be the value of the Inheritance:
Sec
. Cod. Lib. 6. Tit. 30. De Jure deliberandi
, Leg
. 31. 5. 4, 9. Upon the whole, a Compenſation is made at all times, when the
Debtors or Creditor come into the Rights or Obligations of a Third.
Xenophon neieval. tš Kúpx. p. 178. Otherwiſe concerning the time of Payment that of 1. 105. of D. B. 46. tit.3. De folu-
O V. D. ubi ſupra, l. 1, 4, 97. (C)V. Xiphilin. ad ann. 69. (a) V. Grot. l. 3. c. 19.
(e) L. 2, 3. D. d. l. Dolo facit qui petit quod redditurus eſt.
S[ 2
(6) whoſe

4,97
Lib.
fons, doc.
7937
296
By what Means Obligations
BOOKV.
(6) whoſe Agent I am, without his expreſs Or- fel of Oyle. Yet the Roman Lawyers admit of
ders
. For tho' a Man intrufts me with the intire Compenſation, where the Particulars are not aſſign,
Management of his Affairs, I am not therefore to but the fame Sort and Quality is owing on each
reckon his Things as my own, and by that Means fide, as if I had promis'd you a Horſe in General,
make Compenſation for my Debrs; for perhaps he and you happen to be Executor to one that leaves
had rather have another Man his Debtor than me. a Horſe to me in Legacy. But, yet even in the
Nor if I truſt my Affairs to another, do I thereby former Caſes, each Party may race their Debt,
take his Debts and Obligations upon my ſelf; thus and then pay them by Compenſation. And yet
,
v.g. ſhould Caius enjoin me to exact his Dues where Debts are thus reciprocal, the Obligation
of Seins, whoſe Debtor I my ſelf am; neither can is rather (3) ſuſpended, than taken away, by
Seius, without Caius's Leave, compenſate his Debt withholding what I owe another, till he pays
with mine, and under that Pretence refuſe Pay- what he owes me. But Work for Work, or Work
ment, (for what has Caius to do with my Debt?) for Goods, will not admit of Compenſation at the ve-
Neither can I take the Debt upon me inſtead of ry Inſtant that it ought to be perform’d; for
Seius. So one that is indebted to a Minor cannot that would fruſtrate the very (4) End and Deſign
make Compenſation of that which the (7) Guardian of ſuch Contracts.
owes him: nor can the Guardian releaſe his Debt But if each Party releaſe the other, the Oblis
by oppoſing it to that which his Creditor owes the gation ceaſes upon another Principle, viz. Mu-
Minor (a).
tual Diſagreement ; ſo alſo if I ceaſe to be oblig'd,
On the other hand, if one that is bound for becauſe another, who ought firſt to perform his
another, be call'd upon for the Debt, (8) he may Part, omitted it, it is not by reaſon of Compenſati-
oppoſe by Way of Compenfation, not only what the on, but becauſe the Condition, upon which the
Creditor owes to him, but alſo what he owes to the Obligation was founded, does not appear. Buc
Principal Debtor ; and this even againſt the Know- if my Work has been neglected by the Party that
ledge and Will of the Principal: For ſince the Cre- had undertaken it, I may rate it, and ſo bring io
ditor cannot refuſe ſuch a 'Compenſation from the into Compenſation. Nay, I can oppoſe to a Debt
Principal himſelf, why ſhould not the Surety have an equivalent Damage, or a Fine adjudg’d to me
the Advantage of it? And ic would not be fair in for any Injury done by my Creditor. But if two
the Principal to be againſt it, ſince he is oblig’d to Perſons be at Law, and while the Cauſe is de-
repay what the Surety thus lays down for him, pending, ſtrike up a Bargain, neither can oppoſe
Ví. But in Conſumable Commodities Compenſa- the Law-ſute, or the Charges of it, to the other
sion does not regularly take place, but in thoſe of (c); v. g. ſuppoſe I am at Law with another for
the (1) ſame Kind, and that too, not 'till the Time an Eſtate, and during the Sute, fell him a Houſe,
of Payment is come or (2) paft (b); and therefore he can't, impute to me as Payment the Eſtate,
Things of a different Sort or Quality can't be paid or the Expences he has been at about it ; for the
by Compenfation, as a Buſhel of Wheat for a Buſhel of Eſtate does not as yer appear to be his
, and the
Oats, or a Hogſhead of Rheniſh, for a Hogſhead of Nature of the Thing ſhews, that the Bargain was
Port Wine; nor Things of a different Species, as made without any Regard to the Cauſe depend-
this Horſe for that Ox; nor of a different Kind, ing.
as a Sheep for a Gooſe ; nor a Species for a Thing As for that ſort of Compenſation, which cancels
indefinite of the ſame Kind, or for an indetermi- former. Favours by ſubſequent Injuries, Seneca
nate Quantity, as Biecephalus for a Horſe, or a Vef- diſcourſes largely of it (d). So alſo equal Inju-


ز



RO
(6) For then is he Procurator in rem suam, as the Roman Lawyers ſpeak. In rem fuam Procurator datus, poft litis conteſtatio-
nem, si vice mutua conveniatur, equitate compenſationis utetur. Digeft. Lib. 16. Tit. 2. De compenſat. Leg. 18.
() So the Digeſts, Id quod pupillorum nomine debetur, fi Tutor petat, non poſſe compenſationem objici ejus pecuniæ, quam ipſe Tutor
suo nomine adverjario debet. Digeft. ibid. Leg. 23.
(8) The Digeſts ſay, Si quid a fidejuſore petatur, &quiſſimum eſt eligere fidejuſſorem, quod ipſi, an quod reo debetur, compenſare
malit : fed do fi utrumque compenſare velit audiendus eſt, ibid. Leg. 4. See the precedent Law.
3
Mr. Barbeyrac's NOTES on 9. 6.
(1) In Reality, the Compenſation ought to anſwer the Debt, for the Debtor is obliged to render the Thing in that Manner,
Cum quid mutuum dederimus, et
ſi non cavimus, ut æquè bonum nobis redderetur, non licet debitori deteriorem rem, quæ ex eodem genere
fit, reddere: veluti vinum novum pro vetere. Nam in contrahendo, quod agitur pro cauto habendum eft. Id autem agi intelligitur, ut et
juſdem generis & eadem bonitate folvatur. Digeſt. Lib. 12. Tit. i. De rebus creditis, &c. Leg. 3. As to the Quantity, altho the
Debt be on each ſide unequal, ſo that a Compenfation can't be fully made, yet the Compenſation may make the Debt leſs, and
ſo acquit him of the greatneſs of it. Si conſtat pecuniam invicem deberi, ipſo jure pro foluto compenſationem haberi oportet ex eo tem-
pore, ex quo ab utraque parte debetur, utique quoad concurrentes. quantitates, ejuſque ſolius, quod amplius apud alterum eft, uſure deben-
tur, fi modo petitio earum ſubſiſtit. Cod. Lib. 4. Tit. 31. De compenſationibus, Leg. 4.
(2) So the Digeſts ſpeak, Quod in diem debetur, non compenſabitur, antequam dies venit, quanquam dare oporteat. Digeſt. Lib. 16.
Tit. 2. De compenſat. Leg.7.
nos ofis
(3) This is a Term is borrowed from the Roman Law, which allows Retention in ſeveral Caſes, where the Things due on
both odes are not of a fort
. See Cujacius's Obſervac. VIII. 2. XV. 12. XVIII. 10. Vinnius upon the Inſtitutes, Lib. 4. Tic. 6.
De a£tionibus, S. 13, and Mr. Noodt's Probabilia. Juris, Lib. 3, Chap. 9.
(4) For Aations are not capable of being put in the place one of another, as Things are ; they can't be reduc'd to an Eftir
macion reſpectively, fo that it be all one to a Perfon, whether he do what he hach promiſed or not, provided he be diſpepſed
with, to do or give what he hath promiſed in his Turn; and likewiſe it be indifferent either to receive the Thing it felf which is
endeavour
always to evade his Engagements under a presence of ſome Compenſation
due to him from us
, and for which he will
labour co get quit with us. I nossos
(a) V. D. ibid. 1.23. (6) V. l. 7. D. h. t. (c) As Gro:ills well obſerves, 1. 3. 6. 19. 4. 19:
Beneficiis, l. 6. c. 4, &c.


TO
(d) Epift, 81. Lo de
ries

Chap. XI. founded upon Compact may be diſſolved. 297
ries may, by Compenſation, (s) be put up on both capable of proving the Debt, then (5) the Obli-
lides, provided the Right of the Magiſtrate be not gation is not ſuppos'd to be cancelled upon the De-
infringed.
livery of one only.
VII. The Obligation ceafes alſo when the Credi As for what the Roman Law obſerves, that by
tor, or he who has a Title to it, forgives it; for Delivery of the Deeds the creditor is judg’d to en-
'tis evident any Man may recede from his own ter tacitly into Compact not to demand the Debt;
Right, and when the Right has been made over that Nicety is unknown to the Law of Nature,
to another, there too the Obligation ceaſes upon which ſuppoſes the Obligation cancell’d, not only
that other's forgiving it. And as at firſt I cannot by real Payment, but by the bare Remiſſion of it.
ſtand oblig'd, if the other Party refuſes to accept The Obligation is fuppos'd to be tacitely for-
of it: fo neither can I continue bound, if he given, if the Creditor, directly or indire&ly, hin-
thinks fit to cancel the Bond. But this only in ders the Diſcharge of it: Thus if I bargain with
Caſe no Third Perſon is injur'd by it, for other- a Man to do any certain Work, and am my ſelf to
wife he alone cannot releaſe me, altho' I was im- call upon him when I would have him perform it,
mediately oblig'd to him only.
my not calling upon him is preſum'd to be a Re-
This Releaſe is perform’d either expreſly or tacitely; leaſe, as is alſo my ſubſtituting another to do it
to the former belongs what the Roman Law calls for him.
(1) Acceptilatio, an Acquittance or Diſcharge, by VIII. But as the former Methods take place,
which the Perſon acknowledged himſelf to have where one Party only is oblig'd, ſo where both
receiv'd what indeed he had not; as alſo the (2) are concern'd, if nothing be yet perform’d, the
Stipulatio Aquiliana, which by a ſort of Novation, Obligation may ceaſe upon each Party's diſſenting
brought the Debtor to Articles of Agreement, and and receding from the Bargain (I); for 'tis natu-
then releas’d him by a Diſcharge; all which tedious sal that the contrary to that which cauſes the Ob-
Forms and Circumſtances the Law of Nature ligation Hould be capable of making it void, pro-
knows nothing of, but makes the Obligation to vided it be not of ſuch a Nature as, when once
ceaſe upon the bare Conſent of the Party ligni- contracted, never to be reſcinded; for no doubt a
fied (3).
poſitive Law may, in certain Caſes, forbid that
Beſides, the Obligation is preſum'd to be (4) re- what has been once agreed upon ſhould be (2) re-
mitted, if I deſignedly deliver up, (not in Truſt tracted, altho' nothing yet be perform'd in it.
or ſuch like) the Inſtruments or Deeds, without But if part has been perform’d, and one Party
which the Debt cannot be made out (a); but if I done ſomething of his Dury, then 'tis plain (3)
have ſeveral Inſtruments, and each of them is bare Diffent is not ſufficient to take away the Obli.
$2.
(5) The Digeſts thus ſpeak, Lib. 24. Tit. 3. Leg. 29. Și duo dolo malo fecerint, invicem de dolo non agent. Digeſt. Lib. 4:
Tit. 3. De dolo malo
, Leg. 36. Viro atque uxore mores invicem accuſantibus, cauſam repudii dediſſe utrumque pronunciatum eſt. Id it a
accipi debet, ut ea lege quam ambo contempſerunt, neuter vindicetur. Paria enim debita mutua penſatione difolvuntur. It appears by
the firſt Law, That if in an Exchange, for Example, I have given a blind Horſe, and the other hath given me a lame one, we
are quit. In like manner, If a Man hath ſtollen from another, and the other hach ftollen from him again, there's nothing can
be demanded from each other, provided that the Things ſtollen were of equal Value. Quotiens ex maleficio oritur a&tio, ut puta ex
cauſâ furtivâ ceterorumque maleficiorum, fi de ea pecuniarie agitur, compenſatio locum babet, Digeſt. Lib. 16. De compenſationibus, Lib. 10.
$. 2. The other Law imports, That if an Husband being deſirous to be divorced from his wife, for her fcandalous Behaviour,
is accuſed
by hier, and convicted of the fame Faults, or ſuch as are as contrary to conjugal Fidelity as thoſe he blames her for,
neither of them may pretend to any Advancage to diffolve their Marriage. This is juſt, but if Adultery be committed on both
ſides, the Woman's Crime affords a much ſtronger Reaſon for their Separation : See Chap. 1. of the following Book. But 'tis
not the ſame with puniſhments inflicted by the Laws, which are only fome pecuniary Fines laid on the Parties. When ewo Per-
lons have committed a like Crime one towards the other, the Magiſtrace hath nevertheleſs a Right to puniſh them both. See
Digeft
. Lib. 48. Tit. s. Ad legem Juliam de Adulteriis coercendis, Leg. II. $. 4. and XIII. S. 5.
Mr. Barbeyrac's NOTES on $.7.
(1) The Law is, Item per acceptilationem tollitur obligatio, Eſt autem acceptilatie, imaginaria ſolutio. Quod enim ex ver-
Titio debetur, fi id velit Titius remittere, poterit fic fieri, ut patiatur debitorem hæc verba dicere : Quod ego tibi pro-
miſi habeſne acceptum? & Titius reſpondeat, Habeo. Quo genere ut diximus tantum e& foluuntur obligationes, quæ ex verbis confiftunt,
non cetera, Inſtir. Lib. 3. Tit. 30. $. I.
(2) The Words of the Digefts are, Eft autem prodita ftipulatio, qua vulgo aquiliana adpellatur per quam contingit ut omnium rerum
obligatio ad ftipulatum deducatur, & ea per
acceptilationem tollatur. Stipulatio enim aquiliana renovat omnes obligationes. ibide
3) Whereas the Roman Lawyers affirm, That there is here a difference berween real Contracts, Contracts of bare Conſenc,
Contracts by Writing, and verbal Contracts, or Stipulations, (ſee Chap. 3. 9. 6. above,) there are none but the laſt, according to
them, to which acceptilation can be applyed, as appears by this $, of the Inſtitutes, Quo genere, ut diximus, tantum ex foluun.
tu obligationes, que in verbis confiftunt, non etiam cetera.
(4) See the Law of the Digeſts, quoted above, Lib. z. Chap. 6. §. 2. Note 7.
(3) Several able Lawyers are of another Opinion, and that with Reaſon, as Mr. Hertius ſaith; for they draw Conſequences
from what hath been done, rather than whar hath not, and they preſume, that every wiſe Perſon will not do any thing but will
have ſome Effect, and they can't ſee what he can propoſe to himſelf, who gives up an Obligatory Note (ſuppoſing that there
be good Proof that the Bill was fairly given up) but that every Man ſhould believe chac the creditor would forgive the Debc,
unleſs the contrary can be made fully to appear
Mr. Barbeyrac's NOTES on S. 8.
inter ſe conſenſerint, ut fundum Tuſculanum emptum Seius haberet centum aureis, deinde re nondum fecutà, id est, neque pretia Soluto neque
61) So the Inſtitutes direct, Es obligationes
, que conſenſu contrahuntur, contrariâ voluntate disſoluuntur. Nam ſi Titius Seius
fundo tradito, placuerit inter eos ut diſcederetur ab ea emptione & venditione, invicem liberentur. Inſtit. ubi fupra, s. 4.
(3) In Cale of Marriage, for Example,
delivered his Goods, but hath not taken
the Money. Sed non poterimus
seadem ratione uti poſt pretium folutum emptione repetita, cum
(3) As if in a Bargain of Sale, the Buyer hath already paid for the Goods, and hath not receiva them, or the Seller hath
empliore, venditione, locatione
, condu&tione, cateriſque
fimilibus obligationibus, quin integris omnibus conſensu eorum, qui inter fe obliga.
*i funt, recedere poſſunt dubium non eſt. Ariſtoni hoc amplius videbatur, fi ea que me, ex empto tibi preſtare oporteret, præftitiffem, confen,
tiremás nè quid tre mihi eo nomine prestares, Lib. 2. Tit. 14. De Paltis, Leg. 58.
(2) Lib. 2. t. 14. ... 2. D. de Paitis,
go
gation;
310.11
DIO
Torib ule
bus
2017
Ab
298
By what Means Obligations BOOK V.
iro
Quando ex fatto Tutoris, vel Curahan his anti cer 377 conveniri poſſunt, Leg. 1.
Nation requires another Right to put him out: but if after ſome Generations, the Alteration of the State, or the Genius of the
gation; which, in this Caſe, cannot be cancell'd, if he whom it concerns to have my part of the
unleſs he who perform’d releaſes the other, or has Covenant fulfilled, is the Occaſion why it is not
,
amends made him ſome other way (a).
it is the ſame thing to me as if it was fulfilled.
IX. Moreover an Obligation is releaſed, or
Nor if he ſhould afterwards repent of his Breach
rather broke off by the Perfidiouſreß of either Party; of Faith, and be willing to compleat his Contract,
fo that if one does not perform his Part, neither shall I be obliged to comply with it. For one Vio
is the other oblig’d to make good his (b): For lation entirely breaks off the Contract, and frees
when a Man takes upon him any Duty, not abfo- the other from his Obligation; thus, ſhould I hire
lutely and gratis, but upon the Proſpect of the o-
a Servant for a Year, and pay him his Wages be-
ther's doing ſomething on his ſide, the Obligation forehand, and, for no Faule of his, ſhould turn
to make good his
Undertaking is only Conditio- him off before the End of the Year, I ſhould not
nal, as if he had ſaid, I'll do this, in caſe you will fort be able to oblige him to return me part of the Wa-
do that. Now whatever is founded upon a Condi- ges proporcionable to the Remainder of the Time.
tion, falls of courſe, if the Condition does not Nay, if each Party has performd equally, yet e
appear(1). And therefore the ſuperſtitious Exact-
ven then, neither can break off the Bargain be-
neſs
of the Indian, if it be true, was more than he fore the Time appointed : and if one ſhould give
was obligʻd to ; who, when another had taken a; back, the other would have a Right to force him
way his Wife againſt all Right and Reaſon, would
to compleat it; or to make as much Amends, as
not however break off with him, becauſe he had it was his Intereſt to have the Compact exactly
taken a ſolemn Oath, that he would never, upon perform'd.
any Account, do any harm (c). But this (2) holds
X Obligations alſo expire when the (1) Per-
only where the Non-performance lies on his fide, fon, in whom they are founded, changes (2).
who ought to perform firſt. How far, or whether Thus the Magiſtrate, having promiſed Proteci-
the Fear left, after I have done my part, the o on to the Subject, is no longer oblig'd to it, than
ther ſhould not perform his, frees me from the Ob- he continues in his Office ; and the Subje&, hav-
ligation, has been diſcourſed of before (d).
ing ſworn Allegiance to the Magiſtrate, is freed
But if one Party has performed in part, and from the Obligation, if either he ceaſes to be a
the Contra&t happens to be broke off before Com- Subject, or the other to be a Magiſtrate. But
pletion, how ſhall he have Righe done him. In ſuch an Alteration in the Subject Matter as would
this Cafe we muſt diſtinguiſh according to the va have prevented the Obligation, had it exiſted at
riety of Circumſtances. For if I have perform’d
For if I have perform’d the making of it, will not be ſufficient to diffolve
what I ought, and the other refuſes to perform his it afterwards, provided the Party be not thereby
part, I have a Right to force him to it by any law, render'd incapable of performing it-(3). For un-
ful Means : But if after having perform’d part, I leſs Proviſion has been made at firſt for ſuch Acci-
begin to be tired and neglect to make an end of it, dents, the Right, which was irrecoverably given,
I cannot oblige that other to make any Allow- fhall continue firm, altho' perhaps the other be a lit-
ance for my partial imperfed Performance, 'till I tle burthen'd by it. For he enter'd into Contra&
finiſh the whole according to the Agreement; freely, and of his own Accord, and may thank
nor can that trite Saying be obje&ted here, that himſelf for not having foreſeen thoſe Inconveni-
no one ought to grow rich at the Loß of another, for no encies, that might probably have been prevented.
Regard is to be had to the Loſs which a Man Thus when (4) a People have given up their Li-
by his own Fault brings upon himſelf. (3) And berties to an Arbitrary Power, altho'afterwards
Mr. Barbeyrac's NOTES on S. 9.
(1) Auxer ö avevd as ex oi di nurówsor, amoi retiegromóxlis. Nor thoſe that defend themſelves, but thoſe who are the Ago
greffors break the Truce. Thucyd. Lib. 1. Chap. 133. Edit
. Oxon.
(?). So the Law, is, Nec adverſario tuo tranja&tione uti concedendum eft ; niſi ea, quæ placita ſunt, adimplere paratus fit. Cod.
Lib. 2. Tit. 3. Dė pa&tis Leg. 22. Fruſtra ſibi fidem quis poſtulat ab eo fervari, cui fidem à ſe prestitam servare recuſat. Decretal.
Lib. 6. Tit. ult. De regulis juris, Leg. 75. We know the common Maxim, Frangenti fiidem fides frangatur eidem.
præftet. Digeſt. Lib. 19. Tit. Locati, conducti,
, Lég. 38. princip. See alſo Leg. 19. S. 9, 10.
Mr. Barbeyrac's NOTES on 9.10.
(1) , if
one to give ſo much, either to thee or to another, and that other comes to be adopred, or baniſhed, of carried into Slave
,
, it
Agreement or
Condition, that he remains in the fame Staté, Cum quis tibi aut Titio dari Nipulatus fit, magis effe ait, ut ita demum re&tè Titio
Solvi dicendum fit, fi in eodem ftatu maneat, quo fuit cum ſtipulatio interponeretur. Ceterum five in adoptionem, five in exilium ierit
vel aqua & igni ei interdi&tum, vel fervus factus ſit : non rette ei Solvi dicendum, tacite enim
inefle hæc conventio Stipulationi videtur,
&c. Digeft, Lib. 46. Tit. 3. Leg. 38. Bur ſuch a Change of State hath no Connexion with ſuch a Promiſe, but by Reaſon of the
Niceties of the Civil Law.
a Perſon in Commiſſion, after his Commiſſion is expired, is not obliged any longer to him, whoſe 'Affairs he before
was engaged to manage. It is the ſame with a Tutor or Guardian, in Reſpect io his Pupil's Affairs. See Digeſts, Lib. 14. Tit
.
3. De inſtitoriâ Adione, Leg. 20.
Tit. 37, De Adininiftratione Tutorum vel Curatorum, &c. Leg. 26. and Tit. 29.
- ,
agere, vel
Mr. Hertius quotes theſe Laws.
(3) See what Mr.
hard Truchfes may juſtly take Poffeſſion of the Archbiſhoprick of Cologne, ſeeing he has been married.
(4) This can’t happen in the Life of the firn Prince, unleſs he has exceffively abufed his Power, and in that Caſe he from
of , why it
or ought to
to be eſtabliſhed, niakes here a racit Condition or Exception, which obliges us not to judge of the Engagement of a
People in a Body, with Relation to the Eltabliſhment of a Sovereign Power, after the fame Manner as we regulate the Engage
ments of private Perſons one to another. We ſhall ſpeak of the Grounds of my Affertion in another place.
(a) V. l. 58. D. de Pattis, ubi fupra.
(b). V. Grof. L. 3. c. 19. 4. 14.
(2) In Philoftr. 1: 3. 6.9. de vita Apollono
Tyanai. (a) B. 3. c. 6. 8.9.
they

bo
1985 OR
to any
or
- (2) "So
Cod. Lib. 5.

CHAP. XI. founded upon Compact may be diſſolved. 299
they change their Minds, and ſhow a greater In- buried with them (b). But generally the Obliga-
clination for another Form of Government, yet tion that lay upon the Deceaſed is communicated
they cannot therefore ſhake off their Allegiance. and continued to the Survivors, and this, either
And thus many, if they had known the Inconve- when the Survivor takes it upon him, of his own
niencies of a Married State, would never have Accord, to preſerve the Reputation of the Decea-
embrac'd it ; who yet having enter'd into the ſed, or for other Reaſons ; or when the Goods of
Bond, whatever happens, (5) muſt endure it. the Deceaſed being made over to the Heir (2),
XI. Time puts a (1) Period to thoſe Obligations the Incumbrance alſo goes along with them.
which were limited to a Day; and if the Parties But if a Man dies, and leaves not enough to
deſire to have them continued, they muſt Cove- ſatisfy his Debt, thé Creditor's Action ſeems to
nant again de novo, which needs not always be die with him ; for what can any one do to a dead
done expreſly, but may ſometimes be tacitly per- Carcaſe (3)? Tho'among the Egyptians, the Credi-
form’d(a). But ſuch an Obligation as is void after tors uſed to bury the Bodies of their Debtors in their
ſuch a Time, and yet has no room to exert it ſelf Houſes, which afterwards the Heirs of the de-
in before the Time expired, is abſurd: As if I ceaſed, if they were able, redeemed and interred
ſhould make my fell indebted to you 100 l. for honourably. Among whom too, it was uſual for
three Years, yet ſo as that you ſhall have no Right the Children to pawn their Parents dead Bodies;
to demand it before the Time be lapſed; for vain but if they did not redeem them again, they were
is the Obligation that has no Effect before it ex- treated with the greateſt Ignominy, and after
pires, nor leaves any behind it after.
Death were denied Burial (c).
But it is another Thing, if I covenant, That XIII. By Delegation a Man ſubſtitutes his Debtor
unleſs you demand it within the Compaſs of three to his Creditor to make Payment for him (1); or I
Years, it ſhall not be due: For that will be a Con- make over to my Creditor the Debt another owes
dition annex'd to the Obligation, which not ap me : And here the Creditor's Conſent is neceſſary,
pearing the Obligation will ceaſe. Thus’tis uſual but not the Conſent of the (2) third Debtor, whom,
for a Surety to bind himſelf for ſuch a Term on in this caſe, I can make over unknown to him,
ly, to oblige the Creditor to demand his Money be- and againſt his Will: For 'tis the ſame thing to
times, and while the Debtor is able to pay, left o whom a Man pays, but not the ſame from whom
therwiſe he ſhould remain bound for ever.
he is to demand a Debt.
XII. By Death thoſe Obligations expire which XIV. There is no need to ſay much of Confuſi-
were founded in the Perſon of the Deceaſed; for on; for ſince the ſame Man cannot be his own Crea
the Subje&t being gone, the Accident muſt neceſſa- ditor and Debtor, it follows, if a Man becomes Heir
rily follow, and the Performance be render'd (1) to his Debtor, his Axion ceaſes, (1) not finding an
impoffible in Nature. But yee in Japan the Bon- Object to exert it ſelf upon.
zy perſuad Men, That thoſe who give them Money XV. (1) Novation ſeems to belong peculiarly to
bere ſhall receive ten-fold in the other World: And upon the poſitive (2) Civil Law, and not to the Law of
this Account give their Creditors a Note under their Nature and Nations; for old Obligations may be ala
Hand, which they keep carefully, in order to be ter’d by Conſent of Parties, as ſuppoſe that the

a Man
may
(5) See the famous Mr. Bayle's Anſwer to the Queſt. of a Prov. Tom. 2. p.40.
Mr. Barbeyr ac's NOTE on s. Il
(1) See Lib. 7. Chap. 6. S. 15. following. This Author, in his Abridgment of the Duties of a Man and Citizen, Lib. 1. Chap. 16.
$. 7. adds this Reſtriction, Provided, that during the Time agreed on, he was in a Condition of requiring the Performance of the En-
gagements of the other Party.
Mr. Barbeyrac's NOTES on 8. 12.
(1) Vide Val. Max. Lib. 2. Chap. 6. f. 10. and Pomp. Mel. Lib. 3. Chap. 2. ſays of the Old Gauls, The Management of their con-
cerns, and the Demand of their Debts were put off to the other World.
(2) See Lib. 3. Chap, 1. s. 15. and Lib. 4. Chap. 10. S. 13. above.
(3) To which the Law of Solon has Regard, which forbids the Dead to be uſed contumeliouſly. Vid. Plut: Solone, P. 180.
Vid. Lib. 47. Tit. 10. Lib. 1. £. 4, 6. and Lib. 27. D. de injuriis, &c.
Mr. Barbeyr ac's NOTES on s. 13.
(1) Delegare eſt vice fua alium reum dare Creditori, vel cui jußerit. Digeft. 46. Tit. 2. De novationibus, do delegationibus,
Leg. II.
(2) It is by the Roman Law, Delegatio debiti, niſi conſentiente, do ſtipulante promittente Debitore iure perfici non poteft. Cod. Lib. 8.
Tit
. 42. De Novat. La Delegat. Leg. 1. But our Author puts another Senſe upon the Term Delegation, than the Lawyers do ; for
he underſtands by it, the Tranſlation or Reſignation of a Debt, which in the Roman Law is looked upon as a kind of Sale, which
make without the Conſent of the Debtor. Nominis autem venditio, bo ignorante, de invito eo, adverſus quem a&tiones
mandantur, contrahi ſolet. Cod. ibid. See alſo what Mr. Hertius ſays here, and Mr. Weber, Profeſſor alſo at Gieſſen, in his Notes
upon the Abridgment, De Offic. Hom. do Civ. printed in 1710. Lib. 1. Chap. 16. 5.9.
Mr. Barbeyrac's NOTE on §. 14.
(1) So the Digeſts affirm, Aditio Hereditatis nonnunquam jure confundit Obligationem, veluti ſi Creditor debitoris vel contra Debitor
Creditoris adierit Hæreditatem. Digeſt. Lib. 46. Tit. 3. De ſolution. do liberat. Leg. 95. $. 2. “ Confuſion happens there, where
“Right and Obligation meet, and joining in the ſame Perſon vaniſh by that means.” The Examples produced by Mr. Hertius
to ſhew that the Norion of Confuſion is of a more large Extent, concern only the Deciſions of the Roman Law, about which we
may conſult Mr.Titius's Jus privatum Romano-Germanicum, Lib. 5. Chap. 16. S. 9.
Mr. Barbeyrac's NOTES on S. 15.
(1) The Roman Laws mean by it, an Act by which the creditor and Debtor, without any new Cauſe change the Nature of a
Debt, by adding ſome new Obligation to the old. Nevatio eft prioris debiti in aliam obligationem, vel civilem, vel naturalem, trans-
fufio atque tranſlatio: hoc est, cum ex præcedenti cauſa ita nova conſtituitur, ut prior perimatur. Novatio enim à novo nomen accepit, do
(2) Mr. Titius, Obſerv. 415.
on-Pufendorf, maintains the contrary , for he ſays, Thar Novation, as every other lawful Act, is
made by the mutual Conſent of Parties, and in conſequence of that Liberty which all Men naturally have, to determine and change,
as they lee fit, their Engagements one to another. " See what Mr. Hertius ſays about it.
(a) Vide L. 19.1. 2. I. 13. S. ult. D. Locati, &c. (6) Vide Bern. Bæren. de relig. Japon. p. m. 35.
( Vide Diod. Sic.
L. I. 6.92, 93. Lucian de luftu, p. 306,307. Herod. Euterpe.
Lofs


400
Of Interpretation.
Book V.

Loſs of a Thing, thro' the Delay of the Deb:or, ture thoſe Things that are equally due, may be
ſhould not be imputed to him, that no Penalty or equally demanded. But, as for what the (3) RO
Uſury be demanded for Delay, that Pledges be re man Law delivers concerning ſuch a Novation as is
ſtored, Sureties releas’d, the Creditor, for the fu- got by a Conteſt at Law, (and which they call nes
ture, declaring himſelf willing to depend entirely ceſſary, as they call the other voluntary,) may be
upon the Credit of the Debtor ; but thoſe, that apply'd in fome Reſpects to the Law of Nature;
dealaccording to the Simplicity of the Law of Na- for he that (4) caſts his Adverſary, has an Action
ture, need not here ſuppoſe a new Obligation ſu- againſt him for what the Court adjudges, let the
per-induc'd upon the former ; for indeed nothing Merit of his former Cauſe be what it will : So
is here tranſacted, but only the Creditor gives up when any Controverſy is decided by War, let that
part of his Right, or ſeveral Pretenſions are blen- be as it will, after the War is at an end, not only
ded into one : But that one Action ſhould enjoy the firſt Pretenſions may be demanded, but alſo
one Privilege more than another, is entirely ow that which was determined by the Peace (5).
ing to ſome poſitive Law; for in the Law of Na-
(3) In the Digeſts, Aliam caufam effe novationis voluntaris, aliam judicii accepri, multa exempla oftendunt. Digeſt. ubi ſupras
Leg. 29.
(4) J udicati a£tio. See Cod. Lib. 7. Tit. 54. De ufuris rei judicatæ, Leg. 3.
(5) To theſe ſeveral Ways of entring into an Obligation, our Author might have added another, viz. When a Thing which
was due in Specie, as our Lawyers ſpeak, ſo that it can't be diſcharged by an Equivalent, is deſtroyed, without any Fault of
the Debtor, or by any Delay in returning it. The Roman Law gives an Example of a Slave who dies before he is put into the
Hands of him to whom he is promiſed, or to whom he was bequeathed, by a Perſon to whom he was Heir. Si ex Legati caufâ
aut ex ſtipulatu hominem certum mihi debeas, non aliter post mortem ejus tenearis mihi, quam fi per te ſteterit, quo minus vivo eo eum
mihi dares : quod ita fit, ſi aut interpellatus non dediſti, aut occidiſti eum. Digeſt. Lib. 45. Tit. 1. De verborum obligationibus, Leg.
23. ſee alſo 72. 8. 1. and 83. S. 7. and Cod. Lib. 4. Tit. 2. Si certum petatur, Leg 9. and the fus privatum Romano-Germanicum,
by Mr. Titius, Lib. 5. Chap. 16.

C H A P. XII.
Of the Interpretation of Compacts and Laws.
ted on.
The CONTENT S.
1. The Reaſon of the Order.
Į XIII. Rules are to be made from theſe Diftin&tions.
II. The Neceſſity of a right Interpretation.
XIV. An Example of Two who came to the Goal to-
III. The Words are ordinarily to be underſtood accor-
gether.
ding to the common Uſage. And
XV. How this Order is to be interpreted. No Man
IV. Words of Art according to the Art.
muſt wage War without the Command of another.
V. Conjecture is ſufficient, when Words are dubious, XVI. Of theſe Words, Carthage ſhall be free.
VI. Or ſeem to contradict one another.
XVII. A Conjecture when a Law muſt be enlarged.
VII. Conjectures must be taken from the Matter trea XVIII. Of Tricks to evade a Law.
XIX. A Conjecture when the Law ought to be reſtrained
VIII. From the Effect, or
upon the Account of ſome Defeět in the Will of tbe
IX. From the Coherence, Original and Place.
Lawgiver.
X. How the Senſe may be gathered from the Reaſon of | XX. (An Obſervation upon this conje&ture.)
them.
XXI. Or upon the Account of ſome Accident inconſiſtent
XI. Some Words have both a large and ſtrict Signi with his Will, as where it is either unlawful,
fication.
XXII. Or too grievous in Reffect of the Performance,
XII. Some Things are favourable, others odious. XXIII. What if two Laws are contrary one to anothere
O much for Pads in general, and partly in (1) moſt of what we have to ſay upon this Head
particular: Let us now proceed to the Inter- has Relation to ſuch an Eftabliſhment ; yet ſince
pretation of them, for ſince in all Obligations cer- it would not be ſo convenient either to divide the
tain Signs are made uſe of, to expreſs the Minds of Matter, or to reject the whole to the end of the
the Parties, and the Laws and Heads of the Con- Book, it will not, I hope, be thought ſo much a.
tract; and ſince theſe Signs may ſometimes be taken gainft Method to treat of all cogether in this place,
in different Senſes,'tis highly neceſſary to have ſome as Grotius (a) has done before me, who has handled
Rule to find out that which is true and genuine. this Subject with the utmoſt Nicety.
Now altho’ we deſign to treat hereafter of thoſe II. If then we conſider for what End obliga-
Pacts which preſuppoſe Civil Government ; and tions are made, we ſhall find that every Man is
Spa much
(1) The Original is here obſcure, the Word Pleraque Teeming to refer Paftoram, and ſo it ought to be rendred, The moſt
of thoſe Pałts; but then his words are not true, for Laws are not properly Pacts, as our Author proves, Lib. I. Chap: 6. 9. 29
and the contrary appears in this Chapter, for the Rules here laid down may be applied as well to Pacts as Laws.
(a) Lib. 2. Chap. 16.
bound

CHAP. XII.
Of Interpretation.
301
bound to that which he intended, when he en- gather the Intent of the Man from most probable Signs
ter'd into the Obligation. It is here ſuppos’d that Thoſe Signs are of two forts, Words, and other Con-
he enter'd into it freely and of his own accord, je&tures, which may be conſidered ſeparately, or
and that the Matter is ſuch as he lay under no Con- both together ( 3).
ftraint to perform it ocherwiſe : And therefore I III. Ås for Words(I), the Rule is, Unleſs there be
don't ſee how a Man can poſſibly be obliged far- reaſonable Objections against it, they are to be underſtood
ther than he himſelf intended; in this Senſe is that in their proper and moſt known Signification; not ſo much
of Cicero (1) to be taken ; In Obligations Regard is according to Grammar, as to the general Uſe of them
to be had not ſo much to the Expreſion as to the Intent of (a) (2).
the Party.
When Tiberius had us'd a Word which was not
Farther; ſuch is the Nature of Man, that his Latin, Capito faid, That, in Honour of the Empe-
internal Actions are not in themſelves viſible to an-
ror, it ought to paſs current for the future, altho'
other, and may differ from his external Signs and
no body before him had made uſe of it: But one
Actions: And yet we lie under a Neceſſity to di- Marcellus reply'd, That Cæſar might, if he pleaſed, na-
ſtinguiſh clearly what every Man is obliged to, or curalize Men, but Words he could not. Procopius (6)
what may lawfully be demanded of him; for there having ſaid, That the Emperor bad rais'd an Army,
would be no ſuch Thing as Obligation, if any one partly among his own Subjects, and partly among the
might free himſelf, by affixing what Senfe he pleaſ- Allies, ſubjoin'd, That formerly by the Name of Allies
ed to his Signs, and by pretending that he meant were meant only the Barbarians, who were not Slaves;
different from what others went away with. And for they were never conquered, but had obtain’d the Pri-
therefore right Reaſon dictates that he, to whom vilege of Citizens, with Arms in their Hands, and
the Obligation is made, ſhould have a Right to com were ſo called, from the Alliances which they made.
pel him, from whom ʼtis due, to the Performance But now there is none but who may have a Title to this
of it, in that Senſe which the right Interpretation of Name: The Way of the World is not to keep Words ſtrict-
the Signs made uſe of, importeth. For tho' the ly to that Senſe which they did originally beer; for Men
Man himſelf is chiefly concerned in what he change at Pleaſure the Things themſelves, little regard-
meant; yet others muſt ad by Signs; for elſe the ing by what Names they were firſt called (c). The Lo-
Matter would be to no End or Purpoſe, which in crians (d) arriving at the extreme Part of Calabria,
Morality is abſurd. Conſonant to this, was the found that Country poíleft by the Sicilians, who
old Form us'd in making Leagues, Sine dolo malo, alarm’d with their unexpected Arrival, receiv'd
utique ea hic hodie rectifſime intellect a ſunt ; Without a- them, and ſtruck up a League in theſe Words,
ny fraudulent Deſign, according (2) to the Senſe wbich That the Locrians ſhould preſerve an Amity with the
the Words at preſent bear.
Sicilians, and fpermit them to enjoy the Country in
The true End and Deſign of Interpretation is, To common with them, as long as they ſhould tread upon that
Mt. Barbeyrac's NOTES on $. 2.
(1) Cicero's Words are, Semper autem in fide, quid senſeris, non quid dixeris, eſt cogitandum, De Offic. Lib. I. Chap. 13. Bur
theſe words are a part of a large Paſſage, which are neither found in the moſt ancient Edicions, for the moſt part of the Ma,
nuſcripts.
(2) This is well expreſſed, ſaith the Author after Gratixs, in the form of the Treaties of the ancient Romans, vt illa palam
prima poſtrema, ex illis tabulis ceráve recitata ſunt, fine dolo malo, utique ea hic hodie re&tiffimé intelle&ta ſunt, illis Legibus Populus Rom
manus prior non deficiet. Tit. Liv. Lib. 1. Chap. 24.
(3) 'That is to ſay, So that the Conjectures be drawn either from the Words alone, or ſomething contained in them.
Mr. Barbeyrac's NOTES on 8. 3.
(1) The Author ſuppoſes that ſuch as interprer Compacts and Laws, ſhould underſtand the general Rules of Criticiſm, which
are abſolutely neceſſary to diſcover the Senſe of all ſorts of Words, whether delivered by word or written. Such as theſe
Maxims, for Example, 1. To underſtand a Man, who ſpeaks not diſtinctly, or has an Impediment in his Speech, we muſt be
accuſtomed to hear him. As alſo to decypher a Deed, we muſt learn to read the Writing of him that made it. Whereupon
the Roman Law determines, that if a Man at the Point of Death ſays, I make my Servant Cratinus (for Cratiſtus) free, and he is
his only Servant, he ought to have his Freedom according to the will of the Teſtator, Qui habebat servum Cratiſtum teſtamento
ita cavit : Servus meus Cratinus liber eſto. Quæro an /ervus Cratiſtus ad libertatem pervenire poffit, cum teftator jeruum Cratinum
non habeat, sed hunc folum Cratiſtum ? Refpondit, nihil obesſe, quod in ſyllaba erraſſet. Digeft. Lib. 40. Tit. 4. De manumiſſis te-
ftamento, Leg. 54. princip. Mr. Thomaſius, inſtit. Juriſpr. "Divin. Lib. 2. Chap. 12. 9. 22. Iewed me this Example. He alſo ob-
ſerves in s. 25. following, That the Emperor Juſtinian, Cod. Lib. 1. Tit. 17. De veteri Jure enucl. doc. forbids with Reaſon,
Leg. 1. §. 13. Leg. 2. §. 22. Leg. 3. g. 22. to uſe ſhort Writing in copying out Laws. And it were to be wiſhed thac none had tranf-
greſied his Prohibition. 2. We ought to be well acquainted with the Language of him that ſpeaks or writes. 3. We ſhould
know his Stile, and the Stile of the time in which he wrote. 4. We ought to be acquainted with the Opinions and Cuſtoms to
which he alludes. 5. We ſhould endeavour to diſcover his Sentiments and Diſpoſition, his Character, his Capacity, End, and.
Intencion. 6. We mould ſee if the Deed be not forged, nor any thing put to it or taken from it fraudulently; if there be no
Fault crept into the Writing, either thro' the Miſtake of the Author, or Negligence and Ignorance of the Copier. For, to bring
an Example of the laſt Caſe taken out of the Roman Law, “ If the Clerk of a Notary hath fallly copied out the Heads of a Con-
tract, it ſhall not tend to the Prejudice of him upon whoſe Account it is made.” Si Librarius in tranſcribendis Stipulationis
verbis erraſſet, nihil nocere, quominus do reus, de fidejuſſor teneatur. Digeſt
. Lib. 1. Tit. 17. De diverſis Regulis furis, Leg. 92
7. We muſt underſtand the Matter which is treated of. 8. Laſtly, there are a great Number of other Circumſtances which
ought to be minded, and ſome of which are ſet down a little lower by our Author, but which may be better diſcovered by Uſe,
and by reflecting upon particular Caſes, and upon every Paffage than by General Rules
. See the Writer upon the Art of Crici-
cizing, but chiefly the excellent Work of Mr. Le Clerc, entituled, Ars Critica, where we may find a compleat Syſtem of that
uſeful and neceſſary Art, Mr, Thomaſius, and others which he mentions in the forementioned Chapter of his Juriſør. Divin. fur-
niſhes us with ſeveral Examples, which relate to Compacts and Laws.
(2) Inſomuch that an ancient Roman maintains, That Tiberius, as potent an Emperor as he was, could not make one foreign
Word become a Denizen of Rome. Dio Caſſius, Lib
. 59. See above, Lib. 4. Chap. 1. 5. 6. and Themiftius Orat. 23. Sive Sophiſta,
P. 287. Harduin upon the Word Sophifta, as alſo Procopius, Hiſt. Vandal. upon the Word Allies.
(a) uſtes, quem penes ai bitrium est de jus do norma loquendi. Hor. Uſe is the true Standard of Speaking, Words are like Money,
more will paß but what has the publick Stamp upon it, Quint. Inftit. Orat. I. 1. C. 6. (6) Hijt. Vandal. l. 1.
(c) The Sig-
nification of the Word Sophifter in proceß of Time, changed like Money, Themift
. Pariſ. 23. p. 287. Edit. Oxon. (d) Polyból. 12.c. 4.
#Tt
Earth,

302
Of Interpretation.
BOOK V.
And there.
Earth, and wear thoſe Heads upon their Shoulders. at all Times, and in all Places: For both the E-
Theſe Terms being agreed upon, the Locrians came nemy's Strength, and our own, muſt be conſider.
to take the Oath, having firſt put Earth in their ed. If we have
to do with a poor State, a ſmall
Shoes, and faſtned the Heads of Garlick upon their Force may be eſteemed an Army, which yet againſt
Shoulders, ſo as not to be ſeen. But when they ſome flouriſhing Kingdoms would be deem'd little
had taken the Oath, they threw the Earth out of better than a handful of Foragers,
their Shoes, and the Heads of the Garlick from fore when Vegetius (f) deſcribes an Army (3) to
their Shoulders
, and watching their Opportunity, conſiſt of Legions and Auxiliaries
, and a compe
fell upon the Sicilians, and drove them out of the
tent Number of Horſe to carry on a War, he
Country. The Bæotians (a) made a League with does not deſcribe an Army in general, but as it was
the Spartans
, and one of the Articles was, That then amongſt the Romans ; for an Army may be
they ſhould deliver up Panačtum, which they did compos’d of only natural born Subjects, or of Al-
indeed deliver up, but firſt demoliſh'd it.
lies and Foreigners only; or it may conſiſt of on-
Leucippus (b) having borrowed of the Tarentines ly Foot, or only Horſe. Cicero (8) tells us that
the Uſe of a Place for a Day and a Night, and not Craffus denied any Man to be rich, who was not
being willing to reſtore it, when they demanded able to maintain an Army at his own Charge,
it by Day, he put them off to the next Night; and which he (5) defines to conſiſt of Six Legions and
when by Night to the next Day.
a great Number of Auxiliaries. Polybius (i) ſays,
When Mahomet took Eubea he told a certain Per- the Roman Army generally contain'd 16000 Romans
,
ſon that his Head ſhould be safe, but immediately and 2000 Auxiliaries; tho’ ſometimes it did not
cut him in two in the middle.
amount to that Number. In the Digeſts (k), he
A petit Prince of the Indies fled to the King of who has one Legion under his Command, is ſaid
Perfia for Protection, and when his Sovereign de- to be General of ari Army. Beſides, another Que-
manded him by his Ambaſſador, the Perſian, du. ſtion might be moved upon this Word; As, whe-
ring the Audience, order'd him to be put in a ther the aforeſaid Article be violated, if one mar-
Basket and hung upon a Tree, and then deny'd ches a great Number of Soldiers thro' the other's
that he was upon his Land (e). Thus a certain Territories, not in a Body, but in ſeparate Par-
Perſon deny'd poſitively that he had laid Hands on ties? Now fince a Man may be faid to have an
a Prieſt, for he had only cudgell'd and kick'd him. Army, either if he has all his Forces united toge-
Thus Temures having Articled
with the Garriſon of ther in one place, or has them ſo diſperſed as to be
Sabaftia that no Blood ſhould be ſhed, nevertheleſs or able to draw them together upon ſhort Warning,
dered all the Priſoners to be buried alive. But it ought to be farther conſidered for what End
theſe Quibbles, as they are too groſs and frivolous, this Article was made ; for if it was only for our
ſo, as Cicero obferves, inſtead of taking it off, own Security, 'tis plain the Article is not violated
they rather bind the Perjury upon the Conſci- by the Army's marching in ſmall Bodies ; but if it
ence (d).
was for the Security of a Neighbour, ſuch a Paf-
IV. As for Terms of Art, which are (1) above the fage as this breaks the Article. And the ſame
Reach of the common People, the Rule is, That may be applied to a Fleet ; if in any Treaty it be
they be taken according to the Definitions (2) of the provided that no fleet ſhall be ſuffered to paſs in
Learned in each Art. The Logicians, ſays Cicero, uſe ſuch a part of the Sea ; for here not only the
not the Words as other Men: they have Terms of Number of Ships, but their Bigneſs and the mari-
their own, as indeed all other Arts have: v.g. the time Strength of the People concern'd is to be
Word Army ; ſuppoſe it had been ftipulated be conſider'd (1). And ſo in reſpect of a Fort prohibit-
tween two Crowns, that one ſhould not paſs thro' ed to be raiſed within ſuch a Diſtance; the Word
the other's Territories with an Army, what Num- nay ſignify either a high and regular Fortificati-
ber of Soldiers would come under that Denomi- on; or any Fortified Place whatſoever, altho' con-
nation? Grotius (e) defines an Army to be ſuch a fiſting of low pitiful Buildings. And therefore,
Number as dares invade a foreign country, or if the Deſign of the Article be to prevent any for-
face an Enemy in the Field; for we find in all Hi- tified Place from giving Umbrage to our Territo-
ſtories the open Aations of an Army oppos’d to ries, 'tis plain that it is againſt the Treaty to throw
what is done by Stealth in the Manner of Robbers: up ſo much as a little Bulwark of Earth, with ſmail
yet it cannot be ſo univerſally defined, how great Huts to lodge Soldiers in (m).
a Multitude conſtitutes an Army, as to hold good But if (4) Terms of Art happen to be differently
Mr. Barbeyrac's NOTES on 8.4.
(1)This is what Cicero obſerves about Logick, in the Paſſage quoted by our Author after Grotius. Qualitates igitur adpellavi,
quas molotu 7 as Greci vocant : quod ipſum apud Grecos non est vulgi verbum, ſed Philoſophorum, atque id in multis. Diale&torum verò ver-
ba nulla ſunt publica: ſuis utuntur : & id quidem commune omnium ferè est Artium, Academic Queſtion. Lib. 1. Chap. 7.
(2) Unleſs he that ſpeaks underſtands neither any Art, nor the Terms of it'; for then we muſt judge by the Connexion of a
Diſcourſe, or ſome other Circumſtances, what Senſe he had in his Mind.
(3) His words are, Exercitus dicitur tam Legionum, quam etiam auxiliorum, nec non etiam Equitum, ad gerendum bellum multitudo
colle&ta. De re militari. Lib. 4. Chap. 1. Edit. Plautin. Scriver.
(4) This Reflection, as Mr. Titius obſerves, Obſervat. 419. is nothing to the Purpoſe, for he treats not of the Manner how
one may expreſs himſelf clearly to make his Mind known, but only gives ſome Rules to diſcover another’s, when 'eis darkly ex-
(a) Thucyd. I. 5. 6. 42. Edit. Oxon.
(6) Strabo, 1.6. p. 183. Edit. Genev. (c) Olearius, itin. Perſ. 1.4.0.30.
c.32. Fraus enim adftringit, non diffolvit perjurium. (e) Vbi fupra. C) Dere militari, l. 3. c. I.
(b) In the ſame place. (1) L. 6.
(k) Lib. 3. t. 2. 1. 2. 5.1. D. de his qui not. infam. doc.
(1) To this belongs that
of Florus
, l. 1. c. 11. 1.10. Edit. Græv. The Spoils of Antium are in being, which Mænius fix'd in the Forum, having taken the
Énemies Fleet, if it may be called a Fleet. For there were ſix Ships with Stems, and that Number then was enough to enter in-
to an Engagement with. Add. Alber. Gent. de jure belli, l. 3. 6. 20. (m) Add. Alber. Gent. d.1. 21.
defined
preſſed.
(d) Off.3.
(8) Paradox. 6.

CHAP. XII.
303
Of Interpretation.
be taken,
his Pleaſurehad
defined by different Perſons, to avoid Quarrels, of that fort of People, which are always hanker-
it will be convenient to expreſs in common Words ing after other Mens Éſtates. (uora
in what Signification the Word under Debate ſhall nAnother Inſtance we have in the Anſwer Charles
0 000 sd le dos V. gave the French Ambaſſador, when he demanded
V. When a ſingle Word or Sentence is capable of the Dukedom of Milan: That which pleaſes my Brów
feveral Significations, Gonje&tures are neceffary ther the French King, pleaſes me alſo. Which the Am
to find out the true. Both of theſe Caſes the Rbe- baſſador in great hafte gave his Maſter Advice of,
Foricians call Ambiguous. But
the Logicians are more
as if he had gain'd his Point (d). fa qu 201310
nice, who, if the Variety of Significations lies in VI. Beſides, when we meet with a * ſeeming Res
a Word, call it Aquivocal, if in a Sentence, Am- pugnancy in the Terms, Conjectures are neceſſary
biguous
. An Example of the former we meet with to work our the genuine-Senſe, by reconciling, if
in Tertullign (a), who tells us that the Word Woman poſſible, thoſe Terms that ſeem to be repugnant.
in 1 Cor. xi
. 5, &c. ought to be extended to Virgins But if there be a clear evident Repugnancy (1),
alfo. Althoʻſometimes it is oppos’d to Virgin, as in the latter Contract vacates the former : For no
Cicero (b), T. Morrow ſhe will be a Woman. (2) Ci- Man can Will Contradi&ions, and it is the Nature
Pero gives this Example of the latter : A certain of Aes, which depend upon the free Will of the
Man had bequeath'd a Legacy in theſe Words; Agent, or over which no Man has acquir'd a
Heres meus vaforum urgenteorum pondo centum noverce, Right, to be diſclaim'd' by a contrary Motion of
que volet, dato. Let my Heir give his Mother-in-law the Will. And this Change of the Will
, in order
100 Weight of Plate at Pleaſure. Upon this the La- to annul an A&, is ſometimes required on one fide
dy demanded the fineſt and beſt wrought Plate : only, as in making Laws, Wills and Teftaments,
But the Heir interpos’d that the Choice was left to &c. and ſometimes on both ſides, as in Contracts,
. The Ambiguity been avoided by which, unleſs the
can't
Law, in ſuch a Cafe (3) gives the Legatee
the Op. From hence, by the way, it appears how Lycort as
tion, and indeed there is Reaſon for it. For had might have excuſed his Neglect, in not mention-
the Option been deſign’d to be left at the Diſcretion ing, when he went to renew the League be-
of the Heir, there had been no need of the Clauſe tween the Achæans and
the King of Egypt, which,
at of the
,
(4), and I have ſeveral Ways of ſatisfying the Ob- would have renew'd: for he might have faid, that
ligation, 'tis left to my to chooſe which way thoſe which were never broken needed not to be
to do it. But when a Clauſe is added concerning renewed, and in the renewing of thoſe
which had
the Choice, 'tis deſigned in Favour of the Party been broken, he ought to be preſum’d to mean the
which is to receive, that the other may not obtrude laſt Ce). 393901
ſome pitiful, worthleſs Thing upon him (c). 2012 For an Inſtance of two Laws, that ſeem to thwart
As for the famous Deciſion of the Duke of of- one another (3), One enacts, That a Statue be erected
fona, Viceroy of Naples, who decreed the whole in the Gymnaſium in Honour of the Perſon that kills the
Inheritance to the Son againſt the Prieſts, who Tyrant : Another ſays, That no Woman's Statue ſhall
were left Heirs, with a Clauſe, To give the Son what be plac'd in the Gymnaſium: Now a Woman kills the
they would, ſtriátneſs of Juſtice does not plead in Tyrant. In this Caſe I ſhould judge in Favour of
Behalf of it, ſo much as the odious Covetouſneſs the Woman. For the Reaſon of the first Lavv was,
lo
Mr. Barbeyrac's NOTES on §. 5.
(2) Cicero's Words are, Paterfamilias, cùm Filium heredem faceret, vaſorum argenteorum centum pondo Vxori ſuæ fic legavit : He-
res meus uxori més vaſorum argenteorum ponde centum, que volet, Dato. Poſt mortem ejus vaſa magnifica, do pretiosè cælata petit d
Filio Mater. Ille se, que ipse vellet, debere dicit. Cic. De inventione, Lib. 2. Chap. 40. See ad Herennium, Lib. 2. Chap. 13. and
Quin&til. Lib, 7. Cap.9.
(3) The Words of the Law are, Quotiens ſervi ele&tia vel optio datur, Legatarius optabit, quem velit. Sed do homine generaliter le-
gato, arbitrium eligendi, quem acciperet, ad Legatarium pertinet. Digeſt
. Lib. 33. Tit. s. De optione do ele&tione legata. Leg. 2.
princ. $. I.
(4) Tis a Maxim of the Roman Law, Cum illa aut illa res promittitur, rei Ele&tio eft, utram præftet. Digeſt. Lib. 23. Tit. 3.
De jure dotium, Leg. 1o. S. 6. See alſo Leg. 18. Tit. I. De contrahenda emptione, Leg. 25. princip. and Lib. 19. Tit. I. De altion.
Empti do Venditi
, Leg. 21. $ 6. Indeed it belongs to him only who lays the Obligation, to explain himſelf clearly and without
Equivocation or Reſerve, as to what he requires of another. Quidquid adſtringende obligationis est, id niſz
, palam verbis exprimitur,
omisſum intelligendum est. Ac fere ſecundum promiſſorem interpretamur : quia ftipulatori liberum fuit verba laté concipere. Digeſt.
Lib. 45. Tit. I. De verborum obligatione, Leg. 99. And we may lay this down as a general Rule, That when there is in a Deed any
Obſcurity or Dubiouſneſs, which can't be cleared by the Intention of the Contracters, nor any other Circumſtance, the Inter-
pretation ought to be againſt him, who ought to have explained himſelf, or made the other have delivered himſelf fully. Info-
much that he who is obliged, might and ought to ſpeak clearly, the other hath a Right to explain the Clauſe for his own Ad
vantage. Nec rurſum promiſſór ferendus eſt, ſi ejus intererit, de certis potius vafis forte, aut hominibus a&tum. Digeft. ibid. So thaç
all obſcurities and Ambiguities in a Bargain of Sale, or Living, muſt be interpreted againſt the Seller or Landlord. Veteribus
places, pa&tionem obſcuram, vel ambiguam venditori,-&
qui locavit nocere : in quorum fuit poteſtate Legem apertius.confcribere. Digeſt.
Lib. 2. Tit. 14. De pallis, Leg. 39. See alſo Lib. 18. Tit. 1. Leg. 21, 33. Lib. 50. Tit
. 17. De diverſis regulis furis, Leg. 172.
Mr. Barbeyrac's NOTES on 9. 6.
(1) Ubi due contraria leges funt, semper antique obrogat Nova. Tit. Liv. Lib. 9. Chap
. 34. Where two Laws thwart one another,
the new one abrogates the old. Ai uetezerésesai derdi čas iguetegae F Treš a to v chor. Digest. Lib. 1. Tit.4. De conſtitutio-
nibus Principum, Leg. 4. See alſo the Canon Law in the Decretals; Lib. 1. Title
3. De Reſcriptis
, Chap. 3. and a Paſſage in Plus
tarch, which will be quoted Note 6. on 5.9.
(2) See the foregoing Chapter, §. 8.
(3) Tyrannicida imago in gymnaſio ponatur: contrà Mulieris imago in gymnafio ne ponatur. Mulier Tyrannum occidit. Quinct. Inſties
Orar. Lib. 7. Chap. 7.
(a) De velandis Virginibus, c. 4.
Mitit. Orat. 1. 7. C. 9,
(6) Apud Quin&til. Inſtit. Orat. 1.6.c.3.
(d) Marſelaer Legato, 1.2. C. 39, έναντιοφάνεια,
| Tt 2
(c) Add. Auth. ad Heren. L. 1. c. 12. Quint.
(e) Vide Polyb. excerp. leg. 41,
chas

304
Of Interpretation.
BookV.
But if
him in Marriage. In this caſe, the wedlon of the to Conjectures.
that the Youth which is train’d up to Valour in rather than the Death of the Man in its Eye
the Gymnaſium, ſhould by ſuch ſort of Honour be and after this rate, one of them, at leaſt, will be
ftir'd up to imitate brave Actions : The Reaſon provided with a Husband, whereas otherwiſe
of the latter is, becauſe the Verrues proper to Wo- both will be forced to remain Single. Beſides
,
men are not generally the Object of Mens Imita- when there is as much to be ſaid on the one side
tion. But, in this caſe, ſince a Woman has out as on the other, the more favourable Sentence
done her Sex, ſhe deſerves the rather to have her ought to prevail
. rio
Statue put up in the Gymnaſium; for ſuch Bravery But
ſometimes the Words claſh in ſome partia
in a Woman would be a greater Incitement to E- cular
Caſe, as in this Inſtance: There is a Law,
mulation in the Men. There is another Example (7) That a Man, who has bebaved himſelfhonourably
in (4) Cicero de Invent.Lib.2. Cap.49. One Law ſays, in the War, shall have whatever he demands; bere
Whofoever kills the Tyrant let him be rewarded as a Con- Two fuck, who both demand the ſame Virgin; fince
queror at the Olympick Games, and let him demand what both cannot be ſatisfied, which
must be preferi'd I an-
be pleaſes of the Magiſtrates and let the Magiſtrate [wer, He that made the Demand firſt
.
grant his Reguest. Another Law runs thus : Upon both demanded together they muſt draw Lots;
the Death of the Tyrant, let bis five nearest Relations for tho' the Law, gives an unlimited Liberty of
be put to Death. Alexander, who bad exerciſed Ty- demanding, yet it muſt be fuppoſed to be re-
raung over the Phereans in Theſſaly, being killd by ſtrain’d to thoſe Things which can conveniently
bis Wife Thebe, Sbe, for her Reward, demands ber be granted. Another Example is propos'd by
Son, whom she had by the Tyrant (5). Some were of (8) Philoſtratus in the Life of Secundus
. He that
Opinion, that by the Law the Son ought to be put to raiſes a Sedition, is to be bang’d; be that quells it, to be
Death,
rewarded : The Same Man both raiſes a Sedition and
But ſometimes the ſame Law ſeems to claſh quells it, and demands his Reward. In which Care
with itſelf: (6) As for Inſtance, the Law ſays, Secundus, with good Reaſon, argues thus, Provided
That a Woman, who has been debauch’d, may choose ei- you first ſuffer Puniſhment for raiſing the Sedition, you
ther to marry the Man who has injur'd ber, or to have ſhall then, if you pleaſe, receive the Reward for quelling
him put to Death. Here is a. Man that has debauch'd it. In luch Eaſes as theſe, where Words are (9)
Two, whereof one chooſes his Death, the other demands evidently Obſcure, we are forc'd to have recourſe
Law the Buſineſs: here the Law,
by permitting the Woman to chooſe the Death of Theſe Conjectures are ſometimes built upon ſuch
the Man, did not ſuppoſe that many would deſire good Grounds, as that the genuine Senfe forces
it; but the Good of the poor Woman was herein itſelf upon us, even againſt the receiv'd common
conſulted, left the ſhould for ever continue with- Signification of the Word. To this purpoſe is
out a Husband; for the Man, after the Heat of that Diſtinction of the Rhetoricians becween the
his Love was over, might caſt her off
, as not like- Letter and the Deſign. As for Inſtance, (10) The
ly to deny others thoſe Favours which ſhe had ſo Law makes it Capital for any Foreigner to preſume to
unlawfully granted him: nor would it be eaſy to mount the Walls : (11) But in a Siege a Foreigner
find one who would willingly marry her that had mounted the Wall and beat down the Enemy that was
been deflowred by another. And therefore the ready to ſcale it. Now the Letter is againſt the
that demanded the Man in Marriage ought to be Foreigner, the Deſign for him; according to
preferr'd: For this anſwers beft the Deſign of the which, no doubt Judgment ought to be given; for
Law, which had the Convenience of the Woman, the Deſign of the Law was to prevent any Foreig-
les
Cap. 49.
(4) Tully's Words are, Ex contrariis autem Legibus controverſia nafcitur, cum inter ſe due videntur Leges, aut plures diſcrepare
hoc modo : Lex est, Qui Tyrannum ociderit, Olympionicarum premium capito, do quem volet fibi rem d Magiſtratu depoſcito, do Magi-
Aratus ei concedito. Et altera Lex, Tyranno occiſo, quinque ejus proximos cognatione Magiſtratus necato. Alexandrum, qui apud Phe-
reos in Theſalia tyrannidem occuparat, Vxor fua, cui Thebe nomen fuit, noftu, cùm fimul cubaret, occidit. Hæc filium fuum, quem
Tyranno habebat, fibi præmii loco depoſcit. Sunt qui ex Lege Puerum occidi dicant oportere. Res in judicio eft.' De Invent. Lib. 2,
They had done wrong, for beſides that the firſt Law was manifeſtly barbarous and unjuſt, the End was, without doubt,
to deſtroy all that had any Relation to the Tyrant, as Men to be feared, or whom he might have for his Aſſociates; for there is
all the appearance imaginable, that the Mother who had ſo much Courage and Zeal for the Publick Good, as to ſtain her Hands
with the Blood of her Husband, would have had no regard to her Son's Life, if ſhe thought him to be of the fame Temper as
His Father.
(5) This is the Subject of Seneca's Fifth Controverſy: Lex : Rapta raptoris, aut mortem, aut indotatas nuptias optet. Una notte
quidam duas rapuit : altera mortem optat, altera nuptias. Moſt of the Declaimers, whoſe Fragments Seneca relates, would con-
demn the Raviſher to Death.
(7) I do not know from whence this Example is taken ; the Law indeed is found in Seneca, Controverſ. 31. and in the Er-
cerpt. Controvers. Lib. 1o. Declam. 2. As alſo in Aulus Gellius, Noët. Attic. Lib. 9. Chap. 16. but the reſt of the Caſe is alco,
gether different.
(8) Philoftratus's Words are, “Ο άρξα στασεως, ατοθνησκότω, και ο παύσας σασιν, εχέτω δωρεάν. ο ανής και άρξας και πούσας,
ατεί την δωρεάν. την υπόθεσης, δεν έβραχυλόγησον. έκαν, έφ», τι σουίτερο το κανήσαι πάσανα τη δεύτερον, το πιούσαι:
&v, soos direis, ni uweian, thv do ois sů miminnges Negecs, si direbui, nes Philoftrat. de Vitis Sophiftarum, in Secundo, Lib. l.
Cap. 26. Ed. Olear. 1709.
(9) In the Examples of apparent Contradictions brought by our Author, the Terms are not obſcure; but, 'on the contrary,
But the Incricacy proceeds from this, That they include not in themſelves the Exceptions which the Lawgiver
would have made to the Law, if he had foreſeen certain Cales which are drawn from ſome other Thing, chan the Words rákea
(10) rieel int x; Savolcs ; which the Latins render, Ex Scripto do Sententia fcripti: or, as Quintilian, Lib. 7. Cap. 6. and
Author of the Rhetorick, Dedicated to Herennius, Lib. 1. Chap. 11. Ex Scripto di voluntate status.
(11) Quintilian's Words are, Peregrinus, Si murum afcenderit, capite
puniatur
. Cum hoftes murum adſcendiſent, peregrinus eos de
pulit. Petitur ad ſupplicium : Quintil
. Lib. 7. Cap. 6.!
nes
very clear.

CHAP. XII.
305
Of Interpretation.
tho Livy, 1. 38.c. 38. fays nothing of the cutting of the Ships.
ner from mounting the Walls as a Spy; which the Oracle of Falſhood; for the Oracle foretold
Reaſon in the preſent Caſe ceaſes (a).
that he ſhould live no more than ſix Years: but he
But we muſt take notice that fometimes a Re- order'd Candles to be lighted up, and revell’d by
pugnancy is ſuppos’d, when indeed there is none, Night as well as Day, as if by thus uſing the Night
viz. when Words are taken in a larger Significa- as Day he could make Twelve Years out of Six(b).
tion than the Speaker deſign'd them. A notable Thus the Word Arms denotes fomtimes the
Inſtance of this we meet with in Joſephus (6): where Weapons of War, ſometimes the Warriors them-
King Zedechias would believe neither Jeremiah nor felves
, according as the Subject-matter of the Dif-
Ezechiel, becauſe he thought they contradicted courſe directs. For if it be an Article that neither
one another; for the one afferred that he ſhould be Party ſhall uſe Arms againſt a Third, 'tis plain
carried away into Babylon: the other, (12) that he Soldiers or an Army, is meant by it: but if upon
fhould never ſee Babylon with his Eyes. The cwo the Surrendry of a Garriſon it be ſtipulated that
Prophets were very conſiſtent with each other; for they deliver up their Arms, not the Souldiers, but
he was carried away to Babylon, but his Eyes were the Weapons are ſuppos'd by it (i). Se
firſt put out.
The Platæenſes having promis'd to reſtore the
Theban Caprives, ought to have reſtor'd them alive
VII. Grotius has allign'd three common places, not dead (k). For the Teaty was concerning (3)
from whence we may trace out the Deſign, where living Men and not the Carcaſſes of them.
the Words are obſcure or ambiguous, viz. The It was a wretched Fetch of Labeo's, who having
Subject-matter, the Effects, and the Circumſtances. by the League a Title to half of Antiochus's Fleet,
As for the former (I) tis in the Mouth of every cut every Ship in Two, and fo depriv'd the King
Civilian, That Words ought to be underſtood according of his whole Navy (l). Thus the (m) Campanians
to the Subject-matter of them (C); as (2) if a Man ftruck up a League, with their Enemies, and one
promiſes to defend you in the Poffefſion of the Article was that they ſhould have half their Arms
Goods you buy of him, his promiſe is not ſuppos'd reſtor'd them: but they cut each Weapon in Two,
to extend to any extrajudicial Violence (d). I and ſo deliver'd them half.
fancy this Rule may be applied to the Vow of Xiphilinus (n) tells us of two Souldiers, who hav..
Jephtha in Judges XI. 31. and to that of Agamem- ing gor a Hogſhead of Wine amongſt their Plun-
non in Cicero (e) who having vow'd to offer up to der, and being commanded to divide it, cut it in
Diana the moſt Beautiful Creature that ſhould be Two with their Swords. Rhadamiſtus ſwore to
born that Year, ſacrific'd Iphigenia, who indeed Mithridates that he would not either by Sword or
was the moſt beautiful which that Year produc'd: Poyſon do him any Harm; but preſently after,
But he who talks of Sacrificing is preſum'd to mean he ſmother'd him in his Bed 6).
a Subject fit to be made a Sacrifice of (f).
VIII. Secondly, The Effeets and the Conſequence
So if a Truce be made for Thirty Days, it muſt do very often point out the genuine meaning of
be underſtood of natural Days conſiſting of Twen- the Words. For where Words, if they be taken
ty four Hours: not of artificial, or the Ipace of the literally, are like to bear none, or at leaſt, a
Sun above the Horizon. And therefore it was a very abſurd Signification ; to avoid ſuch an In-
frivolous Quibble of Cleomenes, who had made a convenience (1) we muſt a little deviate from the
Truce with the Argives for ſo many Days, but the receiv'd Senſe of them (p). And therefore it
third Night finding them ſleeping and unprovided was abſurd in the Athenians (9), having promis’d
by reaſon of the Truce, ſet upon them, and flew to relinquiſh the Territories of the Bæotians, to
ſome, and took others: and when he was upbraid- deny the Ground that they had encamp'd upon to
ed for his Pajury denied that the Nights were be the Beotians. . With the ſame Cavil did Alexa
comprehended in the Treaty (g). In vain alſo ander elude the Conditions that Darius propor'd
did Mycerines King of Egypt endeavour to convict to him. Darius had offer'd him all the Land that
(12) SceJeremiah xxxviii. 17, &c. and Ezekiel xii. 13.
Mr. Barbeyrac's NOTES OA $ 7.
(1) The Words of the Digeſt are, Quotiens in Stipulationibus ambigua Oratio est, commodiſimum eſt, id accipi, quo res, qua de agi-
tur, in tuto fit. Digeſt. Lib. 45. Tit. I. De verborum obligationibus Leg. 80. See alſo Lib. 50. Tit. 17. De diverſis Reg. Jur.
(2) So the Code aſſures us, Expulfos vos de fundo per violentiam & Nerone, quem habere jus in eo negatis,
profitentes, nullam vobis
adverſus eum, ex cujus venditione fundum poffidetis, aftionem competere probatis, Cod. Lib. 4. Tit.
49. De učtionibus empti do venditi,
Leg. 17. See other Examples, Lib. 19 Tit
. 2. Locati, condukti, Leg. 15. $ 4. and Lib.39. Tit. 2. De damno infe&o,&c. Leg.49.
(3) So Ovid ſpeaks in the Paſſage quoted by our Author, but not mentioned from whom ; Hellor erat tunc cum bello certaret,
at idem Tra&us ab Æmonio non erat Hestor equo, Ovidc de Trift. Lib, 3. El. 11. v. 27, 28. Sic Pericles cum quibuſdam hoftium itá
Pa&tus legitur ut ipſi ferrum deponerent ; poftea eoſdem pa&ti violati infimulavit, argutatus eos non depofuiſſe fibulas ferreas quas in la-
cinis veftimentorum gerebant. Lex eſt, qui no&e cum ferro deprehenfus fuerit, alligetur : cum annulo ferreo inventum magiftratus
alligavit, Quint. Inft. Orat. Lib. 7. Cap. 6.
Mr. Barbeyrac's NOTES on 6 8.
() Thus the Roman Lawyers fay, in ambigua voce Legis ea potius accipienda eft fignificatio, quæ vitio caret : præfertim cim etiam
voluntas Legis ex hoc colligi poffit, Digeft, Lib. 1. Tit. 3. De Legibus, do Senatuſconſultis, &c. Leg. 19. Cicero ſays again very
well
, Nullam elle Legem, que aliquam
rem inutilem, aut iniquam fieri velit, De Invent. Lib. II. Cap. 47.
(a) Add. l. 39. t. 4.1. 15. D. de Publicanis, &c.
(6) Archeol. Jud. I. 1o. c. 10.
(-) Víd. lib. 45. t. 1. 1. 10. D.
(d) L. 19. t. 2.1.15. 1. 4. D. locati, doo I. 39. t. 2.1.43. D. damni infe&ti,&c. L. 4. t. 49.
c. l. 17. de azi. empt. do vend.
(e) Off. 3. c. 25. (f) Add. Everhard. loc. legal.40, which is about the Subject matter.
(8) Plut. Apopht. Lacon. p. 223. such another Trick the Thracians uſed againſt the Breotians, Scrab. L. 9.p. 277.
(h) He.
ri) Add. Alber. Gent. d. l. c. 20. re) Thucyd. 1. 2. init. (1) Val. Max. l. 7. c. 3.
(m) Polyan, 1.6. c. 15. (n) Epit. Dion. in Ca.
. .
of
of France, took the City Bolognia
, and its petty Prince Bentivoglio
, into his Protection, which he afterwards cavilled at
, in a
manner very unbecoming a King. Gricciard. Hift
. I. s. p. m. 134, & p. m. 146. (9) Thucyd. 1.4. 6. 98
lay
Leg. 67,
rodotus, Euterpe.
Tacalla, ad ann. 217.

306
Of Interpretation
Book V.
lay between the Euphrates and the Hellefpont; to by which it appears, that he had made the rich
which Alexander reply'd, He offers very liberally all Heir of all; and therefore he demands the whole Imberia
an that fide, the Euphrates, Where is it then that he tance. He that was the written Heir was for giving
ſpeaks to me? I am already beyond the Euphrates; And only ſo much as the poor Man was worth(d). And in
therefore the whole of the Dowry be offers
, is lefs eban deed, this is to be faid for the written Heir, that
what I am already Maſter of: drive me hence, that I if he did not obtain the Cauſe, his being made
may be aſjur d that what you offer is your own (a), As Heir would have had no Effect. Which was the
if it was the ſame ching to poſſeſs a Place by chief Reaſon why the Falcidian (3) Law, and
Force of Arms, and to poſſeſs it peaceably, and (4) Pegafyan Decree affign’d the Heira (5) Dodrans
with the Conceſſion of the former Mafter. Vi over and above;h for to the Heir and Legaree
Lewis XII, agreed with the Pope's Legat, that were both provided for. As for the Interpretati-
the
Biſhopricks
; void by the Death of the Biſhops on of the Laws of the Land, Ithat of Cicero (6)
in France, ſhould be at the King's Diſpoſal. But muſt every where take place : All Laws, fays he,
a French Biſhop happening to die at Rome, the Pope ought to be referr.d to the Benefit of the Commonwealth
immediately nominated a Succeſſor, and the King and ought to be interpreted according to the Publick adi
as ſoon another; which occaſioned great Differen- vantage, not according to the Letter; for no one would
ces.
In this Cafe, were I Judge, I ſhould not have the Laws regarded for the sake of the Laws them-
ſcruple to pronounce in favour of the King ; for ſelves; but for the sake of the Commonwealth. Son
to render an Office vacant, 'tis no matter in what IX. Beſides, Tibordly, it gives great Light to the
Place the Incumbent dies : and if ſuch a Cavil Interpretation of obſcure Pallages to compare
had been admitted, the King's Right might have them with others that have ſome Affinity with
been invaded ſeveral ways(b).
them; as to conſider what the fame Author fays
At Bolognia it was enacted, that Whoſoever drew (1) in another place, where he handles the fame
Blood in the Streets, ſhould be ſeverely puniſhid:(c). Up- Matter ; or to (2) compare them with what goes
on which Law a Barber was indited for opening a before and follows in the Context. For in a
Vein in the Street, and it had like to have gone doubtful Point the Author muſt be ſuppos’d to be
hard with him, becauſe it was added in the Stature, conſonant to himſelf : And therefore, if (3) in
that the Words ſhould be taken preciſely, without any one Place he has expreſs’d his Mind clearly, we
Interpretation. (2) In Quinctilian we have this Caſe; ought to preſume, that he is ftill of the lame
A poor Man and a rich Man were Friends: The rich Mind in another Place, unleſs it exprefly appears
Man in his Will made another Friend bis Heir, but be that he has chang’d it. Thus if two Men thould
queath'd to the poor Man as much as be, in his Will
, had bargain for Wheat, withont mentioning the Quan-
bequeath'd to him. The poor Man's Will is produc’d; city, it would be (4) an imperfect Bargain : But
(2) Quintilian’s Words are, Pauper, do dives, amici erant. Dives teſtamento alium amicum omnium bonorum inſtituit hæredem :
pauperi juſit dari id quod ille ſibi teſtamento daret. Aperte ſunt tabulæ pauperis : omnium bọnorum inſtituerat bæredem. Petit totam di-
vitis hereditatem. ille
, qui ſcriptus eſt bares, vult dare tantum, quantum in cenfum habet pauper. Declam. 332. od ovo
(*) In the Time of Nero, in the Conſullhip of Trebellius Maximus, a Decree of the Senate was nade, That an Heir in Truſt
,
who was obliged to reſign to the Lawful Heir, ſhould be diſcharged of all the Debts and Disburſemears, which, as well as the
Rights, Names, and Actions, ſhould paſs with the Goods to him, for whoſe advantage the Truſt was made. But ſince the Heirs
thus put in Trúft, had little or no Advantage by the Inheritance, which they were to make over ; and to ſcarce any one cared
to trouble themſelves with a Truſt, it was ordered by another Decree of the Senate, in the Time of Veſpalan, in the Conſulſhip
of Pegaſus, That he that was obliged to reſign to the Heir, or another Party, ſhould keep a fourth Part. The Emperor Juſtinian
united theſe two Decrees afterward, and called them by the Name of their Author, the firſt, The Trebellia. Decree, and the
other, The Pegafian. The more ancient Name, which was the Trebellian, remained only, and from thence it wa. called, The Tre-
bellienick Quarter, or ſingly, The Trebellianick, viz. the fourth Part of the Inheritance which was to remain to tie Heir who was
to reſign. See the Inſtitut. Lib. 2. Tit
. 23. De fidei commiſſariis hereditatibus, &c. and the Digeſts, Lib. 36. Tic. i Ad Senatus;
conſultum Trebellianum ; as alſo Mr. Daumat’s Civil Laws in their Nat. Order, Part 2. L. 5. Tit. 4.
(3) Iu all the Editions of the Original our Author has it, dodrantem ; three Parts, inſtead of one in four, quartan partem. Yet
we ought to obſerve, that in the Roman Law the Trebellianick fourth Part is called the Falcidian, becauſe the Thibellianick is
much the ſame as to the Heir who is to reſign, as the Falcidian is, as to the true and real Heir. See Digeſt, Lib. 28. Tit. 6. De
vulgari do pupillari ſubſtitutione, Leg. 41. $ 3...
6) Cicero's Words are, Omnes Leges f udices, ad commodum Reipublice referre oportet, & eas ex utilitate communi, non ex fcriptis
one, quæ in literis eſt, interpretari. Neque enim ipſi
, (qui Leges ſcripſerunt] quod obeſet, fcribere volebant : & fi ſcripsiffent
,
cim effet intelle&tum, repudiatum in Legem intelligebant. Nemo enim Leges Legum cauſa ſalvas effe vult, sed Reipublice, quod ex legis
bus omnes Rempublicam optimé putant adminiſtrari
. De Invenc. Lib. 2. Cap. 38.
Mr. Barbeyrac's NOTES on s. 9.
(1) It is a judicious Maxim in the Roman Law, That every part of a Law ought to be interpreted by the Tenor of the whole
Law : Incivile eſt, niſi tota Lege perſpeła, una aliqua particula legis propofita, judicare, vel reſpondere. Digeſt, Lib. 1. Tit. 3. De
Legibus, &c. Leg. 24. See alſo about Compacts, Lib. 45. Tit, 1. De verborum Obligat, Leg. 134. $ 1.
2 (2) The fame Lawyers obſerve alſo, That we muſt explain one Law by another, the Ancient by the New; and on the other
fide, the New by the Old, unleſs the laſt have manifeſtly abrogated ſomething preceeding, Non eſt novum, ut
priores Leges as
poſteriores trahantur Sed do pofteriores Leges ad priores pertinent, nifi contrarie fint : idque multis argumentis probatur. Die
geft, Lib. 1. Tit. 3. De legibus, doc. Leg. 26. and 28. Further, Mr. Hertius makes a pleaſant Miſtake.
As the Author ſays,
Cam illis Locis ubi idem de ſimili agit materia; he quotes thereupon with a for, a law, which imports, that when the Inten:
tion of the Contractor fully appears. not, they muſt follow the Cuſtom of the Country where they treat: Aut, fi non appareat
quid a&tum est, erit conſequens, ut id fequamur, quod in regione, in qua a&tum eſt, frequentatur. Digeſt, Lib. 51. Tit. 17. De Rego
Jur. Leg
(3) Cicero obferves well
, Thar ro diſcover the ſence of a Writing, we muſt examine the works of the fame Author, bis
Actions, Words, Opinions, and Converſation : Qua in Sententia Scriptor fuerit, ex ceteris ejus fcriptis, fa&tis, dictis, animo atque
vita ejus fumi opórtebit. De Invent. Lib. 2. Cap. 40.
(4) The Words of the Digeſt are, Imperfe&ta erit ftipulatio Si quod pondere, numero, menfura continetur, fine adjectione
ponderis, numeri, menfure ftipulatus esſem. Digeſt, Lib. 45. Tit. I. De verborum obligat. Leg. 115. princip.
(a) Q. Curcius, 14 soldi (b) F. Marſel. Legat. l. 1. 6.38. (c) Everhard loc. legal. 8. ab abfurdo,
() Declam. 332
if

CHAP. XII.
Of Interpretation.
397
if by their former Dealings it appear'd, that (5) which is evidently clear, in preference to that which is
ſuch a Sort and ſuch a Quantity was thought of obſcure : So we look upon that Paet to be better and more
and deſign'd, it is as good as if it had been actu- valid, which is deciſive of the Controverſy, and liable
ally expreſs' (a). This may be illuſtrated from to no Exception (8).
Homer (b) in the Duel between Menelaus and Paris.
They had agreed, that the Conqueror ſhould en X. But that which helps us moſt in the Diſco-
joy Helen ; Paris being worſted, provided for him- very of the true meaning of the Law, is, the Rea-
felf by Flight, and Agamemnon proclaim'd Mene- Son of it, or the Cauſe which moved the Legiſlator
laus Conqueror, and that therefore Helen, accor to enact it (1) This ought not to be confounded
ding to Articles, ought to be his. And the Poet with the Mind of the Law; for that is nothing
makes Jupiter of the ſame Opinion, who declares but the genuine Meaning of it; for the finding
himſelf (c),
out of which, we call in the Reaſon of it to our
Affiftance. And this is of the greateſt force when
“Αλλ' ήτοι νίκη μεν αρη φίλε Μενελάι. it evidently appears that ſome one Reaſon was the
only Motive that the Parties went upon, which is
Brave Menelaus gains the Victory. no leſs frequent in Laws than in Pacts. And here
that common Saying takes place, that The Reaſon
Beſides, he that impoſes the Conditions muſt be ceaſing, the Law itſelf ceaſes. But if ſeveral Reaſons
the beſt Interpreter of them ; for he on whom concur together, and only one ceaſes, the others
they are impoſed, has no Power of adding to do not immediately expire, or become leſs able to
them. But the Conditions (as Hector expreſs'd fupport the Efficacy of the Law. Nay, ſometimes
them) had no relation to Slaughter or Death, but the general Reaſon of the Thing ſeems to draw one
to Victory only; for Helen was not to be adjudged way, and the Abſolute Will of the Legiſlator ano-
to him that prov'd the better Man, but the Con- ther, and, in ſuch a Cafe, (2) the Will of the Le-
queror, and not he that ſlays the other is ſuch ; giſlator muſt be deem'd by the Subjects a Reaſon,
for a Brave Man may fall by the Hands of a Cow- which if it be but clearly ſignified, altho’not.alto-
ard. On the other ſide it might be argued, gether fo congruous to the Laws of Prudence, yet
that in Decrees, Laws, Leagues, and Pacts, a lat- fuffices to create an Obligation. From theſe Pre-
ter Condition takes place (6) of a former : and miſſes may be rightly inferr'd, that a Preſent made
that the laſt Condition that Agamemnon had added, (3) in Proſpect of Marriage may be revoked and
was xala répyn, expreſling the Death of the Con- demanded back, if the Marriage does not fuc-
quer'd (d), and ſo Priamus ſeems to have under- ceed; eſpecially if it ſticks on that Side to whom
ſtood, in ſaying,
the Preſent was made. Tho generally in ſuch
Preſents as paſs among the Living, the Reaſon of
Jove and the Gods eternal only know,
them (4) has not the force of a Condition (unleſs
Which of the Two is doom'd to Shades below (e). it be exprelly mention'd) ſo as to make the fact
null, where that does not appear. And therefore
Beſides, the former Condition is included in the the Olynthii were not unjuſt in refuſing to reſtore
latter, for he that kills, conquers, but not vice the Land which Amyntas King of Macedon had
versá. And therefore the Condition which Hector given them, when, being defeated by the Illyrians,
propos'd, Agamemnon, did not annul, but ex- he had loſt all Hopes of defending his King-
plain'd (f): did not change, but added to it that dom (b)
which was of the greateſt Moment, that the Vi. Yet in ſome caſes, the Law itſelf may ſuſtain
&ory ſhould conſiſt in the Death of the Adverfa- the Place of a Condition (i). And therefore Ci-
ry; for that is undoubtedly Victory, whereas the cero, (k) to the (5) Interdict which (1), amongſt
other may bear a Diſpute (7); As therefore where opers, had theſe words in it, (6) From whence you,
Laws are really repugnant, the Judges embrace that or your Family, or your Agent, &c. rightly argues :
Idem
(s) And again, Triticum dare oportere ſtipulatus eft aliquis. Fafti quaſtio eſt non juris.
non juris. Igitur ſi de aliquo tritico cogitaverit, id
eſt
, certi generis, certa quantitatis : id habebitur pro expresso. Ibid. Leg. 94.
(6), Ρlutarch's Words are, Εν δε δόγμασι και νόμοις, έν 15 συνθήκαις και ομολογίας, κυριότερα τα ύπος νομίζεθαι, και βεβαιότερα
i copótav. Plut. p. 742. D. Ed. Wech.
(7) Ρlutarch's Words are, "Ωσπερ άν έναΐς αληθινάς ανπνομίαις οι δικαστ τω μηδεν αμφισβητήσιμων έχοντι ορισθενθαι, το
σαφέςερον εάσαντες έτως αύθα την αποφάσισαν και γνώριμον τέλΘ- άγε σαν ομολογίαν, βεβαιοτέραν ή και κωμόγεραν νομίζειν.
pag. 743. A.
Mr. Barbeyrac's NOTES on S. 10.
(1) See what will be ſaid, S. 19. Note 5. about the Caſes where the Law ought to be reſtrained, becauſe the Reaſon, which
effectually determined the Lawgiver, or Contracters, takes not place.
(2) See how the Author explains this in his Abridgment of the Duties of a Man and Citizen. Often, tho’we ſee not the Reaſon
of a Law, the Will of the Lawgiver is fufficient to impoſe, on them that depend on him, an Obligation to conform to it. L.I.
Chap. 18. 88. See allo Mr. Thomaſius's Juriſprud. Divin. Lib. 3. Chap. 12. Sis.
(3) See above in Book IV. Chap. 9. 9. 4. Note 6.
So the Digeſts order. Et generaliter hoc in donationibus definiendum eft : multum intereſe, causà donandi fuit, an conditie:
Si cauſa fuit, ceffare repetitionem. si conditio, repetitioni locum fore. Digeft, Lib. 39. Tit. 5."De Donation. Leg. 3.
(s) This is what is called Interdiétum. See the Inſtitutes, L. 4. T.is. and Francis Hotoman upon Cicero's Oration for Gecina,
Chap. 4: There are ſeveral ſorts of it, and this of which he treats is called, Interdictum unde vi.
(6) Cicero's Words are, UNDE T'U, AUT FAMILIA, AUT PROCURATOR TUUS, Cicero pro Cecina, Cap. 19.
(a) De verb. oblig. 1. 94. D. eod. Ziegl. ad Grot. d. l. 6. 7. (6) Iliad. 1.GA.
(d) Homer. Il. 3. v. 281.
(c) Iliad. A. v. 13.
(e) Homer. Il. 3. V. 309. () Ibid. v.91, 92,
(8) Plut. Symp. I. 9. qu. 13. p. 743. A.
(i) Vid. Cod. l. 8. tit. 56. de revoc. donat. (k) Orat. pro A. Cæcina. 19.
a) V. Inftit. 1.4. t. 15. & D. L. 43. t. 16.. De vi do de vi armata, I. 1. princip.
altho
(6) V. Diod. Sic. l. 15. 6. 9.
308
Of Interpretation.
BOOK V.
has
PORT
altho' one Servant be not a (7) Family, yet if that ferr’d the Ambiguity in the Words, Mine, Thine,
one Servant diſpoffeffes me, 'tis plain I ought to be Yours, &c. which Martial (d) plays with;
reſtored from the Reaſon of the Edict (a). Nor is
there any Difference whether my Agent, or any Carmina Paulus emit, recitat ſua Carmina Paulus:
body elſe in my Name, diſpoſſeſſes another : He Nam quod emis, poſlis dicere jure tuum.
adds, the Reaſon is the ſame in this caſe, whe-
ther your Agent (as the Word ſignifies one that You Verſes buy, your Verſes you recite: ivo
manageth all your Concerns in your Abſence with For what you buy, that juſtly is your Right. 29
full Power, as your Attorney or Subſtitute) or
your Neighbour, or Client, or Freed-man, or a XII. Moreover, in Promiſes and Pacts, as alſo
ny other difturb me upon your Account and In- in Privileges, fome Things are Favourable, fome
treaty (b)(8).
Odious, and others of a middle or mixt Nature.
Another Inſtance of a Caſe which may be de-
Thoſe are Favourable which carry an Equality
cided from the Reaſon of the Law (c)(9), The Law along with them, or which equally oblige each
is, that thoſe, who in a Storm forſake the ship, ſhall Party, and which tend to promote the common
loſe All; and the ship and the Lading ſhall be theirs Advantage; and the greater and the more exten-
that ſtay in it. But in a very diſmal Tempeſt all for- live the Advantage is, the better Title have they
Sake the
ship, except one fick Man who is not able to get to Favour. Thoſe alſo are favourable which make
out and eſcape: the Ship by chance comes Safe to Port ; for the Preſervation of Societies, and without
the fick Man ſeizes it as his: the Owner puts in his Plea which ſome Ad would be to no End or Purpoſe.
against him. Now the Reaſon of the Law was, Beſides, to avoid an Inconvenience is more favou-
that thoſe who had expos’d their Lives to ſave the rable than to gain a Convenience (1), and
Ship, ſhould have ſome Encouragement ; but this greater Favour is allow'd to that which makes for
the ſick Man can't pretend, who neither ſtay'd in Peace, than that which makes for War; and a de-
the Ship upon that Account, neither contributed fenſive War is ſtill inore Favourable than an offen-
any thing to the ſaving of it.
five.
XI. Beſides, the fame Word admits of ſometimes On the other ſide, thoſe are Odious, which lay
a more looſe, ſometimes a more ſtrict Interpretati the Burden on one Party only, or on one more
on, which may happen upon ſeveral Accounts. than the other ; that alſo which carries a Puniſh-
Sometimes the Name of the Genus is peculiarly ap- ment along with it; or makes any Act of no Ef-
ply'd to one of the Species; as in the Words Adop- fect; or changes any thing in former Conſtituti
tion (1) and Cognation (2). In the Names of Ani- ons; and ſuch as tends to the Deſtruction of
mals, where the Word is not of the Common Gender Friendſhip and Society.
(3), the Maſculine includes the Feminine, and vice Thoſe that are of a mixt Nature (as ſuppoſe for-
vorfâ. Sometimes Art gives a Term a larger Sig- mer Conſtitutions are changed, yet for the ſake of
nification than common Uſe: As Death in the Ro- Peace) according to the Greatneſs of the Good,
man Law is extended even (4) to Baniſhment, or the Change, are ſometimes Odious, ſometimes
which in popular Uſe ſignifies only the Separation Favourable ; yet, cæteris paribus, Favour ought to
of the Soul from the Body. Hither may be re- take place. (2).

XIII. Upon
(7) Cicero's Words are, Si me Vilicus tuus folus dejeciſſet, non familia dejeciſſet, ut opinor, ſed aliquis de familia. Re&té igitur di-
ceres te reſtituiſe? Non enim alia cauſa eſt æquitatis in uno ſervo, do in pluribus : non alia ratio juris in hoc genere dumtaxat, u•
trum me tuus procurator dejecerit, is qui legitimé procurator dicitur omnium rerum ejus, qui in Italia non fit, abſitve Reipublice care
få, quaſi quidam pene dominus, hoc eſt, alieni juris vicarius.
(8) Indeed, as the Law to which the Author here refers us, imports, all Caſes can't be expreſſed in Laws, they ought to be
applied to Caſes perfectly alike, and where the ſame Reaſon takes place evidently. Non posſunt omnes articuli ſingićatim aut Legi-
bus aut Senatus-conſultis comprehendi : ſed cum in aliqua cauſa ſententia eorum manifeſta eſt, is, qui juriſdi&tioni preeſi, ad fimilia pro-,
cedere, atque ita, jus dicere debet. Digeft. Lib. 1. Tit. 3. De Legibus, Leg. 12, 13. See alſo Leg. 27.
() So the Author ad Herennium ſpeaks, Sit Lex, que jubeat, eos, qui propter tempeſtatem navim reliquerint, omnia perdere; eorum
navim, ceteraque esſe, ſi navis conſervata fit, qui remanſerint in navi. Magnitudine tempeſtatis omnes perterriti navim reliquerunt, ſca-
pham conſcenderunt, præter unum agrotum : is propter morbum exire & fugere non potuit. Caſu do fortuito navis in portum incolumis de;
Lata eft : illam &grotus poffidet, navim petit ille, cujus fuerat. Cap. 11.
Mr. Barbeyrac's NOTES on S. u.
(1) Under the Term of Adoption, is contained the Adoption, properly ſo called, by which the Natural Father releaſes his
Son from under his paternal Authority, and transferrs him to his Adoptive Father; and Abrogation is by which a Son, who has
loſt his natural Father, and was under his own Power, ſubmits himſelf to kim who is willing to become a Father to him. See
the Inſtitut. Lib. 1. Tit. II. De adoptionibus,
(2) Cognati in the Roman Law is ſpoken generally of all the collateral Kindred, but more particularly Cognati are the collate-
ral Kindred on the Mother's Side, and Agnati of the Father's Side. See Inſtitut. Lib. 1. Tit. 15. Dé Legitimâ Agnatorum tute.
ta, S. I.
(3) The Words of the Digeſts are, Verbum hoc, fi quis, tam maſculos quam faminas comple&titur. Digeft. Lib. 50. Tit. 16. De
verborum fignficatione, Leg. 1.
(4) So the Digests ſpeak, Deportatos enim mortuorum loco habendos. Digeſt. Lib. 37. Tit. 4. De bonorum poffeffione contra ta.
bulas, Leg. 1. 9.1. See above Lib. 3. Chap. 6. S. 3. Note 5.
Mr. Barbeýrac's NOTES on 9.12.
(1) Quin&tilian's Words are, Incommoda vitantis melior, quain commoda petentis eft cauſa. Inſtit. Orat. Lib. 7. cap. 4. pag.($39
Edit. Ludg. Bat. 421. Edit. Obrecht,
(a) Vide Cicer. ubi fupra, 6. 19,6 20. (b) Add. Lib, 8. t. 3. 1. 12, 13. do Lib. 27. de legibus.
the Aut. ad Heren. l. 1. c. 9. (d) L. 2. Ep. 20. Id. 1. 5. Ep.12. Furat capillos effe, quos emit, fuos Fabulla; nunquid, Paule,
pejerat?
(2) This Diſtinction of Things favourable and odious is equally uncertain and uſeleſs. The Definitions given them by Groting
and Our Author have no Foundation ; for the Promiſes and compacts, as well as Privileges, devolving upon Things aliowablecer
(c) Which is put by

CHA P. XII.
Of Interpretation.
309
7
following Rules.
odious, for what they have of that Nature proceeds not from the Thing it ſelf, but depends only upon the Intention either of
, .
XIII. Upon theſe Diſtinctions Grotius builds the in Poffeffion (b), but a Man continues in Poſſeſſion
altho' he ſometimes goes out upon neceffary Occa-
fions. And therefore it is the ſame thing whether
1. In Caſes that are (1) not Odious, Words are to a Man aĉtually turns me out of my Houſe, or,
be underſtood according to the full Propriety of popular while I am out upon neceſſary Buſineſs (5), hin-
Uſe ; and if in popular Uſe there be ſeveral significati- ders me from coming in (c). From the Force of
ons of the ſame Word, the largest is to be taken. Thus this Rule it is that, in a doubtful, Cafe, if it be a
ſometimes the Maſculine is to be taken for the
Come Matter of Favour, the Year begun is look'd upon
mon Gender: as if Leave be given to kill any Game as compleat, where another's Right is not injured
in ſuch a Foreſt, except Bucks, under that Name by if (d). And againſt this did Caligula (e) offend
(2) Does alſo ought to be comprehended. In ſuch in denying thoſe, whoſe Anceſtors had obtain'd
Caſes too an indefinite Word is to be taken (3) uni- the Freedom of Rome for themſelves and their Po
verſally ; as if it be ſtipulated in a Treaty, That ſterity, a Title to it, unleſs they were their Sons,
the Captives ſhall be return'd on both ſides, it muſt (6) affirming that Poſterity ought not to be under-
be underſtood of all and every one of them. So ſtood beyond that Degree (F). Yet I am afraid
Cicero (ə) argues in the aforeſaid Interdict, that the Dido made uſe of too favourable an Interpretation,
Words, From whence a Man has been ejected, ought who when ſhe had purchaſed ſo much Ground, as
to be extended even to him who is hindred from ſhe could cover with an Ox's Hide, cut the Hide
coming to his own (4). For this Senſe is not re- into thin pieces, and ſo ſeiz'd upon more Ground
pugnant to the Nature of the Words; and in Favour than ſhe had really bargain’d for(g). By the ſame
a Man ought to be put in Poſſeſſion of his own ; Trick did Ivorus buy as much Land as he could en-
for to Diſpoſſeſs is to hinder one from continuing compaſs with the Hide of a Horſe, which he af-
innocent, as we may here ſuppoſe, are all indifferent in their Nature, and by Conſequence ought not to be extended or reſtrain-
ed farther than the Intentions of the Author requires. There are in chefe Definitions Things which do not well agree toge-
ther : For we ſay, for Example, that what tends to the publick Advantage is favourable, and what contains any Trouble in it
is odious, for we know, that the Infliction of Puniſhment makes for the publick Advantage. There are no Cauſes favourable or
the Legiſlator, or Contracters, or Teſtator. In the Roman Law, for Example, the Liberty of a Servant (ſee the Inſtit. Lib.1. Tit.6.
Quibus ex cauſis manumittere non licet, §. 2.) is a Thing favourable, as alſo the Portion of a Woman, (ſee the Digeſts Lib.33. Tit. 3.
Chap. 2. S. 1.) I have alſo ſaid that this Diſtinction is uſeleſs : Indeed in the Examples alledged by our Author, the Interpretati-
on which he gives, may either be given independant upon what he believes odious or favourable, or is directly contrary to his
Rule. Mr. Titius, Obſervat. 428, 429. See what Mall be ſaid in the following Norés. The Author whoſe Opinion 'I have
related, follows Mr. Thomaſius in this, none of whoſe Works I had ſeen when I put our my firſt Edition of this Book; ſee his
Juriſpr. Divin. Lib. 2. Chap. 12. §. 159,&c, and the Appendix following it, where he defends himſelf againſt the Profeſſor of
Hamburgh named Vincent Placcius, who had criticized upon what he maincain'd, that he could not give a good Definition of Fa.
vourable and odious,
Mr. Barbeyråc's NOTES on 9.13.
(1) That is to ſay, according to Mr. Thomaſius, ubi ſupra, S. 173. in Things of a mixt Nature, which are both favourable and
odious, we muſt add, Provided the favour able most prevail.
(2) That's true, but that is not becauſe a Thing favourable is treated of, but by reaſon of the uſual Signification of the Word
Ceruus, i. e. a Buck. Mr. Titius obſerves very well, That when indeed we speak of a Buck, or any other Creature in the Maſculine
Gender, which is the more noble, it comprehends the female as well as che Male, unleſs there be ſome Circumſtance which ſhews
plainly that we ſpeak of the Male in Oppoſition to the Female. But I am not of the Opinion of that Auchor, who affirms, That
according to the Opinion of Grotius and Pufendorf, the Word Buck is only applied to the Males, Becauſe (ſays he) this Clauſe, Ex-
cepe che Bucks, imports a Change of what before it was wont to ſignify, and conſequently includes ſomething Odious. This Change was
made after the firſt Agreement, and not a Reſtriction added on a ſudden and in the Agreement itſelf, as that is, which is treated
of in this Example.
(3) This is not becauſe a Thing favourable is treated of, but becauſe in ordinary Speech theſe indefinite Expreſſions are equl-
valent to univerfal, unleſs there be otherwiſe ſome Reaſon to reftrain them, as there is not here. For why is it, that in a Treaty
of Peace we would keep any Priſoner taken in War? According to the Principles of Grotius, (as Thomaſius obſerves,) He that
having the greater Number of Priſoners, would exchange them only Man
for Man, for otherwiſe it would be a Thing odious, be-
cauſe he would give more than the other. This laſt on his part affirms, That, according to the Agreement for Peace, he treated
for the moſt favourable Thing, and ſo the Terms are to be underſtood in the moſt extenſive Senſe that they are capable of. Thus
thro' the Contrariety of Realons, nothing is determined by theſe Terms, Favourable and Odious. Moreover, it fometimes leads
us to an Interpretation plainly contrary to the Senſe of him that ſpeaks: As Mr. Thomaſius fhews by this Example, " Suppoſe
(ſays he)“ a Magiſtrate forbids the Carriage of Corn out of his Country, under fevere Penalties, and one carries out Meal." In
this caſe, according to Grotius's Rule, he that carries out Meal ought not to be puniſhed; for beſides that his former Liberty is
abridged, the Prohibition is accompanied with a Puniſhment, and ſo a Thing abſolutely odious is created of.
5) This is determined in the Digeſts, Si autem cum dominus veniret in poffeffionem, armati eum Prohibuerunt, qui invaſerant poſ-
Sefionem, videri eum armis deje&tum. Lib. 43. Tit. 16. De vi & vi armata Leg. 3. S. 8.
(5) The Words of the Digeſt are, Sive autem corpore, live animo poſſidens quis deje&tus eſt: palam est, eum vi deje&tum videri.
Idcirco que ſi quis de agro ſuo vel de domo proceſfiffet, nemine ſuorum reli&to, mox revertens, prohibitus fit ingredi vel ipſum prædium: vel
Si quis eum in medio itinere detinuerit do ipfe posjederit : vi dejeftus videatur : ademiſti enim ei poseſionem, quam, animo retinebit et ſi non
corpore. Ibid. Leg. 1. §. 24. Beſides, what our Author ſays is ſufficient to thew, that we need nor examine whether the Thing
treated of is favourable or not, for the Senſe of the Word, drive out, may be proved by other Principles. Mr. Thomaſins ſays
here, that all depends upon the Reaſon of the Law ; for (adds he) the Roman Law would by it prevent all ways of private Persons
one by another. Francis Hotoman nevertheleſs affirms, That Cicero is a little cavilling in the Buſineſs of Cecina, as
appears by his Notes on that Orator's Harangue before quoted. See Mr. Schultings Diſcourſe, De Juriſpr. M.Tull. Cicero
pag. 283,
(6) Nothing is more common, than to underſtand by the Word Deſcendants, all thoſe who deſcend in the Right line for ſeveral
Degrees, without needing a favourable Conſtruction, to extend it farther than the firſt Degree. And the Determination of the
Roman Law is poſitive, as to the Privileges granted a Perſon and his Deſcendants, as appears by the Law quoted by our Author,
Immunitates generaliter tribute eo jure ut ad pofteros tranmitterentur, in perpetuum fuccedentibus durant. Lib.50. Tit. 6.
(a) Orat. pro Cecina, doc. (b) Add. l. 3.8. 7. D. h. t. (c) Add. L, 19. t. 2. I. 29. D. Locati, &c. (d) V. Buf-
fier's Hiſt. Franc. 1.19. P. 39.
(e) Suet. c. 38. (f) Add. L. 1. t. 6.1.4. D. de jure, immunitatis. (8) Juft.
1:18.c. 5. Virg. Æn. l. I. v. 371. do Cerda ad bil.
HU
terwards
damson
4
tbus a&ting

310
Of Interpretation.
BOOK V.
terwards cut into ſeveral ſmall Thongs, and en- preſly otherwiſe agreed between them. And thus
compaſs’d Land enough to build a City upon (a). a League made for the Defence of a Dominion,
2. In a Matter of Favour (7), if be that ſpeaks be when the Lord is in Poſſeſſion of it, does not
learned in the Law, or lpeaks by the Advice of thoſe extend to the Recovery of it when he is eje&ted (d).
that are, bis Words are to be taken in the most compre- Sometimes the Odium of the Perſon juſtifies a ſtrict
henſive Signification; so as not only to import as much as and almoſt quibbling Interpretation: Thus the
they do in common Uſe, but to include that Signification Lady that betray'd the Capitol, and had bargain a
alſo which is uſed amongst the Lawyers, or which the for her Pains to have what the Sabines carried up-
Civil Law has impos’d upon them.
on their left Arms, meaning their Bracelets, was
3. On the other hand; Words fhaall be taken in a buried under their Shields (e)(14).
ftricter Senſe than the Propriety requires, if otherwiſe
XIV. Grotius applies theſe Rules in a few Ex-
Injuſtice or an Abſurdity would follow (8).
amples: As thus, It is demanded, if a Reward be pro-
4. Altho' it be not abſolutely neceſſary for the avoiding pos’d to him that first gets to the Goal, and two come in
Injuſtice, to take the Words in a ſtricter Senſe than their together, whether it be due to both or to neither? Indeed
Propriety demands, yet if there be a manifeſt (9) Ad- the firſt, in this Cafe, may ſignify either him who
vantage in ſuch a Reſtrićtion, we ought to ſtep at the out-runs all the reſt, or him whom none out-runs:
narroweſt Limits of their proper Signification, unleſ Cir- And therefore if the Reward was only a Wager be-
cumſtances perſuade otherwiſe.
tween the Parties, and both come to the Goal to-
5. In an Odious Matter a figurative Speech may be gether, they muſt draw Stakes. And the ſame
admitted (10) to avoid a Grievance; thus in a Dona- holds, if two Spectators, as is uſual, had laid a
tion, or when a Man recedes from his Right, Wager on this or that Man's Head.
But if the Re-
Words, altho' deliver'd at large, are uſually con ward was propos'd by a third Perſon to encou-
find to thoſe Things only, which were ſuppos'd rage their Induſtry, then thoſe who come in toge-
to be then thought of. And therefore Cicero ar- ther ought to divide it, if it be capable of Divi-
gues right, that (11) tho' a Man bequeaths to his fion; or elſe to enjoy it both together; or, if that
Wife all the Money he has, yet his Debts are not cannot be, to draw Lots for it, or to run again;
therefore bequeath'd unto her; for there is a great for 'tis hard that both ſhould be deprived of the
deal of difference between ready Money, and Reward, becauſe neither was worſe than the o-
ſuch as is due upon Bonds. Thus Aurelian, when ther: Beſides, the Rewards of Virtue ought not to
he fet out on his Eaſtern Expedition, promis’d the be confined to fo ftri&t an Interpretation; and
People Crowns of two pound Weight, if he re- therefore it would be generous in the Patron to
turn'd Conqueror : And when the People expect- give the whole Reward to each that perform e-
ed Crowns of Gold, which Aurelian (6) was nei- qually (F) (1). But what Auguſtus gave the Rob-
ther able nor willing to beſtow, he gave them on- ber Coracotta, (who having heard that ſuch a Sum
ly Crowns of Bread (c). Nay, tho' a Man ex- of Money was laid upon his Head, ſurrenderd
preſſes himſelf univerſally, if afterwards a particu- himſelf,) proceeded rather from the Greatneſs of
lar Enumeration follows, the (12)Law won't allow the Emperor's Soul, than that it was due from
any thing to be made over, but what was particu- him (g).
larly expreſs’d. And when one Nation has ſtipu-
lated to ſend another (13) Auxiliary Forces, it is XV. In the Treaty which put an End to the re-
ſuppos’d that they are to be ſent at the Expence of cond Punick War, there was a Clauſe, That the Car-
him to whom they are promiſed, unleſs it was ex- thaginians ſhould not wage War, either in Africa, or
(7) But why ſhould not this have place in a Donation, for Example, which is a Thing odious, according to Grotius and our
Author. The Donor knowing all the force and Extent of the Terms which he uſes, may be ſuppoſed to uſe them without Re-
Itriction, unleſs there be ſome probable Reaſon to make us think he had ſomething leſs in his Mind, and in that Cafe 'tis not bea
cauſe a Thing odious or chargeable is treated of, that the Signification of the Terms are reſtrained, but upon the Account of
what the Donor's Mind was, moſt probably, as our Author himſelf ſpeaks, a little lower, after Grotius.
(8) This and the following Rules are not peculiar to Things favourable, as is eaſy to obſerve. They concern all Ads done
with Deliberation.
(9) Grotius ſays, A manifeſt Equity, or Profit ; and the firſt Word is apparently omitted, either by the Careleſneſs of the Au.
thor, or Fault of the Printers. As for the Rule it ſelf, if Equity requires that the Signification of a Word ſhould be refrained,
it is for that Reaſon, and not becauſe a Thing favourable is treated of. But Profit has no Influence here, farther than 'tis evident
that the Lawgiver or Contracters would procure it.
(10) Provided, that there be Reaſon to believe, that he that ſpeaks would not ſubject himſelf or others to this chargeable
Conſequence, for if he intends it, why ſhould we oppoſe his Deſign?
(11) Cicero's Words are, Non ſi Uxori Vir legavit omne argentum quod ſuum effet ; idcirco que in nominibus fuerunt legata funt;
multum enim differt, in arcáne poſitum ſit argentum, an in tabulis debeatur. Topic. cap. 3. When he ſpeaks of his Money, he
means not ordinarily his Debt, fo the Senſe of the Teſtator is taken, from the Significacion of the Terms, and not from the Na,
ture of the Legacies or Gifts themſelves.
(12) But then the Enumeration is ſelf ſhews, that he that ſpeaks did not take the univerſal Particle in its full Extent.
(13) In this Example 'cis clear, that the Promiſe to ſend Succours, does not contain, according to the ordinary Uſe of the
Words, and common Practice, an Egagement to furniſh the Troops at his own Expence: So that, when a Thing favourable is
treated of, it can't be extended to an Agreement, unlefs it be explained in other Terms. As for the Example following, I can't
ſee why the Author alledges it here.
(14) See Mr. Buddæus's Diſcourſe entitled, Juriſprudentie Hiſtorice Specimen, $. 11, &c. among his Sele&ta Juris Nature de Gen-
tium, where he examines this Caſe.
Mr. Barbeyt ac's NOTE on S. 14.
(1) See Mr. Thomafius's Diſcourſe, De Prioritate G Pofterioritate temporis dubià incertâ, which are amongſt thoſe at Leipſick,
Chap. 3. where che Queſtion propounded in this y, and ſeveral other curious ones are handled.
(a) Apud Saxonem Gramm. l. 9. do Polyd. Virg. Hiſt. Angl. l. s. (b) See above in B. 3. c. 5. f. 10. and Mr. Barbeyrac's
ift Note upon it. (c) Which were called Siliginei. Panis Siligineus, White Bread. V. Fl. Vopiſcum ix-Aurel. 6:35.
Guicciard. Hift. I. 15. p. m. 433.b. (e) Tarpeia. V. Plut, Romulo, & Liv. L. 1. 6. II.
(1) V. Liv. I. 26. C. 48.
(8) Dio. Caß. 1. 56.
osamang na
30
(d) Vid.

CHAP. XII.
ZII
Of Interpretation.
againt them.
War. Indeed when the Romans made ſuch a League Concurrence of them all.
La be a free City: And a little after de- in the Mind of the Speaker. But the Caſe before
out of Africa, without Leave of the Roman People (a). the Romans here were guilty of more than Purick
Ought this to be underſtood of an offenſive War Perfidiouſneſs
.
only, or of a defenſive alſo? Certainly only of an XVII. There are other Conjectures founded
offenſive War ; for otherwiſe that Claufe would upon ſomething elſe than the Signification of the
be Odious, as inconſiſtent with the very Being of Words in which the Thing is expreſs'd, which make
the State of Carthage. Beſides, 'tis hard to re- it neceſſary ſometimes to enlarge, ſometimes to re-
trench one's natural Liberty, fo far as not to per- ftrain the Meaning. Yet it is obſervable, that we
mit him to defend himſelf againſt an Injury (b). have oftner Reaſon to reſtrain than to enlarge it.
Nor was it the Deſign of the Romans (I) by this for the Want of any one Cauſe is enough to hin-
Clauſe to expoſe the Carthaginians to the Inſults of der the Effect of a Thing, whereas all
muſt ne-
their Neighbours, or to render them entirely de- ceſſarily concur to produce it: Thus, in ſuch Acts
pendent upon their Arms for Protection, but only as create an Obligacion, the Meaning muſt be re-
ſo to tie them up, as that they ſhould not enlarge ſtrained, if it appears that any one of the Cauſes
their Territories, or increaſe their Strength by be abſent, whereas to enlarge it, there muſt be a
with Antiochus (2), they inſerted this expreſs Clauſe And this Enlargement is not ſo eaſily admitted
(), That if any Nation, against whom Antiochus by here, as when I juſt now ſaid, that in a Matter of
theſe Articles is debarred from waging War, ſhould ſet Favour, the Words may bear another, tho' leſs re-
upon
bim first, be ſhould then bave Liberty of Warring ceiv'd Signification than uſual: For there ( ſince
the only uſe of Words is to expreſs one's Mind)
ſuch a ſenſe of the Words, not being entirely diſ-
XVI. The Romans promis'd the Carthaginians, that ſonant to common Uſe, might probably have been
Cartbage ſhould
manded of them that they would demoliſh it, and us ſuppoſes us to make uſe of Conje&ures, to
build another at a greater Diſtance from the Sea ; prove that the Mind of the Speaker is ſuch as his
pretending that the Spot of Ground, upon which Words won't admit of, and therefore we ought to
the City ſtood, was not Carthage (d). Here tho be very certain of it.
the Freedom which the Romans promis'd can't be Nor can a Law extend to a Caſe, which pro-
underſtood of a full entire Liberty, that having ceeds upon a Reaſon only like that which the Law
already ſuffer'd no ſmall Diminution; yet, at leaſt, is founded upon, for the Reaſon ought to be exacta
ſo much Liberty ought to be underſtood, as that ly the ſame. Nay even that is not always enough,
they ſhould not be oblig'd, at another's Com- for ſometimes the bare Will of the Legiſlator de-
mand, to deſtroy their Native Country, and be termines it ſelf at Pleaſure, even againſt or with-
take themſelves elſewhere. Indeed Liberty, or a out Reaſon, and yet is ſufficient to produce an Ob-
Privilege of being govern'd by one's own Law(I), ligation.
is the Attribute of a People, not of a City, as it To juſtify then ſuch an Enlargement, we ought
conſiſts of Walls and Houſes; yet ſince it was ſaid to be ſure that the Reaſon, under which the Care
that Carthage ſhould be free, (not the Carthaginians, in Debate comes, was the (1) only Cauſe and Mo-
by which way of ſpeaking the Romans might have tive that induc'd the Legiſlator to enact the Law
colour'd over their Cheat,) the natural Meaning and that this Reaſon has been conſider'd by him ſo
of the Words intimate, that the People ſhould en- generally, as that he would have apply'd it to the
joy their Liberty in the City Carthage that then preſent Caſe, had he foreſeen it, becauſe other-
was, and alſo that the Buildings themſelves ſhould wiſe the Law would have been uſeleſs or unjuft.
be ſecure. Palybius (e) relates, that the Senate had Hither may be referr'd what the Rhetoriciens
promis'd, that They should have their Liberty, their ſay about Reaſoning, when a Thing, for which
Laws, all their Lands, the full Poſſeſſion of all their Goods, there is (2) no Proviſion made by any particular
both publick and private ; and that the Carthaginians Law (f), is inferr'd, by a Parity of Reaſon, from a
preſently ſuſpected why there was no Mention like Cafe which is provided for ; or, as Quinctilia
made of the City, But indeed 'tis evident, that an has ir, When a Thing not written is gathered from
Legat. 35. cap. 4.,
Mr. Barbeyrac's NOTES on 9.15.
(1) This Reaſon alone hath ſo great Force, that 'tis not neceſſary to alledge what the Clauſe contains hurtful or odious.
(2) Si qui fociorum populi Romani ultro bellum inferent Antiocho, vim vi arcendi jus eſto: dum ne quam urbem aut belli jure teneat,
aut in amicitiam accipiat. Tit. Liv. Lib. 38. cap. 38. “If any of the Allies of the Roman People fet upon Antiochus, let him have
** Liberty to repel Force by Force, provided he takes no City, either by the Right of War, or by Treacy.” See alſo Polyb. Excerpte
Mr. Barbeyrac's NOTE on 9. 16.
(1) As Nicias and Themiſtocles ſay in Thucyd. Lib. 7. Chap. 14. "Men make up the State, and not Walls and Ships without Men
in them.
*Apd pes 28 Tróars, ó Trige. Add. Just. Lib. 2. cap. 12. 8. 14.10.17
Nr. Barbeyrac's NOTES on §. 17.
(1) There is no Neceflicy that the Reaſon of the Law ſhould be fingle, to authorize the Extent of it, for there is often more
than one thing which cauſes Laws to be made, and in one and the ſame Thing ſeveral Ends may be propoſed, either cqually,
or ſo as fome may be principal, and others ſubordinate. In this Gaſe, if he that ſpeaks has equally propounded to himſelf di-
verſe Reaſons, which he had in View, they muſt all be joined in excending it, in fuch a Manner, as the like Cafe, to which the
Law may be extended by vertue of one of thoſe Reaſons, agrees with all
the other. But when there is a principal one, there
is no Neceffity that the Cafe ſhould alſo agree to the other ſubordinate ones, as Mr. Thomafius obſerves, Inftit. Juriſpr. Devine
(2) See the Laws quoted above, S. 10. Note 8.
(a) Liv. I. 30.c.31. Polyb. I. 15. c. 18. The like Article we find in the Peace which Flaminius gave to King Philip, Liv.
1. (b) Add. Livy, l. 42. C.41.
(c) Add. Lity, 1.42. 6. 23. 195.(d) vid. Appiani de Bello Libyco.
(f) Vid. D. do 1. f. 3: De legib. 1. 12, 13, & 27.
+ U u 2
* Thing
Lib. 2. Chap. 12. 9.90.
i.
33. c. 30.
() Ex. Leget. 142:
312
Of Interpretation
BOOK V.

amples.takes the Plough-Share. The Exportation of (e). To vino
tenean
It was impoſſible for thoſe chat maket Legum verbis non
a Thing written : which he illuſtrates by theſe Ex- throwing him into the Pit, where he muſt die of
Wooll is prohibited, be exports Sheep. He that pays It was ſtipulated between two neighbouring Naz
his Fatber must be ſew'd up in a Leathern Bag, he has tions, when there was no other fort of Fortifica.
ſlain his Mother. A Man ought not to be dragg'd out tions, That ſuch a Place ſhould not be Walled in;
of his Houſe to Juſtice; he diaggs him out of bis Tent which therefore ought not to be enclos’d with fo
much as a Pile of Earth, if it evidently appear’d,
Hither too may be referr'd the Caſe defended that the Reaſon why Walls were prohibited, was
by Lucian (b); the Law is, Whoſoever kills the Ty. to render it incapable of holding out againſt
rant ſhall be rewarded: A certain Man climbs into the Force.
bineres meclisedragter
Citadel to kill the Tyrant, but miſſing shim, kills his
A Man leaves his Eftate to Titius, after the
Son, and leaves the Sword in the Body: The Tyrant Death of the Child his Wife was then big with:
coming in, and finding his Son Jain, out of Grief falls He thought his Wife had been with Child, but it
upon the Same Sword and dies, He that ſew the Ty, proves otherwiſe : And therefore Titius has a fait
rant's son demands the Reward, as the player of thé Title to the Eſtate; for 'tis evident, thac the Rear
Tyrant. Eraſmus (c) takes the other ſide, yet cer- fon why the Deceas'd did not abſolutely make Ti-
tainly the Reaſon of the Law is for having the Re- tius Heir was, becauſe he thought he might have
ward given, not only to him who ſays the Tyrant a Child ; and therefore had he known that no
with his own Hand, but to (4) him alſo who is the Child would have been born, he would have made
immediate Occaſion of it (d). Since there is no him ſuch without any Condition (F) (5).
doubt but the Legiſlator would have decreed the
It would have been too hard, ſays Lyſias (g), for a
Reward to him allo, had ſuch a Thing come into Lawgiver to have crowded into his Law all the Words
his Mind.
of the Same Signification, and therefore what he has exa
2 The Law fays, that whoſoever kills his Wife prest of one, be is ſuppos’d to have underſtood of all the
ſhall be put to Death ; but a certain Man, being rest. Thus the Law, in Exod. xxi
. 33. is rightly
willing to get rid of his Wife, and at the ſame time extended to every tame Animal, and the Word
to eſcape the Law, kept his Mule three Days with Pit to every Ditch (6).
out Water, and the fourth Day pretending to ride XVIII. Beſides, it is of great Uſe to enlarge the
out for his Diverſion, put his Wife upon the Back Meaning, ſo as to leave no Room for any fort
of
of the Mule ; who as ſoon as he came to the Ri- Cavils, and ſo to prevent (1) the Quirks that
ver, ran eagerly into it, and threw the Woman, crafty deſigning Men have found out to evade the
who periſh'd in the Waters.
Law (b). Of theſe Cheats the Romani Lawyers
Thus the Brethren of Foſoph vainly thought, make four ſorts; one by a Commutation of (2)
that they ſhould be guilty of a leſs Crime in Things, another by a Commutation of (3) Per-
(3) Quin&lilian's Words are, Hic ſtatus (Syllogiſmi) ducit ex eo, quod ſcriptum est, id quod incertum est: quod quoniam ratiocina:
tione
colligitur, ratiocinativus dicitur
were
Quod in toto, idem in parte: Aratrum accipere pignori non licet, vomerem accipit
Quod in parte, idem in toto. Lanas vehere Tarento non licet, oves vexit
Majoris pugne eſt ex fcripto ducere quod ſcriptum
MIL
non eft. Inftit. Orat. 1. 7. c. 8.
174) As Seneca expreffes it, Herc. Oet&o, v. 859, 860. Quicquid in mortem trahit Telum eſt abunde, i.e. “Whatſoever kills, is
« Weapon fufficient. But we ought to obſerve, that to a moral Imputation, it is not ſufficient, that what a Man has done,
fhould be, by Accident, the Cauſe of what happens, as Eraſmus very well
proves, and it may have place here. See Mr. Thor
mafius's Inſtit. Juriſprud. Divin. Lib. 2. Chap
. 12. $. 96,99. and what I have
ſaid above at Lib. 1. Chap. s. 9.3. Note. 4.
(3) Seneca's Words are, Scriptum Legis anguftum
est, interpretatio diffufa eft : quædam vero tam manifeſta ſunt, ut nullam cautio-
nem defiderent. Senec. Controv. 27. See Lyfias, Orat. 10. contra Theemnest. 2. cap. 2. and Libanius Declam.
$ (6) Quintilian's Words are, Nulla tanta providentia potuit esse eorum, qui leges componebant, ut omnes ſpecies criminum comple&te-
rentur. Nam do ſemper caventes Nequitia viciffet, & Jus ita multiplex atque diffuſum esſet, ut pro incerto haberetur ignotum. Fece-
do
“ ricularly againſt all
ſorts of Crimes : For, after all their Care, Knavery would find out Evaſions; and the Law would be fo vo-
« fuminous and confuſed, that inſtead of Uncertainty we ſhould lie in entire Ignorance. They therefore took care to have general
“ Heads, and to have Regard to Equity.. And therefore we frequently find Things, which are 'not expreſt in the Letter of the
“ Law, but yet come under the Force of it.”. See alſo Cicero De Invent. Lib. 2. Chap.42. and Orat. pro Cacina 118. IT
2013 ad HS modum
othiwalay niyong up :2
svari minni endaertne nou ! gustus Mr. Barbeyrac's NOTES on S. 18. $.IS
(ry The Digelts ſpeak, Contra Legem facit, qui id facit, quod. Lex prohibet : in fraudem vero, qui, Salvis verbis Legis, Sententi-
am ejus circumvenit. Fraus enim Legi fit, ubi, quod fieri noluir, fieri autem non vetuit, id fit: & quod diſtat onziy amo Slavoias,
i. e. dictum à ſententia ; hoc diftat fraus ab eo, quod contra Legem fit. Digeft
. Lib. 1. Tit. 3. De legibus, &c. Leg. 29, 30,
(2) The Digeſts enact, Sed fe fraus fit Senatuſconſulto (Macedoniano] adhibita, puta frumento, vel vino, vet oleo mutuo dato, ut
his diſtra£tis fru&tibus uteretur pecunia, ſubveniendum eſt Filiofamilias. Digeſt. Lib. 14. Tit.6. De Senatuſconf. Macedon. Leg. 7.5.8.
See alſo Leg. 3. 9. 8.
91 (3) See the Digeks, Lib. 24. Tit. T. De donationibus inter virum & uxorem, Leg. s. and Lib. 35. cap. 7. august
.
Viko istis bologo wou bed lowel grit sou une bonho ai ba
(a) Víde D.l.locit. 2. ad Leg. Aquil. l. 7.Y;7. (b) In Declam. que inſcribitur Tyrannicida, Tom. I. p. 1693, &c. Eit. Amft.
(c) in the Anſwer which he has made to Lucian's Declamation, Tom. 1. pag. 914, &c. (d) Is there any difference whether you
kių him your ſelf, or afford the Caufe of bis Death? ibid. (e) Joſeph. Archanl. Jud. I.2.6. 3. Gen. xxxviii. 21, 22. (f) Add. L. 5.
t. 2.1.28. D. de inoff. teft. In a Law many Things are excepted, though not expreft; the Letter is narrow, but the Meaning extenſive;
but some Things are ſo plain as to need no Exceptions, M. Senec. 1. 4. contr. 27. What? was this provided for by the Letter? By mo
Means? Upon wbat therefore do we proceed? The Deſign. Which could it be apprehended without Speaking, there would be no need of
Words, but becauſe it cannot, Words were found out, not to hinder, but to declare the Deſign, Cic. pro Cæcin. c. 18. Every thing is
not exprest in Writing, but ſome are evidently ſuppoſed to be tacitly excepted, Id. de Invent. 1.2. c. 42. Lyfias, Orat. -10. c. 2. cons.
Theomneft.sh .sin(8) Orat. I. contr. Tbeom. (b) As alſo to anſwer any Cavils whatſoever, Vide I. 29. 1. 30. D. de leg. ubi
ſupr. & D. L.10.7.4.1. 19. ad exhibend, do Lib. 35.6.1. l. 76. D. de condit. & demonftrar. 1.43. 1. 6.133. fol. D. ad L.
Jul, de adult.
fons
31.

CHAP. XII.
313
Of Interpretation.
out
of ,
cuſe
not own the
(1) Tacitus Ann. 2. cap. 30. Though Dio aſcribes the Trick to Auguftus, lib, 55. Critias uſed a more impudent Cavil againſt Thera-
Marcell. Says, 1. 28. 6.9.
fons ; a chird by Commutation of the (4) Con bad the Clergy the Uſe of Mules, but they plead-
tra&; the laſt in the Way of (s) Contrading (a) ed their Privileges; upon which the King com-
Licinius Stolo (b) having made a Law that no one manded all the Smiths, upon pain of Death, not
ſhould poſſeſs above soo Acres, he himſelf, ne to ſhoe any Mule; and ſo the Clergy quitted them
vertheleſs, purchaſed a Thouſand, and to palliate of their own Accord (b).
his Crime, made over half to his Son: For which Tiberius, becauſe it was eſteem'd unlawful to
Reaſon he was accus'd by Popilius Læna, and was ftrangle Virgins, order'd them firſt to be defiled by
the firſt that fell by his own Law: teaching us the Executioner, and then to be ſtrangled (1). The
that no Man ought to preſcribe to others but what Corinthians were forbidden by the Law to give a-
himſelf is willing to perform. By the Voconian way their Ships, and therefore they ſold them to
Echo Man can bequeath above balf bis Goods to a the Athesians for five Drachms a piece (14).
Woman; and therefore when a certain Man had made By a Decree of the Senate, no Slave could be
two Women joint Heirs, bis Relations impleaded the Evidence againſt his Maſter, and therefore Tibe-
Will (c).
rius, a crafty Evader of the Law, gave each of
The Rbodians had a Right to Tribute from the the Slaves their Liberty, that he might make uſe
Ide of Pharos, but when the Receivers came to de- of them againſt Libo, without breaking the Decree
mand it, the Queen of the Place detain’d them of the Senate (l).
under
, fome Pretence of Ceremony, 'till ſhe had Tiridates refas'd to lay aſide his Sword at Nero's
caft Moles into the Sea, and join'd Pharos to the Command, but pur a Lock upon his Scabbard (m).
Continent : and then ſhe drove them away, as Robert Carncrofle a wealthy Scotchman, bought his
having Commiſſion to levy Taxes upon Iſands, Preferment of the King, who then wanted Mo-
but not upon the Continent (d).
ney; and yer by a Trick eluded the Law againft
The Athenians, when a certain Harlot, by Name Simony; for he laid a great Wager with the King,
n)
Harlot, they erected the Effigies of the Animal In the Reign of Philip II. of France, the Biſhop
whoſe Name ſhe bare (e).
of
Beauvais appear'd in the Field againſt Otho IV;
The Rhodians becauſe it was unlawful to pull but to avoid thedding Blood, he fought with a
down a Trophy, did therefore hide the Trophy, Club, not a Sword : But did ſuch a Quibble ex-
building a Houſe over it (f).
XIX. But ſometimes the Meaning of the Words
When the Spartans demanded to have the Athe- are to be reſtrained, and although General Terms be
nians Decree, which hindred the Megarenſes from made uſe of, yet they ought to be taken with ſome
trading with
them, aboliſh'a : and Pericles obje&ed Excepcion or Limitation (1); either, 1f, Becauſe
that the Law forbad any Decree of the People to of ſome Original Defeat in the Will of the Speak-
be pull'd down; one of the Commiſſioners reply'd, er; or, 2dly, (2) Becauſe of ſome Accident which
We do not defire you to pull it down, but to turn it out of happens inconſiſtent with his Deſign.
fight, and that none of your Laws forbid (8) .
1. An Original Defect is in the Will; Firſt,
The King of Portugal, for certain Reaſons, for- When
en an Abſurdity proceeds from it: For no Man in
(4) The Digeſts ſay, Julianus, minoris fa&tam venditionem nullius esſe momenti ait. Digeft. ibid. s. s. See Chap. 2. S. 10.
(5) The Digeſts are, Si quum effem tibi contra&turus, mulier intervenerit, ut cum ipſa potius contraham : videtur interceſine. Digeſt.
Lib. 16. Tit. I. De Senatuſconfă Velleian. Leg. 8. Mr. Thomaſius, Inſtit. Juriſpr. Divin. Lib. 2. Chap. 12. S. 102. ſays, There is
no great, Difference between the laſt ſort of Fraud and the preceeding. He ob ſerves alſo, that there are ſome ſorts of Frauds,
that can't be reduced to either of theſe kinds.
10 no Mr. Barbeyrac's NOTES on S:19.
vition
(1) Cicero's Words are, Non ergo omnia ſcriptis, ſed quædam, quæ perfpicua ſunt, tacitis exceptionibus caveri. Cicero de Inventione,
(2) Mr. Thomafius, Inftit. Juriſpr. Divin. Lib. 2. Cap. 12. S. 104, 105. ſinds fault with this Diviſion, as neither exact, nor juft:
For, ſays he, every Interpretation ought to be made according to what the Perſon, who ſpeaks the Words, willed and incend-
at the Time
when he ſpake or wrote them; and not before or after: And ſo it can never
lawfully be founded upon the
5 Inconſiſtence of a Caſe which has happened after the Will of the Legiſlator or Contractors, thro' any Oppofition, or Origi-
nal Defect in the will. Moreover, Terms are ordinarily reſtrained, becauſe we preſume, that the Lawgiver or the Contra-
cters have ſpoken no more than what was in their mind, and never thought of the Café treated of. So that a Reſtriction
o fuppofes
always a Cafe happened fince, which is not agreeable with the Will of him, whoſe words we examine. Conſe-
*
quently no Mán can ſee how the Original Defect of a Will can be oppoſed to the Inconſiſtency of a Cafe, which happened
afterwards by the will of the Lawgiver or Concracters.”
15. 16t32224
(a) L. 8. f.14. D. dd SCtun Vellei. (6) Val. Max. l. 8. c.6. S. 3. Idem refert Plin. l. 18.c.3. (c) Quindtil. Decl, 264.
Fraudes circa eludendam legem Papiami Poppzáni meniorat. Suet. Auguſt. c. 34. & Tib. c. 35. in fin. & Tacit
. An. XV. 19. The
Trick that the Romans used to let fall
the private Sacrifices, which otherwiſe would paß over to
Eſtate,
ad ActScene 9. voce coemprionalem fenem.
celinus,
(e) Lact an. de falfa rel.c. 20. (f) Vitruv. de Archite&t. l. 2. c. 8. (8) Plut. Pericle.
for he was not
of Fire and Water, did not corne
their Country: As if the Controvers had been what Name they ought to have been called by, or as if all, who were forbidden the Uje
the Denomination of Baniſh'd. Auctor. ad Herenn. 1 2. c. 28.
(1) Vide Tacit. Ann. 5.
(k) Herod. Erato, p. 230. Edit. H. Steph. Add. L. 44. t. 9. 1. 54. D. de obligat. & a&tion.
menes
. Xen. Gr. rer. 1. 2. p. 275. Edit. H. Steph. It was a poor Trick to avoid the Name of Aleatores, which was branded by the
Lams, to call themſelves Tefferarii ; between which there is much the fume Difference, as between a Thief and & Robbet; as Amm
(m) Xiphilin. Epit. Dion.mn
(n) Buchan. rer. Scot. 1. 14. (O) Bu fier's Hift.
Note 1.
Lib. 2. Cap. 47.
se ed, at
«
2013 JO1 31ONOMI
was
France l. 18.
his
314
Of Interpretation
.
BOOKV.

to
er had la
thoz
his Wits can be ſuppoſed to will Abſurdicies: And
will Abſurdicies: And Reaſon of the Law be added, or if we be ſufficie
I am miltaken, it upon this Principle, that nored ently ſatisfied of it, the Thing is no longer conta
Diſpute between Protagoras and Euathles (a) may derd
. Simply, but as it comes under the Reason-
not be decided ; for altho they agreed in general An Example of this we have in the Law that for-
Terms, that the Maſter ſhould have no Right to bids Patrons to lay an Oath upon their Bond mera
his Reward 'till the Scholar had gain’d a Cauſe : not to marry, orto breed up Children; where it is
Yet when the Maſter ſued for his Reward, added, that Although in the Law no Perſon (6) is
him, the Scholar ought, by no means, to have capable of baving Children ; and therefore if a Man
defended himſelf by that Exception : For when ſhould lay ſuch an Obligation upon an Eunuch," he would
they enter'd into Contract that was not thought not come under the Penalty of the Law. For the Rea.
of? And it is abſurd for any one to make ſuch a ſon of the Law was, left the (7) Patron,
out of
Pact as ſhould cut him of from any Poflibility of Covetouſneſs, ſhould put a ſtop
obtaining what might be due to him by it. Some on je which Reaſon, in the Caſe of an Eunuch,
in to th
des, who had promis'd a Peny to him that ſhould
But, Thirdly, the Will is originally defective, if
tell him the Truth: To whom ſays a Sophift, You there be a Defeet in the Matter : For the Master
will not give me the Peny.. What
mult Ariſtides do in which he is about, is always ſuppos’d to be in the
this Cale? If he gives it, he gives it to one that Mind of the Speaker, although his Words ſeem to
he refuſes it to one that did. In ſuch caſes as given to a Man and his Heirs Male
, his Grandſons
did not tell the Truth; but if he does not give it, be of a larger Extent. Thus, if an Eſtate be
theſe, that Rule of the Civilians ought to be ap- by his Daughter are not ſuppoſed to be meant by
ply'd ; that, In a general Diſcourſe the Perſon of the it; for the Nature of ſuch a Settlement interpoles,
Speaker is always excepted. And therefore Epimeni- which plainly excludes Women, and the Delceni
.
des the Cretan cannot be prov'd a Lyar from his dants of them.
own Saying, Kgñtes d'h fellsty, the Cretans are al-
XX. Yet as to the Second Head Grotius remarks
ways Lyars (b). Nor can I approve of that of Lu-
cretius (c).
(g), That under the Reason may be comprehended ſome
Things which do not actually Exiſt, but are conſider'd in
Denique, nil ſciri fi quis putat, id quoque neſcit
a moral Poſſibility only; and when this bappens no Rea
An ſciri poffit, cum ſe nil ſcire fatetur.
ftri&tion must be admitted.
The Meaning is, that a Covenant where the
He that ſays, Nothing can be known, o’erthrows Parties had a certain Reaſon in View, as ſuppoſe
His own Opinion, for he nothing knows, the avoiding Danger, or an Inconvenience, does
So knows not that
Mr. Creech. not only hold good in thoſe Caſes where ſuch In-
conveniencies would have follow'd, but in thoſe
For he that ſays, Nothing can be known (4), profeſ- alſo where they may probably be fufpe&ed: For
s himſelf to know this one Thing, That nothing Inſtance, ſhould two Nations enter into a Trea-
can be known (d). In the Schools we have this Ex- ty that no Army or Fleet ſhould paſs within ſuch
ample of an Inconſiſtency (e), A Man dream'd that Limits, altho' the Reaſon of this Article be, that
there was no Credit to be given to Dreams. Now one ſhould not actually do the other any Harm,
whatever Genius had infus': this Dream into him yet it won't be lawful to ſend an Army or a Fleet
deſign'd ſo much Credit ſhould be given to this, as thither, although there be no Deſign of injuring
that none ſhould be given to any other (f ).
the other. And thus, if the Law forbids that a-
Beſides
, Secondly, The Will is thought to be ori- ny one ſhould walk the Streers with Torches;
ginally defective (s), When the Reaſon ceaſes, which tho'che Reaſon of the Law be to prevent any Mil-
alone fully and efficaciouſly moved the Will ; for if the chief from them, yet it would be no Excuſe for a
(4) Very well
. But if he has any good Reaſon why he believes that he knows nothing, he may make uſe of that
very
to prove that there are other Things which he may know, and conſequently 'tis falfe, that he knows nothing.
(5) Here again, according to Mr. Thomafius, we muſt diſtinguiſh, if there be one or more Reaſons, how it might happen, that
the Legiſlator or Contracters could have more Things in View, and if, fuppofing he had ſeveral Reaſons, he that ſpeaks, had Re-
gard to them on the ſame Account or no. If divers Reaſons had an equal Force upon
'cis
Reitrition
have no place for that Reaſon only, but on the contrary, as ſoon as that Reafon ceaſes, all the other loſe their Force. There is
another Exception alſo, which makes a ſecond Head, from whence ſome infer a Neceſſity of reſtraining the Terms, which of
themſelves extend to one certain Caſe, (beſides what the Author, after Grotius, ſpeaks of in the following s, and above, S. 10.)
which is this, That 'tis not ſufficient that the Reaſon of the Law ceaſes in certain Caſes, which happen very rarely, but it muſt be
of that Nature as to happen often. För Example, the Reaſon why a Child, who is not yer of Age, can't be a good Witneſs, is be
cauſe he is not in a Condition to diſpoſe of his Goods with Difcretion and found Judgment
. If therefore there be any Child
,
whoſe Judgment is above his Age of Minority,
ority, which is a Prodigy, the will of ſuch a Child is nevertheleſs null
, according to
( the general Law. See Mr. Thomaſius, ubi fupra, $ 153, 154, and what I have ſaid in my Treatiſe of Games, Lib. 3. Chap.9. $ 3.
(6) The Digeſts thus ſpeak, Quamvis nulla perſona Lege excipiatur, tamen intelligendum eſt, de his Legem
ſentire, qui liberos tollere
paſſunt. Itaque si caftratum Libertum jurejurando quis adegerit, dicendum eſt, non puniri patronum hâc lege, Digeft.' Lib. 37. Tit. If.
De jure Patronatus, Leg. 6. $ 2.
(3) Thus, if a Freeman dies without Children, all his Goods, or at leaſt a pare, return to his Patron, or him whoſe Slave he was
,
for ſo the Word Patronus fignifies. See Inſtit. Lib. 3. Tit. 8. De fucceffione Libertorum.
(a) Apud Gellium, l. 5. f. 10. Diog. Laert. 1. 9. Apul. Florid. l. 3. Sext. Emp. adverſus Math. I. 2.
(c) L. 4. V.471, 472.
(d) He afts abſurdly, who ſays, He is filent ; for by ſaying, He is filent, he is not filent ;
deſtroys his own Aſertion, Apul. Apol. p. 529. Edit, in Uſum Delph.
(e) Laltant. l. 3.c.6.
Example propos’d by Gellius, 1. 9. c.16. this Reſtriction ought to be made, Thar che Law may not deprive Brave Men of their Reward.
(8) L. 2. c. 16, 1. 25.
Reaſon
his
1997 (b). See Titus I. 12.
and
(f) So in the
Man

Chap. XII.
Of Interpretation.
315
D. L.47. t. 2. de furcis Leg. 61. 8.5.
Man to ſay that he would uſe them ſo carefully foreſeen, or by reaſon of their infinite Variety ex-
as to do no Harm with them (1).
preſt(e) (f); it is therefore neceſſary for them,
'Tis alſo a Queſtion, whether Promiſes carry whoſe Duty it is to apply particular Caſes to the
this cacit Condition along with them, That Things general Decrees of the Law, to have a Liberty of
continue in the ſame Poſture that they are? Which in excepting ſuch as are ſo peculiarly circumſtantiated,
general is denied; for ſince this Condition is Odi- that the Legiſlator himſelf would have excepted
ous (2), as being apt to render the A& null, it ought them, had he been preſent, or had he foreſeen
not eaſily to be preſum’d, if it be not actually ad-fuch Caſes (g).
ded; unleſs it appears plainly that the preſent po There is an Example in Cicero; it was a Law
ſture of Affairs was included in that one only rea- among the Rhodians, that if any Ship of Strength
fon which we have been talking of. For thus, we ſhould be found in the Haven, it ſhould be confif-
frequently read in Hiſtory, that Ambaſſadors have cated. A great Storm, notwithſtanding all the
return'd home without opening their Commiſſion, Seamen could do, drives a certain Ship into the
upon ſuch Revolutions, amongſt thoſe to whom Rhodians Haven: the Queftor ſeizes upon it, and
they were fent, as may be preſum'd to make void the Owner pleads, from the Reafon of the Thing,
the whole Reaſon of their Embaſſy (a).
that it ought not to be confiſcated. Again,
XXI. 2. That an Accident is inconſiſtent with The Law (4) forbids the Gates to be opened at
the Deſign of the Perſon, may be made to appear; Night, in Time of War; nevertheleſs a Man opens
either, Firſt, From Natural Reaſon; or, Secondly, them and receives in ſome Allies, who, if they had
From fome Sign of the Will.
been kept out, would have been cut in pieces by
In order to make this Diſcovery from Natural the Enemy, which was encamp'd hard by (s).
Reaſon, Ariſtotle (b) thinks that the Underſtanding However this Liberty muſt not be indulged too
ought to be endued with a true Senſe of Equity, and the far, left any one ſhould rafhly make himſelf Judge
Will with an hearty Inclination to judge according to E- of the Legiſlator's Deſign ; for ſometimes he wills
quity (c). And he rightly defines (1) Equity to be a and Commands that the very Letcer of the Law
Correction of the Law, where it is deficient, by reaſon of ſhould be put in Execution. And therefore we
its being too univerſal. "Or, in other Words, A dextrous ought to have Reaſon very evidently of our fide,
Interpretation of the Law, ſhewing that ſuch a particular when we act counter to it; as we certainly have,
Cafe (2) ought not to be brought under it, becauſe an Ab- when we find that the preciſe adhering to the Let-
furdity would follow : Which may all be apply'd to ter is unlawful, c. e. repugnant to the Law of GOD
Wills and Pacts, mutatis mutandis. And here Grotius or Nature : For to ſuch, no Man can be oblig'd;
(d) well obſerves, that Equity has no Place in the indeed no Man in his Senſes can be preſum'd wil-
Law of Nature, ſince that Law does not ſpeak ling to oblige another to it (b).
more univerſally than the Nature of Things re Sometimes Equity is taken in another Senſe, as
quires. But yet that the Law of Nature, not as it when any Cauſe is ſaid to have the Benefit of E-
is in it ſelf, but as it is (3) generally expreft by quity, or the Rigour of the Law is allow'd to be
Men, may want the Aſſiſtance of an Equitable In- fofened in Favour of the Criminal; for even pri-
terpretation : for Inſtance, when that Law ſays, vate Men are ſaid to have Recourſe to Equity,
that Every Man ought to have his own ; we muſt in when they don't fo rigidly inſiſt upon their Right
Equity qualify it with this Condition, that He be againſt their Adverſaries, but remit ſomething of
in his Senſes, and that no ſuperior Right interpoſes. it.
For ſince, in Laws eſpecially, all Caſes cannot be Laſtly, Cauſes are ſometimes ſaid to be left to
Mr. Barbeyrac's NOTES on s. 20:
(1) See another Example of this Author's mentioning, Lib. 7. Chap. 6. S. 11. following.
(2) 'Tis not becauſe the Condition is odious, but becauſe, if we ſuppoſe it included, in every Engagement, there is ſtill ſome.
thing which may be relied upon ordinarily with ſome Certainty.
Mr. Barbeyrac's NOTES on s. 21.
(!? His Words are, Kai stiv o tu ni quoes v Gmeixes, i tavog gw plece róla, ñ éncima de Tò xd.sóne. Vbi ſupra, Lib.5. Cap.147
See his Magn. Moral. Lib. 2. Cap. 1, 2.' And a little Treatiſe of Grotius, De Æquitate, at the end of the laft Editions of his Book
De Jure Belli do Pacis.
(2) Equity, or an Interpretation according to Equity, hath a place in being extended, as well as reſtrained. And here we
may apply in general, the Saying of an ancient Poet.
cm Kainor
Laws are a fine Thing without Contradiction ;
Οι νόμοι σούδρ' ίσιν, ο δι' ορών τες νόμος
But he that will apply himſelf nicely to the Letter of the Laws,
Λίαν ακριβώς, συκοφάντης μοι φαίνεθαι.
Seems to me a Sycophant or Caviller,
Το καλώς έχον σε κρειπόν όξι και νόμο.
| What is good, is better than the Law.
(3) The Author, thro' Miſtake, ſays here, minus, for, nimis, but it may be a Fault in the printing, tho'it remains in the laſt
(4) In quo genere (fays Tully) non fimplex voluntas ſcriptoris oftenditur, quæ in omne tempus, do in omne falum idem valeat : ſed ex
guodem fašto aut eventu, ad tempus interpret anda dicitur
Ut in eum, qui, cum Lex aperiri portas no&tu vetaret, aperuit quo-
dam in bello, & auxilia quedem in oppidum recepit, ne ab hoftibus opprimerentur, ſi foris effent, quod prope muros hoſtes caftra haberent.
De Invent. Lib. 2. Cap. 42. See alſo Cap. 32.
(5) So the Digeſts again, Quod quidem ferquam durum eſt : ſed ita Lex fcripta eft. Lib. 40. Tit. 9. Qui & à quibus manumiſi li-
beri non fiunt, Gc. Leg. 12. 8. 9. which is very hard, but ſo it is written. See Lex Wiſogothor: Lib. 2. Tit. 1. Chap. 12. The Lawy-
yers ſay alſo, that we can't always know the Reaſons for which Laws are made, nor ought we always to enquire after them. Non
omnium, que à majoribus conſtituta ſunt, ratio reddi poteft : & ideo rationes eorum, que conftituuntur, inquiri non oportet, alioquin multa
que certa ſunt, ſubvertuntur. Digeft
. Lib.1. Tit. 3. De Legibus, doc. Leg. 20, 21. See Mr. Noodt's Obſervations, Lib. I. Chap. 2.
and Mr. Le Clerc's Reflections upon it, in his Biblioth. Choiſie, Tom. 11. p. 222.
*(a) Vide Tac. Hift. L.2. ab init. 'Where Titus upon Galba's Death returns back. (6) Nicom. 1. 5. 6. 10. (c) Vide
rd) Ad Campanella Pol. (e) Xen. Hipparch. To commit to Writing every thing
(f) See above, Section 17, towards the End.
(2) Vide L. 1. t. 3. Leg. 3,4,5,6,10,11,12,13. D. de leg. (h) Grot. ad Heſt. C. 4,15. Circumſtances are ſuch as render,
the obſerving of the Law'a Breach againſt the chief Laws of Nature. Add. V. Max. l. 3. c.7.n. 6, 6, 8. n. 6,
Equity,
Edition of 1706.

316
Of Interpretation.
BOOK V.
out.
(8) A Command is of greater Force than a Permiſ.
Equity, when the Civil Law takes no Cognizance require, and which the Publick can't ſubſiſt with-
of them, or when the Nicety of the Law is not From hence it appears, chat Cicero (6) is too
regarded, but the Thing is left to the Arbitrage of free in ſaying, that ſuch Promiſes are not to be kept, as
honeſt Men.
are uſeleſs to the Perſons to whom they are made ; nor if
XXII
. Moreover, a General Law ought to be they be leß beneficial to him, than prejudicial to the Maker.
rſtrain'd; if, altho' it be not abſolutely unlawful For whether a Thing be uſeful or not to the Perfon
to ſtick to the Letter, yet upon weighing the to whom it is promiſed (1), it is not always for the
Thing in Candour and Prudence, it appears to be Perſon promiſing to judge ; unleſs he has Authori-
too grievous and burthenſome, either in Reſpect ty over him, or has him plac'd under his Care.
of the Condition of human Nature abſolutely con- Nor is any Prejudice or Burthen redounding to the
fider'd, or in Regard of the Perſon and Thing in Perſon promiſing, ſufficient to releaſe him from
Debate, compar'd with the End of it. For ſome his Promiſe (for the Performance of every free
Things ſeem intolerable to Mankind in general, Promiſe has fome Burthen going along with it,)
others to ſome certain Perſons: ſome Buſineſs is but ſuch and ſo much as, according to the Nature
fuch, as to take much Pains about it would be Fol- of the Act, ought in reaſon to be preſum'd, ex-
ly. And an Exception againſt thoſe is ſtill the more cepted. As in the Example brought by Cicero (d),
reaſonable, if the Law be not only poſitive, and if you had promiſed to appear immediately as Advocate
the Matter of it ſuch, as makes it probable, that for another, and in the mean time your Son falls dange-
the Legiſlator would not, at the great Inconveni- rouſly ill, it would not be a Breach of Duty not to per-
ence of the Party, demand the Obſervance of it; form what you have promis’d(e).
but alſo if the Neglect of it does not tend to the XXIII. But, Secondly, There are alſo ſome Signs
Diſhonour and Contempt of the Authority that of the Will from whence it may be certainly col-
enacted it. (a)
lected, that a Cafe ought to be excepted from the
And therefore, without doubt 'tis a fooliſh piece general Expreſſions of the Law; as when the
of Superftition in the Abyſſines, ſo to weaken them- Words of the Legiſlator in another place, though
ſelves by Faſting in Lent, as, for want of Strength not directly oppoſite to the Law now ſuppoſed to
and Courage, not to be able to reſiſt the Inroads be before us, (for that would be a Contradiction)
of their Enemies; inſomuch that their Country yet by ſome peculiar Incident and unexpected E-
has ſometimes been over-run at that Time without vent of Things, happen to oppoſe it in the pre-
Reſiſtance (6)
ſent Cafe: or, which amounts to the ſame Thing,
Thus a Man that lends a Thing for a certain when there are two different Laws, which don't
Time may demand it back before the Time ex- interfere, and which eaſily may and ought to be
pired; if 'in the mean while he happens to be in obſerved at different Times, but can't both of
great Want of it himſelf; for by the Nature of ſuch them be ſatisfied, when by ſome Chance they call
a beneficial Act no Man can be preſum'd willing to for our Obedience at the ſame Inſtant (f): In this
oblige himſelf to his great Inconvenience. Caſe, we muſt obſerve ſome certain Rules to know
So if a Prince has promis’d to affiſt his Ally with which Law or Pact ought to give place to the e-
Forces, he may be lawfully excuſed, as long as he ther, where both cannot be fulfilled. Grotius lays
is in Danger at home, and wants thoſe Forces for down theſe,
his own Defence: For ſince every Prince is, in 1. That which is only permitted gives place to
the firſt place, oblig'd to protect his own People, that which is commanded (g) (I). For a Permiflion
all the Promiſes, which he makes to Foreigners, includes a Liberty, but a Command carries along
are underſtood to extend no farther than the Safety with it a Neceſſity of Acting.
of his own Kingdom admits.
2. That which ought to be done at this preſent time,
And thus a Grant of Immunity from Taxes and (2) is preferable to that which
may
other
Tribute, ought to be underſtood of ordinary An- time : Or when, at the ſame time, I lie under two
nual Taxes only, not of thoſe extraordinary Sub- Obligations, whereof one can't be ſatisfied but at
ſidies, which the urgent Neceflity of Affairs may this Inſtant, the other at any time hereafter; the
Mr. Barbeyrac's NOTE on 6 22.
(1) But, as Mr. Fred. Gronovius obferves, in a Note upon Grotius, 'tis no more than what Cicero means, for he ſpeaks of a Thing
hurtful, in the Judgment of all Perſons of Underſtanding, and not only in the Imagination of him that made the Promiſe. It
is certain, that in all Tully’s Diſcourſe, there is nothing that can hinder us from explaining his Notion in that Manner.
Mr. Barbeyrac's NOTES on §. 23.
(1) That is to ſay, Commanded or forbidden. Plus enim San&tio permiſſione. Auctor ad Herenn. L.2. C. 10. See Quin&t. Decl. 374.
The Law which forbids is more powerful than that which permits. This is reſerved in the Power of the Magiſtrate : and one
who forbids can do more than all who allow: For that which permits leaves us to our Liberty, whereas that which forbids binds
us under a Penalty. Nam id quod imperatur, neceſſarium : illud, quod permittitur, voluntarium eſt. Cic. de Invent. Lib. 2. Cap. 49.
Theſe laſt Words are part of a long Sentence, from whence Grotius takes all his Rules, which he draws up into a better Order.
I will recite Cicero's Words upon every Rule, as our Author does, but not quite thro'. 'It is true that he gives us the entire Paf-
fage at the end of the Chapter, but beſides he engages himſelf upon an uſeleſs Repetition; as he has
placed it, it ſeems to con-
tain ſomething new, whereas
it is no more than
the Reſult of what he has ſaid. Moreover, as Mr. Titius obferves, Obſerv. 441.
this Rule is true only when the Permiſſion is general
, and the Commands or Prohibitions particular. For, ſays he, 'cis certain
on the contrary, that a particular Permiffion refers to a general Command, the Permiſſion in this laſt making an Exception to the
Command, as in the firſt Cafe the Command reſtrains the Excent
of the Permiffion. There are, nevertheleſs, Cafes, where the
Permiſſion and Prohibition are in one Senſe general, as the Terms alledged by Ziegler in his Notes upon Grotius, will thew, parke
395.. It is permitted to every Citizen to have a Concubine, but forbidden every Soldier to have a woman in the Camp. The
Prohibition is general, as to Citizens in the War.
(2) Cicero's words are, Deinde ex Lege utrum ſtatim fieri neceffe fit : utrum habeat aliquam moram & suſtentationem : Nam id, quod
Statim faciendum est, perfici prius oportet. Cicero, De Inventione, Lib. 2. Cap. 49.
(a) Add. Grot. ad Mat. C. 12. v. 3. (6) Fr. Alvarez. Deſc. Æth. c. 13. (C) Off. 1.
Sen. de Benef. 1. 4. c. 35.
of) Char. de la Sageſſe, I. 1. c.37. n. 5.
fion ; for that which is commanded, is necessary ; that which is permitted, voluntary. Auth. ad Heren. l. 2. c. 10.
be done at any
(d) d. I.
(e) Add.
former

CHA P. XII.
Of Interpretation
317
former ſhall be perform’d, the latter put off to ſome upon Money rais'd after that Manner for ſuch U-
other Opportunity: From whence it follows, that fes (b). To this Head, in fome Reſpect, belongs
no Man can be enjoin'd two Things which cannot what Leo of Modena (c) tells us of the Hebrewws, that
both be perform’d together, and which neither of whatſoever was forbidden the Men, was alſo for-
them admit of Delay. From hence we may give bidden the Women; but as for the Affirmative Pre-
an Anſwer to the Enquiry of Plutarch (a), why it cepts, the Rabbies declar'd, that none of thoſe
was not lawful for the Flamines Diales to bear any which were confined to a certain Time, oblig'd
other Magiſtracy? For ſince the Duties of the the Women, by reaſon of the Weakneſs of their
Prieſts were certain and ſettled, and the Duties of Sex, and their living under the Government of
other Magiſtrates uncertain and not ſettled, the their Husbands.
ſame Man being both Prieſt and Magiſtrate, 4. In Covenants and Laws, which are in other Re-
would not have been able to provide for Buſineſs spects equal (4), that which is particular and applicable
of ſo different a Nature, if they happened to in to the preſent Caſe takes place of that which is general
,
terfere in the ſame nick of Time : So that one For Generals muſt be reduc'd to Particulars, be-
muft neceſſarily have been neglected for the Per- fore they can be apply'd. As for what Grotius
formance of the other. It ſeems that thoſe Prieſts ſubjoins (5), Thar a Prohibition, which has a Penalty
had not found out the Secret of making an Ho. annex’d, ought to take place of that which has none;
nour and a Gain of the Prieſthood, and yet of and that which has a greater, of that which has a leß,
throwing the Duty and Burthen of it upon their is not ſo clear; for a Prohibition, that has no De
Curates.
nalty, cither fix'd or arbitrary, annex'd to it, is
3. An Affirmative Precept gives way to a (3) Nega- of no Force at all. And that Rule, of two Evils to
tive; or when an Affirmative Precept can't be fa- chuſe the least, can't properly be apply'd to Moral
tisfied but at the Expence of a Negative one, then Evils or Sins: For when it happens, that one of
the Performance of the Affirmative ſhall be defer- two Prohibitions muſt needs be violated, then that
red or put off, 'till it ceaſes to claſh with the other whoſe Violation is of leaſt Concern is ſuppos’d to
which is Negative. The Reaſon of this is taken be permitted ; for Example, one Law is, That no
from the Nature of the Affirmative and Negative Man fall appear abroad in Arms on a Holy-day: Ano-
Precepts: For the Obligation of theſe is perpetual, ther, That no Man Mall stay at home upon hearing the
uniform and equally binding: whereas thoſe pre- Signal of a Tumult. In this caſe the latter is to be
ſuppoſe an Opportunity of being put in Executi- look'd upon as an Exception to the former: As if
on ; which is preſum'd not to offer it ſelf, if it the Law had been, That no Man ſhould appear
can't be done without the Violation of ſome Law: abroad in Arms on a Holy-day, unleſs he be com-
And therefore Things, in ſuch a Poſture of Affairs, manded by the Magiſtrate in Caſe of a Tumult.
are eſteem'd morally impoſſible. Hence it is, that 5. When two Duties happen to interfere at the jame
no Man can injure another, or break his Word, to Point of Time (6), that which is the more honeſt and
promote the Advantage of a Friend, or to get profitable is to be preferr'd. For the other Obligation
wherewithal to be grateful, or generous: For 'tis is only upon Condition, that it can confit with
a ftrange fort of Piety to ſteal Leather, and then an Obligation of greater Moment.
give the Shoes in Alms to the Poor. Mahomet in 6. When two Covenants, One upon Oath (7), the
the Alcoran forbids any one to give Alms of Ill- Other not, can't be performed both together, the former
gotten Goods. However, I can't ſay, that Schach ought to lake place of the latter: unleſ the latter was
Abas King of Perſia was in the right in dif- added as an Exception and Limitation to the other ; foc
poſing of no Money ſo freely to charitable Uſes, an Oath added to a Covenant excludes all ſuch Re-
as that which he had raiſed from the Stews; for ſtrictions and tacit Exceptions, as are not neceſſary
this, ſaid he, was paid willingly, whereas the other from the Nature of the Thing, and which, if
Taxes were extorted with Sighs and Groans from the Sube there be no Oath may be more eaſily admits
ject : Yet, methinks, it was not ſo decent to pitch ted (d).
(3) Deinde utra Lex jubeat, utra vetet. Nam ſæpe ea, qua vetat, quafi exceptione quadam corrigere videtur illam, quæ jubet. That
Law which forbids, ſeems by ſome ſort of Exception, to correct that which commands. Cic. de Invent. Lib. 2. d.l. See above
Lib. 1. Cap. 3. 9. 8. and Lib. 2. Cap. 6. S. 2. and Lib. 3. Cap. 7. §. 5 But we are to diſtinguiſh here, whether the Laws which forg
bid, or command, are general or particular. See above, s. 1.
(4) And again fays Cicero, Deinde utra Lex de genere omni
, utra de parte quadam ; utra communiter in plures, utra in aliquam cer:
tam rem fcripta videatur. Nam quæ in partem aliquam, & quæ in cert
am quandam rem Icripta eft, promptius ad caufam accedere vide-
tur, & ad judicium magis pertinere. Ibid. The more particular a Law is, the more does ie ſeem to make to the Caſe in hand.
(s) In which he follows Cicero, as in the other Rules, Deinde in utrâ Lege, fi non obtemperatum fit, pæna adficiatur, aut in utra
Major pæna ſtatuatur. Ibid.
(0) Primum igitur Leges oportet contendere, conſiderando, utra Lex ad Majores, hoc eſt, ad utiliores, ad honeſtiores ac magis neceſſaa
rias res pertineat. Ex quo conficitur, ut, Ji Leges due, aut fi plures, aut quatquot erunt, conſervari non poſſint quia deſcrepent inter se,
ea maximè conſervanda putetur, quz ad maximas res pertinere videatur. ibid.
(7) This Rule is true, if we ſuppoſe all things elfe equal, for if he crears of two Agreements directly oppoſite one to another,
the laſt in Date ought to mention whether the firſt were upon Oath or not; for if the Agreements were only different, a Particu-
lar is of greater Force than a General. Our Author following Grotius, blindly eſtabliſhes a Maxim here which he has confused
elſewhere. I mean, that Opinion of Grotius, in which he afirms, Thar an Oath added to a Promiſe produces a new and parti-
cular Obligation, by virtue of which a much ftricter Interpretation is to be made of ſuch Engagements, than thoſe that are
made without calling God to witneſs.. Titius's Obſerv. 445. Mr.
Thomaſius, who alſo rejects our Author's Maxim, Inftit. Juriſpru
Divin. Lib. 2. Cap. 12. $. 141. adds, That he knows not what theſe Words mean. Unleſs the Agreement without an Oath hach
been annexed to another, by way of Exception or Limitation, and it were to be wiſhed, that he had brought ſome Example. I
obſerve alſo, that our Author omits this Reftriction quite,in his Abridgment of the Duties of a Man and Citizen, Lib. 1. Cap. 17. 9. 13.
(a) Queſt. Rom. in fin. p. 291. C. (6) Olearius, Itin. Pers. I. 5. c.31. The Law which forbids is of, greater Authority thara
that which commands for every Law that forbids is therefore ſtronger, becauſe it corrects that which permits or commands, Mar.
Victorin. in exp. in 2. Rhet. Cic. (c) De Rit. Hebr. p. 5. 6. 5. 6.1. (d) Medea in Euripides, ver. 743. having deſired
to entertain her, and not to deliver her up, when ker Enemies should demand her, would needs bave it confirm’d by Oath: Which
Ægeus approved
of, for con ſays he, it will be the ſafer for me, if I can make ſuch an Excuſe to your Enemies.
† Xx
Ægeus
7. An
318
BOOK V
Of Interpretation.

7. An Obligation imperfe&tly mutual (8) gives place Matter in hand : Contrary Laws, ſays he, admit of
to one that is perfe&tly mutual, and binding on both ſides Diſpute, when two or more ſeem to claſh. As thus, ome
(9). Thus what I owe upon Contract, ought to Law ſays, That whoſoever kills the Tyrant, ſhall
be paid before what is due from me upon free Pro- be rewarded as a Conqueror at the Olympick Games
,
mife, or upon Gratitude, or any ſuch Reſpect, and may demand what he pleaſes of the Magi.
if both can't be perform’d together. And there- ftrate, and the Magiſtrate ſhall grant his Requeft.
fore Phocion, when he was ask'd a Largeſs for a Another Law enacts, That upon the Death of the
certain Sacrifice, reply'd, Ask the rich, for I ſhould Tyrant his five neareſt Relations fhall be put to
be aſham'd to give to you, and not to pay this Man (point- Death. Alexander, who had exercis’d Tyranny on
ing to Callides the Uſurer) what I owe bim (a). ver the Phæreans, was ſlain in the Night by his
8. The Law of Generoſity gives place to the Law of Wife Thebe, and The, for her Reward, demanded
Gratitude, cæteris paribus : Altho' each implies an her Son, whom ſhe had by the Tyrant. Some
imperfect Obligation. For the Debt of Gratitude were of Opinion that the Son, by the Law, ought
has more Favour to plead in its Behalf than that of to be put to Death. The Thing may bear a Dif-
Generoſity; for that requires that we ſhould pute; Now, in ſuch caſes it ought to be conſider'd
give becauſe we have receiv'd'; whereas this is which of the Laws conduce to greater, i. e. to more bom
built upon no ſuch Foundation. And therefore, nest, more profitable, and more uſeful Ends. And that
in this Caſe, becauſe the Neceflity of Gratitude ought to be obſerved which has the greater Ends to Sup-
interferes, the Object of Generoſity is ſuppos’d to port it. Then we ought tn conſider which Law was made
be wanting. And this holds ſo far, that even Ge- last, fer the laſt is of greateſt Obligation. Then which
neroſity towards our own Relations, unlefs it be of the Laws commands, which permits only; for that
due upon ſome cloſer Obligation, gives place to which is commanded is Neceſſary, that which is permit-
the Duty of Gratitude.
ted, Voluntary. Then which Law is penal, and which
9. Where the Laws were made by ſubordinate Powers, is enforced with the greater Penalty; for that ought to be
That of the Inferior, yields to that of the Superior, if both moſt obſerved, which can be violated with the leaſt In-
can't be obey'd. Thus we ought to obey God, ra- punity. Then which commands, which forbids; for that
ther than Man (b). And the Command of a King which forbids is often an Exception to that which com-
carries more Weight with it than that of the Ma- mands. Then which ſeems deſign’d to bind in general
,
ſter of a Family
which in part only : Which to include in common ſeveral
10. The more noble, uſeful, or neceſſary the Matter of Things, which ſome particular One only; for that which
one Law is, than that of another, the greater Weight binds in part, or ſome certain particular Thing only, ſeems
ought the Law to have with us.
most capable of being applied and brought into Court.
11. The cloſer Tie there is between any perſon and us, Then by the Law what ought to be done immediately, and
the more ought Obligations due to him, outweigh thoſe what admits of Delay; for that which can't be put off,
due to others, cæteris paribus (c).
ought to be obey'd firſt.
Cicero (d) has a Paffage very pertinent to the



(8) I wonder that our Author was not aware, that all theſe following Rules are contained in the fifth, of which they are only
the Conſequences; and therefore he himſelf hath left out the three laft, in his Abridgment of the Duties of a Man and Citizen, Lib.
1. Cap. 17. $. 13.
(9) See the Explication of this Diſtinction, Lib. 3. Cap.4. 9. 9. above.
(10) See Mr. Buddaus’s Diſcourſe, entitled, De comperatione obligationum, qux ex diverfis hominum ftatibus oriuntur; in the Ses
Le&ta Jur. Nat. Gent. pag.580, leqq.
(a) Plut. Phocione, 745.C.D. (6) A&t.iv. 19. (c) Gal. vi. 19. I Cor. viii
. 13. 1 Tim. V. 8. Cic. Off. 1. c. 14, 15)
Where he talks of the Degrees of Society, (d) L. 2. de Invent.
nog
CH A P.
TOULO

CH A P. XIII.
Of the Way of deciding Controverſies in the Liberty of Nature.
The CONTENT S.
1. What is due to others is willingly to be performed. V. Arbitrators, in a Doübt, are bound to judge by Law.
11. In a State of Nature there is no Judge.
VI. Arbitrators are not to judge of the Polfeffion.
III. Controverſies, which can't be decided by Confe- | VII. Of the Mediators of a Peace.
rence are to be referred to Arbitrators. VIII. What if Deeds be loft.
IV. There is a Covenant between an Arbitrator and IX. Of Witneſſis.
the contending Parties.
X. Of the Execution of the Sentence.

BY
Y the Law of Nature every Man is oblig’d on him to determine and compoſe ſuch Contro?
to perform, and to pay of his own Accord, verſies. Indeed Hobbes (c) makes every Man his
what by any Title is due from him ; and if any own Judge in a State of Nature (d); by which
one has deſignedly damag’d or offended another, he can mean nothing elſe, but that he, who has
the fame Law moreover obliges that the Delin- no Superior to Govern him, may manage his Bu-
quent ſhould ſeriouſly repent, and give Security to fineſs as he pleaſes, and appoint Means for his Pre-
live in Peace and Friendſhip for the future. And ſervation according to his own Diſcretion. For
as this Repentance, where it is not extorted by if another Man ſhould take upon him to judge of
Force, but proceeds from the Principle and Confi- my Affairs, yet, ſince he has no Authority to de
deration of Juſtice, is a ſufficient Indication of the termine me by his Opinion, it will depend intire-
Offender's Amendment: So on the other ſide, af- ly upon my Will and Pleaſure, whether, or how
ter ſuch Satisfa&tion is made, and Security given, far I ſhall be concluded by him; and ſo ultimate-
the Party injured (1), ought to forgive him, and ly the Management of my Actions will lie in my
to live peaceably with him for the Time to come. own Breaſt; which yet I ought to govern accor-
And if a Man thro' Paſſion and a Deſire of Re- ding to the Rules of Nature.
venge refuſes it, he muſt be anſwerable for the As to what remains ; tho' every Man may, in
Breach of the Peace, and the Conſequences of it that State, either neglect or defend his own Right,
(a). For it is inhunian and brutiſh, not to be fa- either put up or recurn an Injury; yet he can't,
tisfied with any thing leſs than the Blood of the in his own Cauſe, give Sentence ſo as to oblige
Offender : And when a Miſunderſtanding is once him, with whom he has the Controverſy, to ſtand
begun, to continue it on for ever. It was a cut to it. For tho'he deſigns never ſo juſtly, nay,
fed Speech of Cato's(b), who, when he met a young tho'he proteſts upon Oath, that he decrees what
Man juſt fluſht with the Ruin of his deceaſed Fa- ſeems to him to be right; yet ſince the other may
ther'sEnemy, took him by the Hand; and Thus, ſaid have as great a Reſpect for his own Opinion, if
he, ought we (2) to appeaſe the Ghoſts of our Parents; they happen to diſagree, nothing can be done by
mot with Kids or Goats, but with the Tears and Deſtructi- reaſon of that Equality, which is eſſential to the
on of their Enemies.
State of Nature. Almoſt all wicked Men think fit to
II. But all Men are not of ſuch a happy Tem- be (2) Judges in their own Caſe, Arift. Pol. 3. c. 9.
per, as to be willing, of their own Accord, to per- (3) No Mortal ever thinks an Injury againſt bimſelf
form their Duty: And, beſides, ſeveral Contro- ſmall, moſt think them greater thanreally they are, Saluft.
verſies may ariſe, concerning the Certainty and Catil.
the Quantity of a Debt, and the rating of a Da III. But yet the Law of Nature by no means al-
mage, the Competency and Exerciſe of certain lows, that every Man ſhould immediately fly to
Rights
, the fixing Boundaries, the Interpretation Arms, and put
the Controverſy to the Deciſion of
of Pacts, and other Pretenſions; and yet in the Li- . the Sword, before milder Methods have been at-
berty of Nature (1) no Man can take Authority up- tempted (1). And therefore the Parties ought firſt
Mr. Barbeyrac's NOTES on Chap. 13. §. I.
(1) See Lib. 2. Chap. s. 8. 10. above.
(3) See whar Mr. Hertius ſays upon the Notions of the Pagans upon that ſort of Revenge, in his Diſcourſe, De Herede Occin
Vindice, Sect. 1. S. 4. in his Tom. III. of his Opuſcul. do Comments.
Mr. Barbeyrac's NOTES on s. 2.
(1) In which Senſe thar of Thucidides, Lib. 1. may be admitted ; Biele due 78, oſs är or Emo direla di megoNoMo. They
that may uſe Force have no need to go to Law.
(2) Ariſtotle's Greek is, Egédor powroi sert vei ole oireiwg.
(3) Saluft's words are, Neque cuiquam mortalium injurie Jue parve videntur. Multi eas gravius &quo habuere. Seneca, as Mr:
Hertius obſerves, ſays, That every one in that Reſpect has a Royal Spirit in him. We defire that all Things may be allowed us
towards others, but are not willing others ſhould be permitted any thing towards us. Regis quiſque intra ſe animum babet, ut licent
tiam ſibi dari velit in alterum, in fe nolit. De Irà, Lib. 2. Chap. 26.
Mr. Barbeyrac's NOT E on . 3.
(!) Nam cùm fint duo genera decertandi, unum per diſceptationem, alterum per vim, cumq; illud proprium fit hominis, hoc belluarum,
confugiendum est ad pofterius, ſi uti non licet ſuperiore. 'De Offic. Lib. I. Chap. 11. “ There being two Ways of Contefting, one
* by Argument, the other by Force, and that being proper to Men, this to Brutes, Recourſe is to be had to the latter, when the
" former is refuſed.”
See Fuſtin, Lib. 8. Cap. 1. n. 4, &c. When, without trying to compoſe Matters amicably; Arms are taken
up, then that of Ovid takes place, Injuſto rigidum jus dicitur enſa. Triſt. L. s. El. 10. v. 43.
(22.C. Pontius in Livy, 1. 9. c. 1. argues excellently to this purpoſe. (b) Vide Plutarch in the Life of Cato the Elder, P: 344. E.
(d) Hopp far this is true, may be ſeen in B. 2. 6. 2. 1.
(c) De Cive, c. 1.8.9.
3.
+ Xx 2
320 Of the Way of deciding Controverſies
BOOK V.
to endeavour, by ſome friendly Debate, between any other Reward for his Sentence, than the
themſelves or their Agents
, to compoſe the Diffe- Satisfaction of having judg’d right. Abſurd there
rence (a). Indeed even after Arms have been taken fore was the Arbitrage which Maximilian and the
up, and each Party,by the Calamity of War, has been Venetians ſubmitted to Leo X. whilft each of them
induced to hearken to gentler Accommodations, we privately tamper’d with him to declare of his Side
generally find chat the Difference is at laſt adjuſted (b).
by Treaties and Negotiations. If the Thing and
Now altho' the contending Parties enter into
the Temper of the Parties admit of it, the Diſpute Compact with the Arbitrator, about taking upon
may eaſily be decided by Lot (b). But if neither a
him his Office, (for as no Arbitrage can be exerci-
Debate is able to put an End to the Controverſy, ſed without the Conſent of the Parties, ſo no one
nor either Party thinks fit to truſt that to Chance can be forced to be Arbitrator againſt his own Con-
which each, in Reaſon, thinks to be on his ſide ; fent;) yet it is not from the Force of that Com
the only Thing they can do, is to pitch upon an pact, that he becomes obliged to judge according
Arbitrator, and each bind himſelf to ſtand to his to what he thinks is agreeable to the Laws of Con
Award (c). And here Grotius (d) well obſerves, ſcience and Equity; or they to ſtand to his
Award
.
that in a doubtful Caſe, altho' each Party ought For the Law of Nature, which can receive no
to come to Terms, rather than go to War, yet the Enforcement from any Compact, obliges him to
Plaintiff is more obligʻd to it than the Defendant; for judge according to Juſtice; and they are obliged
the Defendant's Plea is the more favourable even in to ſubmit, without any Reſerve, to his Determi.
the Law of Nature.
nation, becauſe otherwiſe the Deſign of going to
an Arbitrator would be fruſtrated, and there would
IV. From the Deſign of appealing to an Arbi- be no End of ſuch Appeals.
trator, it appears how He ought to be qualified. For fuppoſe they ſhould agree to ſubmit them-
For therefore Recourſe is had to Him, becauſe a felves to his Arbitrage
, not abſolutely, buc
Man's Judgment, by reaſon of that natural Affe- Condition, that he ſhould decree according to Ju-
&tion which every Man bears to himſelf, is fu- ftice, How would they ever be able to decide the
ſpected to be partial in his own Cauſe (e). Upon Matter ? For the Parties, being ſuppoſed to be in
which Account, the Arbitrator muſt take care not a perfect Liberty of Nature, are as yet; equal;
to ſacrifice Right to Affection, nor to be biaſs’d in and each has Power to enquire whether the Arbing
Favour of one more than the other, any farther trator has perform'd the Condition, in judging ac-
than the Merits of the Cauſe incline him. And if cording to Juſtice. And therefore if after the
he behaves himſelf thus impartially, he ought not Sentence be given, it ſhould ſeem unjuſt to either
to regard the unjuſt Refentments of him that is Party, or ſhould really be ſo, another Controver-
caft. Bias (f) uſed to ſay, that He had rather judge ſy would ariſe about it; which, ſince neither this
between thoſe that were his Enemies, than bis Friends; Arbitrator, nor the Parties could be able to deter-
for, in the latter Caſe, let him judge how he would, one mine, it would be render'd neceſſary to apply to
of his Friends would turn bis Enemy; whereas, if both another. And if with this other they enter into the
were his Enemies, one probably would become a Friend. ſame Conditional Compact, and á Doubt ſhould
And therefore it is manifeft, that a Man who has ariſe about the Juſtice of his Sentence alſo, they
any Intereſt in the Succeſs of either Party, ought would be forced to apply to another for Relief,
not to be an Arbitrator between them; for fear he and ſo on in infinitum.
ſhould not be able to obſerve ſo exactly that Indif From hence it follows, that the Paĉt, which the
ference and Impartiality which he ought(1). Parties enter into when they conſent to ſtand to the
From hence it follows, that there ought to be no Award of an Arbitrator, ought to be conceiv'd fim-
Pact or Promiſe between the Arbitrator and the Par- ply, and not upon Condition that he
pronounces
ties, whereby he may be prejudiced in Favour of Sentence (3) according to Juſtice; for elle, as
either of them ($). Nor ought he to expect (2) was ſaid before, there might be an Appeal from

Mr. Barbeyrac's NOTES on 6. 4.
(1) Iatexšé mótutG • SOUTIt's, é Sede toros öt ó uio G. Arift. Pol
. 1. 4. c. 12. “ An Arbitrator is every where to have
a Truſt repored in him.” Upon the ſame Principle depended the Anſwer that Amaſis King of Egypt gave the Æleans, when chey
were to be Arbitrators in the Olympick Games, and had ſent to him to adviſe them, how they might perform the Office with greateſt
Juſtice ; Let none of the Æleans, ſaid he, be concern'd in the Games. Hither may be referr'd that ſcandalous Decree of the Ro-
man People, who in the Controverſy between the Aricineans and the Ardeates, adjudged the Land to themſelves. Livy, Lib. 3:
Cap. 72. Add. Juft. I. 8. c. 3. n: 15. where is a like Example of Philip of Macedon. See Diodorus Siculus, Lib. I. Chap. 95.
(2) Pliny gives this Commendation to Trajan, as to the Cauſes on which he gave his
Sentence, Nec aliud tibi ſententie tue prezi
tium, quam bene judicaviſe, Plin. Panegyr. c.8o. n.1. You had no other Reward of your Determination than that you judged well
.
(3) The Digeſts ſpeak to this Purpoſe, Qualem autem ſententiam dicat Arbiter, ad Prætorem non pertinere, Labeo ait, dummodo
dicat, quod ipſi videtur. Et ideo, fi fic fuit in Arbitrum compromiſum ut certam ſententiam dicat, nullum eſſe arbitrium, Lib.4. Tit. 8.
De receptis, qui arbitrium receperunt, ut ſententiam dicant, Leg. 19. princ. Whence it comes, that according to thoſe Lawyers, the
Sentence of an Arbitrator ought to end the Macter entirely, and not to be remov'd to the Judgment of another Arbitrator. 1-
dem Pedius probat, nè propagentur arbitria, aut in alios interdum inimicos agentium transferantur, Jua ſententia finem controverſia eum
imponere oportet, Ibid. Leg. 32. §. 16. Further, as to what concerns the Agreement of Parties, and the Qualities or Duties of Ar-
bitrators, as to the private Affaits of the Members of the fame State, we may conſult the whole Title which I have quoted, as alſo
Mr. Daumat's Civil Laws in their Natural Order, Part 1. Lib. 1. Tit. 14. and the Publick Lam of the ſame Author, Lib. 21
Tit.7:
(a) Vide Grot. l. 2. c. 23. /: 7.
(b) V. eund. d. l. 8. 9.
(c) V. Grot. d. l. . 8.
re) Vide L. 2. t. 1. l. 10. D. de juriſdi&t. Plut. de adulat. Lo amico difcern.
(d) D. I S. II.
Every one is the greateſt Flatterer of himſelf.
Diog. Laert. l. 1. S. 87. Aul. Gell.l. 1.6. 3.
(&) Compare Hobbes de Giye, 6. 3.4: 14.
Hiſt
. 1. 11. about the end and l. 12. p. m. 345:
(b) Guicciard.
one

CHAP. XIII.
321
In the Liberty of Nature.
one
Treatiſe, De Juriſdi&. do Imperio, Lib. I. Cap. iz..
(2) This is what the Emperor Conſtantine exprefly ſpeaks, in this Law quoted by Mr. Hertius, Inter æquitatem juſque interpofitam
(4) Arbitrator to another, and from him to a I don't mean that dextrous Interpretation of the
third, and ſo on without End. Beſides, that there Law, mentioned in the foregoing Chapter, which
can lie no Appeal from the Arbitrator is plain, even a ſubordinate Judge ought to make uſe of :
becauſe there is no ſuperior Judge to receive it, but an Abatement of the Rigour of the Law, up-
which obtains even in Civil States, where the Para on the Dictates of Humanity, Charity, Compaſ-
cies, by Confent, pitch upon an Arbitrator, pro- fion, &c. which none but the Supreme Judge (2), or
vided the Cauſe be ſuch as it does not concern the an Arbitrator choſen on purpoſe, has Authority to
Government to intermeddle with: And if any apply.
Country admits of ſuch an Appeal, it is by reaſon If it be doubtful under which of theſe two Qua-
of fome poſitive Law. Indeed, in ſome places, lifications the Árbitrator is choſen, he ought to ſup-
thoſe extraordinary Judges, who have Cauſes laid poſe himſelf tyed up to thoſe Rules, which a
before them, to be examined and decided out of Judge would be obliged to follow ; for it is for
hand, without the tedious Forms of Law, come want of a Judge and Judicature that he is called
under the Name of Arbitrators. And from theſe in : And, in a doubtful Caſe, we ought to take
nothing hinders but that an Appeal may lie to a that fide which is cleareſt (3). Beſides, an Arbi-
Superior.
trator can't ſo eaſily act unjuſtly, if he has a limit-
But when we ſay that the Parties ought, right ted, as if he has an abſolute Power delegated to
or wrong(5), to ſtand to the Sentence of the Ar- him. Indeed to perſuade a Mitigation of the Ri-
bitrator, it muſt be underſtood with ſome Reſtri- gour of the Law is properly their Buſineſs, who
Aions: For tho' I can't fly off, becauſe he decrees voluntarily, without entring into any Engage-
otherwiſe than I expected : yet his Sentence ſhall ments, interpoſe, as common Friends, becween
not bind me, if it manifeſtly appears that he cam- the contending Parties.
per'd with the other Party, and received Bribes of Now as he that judges between Fellow-ſubjects,
him, and concerted Matters to my Diſadvantage. judges according to the Municipal Laws of the
For he who evidently (6)itakes part with either ſide, Place: ſo he who judges between thoſe who ac-
ceaſes to bear any longer the Perſon of an Arbi- knowledge no common Municipal Laws, ought to
trator (a).
judge according to the Law of Nature ; unleſs the
If it be thought fit to (7) refer a Cauſe to more Parties ſubmit their Cauſe to the poſitive Laws of
than one, 'tis beſt to have an uneven Number; for ſome particular State.
elſe they may divide into equal Votes, and ſo leave VI. The fame Grotius (c) obſerves alſo, that an
the Buſineſs undecided.
Arbitrator, choſen by the Supreme Authority,
ought to take Cognizance of the Merits of the
V. Moreover Grorius (b) would have it conſider'd, Cauſe, and nor of the Poffeffion; for it belongs
whether the Arbitrator be choſen as a Judge, or as to the Civil Law to determine that; whereas, by
having Authority more at large of giving Sentence, the Law of Nature, the Right of Poſſeſſion fol-
not according to the (1) Rigour of the Law, but lows the Property. Concerning which my Opi-
according to Reaſon and Equity. For ſometimes nion is, that althó' by the Law of Nature and Na-
both Parties appeal to the Law; and there the Ar- tions, it does not ſeem neceffary, that if a Man be
bitrator, as if he were a Judge, ought to weigh the turned out of Poffeffion he ſhould immediately be
Merits of the Cauſe, and to determine according put in again, before the Merits of the Cauſe be
to Law. Sometimes one Party only inſiſts upon heard, eſpecially if it can be immediately deter-
the Rigour of the Law, and the other, in favour mined ; yet, in many caſes, the Arbitrator ought
and Compaſſion, deſires a Mitigation of it; or, in to make Enquiry who was in Poffeffion, that he
other Words, appeals to Equity: Where by Equity may know whom it chiefly concerns to make out
(4). Adeo fummum quiſque cauſa fue Judicem facit, quemcunque legit. Plin. Nat. Hift. Pref. S. 47. “ Every one makes him, whorti
he has choſen, the chief Judge of his Cauſe. "Hy g' tives exóviss out owoãV ae dixaga's, y megbabuevol mozgéf wor decua
Tãy, 8x 'TI didor i vóuo eis te por ipsiva dexashecov.quds. Lucian Abdicat.t. 1. p.715, &c. Edit. Amft.“ If any one pitches
“ upon thoſe to be Judges in his caſe, whoſe Opinion he was not otherwiſe obliged to ſtand by, after having made the Choice,
"he ought to ſubmit to their Determinations.” From hence may be brought a Reaſon of that in Quintilian, Declam. 372. Jug
dicia tamen judiciis reſcindi non poffunt. “One Decree cannot make void another.”
(s) This is ſaid formally in a Law, where the Arbitrators ſpoken of are oppoſed to another fort of Arbitrators, to whoſe Judge
ment we are not bound to ſubmit, unleſs it be conformable to the Rules of Equity, Arbitrorum enim genera ſunt duo, unum ejus-
modi, ut five equum fit, five iniquum parere debeamus, quod obfervatur, cum ex compromiſſo ad arbitrium itum est; alterum ejuſmodi, ut
ad boni viri arbitrium redigi debeat. Digeſt
. Lib. 7. Tit. 2. Pro Socio, Leg. 76. See the following Laws. ·
(6) The Law of the Romans grants in this caſe an Exception of Fraud, Arbitrorum ex compromiſo ſententia non obtemperant, så
fordes, vel evidens
gratia eorum, qui arbitrati
ſunt, interceffit ; adverfus filiam tuam agentem ex ftipulatu, exceptione doli mali uti potea
ris. Cod. Lib. 2. Tit. 56. De receptis Arbitris, Leg: 3.
(7) So che Digeſts direct, In impari enim numero idcirco compromiffum admittitur, non quoniam conſentire omnes facile est, ſed quia, etfi
diffentient, invenitur pars major, cujus arbitrio ftabitur. Lib.4. Tit. 8. De Receptis, &c. Leg. 17. $6.
Mr. Barbeyrac's NOTES on 6 s.
(1) Grotius quotes here a Paſſage of Seneca, De Benef. Lib. 3. Cap. 7. where he does not treat of Arbitrators, but ſuch ſubora
dinate Judges
, as the Prætor or Governor ordered for the Parties, who were obliged to follow the Forms preſcribed them ftri-
aty, or the Maxims of Equity, according to which the Cauſe reſpected an Affait of ftriJuſtice, or of Honeſty. See Mr. Noodt's
prer, $ 21. Note si
interpretationem nobis folis, de oportet, do licet infpicere. Cod. Lib. 1. Tit. 14. Dé Legibus, doc. Leg. 1. See the following Cha,
(3) So the Digests ſpeak, Semper in Obſcuris, quod minimum ešt, Sequimur, Lib. 1. Tit. 17. De Div. Reg. Jur. Leg. 9.
(w) Vide L. 17. t. 2. 1.76;c. D. pro Socio. (b) Vide Grof. L. 3.c.29.8.46.1. 2. dilo (6) D. l. 60.48.
his

322
Of the Way of deciding Controverſies! Book V.
his Title. (I) For the Plaintiff ought to have ve- in caſe of a War ; for ſuch an Obligation can't be
ry clear Proofs to ſupport his Pretenfiops, where- limitted by a Treaty made afterwards with a third
as it is enough for the Defendant to confute the Ar- Perſon.
guments of his Adverſary, tho' ſometimes it may Moreover, two or more, whom it concerns to
be convenient, over and above, to ſhow his own have an End put to the War, after having weigh-
Title alſo. However, it is not ſufficient for the Ar- ed the Pretenfions of each ſide, may lawfully a-
bitrator to give Judgment concerning the Poſſeſſion gree upon what Terms a Peace ought to be con
only, for that is generally out of Diſpute, and ſel- cluded, and then offer them to the Parties with a
dom brought before him; but his Buſineſs is to ex. Manifesto, that they will join Forces againſt him
amine into the Merits of the Cauſe, and by a final that refuſes them. For a Prince does not, by this
Determination to put an End to the Sute. But Means, obtrude his Arbitrage upon another againft
while the Cauſe is depending, no Innovations his Will: nor decides another's Quarrel by his own
ought to be made; and, if the plaintiff can't make Authority, (both which are Encroachments upon
out his Pretenſions, Judgment ought to be given the Liberty of Nature :) Nor are thoſe Terins of
for the Party in Poffeffion.
fer'd to the Parties ſo, as if they were oblig'd to
VII. But Mediators, who interpoſe between con- comply with them. But ſince, by the Law of
tending Nations, either preparing, or a&ually en- Nature, a Man may, join Forces with him who,
gaged in War, and endeavour, by their Authority he thinks, has receiv'd an Injury, eſpecially if the
and their Arguments and Intreaties, to bring them Conſequence of it is likely to redound to his Das
to Terms of Accommodation, are not properly mage; by ſuch a Method, as this, he openly de-
Arbitrators (a). Theſe having ſo pious a Deſign in clares for Equity and Peace, that he is deſirous o
Hand cannot be obſtinately rejected, without the thers would act fairly, and that he is not willing
greateſt Inhumanity, even alcho' they ſhould ap to enter into a War, before the adverſe Party has
pear to be more intimately allied to either Party. rejected the Propoſals of Peace (c) (1).
For the other ſtill has Liberty either to accept or
And this ſort of Mediation is the more commen-
refuſe what they offer: And it is the chief Buſi- dable, if it puts an End to a War, that would
neſs of a Friend, where he cannot join in the Quar- prove deſtructive to one or both Parties; yet he,
rel, to endeavour to bring it to an amicable Com- who makes himſelf a Mediator, ſhould take care
poſition. Beſides, it is frequently the Intereſt of a
that he be able to compel by Force, that Party
Prince, to prevent War from breaking out between which refuſes to ſtand to his Determination (d).
Nations; for fome Sparks of the Fire, kindled in
VIII. How the Form and Proceſs of a Debare,
his Neighbourhood, may poſlibly reach him; and, before an Arbitrator, is to be manag’d, common
beſides, it may be dangerous for him to have both, Senſe will beſt direa, according to the different
either of the Parties entirely ruined; and there- Circumſtances of the Thing; for it would be im-
fore, as he values his own Safety, he ought to en- pertinent to give tedious Directions how each Para
deavour might and main to hinder the Flame from ty ought to open his Cauſe, how to ftate the Que-
coming to a Head. And the more earneſtly ought ftion, how, after the Arguments on both sides
Chriſtians thus to labour in compoſing Differences, have been weighed, the Sentence ought to be pro-
becauſe even the Alcoran (b) (how ſenfleſs ſoever it nounced: We need only obſerve, that if the Pre-
be in other things) does wiſely in commanding, that tenſions on one ſide cannot be made out but by
if two Mahometan Nations go to War, the reſt ſhall Deeds, and they happen to be loft, the Arbitrator
interpoſe, and force the Aggreſſor to make Satisfa- has nothing to do, but, with the Conſent of the
&tion, and after that, oblige both to live in Friend- other Party, to give him his Oath(1): I ſay, with
ſhip and Amity for the future.
tbe Conſent of the other Party; for elſe, in the Liber-
-Tis certain, that if it be the Intereſt of ſeveral ty of Nature, no Man is obliged to put the líſue of
to have the Quarrel made up, they may enter into his Cauſe upon another Man's Conſcience. It is
Compact jointly to labour for Peace; and, if their alſo in the Power of the Parties to refer themſelves
Endeavours ſhould prove unſucceſsful, they may to the Deciſion of a Lot, or a (2) Duel, as has for-
then mutually preſcribe to one another how farmerly been practiſed among many Nations.
each ſhall make himſelf a Party in the War. But However, I do not ſee how the (3) Loſs of my
this only, in cafe none of them has any Pre-en- Deeds can extinguiſh my Right ; Indeed I cannot
gagement upon him to aſſiſt either of the Parties, have Juſtice done me in the Civil Court, being


Mr. Barbeyrac's NOTE on S 6.
(1) So the Digeſts appoint, Exitus controverſie Posseſſionis hic est, tantum, ut prius pronunciet Judex, uter poſſideat; ita enim fiet,
ut is, qui victus eſt de posseſione, Petitoris partibus fungatur, do tunc de Domino quæratur. Lib 41. Tit. 2. De adquirendå, vel o-
mittenda poffefione, Leg.
35. Beſides, as there are ſometimes great Preſumptions, for one of the Parties, Equity requires, if
he hath been, for Example, difpoffefíed by an unjuft Force, he ſhould be again put in Poffeffion without a ſtrict Examinacion of
the Petitioner, which may be long and intricace, that the Detainer, during that Time, may not enjoy peaceably the Fruits of his
Force, and the Advantages of the Poffeffion. See Mr. Titiks's Obſerv. on Lauterbach, obſ. 1071.
Mt. Barbeyrac's NOTE on $ 7.
(1) The Words of Velleius Paterculus are, Feſtinationem itineris ejus (Cæfaris aliquandiu morata Maſſilia eſt, fide melior, quam
conſilio prudentior ; intempeſtive principalium armorum arbitria captans, quibus ii je debent interponere, qui non parentem coercere poſ-
funt. Lib. 2. Cap. so. See Mr. Boecler's Diſcourſe, enticuled, quies in turbis, with the 34 of Tom. 1. pag. 996, doc.
Mr. Barbeyrac's NOTES on s 8.
(1) See Lib. 4. Chap. 1. $ 21, aforegoing.
(2) See Lib. 8. Chap. 8. $ 5. following.
(3) See Lib. 3. Chap.6. $ 16. aforegoing.
(a) Vide Guicciardin. Hift. 1. 4. where is debated whether Hercules Duke of Ferrara, ſhould perform the Part of an Arbitrator,
or Mediator, between the Venetians and the Florentines.
(6) Cap. de Clauſtris.
(c) Vide Livy, l. 44, c. 19. at
che End. Juftin. 1.6. c. 6. m. 1.
(d) Vide Vell, Paterc. 1. 2. 6.50. Livy, 1.9.6, 14.
not

CHAP. XIII. In the Liberty of Nature.
323
,
Witnesſes, the Accuſed Mall be found Guilty.
not able to produce ſufficient Evidence; but, in poſed and brought againſt us, the_Mafter would be the
the Liberty of Nature, 'tis enough to juſtify me Slave, and the Slave Maſter. Indeed Theodoric (i)
in the Proſecution, if I be fully convinced of my forbid the Abuſe of this Law by an Edict; for ſome
Right, tho'l be not able to make out my Pretenſi- bought up other Peoples Servants, who were con-
ons to another (a).
ſcious of their Crimes, left they ſhould be brought
IX. This Arbitrators have in common with ſonable, that (5) no Cauſe ſhould ſtand or fall by the
Judges, that, in the Examination of Matters of Credit of any one ſingle Witneſs (k), not only be-
Fad, they ought to fhew themſelves equal to the cauſe one may more eaſily be deceived or corrupc-
bare Aſſeveration of each Party, i. e. when they ed than many, and there is no Fallhood fo impu-
contradict one another, to believe neither. But dent, but may get the Aſſiſtance of one Witneſs (1),
when Deeds (b), Arguments and undeniable In- but alſo becauſe an able underſtanding Judge may
ftruments can't be produced,
they muſt then give diſcover the Witneſſes to be falfe, by oppoling to
Judgment according to the Teſtimony of Witnef- one another the Examinations of ſeveral(m),where-
ſes(I).
as one may eaſily be conſiſtent with himſelf; and
And theſe Witneſſes ought to ſhew themſelves in- altho', by this Means, fome Crimes muſt remain
different towards either Party, and not to let Fa- unpuniſh'd in this World, and ſome muſt loſe their
vour, or Hatred, or Revenge weigh more with juſt Right, who perhaps have but one Witneſs to
them than their Conſcience (c). Thuanus (el) re- ſupport it, yet this Inconvenience is not fo great,
lates, that heretofore in Great Britain, an Engliſh as if every one's Life and Fortune lay at the Mercy
Man could not be a Witneſ againſt a Scot, nor a of any one Man's Impudence and Villany ; for
Scot againſt an Engliſh Man, by reaſon of the En- 'tis better that a few guilty Perſons Mould eſcape
inity between the two Nations : But Cambden (e) Puniſhment, than that many innocent ſhould fuf-
tells us, that this obtain'd only between the bor- fer (n).
dering Scots and Engliſh; ſo that if never ſo many Yet Selden (c) obſerves, that againſt a Gentile the
Engliſh Men ſhould, with their open Eyes, ſee a Fews admitted of one Witneſs as ſufficient. And
Scot commit Murder, their Teſtimony would figni- Grotius (p) takes notice, that one Witneſs, was e-
fy nothing, unleſs ſome Scot or other teſtified the nough, not to condemn, but to inform the Court,
Lame Thing.
and, in pecuniary Matters, to put the Defendant to
And therefore as my Adverfary may refuſe to his Oath. At this Day, among the Moors, the E-
admit of my near Relations as Witnefles (f); ſo may vidence of two honeft Men is ſufficient, but if
I except againſt my profeſſed Enemies. Indeed the Witneſſes be ſuſpected, then twelve Perfons are
ſometime Relations are excuſed upon a Principle required; for they think as much Credit may be
of Humanity, for fear they ſhould be forced to given to twelve, let them be ever ſo profligate, as
offer Violence, either to their Affections, or to to two, be they ever ſo honeft (96). The HR
their Conſcience. And (3) therefore the Roman brews admitted none to be Witneſſes, but ſuch as
Law never obliged the Client to be Evidence a were of good Reputation; Madmen were except-
gainſt his Patron, nor the Patron againſt his Cli- ed againſt
, and Children, till they were thirteen
ent (g): But beſides this, there was another very Years of Age ; and Thieves, even after they had
good Reaſon why Servants Mould not be allow'd made Reftitution; thoſe too who lived by Gam-
to give Evidence againſt their (4) Maſters (b); for, ing, and Publicans who exact
more than their due,
as Cicero ſays, If that which is done in our own Houſe, and ſuch as deal in thoſe Things which deſerve
and
among our ſelves, were permitted to be publickly ex- Stripes. Among the Turks, thoſe who have made
Mr. Barbeyrac's NOTES on $ 9.
(1) For as Ijaus ſays, Orat. 7. p. 504, 505. "A TERUKCLee xgeitlw uap tuecov 6578. .“ Arguments are better than Witneſſes."
And, in Orat. 3. he ſhows, Thae in Matter of Inheritances particularly, Deeds are preferable to witneſſes. Philo Jud. de Decal. p.
“ If Arguments and Writings be wanting, the Controverſy muſt be decided by Witneſſes.” See Lex. Wiſigoth. 1.2.
(3) There were, nevertheleſs, certain Caſes excepted, as well for the Criminal as for the Citizen. See Mr. Noodt's Probabilid
Juris, Lib. 3. Chap. 5, 6. as alſo the Interpreters on Cicero's Orat. pro Milone, Chap. 22.
(4) Pro Rege Dejotar. Chap. 11. Lucian in Aſino. Tit. 2. Page 80. Edit. Amſt. « Servants muſt needs know both the Good and
* the ill Things of their Matters.” There is ſuch another Paſſage in Lyfias, Orat. de Sacro Olive trunco. Plaut. Bacch. A&t. 4. Sc. 6.
“ I know I am a Slave, and therefore I am ignorant of even that which I know.”. See a Paffage in Iſocrates Trapez,
de fide quæſtionum, pag. 634, bc. and Ariſtot. Rhet
. ad Alex. Cbap. 17. Hither may be referr'd the Hiſtory, or rather the Fable,
of Avicenna, in Gabril. Sionit. de urbibus & moribus Oriental. c. 3. See Lex Wiſigoth. Lib. 5. Tit.4. Chap. 14. with which may
compared, ibid. Lib. 3. Tit. 4.
Chap. 10. and Lib.6. Tis. 4. Chap. 3. and Capitulare Caroli, Lib. 7. Chap. 280. Edi&tum Regis The-
odor. Chap. 48, 46, 101.
(5) So the Code orders, Et nunc manifeſté Sancimus, ut unius omnino teſtis reſponſio non audiatur, etiamfi præclare curiæ honore fula
geat. Lib. 4. Tit. 20.
De teſtibus, Leg. 9. 9. 1. See alſo the Digeſts. Lib. 48. Tit. 18. De quæftionibus, Lib. 20.
(a) Vide Conneſtag. de Unione Luſitan. I. 5. p. m. 2z. To this purpoſe is that of Quin&lilian, Déclam. 312. The Condition of Man is
miſerable
, ſince it ſeems neceſſary to have a Witneſ for every thing we do: Truth has to little Power, and Faith so little Eſteem, it
Scarce feeems ſufficiently proved, which is atteſted by Two. (b) Vide Suet. Galb.c. 7.
(c)
cum ſînt præmia falſi
Nulla, ratam debet teſtis habere fidem. Ovid. Trift. l. 3. El. 10. v. 35, 36.
Add. Lex Wiſigoth. l. 2. t. 4. c. 12.
(d) Lib. i.
(e) Ad. ann. 1585.
(f) V. Ariſtot. Pol. L. 2.c.6.
(8) Plut. Romulo. Lex. Wiſigoth. I. s. t. 7. C. II.
(h) Unleſ for Incest, as Cicero ſays, Orat. pro Milone, c. 22.
And therefore Ariſtotle, d. 1. does well call it a fooliſh Law, if the Accuſer brings a multitude of his Relations de
(k) See Numb. xxxv. 30. Deur. xyii. 6. and xix. 15.
(1) Plin.
(m) Vide Suſan Hiſt, v. 51.
(n) Val. Max. l.4.c. 1. S. 10,11,
(0) De Jure N.
O G. Sec. Heb. 1.7.0.6.
(D) On Deur. xix. 16. (9) What Qualifications are neceſſary for Witnesses, may be ſeen in
L, 22. t. s. 1,11
, 111. 1. 1, 2, 3, 4. IV, V, IX, XIV, XXI, XXIII, XXIV. D. de Teftibus, ☺ See above, in B. 3. c. 6.1.16.
764. 4•
3.4. c. 3.
ver, 20, 21,
be
(0) Edi&.c. 101.
Nat. Hist. 1. 8. 6. 22.
a Pil-
324
Of the Way of deciding Controverſies, &c. Book V

a Pilgçiņiage to Mecca are equivalent to three Wit- fupply me with, force him to it. How far we may
neffes (a). (6) Add to this, that One Eye-Witneſ is carry ſuch violent Proceedings ſhall be ſhewed
worth Ten that has the Fact by Hear-Say only. And more fully hereafter, when we come to diſcourſe
therefore their Teſtimony is of no Weight which of War. Only here we may obferve, that in ſuch
is built (7) upon the Authority of others. an Execution, I not only acquire the Property of
But tho' the Oath of a Witneſs creates a great the Thing adjudged to me, when by any Method
Preſumption of the Truth of what he aſſerts, yet, whatſoever I have gor Poſſeſſion of it: but more-
in the Law of Nature, nothing hinders but that a over, if I cannot get Poffefſion of the Thing it-
ſworn Witneſs may be convicted of Perjury; and, ſelf, I may ſeize upon any Thing of the ſame Va-
if he be ſo convicted, the Sentence founded upon lue, the very Charges of the Execution being
his Teſtimony comes to nothing (b): Yet it ſeems reckon'd in, ſo as to become the rightful Owner of
abſurd, that the Party concern'd ſhould be permit- it (d). Indeed the Goods of a Debtor, who be-
ted to make void the Evidence, by ſwearing on comes ſuch either by his own Contract, or by the
the other ſide ; for this would not only lay open a Thing it ſelf, or by his Injuſtice, are look'd upon
great Gap for Perjury, but by reaſon of contradicto- in the Law of Nature, as tacitly mortgaged for
ryOaths, the Controverſy would remain as uncertain the Debt; and, if it be not diſcharg'd, may be
as before. And therefore it is according to its u- juſtly ſeized for it; nor is the bare Detention of
fual Sillineſs and Impiety, that the Alcoran (c) com the Thing enough for the Creditor, for that fre-
mands him who accuſes his Wife of Adultery, and quently has more Trouble than Profit in it; but
has no Witneſs to prove it, to ſwear four times, and he muſt alſo have full Liberty to diſpoſe of it as he
the fifth Time to imprecate the Curſe of GOD pleaſes; for my Right is not ſatisfied, if inſtead of
upon himſelf, if what he affirms be not true : and the Thing, with the Property of which I ought to
on the other ſide, it allows the Woman to be clear, be inveſted, I receive nothing but the Cuſtody of
if the denies the Charge four times upon Oath, another Man's Goods; yet, in ſuch a Caſe, I ought
and the fifth time with an Invocation of the Curſe to ſignify with what Deſign I make ſuch Seiſure,
whether in order to extort from the Debtor my Dues
the ſooner, or to take the Goods thus ſeized upon
X. As for putting the Sentence of the Judge in in part of Payment : Indeed it ſeems but reaſona-
Execution, we need not ſay much; for in a State ble to give the Debtor Liberty to receive his
of Nature, if a Man does not, of his own Ac- Goods, upon Payment of the Debt. But this
cord, perform what is due to me, I may, by all Way of Execution is proper to the State of Na-
the Power that my ſelf have, or my Friends can ture, and has no place in a Civil Conſtitution (e)
of GOD. 2017

1
23
(6) Pluris eſt eculatus teſtis unus, quam auriti decem. Plaut. Trucul. A&t. 2. Sc. 6. v. 8. “The Ears are leſs faithful than the
“ Eyes.” Lucian de Domo.
(7) ου χάριν και παρά τοις άρια πολιτδομένοις αναγέγegφή και νόμG, ακοή μη μαρτυρείν, όπ φύσει το δικαςήeιον αυτής προς
το δεκάζες ταλαντευες. Philo Jud. de Corrupt. Linguarum, pag. 340. B.C. Edit. Paris. " In a well-regulated Commonwealth the
“ Laws take Care, that what is given upon Hear-fay ſhall nor go for Evidence. For ſuch a Teſtimony is naturally liable to Cor-
6 ruption. The Eye is appriſed of the Things themſelves, and in a manner intermeddles with Bufineſs, and perceives all
" by Light, by which every Thing is illuſtrated and diſcovered: but the Ear has lefs Credit, as having to do not with the
Things themſelves, but with Rumours, which do not always mind the Truth, id. de Judice.
(a) Vide Chy. Richer. de moribus Turcarum.
(6) The Attick Laws allow, that, after the Sentence, an Altion of Perjury
may be brought against the Witneſ, as is plain from Demoſth. Orat. in Euergum, in the Beginning. Add. Plat. de leg. 1. 11. about the
End.
(c) Cap. de Lumine. (d) For as Grotius obſerves, l. 2.c.7. 1.2. Expletive Juſtice, when it cannot get the Thing
it ſelf, demands an Equivalent, which morally ſpeaking is the ſame. (e) Vide L. 41. t. 2.1. s. D. de acquir. poffen: L: 47.
*t. 8. 1.2.8.18. D. de vi bonorum raptorum, do L. 4. t. 2.l.ig. D. quod metus caufa, & L. 48. 6.7QC. L. 7,8. D.adl. Juliam
de vi privata.
OF
Chap. I.
325
Samuel Puffendorf
OF THE
LAW of NATURE
AND
NA TIONS.

BOOK VI.
C H A P.
I.
Of MATRIMON Y.
riage void.
I. The Coberence.
XX. It is not lawful rajhly to part Man and Wife
II. Matrimony the Propagation of Mankind. XXI. Adultery, and wilful Deſertion make a Mar-
III. Whether there be an obligation to marry,
IV. A wandring Luft oppoſite to the Law of Nature. XXII. Whether an intolerable ill-Nature is a reaſon
V: Mankind, not to be propagated but by Marriage
.
for Divorce.
VI. What Obligation may be laid on Men to marry by XXIII. The Opinion of ſome Men, about the Senſe of
the Laws of Nations.
the Law of God about Divorce.
VII. what it is by the Law of Nature.
XXIV. Particularly of Mr. Milton.
VIII. How far the Laws of Nations may order XXV. Marriage requires ſuitable Qualifications of
concerning Marriage.
Nature.
IX. The diſorderly Marriages of the Amazonis. XXVI. An Error concerning Matrimony.
X. The Laws and Rights of a regular Marriage. XXVII. A marri'd Woman can't rightly marry another,
XI. Whence ariſes the Man's Power over the Wife
. XXVIII. Marriages with near Kindred,why forbiddend
XII. Wbether it be beſtowed immediately by God. XXIX. How it comes to paſs that Men are aſhamed
XIII. Whether it necellarily implys a Power of Life
of their Genitais.
and Death
XXX. Of Nakedneſs.
XIV. Whether Conſent, not Bedding makes the Mar- XXXI. The original of natural Shame.
riage.
XXXII. Marriages between Parents and Children
XV. No Woman may marry more than one Husband,
wicked.
XVI. Polygamy in uſé among many people.
XXXIII. The Opinion of the Jews about it.
XVII. XVIII. Whether it be repugnant to the Law XXXIV. Of the Marriages of Brothers and Siſters.
to
of Nature.
XXXV. of the other Degrees forbidden.
XIX. The true Nature of Marriage is for one Man, XXXVI. Of Secondary Wives,
and one Woman to be joyned together.
30
I
T follows in courſe that we examine the not otherwiſe be conceiv'd than between
Original and Nacure of buman Government, ſeveral Perſons, and ſince the Holy Scriptures,
and that we (1) obſerve what Precepts of inform us, that in the Beginning GOD Al-
the Law of Nature and Nations do pre- mighty created one only human Pair, the Ori-
ſuppoſe it. But in as much as Government can ginal Parents of our Race; it may ſeem ne-
Mr. Barbeyrac's NOT ĖS on Chap. I. S. I.
(1) The Connexion is fomething different, and perhaps better in his Abridgment of the Duties of a Man and a Ci-
tizen. Lib. II. Chap. II. where the Author follows the Notion, which he had before propounded: Lib. I. Chap. I.
D: 7. and ſays, That he paſſes to the Confideration of the Acceſſory States ; i.e. to them which are conſequent upon
fome human A &, which he reduces to four : viz. Marriage, the Relations of Father and Mother, Maſter and Servant,
and the Meinber of a Kingdom.
ċeſſary
Y Y
326
Of Matrimony.
Book VI.
one Maſter more Servants, gre Children, and mances, as the Senſitive Appetite, and Inſtinct
ένα έφυ πρδς κοινωνίαν. Πρώτη Με,
neceſſary, (2) before we proceed in our En- moft paffionate Love, a moſt ardent Propenſion
quiry about Civil Power, to conſider the Relation towards the other ; with a mnoſt deep and tender
of Matrimony; which being the Source of Private Affection for their common Iſſue ; that ſo they
Families, does by conſequence ſupply Matter might not only willingly, but joyfully contribute
for the compoſing of all Sovereignties and States. their Service to the Preſervation and the Con-
For as the Body of Man is made up of divers tinuance of Human Race (c).
Members, each of which conſider'd by it ſelf,
III. The firſt Point of Enquiry concerning
hath likewiſe in ſome ſort the Appearance of a Matrimony muſt be, whether Men, in all reſpeás
Body, ſo States are form’d out of leffer Societies, fit for ſuch a Condition, lie under any Obliga-
of which ſome are calld Simple and Primary, tion of entring upon it. For about this Action,
others Compound, and as it were Collegiate
. Of the as likewiſe about others, to which Men are in:
firſt fort are three, according to the threefold clined by a natural Appetite, as Self-Preſerva.
Power of a Husband, of a Father, and of a Maſter. tion, and the Love and Education of Off-ſpring,
And there bear the Name of Simple, not becauſe many have rais'd a Scruple, as if they were not
they conſiſt of no more than two Perſons, as under the Care and Cognizance of the Law of
ſome maintain (a), but becauſe they are not Nature. For, ſay theſe Authors, what need was
compounded of inferior Societies. For why there of a farther Engagement to ſuch Perfor-
may not one Father have
and yet ſufficient Strength and drive
thus conftituted be as truly ſimple, as if each Fa- before ? But indeed their Dependance on natural
ther had but a ſingle Child, each Maſter but a Inſtinct, is ſo far from proving them to be un.
ſingle Servant (b).
commanded by the Law of Nature, that it rather
II. To go on then; ſo ſoon as Man was ren- argues a more peculiar and more earneſt Care in
dred obnoxious to Mortality, left the Duration Nature to have them obſervd with the utmoſt
of ſo noble a Species-Should be confin’d to a Strictneſs, as the immediate Cauſes of the Safe-
Single Age, or ſhould require the conſtant Mi- ty and Welfare of Mankind: whilſt diſtruſting,
racle of new Creations to preſerve it in Suc- as it were, the bare Force of Reaſon, the affifts
cefſion, it pleas’d the moſt wiſe God to provide and ſeconds it with ſo violent an Inſtinct, that
againſt theſe Inconveniencies (1), by enduing the Men cannot, without great Difficulty, bend the
two different Sexes with a natural Power of Pro- contrary way (d). Where ſhould we find a Man
pagating their Kind. And left they ſhould (1) who would venture the common Vexa-
forbear lo neceſſary a Work, either out of Neg- tion of Children, were he not led to deſire them,
ligence, or upon Apprehenſion of the great Pain as well by a Natural Inclination (e), as by the
of Bearing, and the great Trouble of Educating ſober Advice of Reaſon? eſpecially ſince
their Off-Spring, he implanted in each Sex å the means of obtaining them are ſuch, as would
(2) Plato fays, That if we will make good Laws, we muſt begin to regulate Marriages well ; Tauski A rómol Ff@TO
xiv S wlisa nibérievor, voda as av Tisatu mejs og Sómate melon tómm. De Legib. Lib. IV. See alſo Dion. Halicarn. Antiq. Rom.
Lib. 12. Chap. 24 p. 91. There is a Fragment of Hierocles's, which deſerves to be recited here, where that Philoſopher
fays, That nothing is more peceffary to be treated on than Marriage, becauſe Mankind is born for Society, and Nar-
riage makes the firſt and moſt ſimple of all Societies ; for, adds he, there can't be a City, without Families, nor can any
Family be compleat, unlefs the Head of it be marry'd. “Αναγητότατός εσιν και περί τε Γαμε λόγG- "Απαν μεν δ ημών το
, ý i zaérov. OUTE oixós
KM Teans refer to õrn 87 ezeklis. TÉLAG A Tangns o po yoyapnx610. Hierocles De Nuptiis apud Stob. Serm. 65.
Mr. Barbeyrac's NOTES on Chap. 1. 8. 2.
(1) Same Divines having quarrell’d with our Author for what he ſays here, he anſwers them thus in his Specimen
Controverſiarum circa jus Naturale, &c, Chap: 3; . 7., When God, who knows all things, foreſaw that Man would
inevitably become ſubject to Death, he diſpos'd things by his infinite Wiſdom from the beginning after this manner ;
That diverſity of Sexes ſhould be of uſe both in the ſtate of Integrity, and of Sin : In the ſtate of Integrity, it was
to raiſe up an holy Seed, to encreaſe the number of the Worſhippers of God; but after they had finned, it was to
pagate a corrupt Kace, that Death which is the Conſequence of Sin, might not quite deſtroy Mankind in the ſpace of
one Generation only; the Creator not judging it fit to form a new Root of Innocent Men, and chooſing rather, that
the Earth ſhould be inhabited by a corrupt Generation, then remain a Deſert.
Mr. Barbeyrac's NOTES on Chap. 1. §. 3.
(1) And would not the Women alſo reje&t it on their part for many reaſons ! See Mr. Bayle in his News Letters
Mr. P. Maimbourg's Critical Hiſtory of Calviniſm, Let. 16. and Mr. Lock’s Eſſay upon the Human Underſtanding.
Lib. 2. Chap. 21. J. 34.
(«) Vid. Joh. Frid. Horn. de Civitate, 1. 1.c. 1. f. 2. (b) In beginning thus with Matrimony, Plato himſelf de
Legib. 1. 4. p. 835. Ed. Wech. is our Guide and Diretor. Let us hear his Managers of the Queſtion. LL. I.
4
Come, tell me by all tbat's Good, what Point ought firſt to fall under the Legiſlator's Care? will not Nature teach him to
Jettle, before all things, by good Laws the Affair of Generation and the Origin of Mankind? Clin. res no doubt. A. But
the Áfair of Generation takes its Rife from the Union and Community of Wedlock. C. It doth
ſo." A. Why then if Nuptial
Laws be in the firſt place eſtabliff'd, they cannot but have a good Influence on all the future Regulations of the State:
(c) My Lord Bacon, De Augment
. Scient. L. 7. c. 2. obſerves, that among& Animals the Pleaſure of Generation is
greater than that of Feeding.
Providit ille maximus mundi parens,
The wife Creator knew the World was frail,
Cum tam rapaces cerneret fati manus,
And order'd quick Succeſſion to repair
Ut damna ſemper fobole reparet nova.
Still with new Race the Breaches made by Fate.
Cælibem vitam probet
Let our barren Youth
Sterilis juventus; boc erit quicquid vides
Experience their miſtaken Chaftity,
Unius evi turba.
And all you ſee muſt prove a ſhort liv'd Crowd,
Senec. Hippol. v. 465, &c. A People of a ſingle Age.
(1) Add. Oppian. Cyneget. 1. 3. V.107, &c. Halieut.1.1.0.702, &c. ) Vid. Euripid. v. 1090,&c. Hippol.coron. v.616,866.



pro-
upon


Athen.
appear

Chap. I.
329
Of Matrimony.
Quin quod palam eft venale, ſi argentum eft, emas,
Dum ne per fundum ſeptum facias ſemitam.
Dum te abftineas nupta, vidua, virgine,
appear both tedious and deſpicable to a wiſe Man, Children equally anſwers the Obligation of Na-
unleſs attended with ſome delightful Charm (a): ture. Nor ſhould the Wife's Barrenneſs raiſe
We acknowledge that there is a great Difference any Scruple in the Husband as if he had been
berween Inſtinčt and Reaſon, and that in moſt wanting in his Dury to the World <d).
Cafes thoſe Powers take quite contrary Roads, IV. To carry on our Enquiries as clearly as
and that therefore the Licentiouſneſs of the for- may be, this in the firſt place we take to be moſt
mer is to be bridld, and controlld by the Autho. evident, that all thoſe impure Pleaſures are re-
rity of the latter, which to compaſs and effea pugnant to the Law of Nature, which aim-aç
is an Argument of a great and worthy Soul. no other End than the Satisfaction of Brutal
But altho Inſtinct hath not in it ſelf the Force of Luft. For the more warmly the Appetite
an Obligation, yet it many times happens, that we of Love ſtirs in human Breaſts, the more is Na-
may, by ſome ſuperior Engagement, be obliged to ture and Reaſon concern’d to provide, that the
undertake a Performance which bare Inſtinct Irregularities of its Motions do not prejudice
before inclined us to.
isubbes that comely Order, which is the very Life of so-
And hence we may infer the Falſeneſs of ciety; and that it be rather made to contribute
chat Pofition (b), which allerts that a Mother, to the Maintenance of Decency and Peace.
who kills her Child to avoid publick. Infamy, Whence appears the moſt deteſtable Sinfulneſs
and fo ftiles her Inſtinct of Natural Affe&ion of thoſe Pollutions which we lo juſtly call Un-
by another Inſtinct of Averſion to Shame, is not natural (1)
guilty of a Sin againſt the Law of Nature. For But the Sin of Uncleaninefs is not confin'd to
che Infant's Life was guarded by that Law, as thoſe groſs Degrees; many grievous Violations
well as by the Inſtinct of the Mother; and it of Chaftity there may be in what we are wont
was her Duty to have known, that her Diſgrace to term the ordinary way of Nature, and theſe
was an Evil which ought not to have been happen as often as we purſue our Pleaſure, with-
weigh'd againſt the Death of an Innocent, out regarding the only juſt End of it, the due
brought into the World by her free Conſent. Conſervation of our Race. It hath indeed been
If the Care of her Reputation was dearer to her aſſerted that many Nations of old thought it a
than the Pleaſure of being a Mother, ſhe ought part of natural Liberty, to proſecute an amo-
to have conſider'd this before ſhe chang’d her rous Entertainment, without being (e) tied by
pure and ſpotleſs Condition. But afterwards, it the Rules of Matrimonial Strict neſs. But 'tis
would be barbarous Injuſtice to conceal the Sin ſufficiently manifeft, that if all Men ſhould make
of the Parent by ſacrificing the Child.
a conſtant uſe of this irregular Freedom, human
When Marriage is once contracted, in as much Society could not long ſubfift, either in a a grace-
as the Gift of Fruitfulneſs is not conferr'd by ful or in a quiet Condition (3). And therefore,
human Power (c), a greater or a leſſer Number of according to Bp. Cumberland's moſt true Rule
Mr. Barbeyrat's NOTES on Chap. 1. §. 4.
(1) Pliny ſpeaks of the two forts of infamous Copulations, as well as of the Abortions which women cauſe by
Medicines, to hide their unchaft Lives, as Crimes unnatural, and more than beaſtly. In hominum genere diverticula vea
neris excogitata, omnia ſcelere nature, foeminis vero abortus. Quantum in hac parte multò nocentiores quam fere fumus!
Nat. Hift. Lib. 10. Chap. 63. ſee Phocylides, Æſchinus's Orat. -in Timarch. Dio Chryfoftom. Orat. de Pulchritud. Sad.des
Port, 9. apud Tho. Hyde, Martial Lib, I. Epig. sci. In Peru (as Garcilaso de la Vega reports in his Hiſtory of the
Incas. Lib. 3. Chap. 13.) the Name of Sodomy was ſo abominable, that if any one in the heat of a Quarrel reproached
another with liat Vice, he liv'd in diſgrace ali hiš Days: Yet it was ſo common among the Greeks, that Plato (de Le-
gibus, Lib. 7.) found it very hard to baniſh it out of his Commonwealth. The Turks alſo, who otherwiſe deteft it,
allow it with ſuch fair Boys as they have made their Priſoners, as if War licenſed them to do what they liſt with
them. Scipio Ammirat. Difc. Lib5. Chap: 5:
(3) The matter is clear in it felf, and will not bear Enlargement. Mr. Thomafius in his Furiſp. Divin. Lib. 3. Chap.
2. had granted, that by the Law of Nature only, it could not be prov'd that Beſtiality, Sodomy, wandring Lufts, Socio
in a word, all Uſe of the natural Parts only for Pleaſure, is unlawful abſolutely; and that to prove it a Crime, recourſe
muſt be had to the Laws of God which are purely. poſitive and general: but that able Lawyer afterwards re&tify'd
his Opinion by diſtinguiſhing what's juſt from what's honeſt, and ſo in the main agreed with our Author.
his Fundamenta Fur. Nat. Ego Gent. Lib. 3. Chap. 2. V. 6, 7. 21, &c.
di
:5910
(a) Add. Val. Max. I. 4. C. 2. . 1. Extern. Montaigne Elais, 1. 3. c. S. p. m. 137. Cartes de Pafion. Art. XC.
(6) Mr. Barbeyrac's Second Note upon this section. vid. Graſwinkel ad Grot. l. 1. c. 1. S. 11.
(c) Geneſ. XXX. I, 2. (d) Senec
. 1. 2. Contr. 13. Fruitfulneſs doth not come at our Pleaſure, nor at the time fix'd for
it in our Account : Nature is abſolutely at her own Diſpoſat ; and not tied up by - human Laws: Sometimes ſhe haftens and
outruns our Wiſhes, sometimes ſhe proceeds ſlowly, and diſappoints them with her Delay. Nature doth not work by Form, nor
is Chance confin'd to Rules and Preſcriptions. The Law may appoint a fet Day, but Nature takes no notice of the Limita-
(e) Thus Mr. Selden, De 7. N. & G. Set. Heb. L. 5. c. 4. thews from the Jewish Rabbies, that before the Mo-
Saical Law it was allowable for a Woman, not yet married nor betrothºd, to, beſtow herſelf, either gratis, or upon
Confideration of a Reward, without the Confinement of Cohabitation. Whereas the ſucceeding Inſtitution abſolutely
forbad circumciſed Perſons to uſe any Community of Bed, without entring on a married State : though if this were
practis'd between a circumciſed Perſon and a Heathen it was, in ſome Cafes, adjudg’d lawful. To which purpoſe they
cite, Deut. XXIII: 18. Levit. XIX. 29. Genes. XXXVIII. 14, &c. Add. Grot. ad Geneſ
. XX. 9. The Reaſon given by
Maimonides for this Prohibition is, that the Contentions and other Evils, uſually occaſion d by theſe irregular Liberties,
might be avoided, and that Good of certain Notes and Diſtinctions of Families procur’d. "Tis not neceſſary to appeal
to the Teſtimony of Heathen Writers, yet ſee Epi&t. Enchir. c. 47. Plaut. Curcul. A. 1. Sc. 1.0. 33, &c.
PH. Quin leno bic habitat. PAL. Nemo hic prohibet ner vetat, PH.' As I take it, here lives my worthy Procurer. PAL.
We have a fair Market; if you bring Money in your
Nemo ire quenquam publica prohibet via,
Pocket, you are free to buy any thing but prohibited
• Goods. No Body hinders you from travelling in the
High-way, ſo long as you don't break Hedges and In-
Juventute, co pueris liberis ; Ama quod lubet.
cloſures : and in the ſame manner ſo long as you re;
'frain from Wives, Widows, Virgins, Youth and Free
* men's Sons, you may e'en love as you lift,
That
2020
beart
See
tión.
<
Y y 2
328
Of Matrimony.
Book VI.

frequently
how little Difference would be left between
e ,
cannot be according to right Reaſon.
Nor was the Command of Natural Law, as Beaſts and Men, ſhould the Ordinances of Mars
to this point, fo quite worn out amongſt thoſe riage be univerſally cancelld and repeald ? In-
very Nations, which allows a publick Security deed the
Beaſts would then have the Advantage
to ſuch Practices, as that they really approv'd of of the Compariſon (e). They are
what they permitted, or abſolv'd the Actors obſerved to uſe ſome ſort of Conftancy, in their
from all Marks of Diſgrace. 'Tis a famous way of Love, and ſome Semblance of Conjugal
Aphoriſm of Ulpian, that a Whore is Vile, of Fidelity; And if, the
fair Miſtreſs raiſe a Quar-
Wicked, by her Profeſſion ; and the Romans thought rel in the Herd, 'tis only at certain Seaſons of
it a ſufficient Puniſhment to theſe looſe Ladies, the Year, when they feel a Warmth beyond their
make them ſhew their Licenſe in Publick bec ordinary Temper. But Men would be perpetual
fore the Magiſtrates, and thus to ſtand infamous Rivals; and Human Race would be confounded
on Record (b). The Principle then, on which and deſtroy'd by ſo wild a Method of its Prefera
thoſe States and People proceeded, who con- vation. Again, How miſerably weak and help-
niv'd at fuch youthful Diſorders, was, by the leſs would be the Condition of the breeding
means of theſe publick Traders in Lewdneſs, to Mothers? Or, if they weather'd out that
preſerve and guard the private Chaſtity of Vir- Danger, how great would be the Trouble, how
gins and of honeſt Matrons. In warmer Cli- high the Charges of Education, above their
mates, the Extravagance of wild Gallants (c) fingle Strength, or ſingle Fortune? It is plain,
might have injur'd the moſt ſacred Modeſty, the Men would not be over-forward to allilt
had it not been diverted by a Tribe of forward them under either of theſe Burthens ; not in
Nymphs, who were proud of their Addreſles, the Firſt, unleſs they knew themſelves to have
and met them in their irregular Deſigns. This, been the Cauſe of their Pain; not in the Second,
moralities, as no more than harmleſs Failings, likely, that they ſhould be able to obtain any
and pardonable Slips of Youth, did yet, at the Certainty in theſe Points, without the regular
fame time, affert in the higheſt Degree the juſt Reſtraints of Marriage. For what Ariftotle (f)
Honour of the Marriage-Bed, and eſteem'd reports of a Nation in Africa (g), where the
Faithfulneſs to it, as a Mark of ſingular Sanctity Wives are held in common, but the Children
and Goodneſs.
diſtinguiſh'd and appropriated, by the Likeneſs
V. A diligent Obſerver of Human Nature will of Features, is, at beſt, a very deceitful Me
eaſily diſcover how extravagantly Unreaſonable thod. Tho' indeed Theocritus (b) makes the
it is, that Mankind fhould be propagated by Tokens of an Adultreſs réxvx Irom boxota Targi,
Chance.Beds, without Confinement, and Rule Children unlike the Husband ; and Horace's Wiſh for
(1). Such a Life, they tell us, the People of the Roman Chaſtity is Laudentur fimili prole puerpera,
Attica led before the time of Cecrops, cohabiting Let the women deſerve Commendation, for
like a Herd of Beaſts, under no regard to De picturing the legal Father in the Child.
cency or Diſtinction. Whoever was made a Mo Laſtly, ſince without Matrimonial Preſcrip-
ther by ſo wide a Proviſion, preſented her Med- tions, we cannot well ſuppoſe any ſuch thing as
ly Off-ſpring to any one of the many Fathers Families, nor without Families any publick
who would be pleas'd to own and to accept it. States; and ſince therefore the whole Order and
When Cecrops, by the inſtitution of Matrimonial Harmony of Civil Life is founded on theſe Re.
Laws, had baniſh'd this barbarous Cuſtom, he gulations, it is moſt clear that were Men entirely
pafs’d, in Fables with the Common People, for releas’d from ſuch Bonds, they muſt live in an
a kind of an Hermaphrodite; either becauſe he unſociable, ſeparate Condition, little better than
taught them to know their Fathers, as well as Brutal. And therefore Horace ſhew'd his
their Mothers, or becauſe, by the conjugal Tie, Judgment in deriving the Calamities of his
he incorporated, as it were, two in one (d). Country:

And 'cis not


crue
Mr. Barbeyrac's NOT ÉS on Chap. 1. §. 5.
(1) Dionyf. Lib. 14. 5. 382.
(a) of the Law of Nature, c.5.5. 46. (6) Tacitus of Viſtilia, Ann. L. 2.6. 85. That Youth in Quintilian (Decl.
14) was arriv'd at the higheſt Pitch of Impudence, who forms a publick Accuſation againſt his Miſs, for giving him
a Potion that ſuppreſs’d his Love. Amongſt other of his Rants, this is one, I had juſt enough to furniſh my ſelf with a
moderate and ſparing Meaſure of unforbidden Foys, ſufficient for the Neceſſities of Life. Therefore inſtead of a Wife I was
content with a Miftreſs, and with a ſingle Miſtreſs, which is a moſt certain sign of Frugality and good Management in
Pleaſure. V. Cicer. pro Cælio. c. 17. &c. Epift
. Enchir, c. 47. Add Mufon. in Stobčus, šerm. Vi. Grot. in Math. V.
27. The Mahometans allow Fornication with their Maids; which the more vertuous Indians do, in all Shapes, and on
all Accounts, deteſt. Plutarch (de Virtut. Mulier.) reports
, that among the People of Chios, for the ſpace of feven
hundred Ycars together, there was no mention made of Adultery, or any other unchaft Praćtice ; though the Iſland
was famous for Beauties.
(d) Athenæus, 1. 13. c. J. (e) Quintil. Inft. Orat. 1. 9. c. 2. Tho’ Dido in Virgil complains of her late
unhappy. Match, yet her real Thoughts could not but break out, and the declares in the midit of the Lamentation,
that a Life abſolutely without Marriage, was the proper Condition of Beaſts, not of Men.


Non licuit thalami expertem fine crimine vitam
Degere more fere ?
Æneid. 4. 550.
(f) Pol. B. 2. C. 2. (g) Who perhaps are the ſame that Nicol. Damafeen, (de Mor. Gent.) calls Limyrnii, (5) Idyl.17:
Fæcunda

Chap. I.
329
Of Matrimony.
;JN
mand they ſaid extended to all the Poſterity of World who he, you have brought no San into the
Fecunda culpæ ſeculu nuptias
(and thoſe as Perfect by Nature as their parents)
Primum inquinavere, ew genus e domos :
had not yet fulfilld the Precept. But that in
caſe a Man's Son and Daughter were dead, and
Hoc fonte derivata clades
In patriam populumque fluxit. L. 3. Od. 6. V. had left Children of both Sexes, the Grandfather
[17. dc. was then free. That otherwiſe, upon Defect
Firſt thoſe Flagitious Times
of Iſſue of either Sex, Men were oblig'd to con-
(Pregnant with unknown Crimes,)
tract new Marriages, ſo long as their Age would
Conſpired to violate the Nuptial Bed;
give them leave. And therefore, that if a Man
From which polluted Head
had either taken a barren Wife, or one that was
Infectious Streams of crowding Sins began,
not yet old enough to be a Mother, he did not
And thro' the ſpurious Breed and guilty Nation anſwer the Law, unleſs he took another imme.
ran. diately capable of Bearing. Leo Mutinenſis (c)
obſerves farther, that altho' the bringing of a
My Ld Roſcommon. Son and Daughter into the World, feem'd to be
ſufficient for the full Obſervance of that Divine
To all which Confiderations we may add, that Command, yet a Man, of convenient Age and
without a Succeffor, in way of Marriage, no Man Strength was ſtill bound to ſeek a married Life,
could be born to an Eſtate or Inheritance; and for the avoiding Fornication (d). But whether
ſhould we take away theſe Advantages, Human this Injunction extended to Women as well as to
Life would be depriv'd of its chief Ornaments, if the Men; was a point not very well fettled and
not of its neceſſary Supports. 'Tis remarkable agreed amongſt them. It is moſt probable, that
what Juſtin (a) relates of the Parthenia amongſt their Judgment was to this purpoſe, that the
the Spartans ; they were born, as the Irony of Women were not indeed oblig'd to any deter-
their Name imports, from promiſcuous and ir- minate Time, becauſe it is not in their Power
regular Embraces, and being grown up to a to marry when they will; but that upon the first
Senſe of their Shame and of their Poverty, fearing fair Offer made them, they ftood engag'd to
to ſtarve at home thro' Defect of Paternal For- contribute their Aſſiſtance to the World. "Tis a
tunes, they were neceffitated to leave their Coun. Saying amongſt the ſame Doctors, that He who
try, and ramble abroad in a Body, to force a neglects the Precept about the Multiplication of Man-
Maintenance and a Seat (3).
kind, ought to be looked upon as a Murtherer (e ).
VI. In as much then as it appears evident, be Many other Nations have, in their publick
yond Diſpute, that in order to the keeping up a Inftitutions, declar'd themſelves to the ſame
comely and a regular Society amongſt Men, it Purpoſe (f). Plutarch recites a Law of Lycurgus,
is neceffary, that the Propagation of Human by which it was Enacted, that old Batchelors
Kind ſhould be fettled and limited by Matrimo- fhould be excluded from the folemn Sports and
nial Conſtitutions, we are in the next place to Dances of the Women and that in the Winter
enquire what Obligation particular Perſons, of Seaſon, they ſhould go naked up and down the
proper Years and Abilities, have, to engage in a Forum, linging a Song in Diſhonour of themſelves,
married State. And here we may firſt take a the Burthen of which was, that They owned
View how the Matter before us hath been order'd, themſelves to be thus juftly puniſh'd, for diſobeying the
by the Laws of People and Governments, and Ordinances of their country. And that, bendes all
then how far it ſeems to be determin’d by the this, they ſhould have none of thoſe honourable
bare Law of Nature. It was the Do&rine of the Marks of Reſpect and Duty paid them, which
ancient Jews, as Mr. Selden (b) informs us, that the younger Spartans were otherwiſe oblig'd to
by the Divine Precept of Encreaſe and Multiply, pay to the elder. Upon this laſt account Der-
all their Males were bound to Marry before they cylidas, a Famous, but unmarried General, de-
had compleated twenty Years ; unleſs upon ac- firing a younger Perſon, according to Cuſtom,
count of ſome Natural Defea, or becauſe they to reſign his Seat to him at a publick Solemnity,
had devoted themſelves to a Life of Chaſtity, and the Youth refus'd, with this ſmart Reaſon,
conſtant Study of the Law. And this Com.
might bereafter place to me (8)
Noah. They added, that he who buried his At Rome the Cenfors ſometimes impos’d a Mulet
Wife, without ſeeing a Son and a Daughter, (for that Reaſon call’d Uxorium) upon ſuch Men
22

4.
(a) L. 3. c. 4.
(3) Servius (ad 3. Æn. v. 551.) Ego Lactantius (de falf
. relig.c. 20.), vary fomewhat in the Relation of this story.
Hither may be referr'd moſt of the common Arguments urged againſt Plato's Community of Wives. Add. Stob. Serm.
LXV. Cabas, King of Perſia, having by a Publick Ordinance, commanded the promiſcuous Uſe of Wives and
Women, his Subjecis roſe in Rebellion and expell’a him the Kingdom. Procop. Hiſt. Perf. I. 1. c. 5. Agath. 1.
(b) De J. N. & G. Sec. Heb. lib. 5.6. 3. (c) De rit. Hebr. p. 4. C. 2. (d). Plato (de LL. I. 11.)
delivers the like Opinion, and adds, One of each Sex is the leaſt Number of Children that ought to paſs for fufficient.
(e) Yet the Se&t of the Efenes amongſt them utterly forſwore the ule of Women. Vid. Plin. N. H. I. v. c. 1.7. Solin.
38. (f) Varro, in Leg. Mænia apnd Nonium in Eunuchare. He that deſtroys bis Country, bis greater Parent, is moſt
inexcuſably guilty': And tbis every one does, ſo far as in him lies, who either diſables himſelf from being a Father, or deferr's
to ad as ſuch. See the Sayings of Mufonius, Hierocles and Antipater in Stob. Serm. LXV. Add. Arrian in Epięter. 1. 3;
6:7. 7. Pollux l. 3. cap. reci závesy, mentions Suits at Law carried on at Athens and Lacedæmon, againſt celibacy and
(g) Mì Mirus daug, c. Phocylides,
late Marriage.
To live unmarried is to die unmourn'd :
Add to your Race ; ſee Nature's Gift return’d.
batu
as
330
Of Matrimony.
Book VI.
but
It cannot which human Race
as had grown old in a ſingle Life (a). And good groſs all they had got in his Service (e). As
Metellus" ſpeaks home to the Buſineſs, in Gellius, mongſt the Fews, an Eunuch was not permitted
Could we, my Country-men, ſays he, do altogether to be a Judge in any Cafe ; upon the Opinion
without Wives, we need not give our ſelves theſe unne of their exceſſive Spitefulneſs and Cruelty. And,
ceſſary. Troubles. But ſince Nature hath To order'd in the Indies, 'tis a common Saying, that To cam
Matters, that Human Life can neither be very free and ſtrate Beaſts makes them more tame and humble;
eaſy with them, nor poſſibly Subſiſt without them, we the ſame Experiment tried on Men makes them more
ought rather to conſult our perpetual Safety, than our Inſolent and Intolerable (f) (g).
preſent Conveniency (b).
Some obſerve that Eunuchs were firſt made in
It follows from the ſame Principles (2), that it thoſe Countries, where Poligamy was permit.
is ſinful and unjuſt to emaſculate Perſons; at ted: the Number of Men being ſuperior, or at
leaſt, without their Conſent. Domitian forbad the leaſt equal to the Number of Women. Others
Performance of this Operation by an expreſs Law maintain that they owe their Original to the
(c). After which, thoſe who had ſo ridiculous a Right of War; when a Conqueror ſparing the
Deſign on themſelves, or on others, were Lives of thoſe he overcame, thought fit to put
oblig'd to ask leave of the Emperor, or the Pre- them into this unmanly Condition, that having
fident of the Province (3), Upon what ac- loſt the Springs of private Intereſts and Affecti
count the Eaſtern Monarchs were ſo fond of em- ons, they might, with the more Security be
ploying Eunuchs in their nearest Offices, may truſted in his Service (4).
be ſeen in Xenophon (d). To whoſe Reaſons, VII. If we conſider barely the force of Na-
we may add this one farther, that the Prince tural Law, we ſhall conclude, that in as much as
could, without Envy or Offence, make himſelf Matrimony is the great source (1), and the main
Heir to tlieſe Childleſs Favourites, and ſo in- Foundation of a Social Life (b), Men are ſo far
Plato de LL. 1. 4. p. 835. Every Man, who arrives at the Age of thirty Tears, ought to chuſe him out a Wife ; conſidering
with himſelf, that Mankind is by a kind of Natural Defore prompted to a Purſuit of Immortality; there being, no Perſon
for a Man to rob himſelf of Immortality through his own Default : yet whoever negle&ts the Affairs of Marriage and iſſue,
voluntarily throws away his Title to this unvaluable Benefit. Cicero (de Finib. &c. 1. 3...20.) obſerves that in order to
a Man's living as his Nature directs and enjoins, it is convenient, that he apply his Mind to the Choice of a Partner,
and the Defire of Pofterity
: Philip Baldæus (de Idolat. Ind. Gent. P. 2. 4, 3.) reports of the People of Benjin, that
they look on it as the balet Reproach to want Children : Juch a Perfon (they ſay) is not wortby to ſee a Man firf in a
Morning
Y990
Mr. Barbeyrai's NOTES on Chap. 1. S. 16.
(2) See Cod. Lib. viii. Tit. lviii. De infirmandis poenis Cælibatus, &c. Ego Sozomen. Hift. Ecclef. Lib. I Chap. IX. bei
(3) Vid. Caſaubon. ad Sueton. Ego Juſtin. Mart. Apol. 2. Add. Deuteron. XXIII. 1. Jofeph. Antiq. Jud.c. IV. 8. L. 9. t.
2.1. 27.8. 28. D. ad L. Aquil. Novell. 142, Egoib. Dion. Godofred. 1.4.S. 2. I. 5.D. ad Cornel. de Sicariis, Euſeb. Evan-
gel. Prep. l. 6. c. 8. In Syria and Ofroene many caſtrate themſelves like the Prieſts of Cybele. But King Abgarus command-
ed the Hands of thoſe, who had abuſed themſelves in this manner, to be cut off after which Order, the Infamous Practice
ceaſed in that country. Qujntil. Inftit
. Orat
. l. 5. c. 12., For my own part, when I contemplate Nature, there is no Man
who ſeems not more fair and comely to me than our Eunuchs; who are thus abuſed, purely to render them more beautiful.
Providence can never be ſo negligent of its Work, as to let Infirmity pass for Excellency: nor can that which would be Mon-
ftrous, if produced by Nature, be Handſome if procured by Art. Let this Cheat, this feigned Alteration of Sex, delight the
Votaries of Luft; yet Vice and Immorality will never be able to gain ſuch an Empire, as to make that Good, which they make
Coſtly and in Requeft. How Hermotius revenged himſelf on Panionius, who had thus diſmembred him, See Herodot. Uran.
(4) See Briſón. Select. Antiq. Jur. Civil. Lib. II. Chap. XXI. and Mr. Bynkerſhæck's Obſervat. Jur. Rom. Lib. IV.
Chap. V. p. 355.
Mr. Barbeyrac's NOTES on Chap. I. §. 7.
(1)Cicero fully owns it, and would have every wife Man to marry and have Children, as well as concern himſelf
with the Government of the State. Cum autem ad tuendos, confervandofque homines, hominem natum efle videmus, con-
fentaneum eft huic nature, ut ſapiens velit gerere, & adminiftrare Rempublicam, atque ut è natura vivat, uxorem adjungere,
Ego velle ex ea Liberos. de fin. bon. Ego mal. Lib. III. Chap. XX. See alſo plato de Legibus, Lib. IV. p. 325. Pythagoras
lays, that we ought to bring Children into the World, that we may leave after us new Adorers of God." "Oti da
TEXVO Tolkital, dã ya's entratantiv Tás Oegard'ories Bedr, Jambl. de Vit. Pythag. Chap. XVIII. Num. 83. fee alſo
Plato, ibid. Lib. VI. p. 773. as alſo Hierocles in Stobens. Serm. 65. & 73. to engage Men to marry; and Gataker on
Marcus Antoninus, Lib. VIII. I. 31.
(a) Valer. Max. 1. 2.6.94 Feftus in Uxorium, ko ibid. Joſ. Scal. Plutarch reports the ſame in his Life of Camillus.
(6) Poſidonius called the Myfans, who admitted no Women amongſt them, aliss, Men without Life. Strabo, 1.7.
p. 205. Of the Lex Papia Poppee, ſee Lipf. ad Tacit. 1. 3. Ann. c. 25. & Facob. Godofred. Which Law the Chriſtian
Emperors repealed probably by Advice of the Church -men. Vid. L. S. t. 58. C. de infirmand. pæn. cælibat, So Sozo-
men. I. 1 c.9. The Speech of Auguftus in Dion. Caſius, 1. 56. is remarkable on this Subje&t. Alian. (V.H.1.6. c. 6.)
recites a Law of the Spartans, enaĉting, that If a Man had encreas'd the Commonwealth with three Children, he
* ſhould be releas'd from keeping Watch ; with five, froin all publiek Duties and Charges. See likewiſe a long Paſlage
of Hierocles in Stob&us, in Serm. LXXIII. (c) Vid. Sueton. Domit. c. 7. Statius, IV. Sylv.
Qui fortem vetat interire Sexum.
Forbids the nobler Sex to feel Decay.
Add. Martial. l. 6. Ep. 2.
(d) Cyropæd. l. 1. p. 116. Ed. H. Steph.
(e) Heliodor. Æthiop. 1.8. in fin. The Eunuchs are the Ears and Eyes of the Perſian Courts; who having neither
Children nor Kinſmen to engage their Minds, depend entirely on him that employs them. Claudian. in Eutrop. 1. 1.
Eunuchus nulla pietate movetur, ,
An Eunuch feels no Tie
Nec generi natifue cavet.
Of Duty, Nature, or of Progeny.
(f) Heliodor. I. 9. Eunuchs have ever a great deal of Fealouſy in their Temper; and therefore they make the better Keep
ers of Women; being then employed to hinder others from Pleaſures, which they are themſelves incapable of enjoying.
(g) See Grotius upon Deuteron. XVI. 18. Sorais
(5) Plat. de Leg. Lib. 4 p. 835.
bound





Chap. I.
371
of Matrimony.
Orat. M. Hortali. Tacit. An. 1. 2. c. 37.
bound to enter upon it, as they ſtand engag’d to Men from the publick Councils of the State
all Duties neceffary for the attaining of that who had brought a Mother-in-law into their
End : yet Naruse lays this Injunction on us in Family
. The Reaſon he gave for fo fevere a
the manner of an Affirmative, Indefinite, Un- Decree was this, He efteim'd it impoſſible, that a
limited Command; ſo as nor to oblige neceffa - Man ſhould be able to adviſe well for the Interest of his
rily all Men, and at all times; but requiring Country, who bad been far from conſulting the
due Occaſion before it exacts our Performance. the good of bis own Children. If bis firft Marriage
Now in fixing the Occaſion of Matrimony, we prov'd ſucceſsful, be osight to rejt Jatisfied with that
are not to reſt in the fitneſs of Age and of Abi- Happineſs; if unfortunate, he could not be reckond in
lity, buc are likewiſe to ſuppoſe that the Match his Wits, for running on a ſecond Danger. But in-
offer'd us, is anſwerable to our Birth and Con- deed, a ſecond Marriage does not always prove
dition, and I that we have both
competent Wealth injurious to the Children of a former Bed. And
to maintain, and competent Prudence to govern as to the other part of the Objection, it may be
a Family (a). The Laws of the Iſlanders pro- eaſily, retorted. We have ſomething like it in
hibit Marriage to Perſons of extreme Poverty the old Greek Epigram,
(b). Sometimes too it happens, that the Con-
dition of the preſent Times, or the ſtrict Care *Ειπς άπαξ γήμας, πάλι δεύθερα λέκeg διώκet,
of a Function incumbent on us, will not give us
Neunzo's main dis Suto's apganéov.
leave to think of cbanging our State of Life
(C). And therefore it is not only unneceſſary, He that eſcapes one Wife, and ventures on,
but ſenſeleſs and ridiculous, that thoſe young Courts a new Ship-wrack, when but half undone.
Fools ſhould run a Marriage-hunting, who have
neither Means nor Wit to keep a family from To which Harry Stephens has given this Ingenicus
ftarving, and who, at the beſt, are only able to Anſwer,
ftock the Nation with a young Succeſſion of
Beggars. Thoſe, again, deſerve not only Ex-
"Οστις άπαξ γήμας πάλι δεύτερα λέκeg διώκει,
'Ουχ έτος μομφής άξιος και σεμιής.
cule, but Commendation, who decline a mar-
'En reein'n ji aspeóln, tengo deulépn 8' Melni isan,
ried State, that they may with more Eaſe and 'El Mejali, dizaliv enzida xj Totéger (f).
Opportunity improve and cultivate their Minds,
for the publick Service of the World. For ſince When a ſtout Widower tries the ſecond Hir,
the two great Uſes of Matrimony are the Pre 'Tis hard to blame bis Memory or Wit.
fervation of Race, and the avoiding thoſe fouler This may be Good, if one was bad before ;
Lufts which would ftain and diſgrace Human If Good, kind Heav'n may have as good in ſtore.
Society ſo long as neither of theſe Ends is
like to be prejudic'd, we ought not to blame a On the other hand, it ſometimes falls out,
Reſolution of ſingle Life in ſuch Perſons as pro- that beſides the general Ordinance of Nature,
bably foreſee, that they ſhall be able thus to do a Man may be obliged by a particular Reaſon to
more good to their Country, and to Mankind, enter on a married State. As for Inſtance,
chan in another Condition. If therefore a brave ſuppoſe a Royal Family ſhould be reduc'd to one
and generous Soul ſhould either be inſenſible of only Perſon, that Perſon is highly and peculiara
the idle Stings of Love, or able eaſily to maſter ly bound to ſeek an honeſt and lawful way of
and ſuppreſs them (d), and at the ſame time, encreaſing his Race, to hinder the Confufion
capable of benefiting the World otherwiſe than which muſt follow in the State, upon Defaule
by advancing its Stock and Breed ; we cannot, in of Succeſſion; and becauſe, as Euripides (g)
in reaſon, imagine, that Nature lays any Ob-ſays, Male Children are the Pillars of great Families.
ligation upon him to let the Charms of the fair And what we have thus ſettled, in regard to the
Sex hinder or divert his worthy Deſigns (e): Obligation of Matrimony, ſeems more agreeable
Eſpecially ſince there are ſo very few, who can to the Nature and Condition of Men, than the
pretend to this Gift of Chaſtity: ſo that the Rule which Biſhop Cumberland (b) lays down,
World is in no Danger of coming to an untime- and ſo largely inſiſts on, that Since the Earth is
ly End by their Reſolution. Much leſs ought now well ſtock’d, Men are left at their Liberty, to
thoſe Perſons to fear Reproach and Cenſure, chooſe either a married, or a ſingle Life.
who having ſerv'd Mankind by a former Mar VIII. From theſe Conſideracions, Judgment
riage, decline a ſecond Engagement for the ſake may be made, how far the Laws of particular
of their Children. Tho', on the other ſide (3), States have power to ſtreighten or to looſe the
the Law of Charondas, in Diodorus Siculus, l. 12. Natural Neceſſity of Marriage. And this, in
4 12. ſeems a little too hard, excluding all thoſe the firſt place, is evident beyond Diſpute, that
(3) We know that moſt of the Fathers of the Church have much out-run themſelves on the Subject of ſecond Mare
riages, of which I have given ſeveral Examples in my Preface. We may alſo conſult Mr. Hertius.
(a) Plin. l. 1. ep. 14. When I refleft on the common Cuſtom of the World, and the Laws of our State, which command
45, in Marriage, to have a conſiderable regard to Wealth and Fortune, I think it is very proper to mention, that the young
Lady's Father is' Maſter of a very fair Poſellion. And beſides this, the Hopes of a very fruitful Bed ought, in my judg-
ment, to go a great way in determining our Choice, and to be reckoned amongſt the chief Conditions of a Bride. Add.
(b) Arngrim. Jon Deſcrip. Iſand. c. 8.
(c) See 1 Corinth. VII. 26.
(d) sexsas tš wil icar, as
Philoftratus fpeaks, Apoll.r. 1.19.c.3. A lover of Abfinence from Love. (e) Add. Arrian in Epictet. l. 3. c. 22. P.
311, 312. Ed. Wolfii. Corn. Nep. Epamin. c. 10: (f ) Add Charron de la Sagelfe, l. 1. c. 42, S. 46. f. 2,3
(8) Iphigen, in Taur, v. 57
(%) De Leg, Nat, c, ố f 9.
:
PE
Bacon's Elay 8.
a Civil
332
Of Matrimony.
Book VI.
procu.
that no Woman un
.
a Civil Legiſlator may, by Vertue of his Sove- taken of it another way, ſo that it may not fuffer
reign Authority, conſtrain all his Subjects, who by theſe Reſtraints.
are capable by Nature, and have means of
In the ſame manner, it is lawful to forbid an
ring a ſufficient Maintenance, to engage in Ma- Ambaſſador, a General
, or a Soldier, when sem
trimony by ſuch a time. But to compel a Man on a Long or Dangerous Adventure, to carry his
to marry for the Propagation of a Race of Beg. Wife with him, in the Expedition (f).
gars, is equally Impolitick and Inhuman. Yet
Farther, fince the Nacural Obligation to Ma.
it looks more mild, in this caſe, to enforce an trimony is undeterminate, and admits of fome La.
Ordinance rather by Rewards to the Complyers, titude, the Civil Legilator may fairly fix the Age
and Subftra&tion of Benefits from the Reculants
, of the Perſons, who ſhall be thus join'd together;
than by direct and poſitive Puniſhments. Of this or affign a Period taken from ſome other Conti
fort was the famous Jus trium liberorum (a) a- deration. Thus in the Lex Papia Poppea amongit
mongſt the Romans; and that Spartan Law men the Romans it was order'd, (2) that
tioned by Ariſtotle (b) enacting, that He who der Fifty, ſhould marry a Man of Sixty, and no Man
had encreasd the State with three Children, ſhould be under Sixty, a Woman of Fifty: Which we find af.
free from the Trouble of keeping, Watch; and he that terwards repealed by Iuftinian (g). So Plato (6)
had one above that Number ſhould ſtand farther exemp- limits the time of a Man's being a Father, from
ted from all kinds of Burthens. After the ſame man- Thirty to Fifty-five years of Age, and of a Won
ner Strabo (c) informs us, that the Perſian Kings man's being a Mother, from Twenty to Forty (0).
propos’d a yearly Prize to thoſe who had been Amongſt lome People, it was unlawful for a
Fathers of moſt Children.
Man to Marry, before he had given ſome fignal
It is no leſs evident, that a Prince or State Proof of his Valour upon the Enemy. As Strabo
would act moſt ridiculouſly as well as moſt un tells us of the Carmanians, no one of whom was
juſtly, ſhould they in general forbid Matrimony permitted to have a Wife, till he had taken off
to all their Subjects: Or ſhould they allow this the Head of an Enemy, and preſented it to his
Priviledge to the Firſt born only of every Fami- Prince (k).
ly, and enjoin ſtrict Celibacy to all the reſt (d). And, what is more, though Perſons are Natu-
for it is impoſſible, that in fo great a number, rally free to Marry whom they pleaſe, yet a Go-
all ſhould be able to lead a Life of Severity and vernment, if it ſeem for the Intereſt of the State,
Continence. Nor would theſe Conftitutions be may in ſome Caſes reftrain and limit this Privi-
a more merciful way of retrenching the exube- lege : for inſtance, it may be order'd, that no
rant Flood of Subjects, than the cruel practice of Subject ſhall Marry a Foreigner, none of the
expofing Infants ſo common in ancient Greece, or Nobility a Plebeian. Arrian in his Hiſtory of
the other of procuring Abortion, which Ariſtotle ( e) the Indians reports, that the ſeveral Orders of the
himſelf adviſeth.
People were forbid Marrying one into the other.
But if it appear upon common Reaſon or Ex- A Husband-man could not give his Daughter to
perience, that any particular Office in a State an Artificer, nor an Artificer return the Compli-
can be more conveniently diſcharg’d by an Un- ment in the ſame manner (1).
married, than a Married Perſon, the Civil Laws Laſtly, it may be enacted by Civil Powers,
may fairly reſtrain ſuch an Employment to Men that Marriages ſhall not be contracted bue with
that are content live ſingly (1), and may oblige the intervening Conſent of Publick Authority :
them to quit the Honour, when they change eſpecially between Perſons of confiderable Fi-
their Condition. Provided ſtill, that the Num- gure and Importance in the State. The force of
ber of Men, privileg'd to forbear Matrimony by which, and of the like Laws may amount to this
the Gift of Continence, be ſufficient to fill theſe Effect, that all Matches contrary to ſuch Injua.
Offices with a conſtant Supply. For it muſt not ctions, ſhall either be declar'd Void, or ſhall be
be ſuppos'd that the deſign of ſuch an Ordinance, diveſted of certain Privileges, with which they
is either to licence Irregular Lufts, or to do would be otherwiſe attended. Thus, in Live
Violence to any Man's Natural Temper; in as (m), we find the Campanians petitioning,
• That
much as no Man is compellid to act in this Capa they might have the Liberty of marrying Ro-
city, who judgeth himſelf unfit for the Service.
man Dames, and that, if they had formerly
And it muſt be a farther Proviſo, that as to che been ſo happy, they might ftill keep them, un-
great Buſineſs of Pofterity, due Care hath been ' moleſted; and that the Children, already born

TS វ
Mr. Barbeyrac's Notes on Chap. 1. 98.
(1) Sec what Mr. Bayle ſays in his Anſwer to the Queſtions of a Provincial
. Tom. I. p. 542. Sc. about Gebardha
Truchſes, Arch-bilhop. of Cologne ; who, having married Agnes de Mansfield, and embraced the Lutheran Do&trine ;
would have kept his Electorate and Arch-bifhoprick.
(2) This Author doth not recite this Law exa&tly.
(a) Vid. J. Lipf. Excurſ. in Tacit. Ann. III. 25.
(6) Polit. 1. 2. c.7. Ælian. Var. Hij. Lib.
VI. c. 6.
(1) L. 15: P. 504 Ed. Caf. Herodot. L. 1. P. 36. Ed. H. Steph.
Dig. Lib. 23. t. 2. De ritu nupt. Leg. XIX.
(e) Polit. VII. c. 16.
D. de Offic. Proconf. Tacit. Ann. III. 33, 34. Pliny (!. 6. c. 22.) reports of the People of Taprobane,
Choice of a King, they do not only require, that the Perſon be Good and Merciful, but likewiſe that he be advan.
ced in Age, and without Children and if after his Admiffion, he happens to obtain Iflue, they depofc him from the
• Government, left the Kingdom ſhould become Hereditary, Solin. c. 66.
(8) Vid. Sueton, in Claud. c. 23.
@gs Cod. Lib. V. 6.4. de nuptiis, Leg. 27.
(b)
(1) Add. Ariftor. Polit. VII. c. 16. Ego Michael Piccart, ibid. Tacit. Germ. c. 20.
(k) Strab. I. 15. p. 509
Add. Abrah. Roger. de Bramin. p. 1. c. II.
(1) We find the ſame account in Hieron. Ofor. de RcbGett
Emanuel. I. 2. & Montagne, L. 3.6:5. p. 630, Ed. Pariſ, 1657, Fol.
(m) L. 38. c. 36.
Cto

(2) Vid.
(f) Vid. 1. 1. t. 16.
That, in their

. . V. p. 657 Ed. Wach.
2

Chap. I.
333
Of Alatrimony.
ters.
private Perſons, in the Nuptial Writings, the Wife ſhould be inveſted with the Command, and the Husband be obli-
to them, might be acknowlegd to, their juft país between a Man and Woman, to their
. and lawful Heirs. And, in Dionyſius Halicar- tual Aſiſtance in ſerving Poſterity. If this Covenant
nafers (a), we meet with a Decree of the ser be Simple, not join’d with any Agreement about
nate, upon the Commencement of a War with conſtant Cohabitation, but reſpecting barely the
the Latines, "Giving leave, on both ſides, to the Procreation of Children, it confers on neither
Latine Women, that had married Romans, and to Party any Sovereignty or Right over the other,
the Roman Women that had married Latines, ei- except they may challenge on either ſide, the
ther to carry with their Husbands, if they promiſed Alſiſtance, with regard to Poſterity. And,
chought fit, or elſe to return into their proper in this caſe, if it was expreſly intiinated in the
Country, leaving behind them their Male Iſſue, Covenant, that the Woman deſir'd Iflue properly
and carrying with them their unmarried Daugh for her ſelf and her own Management, the Chil-
The Effect of which was, that almoſt all dren ſhall be under the Government of the Mo-
the Roman Dames quieted their Husbands, and ther. Such a kind of ſimple and irregular Mar
return'd to the City: whereas all the other Wo. riage we may call Amazonian, if any Credit is to
men, two only excepted, prefer'd their Roman be given to the Stories of thoſe warlike Dames (el).
Husbands to their Latine Friends (6).
In the ſame manner, when Thaleſtris courted A-
IX. We are, in the next Place, to enquire by lexander the Great (é), and (as ſome tell us) the
what Heads of Conditions, with regard to the Queen of Sheba King Solomon, the Off-Spring
Law of Nature, the Matrimonial Covenant is could not fairly be reckon'd ſpurious, but, in
compleated ; and likewiſe what Right accrues their way, honeſt and legitimate. So Travellers
to both the perſons from ſuch an Union. And report of the Inhabitants of the Kingdom of Con-
here we ſuppoſe before-hand, that all Human go, that their main Strength conſiſts in Companies
Perſons, whether of one Sex or of the other, are of Women, who live by themſelves in certain
naturally equal in Right; and that no one can Territories aſſign'd them by the Prince; and at
claim the Sovereignty over another, unleſs it be ſet times chuſe ſome that they like beſt among
obtain'd by the free Act of one of the Parties. the Men, for the ſake of continuing their Breed:
For though, in Strength of Body and of Mind, If the Child prove a Boy, they ſend him back to
we are allow'd to have the Advantage of the Fair his proper Father, if a Girl, they keep her in their
Train, yet this Superiority is not, of it ſelf, fuffi- own Train, and educate her under the Severity
cient to juſtify us in ſetting up for their Maſters of Martial Diſcipline (f).
and Governors. Therefore whatever Right a Now though it muſt be confeſs'd, that this
Man holds over a Woman, in as much as ſhe is kind of Coupling is Barbarous at leaſt, if not
by Nature his Equal, he muſt acquire, either by Beaſtly; yet, amongſt the moſt Civiliz'd Na-
her Conſent, or by the Sword, in a juft War. tions, there are often to be found Inſtances of
Yer ſince it is moſt natural, that Marriages ſhould Marriages, in which either both parties are de-
be founded on mutual Good-will; the former clar'd Equal, or elſe the Husband is oblig'd to
way feems more proper for- the winning of fubmit to the Supreme Civil Authority of the
Wives, the other for the procuring of Slaves. Wife. As when a Queen, who enjoys a Crown
And therefore, in thoſe Countries where it is uw in her own Right, takes a Husband, and yet re-
ſual to marry their fair Captives, the Men lay tains her Superiority in the Government (8).
aſide the levere Authority of Maſters, for a more X. But we may take our leave of theſe irregu-
gentle and more agreeable Sway (c).
lar Matches, and proceed to examine thoſe
If then, we ſuppoſe all Mankind thus plac'd which appear more ſuitable to the Condition of
in a Condition of Natural Equality and Liberty, Human Nature (1). This then we take for
it may happen that a Woman as well as a Man, granted, that the Matrimonial Covenant ought
ſhall deſire Iſſue peculiarly for herſelf, over which to begin at the Man, not at the Woman, that the
ſhe may preſide and command. Now to accom. Courtſhip ſhould be us’d not on her ſide, but on
pliſh this End, it is neceſſary, that a Covenant his : this Method agreeing beſt with the Genius
Mr. Barbeyrac's NOTES on Chap. 1. $. 10.
(1) The Notion which the Ancient Lawyers had of Marriage, was taken partly from their Idea of Friendſhip, and
partly from the Relation, which they had conceived to be between a Father and his Daughter. See Mr. Noodt's c11-
rious Chapter in his Probab. Juris. Lib. II. Chap. IX.
(a) L. 6. init.
(6) Senec. de Benef. 1. 4. c. 35. I promiſed you my Daughter in Marriage, afterwards
you appeared to be a Foreigner ; under that Character I may not enter into fuch a Relation with you : The ſame Law which
lays this Prohibition on me, prote&ts me from the Cenſure.
(c) Add Deuteron. XXI. c. 10, &c.
(d) Vid. Arrian, de expedit. Alexand. l. 7: Procop. H. G. 1. 4. Palæphat. de fab. narr. I. 1. c. 33. Jormand. de Reb.
c. 8. Steph. Clerc. Quæft
. Acad. 2. Juftin. l. 2. c. 4. Diodorus Siculus, 1. 2. c. 45. reports, That the Sovereign
Dames oblig'd their Husbands to perform all the Servile Employments
, even thofe which, in other Places, belong
to the Maids'. He tells us the ſame of a People in Lybia, whom Hercules utterly deſtroyed, thinking it a
Reproach to Mankind, That a Nation pould be ſuffered to continue where the Government was in the weaker Sex, 1. 3. c. 53.
(e) Vid. Curtium, l. 6. c. 5.
(f) Vid. Edvard. Lopez de Regno Congo, 1. 2. c. 9.
Add
. Franc. Alvarez Deſcript. Æthiop. c. 133. Iſaac Voſ de Nilo, c. 19. Michael Glycas, Ann. pag. 11. tells of the
' That amongſt them the Women bear Rule over the Men, and are very communicative of themſelves,
any Danger of their Husband's Jealouſy: that they till the Ground, build the Houſes, and perform all the
1.13. ad ann. 1553 @ 1554. Thoſe of Mary Queen of Scots, ibid. I: 20.
ad ann. 1558. & 1.37. ab init. Add Mariari
.
Hift
. Hifpan. 1. 24. c. 5. Diodor. Sic. 1. 1. c. 27. mentions a Decree that paſſed among the égyptians in Honour of Ifis, im-
porting, that the Queen ſhould enjoy a greater Degree of Power and Dignity than the King; and that, amongſt
sed to obey. Add. Guicciardini
, 1. 6. p. 178. where he ſpeaks of the Governinent
of Caftile adminiftred with joint Au-
thority by Ferdinand and Iſabella.
Z z
and
Getić.
particularly
ago 55.
Agilaans.
without
334
Of Matrimony.
Book VI.

and Character of both Sexes. For tho' it be, in time of Day, in the Kingdoms of Pegu and Arran
many Places
, uſual for the Relations of the Wo: ca, at the Nuptial-feaft
, one of the Gueſts pre.
man to make the firſt Offer to the Man, yet this vents the Bridegrooın in his Addreſſes to the
is only to direct his Aim in the Attack, and to fix Bride; yet it is Capital
for him to be catch'd a
a particular Mark for his Addreſſes.
ſecond time, uſing the ſame Freedom (f).
This Principle being ſuppos’d, it is clear, that We may conclude farther, that nothing is more
the Man, when he makes his Suit, is deſirous of repugnant to that Decency and good Order
ſach Iſſue as fhall be true and genuine, not ſpu- which ought to be kept up in the World, than to
rious or adulterous. And therefore we ought to lead a wandering deſultory Life, without any
abhor, as contrary to Reaſon and Nature, the fix'd Abode, without any certain Seat of one's
licencious Practice of many Nations in this point. Fortunes and Concerns (g). The Education of
Travellers tells us, that the King of Calecut hath the common Off-ſpring is then certainly carried
two Wives, each of whom is conſtantly waited on with moſt Convenience, when the Parents
upon, with all Familiarity, by ten of the Idola- unite their Afiftances to fo good a Deſign; and
trous Prieſts ; and that the King eſteems it an their Minds are by theſe ſweet Pledges knit toge.
Honour to bé thus abusid ; though he hath the ther in a ſtronger Band of Affection (b). Beſides
,
Prudence, not to let his own Illegitimate Race a conſtant Cohabitation cannot but afford valt
ſucceed to the Crown, that Dignity being re- Delight and Satisfaction to an agreeable Couple :
ſerv'd for his Nephews (a). Indeed the Women and then the Husband is by this means much more
are in that Country, for the moſt part, held in ſecure of his Wife's Chaltity, than if they dwelt
common (b); whence it comes to paſs, that the at a diſtance. Such Matrimony, then, as is regu-
Fathers neglect the Care of their Children, and lar and perfect, comformable to Natural Realon
all Inheritances deſcend by the Mother's ſide (c). and to the Ends of Civil Life, beſides the Cove-
Buchanan (d), to the Diſcredit of his own Country, nant of Fidelity to the Bed (2), doth imply an
reports a Law of Evenus, or Ewen, the Third King Agreement on the Woman's ſide, that ſhe will
of Scotland, by which it was order'd, that the conſtantly dwell with the Man, and unite in the
firſt Night of a Nobleman's Marriage ſhould be ſtrict Society of a Family; as well for the Educa-
the King's Fee; and that the Nobleman, beſides tion of the Children, as for mutual Aid and Plea-
taking the ſame Liberty with the Commoners ſure (3) (i). The Cuſtom amongſt the Chineſe, for
Wives, ſhould again command their Company the Women to bind their Feet ſo very ſtreightly,
whenever they pleas’d. Till Milcolomb the I hird, that they cannot go without great pain, ſeems to
at the intreaty of his Queen Margarite, chang'd have been firſt introduc'd on this politick Ac-
this ſcandalous Indulgence, into a Fine of half a count, that being diſabled from gadding abroad,
Mark, to be paid by the Husband, in lieu of par. they might be oblig'd to fix with the greater Ap-
ting with his Bed the firſt Night (e). At this plication on the Care of Domeſtick Affairs (k).

( 2 ) See the Author's Abridgement of a Mans and Citizens Duty. Lib. 2. Chap. 2.
04.
(3) Mr. Montagne ſpeaks well to this purpoſe. A good Marriage is a pleaſant Condition of Life, full of Conſtancy,
Fidelity, and an infinite number of profitable and folid Duties, and mutual Obligations. Every woman who has a
true ſence of it, Optato quam junxit lumine tada, Cat. would not be Miſtreſs of her Husband ; if ſhe be entertained in
his Affections as his Wife, ſhe is much more honourably and ſurely received. When he ſhall be in a Paſſion, or Hur-
ry, as he muſt needs be; to whom would he rather wiſh ſome Diſgrace to befal her, his Wife, or his Miſtreſs ? If any
Misfortune happen to him ; to whom would he wiſh the greateſt? Theſe Queſtions have no doubt in a good Marriage
.
That we ſee ſo few good Ones, is a ſign of its great Price and Value. If it be well order'd and manag'd, there is no
finer piece of Society. "Tis to this Affociation, that this Saying is moſt fitly applied ; Homo Homini Deus, aut Lupus.
We muſt be endowed with the beſt Qualities to come into it. They that take this Affair in hand, and carry with them
Hatred and Contempt, do unjuſtly and unprofitably. Marriage hath on her part, both Profit, Juſtice, Honour, Conſtancy,
an equal and univerſal Pleaſure. Love is grounded on Pleaſure only; and is therefore more Dangerous, Lively, and Sharp.
Eſays, Lib. 111. Chap. II. Pag. 630. Egoc.
(a) vid. Aloyſ. Cadamuft. Navig. c. 75. we meet with the like Account in Ludov. Rom. Navig. V. c. 7;
i 6) Vid. Pet. de Valle, Itiner, P. 3. Ep. 7.
(c) The Practices of the Colchians, reported by Busbequius
,
in his third Epiſtle, are very filthy.
(d) Rer. Scotic. l. 4.
(e) Id. L. 7. Polydor. Virg. Hift.
Angl. I. 10. Čomp. Sueton. Caligul. c. 40. Er Boxhorn. Not.
(f) Ludovic. de Barthema, Itiner. p. 2. c. II.
Of the Inhabitants of Caniclu, ſee Paul Venet. I. 2. c. 38.
(g) Xenopkon had reaſon to call a Man's Home
or his Fire-fide, the ſweeteſt and the moſt ſacred Poſſeſſion that he enjoys. Cyropad. 1. 7. P: 116. Ed. H. Steph. Add. Ari
ſtot. Oecon. 1. I, c. 3.
( b ) Genef. XXIX. 32, Lyſias, Orat. 1. c. 2. So ſoon as ſhe bore me a Child, I
• admitted her into the full Truſt and Care of all my Affairs; judging this the firmeſt Band that could unite and
us to each other.
engage
impo
(k) Comp. Martin.
Conciliat animos conjugum partus fere.
Children are commonly the means of uniting and endearing
Senec. Herc. Oet. ver. 407.
a married Pair.
(i) Demofthen. in Near. The Reaſon of our taking Wives is to obtain Iſſue, and to ſee our Family Affairs under a
• faithful Directreſs. Add. Xenoph. Oeconom, ego Columell. de R. R. 1. 12. præfat.
Hift. Sin. I. 3. c. 28. Plutarch. Precept. Conjugal. * As Phyſical Humours and Qualities are ſaid to diffuſe themſelves
whole through the entire Maſs, fo-ought the Bodies, the Wealth, the Friends and Acquaintance of a married couple
to be througħly mixt and blended together. When the Roman Lawgiver forbade either of the Pair to give any thing
· hold all things Common between them. Quintil. Declam. 249. Ve know that Marriages are the things which hold
a Common-wealth together, which preſerve Race and Illuc, and confirm
and regulate the Deſcent of Patrimonies and
* Inheritances, and maintain Domeſtick Safety and Peace. Without this Security at Home, who would venture to travel
into forreign Parts, or ſo much as take a Journey to a diſtant Eftate ; to go on publick Embaſſies, or to engage in mi-
litary Expeditions ? See Montaigne's Eſſays, lib. 3.c.5. p. 630, 631, 632. Edit. Pariſ. fol.


From

Chap. I.
335
Of Matrimony.
princ. secuted
From what hath been obſerv'd before, it appears fter of thoſe good Qualities which might engage
why the Husband, and not the Wife, ought to his Wife's Affection, and ſecure her
Fidelity. A
have the Priviledge of chuſing their ſeat of Refi- Man chat lies under this unhappy Cenfure, and
dence; for it is he that admits her into his Fa-
cannot conveniently redreſs the wrong which he
mily, of which he himfelf is the Head and the ſuffers, would do well to conſider Euripider's wife
Director. Though no Man, commonly ſpeak. Aphoriſm, that
ing, will be ſo hard as not to ask his Wife's Con-
fent in this point; elpecially if ſhe brought him 'Εν σοφοίσι τα δι' εςι θνητών
á confiderable Fortune.
Λανθάνειν τα μη καλά. .
It is farther evident, that without a Breach of
the Matrimonial Contract, the Wife cannot a. It is a great part of Human Wiſdom, to cover thoſe
gainſt the Husband's Conſent, ramble abroad, things, with Secrecy, which look ill if they come
lodge a-part, or deny him reaſonable Favours, abroad (f ).
únleſs upon extraordinary Occaſion.
Upon the ſame Principles is founded that Pre Charron's (g) Remark will not, in all Caſes,
fumption in Civil Law, that Children born in hold ſtrictly good, that 'tis a vulgar Error and
Lawful Wedlock, are really the Husband's, unleſs Folly to upbraid a Man with his Wife's Difho-
there appear ſome very ſtrong Argument to the neſty ; aš if this were to make him ſuffer for the
contrary, ſufficient to overthrow the favour Crime of another, which 'cis not in his power to
of the Preſumption (m). The Engliſh Laws are prevent.
particularly complaiſant to the fair Sex, obliging (7) It may not be amiſs, on this Subject to throw
the Husband to own a Child, born after he hath in an occaſional Obſervation, that thoſe Marks of
been abſent many Years, provided he hath been Reproach, which the common People fix on the
all the while within the Bounds of the Island Heads of ſuch unfortunate Husbands, are no
(b). And they ground this Indulgence on two new Invention, nor confin'd to the Cuſtoms of
Reaſons, firſt, Becauſe the Wife liath folemnly our Weſtern World: For we read that the Em-
given her Faith, that ſhe will be true, which the peror Andronicus caus’d the largeſt of the Stag's
is preſum'd not to have broken; and, ſecondly, Horns, he met with, to be faſtned on the Gate
becauſe it is in the Husband's power to ſecure his of the Market-place, on Pretence to ſhew the
Wife's Honefty; and what Right or Power any Valtneſs of the Beasts he had kill'd in Hunting,
Perſon enjoys, he is always ſuppos’d duly to but really as a filent Rebuke to the Immorality of
exerciſe (c).
the City, and the Lightneſs of the Dames (b).
And hence, the Opinion of the Vulgar is not But as She cannot properly be calld an Adultereſs
altogether unreaſonable, when they fancy, that who ſuffers in her Honour bý Compulſion and
the Wife’s diſhoneſty caſts fome kind of ignomi- Force (i), ſo to keep a Wife who hath been thus
nious Blemiſh on the Husband (5): as if, either injur'd doth not, in it ſelf, appear any way foul
out of Folly or Meanneſs of Spirit, he had neg- or reproachful (k).
le&ed to uſe his Authority (d). Domitian ftruck XI. We are farther to examine, whether by
a Gentleman's Name out of the Liſt of Judges, the meer Law of Nature, from the Principal
for receiving his Wife again, after he had put her
her Contract of true and perfect Matrimony, there
away upon an Accuſation of Adultery (e). Some ariſeth any proper Sovereignty or Dominion of
give another reaſon why a Mark of Shame ſhould the Husband over the Wife.
Indeed in holy
be fix'd on this Misfortune ; and that is, becauſe Scripture it is exprefly ſaid, that the Will or De-
it looks diſgraceful in a Husband not to be Ma. fire of the Wife ſhall be to ber Husband, and that
(5) It was one of Pythagoras's Maxims, that care ſhould be taken, that women ſhould not break their Nuptial Fi-
delity either thro' the Negligence or ill behaviour of their Husbands ; "Αι τε γυναίκες μη νοθάσωσι το γόνΘ- ολιγωρία και
uaxią tãV OUNOLwórcy. Jambl. de vitâ Pythag. Chap. IX. Numb. 48.
(7) If any one deſires to ſee more of this trivial Uſage, of which the Gravity of our Author would not permit
him to ſay more, let him conſult Salmafius's Notes upon Tertullian de Pallio.
Juvenilis ardor impetu primo furit ;
· The Fire of Youth in Love's diſhoneſt Joys,
7
Languefcit idem facile, nec durat diu
* At the firſt Blaze is Fury, Flaſh and Noiſe ;
In Venere turpi, ſeu levis flamma vapor :
• But ſpends in Smoak, and what it gave deſtroys. S
Amer perennis Conjugis cafta manet.
( Whilft the chaft Paſſion of a lawful Dame
Senec. Oétav. v. 186, Ego. * Burns with a gentle, but an endleſs Flame.
(a) See above, lib. 4. C. JI.S. 10. & vid. Gell. I. 3., . 16. Plin. Hift. Nat. 1. 7. c. 5. Where he treats of the time
going with 'Child, which muſt be examin’d, before the Child brought forth is delivered to the Husband.
(b) See Chamberl. Preſent State of England, p. I. c. 16.
(c) 'Tis a ſaying of Gyges in Herodot. (Clio p. 3:
Ed. H. Steph.) Every one ought to keep an Eye on his own Concerns. Plato obſerves (in Alcibiad. I. p. 441. Ed. Wech)
That the Wives of the Spartan Kings are publickly watched and overſeen by the Ephori, leaſt any Heir ſhould be
obtruded upon the Crown, who is not truly of the Race of Hercules
. Whereas in Perfia the King ſeems, in Ex-
cellency of Nature, fo much above his Subje&s, that there is no Danger of counterfeiting his Strain : And therefore
his Wives are under no Guard, but that of their own Reputation,
(d) Add. Carteſ, Paff. Art. 169.
(2) Sueton. Dom. c. 8. So by the Attic Law; A Man was reckon'd baſe and ſcandalous who kept his Wife, after he
had diſcover'd her Diſhoneſty, Demofthen, in Nar. Add. Dig. lib. 48. t. 5. ad Leg. Jul. de Adulter
. leg. 2. f. 6. & leg. 29.
'ſelf than by pretending that the fixty Days, which the Law allow'd him for conſidering time, were not yet expired.
(f) Eurip. Hippol. Corn. Add. Plutarch. de Anim. Tranquil. p. 467. E. F.
(8) L. 1. c. 39. n. 11.
(h) Nicet. Acominat. de Imper. Andronic. I. 2.
(i) Vid. Gartian Cav. 32. Q4, 5. C. 2, c. (k) Yet
we are to commend the Proceeding of David in 2 Samuel XX. 3.
of
2 2
Hc

336
Of Matrimony.
Book VI.
He ſhall rule over her (a). But this being
enjoin’d ſhe call'd him Lord (c). The proper or peculiar
the Woman by way of Puniſhment, ſeems to End of Marriage ſeems likewiſe attainable, with.
bear the Face of a Poſitive Inſtitution. To diſcover, out any Inconvenience, although neither of the
then, how the Law purely natural directs in this parties ſhould bear any ſuch abſolute Authority
Point, we may firſt obſerve, that to be bound to over the other, as muſt include the Power of
follow the Will of another in ſome certain Bu• Life and Death, and of the moſt rigorous Re-
fineſs, is not altogether the ſame thing as to be ſtraints; but the Ties of Friendſhip and the 06
ſubje&ted to his Dominion ; becauſe the former ligation of the free Contract, may very well
may reſult from a fimple Pact
. For there are ſerve to hold Man and Woman together. Yet
many Pacts, eſpecially of this kind, I give you this Contract, (the Husband having the better
this to do ſuch, or ſuch a thing ; I do this, provided Part in the Terms and Conditions, and the ad
you will do ſo, or so for me; in which it was at ditional Advantage of his Sex,) ſeems to be
firſt in the Power of either Party to chufe, form'd in the manner of thoſe Leagues and Co.
whether he would enter into the Agreement or venants which we call Unequal; ſo that the Wife
not. Yet the Covenant being once conſented to is bound to Obedience, and the Husband rather to
on both ſides, one Party muſt follow the Will of Protection.
Not that it is repugnant to the
the other, (as to this particular Buſineſs;) and Law of Nature, for a Wife to be ſubjected to
not vice verſa. Whence it appears, that how far her Husband in the way of ſtrict Political Govern-
ſoever the Wife may be obliged to ſubmit to the ment. For the Fear of fupreme Authority, and
Husband's Will in the Affairs proper to Matri- the Endearments of Conjugal Affection are really
mony, yet ir doth not preſently follow, that
no more deſtructive of each other, than the
muſt needs have the ſovereign Command over Sovereignty of the Prince extinguiſheth the
her, in other Adions and Concerns.
Love of the Subject. And this full Political Au-
Ágain, the End of Marriage is not like that thority, as it may be acquired by any Husband,
of Commonwealths, the Defence and Security by means of a new Covenant annex'd to the Ma.
of Men ; (for how weak an Union, as to any trimonial Agreement, ſo we find it in ſome Na-
mutual Safety, is that which conſiſts only of tions, allow'd to all Husbands in general, by
two Perſons) but is directed wholly to the Virtue of a publick Cuſtom or Conſtitucion.
Propagation of Human Race. Therefore as a Cæſar (d) tells of the Ancient Gauls, that they
Commonwealth cannot be underſtood without a had the Power of Life and Death, as well over
fovereign Ruler, ſo it ſhould ſeem that Marriage, their Wives as over their Children. Amongſt
without any Superiority of Government, might the Germans, the Husbands were impower'd to
ſubſiſt well enough under the common Force of execute the Puniſhment of Adultery; not as an
Contracts, aſſiſted with the Engagements of Indulgence to their Rage and Refenement, buc
Friendſhip and the Charms of Love. It muſt as an Effect of their jult Power and Command
be confeſs'd, that a ſeparate Family hath ſome- (e). How the Caſe ſtood at Rome, Gellius thus
what in it much like a State or Community, which informs us from a Speech of old Cato's. A Husband
not regularly allowing of more than one Head, (except after
, a Divorce,) is a Judge, a Cenſor, and a
the Wife when ſhe is admitted into it, ought, one kind of Sovereign Prince over his Wife: if she acts any
would think, to yield a full Submiſſion to the thing perverſly, or ſcandalcuſly, he ſets a Mul&t upon
Lord and Director of the Society. But it may ber; if she drink Wine to Exceſs, if the commit any
be urg'd, in Anſwer to this Objection, that a Diſhoneſty with another Man, be condemns her to a ſui-
Family, if encreas’d_with a numerous Train of table Puniſhment. Again, ſays that grave Senator,
Servants, hath two Ends and Deſigns, one com- should you apprehend your Wife in the A&t of Adultery,
mon, the other proper. The common End con- you might kill her without farther Proceſs or Trial; on
fifts in mutual Defence and Security, ariſing the contrary, ſhould she find you guilty of the same
from the united Strength of ſo many Perſons. Crime, me bath no Right to touch you with a Finger.
In this reſpect, tho' ſome fupreme Sway be ne- Tacitus hath recorded a later Inſtance of this an-
ceffary, yet, in as much as the Wife is but little cient Cuſtom (f). He reports that Pomponie
concern'd in that Affair, the Unity of the Fa- Græcina (Wife to the famous Plautius, who triumph'd
mily may be very well kept up, altho’ ſhe be for his Victories in Britain,) being accus'd as a
join'd to her Husband by no ſeverer Bands than
vourer of foreign Superſtition, was remitted to the
thoſe of Affe&tion and the Matrimonial Covenant. Judgment of ber Husband: And he, according to the
Thus we find the Patriarch Abraham exerciſing a öld Inſtitution, calling an Aſſembly of her Relations,
Sovereignty over his Domeſticks, and yet treat- took ſupreme Cognizance of her Life and Henour. We
ing Sarah with the kind Equality of a Sifter (b) muſt not omit the moſt remarkable Pra&ice of the
(1). Tho', at the fame time, her dutiful Be- Saccæ, a People of Scythia, among whom, as A-
haviour towards him
is highly commended in the lian tells us the Story (g): When a Young Man
holy Scriptures; and it is ſaid particularly, that * ſeeks him out a Wife, he is oblig'd, in the firſt
Fa-
Mr. Barbeyrac's NOTES on Chap. 1. I. II.
1 ) Martial, L. 8. Ep. 12. v. 3, 4.
Inferior matrona ſuo fit, Priſce, masit),
Should Manly Empire not controul the Fair,
Non aliter fuerint fæmina virque pares.
Husband and Wite were an unequal Pair.
Plin. Paneg. c. 83. Many worthy Men bave been hindred from being Chief in the State, by their not being Chief in their
own Families.
(c) 1 Pet. III. 6.
(a) Genef. III. 16. Ephef. V. 22, &c.
. (6) See Genef. XVI. 2, 5, 6. XXI. 10, 11, 12.
(d) De B. G. I. 6. c. 19.
(e) Tacit. Germ. c. 19.
What he ſays of their Power
over their Servants ſee afterwards, cap. 3. 5. 4.
(f) Ann. XIII. 32. Add. Euripid. Medea, v. 130, &c. Varen.
Deſcrip. Japon, lib. 13. Lex Wiſigothorum, L. 48 t. 4. C. 3.
(8) V. H. l. 12. c. 38.
6
2
place

Chap. I.
337
Of Matrimony.
i
place, to engage her in ſingle Combat ; and no Sovereignty, puhlick or private, of one Perſon over
if he gets the better, he leads off his Caprive in another, but that which ariſeth from the expreſs Apa
• Triumph, and ever after acts the Sovereign o. poiniment and the moſt ſolemn Intervention of Almighty
ver her : if the Victory fall on her ſide, ſhe is GOD. Now as to this poſition, we cannot buc
the Queen, and he the Slave. And this Con- obſerve, that when Enquiries are thus made into
tention is not deſign'd to endanger the Lives of the Origine and Fountain of Dominion, what
the Combitants, but only to determine the we ſearch for is the neareſt, the immediate and the
• Maſtery between them.
Jecond Cauſe; the firſt and univerſal Cauſe of all
What Power the Husband hath over the Goods things being ever preſupposºd. And therefore,
of the Wife, is likewiſe to be adjuſted, either by though it appear moſt evidently, that God hath
the Contract and Agreement of the Parties, or commanded ſuch an Order to be introduc'd a.
by the Deciſion of the Civil Laws. Theſe En- mong Men, yet the main Queſtion will be ſtill
gagements are to be ſtrictly obey'd in the ſeveral behind, what Contracts are required to put Men
Points which they have ſettled, as for Inſtance, in a way of conforming to the divine Precept.
whether the Woman ſhall bring a Portion ac For he muſt have little Knowledge of Letters,
Marriage; whether or no the Couple ſhall join who can imagine, that when we ſay God is the
Purſes, and mix their Effeats in the Common Author of ſuch or ſuch a Moral Inſtitution, we
Stock, whether the Husband ſhall have an abfo mean that he produceth it, as he did at firſt the
lute, or a limited Diſpoſal of his Wife's Fortune Heavens and the Earth, without the Interven-
and the like Queſtions.
tion of any thing formerly created. That God
Amongſt the Japoneſe the Women marry with. exprefly order’d the making of the Jewiſh Taber-
out Portions : indeed, the Maids Parents, if of nacle, is no manner of Reaſon why we ſhould
che wealthy Sort, ſend a Sum of Mony as a for not ſay, that the Workmen were the next and
mal Preſent to the Bridegroom on his Wedding, immediate Cauſe of the Fabrick. Thus although
day, but he preſently returns it in the ſame cere it be enjoin'd by the Divine Oracle, that the Wo-
monious manner; the reaſon they alledge for man ſhall be in Subjection to the Man, yet to
their Cuſtom is, that they may not give the Wo. make him actually and immediately her Sove-
men an occaſion of Inſolence and Pride. And reign, it is neceſſary, that ſhe promiſe Obedi.
there they have this mortifying Proverb, That a ence to him by her own free Covenant. To ſay
Woman, so long as the lives, bath not ſo much as a the contrary would not be leſs ridiculous, than to
Houſe that ſhe can call her own: Before Marriage ſhe pretend, when God bids us have Dominion over the
is a Dependant on her father's Family, in Mar- Beaſts of the Earth; there is no need of our uſing a-
riage on her Husband's, in Widow-hood on that nyoutward means to obtain it, as by Hunting.&c.
of her Children ( a ). It was a Cuſtom with The Argument this Author afterwards makes
the old Thracians, that the faireſt of their Maids uſe of is certainly moſt trifling and childiſh.
ſhould be expos’d to publick Sale, and be given The Wife, ſays he hath no ſuch thing as Conjugal
in Marriage to the higheſt Bidder: on the other Sovereignty, and therefore she can confer no such thing
fide, that thoſe whom Naturé had been lefs kind on the Husband. As if, by the Agreement of le-
to, ſhould expend their Fortunes to buy them- veral Perſons, a new Moral Quality could not be
ſelves Husbands (b). The Allyrians likewiſe produc'd, which did not actually exiſt before (:).
diſpos'd of their Virgins in the way of Sale ( c ).
To conſtitute a Dominion, it is by no means ne-
Where the Civil Laws have not defined theſe ceſſary, that it muſt be firſt really poſſeſs’d by
Matters, or where the Parties live in a State of one Partý, and then tranſlated on another; (as
Natural Liberty, the Husband and Wife may Phyſical Subſtances cannot be given away, unleſs
ſettle
any ſuch Point as they pleaſe, by particular they had before a full and formal Being :) but this
Contract.
Superiority then ariſeth, when any Perſon diveſts
XII. For the further Illuſtration of this Sub- himſelf of that Pover of refifting another, which
jea, it will not be amiſs to examine the Doctrine his Natural Liberty gives him, and engageth his
laid down by Hornius in his firſt Book de Civitate Faith, that he will ſubmit, in all things, to the
(4). Firſt of all, he rejects the Opinion of thoſe Will of him whom he thus chuſeth for his Gover-
who affert, that the Husband hach, by Nature, nour.
a Sovereignty over the Wife. And thus far we Farther, although, in Holy Scripture, the
approve his Cenſure, if the . Perſons, againſt Subjection of Eve be ſaid to have been enjoin'd her
whom he diſputes, did maintain the Husband's as a Puniſhment for feducing her Husband; yet
to be the free Gift of bare Nature, it doth not hence appear, that the Husband's so-
the Wife's voluntary Submiſſion. For
this indeed and emmani and Woman. For, fince a necellity
of
without any intervening Contra&t, or without vereignty, after the Fall, hath not for its neareſt
be-
Mankind; and a fitneſs or Ability to govern Obedience doth not always include an unhappi-
cannot, of it felf, confer a Right of Government. neſs of Condition, (as the moſt bleſſed State of
Hence he proceeds to affirm, That there can be the Holy Angels is not impair’d by their yielding
Sovereignty
f. 20.
Mr. Barbeyrac's NOTES on Chap. 1. 12.
(1) See what the Author ſays, 1.7. c. 3. Í 4. following.
a. Varen. Deſcrip. Fapon. c12.
b. Exp. .
edit wells, Oxom ne you baten 2 Daughter, I'll fairly" buy her after the Cuſtom of Thrace. Add. Heraclid. de Polit
.
(c) Ælian. V. H. 1.4.c. 1. Herodot, Clio. Add what the Roman Laws deliver concerning
the Prohibition of Donations between Husband and Wife. Lib. 24. 1. 1. D. de donat. inter Vir. & Uxor. (d) Cap. 1.
che
338
Of Matrimony.
Book VI.

the ſtricteſt Service to God,) che Puniſhment at vous Enormicies ought to be brought under Hu.
tending the Woman's Inferiority ſeems to be this, man Cognizance, we will only ask, who thali
chat ſhe bears the Yoak unwillingly, with in; puniſh a Sovereign Prince, or who the Father of
ward Grudgings at her Station, and a Natural Family, living ſeparate from all Civil Govern
Deſire of Command. And therefore it is no ment? We confeſs, that if the Wife prove guilty
Contradi&tion to ſay, that the Superiority of the of Intolerable Wickedneſs, ſhe may (in this Na.
Husband naturally ſprings from the Conſent of tural State,) be expelld the Houſe as an Enemy,
the Wife; and that GOD Almighty in way of and may be killd by the Right of War. And we
Puniſhment to the Woman, hath made her Sub- have already granted ( a ), that even this moſt
jection troubleſome and uneaſy.
ſtrict Political Power, is not repugnant to the
The following Diſtinction looks but like an Nature of Marriage, though we are very
impertinent Niceneſs, whatever Will, or whatever far from allowing it to be effentially nece-
Voluntary A&t we can now conceive in the Woman, ſfary.
belongs purely to the A&t of contracting Marriage; and XIV. We are oblig'd here to explain that com.
conſequently is to be underſtood of that Conſent and Ap- mon Maxim of the Lawyers, that (1) Conſenting
probation by which ſhe acquieſcet b in the future Govern- and not Bedding, makes a Marriage. Which
ment of ſuch a particular Husband. This is no more will bear theſe two Senſes, that a Couple, whát.
than to ſay, thać the Husband's Sovereignty is not ever Freedom or Familiarity they may uſe (2),
produc'd by the Conſent of the Wife, but being cannot be Husband and Wife, unleſs they have
before eſtabliſh'd by GOD's Command, the Wife paſs’d their mutual Conſerit to live in Wed-
voluntary enters under it. As a Traveller doth lock ( b ): or, that ſo ſoon as both parties are
not build his Inn, but freely makes uſe of ic when come to an Agreement, the Matrimonial Con-
hë findeth it built to his hands.
tract ought to be efteem'd perfect, even before
It is ſufficient in the whole to obſerve, that the Ceremony of the Bed. Our Judgment on
the Dominion of one Perſon over another, conſi- this Point is this, that as it is requifite to the
der'd as a Moral Entity, doth not exiſt without the full transferring of Propriety, that the Thing be
Concurrence of ſome human Act, and cannot be plac'd under the power of Another, in ſuch
underſtood without Subjection and Obedience: manner, that he may diſpoſe of it at his pleaſure;
And that the Woman, for this reaſon, lies under ſo to make a Wife it ſeems neceſſary, that the
no Obligation to obey, before ſhe hath by her Woman deliver her ſelf as it were into the Por-
own Conſent, ſubmitted to the Rule and Autho- ſeſſion of the Man, for the common Ends of
rity of an Husband. And though that ſhe ſhould Matrimony : but it is by no means eſſential to
thus ſubmit herſelf, be indeed agreeable to this Agreement, that the Bed begin it. It is ſaid
the Divine Will, yet this doth not hinder, but Rebecca became iſaac's Wife after he had
brought
that her own Covenant and her Subjection con- her into his Mother Sarah's Tent (c). And I
ſequent upon it, are the immediate and neareft queſtion whether we ought to call it Adultery,
Cauſe productive of the Husband's Power.
when a Woman betroth'd to a Man in his
XIII. Nor can we grant what the ſame Author Abſence, but not led home to his Houſe, nor given
maintains, that the Husband, beſides the Come into his Pollefron, is Bedded by another Perſon:
mand of the Family, and of Conjugal Affairs, altho we ſuppoſe, that the former Engagement,
is inveſted with an abſolute Power of Life and as made by Proxy, had, in the Eye of the Law,
Death, in which Right the Summ of bis Authority the full Force of conſummated Marriage. On
confifts. For though this Power be meant as it is the other ſide, it would be abſurd to ſay, that
unreftrain’d by Civil Conſtitutions, and as it a- Tobias's Wife had not a Title to that Name the
mounts not to a licentious Excuſe of Murther (3) three firſt Nights (d). Or that our Wo-
and Parricide, but to a lawful Authority of inflict- men are not Wives when the Prieſt hath perform'd
ing condign Puniſhment on Capital Crimes: the folemn Office, 'till the Evening-Diverſions
yet, that every Sovereignty as it is ſeated in a proper of the Bride-Chamber.
Perſon, not precariouſly obtain'd, nor circumſcribed by
According to the Opinion of the Jews (e),
a Superivur, doth import the Power of Life and Death, Confummation, as well as Conſent, was, before
is an Affertion that we ſhould not be inclind to the Law, required to the compleating of Macri-
afſent to, without very good Proof. Certainly mony. Yet, by their Law, Conſent alone ren-
the End of Matrimony requires no ſuch abſolute der'd a Marriage Valid (f ). Grotius obſerves (g),
Authority. And if it be objected, that all grie. that no Proceeding was made in the Nuptial Af-
Mr. Barbeyrac's NOTES on Chap. 1. S. 14.
(1) So the Digeſts affirm. Nuptias enim non concubitus, ſed conſenſus facit. 1. 35. t. I. De conditionibus &o demon-
ftrat. Leg: 15. de Regul. Juris. Leg. 30.
(2) Lib. 35. t. 1. 1. 15. D. de Condit. & Demonſtrat. & de Regul. Jur. 1. 30. Or, as Quintilian, Decl. 247. expref,
feth it, Familiarities and Meetings without proper Rites can never make a Wife; vid. Can. 5. caul 27. quæft
, 2. di Cod.
Lib. s. t. 5.1. 8. de inceft. & inutil. nupt. Leg. 8.
(3) The three firſt Nights. The Hiſtory of Tobias mentions no ſuch thing. Moreover, the thing appears certain in
it lelf, if we ſuppole the Story true; for the Text ſays only, that after Tobias had driven away the Evil Spirit
, they
both of them ſlept that Night. Chap. 3. 10.
& ) Sect. II.
b) And therefore Æneas pleads for himſelf in Virgil.
nec Conjugis unquam
I ne'er pretended to the lawful Claim
Pretendi tadas, aut hæc in federa veni.
Of Sacred Nuptials, and a Husband's Name.
An. 4. v. 338, 339
(c) Genef. XXIV. ver. ult.
(d) See Tob. VIII. 10.
(e) Vid. Selden de 7. N. Ego G. 1. 5. c. 4.
(f) Deuteron. XXII. 23. 24. Add. 1. 8. C. de Inceft. Ego inutil. Nuptiis.
(8) Add, Matth. 1. 18.
fairs,
2

Chap. J.
339
Of Matrimony.
men.
fairs, 'till the Solemnity had been uſer'd in by
thers and War. He look'd on it as no indecent
the hearing of Divire Service in a publick Aflem • Cuſtom for a Man, ftep'd into Years before his
bly: Which moſt religious and moſt decent In-
Wife, co recommend her to the Arms of a young
ficution, the Fews probably receiv'd from an- and virtuous Friend, and, when there appear'd
cient Tradition, and do ftill obſerve; and from Hopes of having a Child by fo good a Father,
them, it was admitted into the Chriſtian Church. to challenge the Bleſſing to himſelf. On the
For this Reaſon, tho' at the ſettling of the Con other ſide, a good and upright Man, who e-
traở, they oblig’d the Man to ſwear to preſerve ſteem'd a married Woman for her own Virtue,
the Virgin's Honour, 'till the Day of Marriage ; and for the Comelineſs of her Children, was
yet, for the greater Security, they ſhut her up ' encouraged to beg of her Husband, without
from him in the Apartment of the Women, till the Ceremony, the Favour of a Night's Lodging;
time of that finiſhing Ceremony ( a ).
'That he might tranſplant into his own Garden Some
XV. We are in the next place to enquire, Slip of Jo goodly a Tree. Indeed Lycurgus was of
whether by the Law of Nature, the Matrimonial Perſwafion, that Children were not ſo much
Bond be limited to a ſingle Man, and a ſingle the Propriety of the Parents, as of the whole
Woman? Or, which is the ſame thing, whether Commonwealth : And therefore he would not
Polygamy be naturally allow'd ? Polygamy is of two ' have them begotten by the firſt Comers, but
fores; either when one Woman promiſcuoully by the beſt Men that could be found. He cen-
admits of many Men, or when one Man is at · ſured the Lawgivers of other States, who whilſt
the ſame time join'd in Marriage to many Wo- they ſpent no Pains or Charge in promoting
To the former kind belongs the famous and improving the Breed of their Dogs, and
Platonical Communion of Wives : A Cuſtom pro of their Horſes; yet, being themſelves Old
pos’d by Plato in Idea (6); but really pradis'd and Infirm, ſhut up their Wives from other
by ( 1 ) many Nations. Diodorus Siculus (c) re. Men. Whereas a little Reflection would have
ports, of the Taprobanians in India, That the taught them, that the Virtues and Vices of
Men did not confine themſelves to ſtrict Wed. Children, their Succeſs or Miſcarriage do chie-
lock, but poſſeſs’d the fair Sex in common, and 'fly redound to thoſe who have the Care of their
educated the Children (in whom they reckon'd Education. And this Inſtitution of the Spartan
themſelves All concern'd, ) with Care and Love. Founder, the Hiſtorian judgeth to have been ſec
* Nay, the Nurſes often chang'd their little In on foot, puoixãs rj 7021 Tinãs, Agreeable to Nature and
fants, ſo as to hinder them from knowing their to Policy (d ).
own Mothers. `Cæſar (2) tells us of the Ancient The Stoicks (e) too were of Opinion, that
Britains, Ten or Twelve of them together have Wives Wiſe Men ought to communicate their Beds, as
in common amongſt them; eſpecially Brothers with Bro- well as their other Poſſeſſions : Becauſe by this
tbers, Fathers with their Sons. But, every Woman's means All efteeming their Children their own,
Children are attributed to him, who firſt married her, would love them with equal Tenderneſs; and
when a Virgin. Where it is plain, that great Au- there would be left no room for Jealous Fears,
thor cannot mean, that one woman had, at the no Suſpicion of Adultery or Diſhoneſty (f).
ſame time, Ten or Twelve Husbands, as Mr. Sel- The borrowing and lending of Wives, amongſt
den, amongſt others, imagines; but that ſo ma- the Romans, is a Practice much talk'd of by Au-
ay Men having each of them married his proper thors (g). Solon, in his Laws, permitted an
Wife, afterwards agreed upon that friendly Way Heireſs, whoſe Husband prov'd impotent, to
of poſſeſſing them. Lycurgus, as Plutarch (3) de- call in the Aſſiſtance of his neareſt Kinſman (6).
livers, Endeavouring to prevent the Vain Wo Yet we are not to make the leaſt Doubt but
maniſh Paſſion of Jealouſie, thought this the that all theſe Licentious Indulgences are repug-
'beſt Expedient, to allow honeft Men the Free- nant to the Law of Nature (i). For the Natú-
dom of each other's Bed : Laughing at thoſe ral and Regular End of Marriage is, the obtain-
who reſented, in ſo high a manner, theſe petty ing of Children, whom we may, with Certain-
'Injuries; as to purſue their Revenge by Mur- ty, call our own. But what rooin can there be
in common,
Mr. Barbeyrac's NOTES on Chap. 1. 915,
(1) Add. Diod. Sic. 1. 2. c. 58. Of the labyophagi, 1. 3. c. 15. Of the Hylophagi, 1. 3. c. 24. Of the Nomades, c. 32.
which are likewiſe mention’d by Strabo, 1. 7. Of the Garamantes, vid. Plin. 1. 5. c. 8. Solin. c. 43.
Of the Troglodyta
Agatharbid. c. 30. Pompon. Mél
. I. 1. c. 8. Of the Agathyrfi
. Herodot.Melpom. p.161. Ed. H.Steph. Of the Gindani and
Nomades, ibid.' Of the Inhabitants of Thule, Solinus reports, ( I know not with what Credit ) that They hold their Women
and are Strangers to fixt Matrimony, c.35. (2) De B. G. 15.0.14. (3) Lib. 5. cap.11. The fame
Cuſtom is mention’d, though not ſo diftin&tly, by Xiphilin. Epit. Dion, in Ner. in Bonduica's Speech ; and again in Sever.
Strabo reports ſomewhat like this of the Sabeans': Their Polfefſions ( ſays he , lic in common to all of the ſame Blood
and Family, but the eldeſt bears the chief Sway. One Wife ſerves them all :
her Bed, placing his Staff before the Chamber-door : But the Nights ſhe pafleth with the Eldeft. They puniſh Adul-
terers with Death, and ſuch they eſteem every Intruder into another Family, lib. 16. p. 538. Vid. 1.11. p.353, 354. de
Maljaget. & Tapyr.' Of fome Inhabitants of the Kingdom of Calecut, Ludovicus Romanus ( Navig. 1 5.6.8.) informs
us, * That every woman is at the ſame time married to Seven Husbands, who lodge with her by turns. When ſhe is
brought to bed, ſhe preſents the Child to which of the Seven Fathers ſhe pleaſeth, and no Appeal lics from her De-
termination, Vid. Ego Pet. de Valle Itiner. p. 3. Ep. 7. Joan. Boem. de Mor. Gent. 1. 3. c. 7. reports of the Lithuanians,
from Æneas Sylvius, ' That the Women, by Conſent of their Husbands, have their Sparks, whom they call Alliftants of
“their Bed; whereas on the other ſide, for the Husbands to uſe the like Liberty, would be accounted highly infamous.
( a ) Comp. Genef. XXIV. 67. Deuteron. XXI. 13. (6) Vid. l. 5. de Repub. & Marcil. Ficin. in Præfat.
(c) L. 2. c.58. id) The ſame Law is mention'd by Xenophon. de Reb. & Leg. Lacedemon. (e) In
Ding. Laert. Zen.
(f) Add. Thom. Campanell. de Civit. Solis. (8) Vid. Plutarch. Num. Ego Cat. Min.
So čato is commonly ſaid to have lent his Wife Marcia to Q. Hortenfius. Vid. & Lucan. I. 2. v. 328. ( 5 ) Plus
i) Comp. Matt. XXII, 25, o.
for
tarchi Solon.
340
Of Matrimony.
Book VI.

for Diſtinction in this wild and confus'd Mixture? curgus, and others of thoſe Ancient Lawgivers,
Again, the Buſineſs of Nature not requiring ſo that lo fair a Soil as a Young Wife ought not to lie
numerous a Concurrence, all theſe additional fallow, under the Neglect of an unađive Husband,
Helps and Services proceeded, not from Neceſ, their moſt ready, and moſt Honeſt Way of pre
fity, but from Luft
. Beſides, a moſt material venting ſuch Miſhaps, had been to prohibit Mar-
Objection againſt theſe Irregularities is, that the riage between Perſons of improper Years. And
kind and endearing Titles of Relation are ſunk then for the point of Fealouſy
, by it they mult
and extinguiſh'd in them. Plato ( a ) propoſeth mean, either that ſenſeleſs Paſſion, which tormerits
by way of Remedy to this grand Inconvenience, a Man's Head without good Suſpicion or Reaſon,
that the Civil Laws ſhall ſupply the Defeet of or elſe a due and proper Vigilance and Caution,
Natural Kindred ; that all Perſons ſhall efteem in order to the preſerving a ſpotleſs Bed : The
their Seniors in Age, as their Parents, their Ju- former kind of Jealouſy, the moſt fooliſh, and
niors, as their Children ; their Equals, as their the moſt miſerable Diſeaſe of human Minds (c),
Brothers and siſters. But this is a moſt idle and their Community of Wives could not cure; and
vain Expedient ; for to have no certain Father, the other being the juſt Effect of Reaſon and
no certain Child, &c. is, with regard to mutual Prudence, it ought by no means to have taken
Affection, the ſame thing as to have none at all. away (2) (d). Nor ſhall I ever be perſwa-
'Tis well urg'd by Lactantius (b): If all, ſays he, ded, that to lay all Poſſeſſions in common, and
are concern'd in every Child, who can love a Child as
to give each Man the Privilege of calling every
bis when he muſt needs be Ignorant, or at leaſt Thing his own, is the fureft Method of preler-
Doubtful, whether it be his own or no? On the other ving Peace and Friendſhip in the World. Every
ſide, 'Who would reverence a Man as bis Father, when one muſt indeed acknowledge, that it is much
indeed be is uncertain to wbom he owes his Being? more for the Publick Benefit to have a State
Whence it comes to paſs, that be muſt take a Stranger filld with healthy and vigorous, than with dif-
for his Father, and his Father for a Stranger. And eaſed and weakly Subjects; and at the ſame time,
it was a good Anſwer to one, admiring there that the Parents Conftitution hath a conſiderable
ſhould be no ſuch thing as Adultery heard of ir Influence on the Child's. Yet, did this Rule
Sparta, That their very Matrimony was Adultery. hold true more generally than it doth, it were
Farther ſtill; The main Difference betwixt the by no means worthy of ſo high Regard, as that
Conjugal Union of Mankind, and the wild Free. in conſideration of it, we ſhould diſſolve the fa-
dom of coupling amongſt the Beaſts is, that the cred Ties of Marriage, and ſhake the main Foun-
Wife engageth her Faith to be true to the Hus- dation of all good Order amongſt Men (e).
band's Bed. Which Engagement, if he volunta XVI. The other kind of Polygamy (f), and
rily releaſe, and madly betray his own Honour that which more properly claims the Name, be-
to new Rivals, he is unworthy the Name, not ing the joint Relation of many Wives to one
only of a Husband, but of a Man; and is to be Husband, hath been the Practice of many Na-
look'd upon as a moſt vile Diſturber of Human tions, in ancient and in modern Time. The
Decency and Society. As for the Excuſe of Lya Mofaical Law was fo far from forbidding this
OWN,
SA
I
(2) Mr. Bayle, in his News-Letters againſt Maimbourg, Lett.XVII. S 5. maintains ſtrongly, That if we follow Rca-
ſon, as diſtin&t from Grace, and the Light of Faith, a Man need not more to ſcruple to lend his wife than his Book,
• and that without the ridiculous Fear of Cuckolding. Reaſon would rather adviſe a Community than Propriety of Wives.
own, that here, as well as in many other Things, Men, for the Good of Society, might, by a certain Inſtinct, which
prevents the Uſe of Reaſon, be led to it. If Hunger and Thirſt did not often put us in mind of our Nouriſhment, we
Hhould often forget, or negle&t to ſatisfy that Natural Neceſſity; and fo the World might be unpeopled. In like man-
ner, were it not for that unquiet, and raging Paſſion, called Jealouſy, which always attends the Love of a Woman, the
Community of Women would be eaſily introduced, or at leaſt Husbands for the moſt part would be very careleſs of the
Honour of their Wives, and eaſy to permit them to communicate their Favours to others beſides themſelves. Not that
Reaſon would incline them to it, but the contrary ; becauſe, as Men are ordinarily made, there are few that conſult, or
hearken to Reaſon, ſo that they muſt be led to their Duty by Senſe. With Ariftippus's good leave, as a Philoſopher
(cited by Mr. Bayle, 4.) he had very ſuperficial and popular Idæas. If he uſed his Reaſon but a little, he might have
diſcover'd without Revelation, that Man is a Creature made for Society, and that no Society can ſublift without Order,
and that Community of Women ( as Mr. Bayle owas ) would breed Confuſion in Civil Society ; ſo that Men muſt not be
judg’d of as Beaſts, by looking upon their Propagation, as a Thing abſolutely indifferent, and as to which every one may
regulate himſelf only according to his own Fancy. In this Caſe "tis certain, that women ought to be a Common Good,
as the Water of a River; and ſo it would be a fordid Paſſion to be diſpleaſed, that another ſhould quench his Thirft at
the ſame Spring. But ſince, by God's Appointment, Man ought to propagate his kind in a Manner fuitable to a Rea-
fonable and Sociable Creature, Jealouſy in it felf, and reduced to its juft Bounds, is neither more unjuſt nor unreaſona-
ble, than the Inclination, which leads both Sexes to join together; and we may ſay, that Nature hath wiſely put into
Men that nice Humour, as a faithful Guardian of the Chaſtity of Women, which feveral Husbands would little trouble
themſelves for, and would have them looſed without it. All that is meant, is this, when a Woman is unfaithful to her
Husband, without any juſt Caule from him, Reaſon requires, that he comfort himſelf, and ſay with the Comedian,
If my Wife deceive me, ſhe shall lament it;
do i've done no Wrong, and can't repent it.
. They'll call me Fool not to revenge it,
But I jhould be bardy to baften my End.
(a) 1,5. de Repub. p. 658. A. Ed. Wech.
(6) Div. Inftit. I. 3. c. 30.
1.
( 0) Vid. Oppian. Cyneget.
(d) Vid. Senec. Herc. Oet. v. 233, &c.
(e) The Argument which ſome are not
atham'd to bring from our Ways of promoting the Breed in Horſes, is too filthy and ſcandalous to deferve a Refutation,
Add Ariſtotle's Diſcourſe againſt Plato on this Subje&t, Polit. 2. c. 2. It is a worthy Saying of his in the ſame Work,
6.16. For Perſons who are truly and properly Man and Wife, to ſeek another Partner, and another Bed, 0;ight to be reckon'd
amongſt the vileft and moſt infamous of Offenders, (fi Vid. Grot. 1. 2. c. 5. 1. 9.

3: v. 237, doc.
Cuſtom,

Chap. I.
341
Of Matrimony.
licy of the common Story, that Socrates had two Wives 11cwns, to prevent Diſſentionem to
Cuſtom, that it ſeems in ſeveral places to ſup.. it muſt proceed from a particular Order of State,
poſe it (a). And GOD, by the
Prophec Na diſpenſing with the ancient Stri&neſs, by reaſon
tban, reckons amongſt the peculiar Favours and of the preſent Scarcity of Subjects. In Gellius (k),
Blellings he had bettow'd on David, that He had among the ſeveral Cauſes alledgʻd, why. Euripides
given bim bis Maſter's Wives into bis Boforre (bſhould get the Tidle of the
Woman-Hater, this is
Mr. Selden (c) affures us, that the Jews eſteem'd brought as one, that he had two Wives together,
it lawful for a Man to marry as many Wives as (The Athenian Government at that time allowing
he pleas’d, provided he could maintain them, who made him quite weary of Matrimony
and
and yield a Supply in all things anſwerable to quite out of love with the Sex. Amongſt the
their Relation. Yet it was the Advice of their Spartans
, we find in Herodotus (1), that when
ſageſt Rabbies
, that for the avoiding the Incontheir
King Anaxandrides refus
d to put away his
veniencies of Number, no Perſon ſhould exceed. his Wife, on the account of Barrenneſs, he was
Four, except the King: He that aded contrary compelld by the Authority of the Ephori, to ad-
to this Rule, was adjudg’d guilty of notorious mit another to his Bed, who did not lie under
Impudence, and of Diſobedience to the Inſtitu- the ſame Imperfe&ion. Every Body knows,
tions of his Anceſtors. The High Prieſt was al. that the Romans were content, each Man with
low'd one Wife at a time, tho' he was not hin. his ſingle Wife ( m). Yet Suetonius ( n ) reports,
dred from marrying another, in caſe of the that it was once in Julius Cæſar's Head, to in
Death, or Divorce of his firſt. By the Prohibi- troduce a Law, to give Men Licence to marry
tion of Deuterom. XVII. 17. they were perſuaded, what Sort, and what Number of Wives they
that their King ought not to go beyond Eighteen. thought fit, for the better ſtocking the Com-
If the Men of their Nation liv'd in a Country, mon-wealth. Socrates, the Eccleſiaſtical Hiſto-
where Polygamy was not tolerated, they thought rian ( reports of the Emperor Valentinian,
them obligʻd to conform : as particularly in the that whilft his Wife Severa was living, he ad-
Roman Empire, the Laws of which exprefly re- mitted to the ſame Honour the moft beautiful
ftraind them from the Uſe of ſuch a Liberty (d). Lady Juftina; and publiſh'd an Order through
As for the modern Jews, we are inform'd by Leo his whole Dominions, permitting every Man to
Mutinenfis (e), That thoſe of them who live in the follow his Example; T. bave Two lawful Wives.
Eaſt, jéill keep up their ancient Practice of Polygamy; Paulus Diaconus (p) gives the ſame Relation ;
whereas in Germany, they are not allow'd this Privi- and Zonaras mentions the Emperor's Two Wives,
tage
, and in Italy very rarely ; and only in caſe a Man though he ſays nothing of the Law enađed on
hath liv'd with his preſent Wife many Years without the Occaſion. But in as much as the other Hi-
illue (f).
ftorians, Ammianus, Zozimus, and Orofitas, toge-
Tacitás ( 1 ) obſerves of the ancient Germans ; ther with the Chriftian Fathers, who ſo often
They are almosk the only People amongſt the Barbarians, diſcuſs the Queſtions concerning Macrimony,
who are contented with fingle Marriages. Indeed ſome are abſolutely filent in this Point; Baronius (9)
few Perjoms of extraordinary Merit, are advanc'd to concludes the Double Marriage of Valentinian,
the Favout of more Ladies than one; but then they are and the Law in Juſtification of it, to be perfect
courted to this Liberty, not out of Luft, but upon ac. Forgeries.
count of their fingular Virtues and Worrb. Thus C Mahomet, in his new Inftitution, allow'd of
Sar (8) tells us of Arioviftus's two Wives, cho- Polygamy; craftily accommodating his Do&rines
ſen out of different Nations.
to the Temper of the People, whom he intend-
The Grecians, according to their regular Frame ed to deceive. For as the Force of Love is
and Conftitution, admitted but of one Wife; yet ſtronger in the Men of thoſe Eaſtern Parts, ſo
we find in one of the Athenian Decrees, an Éx. the Women, either by their Natural Genius, or
ception to this purpoſe, That to increaſe the Num. by the Power of Education, live in ſuch
ber of Men, at preſent deficient, it ſhall be lawful for feet Subje&ion to their Husbands, that their
any Perſon to bave Children by another Woman, beſides, Jealouſies and Quarrels are ſeldom conſiderable
ber that is, in a more friet Senſe, his Wife (h ). enough to diſturb the Peace and Union of the
And hence Atbenæus (1) urging the Improbabi- Family. Yet the wealthier Men ſhut up their
or confine
Wives, inaſmuch as contrary to the
mitive Ordinance of Cecrops, and was noc obje- caline (1) will have this Indulgence to have
&ed to him by the Comedians, who handled him been a Device, to diſpoſe-Men the better for a
fo reproachfully on other Occaſions ; at laft.con- Life of Slavery ; whilft dividing their Riches a-
cludes, that if the matter of Fact were really true, mongſt ſo large a Progeny, they muft continually
per-
1,21
Mr. Barbeyrac's NOTES on Chap. I. $. 11.
Topi 18:10 yis free!
(1) Tacit, de Mor. German. c. 18.
( a ) See Deuteron. XXI. 15. XVII. 16, 17, & loc. Ambroſi, apud Gratian. Caul
. 32. quaf". 46.3, 7.
(6) 2 Sam. XII. 8.
(c) De Uxore Hebrdic. 1. 1, c. 9:
(d) L. 8. c. de Jud. gor Add. Selden.
de F. N. & G. 5.c. 6.
(e) De Rit. Hebra. P. 4. c. 2. f. 2.
(f) Here Mr. Selden obſerves, that in
the firſt Edition was added, Indult u tamen Romani Pontificis impetrato, Yet not without procuring the Indulgence or
Diſpenſation of the Pope; which words are omitted in the Paris Edit. 1637.
(g) De B. G. I, 1. c. 53.
(h) Diog. Laert. Socrat.
(i) L. 13. c. 1. (k) L. 15. с. 20. ( 11 Terpſichore,
P: 190. Ed. H. Steph. Vid. Potter Archaol. Grac. I. 4. C. II. p. 599.
(m) Vid. Cod. lib. 5. t. 5.1.2. de Inceſ.
Nupt. & lib. 9. t. 9. I. 18. C. ad L. Jul. de Adult.
(n) C. 52.
(O) L. 4. c. 26. (p) L.11
q] Tom. 4. ad A. Chr. 370. S. 125,
(r) Richer, de Merib. Turc. (1) Ragg, di Parpal. Cent. 2. c. 63:
Ааа
grow
n. 4.

342
Of Matrimony.
Book VI.
in this
herein Contract
WP, . Ego , .
. . ad . in
(, f.
grow weaker, and more abſolutely at the Com-
' is made, there the Wife ought to reſt ſatisfied
mand of the Government. A Thought very in with a competent Share in the Husband (1)
genious indeed, and of refin’d Policy; and ſuch Nor doth the in this caſe fuffer any Injury
as probably never enter'd into Mabomet's Head,
for the can have no more Right over her Huf
who died ſo long a time before the Eſtabliſh band's Body, than what ſhe obtain’d by the
ment of the Turkiſh Tyranny and Empire. As
Matrimonial Compact: But in that Compact
for the Indians, Travellers inform us, that the
fhe receiv'd a Right only to a Part of the Man,
chief Reaſon why ſeveral of their Princes have and voluntarily agreed to this imperfect Por
refus’d to imbrace the Chriſtian Faith, hath been feffion. And therefore ſhe hath only Reaſon to
becauſe, amongft other Conditions, it was re complain of her Husband, when, as Plautus
quired of them, to admit no more than one Wo- (c) ſays, He lets bis own Field lie, fallow to
man to their Bed ( 2 ).
plough another Man's. Nor doth this Allowance
XVII. Whether or no this Pradice be repug of Polygamy, as ſome object, reduce the Women
nant to the Law of Nature, is a Point not ful. into the Condition of slaves. Nor is
ly ſettled amongſt the Learned. It ſhall be our * Crinie, to place the weaker Sex in an inferior
Buſineſs to propoſe fairly the Arguments on both Degree to the ſtronger, to whom they owe
fides, leaving the decifive Judgment to be paſs’d their Defence and Support (f).
The Rea
by the Reader. Thoſe then, who maintain Po ' fons alledg’d on the other ſide, taken from the
•
'meſtick Quarrels, the Hatred of the Rival Mo-
The regular End of Matrimony, that is the thers, tranſmitted to their various Race, do not
Benefit of amount to a Proof, that Polygamy is Naturally
mutual Aliſtance, is as well anſwer'd under Unlawful; but then the ſame Inconveniencies
theſe Allowances, as under the ſtricteft Con appear, as in all, fo eſpecially in ſecond Mar-
• finement. It is an idle Objection, which ſome riages, which no one will upon this account
make, That at this rate the Conjugal Faith will not term unlawful. Nor are the Troubles and Mif
• be reciprocal, a Condition which Reason it ſelf re fortunes of this kind equal in all Places; but
quires eſſentially necellary to every Covenant. For
they are chiefly to be diſcovered in thoſe Coun-
Mutual Faith doth by no means ſuppoſe, that tries, where either the women have too high
* the Performances on each ſide muft needs be e - and commanding Spirits, or the Men too low
. qual. Nor doth the true Intent of Matrimony (and ſervile. In many Nations the Wives, ei-
• demand, that the Man ſhould confine his De ther by their Natural Diſpofition, or by Cuſtom
fires ſo ſtraightly as the Woman. The Reaſon and Education, pay a more ſtrict and quiet O.
why one Woman ought to take up with one 6 bedience (g). And beſides, it is no difficult
Man, being the great Danger of the Uncer Task, for a Man
Task, for a Man of tolerable Prudence and Di-
tainty of Illué; which Hindrance doth
ſcretion, to keep the Family peace amongſt ſe-
in the way of the other Sex. Yet is not the veral Women (b).
• Husband leſs oblig'd to make good his Faith to XVIII. Thoſe, who deny Polygamy to be agree-
every Wife ; which Performance conſiſts in the able to the Law of Nature, chiefly infift on the
* yielding her all due Conjugal Help, Kindneſs, Seventh Commandment in the Decalogue
, Thou
and Support. As for the main End of Mar- halt not commit Adultery ; which muſt be acknow-
riage, che obtaining of Children, one Man is, ledgʻd to affect the Man, as well as the Woman,
in this reſpect, equal to many Women, at leaſt . And therefore, fay they, if the Prohibition
to ſuch as arc Moderate and Virtuous (a). 'lies on both Parties, the Husband muſt be guil-
* And therefore it is chiefly Luft and Intempe- ty of Adultery, whenever he receives into the
Covenant of Marriage, or into the Poffeffion
of his Bed, another Woman, againſt the Con-
with her Husband, binds him under an Engage- « fent of Her
ſent of Her to whom he firſt plighted his Faith,
ment to admit no Partners with her of his Bed; and the Power over his Body ( i .
(as Laban (b) bound Jacob in Behalf of his In return to this Argument, Antoninus Mata
* Daughters:) ſuch a Covenant is faithfully to thæus (k), the Civilian, affirms, that Adultery
be performd (c). Where no fuch Condition - cannot be committed, either by Poligamy, or be-
( 2 ) Add Abrah. Roger, de Bramin. p. 1. c. 13; & . de Rhodes Itinerar. : 2. 6. 11. Add. Nouv. Memoires de la
Will.
Jerus's Book, entituled, Polygamia Triumphatrix.
( 2 ) Eſpecially, if they imitate Zenobia, Queen of the Palmyrenes, who would not admit the Embraces of her Huſ-
band upon any other Account, than the obtaining of Children: Trebell. Pollion in Tyran, cap: 30:40) Sea Geneſ.
(b) Gen. XXXI. 50.
(. 121. D. . Obligat.
XXX. 15, 16.
lib.48.7
Flor. Spart. ad Jus Fuffinian Women are ſeldom ſo very ambitious of Honour, as to be ſatisfied
with the Excufe which
Inclinations by ſome other means : A Wife is a Name of Dignity, not
save his Lady, when ſhe complain 'd of his Miſtreſſes: Give
of Pleaſure.
. At.
tian. Cauf. 32, Qu. 6. c. 2, &c.
(f) 'Tis a Saying of Euripides in Supplit. That Women ab borave wiſe, will
tranfa& every Thing by Men.
(8) Vid. Benzo, Hift. Nov. Orb. p. 1. c. 37.
(h) The Reaſons urg:d
by Dionys. Godofred. (ad Lib. 1. c. 9. I. 7. C. de Judais, &c. ) will be found, upon Examination, very ſliglit and trivial
) Gratian. Caul
. 32. quæft."s. cap. 15, 16,
23. Vid. Becler. ad Grot. 1. 2.2.5. 1. 9. Hobbes hath made ſome kind
fion to examine in lib. 7. fol.
(k) De Crimin, ad L. Jul. de Adulter. c. 1, f. 13.
not lie
©
rance
19
to
and gave
« Husbands.
Add. Planmecare; ſays he, to satisfy my
tween

Chap. I.
343
Of Matrimony.
6
6
C
r
tween a married Man and an unmarried Wo- allow her only a Share in himſelf. To this it is
man ( a), but only with another Man's Wife (b). reply'd, That we muſt not ſuppoſe the Woman would
Nor vill he allow every Violation of the Mar- thus confent to her own Loſs and Injury, unleſs either
riage-Covenant to be the Sin of Adultery: For compell”d by Force, or Fear, or moved by Weakneſs and
we never call him an Adulterer, who maliciouſly Defect of Judgment ; neither of which cauſes are able
forſakes his Wife, who refuſeth to give her Main- to found a Right in the Man. But the Affertors of
tenance, and the like ; yet ſuch a Man, with the other Opinion will not grant, that there is
out doubt, breaks his matrimonial Faith. He(1) any Injury in the preſent Caſe.
All the Right
adds, altho' it be unjuſt in the Husband, to and Title, ſay they, that one Perſon can have
é require a ſtricter Chaſtity of his Wife, than to the Body of another, muſt ariſe from Cove-
"he practiſeth himſelf; yet this by no means nant, and from the Conſent of that other Par-
proves the Sin on both ſides to be equal. For
ty. And confequently, if ſo much be per-
every one knows, that the Wife is, upon many
· form'd as was fairly covenanted for, there
* Accounts, oblig'd to a much ſeverer Degree ought to be no Complaint of injurious deal-
of Moderation and Purity; in regard, as welling. It is no good conſequence to ſay, that
to the Modeſty of the Sex, as to the Danger becauſe, in juſt and true Matrimony, the Huf-
of confus’d Amours, and of a ſuppoſititious band receives the full and perfect Poffefſion of
Breed; as likewiſe to prevent the Scandal her the Wife; therefore the Wife obrains the ſame
(Lightneſs would bring, not only on her own abſolute Title to the Husband. Nor will ſuch
Family, but on the Government under which an unequal Covenant prejudice the Nacural E-
the lives. For if it be reckon’d ſo very diſgrace- quality of Mankind. For to ſalve this, it is
ful to be born of Parents, one of whom is a Na not neceſſary, that the mutual Performances a-
tive, the other a Foreigner, in ſo much that in mongit all Perlons ſhould be exa&ly alike : If
moft Countries a Name of Reproach is fix'd on fo, it would be repugnant to the Law of Nature,
Perſons of this motly Race; how much fouler that one Man ſhould be born a Prince, another
an Infamy would it prove, as well to the whole a Subject, and both by virtue of an antecedent
State, as to particular Men, ſhould it be left human Covenant, not made by themſelves, but
‘uncertain, whether the Subje&ts are born in A- by others. Will any one be ſo extravagant as
dultery, or in lawful Marriage? In Leviticus (c) to maintain, that 'tis a Breach of natural Equa-
* Adultery is defin’d, The coming to another Man's lity, unleſs the Wife be allow'd her Turn of
Wife, the polluting another Man's Bed. Nor can it Governing, as well as the Husband? And there
on any account appear probable, that a Law is the ſame Difference obſervable in the Care
againtt Adultery, directed to a People, who a of the common Off-Spring: How little Trou.
'&ually uſed Poligamy, ſhould forbid this Practice, ble doth this bring to the Father, in comparis
without declaring as much in expreſs Words. ſon to the grievous
Pains undergone by the Mo-
'Thoſe Expreſſions of Holy Scripture ( d), and ther. Would it not be a moſt ridiculous Propo-
of the Primitive Fathers (e), which ſeem to fal, for the Women of State to deſire a part in
make the Coveting, or deſiring another Man's the ſupreme Adminiſtration ? And yet we muſt
Wife, to be Adultery, are to be underſtood in hot ſay, that the Men are guilty of Injury and
the ſame ſenſe, as when he that hatés bis Bro Tyranny for excluding the fair Sex from this
'ther (f), is ſtild a Murtherer.
"honourable Privilege. Should any People be
Others chufe to anſwer thús, The Com: of ſuch a Temper, as to deſire the Eſtabliſh-
mandment alleg'd doth indeed bind Men, as
ment of a ſtricter Government, (which the bol-
well as Women: And therefore for one Huf der Patrons of Liberty are wont to call, the
band to diſhonour another's Bed, is no leſs fin Treatment of Slaves,) if they too freely in-
ful, than for a Wife to defile the Bed of her dulge the Reins to the new Power, they ad
proper
Husband. But chen Polygamy doth not fooliſhly, and tranfgrefs that Ruling Prudence
,
'make the Husband guilty of this Treſpaſs a-
which is the beſt-lov'd Siſter of Natural Law.
gainſt his Neighbour. It is true, if in the Ori. "So that to commiſerate the Condition of the
ginal Contract between the Parties it was ex * Wives in Turkey, &c. is as abſurd and imperti-
prelly provided, that the Man ſhould transfer nent, as to beftow our Pity on Husbandmen
"the whole Power over his Body to the Woman,
and Artificers, and condoling with them, that
then in caſe he brings an Uſurper to her Bed, they ſhould be ſo unfortunate, as to live in more
whether under the Name of an Harlot, or of a uneaſy Circumſtances, than the Nobility. The
• Wife, he certainly violates his Faith given in * Reaſon why a Husband cannot honeftly admit
the former Matrimony. But we have no ſuch another Man to partake of his Bed is built up-
Charge of Perjury to lay againſt him, if at the on a different Bottom. On the whole it may
firft Marriage he reſerv'd to himſelf the Liber be concluded, that a Woman lies under no re.
ty of adding a ſecond Confort, as a Partner to • ftraint of Conſcience, from agreeing to this
her whom he then receiv’d. Nor can he be ſaid Kind of Matrimony, in a Country where the
'to defraud her, in as much as he bargain'd to Pra&ice is publickly receiv’d. Eſpecially, ſince
6
Mr. Barbeyrac's NOTES on Chap. 1. S. 18.
(1) So the Digeſts ſpeak, Periniquum videtur eſſe, ut pudicitiam vir ab uxóre éxigat, quam ipfe non exhibęat. Lib.XLVIII.
Tit. V. Ad Leg. Jul. de adulteriis coercendis, Leg. 13. 9 5.
(b) L. 6. f. 2. D. b. t.
(c) Levit. XVIII. 20. XX. 19.
(d) Matt, V. 28.
() Produced by Gratian, cap. 3, 4, & 1, quæft
. 4. cauf. 32. & c. 5. quæft. 6. cauf, eadem. C. 4. 10. De eo qui cognov.
Confanguin. Uxor. fuą.
(f) 1 John III. 15.
Ааа 2
SO
“ if
(a) S. 12.
344
Of Matrimony.
Book VI.
<
chers, under the Old Covenant, is a Reaſon
if it were in any degree Vicious, yet the bare
cating his Favours to Others beſides Her, doch
Force of the weaker Sex could never prevail not here ſeem to be forbidden.
to the beating down a publick Cuſtom: nor
XIX. However it be, this is very clear and cer-
would all of them join in the Attempt: Some tain, that the moſt decent, the moſt proper, and
being ever more kind and friendly than others, the moſt peaceable Way of Wedding is,' for One
and more unwilling to engage againſt the to live contented with One. This then is, without
• Men (a). The Example of the Heathens, all doubt, to be eſteemed the higheſt, and the
and of the Mahometans (who are allow'd Four moſt perfeet Kind of Matrimony; and the Laws
Wives, and as many Concubines as they can and Conditions of it are moft religiouſly to be
maintain,) may indeed be of no great Force obſerv'd, as well by the Husband, as the Wife
in the Argument; becauſe it appears, that thoſe (1) (2) (3). It is worth remarking, that
. People are guilty of many Violations of the where ſeveral Wives are allow'd to one Man, he
• Law of Nature ; but the Polygamy of the Fa- ſeldom fails to ſingle out a Beloved, whom in all
IngenuousMen muſt confeſs to be unanſwerable. ture ie ſelf ſeems out of Multitude, to lead us ina
As to the Saying of the Apoſtle, 1 Cor. VII. 4. to Unity. 'Tis a wiſe Obſervation that of Sa.
it doth not ſeem to reach the primary Deſign luſt ( 4 ), The Relation, ſays he, of a Son-in law,
* and Uſe of Matrimony, but only the ſecondary is but ſlightly eſteemid amongft the Numidians, and
and indirect End, the avoiding Fornication : which the Moors ( 5 ). And the Reaſon is, becauſe they
* End belonging in the ſame degree to the Man marry each as many Wives, as they think agreeable to
and to the Woman, Humanity and Equity en. their Fortune and Grandeur ; Some Ten, some
• join, that the ſame Proviſion ſhould, in this re and their Princes with a far wider Liberty. Thus the
ſpect, be made for both Parties; and then it Mind is divided and diſtracted with Number, and All
follows, that the Husband ought not to deny are deſpis'd becauſe All cannot be lov'd (c).
his Wife Conjugal Favours. But the communi (6) Grotius (d) afligns theſe Reaſons for the


6

more,
'
8
Mr. Barbeyrac's NOTES on Chap. I. $. 19.
(1) Euripid. Andromach. v. 464, &c.
Our Tal av Nisou
Ne'er will I commend
Aéxls'égaréow Begri
More Beds, more Wives than One ; nor Children curs'd
Ουδ' αμριμα πρgς κόρες,
With Double Mothers, Banes and Plagues of Life.
fer refi oglan,
Let each good Man poffefs his Single
Bride,
Δυσμενείς τη λύπες. .
And check the Intruſion of a Rival Dame,
Ίω μίαν μοιστργέτω πόσες αμοις
'Aκοινώνη/ον ευφάν ανδεός.
Ifocrates Nicol
. p. 59, 60. Edit
. Parif. I cannot but greatly condemn thoſe, who having entred upon a Married State for their
whole Life, negle&t afterwards to ſtand to the Agreement; but giving a Looſe to their pleaſures, injure thoſe dear Partners,
from whom they expect nothing but Kindneſs and comfort. In other Bargains, they are wont to practiſe Fuſtice and Honefly,
and yet make no ſeruple to violate the Nuptial Contract, which ought to be ſo much more fridly obſerv'd than all others, as it
is of more ſacred Obligation, and of nearer and more important concern.
(2) Plaut. Mercat. A&. 5. Sc. I. v. 8.
Nam uxor contenta eft, quæ bona eft, uno viro ? A good Wife is contented with one Husband,
Qui minus vir urâ uxore contentus fiet?
And why ſhould not an Husband with one Wife?
Plutarch. de Præcept. Conjugal. They ſay, that a Cat, upon ſmelling certain Elences or Perfumes, is driven to Madneſs.
Did the ſame Effect hold in Women, ought not Men to abtain from uſing ſuch Perfumes, rather than cauſe ſo great
Misfortunes for the ſake of a worthless Pleaſure ? Why, the Diſhoneſty of a Husband is as likely a Means to throw his Wife into
Diſtraction, as the moſt offenſive Smell could be : And conſequently, it is moft unjuſt
, on the account of an idle Satisfaftion, to
bring fo grievous Afliction on an innocent Perſon ; and not rather to preſerve the Nuptial-Bed uncommunicate and unſtain de
(3) Clytemneftra in Eurip. Elektra, v. 1035. &c.
Mõeen ufo xv quvcūkes, šne mas aégei Women are Fools : 'tis own'd ; and by a Woman:
“ο αν σ' αυτό του, αμαρτινη πόσις, But when Men take Advantage of the Folly,
Τάνδον παρώσας λέκeα, μιμείται θέλει Slight Home, and ſcout abroad for lawleſs Love ;
Tuun tùya'ydega, ge Toggv xlãos piacy. No wonder if the Dames return the Wrong,
Kareil, er mwy o fózo, ademas que tell, Seek out new Mates, and practiſe as they're taught.
OIN TO ra , Maixo dodges
sessãs.
(4) Saluft's Words are; Etiam antea Jugurtha filia Boccho nupſerat. Verum ea neceſſitudo apud Numidas, Mauroſque
levis ducitur, quia finguli pro opibus, quiſque quam plurimas uxores, denas alii, plures alii habent, led Reges eo amplius. Ita
animus multitudine diftrahitur, nullam pro focio obtinet, pariter omnes viles funt. In Bell. Jugurth.
(5) Claudian de Bello Gildon. makes this Reflection on the ſame People of Africa :
Connubia mille :
A Thouſand Nuptial Bands they wear,
Non illis generis nexus, non pignora cure ; Blood is no Union, nor their Race their Care ;
Sed numero languet Pietas.
But Love expires in Number..
VO) We may here add the Refle&tions of the famous Mr. Bayle, in his News-Letters upon the Occaſion of F. Maim.
bourg's Critical Hiſtory of Calviniſm. It is certain from the Experience of all Countreys, where Polygamy is allow'd, that
the Peace of Families is not ſo great in them, as among Chriſtians. And as for thoſe Banterers, that would have Women
to be taken upon tryal, and if Men did not like them, leave them : I anſwer them, That if this Liberty were permitted
Husbands only, twould be unjuſt ; and if it were granted to both Sides, the Husbands would be catch'd; for when they
would keep to their firſt Market, their Wife would not agree to it, and ſo they'd ſee themſelves obliged to leave Things
as they were, to avoid greater Trouble. - As a Servant never does his beſt but for two or three of the firſt Weeks, fo
it would be in the Service of new Husbands, who take Wives upon tryal
. Women would not paſs all their youthfal
Days in ſuch Tryals. This being ſo, our Banterers would get to little by it, that they'd find it the ſhorteſt and beſt
way to keep to the Chriſtian Inſtitution, tho' there were no Command from God to authoriſe it. Lett, XXII.
( a ) Ilaiah IV. 1.
(b) Genef. XXIX. 29. Deuter. XXI. 15. Efther II. 17. Cant.VI. 7, 8.
the fame purpoſe Amm. Marcellinus (1. 2.3. C. 12.) ſpeaks of the Parthians, Their Affection grows cool and languid, by the
unbounded Variety they make uſe of in their Pleaſures. (d) De Verit
. Rel. Cbrift. Procop. Hift. Vandal1. 2. Be YC
conceru'd for your Children, say the Barbarians, who are chain’d to the Necellity of a ſingle Bed : As for Us who, if we pleaſe,
can bave Fifty Brides together, we are in no fear of wanting Pofterity. Eurip. Androm. U. 177, &c.
Reception


(c) To
2

Chap. I.
345
Of Matrimony.
1.14. pro Socio.
Reception of ſingle Marriage amongſt Chriſtians; I will therefore be repugnant to the Law of Na-
shat she Wife, beftowing berſelf entirely on the Huf- ture for either of the married couple to deparo
band, may receive the equal Return of his whole Hears from the other unconſenting, only for the Im-
and Affection : That the Family Affairs may be carried provement of Condition, or Satisfaction of Hu.
on with more Regularity under a ſingle Miſtreſs; and mour, without being able to alledge any Breach
that many Mothers may not create Feuds and Quarrels of the matrimonial Pact on che other's ſide. Nor,
amongft the Children. To which we may add, chat can the ( 1 ) Indulgence of the Roman Law (b),
after the ſufficient Multiplication of Mankind, in fome Caſes of Partnerſhip, be brought to ju-
Pobgamy ought, amongſt all Nations of tolerable Aify a Defertion of this kind. For, beſides that
,
Civility, to be reſtrain d on this politick Account, the relinquiſh'd Party is moſt certainly enda-
that by too great a Number :of Children the no- magºd ( 2 ); an Union enter'd into upon account
bler Family muſt in time be reduced to Poverty, of Gain, may much more eaſily admit of Sepa-
the meaner to Beggary, and the State oppreſſed ration, than this moft ftrict and ſacred Tie be-
with an idle Swarm of baſer Populacy; which tween Man and Wife For, in Marriage, the
if not vented and thrown off, ( as it cannot al. Parties acquire a Right over the Bodies of each
ways be) will at length overturn all Order and other, which ought not, on either ſide, to be ta.
Government, and ſink the Common-wealth unken from them againſt their Will. And indeed,
der its own Weight ( a). We are told that the tho' there ſhould be a murual Conſent of the Para
Turks themſelves, in the Point of Marriage, do ties, yet it would be both indecent and unſafe to
not now take the ſame Liberty as they formerly allow the diſſolving of Marriage, without ( 3 )
us'd, and as their Law allows: The Cauſe of very weighty Cauſe: In as much as this Liberty
which Alteration is not, perhaps, ſo much the of frequent Divorces muſt exceedingly ſhock the
Increaſe of beſtial Luſt amongſt them, as their Strength, and Credit of Families; and the Grace
Experiences of the inconveniencies and Mil- and good Order (4) of the whole Common-
chiefs attending Polygamy.
wealth (c). And the ſame Reaſon will hold in
XX, Another Controverſy, no leſs warmly Eſpouſals, which although no farther Progreſs
manag’d is, whether Matrimony, by the Law of hach been made in order to their Confummation,
Nature, be a Society, or Partierſhip, capable of yet ought not to be broken off by the Act and
being diffolv'd, and conſequently, whecher Di- Motion of the Parties contracted, unleſs ſome
vorces be, by the ſame Law, allowable ? And extraordinary Occaſion fall out; or ſome of
here we ſhall take the fame Courſe as before, to thoſe Conditions are found
defeative, on the
ſup-
lay down the Streſs of what both Parties urge up- poſal of which the Validity of the Covenant de-
on the Point, leaving the conſiderate Reader to pendeth (d). Dionyfius Halicarnaſſess exceed.
paſs Judgment for himſelf. Firſt of all, it is ta- ingly commends the Inſtitution of Romulus, by
ken for granted, that according to the common which he order'd one ſort of Marriage (5),
Nature of Covenants, one Party cannot recede, folemnizd with the greateſt Ceremony, to be
unleſs the other hath either broken the Agree- incapable of Divorces. This Law (ſays the Hi-
ment, or elſe yielded his Conſent to this Releaſe. ftorian ) engaged the Wives ( 6 ) ( who had no Re-
Mr. Barbeyrac's NOTES on Chap. 1. 29.
( 1 ) The Words are, Sed et ſi convenit, nè intra certum tempus focietate abeatur, Ego ante tempus renuncietur, poteft ra-
tionem habere renuntiatio.
(2) They fuppofe on the contrary, that he that withdraws, doth it either becauſe the other Party hath broken ſome
Condition, to which he was obliged by the Contra&t; or becauſe he hath ſuffered ſome Wrong: Nec tenebitur pro focio,
qui ideo renunciavit, quia conditio quædam, qua focietas erat coita, ei non præftatur; aut quid fi ita injuriofus ego damnoſus for
cius fit ut non expediat eum pati? Digeſt. ibid.
103) The very Nature and End of that Society proves, that it ought to continue a long time; for we marry not on-
ly to have Children, but to bring 'em up. Now a Woman is capable of Conception, and uſually finds herſelf big a con-
kderable time before a Child which is born, is able to provide for its Needs ; ſo that the Husband ought to remain with
her till her Children are grown up, and of Age to ſublift
, either of themſelves, or with ſuch Goods as he gives them.
We fee, that by the admirable Wiſdom of the Creator, this Rule is conſtantly obſerv'd by the Creatures deſtitute of Rea-
fon. Among the Beaſts, which feed on Grafs and Herbs, the Society of the Male and Female remains no longer than the
time of Copulation ; becauſe the Milk of the Dam is ſufficient to nouriſh the Young, till they can feed upon the ſame
Herbs. But as to Lions, and other Beaſts of Prey, feeing the Dam is not able to provide for her young Ones, the Male
alſo hunts for them. We may obſerve the ſame thing in all Birds, unleſs it be tame Fowl, who live in ſuch Places as
afford them plenty of Food. But tho' the Conjugal Union of the Husband and Wife continues longer than that of other
Creatures, yet there is nothing in that Union (as I think ) that can require them to remain together all their Lives, af-
ter they have brought up their Children, and put them into a way of Living: That depends, as all other voluntary En-
gagements do, upon the Contract of Marriage, unleſs they live in ſuch a State where the poſitive Laws command, that
that Contract ſhould be for Life. This is taken out of Mr. Lock's Treatiſe of Government, Part II. Cap. vii. 5 2. &c.
See alſo Algernoon Sidney's Diſcourſe of Government, Chap. II. Se&. IV. in fin.
94.) This would produce many adulteries ; for a Man, who in his Anger, or ſome other Pallion, hath
Wife for a ſmall Caufe, may be reconcild to her, when ſhe is married to another, and the Familiarity he has had with
her, may eaſily afford him a means to maintain the ancient Conyerſation in private
. Beſides, were the women left thus
to the Humour and Inconftancy of Men, what muſt Children ſuppoſe, when they ſee their Mothers expellid for no Cauſe,
or for Trifles ? And how can they have any Reſpekt afterward for them from whom they have receiv'd their Beings?
($ ) The Ceremony was called, Confarreation, becauſe the married couple, after a ſolemn Sacrifice had been offer'd
by the Pontiff
. who had join'd them with a Set Form of Words, cat of the ſame Barley-Cake which had been uſed in
(6) Dion. Halicarnaſeus's Greek is ; 0376 óvóc tal's to givelines iváy xuat tais gave très, oid mudegi en exérus éré-
en Sitos esplu, pog's free tv ti vzapinx610 Gñv Somov, aj tos ävšegs,' a's eveyagis s nj avd pou éta gehus 10, s guwounds negro
() It is a molt barbarous Way which the People of Angola in Africk uſe, to get rid of their vaft Stock of Men, oc-
cafion' by Polygamy, when they fell their ſuperfluons Numbers to the Americans for Slaves, (b) Digeft. Lib. 17. t. 2.
(c) Vid. Val. Max, 1.2.c. 9. f. 2. (d) Add. Gell, 1. 4. C. 4,
fuges
put away his
TNY. Lib. II. p. 95.
340
Book V.
Of Matrimony.
.

(i) Vid. Plutarch. Amator. p. 769. Er in Solon.
fuge, nothing to truſt to in caſe of a Rupture ) to yield berry to Husband, or Wife, after a Divorce, to
a ready Compliance to the Temper of their Husbands : chuſe a new Partner, provided they did not pitch
And it obliged the Husbands, on the other ſide, to uſe on a younger than the former ?
their Wives as a neceſſary Poleſion, which they could Beſides all this, to put away a Wife looks hei-
not, on any account, throw up, or deſert. And one nous in the Eyes of all the World, and loads
may reckon among the chief Cauſes of the De- the Woman with ſo much Reproach, that it
cay and Corruption of the Roman State, their too would appear moft Bafe and Unworthy to pro-
frequent Practice of Divorces, either upon ſo ceed in ſo ſevere a manner, unleſs upon ſome
flight Pretences, or upon none at all (a). Am- extraordinary Grounds and Provocation. And
mianus Marcellinus reports of the Saracens what this may extend it ſelf as well to the Buſineſs of
feems very agreeable to their barbarous Cuftoms. Contraấts, as of the more ſolemn and perfeät
They hire Wives, ſays he (b), to ſerve a preſent Marriage. Thus when Radigis, in Procopius (6),
Tuin: And to make ſome Shew and Semblance of Ma- having eſpouſed the celebrated Brittia, broke off
trimony, the Woman preſents her Mock-Husband with the Match without being able to alledge any
a Spear and a Tent; at the fix'd Day, ſhe may, if ſhe Crime on her ſide. The Hiſtorian tells us, she,
pleaſeth, break up and ſeek a new Mate. Varenius (c) unable to bear the Scandal, bent all ber Thoughts and
informs us, that the Dutch, now and then, con- Reſolutions on Revenge. For Modeſty and Chaſtity are
tract this kind of Marriage in Japan; having ſo highly priz'd, and ſo nicely regarded by theſe Barba-
liberty to releaſe themſelves at their leaving the rians, that a Woman turn's off and deſerted, moſt in.
Illand. The like is practis'd in many other Parts fallibly loſetb ber Reputation, though her Virtue be re.
of the Indies, and the Kingdom of Perſia (d). ally ſafe and unft ain'd. It was a wiſe and rational
How vile doth the Roman Liberty appear in Ju- Choice, when the Daughters of Pollio and Agrip-
venal ( e )?
pa, Itanding for the Place of Governeſs over
the Veſtal Virgins, the former Lady was prefer'd
Cur defiderio Bibulæ Sertorius arder?
on this account, becauſe her Father and Mo-
Si verum excutias ; facies, non uxor, amatur. ther had liv'd in a long and peaceable Marriage,
Tres ruga ſubeant, & le cutis arida laxet,
without Separation; whereas Agrippa, on the
Fiant obſcuri dentes, oculique minores ;
other ſide, had filled his Family with Jealoufies
Collige Sarcinulas, dicet libertus ; & exi ;
and Diſſentions ( 9 ).
Fem gravis es nobis, & fæpe emungeris ; exi XXI. We are further to examine, whether we
Ocius, &o propera ; ſicco venit altera naſó.
may apply that to Matrimony, which holds good
in all other Covenants, that in caſe the Heads
Theſe Truths with his Example you diſprove, and Conditions, eſpecially the chief of them, are
Who with his Wife is monſtrouſly in love : broken on either ſide, the injur'd Party hath the
But know him better: For I heard him ſwear, Power of receding from the Agreement. And
'Tis not that ſhe's his Wife, but that ſhe's fair. here we may venture to take the Affirmative
Let her but have three Wrinkles in her Face, Part, if the Queſtion be put concerning the Ne-
Let her Eyes lefſen, and her Skin unbrace; ceſſary and Effential Terms of the Contra&t.
Soon you will hear the ſaucy Steward ſay, Thus the principal Deſign of Marriage is the
Pack up, with all your Trinkets, and
away ; procuring of Children, in order to the effe&ting
You grow offenſive both at Bed and Board; which, it is requiſite, that there be the neareſt
Your Betters muſt be had to pleaſe my Lord. and moſt familiar Communication between Hus-
Mr. Dryden. band and Wife. And therefore if we regard
barely the Law of Nature, either Perſon may
For really, as Claudian (f) obſerves,
quit and renounce the Relation, in caſe the o-
ther prove guilty of baſe ( 1 ) Deſertion, or of
Fæmina cum ſenuit, retinet connubia partu ; Voluntary and obſtinate ( i ) Unkindneſs, as to
Uxoriſque decus matris reverentia penſat.
the Affair of the Bed. This laft Omiffion would
bear an Adion of Law amongit the Ancient
A Matron for her fruitful Bed we praiſe: Fews (k.); and the Conjugal Debt as well as o-
And the Wife's Charms the Mother's Awe repays. thers might be recover'd by Proceſs in open Court
.
Again, the Intent of Marriage is not only that
And how ſcandalous was that Law of Charondas, we may obtain Children, but that we obtain ſuch
mention'd by Diodorus Siculus (g), giving Li. as ſhall indeed be our own. On this account,
(9) Pub. Syrus's Latin is, v. 252, 425.
Habent locum maledi&i crebræ nuptia,
Mulier, que multis nubit, multis non placet,
Many Marriages are next to many Curſes. A Woman that marries often, diſpleaſeth often. Tacit. Ann. XI. c. 86.
Mr. Barbeyrac's NOTES on Chap. 1. $. 21.
(1) St Paul allows a Diſſolution of Marriage, upon this
account, 1 Cor. VII
. 15. If an Unbeliever ( either a Man be
Wife of a Chriſtian ) departs, let him depart ; a Brother, or a Sifter, is not under an Obligation in ſuch a Caſe; i. e, he
is not ſo bound to him, as either to recall him, or live without marrying.
( 2 ) Senec. de Benef. 1. 3. c. 16. Who is now aſam’d of breaking the Nuptial Union, when ſo many
and Quality reckon their Years, not by the Number of Confuls, but of Husbands; and are divorc'd in hopes of marrying,
marry in hopes of being divorc'd?
(b) L. 19. C. 3.
(c) Japon. c. 13:
(d) Olear. Itin. Perf. 1. 5. c. 22
Petrus de Valle Itin. P.2. Ep.17. (e) Sat.6. v.142, 80c. (f) In Eutrop. 1.1. v. 72, 73. Add. Martial. L. 10. Ep.41.
(g) L. 12. c. 18. p. 83. Ed. Rhodom. (h) Hift. Goth. 1. 4.
89. Ariftot. Oecon, Lib. 1. c. 4. Diog. Laert, in Pythag. La&ant. 1.
k ) Vid. Selden. de Uxore Hebraica, l. 3. c. 6,7. Montaigne's Eſſays, L. 3.6.5.
5. c. 23. Gratian. Cauf. 3. Quæft
. 5. c. 1. Eye con

Ladies of Eminence
and
2
ſays

Chap. I.
347
Of Matrimony.
and Charms ( 2 ) ; yet the Truth is, the former of the Family. In requital for which, the Huſ.
fays Joſephus, Mofes abſolutely forbad Adultery; monits urge to the contrary. Indeed thoſe grave
thinking it would be every way more happy, Profeſſors, when they are to gratify a Friend in
that the Husband ſhould keep the Poffefſion of this point, do not ſcruple to find out a way of
his Bed ſecure and undiſturbed, and that the eluding their own Decrees, by declaring the for-
Production of genuine Iſſue would be alike ad-
mer Marriage to have been originally null and
vantageous to private Families, and to the pub- void, an Evaſion which they can ground on ma.
lick State. ( Antiqu. III. 10.)
ny plauſible Scruples. Sasa
Nay, and after this End hath been provided But altho' Marriage be chiefy enter'd into up-
for, every honeft Man is willing to keep his Bed on the Defign and Hopes
of Children, yet the
to himſelf, and doth not think it either decent or bare Inability of either Party (otherwiſe fit for
ſafe, to take Paffengers aboard, tho' the Veſſel a Conjugal State) towards promoting this End,
be firſt laden to his Deſire: Very few Husbands doth not ſeem a ſufficient Ground of Separation;
have fo high. Notions of Courtlineſs and Com- in as much as it is a thing ſurpafling all humane
plaiſance, as to be concern'd at Ovid's Cenſure, Power to beſtow the Blelling of Increaſe. Yet
that, Story
Carvilius Ruga, the fift Man of the Romans, that
put away his Wife, ( 523 Years after the building
Ruſticus eft nimium quem lædit adultera Conjui, of the City) is reported to have taken his prin-
Et notos mores non ſatis urbis babet (a).
cipal Motive from the Oath, which the Cenſors
required of every married Man, in this Form,
He that won't lend his Bed's a ſtingy Clown, Se babere Uxorem liberorum quærendorum caufa; That
Unpractis'd in the Freedom of the Town.
be engaged in that Condition on the account of Illice (d).
odo louise
xxil. But the chief Point of the Controver
It is therefore to be eſteem'd a juſt Cauſe of ſy on this Head is ſtill behind, and may be thus
Divorce, if a Wife voluntarily expoſe her Honour ſtated. According to the true regular way of
to another Man. As on the other ſide, if ſhe be contracting Marriage, the Wife conſents to a
overcome by the Uſurper, in the way of Force conſtant Cohabitation with the Husband, pro
and Violence, we can on no Pretence call her miſing, according to her beſt Strength, to affift
Virtue in Queſtion (6). And tho'it be com- and comfort him, as well with Sweetneſs of Con-
monly reckon'd a more heinous Crime, to af: verſe, as with the Participation of Buſineſs and
fault her Chaſtity thus, by main Strength and Cares; and engaging farther to be guided and
Power, than to enſnare or betray it by Flattery directed by him, as the Lord and Governour
indeed offers the more grievous Injury to the band, on the other ſide, is obliged (1) to
Wife, but the latter to the Husband (c). protect and defend his Wife, to treat her with
It appears then, that the Reaſon why Adultery Honeſty and Civility, and to pay her many os
and wilful Deſertion, are accounted ſufficient Cau. ther friendly Regards of the ſame kind. Now
fes of Divorce, doth not ariſe from any particular the Queſtion is, whether the ſignal and enor-
poſitive Law of God, ( as if theſe cwo Excep- mous Violation of theſe inferior Duties gives a
tions were added to that Ordinance which makes full and fair Reaſon for a Divorce. And here,
the Bond of Marriage perpetual, ) but from the if we regard barely the Law of Nature, ma-
common Nature of Covenants, which is ſuch, ny venture to hold the Affirmative. For fince
that when one Party hath broken the Agreement, a Father hath the Power of diſcarding an un-
the other is no longer oblig'd to keep it. And the dutiful Son, who, at leaſt in natural Conſidera-
Force of theſe Cauſes is ſo extenſive, as to juſtify tion, ſeems more nearly related to him than a
the injurd Perſon, not only in refuſing to coha- Wife; why may not he baniſh his Wife, as a
bit with the perfidious Wretch, but likewiſe in Rebellious Member of the Family, when her
palling to a lecond Marriage ; whatever the Ca- Manners are intolerable ( 2 ), and her Amend-
low
( 2 ) Amor. 3. & 4. v. 37, 38. Martial, L. 6. Ep. 90.
Mæchum Gellia non babet niſi unum,
One Spark ſerves honeſt Gellia at a time;
Turpe eft hoc magis, uxor eft duorum.
But her two Husbands are a fouler Crime.
Add. Abr. Roger de Bramin.p: 1. c. 13. (b) Add. Valer. Max. 1. 6. c. 1. 1. 2. extern. Liv. 1. 38. c. 24. Xenophon
In Hieron. p. 578. L. 48. t. 5.1.13. 1. 7. & 39. princ. D. ad L. Juliam de Adult. Ælian. Y. H.1.12. c. 47. (c) L.11.
4:3. 1. 1. 1. 3. D. de Servo Corrupte. To inveigle and perſwade is mote than to force and compel. (d) Vid. Gella
4. e. 3. Valer. Maxim. I. 2. c. 1. f. 4.
Mr. Barbeyrac's NOTES on Chap. 1. $. 21, 22.
(2).'Tis in this fenfe the Law of the Digefts is to be expounded: Perfuadere autem eft plus quam compelli, atque cogi
fibi parere. As at ( c ).
(1) Thus Achilles, ie Homer. Il. 9. V. 340, dc. ſpeaks; riscalieren?
*H kaivoi quaéro' króxos ureyrtar uppá trong The Wife and Good will cheriſh and defend
'Ατράδα και επειδή ός τις αγαθος, και εχέφρων, The Partner of their Bed, their neareft Friend ;
Tlu wito Guaín sy xunta.
Their ſecond Seif.
(?) The Law of Theodoſius and Valentinian deſerves to be recited here. They alledg firſt, that the Marriage Bonds
ought not to be broken without good Reaſon, in conſideration of Children. The Rcaforis which they mention, and for
which they allow the Uſe of that ſharp Remedy, but ſome times neceffary, are thele ; If an Husband or Wife ate convi-
&cd of Adultery, Affaffinating, Poiſoning, or Treaſon; if they are Forgers of Wills, Sacrilegious, Thieves of any fort,
Harbourers of Kobbers ; if an Husband has to do with a whore in his Wife's
light; if a woman goes to a Feaft with
unknown perſons, without the Knowledge and Conſent of her Husband, and if the lics-abroad without very good Resa
ment
348
Of Matrimony.
Book V.

ceed in performing the reft. If the Marriage vere, w
(c) In the Life of Rom. p. 89. See Mr. Dacier's Note
ment deſperate ? Eſpecially if we reflex on the ſhould with any Convenience be admitted to the
Remark of Fulgentius, that a Wife, the nearer ſhe is other; that a Man ſhould defire Iffue by the fame
join'd to a Man by the Law, the more certainly the Woman, whom he is conſtrain'd to hate; and
proves to bim, either Honey, by the Sweetneſs of her not rather entertain an abſolute Averſion to the
Temper, or Poyſon, by her froward arid malicious Body, which lodgekh ſo froward a Gueſt : It is
Difpofition ; being really, either, a continual Comfort the common and regular Practice for the Parties
and Refuge, or a perpetual Plague and Torment.. An to contract, by one and the fame Agreement,
boneft Man, ſays old Simonides, can have not bing in for their living together, and for their mutuai
this
World better than a Good Wife, nothing worſe
than Care of Poftericy: And thus the two Conditions
a Bad one (a). On the other hand, in caſe the are, in ſo cloſe a “anner, unired and interwo.
Husband treats the Wife with unreaſonable Seve: ven one with the other, that in caſe either be
rity, and denies her the Reſpect due to her Sex broke, both naturally fall afunder. It is therefore
and her Relation, ſo as to thew himſelf, not fo contrary to the Law of Nature, that the Reaſon
much a kind Partner, as a troubleſome and vexa- before alleg'd ſhould cauſe a Separation from Bed
tious Enemy, it ſhould ſeem very equitable, that and Board, and yet continue ſome part of the
ſhe might be relieved by a Divorce ( 6 ). Marriage. Obligacion, ſo as to hinder the Parties
Another Scruple immediately ariſech upon this, from diſpoſing of chemſelves another way. Un-
Whether it be allowable, by the Law of Nature, leſs ſuch a Separation be enjoin'd, only for a time,
on the account of Intolerable Manners, or of as a Puniſhment to obftinace Perverſeneſs, and to
Barbarous Treatment, entirely to diffolve the try, whether there is any probability of Reform-
matrimonial Bond ? or, Whether the other Con- ing. For it is abſurd to ſay, that the Tie of a
jugal Duties, as the Propagation of Race, &c. Covenant remains in force, whilſt no part of the
may not ſtill be continud, thoʻ the cohabiting Debt, ariſing from that Covenant can, or ought to
in the ſame Family be broken off? In as much as be diſcharg'd. And tho' we ſhould acknowledge,
the former Covenant bearing a regard to Chile that the Party, who gave Occaſion to this Mil
dren, ſeems tº be Eſſential to Matrimony, the chief, is juſtly enough puniſh’d, yet the innocent
latter only Additional. Thus inuch then is cer- Party is in the mean-while injured, ſuffering thus
tain, that ſeveral Pacts may be made between the for the Fault of anocher, and being oblig'd to live
ſaid Parties, under this Condition, Thac in caſe in a State of Celibacy, probably inconvenient,
one of them ſhould be violated, the others fhall perhaps intolerable.
nevertheleſs ſtand Good. Nay, one and the ſame Thus far then, in the Confideration of Natural
Pa& may be divided into many Heads, and Pro. Law, the Man and the Woman are upon the ſame
viſion may be made, that although one of the Ground. And for chis Reaſon Plutarcb ( c ) calls
Heads be tranſgreſs’d, yet the Parties ſhall pro- chat Order of Romulus, apoder, very hard and fe-
was contraded under ſuch a Form, it ſeems rea- off her Husband, yer gave the Husband leave to
fonable, that the Wife, although ſhe hath by her diſcard his Wife, either upon her poiſoning the Chile
unpeaceable Carriage forfeited her. Title to a dren, counterfeiting the Keys, or committing, Adul.
continual Cohabitation, yet may ſtill lie under tery (d). Amongſt the Athenians we find either
the Force of that part of the Covenant, which Party might upon fufficient Cauſe, ſeparate ( e)
obligeth her to conſult Succeſſion. But, becauſe from the other : Though they diſtinguiſh'd theſe
it is by no means probable, that ſhe, who is un two kind of Divorces by different Names. For
fit for the firſt of theſe Privileges and Duties, a Man to put away his Wife was term'd Somijunar;
Mr. Barbeyrac's NOTES on Chap. 1. S. 22.
lors, or is preſent at Plays at her pleaſure ; if an Husband lays Snares for his Wite's Life, or ſhe for his ; if an Husband
beats his Wife. The Words of the Law are : Solutionem Matrimonii difficiliorem debere effe favor imperat liberorum. Cax-
(as autem Repudii
hảc celeberrima Lege apertius fignamus. Sicut enim fine jufta cauſa diffolvi matrimonia jufto limite probi-
bemus, ita adversâ neceffitate preſum, vel preffam, quamuis infaufto, attamen neceſſario auxilio cupimus liberari : Si
tur maritum fuum adulterum, aut homicidam, aut veneficum, aut certè contra noftrum imperium aliquid molientem, vel fal-
fitatis crimine condemnatum invenerit
, le ſepulchrorum diffolutorem, fi facris ædibus aliquid Subtrabentem, fi latronem, vel la-
tronum ſuſceptorem, vel abaforem vel plagiarium, vel ad contemptum ſui, domúlve ſua, ipså inſpiciente, cum impudicis mu-
lieribus (quod maximè etiam Caftas exasperat ) cætum ineuntem, fi jua vita vereno,' ant gladio, aut alii fimili modo infor
diantem, já se verberibus ( qua ingenuis aliena ſunt ) adficientem probaverit. Tunc repudii auxilio uti necessariò permittimus
libertatem, & caufas difidii Legibus comprobare. Vir quoque pari fine claudetur nec ullo modo expellat Jugalem, nif
adulteram, &c aut extraneorum virorum, fe ignorante, convivium adpetentem, aut ipſo invito, fine jufta, So probabili
caufa foris fcilicet perno&antem, 'vel Circenfibus, vel theatralibus
ludis, vel arenarum fpe&taculis in iis locis, in quibus bas
adfolent celebrari, se prohibente, gaudentem, &c. Cod. Lib. V. Tit. XVII. De Repudiis do Fudicio de moribus fublato,
(a) V. Fulgent...Mythol. lib. 1. Simoniden inter Poet. Lyric. Edit. H. Steph. p. 127. Euripid
. Oreft. v. 602, &c. ?
Bleft is the Man, and ſweetly runs his Life,
Where ſmiling Fortune ties the Nuptial Band;
But he whom inauſpicious Hymen joins,
Wretched abroad muſt prove and cursid át home.
(b) Add. L. Theod. lib. 5. t. 17. 1. 8. C. de Repud.
upon the Place,
& Euripid. Andromacbe, v. 672, Egc.
3 Dil Whether the 'Man from a Diloyal Dame, I
con i li Or the Chaft Dame from an Injurious Man
moord od o C
Suffers Reproach; each finds a juft Relief.
Him his own Strength can vindicate ; and Her
Parents and Friends combin'd prote&t from Wrong.
(c) Potter. Archeol. Græc. lib. 4. c. 12.
%
a
qua igi-
Leg. VIII.

for

Chap. I.
3.49
Of Matrimony.
C
6
6
Seiden de 7. N. G. I. 5. C. 7.
for a Woman to quic her Husband, was énorosafis. But, that our Saviour abſolutely took away this
The Reaſon of this Variation in Terms is mani- ancient Liberty of Divorce, is the Judgment of
felt; the Woman was receiv'd into the Man's Fa- moft Divines ; grounded on Mattb. V. 32. XIX.
mily, and therefore ſhe could not properly, sito 8,9, &c. Mark X. 4, 6, 12. Grotius (k) is of
obuwal, Send him away, move him out of the Houſe, Opinion, that it was, from the Beginning, moſt
tho ſhe might, Streianr, forſake him, and retire pleaſing to God, that the Bond of Marriage
to a place of Eaſe and Security.
ſhould be perpetual; but, whereas the Old-Co-
We have only this to obſerve farther, that upon venant-Men were not oblig'd to this Strictneſs,
whatever Reaſons Divorces are tolerated in a our Saviour under the New Covenant, ratified by
Common-wealth, it is highly expedient, that an expreſs Law what was before moft Agreeable to
the Cauſe be heard and approv'd by the proper the Divine Will. Mr. Selden's Explication (1) of
Magiſtrate ; and that a Point of lo very great the ſame Places of Scripture is to this
purpoſe :
weight and moment be not left to be decided by There were amongſt the Jews cwo Sects, the
the private Conſcience and Diſcretion of the mar Sammeans, and the Hillelians, who maintain'd
ried Pair. For, the Reaſon which Bodinus (a) contrary Notions on the Point before us. The
offers to the contrary, Becauſe this publick way of ' former aſſerted, That a Man ought not to quit
proceeding muft neceſſarily impair the Credit and Cha ' his Wife, unleſs upon ſome Diſcovery of Baſe-
ratter of one of the Perſons, doth not ſeem to con 'neſs and Diſhoneſty ; The latter, That any Dil-
clude with any Force to the purpoſe ( b ). ' like taken of the Woman, was enough to juſti-
XXIII. With regard to the Divine Law, either fy a Divorce. Our Saviour then, as an Arbi.
as Originally declar'd, or as renew'd by our Sa trator between the two diſputing Parties, de-
viour, the Difficulty is much greater. This is e clares in Favour of the Sammeans ; That it was
vident, the Jews thought Divorces not only per not Lawful upon ſlight Pretences, to diſſolve an
mitted, but commanded, (in caſe the Wife dif ' Union inſtituted by GOD himſelf; but only
pleas'd her husband, ) by the 24th Chapter of upon the commiſſion of foul and ſcandalous
Deuteronomy. And farther, there is a place in Crimes, comprehended, according to the Ge-
Philo Judæus (c), which ſeems to imply, that ' nius of the Hebreo Language, under the gene-
Barrenneſs was judg’d a ſufficient Cauſe for the like ral Term of Fornication (m). He adds, that
Separation. Nor are we to doubt but that the amongſt the moſt ancient Chriſtians, Adultery was
thing was frequently practiſed in that Nation, al not eſteem'd the only lawful Cauſe of Divorce:
though their ſacred and profane Hiſtory, for As appears from L. 8. C. de Repudiis, enacted by
more than 700 Years, have recorded none, or the moſt Religious of ail the Emperours. 'Till
very few Inſtances of this kind. For it is not in- by the Superſtition and the Corruption of the Pa-
deed the Cuſtom to regiſter, in publick Annals, pal See, the Bond of Matrimony was declar'd In-
Matters which are done according to general diffolvible during the Life of the Parties. Bux-
Vſe, but ſuch only as appear fingular and extra- torf (n) hath endeavour'd to make out, contra-
ordinary. In Ifaiah d), and Jeremiah (e), ry to the Current of the Jewiſh Writers, that in
amongit the many ways of repreſenting and re the Words of Moſes, Deuteron. XXIV. 1, 2, 3, 4.
proving the People's Sins, we find Similitudes this one Prohibition only is contain'd,
taken from a Divorce, as an Action very well un Man ſhall not receive again to his Bed a Wife which
derſtood by the Vulgar. Foſephus (f ) takes No 'be hath once put away : But that the Cuſtom itſelf,
tice of it, as a thing very unuſual, and differing of putting away Wives, is in that place, neither
from the ordinary Law and Practice, that Salome, approv'd by Moſes, nor plainly condemn'd; but
Wife to Coſtobar, Prefect of Idumea and Gaza, left as it were indifferent. And, ſays he, the
ſhould ſend a Bill of Divorce to her Husband; * Obſervation of our Saviour, that this Permiſ-
whereas, ( 1 ) regularly, it was not allowable fion was given by Moſes, Becauſe of the Hardneſs
for the woman to leave the Man, unleſs he put of their Hearts, ſufficiently makes it appear, that
her away: Excepting only one Caſe, when the 'the Moſaical Indulgence doth not amount to an
Husband fallly reported, that his Wife did not Approbation, but ſignifies only a bare Tolera-
prove a Virgin at their firſt Familiarity; here the tion, or Connivance, exempting from Civil Pu-
Woman had her Choice, whether ſhe would ſtay, niſhment (0).
or depart; and the Husband, if ſhe choſe the for XXIV. Mr. John Milton (p), provoked, as it
mer, was oblig'd to keep her (g). Foſephus (b) ſhould ſeem, by the Misfortune of his own Fa-
reports the ſame of Herodias, Ariftobulus's Daugh- mily, hath, with great Pains, endeavour'd to
ter
, the Lady who was the Subject of St. John make out, that, even by the Principles of the
Baptiſt's Reproof ( i ).
Chriſtian Religion, an intolerable Diſpoſition, a Dif
Mr. Barbeyrac's NOTES on Chap. 1. I 23.
( 1 ) See i Sam. XXV. 46. and Mr. Le Clerc's Note
(a ) De Repub. 1. 1. c. 3.
(b) Add. Plat. de LL. 1.11. p.974. Ed. Wech. Charron de la Sageſe, I. 1. c. 46. n.12.
( c ) De Leg. Special. p. 782. B. Ed. Pariſ. Herodot. lib. 5. p. 190. Ed. H. Steph.
the whole Paſſage runs thus ; Men who take Wives, being uncertain of their Fruitfulneſs
, if, finding them afterwards to be
Barren, they do not diſmiſs them and force them to lead a ſeparate Life, are very excuſable; in as much as being won by a long
Familiarity and a courſe of mutual Love, they cannot eaſily do Violence to thoſe Affections which are ſo deeply rooted
in their
Minds. But they who chuſe Women of known Barrennefs
, ſeeking only, like Beafts, to ſatisfy their luftful Inclinations, are
Laws of Human Succefior.
4 be reckon’d amongſt the moſt impious Offenders, as contradi&ting and oppoſing" GOD Himſelf, who bath eſtabliſh'd the
( d ) Ch. I.
(e) Ill. j. 6.
(f) Antiq. L. 15. c.9.
15) vid. Phil. Jud. de Special
. Leg. p. 189. D. Ed. Parif
. (h) Ant. Jud. L. 18. c. 7.
(i) Matt. XIV.
( k ) L. 2. c. 5. ſ. 9
(1) De Uxore Ebræa, l. 3. c. 22, ( m ) Vid. Val. Max. 1.9.
(o) De Sponfal. Es Divort.
(o) Add the excellent Differtation of Grotius on this Point, on
(p) In his Book of the Doctrine and Diſcipline of Divorces.
B bb
parity
6
"That a
C
upon it.
Mar. VI.
C. 2.
Matt. V. 31, 326
350
Of Matrimony.
Book V

, a Reaſon n
for Divorce: Nay, that Perfons, ſo unhappily pair’d, wiſely fix'd in the difference of Sex, ſweeter En
are indeed under an obligation to ſeparate. We hope gagements, and more peculiar Propenfions. To
we ſhall not ſeem tedious, if we venture to run may then, on the whole Matter, be the ſafer
over his chief Arguments. In the firft place, way not to endeavour the bringing this high and
then, he lays down this Affertion to build upon; Platonica! Strain of Notions into pra&ice :"(but,
God, in the first Ordaiming of Marriage, taught for conſidering the ordinary Temper and Capacity
what End be did it, in Words exprefly implying, the of the Female Sex, ) to judge Her a very conve.
apt and chearful Converſation of Man with Woman, to nient and proper Partner, who is able to ſuſtain
comfort and refreſh him againſt the Evils of ſolitary Life: a Share in the Concern of Children, both as to
not mentioning the Purpoſe of Generation till afterwards; their Birth and Education, and in the Care of
as being but a ſecondary End in Dignity, though not in dire&ing the Family; altho' ſhe be able to af-
Neceſiry. Now this Bottom we take to be falſe. ford little Aſliſtance in deep Speculations and in
When God was pleas’d to give Man a Help-meet ſtudious Enquiries. Juvenal's ( 1 ) Advice hach
for Him (a), and afterwards commanded the Pri- ſomething in it beſides Satýr.
mitive Couple to increaſe and multiply (6), He
did not hereby ordain two different Ends of Mar Non habeat matrona, tibi quæ jun&ta recumbit,
riage ; but the latter Words ſeem deſign'd to de Dicendi genus, aut curtum fermone rotato
ſcribe the chief Fruit ariſing ( through the Divine Torqueat enthymema, nec hiſtorias ſciat omnes,
Benediction ) from the Mutual Aſistance firſt men Sed quædam ex libris, ou non intelligat: Odi
tion'd. And indeed, if the bare Delight of Con Hanc ego, quæ repetit volvitque Palamonis artem,
verſation had been the principal Intent of the Servată ſemper lege de ratione loquendi,
Creator, what need was there of a Difference in Ignotoſque mibi tenet, antiquaria, verſus,
Sex? For take away the Procreation of Off-ſpring, Nec curenda viris Opicæ caſtigat amica
together with the Pleaſures, which by the Ap Verba : Soleciſmum liceat dixiſſe marito.
pointment of Nature, ſweeten and recommend
Sat. 6. V.488, doc.
it, and Men alone would have been more agreea-
ble Companions, and more able Affiftants to each O! what a Mid-night Curſe has he, whoſe ſide
other. And thus we ſee, that Boys and old Men, Is pefter'd with a Mood-and-Figure-Bride!
thoſe who have not felt the Paſſion of Love, and Let mine, ye Gods! (if ſuch muſt be my Fate ;)
thoſe who are paſt it, agree in preferring the No Logick learn, nor Hiſtory tranſlate;
Converſe of their own Sex, to all the Charms But rather be a quiet, humble Fool :
and all the Entertainments of the Fair. But I hate a Wife, to whom I go to School.
Mr. Milton ſeems to dream of ſome more delicate Who climbs the Grammar-tree, diſtinctly knows
and more refin'd Pleaſures; and frames the Idea Where Noun, and Verb, and Participle grows;
of a Wife ſuitable only to the Genius of a Wiſe Corrects her Country-Neighbour, and abed,
and Learned Husband : He would have her able For breaking Priſcian's, breaks her Husband's head.
to be the Companion of his Studies, or to refreſh
Mr. Dryden.
him with her Wit, when he comes from ſeverer
Meditations, to compoſe his Cares with ſweet Strabo (c) reports of the Brachmans, that they
Diſcourſe, and charm away a melancholy Fit. never communicate their Philoſophy to their Wives :
Whereas although there is no conſidering Man, leaſt, if they prove wicked, they ſhould divulge some
who would not infinitely prefer the Pleaſure of Secrets which ought to have been conceald from the
the Mind, to the ſhort and empty Gratifications Profane; or, if they happen to be good, they ſhould
of Senſe: Yet, it is ſo very difficult, to find a deſert their Husbands. For the equal Contempt of Plea-
Woman of this Philoſophical and Elevated Tem- ſure and Pain, of Life and Death, is no good Princi-
per, that there is ſcarce any Man Eminent for pie to fit a Perſon for a State of Subje&tion (2).
Wiſdom and Learning, who might not ſue for a This Remark will hold good in general of
Divorce, on this Pretence. And therefore, if Mr. Milton's Arguments, that they prove juft no-
there be any Perſon of ſo mortified a Spirit, as thing at all, in caſe it be apparent, that our Sau
to think the continuing of his Name and Race, viour declar'd Adultery to be the only ſufficient
fo mean and worthleſs a Deſign, and who feels Cauſe of Divorce (é). To ſeem hard in ſome
no Pains, that the Fair only can cure, he ſhould particular Inſtance, is no Obje&ion againſt the
on all Accounts be advis’d to lead a ſingle Life: expreſs Words of a Law. We are not preſently
For, 'tis no wonder, if Coldneſs and Gravity for repealing thoſe Human Conſtitutions, which
prove ſo ill Companions for Charms and Beauty. appearing Uſeful and Beneficial to the Common-
Laſtly, whatever the Affertors of theſe Opinions wealth in general, do yet turn to the Prejudice
pretend, 'tis impoſſible they ſhould give any o- of one, or two, private Perſons : Becauſe theſe
ther Reaſon, why the Converſation of Women are look'd upon as Inconveniencies which 'tis im.
was rather inſtituted as a Help for us, than that poſſible to avoid.


Mr. Barbeyrac's NOTES on Chap. 1. S. 24.
(?) Fuvenal there pleaſantly laughs at the Learned Women of his time, who falfily pretended to Arts and Sciences,
or the Defects of that ſmall Number of Women, who are, or might be truly knowing.
( a ) Genef. II. 18.
( b ) Ibid. I. 28. ( c ) L. 15. p.490. Ed. Gen. Cafaub.
Hippol. Coron. V. 640, 641.
From a Woman wiſe above her Meaſure
Protect me Heaven.
(c) Vid. lib. c. 12. f. 21.
The
( ) Euripide

Chap. 1.
351
Of. Matrimony.
8
The only Point he gains is this, that if the bable that GOD deſign'd to lay a heavier Yoak
Saying of Cbrift will bear another Interpretation, on the former than on the latter (c). We are
it ſhould ſeem more agreeable to the Goſpel-Cle- ! commanded in Holy Scripture to remove from
mency and Goodneſs, to follow a milder Senſe, us all Obſtacles of Piery : Amongſt the chief
chan chat which is at preſent receiv’d. The ' of which we may fairly reckon the Froward.
whole Strength of his Reaſons may be thus re 'neſs of an incorrigible and inſeparable Compa.
preſented in Thort. Incorrigible Diſparity of non. It is repugnant to Nature, that ewo
Mind, or Stubbornneſs of Temper, rendering Minds directly oppoſite, and admitting of no
a Woman unfit to live in Society with ſuch a Poſſibility of Union, ſhould be tied together in
particular Man and hindering the chief Bene a Bond never to be broken. The Chriſtian Em-
fe of Matrimony, mutual Help and Refreſh perours (d) have declar'd it as their Judgment,
ment, is a much weightier Cauſe of Divorce, • that the Plotting of either Party againſt the Life
than any Natural Defect, any Diftemper, any of the other, is a good Reaſon of Divorce: and
Uncleanneſs of Body, which yet were allow'd how many Men's Lives have been unhappily
as lawful Pleas by the Jewiſh Diſpenſation ( a ). ' ſhortned by theſe continual Griefs and Diſcom-
No Partnerſhip can oblige Perſons concern'd, in . forcs ? Marriage is a Society: But human Societies,
Contradiction either to the chief End of its In 'inaſmuch as they are held together in a Moral
' fticution, or to the Intentions and Hopes of Bond, conſiſt racher in the Union of Souls than
both; or of either Member. Now it was the of Bodies. Should we ſay otherwiſe of Mar.
Deſign of the wiſe Creator, not to give Man riage, we ſhould degrade it below the coupling
a Domeſtick Torment, but a kind Help to join of Beaſts, in which we frequently obſerve ſome
with him, not only in the bringing of Children ſort of Affection and Good-will in the Mates to
into the World, but in the Education of them, each other. When, therefore, the Soul doth
and in the whole Buſineſs of Life ; which End not find in Matrimony that ſweet Agreement
'incolerable Sowreneſs of Temper doth plainly which it ſought, ſo ill-match'd a Pair live rather
pervert and deſtroy. It looks abſurd and unrea ' in the Miſery and Hardſhip of a Priſon, than
lonable, that the Canon-Law ſhould without in the Comfort of Society. Solemn Oaths, if
Scruple declare Impotency a ſufficient Cauſe of either in themſelves improper, or tending to the
diffolving Matrimony, and yet allow no Re • Prejudice of a Third Party, are capable of a
gard to the Manners and Diſpofitions of the Diſpenſation; and hath not the Marriage-Co-
Parcies: eſpecially ſince the former may imme venant a good Right to the fame Favour? Nor
diately be diſcover'd; whereas 'tis uſual craftily will it ſignify any thing to anſwer here, that
to diſguiſe and conceal the latter, 'till the poor unhappy Matches are laid on Men by Divine
Man runs ignotantly into the Snare, whence Providence, for the Tryal and Exerciſe of their
he can never be releas'd. It is againſt the Law Patience. For Diſeaſes and other Calamities
of Charity; nay, it is moſt barbarous and inhu- are moſt certainly ſent from Heaven; and yet
man to confine and chain down a Man to ſuch the Application of human Remedies was never
'Miſeries as are not to end 'till his Death; and forbidden in ſuch Caſes.
which would admit of an eaſy Cure, did not After this, he holds a long Diſpute, concerning
the Severity of this poſitive Ordinance ſtand in the Permiſſion of Divorce among the Jews. “For,
the way: in as much as God Almighty, in his ſays he, if it be in the Nature of the Fact Adul-
Laws and Commands, ſeems to have mercifully 'tery for either Party, after a Divorce, to marry
accommodated himſelf to the Infirmity of hu again, it follows that Moſes eſtabliſh'd Adultery
man Nature. The Holy Scriptures preſcribe by a ſolemn Law. But to imagin this of Inſti-
Matrimony, among other Reaſons, for the a tutions which had God for their Author, would
voiding of Temptations to Incontinence. But not only be abſurd, bue moſt profane and im-
now the Man who can find in Marriage no Reſt
or Comfort to his Mind, who is perpetually He likewiſe reprehends thoſe Authors who af-
teiz’d and diſturbid, by an untoward Partner, firm, that the Jews had not a Law of Divorce but
muſt needs be affaulted with ſtronger Tempta- rather a Diſpenſation. A Diſpenſation, he obſerves,
tions, chan if he liv'd in Celibacy. For his is of two kinds, either properly ſo called or im-
Heart will be ever full of Diſcontent; and be. properly. . The latter is rather a particular and
cauſe his Wife is ſo unpleaſing an Object, he exceptive Law, ablolving and diſengaging from
will ſeek to beltow his Love and himſelt elles a more general Command, for ſome juſt and
where. Maimonides, amongſt the Reaſons of reaſonable Cauſe: as that mention'd Numb.IX.6,
'the Law about Divorce, alligns this for one,
c. and Deut. XXV. v. 5. and that in Leviticus,
'That the Peace and Tranquillity of particular of marrying the Brother's Wife, upon his De
Families might, by this means, be the more ceaſe without Iſſue. A Diſpenſation, properly
ſúreliv prefervå (6). Which Reaſon affe&ing ' ſo called, obcains only in particular Caſes rare.
Chriftians as much as Fews, it cannot ſeem' pro- ' lý happening, and therefore not ſpecified in
6
pious.
6
6
( a) Deuteron. XXIV. 1.
( b-) So Bodinus, De Repúb. l. 1. c. 3. affirms, Never was any Law more juſt and
boly than the Divine Ordinance of Divorces, either to curb the Pride of Women, or to reſtrain the Anger and Violence of Men.
Varenius Defeript. Japon. cap. 12. reports of the Faponeſe, Divorces are very frequent in this Nation, though the nobler
Perſons fill keep the repared Wife in their family, and take care of her Maintenance and Support. On this account, the Wo-
men apply their End avours to diſcover their Husbands Temper and Humour, by which means they may in all things gratify
and pleaſe them, and be ever laying new Engagements on their Minds
. And being once thrown off, they difſemble the Injury,
and make not the leaft Complaint, that by the Sweetneſs of their Converſation, and Readineſs of performing all kind Services,
they may recover themfälves in their Affeftions. (d) See the Law already quoted in Sect. 22.
B b b 2
che
93
352
Of Matrimony.
Book V

$
8
tervene.
Lord explains thefe Words very fully, when he ſays, Mar. X. 6. God created Male and Female, that they twain might be-
ſuch as Adulteries.c. 28. ſpeaking of the Empreſs Mary, Wife of Honorius, ſays, Kai tò mag'risiar mis uíçon ensivas,
* the Law, but left to the Deciſion of Charity, and vorce as a Remedy to unhappy Marriages, is a
to the Prudence of the Judges: As upon ex-
* remarkable Evidence of the impair'd Condition
treme Hunger, it was lawful for David and his
of our Nature.
Followers to eat the Shew Bread (a): So thar To conclude; Mr. Milton farther cenſures thoſe
this ſort of Diſpenſation is nothing elſe but the who alledge, that this Liberty of Divorce was
'interpreting a Law according to Equity. therefore granted to the Jews by Moſes, becauſe
Here 'tis worth our Notice that he confounds they had been accuſtom'd to it in Egypt. For
Diſpenſation and Equity with each other; where now, when the Weight of the Egyptian Yoak was
as there is really a wide Difference between 'em. ftill upon their Shoulders, muſt needs have been
But, as to the Argument, this is certain, whoe- the moſt proper time of teaching them to forget
ver will maintain the Jewiſh Divorces to have pro- the Cuſtoms of that Country. As we ſee ſo mas
ceeded in the way of Diſpenſations, it lies on him ny ftri&t and excellent Laws given them againft
to prove, that there was then extant ſome gene- Idolatry, which they had leen praaiſed every Day,
ral Law, declaring Matrimony not to be rever- during their Servitude and Confinement.
fible upon account of Manners and Temper ; But theſe Matters we leave undetermin'd, as
which Law muſt either have been a Branch of not tending dire&ly to our main purpoſe.
Nature's Ordinances, or a Divine Poſitive Inſtitu XXV. The neceſſary Qualifications required
tion. As for thoſe words in Geneſis II. 24. (b), by the Law of Nature, in Perſons rightly con-
and thoſe two ſhall be one Fleſh, ſome are of Perſua- tracting Matrimony, are a Fitneſs or Ability,
fion, that they expreſs indeed a moft ftrict Part- both Phyſical and Moral
. By the former we una
nerſhip, and ſuch as to break off on a flight ac- derſtand ſuch a Conftitution of Body as is capable
count, could neither be decorous nor advanta- of attaining the chief End of Marriage, the Pro.
geous to Mankind.
But it doth not hence fol- creation of Iſſue ( 1 ). Therefore ſuch Perſons
low, that the Knot cannot be untied upon Rea- as labour under a perpetual and incurable Impo-
fons which ſubvert the very End and Deſign of tency, ſuch as Eunuchs and the like, ought not
Matrimony: As it would be ridiculous thus to ar to aſpire to the Conjugal Honour. It was cer-
gue, GOD joirs Man and Wife together, therefore it tainly an unnatural Cuſtom in Egypt, to allow the
is not in the Power of Man to join himſelf to whom he Eunuchs Wives, becauſe they laid claim to fome
pleaſeth; or, therefore no buman Covenant ought to in- inferior Degree of uſeleſs Pleaſure (c). And
But what ought to be inferr'd is rather here a Doubt may ariſe, whether we can pro-
this; God joins the Parties by the Mediation of perly call it Matrimony, when an ancient Couple
their Deed and Covenant; therefore it is his Will are link'd together without any Profpeof a
they ſhould not be ſeparated, unleſs that
Cove- Bleſſing from the Bed. Dionyfius, in Plutarch (d),
nant be on one ſide or the other tranſgreſs’d. when his aged Mother deſired him to beſtow a
Mr. Milton proceeds to enquire into the Opi- Husband upon her, replied, It was in bis Power
nion of thoſe who aſſert, chat Divorces were by to do Violence to the Laws of bis Country, but not to
the Divine Law permitted only, and not approved. the Laws of Nature (?). Yet in moſt common.
This he takes to be an irreverent Reflection on wealths theſe ſort of Marches are tolerated ; in
Almighty God; in as much as it betokens Infir- as much as the other End of Matrimony, mu-
mity in a Governour, to allow his Subjects in a tual Aſliſtance and Comfort, will hold as ſtrong-
ny Practice, to which he does not really give his ly here as in any other Caſe (f ). Perhaps
Approbation And why muſt the Jews alone we ſhall not ſpeak improperly if we call theſe
have been ſo notorious for Hardneſs of Heart, ás (2) Honorary Marriages
, as we term thoſe Offi-
not to be able to comply with the ſuppos'd Pri- ces Honorary, in which a Title only is conferi'd,
mitive and General Ordinance, when ſo many without Action or Buſineſs. Nero, when he de.
Chriſtian Nations and Ages have yielded a ready ferted his Wife O&tavia's Bed, excuſed himſelf
Obedience to it?
with faying, (ufficere fibi Uxoria Ornamenta (8),
On thoſe words of our Saviour, from the Begin. He was contented with the bare Ornaments and Badges
ning it was not ſo, fome thus deſcant: In the of Marriage; in Alluſion to the Triumphalia Orna.
• State of Innocence ( 2 ) Human Manners were menta (b), ſometimes beſtow'd on Perſons withe
more perfect and excellent, than to give occa out the real Solennicy of a Triumph. The Caſe
* fion to any ſignal Trouble and Diſagreement: of David and Abilag' ( 1 ) ſeems to fall under this
And therefore the Neceſſity of applying Di- imperfect Matrimony. Tho' Solomon, in all Ap-
Mr. Barbeyrac's NOTES on Chap. 1. S. 24, 25,
(2) A fine Explication ! As if Men had remain'd ſo long in a State of Innocence, as to make uſe of Divorce. Our
tome One Fleſ, and he no longer twain, but One Flesh, i.e. The Creator intended, that Marriage ſhould be ſo freight and
faft an Union as riever to be diſolvd but by Death, or by ſomething extremely contrary to the Nature of that Society,
( 1 )
BUDENS dissen, Nyine dvee. "To put a Virgin in the Marriage-Bed before the proper Age, is no leſs than to do an Injury
( 2 ) See the Parc mic Juris Germanici of Mr. Hertius, Lib. I. Chap. 67.
(a) 1 Sam. XXI. 6. Matt. XII. 3, &c. (b) See Mr. Le Clerc's Comment upon the Place.
ad Deuter. c. XXIII. v. I. Genef. c. XXXIX. 0. I. (d) In Apothegm. p. 175. 8. Ed. Wech.
Declam. 306. p. 464. Ed. Lugd Bat. There may be ſome kind of Unchaſtity even in Marrying. Idem Declam. 2. p. 22;
in fin. An old Husband is (often') the most humble Inſtance of Slavery, and is the more charmid and overcome with the
Magick of the Fair Sex, the colder bis own Powers are in the Reception of it. Comp. Val. Max. l. 7. 6. 7. 8. 4.
(f) v. Lib. V. t. 4. 7. 27. C. de Nuptiis.
(8) Sueton. Ner. Co 35.
(h) Sueton. Auguft. c. 38,
(i) 1 Kings I.


1


and Violation to Nature.

(c) Grot.
(e) uintil.
pearance,

Chap. I.
.
Of Matrimony.
353
chere is no Error, no Flaw (b) in the Eſſentials, in Natural Law. For it is in the power of Civil
pearance, efteem’d the Marriage good and valid; which was his chief Aim (e) Much leſs thall
In as much as he gave Capital Judgment on Ado- it be lawful to break off a Match, or to forbear
nijab, for begging her for his Wife; becauſe this conſummating, when a Man hath catch'd at the
Actempt of marrying the King's Widow (which Bait of a ſuppoſed Fortune, without bargaining
in the Jewiſh Conſtitution was accounted un- for any particular Summ. And therefore the
lawful,) Thew'd he was driving on fome De- Epbori in Sparta, did very juſtly in fining the
fign againſt the publick Peace and Eſtabliſh- Gentleman, who having been contracted to Ly.
ment ( a ).
Sander's Daughter, in her Father's Life-time, re.
XXVI. It is farther ſuppoſed in Matrimony, as fuſed her, when thar Great General was found
in all other Covenants, that the Parties contra to dye in ſo poor a Condition (f).
&ing it, have ſufficient Uſe of Reaſon ; that
What we have been offering, holds good only
and that no unjuſt Fear is on either ſide occa. States to Enađ, that no ſuch Clauſe, belonging
fion'd. In this laft Point, the Jewiſh Civil Laws indire&ly to Matrimony, ſhall hinder or defer
were very particular ; by them, if the Woman the due Conſummation of it.
was compell’d by Force or Fear, the Eſpouſals XXVII. A Moral ability of contracting Matri-
were revers'd, but not on the other ſide, if the mony is wancing in Women, already dilpos'd of
Man alledg’d Compulſion; becauſe there could to other Men. For the Right of the Husband
not be the ſame Preſumption of any Violence or over the Wife continues ſo long as he doth not a-
Fright offer'd him: And if the Conditions had đually renounce it. Therefore to marry ano-
diſpleas’d him, he might afterwards have reject- ther Man's Wife, not duly loos’d and ſeparated
ed her (c). In like manner, if there were a from him, is not only unlawful, buc void and in-
Miſtake, either as to the Perſon, the Objea of effe&ual: Becauſe it was not in the Woman's
Conſent, or in any Quality, either relating to power to make this ſecond Engagement, whilſt
Matrimony itſelf, or ( 1 ) ſerving as a Condi- the firſt continu'd in force; and to cohabit with
tion on which the Confent was built, (eſpecial- this new Husband, is to live in conſtant Adulte-
ly in caſe of Guile or Deceit uſed on either ſide) ry, For the ſame reaſon, in Countries where
the Contract is manifeſtly void. Thus a Wife Polygamy is prohibited, a Man cannot without
pretending Virginity, and afterwards diſcover'd Sin proceed to another Marriage, whilft he is
defective, was by the Divine Law, not only held by the Bonds of a former.
turn'd away from her Husband, but made liable
By the Fewiſh Law, it was criminal for a Man
to fevere Puniſhments. Tho' the barbarous Na- to take his Wife again whom he had put away
tions appear not to have been over-curious in (8). The reaſon of which Inſtitution no doubt
this Point of Purity (d). Thus, again, if a was to prevent the Frequency of Divorces on
Man, in the Covenant of Marriage, exprelly in- flight and petit Occaſions, by cutting off all
ferred a Clauſe, importing that he took ſuch a Hopes of Re-union, when Pallion ſhould grow
Woman for his Wife only in cafe ſhe were of No- cold (b). (1) Yer ſome, from Jerem. III. 12.
ble Blood, of ſuch a Forcune, or the like; he collea, that it was lawful to receive again the
thall not be obliged to conſummate the Match diſmiſsa Woman, provided The had not contra-
till the ſuppos’d Condition be made appear. But cted a new Marriage.
It is remarkable in the Turkiſh Alcoran, that a
if
, negle&ing to enquire into the Truth, he ſhall
......,
have proceeded to Conſummation, he ſhall by Man is allow'd to take home his Wife, even af-
this Aą be judged to have tacitly renounced the ter he hath three times diſmiſs'd her; but not un-
conditional Clauſe; and therefore if things do leſs ſhe has been in the mean time, married to
not afterwards come up to his Hopes, he hath Another, and been diſcarded by him likewiſe.
no good Reaſon for Divorce. For the Contract The Mahometans efteem this as the Higheſt Infa-
did not-run in theſe Terms, if you do not bring me my and Reproach ; and therefore the famous Ba-
ſuch a Fortune I'll Divorce you ; but, if you do not jazet thought he could not beſtow a heavier Curſe
bring me ſuch a Fortune, I'll not marry you; which upon Tamerlain, who ſent to defie him to War,
are manifeſtly different. He, then, who, in the than by replying, if he does not come as he threatens,
Affair of Matrimony, thus feels the Charms of may be fetch bis Wife back after be bath three times
the Portion more than of the Lady, is very ridi- Sent ber off (i). It is another Precept of the Al-
culouſly Senfeleſs, if he let the Buſineſs be fi- coran, that a Man who puts away bis Wife, ſhall
niſh'd before he hath good Security for that fix a certain Time, during which, it ſhall be un.
Mr. Barbeyrac's NOTES on Chap. 1. g. 26, 27.
(1) See what Mr. Bayle ſays in his Anſwer to the Provincial Queſtions, Tom. II. p. 40, Ego co on the account of
Madam de Mazarin.
(a) Grot. ad Reg. d. 1. v. 11,17; (b) See above in L. 3. . 6. f.11. (c) Selden. de Uxore Ebræa,
2.6.4. d) See the Cuſtoms of the Barbarians, Diod. Sic. 1. 5; c. 18. of the Armenians and Lydians, Strab.
1.11. of the Babylonians, Herodotus Clio ; of the Thracians, Idem Terpſich. of the Adrimachide and the Nafomones, Id.
Melpomen. See Ariſtippus's foul Fancy in Diog. Laert. 1. 2. Add Boxborn's Notes on Sueton. Calig. c. 40. towards the
End. Faftin. 1. 18. c. 5. n 4. Paul. Venet. 1.2. c. 37. of the Inhabitants of Tebeth and Cathay.Conftantire the Great
aboliſh the like Immodeſty amongſt the Phæniciang; as we are told by sozomen: Hift. Ecclef. lib. I. cap. 8. lib. V.cap.9.
(9) Eſpecially fince the Managers of Matches uſually anſwer the Chara&ter which we find in Libanius (Progymn. p.6.)
They come armed with a great many fiudied Flouriſhes and fine Sayings, and bý leſſening what's preſent, and magnifying
what's abſent, eali'y prevail on the kind and credulous.
(f) Vid. Ælian. V. H. lib. VI. c. 4.
(g) Deu-
(h) Grotius ( ad. d. I. ) gives this Reaſon, Becauſe fucb a Prašice looks like lending One's Wife
to another Man, and might yield Sbelter and Countenance to the most ſcandalous Debaucheries.
(i) V. Laonic.
lawful
teron. XXIV. 4.
Chalcondil. I. 3.

354
Of Matrimony.
Book VI.
always
lawful for her to chuſe a new Husband : That not take Wives from amongſt their near Rela.
he may thus uſe Deliberation in determining cions, thus propoſeth his Reaſons after his doubt
whether or no to take her again into Favour.
ing manner. Was it that they might ſpread their
(2) Foſephus (a) mentions a Jewiſh Ordi. Kindred more widely, and encreaje be Number of their
nance forbidding a Man to marry Her whom he Alliances; giving Wives to fome, and taking them from
hath perſuaded to leave her former Husband; others? Or did they it,, to avoid Conjugal Diſcords?
ſince this irregularity could not but breed high which, ſhould they ariſe between Perſons allied by Blood
.
Diſcontents and Troubles. On the ſame good would deftroy, not only the Love between Husband and
Realon are thoſe Chriftian Canons founded, which Wife, but the very trinciples of Natural Affections (f)?
deny an Adulterer, the liberty of marrying the Or, becauſe they knew the weaker Sex to stand in need
Woman whom he thus defiled (b). In this of many Defenders, were ther
, therefore unwilling to mara
Point Euripides's (c) Obſervation ſeldom fails, ry their Kin/women, that they might be ready to Alif
and Prote&t them if injur'd by other Husbands ($)?
The Wretch that ſtains Another's Bed, The firſt of theſe Reaſons, Ibe ſpreading and im.
And takes the Vile Adultereſs to bis own,
proving of Alliances, is confirm’d by the Approba.
Condemnd to wed ber for his Puniſhment,
tion of St. Auguſtin, and of Bp. ( umberland (b).
Is wildly vain, if be expects she'll prove
But on this way of arguing we may obſerve,
In her new Vows more chaſt than in her old.
that as an A&t leſs Uſeful or Profitable, is not
unlawful, ſo the Profit here alledg’d is not attain-
XXVIII. Perfons allied within ſuch a Degree able by this only Method: In as much as a far
of Blood or Affinity, are likewiſe under a Moral greater Advantage may reſult from the quite con-
Incapacity of contra&ing Marriage (d); in ſo trary Practice ; char is, if the neareſt Relations
much that it is not only from the Beginning un would ſtill match themſelves to each other, their
lawful to ſtrike ſuch a Match; but this Engage. Eftate and Wealth would be hindred from paſſing
ment, tho'actually concluded, is never eſteemed out of the Family. And on this account in the
Vicious and Defective. This is an Opinion ge. Divine Law, Numb. XXXVI. 3. Women poffefs'd
nerally receiv'd by all Nations of Manners and of an Inheritance in immoveable Goods, are com
Civility; yet to aſſign a ſolid Reaſon for ir, ſuch manded to take Husbands only from amongſt
as ſhall flow, like other Precepts, from the So- their Kindred; leaſt the Land ſhould run out of
cial Nature of Man, ſeems at firſt ſight, a Point one Tribe into another. Yec in caſe they would
of no ordinary Difficulty. Some Enquirers are quit their Title to the Inheritance, they were al-
content to fly to the Abhorrence of Human Af- low'd to marry any Perſons, of their own Nation.
fections in this caſe. All Perſons, ſay they, The Women of the Tribe of Levi were not con-
who are not corrupted by, Ill Education or cern’d in this Injun&ion, as being incapable of
• Wicked Habits, do find in their very Senſes, a holding Land (i). In Peru, during the Com-
Repugnancy and Averſion to ſuch Impurities ; mand of the Yncas, it was provided by Law, that
which is a plain Argument that thoſe Things every Man fhould chuſe his Wife out of his own
are prohibited by the Law of Nature. But in- Cicy, and his own Family: After the Marriage
deed this Repugnancy of Affections is not equal was concluded, a Houſe was built for the new
ly to be diſcover'd amongſt all people, nor al Couple, at the Common Charge, and the neareſt
ways, even amongſt thoſe who pretend to the Relations preſented them with Furniture ( k ). It
Art of Culture and Refinement: And when Au- was one of the Attic Laws (), that Heireſſes
thors urge it for a Reaſon, it would not be alto- jould be caken in Marriage by their neareſt
gecher abſurd to anſwer them, that the Abhor- Kinſmen, to preſerve the Riches of their Ance-
rence may perhaps ariſe not ſo much from any itors in the ſame Line (m). But the ſeeming
in-bred Principle, as from long Uſe and Cuſtom, Hardſhip of this Ordinance was ſufficiently made
which often counterfeit Nature. Nor in our Sear. amends for by another, which commanded that
ches after Natural Law, is it very ſafe to rely up if the circumſtances of ſuch a young Woman
on the bare Judgment of our Senſes and Affe- were but very mean and inconſiderable, the next
&ions; ſince at this rate we mighe conclude, that of her Kindred ſhould nevertheleſs be obliged to
thoſe Things are by the fame Law commanded wed her, or elſe to give her a Fortune ſuitable
towards which our Šenfes and Affe&tions are car to her Birth and Quality (). 3 Victolus
ried on with a vigorous Inclination; whereas, XXIX. In order to the ſettling of thefe Que.
on the contrary, it is manifeſt that thoſe Ads to ftions, it is in the firſt place neceſſary, we ex-
which we are ſo violently prone, Reaſon and amine how it comes to paſs, that altho' the Pro-
Nature do really diſallow.
pagation of ro noble a Creature as Man, be in it
Plutarcb ( e.) enquiring why the Romans did ſell a work of Honour and Credit, yet amongſt

Mr. Barbeyrac's NOTES on Chap. 1. 9. 27.
( 2 ) This Law of Joſephus is not conformable to Scripture, and the Tranſlation which our Author follows, doth not
agree with the Greek.
Deut..
(a) Jud. Antiq. I. IV. c. 8.
(b) Gratian. Cauf, 31. qü. 1. c. 1, 2, &c.
(c) Electra, 0.921, &c.
idi Vid. L. 38. t. 10. l. 4. P. 3, 4, 5. D. de gradibus & affinibus.
le) Quaft
. Roman. 108. p. 289. D.
(f) For Inſtance, becauſe there often happen Quarrels between the Husband's Mother and his wife, therefore a Man
( according to this Argument) ought not to marry one that ow'd a natural Reverence to his Mother; that is, his Sifter
.
V. Auguftin De Civitate Dei, 1. XV. c. 16. cited by Gratian. Cauf. 35. qu. 1. c. 1.
Nat. c. 8. 8. 9.
(i) Vid. Grot ad Matth. I. 16. (k) Garcilaſo de la Vega Comment. Reg. 1. IV. 6.8.
(1) V. Sam. Petit. in Leg, Attic. L. 6. t. 1.
(m) Many Suits of Law falling out amonglt the Pretenders to
theſe Heireſſes, the young Women got the Title of 'Emdixer.
(n) We find a law of Charondas much to the
fame Purpoſe, in Diod. Sice I. 12. c. 8.

(g)
(h) De Leg.
all
Chap. 1.
35$
Of Matrimony.

all civiliz'd Nations, as well the Inſtruments, as mon amongſt the Britains ; We ( ſaid ſhe ) obej
A# of this good Service, Ihould be guarded with the Neceſities of Nature much better than You Roman
fo render a senſe of Modeſty, as nothing but a Dames : for we do that openly with the Beſt of our Men,
Face harden'd by Habitual Wickedneſs can con-
which you do privately with the Worft of yours (f).
quer or ſuppreſs? To which purpoſe we have a
Neither do they throughly clear up the Mate
molt Remarkable Story, recorded by Plutarch (a) ter, who have recourſe to the Holy Scriptures,
and Polyenus ( b ), of the Miletian Virgins, who where the Natural Shame is recorded to have
being, ( 1 ) by ſome ſtrange and unknown Cauſe, been the immediate Conſequence of the Fall
.
driven to a mad Defire of Hanging themſelves; For the chief Queſtion ftill returns, Why the
and their Diftemper admitting of no Stop nor Re- Paſſion of Shame ſhould fix on theſe Parts for
medy; it was at length decreed by a ſolemn. Law, its peculiar Reſidence, when our Hands, and our
that the Bodies of thoſe who diſpatch'd them. Tongues are as readily diſpos’d to aid our finful
ſelves, in this deſperate way, ſhould be carried Luft, and diſorderly Deſires : Nay in as much as
naked through the Common Market. And by the Primitive Tranſgreſſion came by the Act of
this means, whilſt the Fear of Death could make Eating, one might imagine that this Opinion of
no Impreſſion on the Frenzy, the Senſe of Shame Impurity ſhould rather faiten upon the Mouth as
reſtor'd them to their Wics. It is farther remark- ics Original and Proper-Seat.
able, that whatever Nations, in Ancient or Mo-
XXX. The Author of the Treatiſe de Princi.
dern Times, have entercain' a Cuſtom of going piis jufti & decori touching on this Subject now
naked, or of performing in open view, the ſe, before us, in the firſt Place lays down this for a
crec Affairs of Marriage, have been cenſurd and Principle; Every thing which cauſeth Shame is not a
condemn’d by the reſt of the World, as wild and Sin, nor forbidden by the Di&tates of Natural Law (&).
barbarous 66). Now the reaſon of all this, is He inſtanceth in Poverty, mean Cloaths, inno
not ſo eaſy to come at. For as to the immediate cent Miſtakes, Deformity, and the like, which
Inſtruments of this work of Nature, they lie un frequently put us to the Bluſh, tho we can by
der no Scandal of Deformity, and they ſerve to no means lay any Moral Turpitude to their
Charge.
a Great and Worthy Deſign: And therefore, the He proceeds .co obſerve, that the reaſon why
Egyptians and Athenians paid religious Regards to
we would avoid ſuch things, is becauſe they are
them, in their myſterious Worſhip (d). The
the Tokens of ſome Infirmity or Imperfection;
Ad it ſelf as it is agreeable to Nature, ſo is it of from which Cenſures every Man deſires to keep
abſolute Neceflity, and every way proper for the himſelf at as great a diſtance as poſſible. In the
producing of ſo brave and generous an Effect
. fame manner, altho' to diſcover the Secrets of
And therefore, why ſhould the Exerciſe of it be 'the Body be not, in it felf, ſinful, yer a Man
fore Others, create more Shame in a Man, than ought not certainly to uſe ſuch a Freedom in
Eating and Drinking, ſince the Human Species can open view, whenfoever it would prove an Of-
no more be preſerv'd without the former Means,
fence and Blemiſh to Natural Honeſty; which
than the Individuals without the latter ? Nor will is very often the Caſe., A Man hath then on-
Plutarch's Diſtinction ſatisfy the Doubt. There is ly good reaſon to be aſham’d, when he poffefs.
no Pleaſure (ſays he (e), ) which we can more in eth or diſcloſech ſuch Imperfections, as may
nocently enjoy, than that which we receive from Food
make Others juftly deſpiſe him, whilſt appear-
and Nouriſhment. All Men are agreed on this Truib, ing thus below the Character which he ſuſtains;
as they ſhers by their daily Pra&tice. For they eat in full To be ignorant of a Point of Learning is no
Company, and in open View; whereas in their Loves Blemiſh in him who hath wanted the Benefit of
Affairs, they ſeek the Shelter of the Night: Becauſe in Education; but one who hath made a long Pre-
theſe latter Ceremonies, to be Publick and Communica tence to Study, and yet can ſhew no Fruits of
tive, is effeemd as Brurighi and Unnatiral, as to be his Proficiency, may well be aſham'd of the
Private and Secret in the former. As to this point Neglect. Plain Behaviour fits decently enough
of Openneſs and Secrecy, it was a ſevere Re on a Countryman, but would be a faulty Stiff.
turn which a Scotch Lady, in the Emperour Se 'neſs in a Perſon of Breeding. Thus then, he
verus's time, gave Julia Auguſta, when reproach'd who uncovers in publick Sight thoſe Parts of
by her for the Cuſtom of holding Wives in Com- 'the Body which the Cuſtom of the Nation bids
C
Mr. Barbeyrac's NOTES on Chap. 1. S. 29.
(1) See leveral Examples of the like Nature, in Mr.Bayle's Anſwer to the Queſtions of the Provinc. Tom. II. p.92, 93.
in the Margin.
(a) De Virtute Mulier. p. 249. C. (b ) Strategem. 1. 8. c. 63. (c) Thus Pompon. Mela reports
of the Mollynians, that their Love-Affairs are promiſcuous and open. And Apollonius Rhodius in Argonaut. I. 2. has left
this Character of the ſame People ;
The Manners and the Notions they purſue,
Are the Reverſe of ours; in publick View
What we perform, or at the crowded Bar,
They act by Stealth, and make a filent Care :
But what our Modeſty at Home conceals,
Their Tribes proclaim, and every Street reveals.
Like Beaſts, beyond the Power of Shame to move,
Stretch'd on the Ground they ply their Common Love.
tid. Diod. Sic. I. XIV. c. 31. 6. Xenophon. Exped. Cyr. 1. V. Of the Maſſagetans Herodot
. in Clio, towards the End; of
the Nafomones in Melpomen.
(d) Vid. Diodor. Sic. I. 1, 6. 88.
(e) Conviv. Sapient. p. 158. F.
(1) Xiphilin. Epit. Dion. in Sever. Add. Montaiga's Eſays, 1.2.6.12. & Charron de la Sageſſe,1,1.6.2.2. (g) P. 59, c.
him
356
Of Matrimony.
Book VI.

$
C
(the Circumſtances, which if taken away, leave
him conceal, is an Offender againſt Natural Honour or Worth, or from our own Reputation,
Honeſty and Decorum (a). But he may take
which we are oblig’d to ſupport and preſerve.
the ſame Liberty in a Country where the Men But in as much as the external Tokens of Reve-
rence and Reſpect are capable of great Varia.
go naked; as ſuppoſe in the Caribbes, without
the Imputation of Obſcenity or of Sin ( b ).
tion, many Adions are, ( by the ſame People,)
Thus it is accounted Impudence to do ſome conſtrued as an Affrone to our Neighbour, ora
things in the Preſence of Strangers
, without Diſcredit to our Selves, which, upon the change
defiring particular Leave, which we makế no
of Circumſtances, would appear harmleſs and
Scruple of practiſing before our Equals and our
inoffenſive. Upon the Approach of our Saviour,
Acquaintance (c). Thus a Teacher of Ana.
we find St. Peter (g) haftning to gird on his
tomy lays open ſuch Objects to our View, as it
Fiſher's Coat; whereas he was not aſham'd to
would not be decent for him ſo much as to name, work naked with the Companions of his Buli,
were he not engag'd in his proper Buſineſs and
nefs. Becauſe the Dignity of Chriſt, and the Ho-
Exerciſe. The ſame Judgment we are to make nour St. Peter ow'd Him, requir'd a grave and
of the Point before us: For alcho' a Nation, modeſt Appearance and Carriage ; which, in
which doth not cenſure theſe unfeemly Free. the Opinion of civiliz’d Nations are inconfiftent
doms, mult needs have caſt off all Modeſty (d),
with Nakedneſs ( b ). We tranſact many things
and this not without a grievous Sin in their Fore. ' in ſecret with Decency and Convenience, which
Fathers, from whom the looſe Opinion is de if perform’d openly, would be reproach'd as In-
riv’d; yet the Cuſtom being once firmly eſta famous; neither do we reckon it Diſhonoura.
bliſh'd, and ſuch a way of living exempted, by ble, to let the Company know on what account
Univerſal Conſent, from all Marks of Diſgrace, we retire. Laſtly, many Adions paſs unblam'd
the whole People may then openly appear in in Men, which would look inexcuſably impu-
the ſame Manner, and yet contract not the leaſt dent in the other Sex.
Guilt. In as much as they do not apprehend, From St.Paul's manner of Speech, 2 Cor. XI. 17.
or acknowledge in this Practice, any Imperfe- he infers, That when upon the Formality of
ction or Infirmity deſerving Shame; more than begging Pardon, or deſiring Leave of Others,
we do in the Cuſtom of our Women to go with we ſay, or do a thing fairly or civilly, which
their Faces unveild, which in ſome Countries would otherwiſe be rude and indecent; the Im-
would be reckon'd a ſcandalous Breach of Mo propriety here doth not affect the Thing abſo-
deſty (e). We may farther obſerve, that e. lutely conſider'd in itſelf, but depends wholly on
ven in thoſe Nations where the appearing Na-
ked is prohibited, the moſt ſecret Parts are ſome. no Ground for Cenſure : For all that is here
times diſcloſed without Sin, as when they are done, is that the other Party waves and remits
recommended to the Care of Phyſicians, or the Reverence, which was owing to him. He
when Surprize, or Neceſſity, in regard of Time, judiciouſly inſerts this Caution, provided, that by
of of Want, hinders their Concealment ; or the general Cuſtom of the Nation, all Men are allow'd
when Children are wrapt in their Swadling- to indulge each other in theſe petit Liberties. For O-
Cloaths. Becauſe, in theſe caſes, the Mark therwiſe particular Perſons do by no means wipe
of Impudence ceaſeth ; the Diſcovery being off the Blemiſh, when they give themſelves a mu-
made without any laſcivious Deſign (f ). tual Diſpenſation in ſuch Points: As a Company
In another part of his work he repeats the ſame of wild Sparks could not avoid Shame and Re-
Argument; 'The uncovering the ſecret Parts proof, ſhould they, by joint Conſent, go naked
( Tays he ) is not in itſelf, foul or indecent, in a Place of Manners and Civility. Laſtly, He
'but is only render'd ſuch by means of the Cir- makes no doubt but that our firſt parents, before
cumſtances; which Circumſtances are taken, they finn'd, had, in reſpect of Shame ( 1 ), the
either from the Luft of others, or from their innocent Inſenſibility of Children But that im-
Mr. Barbeyrat's NOTES on Chap. 1. $ 30.
(1) This is a falſe Suppoſition; for what ſhould Adam and Eve be alhamd of, when they alone were in the World,
and made One for the Other by the Creator ? When then the ſacred Hiſtorian ſays, They knew that they were naked;
it fignifies only in the Stile of the Eaſtern People, Their Coriſcience accus’d them for the Sin they had committed, in
eating of the forbidden Fruit. See Mr. Le Clerc upon Gen. III. 7. The Example of Infants, alledg’d by Mr. Velthuyſen,
Thews, that Shame is only the Effect of Education and Cuſtom, wiſely eſtabliſh'd to prevent diverſe Inconveniences.
( a ) A Woman in this caſe, as Herodotus expreſſeth it, L. 1. p. 3. Ed. H. Steph. when ſhe throws off her Garments, lays
afide her Modeſty with them. (b) In ſome Parts of Abylínia, the Women go quite naked, without having any
irregular Influence on the Men. Franc. Alvarez Deſcript. Æthiop. c. 32. Add. J. Leri. Hift. Amer. c. 8. & Rochefort De-
ſeript. Inf. Antill. p. 2. c.9. If I miſtake not, amongst fome of the Indians, to go with the Walt cover'd, fell under the
ſame Penalty as Adultery.
(c) And ſince Claudius did not put out the wiſe Ediet, which was fo long under his
grave Deliberation, (Claud. Suet. c.32.) we ftill make a Scruple of offending the Company with ſome kind of Sounds
, which
we reckon not quite fo improper Muſick when we are alone. Add. Diogen. Laert. in vitam Metrol. I.VI.
amongft all civiliz'd People, it hath been, even in Death, a Care Eughuws mobit, to fall in a decent and modeft pofture
.
(e) Plato, ( in Diog. Laert. 3.) ſpeaking of unwritten Laws, proceeding from Cuſtom, inſtanceth in Tò guerèy zo dicases
ru' á negir, not to appear naked in Publick Places. (f) A Pigmy might well be aſham'd of his Size amongit a Peo-
ple of larger Dimenſions ; yet in his own Quarters he is not affe&ted with the Diſgrace,
Ubi tota Cobors pede non eft amplior uno,
Where the whole Troop make but a Foot in height.
Sir Tho. Herbert ( Travels, p. 21. ) reports of Women amongſt the Cafars, that if you give them any thing, they uncover
way
of Civility,
(.
dition of Men, never bath'd with their parents, nor Sons-in-Law with their Fathers-in-Law. vår. Mar. 1. 2. C. 1.8.7:
So in Livy, L. 3. c. 26. The Deputies command L. Quintius, whom they found ſtripp'd at his Country-Work,
of the meaneft Apparel, which yet we could not appear in at a Wedding, or Tolemn Meeting, without great Indecency
and Offence. See Matth. XXII. 12.





6

(d) Since
All, in
mediately

Chap. I.
Of Matrimony.
359
8
mediately after their Offence, this guilty Paf- fion of Shame, engaging Men carefully to cover
fion ſeiz'd upon their mind, by which they ap- and to guard thoſe weak Places, leaft lying con-
prehended
their Nakedneſs to be Indecent, as we, tinually open, they ſhould tempe and invite the
when we grow up to Years of Reaſon, make the Enenıy; and reſtraining the Purſuit of unlawful
fame Judgment. His Inference from the Whole Pleaſures, whilſt Modeſty confines the Exerciſe
is this, . That no Degrees of Marriage are forbid- of thoſe which are lawful, to the Privacy of
• den by the Law of Nature ; tho'to abſtain from Darkneſs and Retirement. Hence our firſt Pa.
ſome is moſt agreeable to Natural Honeſty ( a). rents, after the perfe& Harmony of their Affe-
XXXI. For our part, tho' we do not think this Stions was diſorder'd and impair’d, when they
way of arguing ought altogether to be condemn’d, found the unreaſonable Inclination of Senſe, vi.
yer we chuſe to fix the Shame, now under our Ex- gorouſly ſtriving to force a way through thoſe
amination, principally on theſe two Reaſons : defenceleſs Parts of the Body, could not but con-
Firſt, becauſe Man is a Creature of high and ceive the deepeſt Shame at this wretched Diſco.
proud Conceits, fondly deſirous of Honour and very of their own Imperfe&tion; which, in ſome
Grace, and abhorring any thing that ſeems to meaſure, to diſguiſe and conceal, they had re-
leffen him in theſe Reſpects. Now through thoſe courſe to the ( 2 ) Shelter of Apparel. That
Our-lers of our Body, Nature cafts off the uſe this Original Shame of Nakedneſs ſhould, amongſt
leſs Relicks of what we eat or drink; and theſe many Nations, ſeem to have been quite ſubdu'd
Relicks we have a great Averſion to, not only and effaced, was probably the Effect of Necefli-
upon account of that Uncomelineſs, but in as much cy; when Men being driven on uninhabited
as they ſeem to upbraid us with our mean Con- Coaſts, and having worn out their preſent Gar.
dition, whilſt the greateſt Delicacies of Taft, by ments, found no Supply of new ones, nor yet
being once receiv'd within us, are ſo vilely wanted them, by reaſon of the kind Temper of
chang'd and corrupted. And hence our lofty !- the Climate. Thus their Shame dropt off by de-
maginacion engageth us to be very induſtrious in grees with their Cloaths; or perhaps they ex-
concealing ſo manifeſt Tokens of our Infirmi- preſs’d, for a little time, fome Marks of 'it in
ty (b). °(1) Nature ( ſays Tully ( ).) ſeems wearing a thin Covering round their Middle,
to bave had a moft kind regard to the Dignity of our which ſoon left them quite naked.
Body, by expoſing only thoſe Parts to fight, which ap It's farther obſervable, that our Shame is ever
pear beautiful, comely and agreeable; and by covering encreas'd to a high degree, by the Preſence of
and concealing 1boſe which would be foul and offenſive, thoſe Perſons to whom we naturally owe a Re-
if laid open to view, and ſerve us only for the meer verence, or towards whom we ought to carry
Neceſſities of our Being. This exquiſite Diligence, which our ſelves with Gravity and Caution: ſuch as
Nature bath shewn in the Human Fabrick, men have are eſpecially our Parents and our Children. So
imitated in their modeft Cuſtoms and Manners ( 2 ). that he who cannot be hereby deterr'd from da-
Our ſecond Reaſon is, fince our Affe&tions be. ring to offer, under theſe awful Reſtraints, the
ing depravid and corrupted by the Fall, our irre- open Freedom and Familiarity of the Conjugal
gular Lufts endeavour violently to make a Sally State, is fairly judg’d to have an invincible Fore-
through thoſe Paſſages; and ſince the due Re- head, and to be well prepar'd for the Commiſſion
ftraines, and the legal Methods of Propagation, are of the greateſt Villanies, being poſſeſs’d with
the very Hinges on which Human Order and So- harden’d Impudence, (3.) The moſt violent Diſtema
ciecy leem to turn; Nature, to preſerve her own per of Human Minds, as it is term’d by the wiſe
Dignity, and to cut off, as much as poſſible, all Tragedian re).
Occaſion of looſe Defires, hath invented this Paf XXXII. This Shame or Modeſty may be af-
05
Mr. Barbeyrac's NOTES on Chap. 1. $.31.
(1) Tully's Words are, Principio, corporis noftri magnam Natura ipſa videtur habuiſſe rationem, que formam noftram,
reliquamque figuram, in quâ effet ſpecies honefta, poſuit in promptu; que partes autem corporis, ad Nature neceſſitatem data,
adfpetum eſſent deformem habituræ ac turpem, eas contexit, Ego abdidit. Hanc nature tam diligentem fabricam imitata eft
Hominum verecundia. Quæ enim Natura uccultavit, eadem omnes, qui ſana mente ſunt, removent ab oculis, ipsique nece ti-
tati dant operam ut quam occultiſſimè pareant; quarumque partium corporis uſus ſunt neceffarii, eas neque partes, neque ea-
Tum ufus fuis nominibus appellant: quodque facere turpe non eft, modo occultè, id dicere obfcænum eft. Itaque nec aperta a-
&tio rerum illarum petulantia vacat, nec orationis obfcænitas.
( 2.) The Original Hebrew may be explain'd as if the ſacred Hiſtorian had faid, That Adam and Eve made themſelves
a kind of Cabin, to hide themſelves, after they were ſenſible of the Fault they had committed. See Mr. Le Clerc upon
Gen. III. 7. For theſe irregular Defires, of which our Author fpeaks, could not yet be thought to have place in them,
unleſs we will ſay, that the Love, which Adam and Eve had one for another, was unlawful after they had finned. See
the Note upon the foregoing S.
(3) The Greek is,
'Αλ' η μεγίστη και εν ανθρώποις νόσων
Πασών, αναίδεια
(a) Compare Montaign's Eſays, 1.1. c.35. & Charron de la Sageſſe, l. 1. c.6.& 14.
(b) See 1 Cor. XII. 23,24.
(c) Offic. 1. 1. c. 35.
(d) This ſeems to be taken out of Xenophon. A pomnem. l. 1. where Socrates is ſpeaking
of Providence. Add.'Ambrof. Ofic. 1. 1. c. 18. Herodotus ( Euterp. p. 64. towards the End ) reports of the Egyptians,
that They eat their Food in the publick Streets; but retire Home when they have Occaſion to get rid of it; upon this Principle,
That whatever was foul and indecent, yet neceſſary, was to be perform’d at Home in ſecret, and every thing which was not foul,
Abroad. Yet we may remark ( by the by) that the ſame people were jefted upon, for tempering their Clay with their
Hands, and their Bread with their Feet.' In Sadus's Perfick Roſary ( c. 8. ) this Reaſon is given why the Ring ſhould be
worn on the Left-Hand, tho' lefs Honourable than the Right; Becauſe the Right-Hand is a ſufficient Ornament to itſelf.
Aloys Cadamuſt ( Navig. c. 10.) tells us of the Azeragians the Inhabitants of Senega, that They are as much aſham'd of
their Mouth, as of any other Part of the Body; and therefore they ordinarily go with a Cover upon it
, which they only take off
on the account of Eating. They take it for a kind of Sink, always ſending out Stench and Naftinefs
. Leo Africanus (1.1.)
gives much the ſame Relation, and by him the People are callid Senegates. so (c) Eurip. Medea, v. 471, 472.
Huart ( Tryal of Wits, C. 1.) gives another Reaſon for this Modeſty, which we have not leiſure now to examine.
Сс с
ſign'd
360
Of Matrimony.
Book 1.
fign'd as one of the principal Cauſes, why we
The Reaſon alledg’d by Socrates in Xenophon
eſteem Marriages between Kindred, in a direct ( ), appears very poor and Infipid, as if nothing
Line, to be forbidden by the Law of Nature: e-
defervid Blame in theſe Matches but the great
ſpecially ſince there never did, and probably ne difference of Age, the effect of which muſt ei-
ver will any ſuch Cafe happen, as fhall render ther be Barrenneſs, or ſuſpicious and unreſemb.
theſe Matches necef ary for the Prefervation of ling Iſſue : For are there not many Marriages
Human Race ( 1 ) ( a ). And with re- in which the Years of the Couple ſtand at as
gard to this Reftraint, we are to expound the wide a diſtance as thoſe of Parents and their
Reaſon urg'd againſt thoſe Marriages by Groti- Children?
us : ( 6 ) The Son, (ſays he,) being Superior by We cannot on this Head, but recommend the
the Law of Matrimony, could not pay to his Mother, Chaft and Pious Regard of the Roman Laws,
if at the ſame time his Wife, that Reverence which which out of Reverence to the bare Name of a
Nature requires ; no more could the Daughter, in the Father, allow'd no Man to marry ( 4 ) his Adopa
like Caſe, to her Father ; becauſe, altho' the Conjugal ted Daughter, tho' all the Right of Adoption
Paet would keep her ſtill his Inferior, yet so near a had been formally taken off and revers'd (d).
Familiarity muſt needs prejudice her Natural Duty.
And the Emperour Claudius acted much beyond
( 2 ). For take away the Force of this Ori- his ordinary Capacity, when a Woman refuſing
ginal Modelty, and it will not appear ſo very to acknowledge her Son, and the Arguments ap-
abſurd, for a Mother to marry her own Son; pearing dubious on both sides of the Cauſe, he
ſince it is agreeable enough, that a Husband oblig’d her to a Confeflion of the Truth, by ore
ſhould pay Reſpect and Honour to his Wife on dering the Young Man to demand her in Mara
account of her extraordinary Virtue, Wiſdom, riage ( e ).
or Birth. Tacitus obſerves of his Father and Mo Some have attempted to thew the high Inde.
ther-in-law, ( Agricola and his Lady ;) vixerunt cency of ſuch a Pra&tice, from the ſtrange Con
mird concordid per mutu am charitatem & invicem fe fufion it would cauſe in the quite contrary Names
anteponendo : They livd in wonderful Agreement, and Titles of Relation. Thus Mirrba argues with
ibro' the Engagements of Mutual Affection, and by herſelf in Ovid,
their kind Care of giving each the Preference to the
other. Much leſs inconfiftent would it be, for a Nec, quot confundas do jura do nomina ſentis?
Woman to pay to the ſame Man the Duty of a Tune eris et matris pellex de adultera patris ?
Daughter, and of a Wife, did ſhe not find a Tune foror nati, genetrixq; vocabere fratris (f)?
Reſtraint from the above-mentioned Principle.
Mr. Barbeyrac's NOTES on Chap. 1. $ 32.
( 1 ) Mr. Le Clerc ſuppoſes, that the common uſe of Sodomy, which they had been brought up to, might contribute
much to this, for he proves very well that they could not be carryed to it by this Motive that Mankind ſhould not
periſh. See his Note on Gen. XIX. 31.
( 2 ) Grotius does not mean fo : He only ſpeaks of a Reſpe&t which is inconſiſtent with Inferiority, or at leaſt with the
Equality which Marriage introduces. It ſeems, as if God by Moſes the fewiſh Lawgiver had given us that Reaſon, when
he commanded Levit. XVIII. 7. Thou shalt not uncover the Nakedneſs of thy Father, or of tby Mother, he is thy Mother,
thou ſhalt not uncover ber Nakedneſs. Beſide, Marriage being inſtituted for the Propagation of Mankind, it is not conve-
nient that any one ſhould be married to a Perſon to whom he gave a Being, either mediately or immediately, and ſo the
Blood return again as we may fay, to the Fountain from whence it came. Laſtly, beſides that no good Reaſon can be
given to juſtify Marriages in the afcending and deſcending Line : If theſe ſort of Marriages were not abhorred, every
Family almoſt would become as I may ſay, a Stews, and there would be bur little Union in Families, from whence
would ariſe infinite Diſorders, and very troubleſome Inconveniencies. This I think is all that can be ſaid to prove that
this ſort of Inceft is contrary to the Law of Nature as well as the Civil Law. See the Inftitut. Lib. I. Tit. X. 91. So far
is the Reaſon which our Author ſo much depends on, from having that Weight which he imagines, that it has no Foun-
dation, fince, as I have already obſerved, the Shame of which he ſpeaks is the only Effect of Education and Cuſtom.
Beſides, he is not aware that this Reaſon is not good but with reſpect to them who uſe Cloathing, for thoſe People who
go Naked, not being ſenſible of any Impreſſions of Shame, as he himſelf owns; according to his Principle, Inceſt would
not be unlawful in thoſe Countries, becauſe it would be no Obſtacle to that Reſpect which Children ought to have to
them that gave and preſerved their Lives.
( 4 ) The Words of the Digeſt are, Quinetiam nefas exiftimatur, eam quoq; uxorem ducere, que per adoptionem filia
neptiſq; effe cæperit, in tantum, ut et fi per emancipationem adoptio di ſoluta fit, idem juris maneat.
(a) And therefore the Daughters of Lot (Geneſ. XIX. 31.) were too forward in their Concluſion Though Grotius is of
Opinion, that they thought their Practice abſolutely blameleſs, having heard that it was uſual with their Neighbours
the Arabians, as it was likewiſe with the Perſians,
(b) B. 2. c. 5. f. 12. n. 2.
(c) A pomnem 1. 1.
(d) Vid. L. 23. t 2.1. 55. princip. D. de ritu nuptiarum. (ej Sueton Claud. c. 15.
(f) Metam. x.
v. 346, &c. So Oedipus in Seneca ( Pheniſs. ) v. 134, &c.
Avi gener patrifque rivalis ſui,
Son-in-Law to his Grandfather, Rival to his father,
Frater fuorum liberorum Ego fratrum parens. Brother to his Children, and Father to his Brothers.
*Tbyeftes in the Agamemnon of the ſame Poet, v. 34, Esc.
I've turn'd the Courſe of Nature back,
Verfa eft natura retro Confounded all Relations, wildly mixt
Avo parentem - patri virum, The Names of Father, Grandfather and Son,
Natis nepotes miſcui.
Husband and Grandfon.



3
15 10
Conceiv'd in finful Love, and born a Riddle ;
Puzzling his Friends to fix his doubtful Name,
Son to his Siſter, Grandſon to his Father.
Ibid.
Per ſcelera natus, nomen ambiguum ſuis,
Idem fororis natus er patris nepos.
1701
We meet with what follows amongſt the Ancient Epitaphs;
Herfilus hic jaceo, mecum Marulla quieſcit,
Qua fororego genetrix, qua mibi ſponſa fuit,
Vera negas, frontem trabis, hæc enigmata Sphingis
Ciedis ? Sunt Pythio vera magis Tripode,
Me pater è nata genuit, mibi jungitur illa;
Sic foror boo conjux, fic fuit illa parens.
Here Herfilus, and next in deep repoſe
$; bacola
Marulla lies, his Mother, Şifter, Spouſe.
Start not, or frown to ſee the Sphinx renew;
The Pythian Tripos never told ſo true.
Shamed by her Sire, ſhe weds their Common Son,
And blends the three Relations into one.
Canft
Chap. I.
Of Matrimony.

zur br
odhod they imagined that their Right of Kindred,
Canft thou be call'd (to ſave thy wretched Life) ſtraight expired, and that they ought to live,
Thy Mother's Rival, and thy Father's Wife? as Perſons entirely diſengag’d from each others
Confound ſo many ſacred Names in one;
For by this Act of Embracing and Acknowledge
Thy Brother's -Mother, Siſter to thy Son. ing their Religion, they conceiv'd Perſons to
Mr. Dryden. be abſolutely Regenerated, and put into the Con-
dition of Infants ( e ). Thus their New.man
And Philo Judæus ( a ) inveighing againſt the having extinguiſh'd all the Ties that were upon
Perſians
, who allow'd the Marriages between him from his firſt Nativity, lay, in that reſpect,
Mother and Son, thus exprefſeth himſelf
. Nothing under no Reftraint or Limitation as to Marriage
could have been invented more grofly Impious ; to abuſe And this Notion they pretended to found on the
the Bed of the Deceaſed Father, which claim'd a moft Divine Law. Yet, by the Traditions of their
Religious Reſpekt ; to pay no Reverence to the Mother; Wife-men, a Profelyte was forbidden to marry his
to have the same man become her Husband and her Mother, his Daughter, or his Siſter, cho a Pro-
Son ; on the other hand, to ſee the Mother aſſume the ſelyte as well as himſelf. And if any Perſon, du.
Name of a Wife; to bear their Common Children ring his Continuance in Paganiſm, had wedded
call'd the Brothers of their Father, and the Grandſons into ſuch Degrees, at his Converſion he was
of their Mother.
oblig’d to releaſe himſelf by Divorce. The
No leſs Unnatural and Deteftable is the Cuſtom Caſe was not the ſame with a Slave, when re-
of che Ife of Ceylon, where a Father, when he ceiv'd into their Worſhip under thac Condition.
háth provided a Match for his Daughter, fore. For as they imagin'd him likewiſe to have no re-
falls the Husband in the Office of the Bed; gi- maining Alliance of Kindred or Blood ; fo far.
ving this ridiculous Reaſon, that 'tis but juſt be ther, they judg’d it no Sin for him to paſs be-
ſhould gather the firſt Fruits from a Tree of his own yond the above mentioned Bounds of Marriage,
Planting ( b ).
did which confin'd all Free-men, as well Gentiles, as
»XXXIII. The Fews, in this point, had re. Fews. The Reaſon of this Difference was, be-
courſe, not ſo much to Natural Reaſon, as to cauſe they efteem'd a Servant as No-Body, in
the Original Prohibition of GOD. They Civil Conſideration : And thus the Scate was
taught, that from the Beginning of the World, not concern’d in regulating ſuch inferior Mara
fix Kinds of Conjunctions were, Divinely for riages, but they were confirm'd or diffolv'd, at
bidden; with a Mother, or Mother-in-Law, the Maſter's Pleaſure. Yet the Roman Laws en
with another Man's Wife, with a Sifter by the join the ſame decent Regard to Kindred (f)
ſame Venter, with a Male, and with a Beaſt in the Marriages of Slaves, as of Free Subjects.
And all this (except the Caſe of a Siſter) they 'Tis remarkable what Travellers report of the
deduce from thoſe words in Gen. II. 24. Tbere- Chineſe, that they decline marrying Women of
fore shall a Man leave his Father, (that is, ſay they, the ſame Name with themſelves, cho' not allied
the Bed of his Father, and conſequently ſhall ab- to them by Blood. And that on the other hand,
ftain from his mother-in-Law,) and his Mother, provided their Names be different, they never
(that is, he ſhall obſerve Decency and Diſtance regard any Nearneſs of Birth between Husband
towards his proper Mother) and ſhall cleaz'e to his and Wife ; ſo that a Niece and an Uncle is a very
Wifes (thus both Males are excluded, and Women allowable Match ( g-). outsandiegog svo
married to other Men;) and they two ſhall be one XXXIV. We are now to examine the other
Fleſh;(therefore unnatural Deſires towards Beaſts Degrees of Confanguinity, thoſe in a tranſverſe
are here likewiſe forbidden; in as much as ?tis Line; and afterwards to paſs on to the Caſe of
impoſſible for Man and Beaſt to make one Fleſh.) Affinity. To begin with Brothers and Siſters;
This is Mr. Sedden's Account of their Doctrine there is commonly fou very remarkable a Mo-
(5). It was a very ſtrange and fingular Fancy deſty becween them, that they are unwillinig
of theirs, which the ſame Author reports (dv), to be, at the ſame time preſent in a Place,
that a Gentile becoming a Profelyte of Juſtice, where the Endearments of Love and Courtſhip
immediately loſt all Relation to his Gentile are carrying on: Nay, it may be obſerv'd, that
Friends, of what Nearneſs and Degree ſoever. Brothers themſelves are uſually averſe to calking
Thus, if ſeveral Perſons of the ſame Family, with each other on theſe Points of Pleaſure, (tho
as ſuppoſe a Mother with her Daughter, were only in Sport and Jeft (b).. Yet the Reafon why
admitted together into the Jewiſh Communion, we cannot poſitively affirm that Marriages, in
Sit Dvored on
iboo Ort Weron Ene bari sd stain nomor
(a) Philo Jud. de Leg. Special.p. 778. C. Ed. Par. 1 (6) And the ſame vile Excufe is alledged for this inceft by
Chac-gehan in Bernier’s Deſcription of the Empire of the Mogul. POINT (c) L. V. c. 1, 2. id) C. 16.
(e) Tacitus ſeems to have obſcurely hinted at this Opinion, when,rin his Character of the Fews, he ſays, Thoſe who
pass over to their Profe.lion, uſe the ſame Cuftoms ; and one of tke firft Leffons which they are taught, is to deſpiſe the GODS,
Wilay
, a fide all Duty and Regard to their Country
, utterly to neglect and undervalue their Parents, Children and Brothers.
f) vid
. I. 2. f. 1. D. unde cognati. I. 8. 1. 14. 1. 2, 3. D. de ritu nuptiar. 1. 22. de reg: juris. Selden 1.5V) C.16.10,
(3) Vid. Martin Hif. Sinic. 1. 1. (b) For which Plato aſſigns this Reaſon, (de LL. 1. 8. p. 912, A. Ed. Wech.)
That all the Talk of the World lies that way ; Perfons, in their very early Age, hearing theſe Do&trines ever infinuated, some-
times.in jeſt, Sometimes in more ſerious Application, and particularly in the Tragedies on the Stage, where Narrations are
commonly made, that ſuch vile Wretches, as Thyeſtes, Oedipus or Macareus, who have committed Inceft with their Siſters,
were feen in a Terrible Manner to be their own Executioners. Simplicius on Epi&et. c. 47. ſpeaks to the faite Purpoſe.
Since Law and
Cuſtom have forbidden the Familiarity of Brothers and Siſters
, the Inclinations are no leſs powerfully ſup,
preſſed, than if the command of Nature it self had laid this Reftraint upon them ; except when Perſons are tranſported with
Frenzy, and tortured by the Furies of a Wicked Conſcience. Comp. Charron de la Sagelle, 1. 2. c. 8. 5. 6.
Сcc2
the
362
Of Matrimony.
Book V.

rents.
the firſt Degree, are, of themſelves, repugnant Brother, than if by the Father's only. (And thus
to the Law of Nature, is this ; becauſe as the Deuteronomy XIII
. 6. Tby Brother the Son of tby
Origine of Mankind is recorded in the Holy Scri. Mother, is Emphatically ſpoken, as a nearer De.
prures, ſuch Matches muft neceſſarily have been gree of Relation). They thought the Primitive
made between the firſt Children of our firſt Pa- Command affected only Siſters in the former,
For it is by no means to be ſuppos'd that Senſe, not in the latter for theſe they judga
GOD would appoint ſuch a Caſe in which the might be taken for Wives by the pureſt of the
Law of Nature could not but be violated ; and Gentiles, thofe who obſerv'd the Precepts of Noah,
yet we ſee Him commanding the Propagation of and govern'd themſelves by the Law of Nature
Kind, and at the ſame time providing no other and of Nations. And hence, they ſay, it came
way of performing that Dury, beſides chefe Con- to paſs that Abrabam married his siſter Sarab; no
tracts between Brothers and Siſters. Nor can we Reſtraint being yet laid, in thac Particular, from
ſay that the Creator lay under any Obligation of the poſitive Law. For leaf any ſhould imagine,
forming one only Human Pair. Some have ex- that the Term of Siſter is there put for any Kink-
preis'd great Contempt of this Argument, as woman, the Patriarch himſelf explains his own
salh and impertinent, but their Cenſure will be meaning, Truly, ſays he, ſhe is my Siſter, for the
of little Force, 'till their Reaſons are more
is tbe Daughter of my Father, but not the Daugbter of
conſiderable. They tell us, GOD was pleasd my Mother ). Yet that ſuch Matches were
Mankind ſhould draw their Deſcent from one Head, not uſual in thoſe Countries, is evident from this,
that He might eſtabliſh a firm Alliance amongſt them that Abraham imagin'd He ſhould avoid being ta-
on the Score of their Kindred. But would not the ken for Sarah's Husband, if ſhe pretended to be
Alliance have been ſufficient, ſhould ſeveral Pairs his Sifter. Unleſs we are rather inclin'd to ſay,
have been at firſt produced, all having the ſame that He hoped they would take the Word in the
Nature, and the fame immediate Author of it? fulleſt and moſt vulgar Senſe, for the Siſter by
And would not they have been able, by Inter- both Sides.
marriages, to keep up the near Relation amongſt A Difficulty ariſeth on this Subject, from
their Pofterity? They urge farther, that if the 2 Sam. XIII. 12. where Tamar anſwers her Half-
Beginning of Human Race had been otherwiſe Brother Amnon, ſolliciting her to his Bed, Speak
ſeteled, Wars muſt have immediately followed, and to the King, for be will not with bold me from thee
.
the World bave periſhid in its Infancy. But of what Here on the one side, it is not probable that
Conſequence is this Objection, when even ac- Tamar was Ignorant of the Divine Law, which
cording to the Eſtabliſh'd Method, we ſee one exprefly forbids the Marriage of a Brother and
of the firſt Brothers falling by the Hands of the Siſter by the ſame Father, as well as by the ſame
other? Therefore the Prohibition of theſe Mar. Mother. And on the other Side, it would have
riages ſeems to have taken its Riſe from ſome been in vain for Her to think of finally eſcaping
poſitive Ordinance ( a ): The Ground and the Violence of her Brother's Paſſion, by depend-
Occaſion of which might be, Firſt, the great ing on this Reſerve, that whatever the might
Modefty diſcoverable between Parties thus re- feem to promiſe Him, He could not, at laſt, wed
lated; and, Secondly, this Conſideration, that her, without a manifeſt Violation of the Divine
in as much as their Circumſtances engage them Command; which yet is Joſephus's Opinion (e).
to live together in a free and unobſerv'd manner, The Jewiſh Doctors therefore give this Anſwer
were they farther allow'd to unite in a wedded to the Caſe before us. They ſuppoſe Maacab,
State, too frequent Opportunities would be of the Mother of Tamar and Abfalom, to have been
ferd of Adultery, and other ſhameful Diſor- taken Captive by David, in the War againſt the
ders ( b ).
King of Gelur, and to have born him Tamar whilft
It may contribute to the Illuſtration of this the continued a Gentile, and Abfalom, after the
Point, to reflect again on the Opinion of the was made a Profelyte. Since then they were per-
ancient Jews, as collected by Mr. Selden (c) ſwaded that perſons, by embracing their Religi,
(1). They, therefore, amongſt theſe fix Kinds on, were releas'd from all former Kindreds; and
of Conjunctions, originally forbidden by GOD, becauſe the Child of an Iſraelite, by a Gentile Wife,
reckon the Marriage of a Brother with his Siſter follow'd the Mother, not the Father, and was
by the Mother's side. But they add, that this likewiſe reckon'd a Gentile ; they concluded that
Command did not exerciſe its Force till Man- Timar, when ſhe became a Projelyte, loft all the
kind being ſufficiently multiplied, Plenty of o- Relation ſhe had to Amron, during her Gentile
ther Women might be had, and there was no Condition, and that accordingly ſhe believ'd the
need of breaking in upon this Degree. 'Tis an might be given in Marriage to Him, without
old Tradition with the Eaftern People, that all tranſgreffing che Divine Ordinance ; Her Near-
Adam's Children, except Seth, were Twins; and neſs of Blood being extinguiſh'd in Her Regene
that it being neceffary amongſt them for a ratión.
Brother till to marry his Siſter, yet they care To touch on the Cuſtoms of other Nations in
fully abſtain'd from Siſters of the fame Birth. this Affair, we find Byblis, in Ovid, complaining
Farther, the Jews believ'd a Sifter, by the that she Laws of Marriage ſhould be ftriter
Mother's Side, to be more cloſely allied to her amongit Men than amongit the Gods ;
( a ) Add Cumberland de L. N. c. 8.8. 9. Selden de 7. N. & G. 15.6. 1. do 8.
(6) Vid. Ovid Metamorph. 1%.
v. 458, 535, 558, Boco (0) L. V.6.11 (1) See Mr. Barbeyrac's ift, ad and 3d Notes upon this section.
(d) Genes. XX, 12. vid. Grot. ad loc. dist. (2) Antiq. Jud. VII. 7
Dil

Chap. I.
262
Of Matrimony .
ܪ
; (n)
Amongſt the Egyptians, Diodorus Siculus Tp)
Dii nempe ſuas habuere ſorores. obſerves, this kind of Marriage was eſtabliſh'd
Sic Saturnus Opim junétam fibi Sanguine duxit ; by an expreſs Law, and was grounded on a ſu-
Oceanus Techyn, Junonem rečtor Olympi. perſtitious Conceit, that the ſame Practice had
Metam. IX. v. 496, &c. fucceeded fortunately with Iſis. Achilles Tatius (9)
reports the fame Cuitom of the Phænicians.
In Homex ( a ) the Daughters of Æolus are re Others of the Ancients declar'd an abſolute
preſented as married to his Sons.
Theocritus (b) Diſlike of this Freedom. It is one of Phocylides's
commends King Ptolomy and his Queen, for re. Precepts (r),
ſembling the Matches of the Gods, in being Bro.
ther and Sifter. Lucian ( 6 ) reports the Same of
Mnde reorgváris és šitóTESTIN Insider cur lui.
Mauſolus and Artemiſia; in Arrian (d), Hidreus,
Nor climb thy Siſter's interdi&ted Bed.
the Carian, is ſaid to have married Ada his Sifter.
Amongſt the old Peruvians the Yncas alone wire And indeed that theſe Matches were very unuſual
permitted to marry their Siſters, and all other through all Greece, may be gather'd from Hermio-
Men forbidden to take the fame Liberty. (e): ne's Speech in Euripides, where ſhe thus upbraids
On the other hand, the Romans abhorrd this Pra- Andronache,
đice as moſt odious and unnatural. Plutarch (f),
giving the reaſon why the Women, in that Na To my hay và đá aegy giờ, &c. v. Ios, $c.
cion, ſaluted their Relations with a Kifs, hath
left this Remark, When the Laws bad probibited the Thus the Barbarians with inceſtuous Love,
Marriage of near Relations, they yet allow'd then to Fathers their Daughters, Sons their Mothers wed,
proceed to this innocent Expreſſion of Love and this Brothers their Siſters; and no Law reſtrains
became a mutual Pledge and Mark of their Alliance. Their finful Paffion.
For in ancient Times, the Romans abſt ain'd from wed-
ding their Kin/women, in any Degree of Blood; as they Or if they were once permitted in Greece, it is
at preſent forbear their Aunts and their Siſters. It was certain they grew entirely out of uſe with Po-
Late before the Marriage of Coulin-Germans was diſ. fterity; as that Paffage of Sextus Empiricus (s)
pens'd witb (g).
ſufficiently proves; The Egyptians contracted Mar-
The Athenians, by the Conſtitution of Solon, riage with their Sifters, wbich, amongst us, is diſal
.
might marry their Šifters, by, the Father's ſide, lowd by Law. The fame Author lays in another
not by the Mother's. Thus Plutarch (b)
relates place (i); In our Country, we eſteem it contrary to
a Match between Themifticles's Son and his Daugh- all Right and Decency, to make a Wife of a Mother
ter by another Wife Demofthenes ( i ) reports the or of a Sifter (u). (3) Yet he chargeth both
fame of his Grandfather. Cornelius Nepos, in his thoſe Pra&ices on the Perſiuns ; as do likewiſe
Life of Cimon (k), obſerves that General to have Strabo ( x ), Laertius (7), Curtius ( % ), and Lu-
made the like Marriage, which, he ſays, Was a cian ( a). Tho' the Anſwer given by the Judges
greeable to the Athenian Cuſtoms (l). Yet there is to Cambyſes, in Herodotus ( b ), plainly ſhews, that
a Paffage, in the Oration of Andosides againſt Al- the wiſer Men, even in the Perſian Nation, were
cibiades, which ſeems to overthrow all this: Re- of a very different Opinion.
flett, ſays he, upon the Examples of our Anceſtors ; It may not be improper to conclude our Search
with what Bravery and what Wiſdom they proceeded, into the
preſent Controverſy, by returning to the
when they ſent ſo great a Man as Cimon into Baniſh. Fews. They, then, in their Prohibition of Mar-
ment, for violating the Laws, in taking his own Şifter riage between Brothers and Siſters, thought it
to bis Bed (m). Plutarch, in Cimon's Story, deli- made no difference whether the Siſter, in ſuch
vers himſelf with no Certainty on this point; a Caſe, came by Adultery, or by a Lawful Bed :
he tells us, Some cenſur’d Him for uſing too much Li. Nay, if ſhe was born of a Mother-in-Law, in a
berry witb bis Siſter, tho'only in Sport: Orhers afirm'd, diſhoneſt way, the Rule held againſt Her, in this
that the Matrimonial Contract had really paſs'd between reſpect (c): Tho', otherwiſe, as to the Crime
them, and that the reason was, becauſe the young La- of Inceſt, they held it could only be committed by
dy, on account of the Poverty of the Family, could not Matrimony, not by Adultery, nor by Unmarried
find a Husband abroad.
Pollution. Thus, amongſt them, he did not paſs
(2) The Lacedemonians, on the contrary, mar- for an Inceſtuous Perlon who had defil'd a Mother
ried their Siſters, by the Mother's ſide, not by and her Daughter, but he only who had adually
wedded both. Thus too a Man might marry her
It appears from Plato (o), that he eſteem'd whom his Father, Brother, or Uncle, had been
Matrimony between Brothers and Siſters lawful; too familiar with, tho' he could not wed his Mo.
in as much as he forbids it only in the aſcending ther-in-Law, nor his Uncle's Widow, nor ſo
or deſcending Line of Kindred.
niuch as his Brother's Reliet, unleſs in the extra.
MOTO
(1) Sec
E. Ed. Pariſ:
( 2 ) Odyl. 10. TM (b) Idyll, 17. towards the End. (e) Dial. Diogen. Sos Maufol. (d) De Exe
pedit
. Alexand, 1. 1. Viele Garcilaſſo de la Vega, 1.4. c. 9. 19 ?f) In Qu. Rom. p. 265. Core
(g) See
the Reaſon, ibid. (h) In Theiniſtocl. in fin.
iiContra Eubulid.
(k) C. I.
Becler's Notes on this place. ( m ) To this agrees Athenaus, 1. XIII. c. 21. In) De leg. Special. p. 779.
( o ) DeLL.I.S. 'pi L. 1. c. 27., (q) L. 1. (r) V.170. (s) Pyr-
thon. Hypotyp. I. 1. c. 14. p. 31.
(t) L 3.0,24. (u ) Add. Selden. de J.N. Sip G. 1.5. C.LI. (x) L.15.
2. 505. Ed. Gen Caſaub. (y ) In Provem. (2) L. 8. c. 2. f. 9. ( a ) De Sacrific. p. 364. Edit. Amft.
(6) Thalia. Add. what is related of the Thrafcians, the Inhabitants of Mount Libanus, I know
not with what Credit, by
Leon Rachwolf, Itin, Oriental. 6. 2. c.15. in fin. (c) Add. l. 54. D. de Ritu Nupt.
ordinary
is
364
Of Matrimony.
Book I.

(
in a , ,
ordinary Caſe of his dying without Iſſue (a). Cuftom amongſt the Tartars, for a Son to marry
And ſo on the other hand, a Man might take her his Mother-in-law, when left a Widow by his
to Wife whoſe Mother, Siſter, Grandmother, Father (b).
Aunt, Daughter or Niece he had corrupted. It The ancient Jews, as Grotius obſerves (i),
is true, by the Traditions of their Rabbins, theſe founded the Prohibition of theſe Degrees chiefly
Marriages were judg’d unlawful: yet the con on two Reaſons: Firſt, on that Natural Medelity
tracting Party was only corporally puniſh’d, and which kinders Parents from holding Familiarity with
the Contract ſtill allow'd to ſtand good. From their lime, either by themſelves
, or by ſuch persons as
all which we may infer, that the Jews, in fta- are, in Blood or Affinity, neareſt to them. Which Ar-
ting the Notion of Affinity, held it to proceed gument, as it is of good Force in the aſcending
there alledg'd is exceedingly weakened, and al-
Andere incus a , it
Andronicus Comnenus
Acominatus reports, that the Emperour molt brought to nothing in the Collateral Kin-
in Marriage Alexius and Irene, both inceltuouſly can here by no means amount to a Precept of the
begotten on Theodora, and conſulting his Judges Law
of Nature. Yet are we to eſteem thoſe Cia
on this point, one of them gave his Opinion, vil Conſticutions moft juſt and well grounded,
that The Parties being illegitimately, born, were not
which extend the Prohibition to a wider Com.
to be"esteemid of Kin to each other
, but had loſt all paſs; on purpoſe, as it were, (2) to fence in
Right and Alliance of Blood; and were in the Com- and fecure thoſe Degrees 'which the Dictate of
dition and Diſtance of Strangers
. But the Hiſtorian Nature, or the Poſitive Ordinance of GOD had
cenſures theſe Judges
, as Men of greedy and for- before forbidden. Their ſecond Reaſon was
,
did Tempers
, who made a Gain of diſpenſing Left too great Occafion should be offer'd to Fornica-
with GOD's Commands, and would ſell their tions and Adulteries between Perſons thus related, and
Voices for the Feaſts and Favour of Great Perſons. conftantly converſing with Freedom together, if ſuch
XXXV. As for the other Degrees, forbidden Pieces of Wantonnels might be made good by the Re-
(c) in Levit. XVIII, it will be ſtill more diffi- medy of Marriage. This Argument, like the for-
cult to find a Reaſon why they ſhould hinder mer, is ſufficient to give Occaſion to a Poſitive
Marriage, on the bare Conlideration of the Law Law, not to evince any Precept of Nature. The
of Nature. Tho' it muſt be own'd, that ſuch Jews apply ic well, to account for that ſeeming
Matches have been condemn’d and deteſted by Difficulty in the 18th of Levit. where the marry-
many Heathens. St. Paul (d ) calls it Such For- ing an Aunt is forbidden, and not the marrying
nication as is not ſo much as named amongſt the Gen a Brother's Daughter, though both ſeem equally
tiles, that a Man ſhould have bis Father's Wife Pho- diſtant in Degree. For they obſerve, that young
cylides (e) ſets it down as one of his Moral Leſ. Men frequenting the Houſes of their Grandfa.
ſons.
ther and Grandmother, and ſometimes dwelling
MySuñs sen' face gedd Trey aéxleg 2016,
with them, are very much in the Company of
Μητέρα δ' ώς ήμα τίω μητέρας ίχνια βάσαν-
their Aunts, whereas they come not ſo often to
their Brothers Houſes, nor have there the ſame
Make not thy Father's injur'd Bed diſgrace Privileges and Freedoms. Yet the latter of theſe
Thy Step-dame’s Vows; but with Reſpe& confeſs
Degrees was eſteem'd unlawful by the Romans,
A Morber Her, that fills thy Mother's Place.
as appears from the Cafe of Claudius, when de-
Cardio
ſigning to marry Agrippina ( k).
The Story of Stratonice is well known, whom Many there are notwithſtanding who affert,
Selexcus her Husband gave away to his Son An- that in the Place of Scripture but now mention'd,
tiochus, when the young Prince was fallen in not ſuch particular Perſons are forbidden, but in
Love with her beyond Cure. It was a remark. general all ſuch nearneſs of Degrees: whoſe Ar-
able Saying of Seleucus on this Occaſion, that guments, were there Occaſion, might perhaps
If bis Wife expreſi’d an Abborrence of so unuſual find an Anſwer:
Practice, be begg’d bis Friends to inform her,
that Thoſe who maintain that all the Degrees, men-
whatever Action was pleaſing to the King, and bene- tiond in the 18th Chap. of Leviticus, are like-
ficial to the Publick, ſhe ought to eſteem right and wiſe repugnant to the Law of Nature, urge the
juſ (f). Yet: Appian (g) doth not ſtick to call Words of the 24th Verſe, For all theſe Abomina-
this Love of Antiochus, acélusop mesos, A ſinful Ex- tions have the Men of the Land done which were be-
travagant Paffion. It ( 1.) is ſaid to be the ordinary fore you, and the Land is defiled. For, ſay they,
ITA
abidut sesawat 3
1997 meisiau
Mr. Barbeyrac's NOTES on Chap. I. $.35.
(2) The Pythagoreans mightily approved the old Laws of the States of Greece, by which it was forbidden to have
any Amorous Converſation with a Mother, Daughter, or Sifter, and to ſatisfy his Defires with any Woman whatſoever in
a Temple, or in the fight of the World ;' for ſay they, it is good and
profitable to put as great an Obſtacle to it, as pola
fible. 'Επαινείται σε αυτούς έδασαν, και τα τοιάδη και ορύπαρχόντων νομίμων εν * Eλλίωικώς πόλεσι, το μάτι μητράει συγγενείς,
μήτε θυγαλεί, μήτε αδελφή, μήτε εν ιερώ, μήτε εν τω φανερο, καλόν ή υ, και σύμφορον, το ως πλάκα κάνεις κωλυμαία και ένας
Joice Tow ThS. Jamblich, in Vit. Pythag. 9. 210.05
.. di (1) A de
pids nov. Grot:
( a ) Comp. 1. 1. f. 3. D. de Concubin. l.. 4. S. 8. D. de Gradib. & Affin. (b) Selden. ibid.
L. 2. c. 5. f. 13, 14. (d) 1 Corinth. v. 1. (c) V...68, 169.
(f) Plutarch in Demetr. p. 907. Ed.
Ext. Cicero, pro čluent. c. 6. exprefleth a grievous Abhorrence of Marriage between a young Man and his wife's Mo
1.) In Syriacis, p. 127. Ed. H. Steph. Add. Senec. Controvers
. 1. 6. Decl. 7. Valer. Max.1, 5.6.7L
ther, O incredible Villany of a Woman, ſays he, and never heard of till this time in the World! Add. D. L. 23.t, 2. l. 12,15,
Sg.c. De ritu Nupt.
(h ) Haython. de Tartar. 6.48. Paul. Venet. I. 1. c. 15.
cited. ( k ) V. Tacit. Ann. XII.
+
por orders
Wech.
(i) In the Places above-
- in

Chap. I.
Of Matrimony.
365
hes for their Children
exerciſe Conjugal Freedom WC Conjugal
we are told of the Tartars, that amongſt them 'tis an, ulus way of Marriage, a Relation is no leſs contra&ted between
their ſurviving Friends, than if they had actually celebrated their Nuptials in their Life-time.
(n) So in Julius Capitolinus towards the end, the
in as much as every Tranſgreſſion preſuppoſeth a . of Strangers; and when they are diſolv’d, the Affini-
Law, thoſe Gentiles in contracting ſuch Marria- ty breaks off with them.
ges muſt needs have violated, either ſome Natu XXXVI. It will be convenient to add a Word
ral Law, or ſome Divine Poſitive Ordinance uni. or two about thoſe Inferiour, or Secondary Wives
verſally binding Mankind : The latter is hardly in uſe amongſt fome Nations : Such as do truly
to be made out and the former muſt therefore be plight their Faith to their Husband, and are u.
• admitted. To this Mr. Selden ( a ) anſwers, that nited to him in the ſtricteft manner of Society;
the Word ( 3 ) theſe is to be reſtrain’d to thoſe Sins yet ſo as that upon account of their unequal Con-
which the Heathens were capable of committing. dition or Birth, or for other Reaſons they are not
And as an Argument that it doth not extend to e admitted to the full Honours of their Character,
very Particular there mention'd, he obſerves, that nor acquire the ſame Rights
one Caſe there prohibited ( 6 ) is the marrying of as other lawful Mothers (1). Of theſe Mr. Sela
two Siſters together, which could not be before den ( m ) hath treated at large; and from him it
vicious, having been practiſed by ſo righteous appears, that their Difference from juſt and pro-
a Man as Jacob. (Though to this Remark of per Wives, is introduc'd purely by poſitive Law,
Mr. Selden it might well be added, that the Quar- or by the particular Covenant of the Parties,
rels and Emulations between thoſe Siſters, Jacob's who to the principal Matrinionial Pact may add
Wives, was probably the Reaſon of this poſitive any thing at their Pleaſure, which doth not con-
Prohibition.) In the ſame manner Amram, Mo- tradict and overthrow it. The chief Reaſons on
Ses's Father, married fochabad his Aunt ; another which this Practice ſeems to have been founded
of the Degrees here forbidden (c).
are theſe, the Preſervation of Noble Families,
By the Turkiſh Alcoran (d), a Muſulman is re the Fear of injuring former Children (n), and
ftrain’d from wedding his Mother, his Step dame, laſtly, the avoiding of thoſe great Expences,
his Daughter, his Siſter, his Aunt, his Niece, his which a Wife, in the higher or more perfect De-
Nurſe, his Foſter-Siſter, his Wive's Mother, his gree, might challenge by the Cuſtom of the State.
his Wive's Daughter by a former Husband, his In order to the keeping up of great Families, it
Son's Wife, cwo Siſters, a Daughter to a Woman is convenient that they marry into equal For-
whom he hath abuſed, and, Laſtly, another tunes and Honours : For the better procuring of
Man's Wife, unleſs taken for a Slave in War (e). which, it hath been enacted, in many Commons
(4) It may not be from the purpoſe to ob- wealths, that in caſe a Man take a Wife beneach
ſerve, that many have imagin'd the Force of Af- himſelf, the Marriage ſhall not have all thoſe Ef-
finity to ceaſe, on the Death of the Perſon in fects and Priviledges, which it would otherwiſe,
whom it was founded. It is a Saying of Euripi. in courſe, enjoy. And then again, nothing more
weakens a Family than the diſmembring of an
New Affinities efface the old.
Eſtate into too many Parts; wherefore to pre-
vent this Misfortune, ſome have thought it pro-
Iſocrates (8), ſpeaking of a Gentleman who had per to take up with theſe Secondary Wives, whoſe
married his Aunt, ſays, He took ſo much Delight Children, if their Portions are not over large,
ard Satisfaction in my Father's Friendſhip, that loſing have yet no Reaſon to complain. And as to the
my Aunt without llue by ber, he took my Father's Cou. third Point, He is a notorious Fool who makes
fin-German for his ſecond Wife, to keep up the Affi- himſelf a Beggar to maintain the Pride and Gran-
nity between our Families (h). Florus ( i ) tra-
deur of a Wife. adiud
cing out che Cauſe of the Quarrel between Cæ On the whole, it is clear how injuriouſly we
Car and Pompey obſerves, that upon the Death of deal with theſe inferior Wives, if we allow them
Julia, Daughter to the former, and Wife to the no better a Title than the vile Name of Conci-
larter, the Band being broken aſunder which had bines ( 1 ). For Concubines are properly ſuch, as
their mutual Jealouſy, and appear'd the moſt vio. Faith, and differ only in Degree from common
lent of Rivals. Marriages, ſays Philo the Jew (k), Strumpets: Nor do they exempt themſelves from
are the Ties and Engagements wbich unite tbe Families the Scandal by entring into a private Engage-
disana Mr. Barbeyrac's NOTE S. on Chap. 1. §. XXXV,
S. XXXV, XXXVI.
y sales
(3) This Critical Remark, alledg d by Grotius Before $ 14. deftroys the whole Syltem of them who ground your Di-
Vine poſitive general Laws upon it ; tho' they can't inew, how they have been publiſh d to all people.
Yet among the Tartars, on the contrary, Fathers marry their deceaſed Sons with the deceaſed Daughters of ſome
other
, and imagin, that by that Pofthumous, or rather Imaginary Contra&t, the Parents of that Son, or Daughter, con-
tra& a truc Alliance or Affinity. Marc. Paul. Venet. Lib. I. Chap. LVIII. sbor
( ) See Cujacius Obferv. Lib. V. Cap. VI. where he treats of the Notion that the Ramans had about them, and ſhews
us, how they were look'd on as Concubines. Jou A
9230 BA ed03 181 21930 W fton as
(b ) Levit. XVIII. 18. Upon which place conſult Grotius.i.b (c) We meet with ſome
Temarkable Things concerning the Degrees of Conſanguinity among the Indians, in Abr. Roger. de Bramin. p. 1. c. 12.
(d ) Chapt. of Wives.
( 6 ) Add. Selden. de . N. G. &c: 1.6.c. 11. (f) Med. v. 76. Ego in Oreſt. 1083.
(h ) Cicero pro Quint. c. 6. The Affinity could by no means be broke off, whilſt the Children were
utive. Idem Philipp XI. C. 4. concerning Dolabella, who had formerly married his Daughters ; "And this Gentleman, o ye
heavenly Powers, was once my Friend! bafil L. 4.6.2 7. 13. Ok ) De Legat. ad Caium. On the other ſide
d ; , a
(m) V. Grot. I. 2.c.5: 1.15:
Superinduceret novercam, That be might not bring so numerous a family of Children under the Power of a Mother-in- Law.
ment,
des (f)
(4
09 2163 10 19 on
(a ) L. 5. c. 11.
(g) In Aginetic.
to
de F. N. & G. 1. 5. c. 7.
366
Of Matrimony.
Book V
ment, and confining their diſhoneſt Service to a them, to cut off the Heads of all his Wives, in
lingle Perſon (a). But the Faith of the Mar- cafe he loſt the Battle (d):
riage-Bed, is infinitely more ſacred and folemn
The Chineſe, when they deſpair of obtaining
than to be brought into compariſon with the Iffue in juſt Marriage, have recourſe to the Re
ftri&eft of theſe illegal Compacts, founded on medy of Concubines; eſteeming it the moſt mi.
the baſe Proſpects of Lucre or of Luft (6). ſerable thing that can befall a Man, to be at a
Busbequius (c) remarks ſomewhat very parti lofs for Children, who might mourn at his De
cular of the Turkiſh Emperours, that after Baja ceaſe, and perform the decenit Honours of his
zet, none of them enter'd into juſt and proper Burial ( e ).
Matrimony. For be, after his Defeat by Tamerlain, We have only this Obfervation to add, that as
falling together with his Wife into the hands of the Victor, the publick Laws of Common-wealths are wont
took no part of the barbarous Treatment more to beart, to inveſt other Contracts with certain Rites and
than the Affronts and Diſhoncurs put upon the Sultaneſs Solemnities, upon want of which they paſs for
before bis Eyes. In regard to this Accident, his Succef-
Invalid in Civil Cognizance; ſo in ſome States
fors abſtain from Conjugal Engagements ; and as to the
there are ſuch Ceremonies annex'd to Matrimo-
Affair of Ilue, make uſe of Women in the Condition of ny, as if omitted make it illegal, or at leaft de
Slaves, who are not capable of ſuffering ſo much Injury prive it of ſome Effects which wculd otherwiſe
and Diſgrace. But indeed the Turks, in general, pay have ſprung from it, according to the local Cu-
no leſs Affection and Kindneſs to their Sons by Concubines ftoms and Conftitutions ( f) Now alcho' the
or Harlots, than to thoſe who are born of their legal Law of Nature be a Stranger to theſe Formalities,
Wives; nor have the former any leſs Degree of Right to yet inaſmuch as it commands all Subjects to obey
the Goeds and Eſtate of their Father.
the Ordinances of the Government under which
Abbas, King of Perſia, took another way of they live, it would be idie and ridiculous for ſuch
preventing theſe Indignities: For, carrying with Perſons, as have not the Power of making or of
hiin into the Field all his Female Train, he com reverſing Civil Laws, to plead the Indifference of
manded the Eunuchs, that had the Cuſtody of Natural Law in the prelent Caſe.
( a ) Vid. Ælian. V. H. 1. 10. C. 18. (b ) Yet ſometimes we meet with the Word Concubina in no diſgrace-
ful Sence. Vid. L. 32. t. 3. 1.49. f. 4. D. de Legati and L. 5. t. 27.,1., 3. C. de natural. liberis, Concubinage is call'd unequal
Marriage. Add. Godofred. ad loc. dičt. (c) Epift. 1. (d) Petrus della Valle Itin. P. 2. Epift. 5. (c) Mar-
tin, Hift. Sin. 1. 6. c. I. p. 2OI. (f) V. Conftitut. Sicul, 1. 3. t. 20.

as
CHA P. II.
Of Paternal Power
1. The Common Opinion of tbe Original of Pa. VIII. How far Children are capable of being go-
ternal Authority.
vern'd at this time.
II. According to Hobbs, the Original Power over IX. Whether a Father may fell bis Son.
Children is in the Mother.
X. Of the Obligation of Children made free.
III. And from her is derived to otbers.
XI. What Power Fathers have over their Children,
IV. On what Reaſon is Paternal Authority grounded. out of Civil Societies.
V. How far the Father bas more Right than the Mo- XII. What Power in Civil Societies.
ther.
XIII. How this Power is loft.
usa
Bain
VI. How great the Power of the Father is, as ſuch, XIV. Whether Children ought to have their Parents
over his Children. Vigo.
Conſent to their Marriages.
VII. Both in their Infancy and Childhood.
Sivi s oni said to boa geta
I. YHildren are the proper Fruit of Matrimony; Perſon really exiſt, who before had no Being.
as they are likewiſe the proper Subjeđts But in as much as both the Parents equally con-
of Paternal Dominionthat moſt ancient tribute to this hgnal Benefit, they ſay that both
ani, at the ſame time, moft ſacred Kind of Go- originally acquire a Right over their Iffue; but
vernment; by Vertue of which the Children are that, in caſe they contend for the Sovereignty,
engaged to acknowledge the Superiority, and to and by reaſon of their contrary Commands can-
and obey the Commands of their Pa not both be obey'd together, (1) the Father's
. The Origine of this Power, Grotius ( a ),
(a), Authority is to carry the Precedence; not only
and moſt Writers refer to the Ax of Generation, on the account of the Advantage he hath in Sex,
by which the Parents do, in ſome meafure, re- but likewiſe becauſe the Mother her ſelf is placed
ſemble the Divine Creator," whilſt they make a under his Direction and Sway.
11
"C
reverence and
rents.
DISSER
It's to be
2003 igual zit boister V1190110)
oilwa MIATTO
astrol Mr. Barbeyrai's NOTES
s very
Chap.
paſſage VI. Gronovius Pater
e Mater)
unum vocabamus, videamus, quò ire debuerit. “Poteram quidem fortiter dicere. Pater jul Hoc nomen omni Le-
ge majus eft.Neceffe habuit parere-
quamois apud omnes Gentes plus
juris babeat Pater ? Sut Jane Natura
communis, non imputabo, quod nomen
dedi, quod fami-
liam, quod impenfas, &c.
(a) L. 2. C. 5. 1. 1.
13950# $s
II. Mr. Hobbes

Chap, [367
11
.
Of Paternal Power.
6
6
(
C
6
11. Mr. Hobbes ( a ) takes another Road in tra ſhould attribute this Right of Governing to the
cing out this Paternal Rule : Tho', ſays he, this Husband rather than to the Wife : For the Ine.
be a true Conſequence, A Man is the Pather of quality is not ſo great between them, as that the
another, and therefore hath the Dominion over him; 'Man can immediately eſtabliſh his Rule over the
yet it is not ſo clear and manifelt as to thew its
' Woman without Oppoſition ; but, in a State of
own Neceflity, as thoſe do where one of the
Nature, he muſt fairly win her by a Courſe of
Terms is included in the Definition of the other; War. Farther, ( 3.) the Woman, by carrying
"bue muſt be made out by other Arguments and
the Child ſo long about her, and nouriſhing it
' Proofs. Beſides, ſince all Sovereign Power, if with her Subſtance, ( 4 ) doth certainly contri-
- regularly eſtabliſh’d, is indiviſible, so that no
bute, if not the moſt noble, yet the moſt labo,
one can, at the ſame time, ſerve two Maſters, rious and troubleſome Share to the Produ&tion
"unleſs in Subordination, and ſince two Perſons
of Iſſue (6). Laſtly, in as much as in a State
concur to the Act of Begerting, that Act ſhould
of meer Nature, where no Commonwealths
ſeem an improper Foundation for Sovereignty ;
and no Families are ſuppoled, 'tis impoſſible to
'which may therefore be more conveniently de-
know who is the Father of the Child, but by the
duc'd from a State of Nature, in the following Mother's Affeveration; it follows that the child
Method. During ſuch a State every Man hath
belongs to whom ſhe plealeth, and therefore pris
a Liberty of practiſing againſt every Man, what
marily to her ſelf. On which account it was
" he thinks may conduce to his own Préſervation; enacted by the Roman Conſtitution that iſſue,
(1) and conſequently the Conqueror is the brought forth without Matrimony (c), ſhould
• Lord and Maſter of the conquer'd.
follow the Venter, or the Mother (d).
we may infer, that by the Law of Nature the
III. From the Mother this Dominion, accord,
'Right of governing an Infantis firſt in the Power
ing to Mr.Hobbes, may paſs to other Perſons ſeve
of the Mother; who, if ſhe reſolve to nouriſh
ral ways. Firſt, if the Mother renounce her
and breed him up, ( 2 ) as ſhe is in Duty obli-
Right by expoſing the Child; the Perſon who
ged to do, is ſuppos’d to do it upon this Condi-
' finds, and breeds him up, ſhall enjoy the ſame
cion, that he ſhall not prove her Enemy when Right which the Mother had over him before.
grown up, i.e. that he ſhall pay Subjection and
For the Life which the Mother at the firſt
gave
Obedience to her. ( According to his Hypo ' him, ſhe, as far as ſhe is able, takes away again
theſis
, thoſe are mutual Enemies, who are neither
' by this Act of expoſing him: And conſequents
ſubject one to the other, nor own a commonly the Obligation he had to her, for her former
Maſter ). For it is by no means to be preſum'd Kindneſs, is entirely cancell'd by this Injury.
that I would give a Perſon Life, on purpoſe to On the other ſide, to the Perſon who ſav'd and
put him in a Capacity of growing up to my Pre.
educated him, he owes all poſſible Returns, and
judice, and of gaining ſtrength in time to repay
ought to acknowledge him, both for his Parent
'my Kindneſs with Hoftility. Thus therefore a
and his Maſter (é). Here, though we ſhould
'Woman becomes, at the ſame Minute, a Mo« grant that ſuch a Child ought ftill to preſerve an
ther and a Sovereign
Miſtreſs
. Nor is the Ex- Inclination of paying Duty ( 1 ) to his mother,
cellency of Sex a ſufficient Argument why we and, upon her Sorrow and Repentance, to return
6
Jt is a
Mr. Barbeyrai's NOTES. on Chap. 2. $ 2, 3..
(1) Our Author elſewhere has confuted this Principle of Mr. Hobbes.. See B. 1.c.6.1. 10. and B. 2, 6, 2. S. 5, Egoce
1 2) Mr. Buddeus ſets down this ( as is certainly her Duty to do? as Mr. Hobbes's Opinion, but it is plainly contrary
to Mr. Hobbes's Notion, as the Courſe of his Reaſoning inakes it evident; and Mr, Hobbes explains himſelf without Res
ferve. De Cive, Chap. IX. 0 2. where he ſays, that a Mother may either bring up or nouriſh her Child, SUO ARBITRIO,
ET JURE, at her own pleaſure. See alſo his Leviathan. In general, our Author mixes his own Notions and Arguments
too much with Mr. Hobbes's, without Diſtinction, which ought to be carefully obſerved.
( 3 ) This is our Author's Reaſon, tho' Mr. Buddeus attributes it to Mr. Hobbes in the Place before quoted.
This our Doctors, and Modern Phyſicians will not allow, as moſt Men know.
(1) Theſe are our Author's Words to the end of this section, and agree with his Principles, only we muſt add, that
what he ſays of the Mother, muſt equally be applýed to the Father.
(a) De Cive, c. 9.
(b) Quintil. Declam. 338. It is otherwiſe in the Caſe of the Men, who are made Parents
by a foort and tranſient Pleaſure, and are endeard to their Children only by that outward Satisfaction. But the Mothers
love with a much jíronger Paſſion, remembring their ten Months Trouble, their long Courſe of Cares and Dangers.
ſaying of Medea, in Ennius, ( or rather in Euripides, v. 250, 251. from whence it was borrowed ;) I had rather be Three
times under the sword, than Once under the Hands of the Midwife. Yet they tell us of the Women of Paria in America,
that they bring forth without any Pain or Weakneſs, and immediately after their Delivery return to their ordinary
Work
and Employment. Much the ſame is reported of the Women of Chili ; and 'tis added, that the Spaniſh Dames, 'if they
live there any conſiderable time, contract the ſame Hardineſs. Oreſtes in Eurip. v.552, Esc. when it makes for his Caufé,
gives his Fathet much the Advantage of his Mother.
My Father planted me, and his fair Dame
Was but the Soil that bred and brought me forth,
More tied I judgd my
felf to ſuccour Him
That gave me Life, than Her that gave me Food.
(e) See hereafter Section the Fifth. (d) By the Law of the Lycians, if a Free-Woman married a Slave, the
Children
were adjudg'd Free: but if the greateſt Man in the State wedded a Foreigner or a Strumpet, the Iflue was ac-
counted baſe and fervile. The ſame People took their Names from the Mother, not from the Father, Herodot. Clio, p. 44.
(e) Thus Admetus Ipeaks in Euripides ( Alceſt. ) v. 666, arc.
So far I died as Death was in Your Power :
And if a kind Deliverer hath reſtor'd me
To Light and Life, I own him for my Father ;
And boaſt to be the Comfort of his Age.
Liban. Orat. 13. A Man who takes another out of the Water, where he was ready to perifa, may well be effeem'd a Father by
D dd
in
.
Ed. H. Sieplo.
the Perſon be hath preferved.
368
Of Paternal Power.
Book VI.

C
(min'd.
in ſome meaſure, under his old Relation and Sub-
cohabit, the Children are the Subjects of the
jection; yet he cannot do this otherwiſe than
"Man : Becauſe in Civil States, all the Domeſti-
with the Confeat and upon the Reſignation of his cal Sovereignty belongs to the Fathers of Fami-
Educator, to whom all his Charges, &c. are to be lies, by whom the States were founded and e.
refunded. And this ſeems to be the only Caſe * ftablim'd, and who, we may be ſure, were wil-
in which it is poſſible to acquire Rule over a Man ling to ſettle the Point in favour of themſelves.
by Seizure or Occupancy,
. Such a Contract between a Man and Woman in
Secondly, 'If the Mother were made a Cap a Common wealth, if it be made in folemn
tive in War, the Iflue born to her belongs to Form, and according to the Laws of the Place
,
the Perſon who took her; as her other Goods ' is callid Matrimony. But in caſe the Parties bar-
and Poffeflions. But here it muſt be obferv.
'gain only for Concubinage, or for a leſs ſolemn
ed, that the Right and Power of the Conque. kind of Conabitation, the Children ſhall then
ror, over the iſſue of his Female Captive, is quite
fall either to the Father or to the Mother, ac-
of another kind than that which ſhe, as a Mo cording as the Civil Conſtitutions have deter-
ther, before enjoy’d.
Thirdly, 'If the Mother. be her ſelf a Subject IV. We in this, as in other of the like Points,
* in any common-wealth, the ſupreme Gover- have recourſe, in the firſt place, to Almighty
nour there hath Dominion likewiſe over her GOD, the univerſal Cauſe and Author of
* Child. Where we are again to remark, that the Things. And yet we think it a very lawful Ar-
Power of the Civil Governour is very different tempt, to ſearch farther into the ſecond Cauſes
from that of the Parents : And that it doth not and immediate Inſtruments. For as to that which
preſently follow, that the Mother's Authority ſome pretend, that All Sovereignty, which one Man
mult be extinct, and as it were ſwallow'd up in obtains over another, is communicated to him by God,
the chief Ruler's; but in ſome States ’tis only li as it were in the manner of a Divine Commiſſion, and
mited and reſtrain'd, in others ’tis left almoſt per- that all Human Power is purely by Delegation ; We
fect and entire.
take it to detract from the Honour of God, al-
Fourthly, If
Woman enter into an Agree- though the Perſons, who have ſuch Sentences
•ment of living with a Man, under this expreſs commonly in their Mouths, ſpeak with a great
• Condition, that the Man ſhall be Lord and So. Appearance of Piety. For he who exerciſeth a
vereign, then the Children born to them both delegated Power, hath the ſame Power altoge.
* ſhall belong to the Man, upon the Score of his cher with him from whom he receives it; only
Sovereignty over the Mother
. But, if the Fa- with this Difference, that the former poſſeffech
ther be the Mother's Subject, the Children like- it only as borrow'd, the latter as his own. But it
wife fall under her Command; otherwiſe the would betray very low and unworthy 'I houghts
bearing Iffue would be a Prejudice to her Su- of the Infinite Majeſty of Heaven, to conceive
premacy. And in general, if the Society be that the ſame Species of Sovereignty is enjoy'd
cween the Man and the Woman be ſuch a regu- by God and Man (a).
'lar Union, as gives one the Dominion over the Having premiſed this Caution, we go on to
other, the Children owe Subjection to the Ru- the main Buſineſs before us. And, firſt of all, we
ling Parent. But, if in a State of Naturé, a think it may be ſettled as an undoubted Truth,
• Man and Woman contract to cohabit in ſuch a that the Act of Generation doch yield an Occa-
manner as to be independent on each ocher’s fion to the acquiring a Right over the Child,
‘Rule, the Children ſhall fall to the Mother, un which ſhall hold good, not only againſt other
- leſs it was exprefly order'd otherwiſe in the Perſons, who have not the ſame Claim of Paren-
Bargain. For the Mother may, by Covenant, tage (b), but likewiſe againſt any Pretenſion
diſpoſe of her Right as the pleaſech. Thus that can be made in behalf of the Child it ſelf.
they tell us of the ancient Amazons, that they we ſay an Occaſion; becauſe we are not perſua-
agreed with the Men of the neighbouring Couri. ded that ( 1 ) Generation alone is ſufficient to give
tries, to whom they had Recourſe for iſſue, to a full Dominion over Human Iſſue. For alcho'
ſend back the Males, and only to preſerve the our Children be indeed made of our Subſtance,
"Females to themſelves. But in Common-wealths, yet in as much as they become Perſons like our
if a Man and a Woman engage by Contract to ſelves, and our Equals, as to all thoſe Rights


C
Mr. Barbeyrac's NOTES on Chap. 2. 3. 4.
( 1 ) It is certain, that as our Author will prove a little lower, Education is the immediate Foundation of Paternal
Power, and the mutual Duties of Father and Child. But we muſt not exclude Generation, which, to ſpeak Truth, is
the firſt Foundation of all Engagements to a Father, and conſequently of his Power. Indeed, how comes it to paſs, that
a Father and Mother are obliged above all others to bring up the Child that is born of them. 'Tis in my Judgment;
becauſe they have join’d together in a Natural Act appointed by, God for the Propagation of the Specics, and ſo are, of
ought at leaſt to be, engage tacitly to bring up the Fruit they have produc'd; for that implyed, that it was the Motive
of that Conjunction ; and tho' perhaps they then propounded only to ſatisfy their Defires, "tis fufficient that the very Na-
ture of the Thing, which they can't truly be ignorant of, allows us to preſume upon that Engagement. This is ſo true,
that our Author endeavouring to prove, that Fathers and Mothers ought to bring up their children, bath ſaid above,
on them, to preſerve that Life they have given them. We may here apply what Crito ſays to Socrates in the
Dialogue
of Plato, that bears his Name : "H 18 8 ggles fossings Früdes i onda tandemowpain, aj trépor la nej preus derta, i. e. Either gece
nu Children, or reſolve to maintain
them, what 1 rouble and Charge foever you are at for their Education and Support.
Tom. I. p. 45.
( a ) See Matth. X. 28.
To he who is Maſter of the Body whence the Child proceeds, ſhould have the firſt step of Title towards obtain-
(b) That as he who is Mafter of a Thing, is likewiſe Maſter of the Fruits or Profits
ing a Sovereignty over the Child it felf.
of it;
which

Chap. II.
369
Of Paternal Power.
as
which nacurally accrue to Men; before we can anſwer to the Parent's Obligation, yet by vertue
render them unequal to us, or ſubject them to of this Care, employ'd by the Parents about him,
our Dominion, it ſeems neceſſary for us to ſeek he contracts as firm an Engagement towards
out ſome other Title: Eſpecially ſince, in the them as if he gave his full and expreſs Confent
Method of bringing a Child into the World, the (c). And this Engagement begins to exert its
Parents have no little Regard to their own Plea. Power ſo ſoon as he arrives at the Knowledge
fure and Satisfaction; and therefore cannot rate and Apprehenſion of any thing that his Parents
the Kindneſs at ſo vaſt a Price, and ſet it ſo high- have done for him. It being fairly preſumed,
ly on the Child's Score, as to demand back, in that had he, at his coming into the World, been
Confideration, a full Subjection and Obedience, furniſh'd with the Uſe of Reaſon, and made ca-
whether the Child be willing or no. It is a Say- pable of underſtanding that his Life could not be
ing of Lactantius (a), He that begets a Sor, bath preſervd, without the kind Proviſion of his Pa-
n0 Power to make him be Conceiv'd, to make bim be rents, join'd with their command over him, he
Born, to make him live: Whence it appears, that he is would gladly have yielded Obedience on fo com-
not ſo properly the Author of his Son's Being, as the In- niodious Terms. Which Conſent of his, (2) be-
ftrument.
ing Rationally ſuppofed, hath the ſame Validity a
The Right then of Parents over their Children, if it had been openly declar'd (d). In the ſame
ſeems to be founded on theſe two Titles or manner, as a Perſon, who hach had any Bufi-
Claims. Firſt, it ariſeth from that Duty which nefs perform’d for him by another, in his Ab-
Nature (in enjoining Man to be a fociable Crea- fence and without his Knowledge, is ſuppoſed
ture) lays on them to take care of their Off-Spring; by a kind of filent Covenant to contract an ob-
the having, at the ſame time, to ſtir up their Di- ligation of refunding the Charges. It is clear
ligence, wiſely implanted in them a moft tender therefore, that the Power which Parents have
Affeaion towards theſe little Pi&ures of them- over a Child, is then actually conſtituted, when
felves. For take away from the Parents all Care they apply themſelves to nouriſhing and educa-
and Concern for their Children's Education, and ting him, and rendring him, ſo far as they are
you make a ſocial Life an impoſſible and unin- able, a uſeful Member of Human Society.
telligible Notion. But this Care cannot duly be (3) Some indeed have maintain'a, that the
exercis’d, unleſs the Parents have power to di- Obligation becween Parents and Children can
reet and govern the Actions of the Child, in by no means be deriv'd from their tacit Conſent
order to the procuring his Benefit and Safety, and Covenant, upon this Argument : Confent,
which he himſelf, through Defect of Years and whatever the Subject or Occaſion of it be, doth not take
Judgment, is incapable of apprehending and of place, except in A&tions that were free before the Con-
providing for (b); and conſequently Nature Sent pafs'd'; but now it is not a matter of Freedom in
doth hereby enjoyn Parents actually to make uſe the preſent Caſe, for the Parties to perform the mutual
of ſuch a Power and Dominion, ſo far as it is Duties of Education on the one fide, and of Obedience on
neceſſary to the Accompliſhment of fo important the other. But this way of Reaſoning cannot
a Work. For whoever obligech a Perſon to the weaken what we here aſſert. For it doth noc
Proſecution of an End, is, at the ſame time, imply the leaſt Contradiction, for a Duty to ariſe
ſuppos’d to have given him Authority to apply at the ſame time from a Precept of the Law of
all Means that ſhall appear requiſite for its At- Nature, and from Tacit Conſent and Pad. It
tainment. And this Power of the Parents, re- is not certainly free for a Man not to obey GOD;
ſulting from the Duty lying on them to provide yet GOD hath been pleas’d to enter into Cove-
for their Iffue, doch neceſſarily create, in the nant with his faithful Servants. A Subject is no
Children, an Obligation to ſubmit themſelves to doubt oblig'd to perform all due Offices in the
their Parent's Direction, without which Act of State under which he lives ; and yet, when he
Submiffion, the former Benefit cannot be obtain'd, is to be Liſted in the Military Order, not only
and the Authority is to no purpoſe.
his Conſent is required, but his Oath. And thus
Secondly, The Sovereignty of the Parents ſeems, why may we not as well affirm, that whilſt the
likewiſe, to be built on the preſumed Conſent of Parent a&ually undertakes the Éducation of the
the Children, and conſequently on a Tacit Pact. Child, the Child's Tacit Confent is to be undera
For, as the Parent, by the very Act of breeding ſtood ? the Effect of which Conſent amounts to
up the Infant, doth declare himſelf ready to fulfil this, that he ſhall not afterwards have Reaſon to
the Obligation of Nature, and to conſult, ſo far complain, that the Parent's Authority was obtru.
as in him lies, the well educating of his Charge ; ded upon him againſt his Will, and without ſuf-
ſo the Infant
, on the other ſide, tho', on account ficient Grounds and Title.
of the imperfea Force of Reaſon, he cannot ex V. When the Queſtion is carried farther, and
prelly promiſe thoſe reciprocal Duties, which it is demanded to which of the Parents this Right
Loft
V9
ſent with a tacit one.
Mr. Barbeyrac's NOTES on Chap. 2. $. 4.
(2) This Suppoſition is equally ill grounded, and ſuperfluous. We can't preſume a Conſent of a Child who is not
The Author alſo here, as well as elſewhere, confounds a preſumed Con-
See what I have ſaid above in my Note upon Lib. III. Chap. VI. 9 2. In that alone, that Nature
pats Infants into fuch an Eftate, wherein they have an abſolute need to be help'd and directed by others, and charges
Fathers and Mothers with that Care ; it ſufficiently impoſes upon the Firſt an Obligation to ſubmit to the Power of the
(3) It is James Thomafius, the Father of the preſent Mr. Thomafius, in his Diſcourſe, De Patriâ poteftate, I 49.
(a) Divin. Inftit. 1. 5. c. 18. (b) See Sirac. VII. 25. XXX. I, EC. (c) Add. L. 3. t. s. 1. 2. D. de
negot. geftis.
(1) Com. Senec. Confol. ad Marciam. C. 1 $. in fin.
Didd 2
Latter.
erise ។
oyer

370
Of Paternal Power.
Book VI.
over their Iſſue doth moſt properly belong, a ther is not lo neceiiarily oblig d to give her lo-
Diſtinction or two will decide the Point: For fant Suck, but phat the may make uſe of a
the Perſons concern’d, either live under fome Nurſe(); and as the Father ads upon good
Common-wealth or not; and again the Parents" Prudence, when he delivers his Children into
either are, or are not engaged to each other by the Hands of able Inſtructors, for the forming of
Covenant. Without the Bounds of a Common their Mind and Manners.
wealth, or in a State of Natural Liberty, if the
But, in Civil States which for the moſt part
Parents were not united by any laſting Contract, have been erected by the ſtronger Sex as the
the Child is under the Care and Command of the Men in common Courſe, are the Heads of the
Mother. Becauſe, in ſuch a Condition of Life, relpeđive Families, ſo the private Dominion
it being as probable that one Man ſhould be the over the Children belongs to the Father ( 2 ); fo
Father as another, the Mother can only deter- that here, the Mother's commands are in then
mine the Controverſy ; at leaſt
, the thing can- felves little better than Counſels, and borrow their
not be otherwiſe known, with ſo much Truth full Force of obliging, from thar
Share of Power
and Certainty, as Matters of Fact demand ( a ). imparted by the Husband to his Wife. For, as it
On this Principle, the Roman Laws award to is generally found convenient to admit the Wo.
the Mother, Iſſue begotten ( 1 ) in common ( 6 ). man to a Part in the Government and Direction
But if a Covenant hath paſs'd between the Pa of the Family; ſo the Father's Power over the
rents, by which they ſectled theſe Affairs, it Children doch by no means exclude the Mo-
will appear thence, which of the two is to ther s inferior Authority and are. Not but that
bear Rule over the Children; for that two Per- the Conſtitutions of particular Common-wealths
fons ſhould both hold the ſupreme Authority o may ſettle this Matter otherwiſe, as ſhall be
ver a third, without Subordination or Diviſion, judg'd expedient. Peter della Valle, in his Tra-
is no regular Practice. This Covenant then be- vels(d, informs us, that amongſt the Inhabi-
tween the Parties, either terminates in the bare tants of Babylon or Bagdet, the ſupreme Power
Procurement of iſſue, or it includes farther the over the Sons is held by the Father, and over the
Sovereignty of the Man over the Woman, and ſo Daughters by the Mother.
falls in with Juſt Matrimony; where no doubt If, upon the Father's Deceaſe, the Govern-
the Command over the Children is lodg’d in the ment of the Family remain with the Mother, it
hands of the Father. But in Covenants of the is but juſt that ſhe exerciſe the ſame Authority
former kind, though they uſually take their Be over the Children which the Father formerly en-
ginning from the Man, who ſeeks Children for joyd (e). And in Caſe The marry a ſecond time,
himſelf not for her, and conſequently bargains and the new Husband be intruſted with the Care
to have the Rule and Diſpoſal of them ; yet it of his Predeceſſor's Children, they are to pay
may ſo happen, that quite contrary to this Or- him the like Reverence and Duty as was chal-
der, the Woman calls in the Man for an Aſiſtant leng’d by their proper Father. Yet we are told
to her defign of Iſſue; not the Man the Woman. a very odd Cuſtom of the Chineſe in this Particu-
This was the Caſe with the ancient Amazons; lar, that if a Wife, after ſhe hath buried one
and is ſtill with any Sovereign Princeſs, that Husband, proceed to a ſecond Match, her Chil-
marries without quitting her Rights ; the Man dren ſend her off, covered only with a ſingle Gar-
being here not ſo properly a King, as the Husband ment, as an ignominious Mark of her light Dif-
of a Queen. Nor ought we to think that Pacts poſition ; and the Reaſon of the Cuſtom is, that
of this ſort are therefore repugnant to the Law according to the Inclination of that people, the
of Nature, becauſe in them, one of the Couple Children cannot bear a Father-in-Law, much leſs
ſeems to renounce that Care of the Children, reſpect and obey him (f).
which Nature hath equally laid on both the Pa VI. The next Step we take, muſt be to en-
rents : For the Precept of Nature, in this point, quire how far this Power of Parents over their
doth not preciſely require that both Father and Children extends; or what are the proper Bounds
Mother ſhall apply themſelves in the ſame ſtrict and Meaſures of it. And here it is neceſſary to
Degree, to the Work of Education ; but is ſatiſ- diſtinguiſh, firſt between thoſe Fathers of Fami:
fied if by Compact, the main Charge be commit- lies, who live under no publick Government,
ted to either. In the ſame manner, as the Mo- and thoſe, who are the Subjects of a Common-
( b ) The
Mr. Barbeyrac's NOTES on Chap. II. S S.
( 1 ) Vulgo concepti (ſay the Digefts) dicantur, qui patrem demonftrare non poffunt, vel qui poſſunt quidem, ſed eum ha-
bent, quem habere non licet, qui &go ſpurii appellantur. Lex Natura hec eft, ut qui naſcitur fine legitimo Matrimonio matrem
equatur, nifi Lex Specialis aliud inducit. Lib. I. Tit. I. De Statu Hominum. Leg. XXIII, XXIV.
(2) By the Roman Law Wives had no Authority over their Children, altho Ulpian ſeems to attribute fome to them,
Digeft. Lib. XXVII. Tit. X. De Curatoribus furioſo, &c. Leg. IV. Pietas enim Parentibus, etfi inaqualis eft eorum poteftas,
æqua debetur. See about this Mr. Noodt's Obſervations, Lib. II. Chap. XV.
(a) Comp. L. 3. t. 1. f. 31,32. Inftitut. de rerum divif. & L. 41. t. 1. l. 7. f. 13. D. de acqui. rer. dom.
Egyptians follow'd a contrary Opinion. They accounted none of their Sons Spurious, although born of a Slave ; imagining that
the Father alone was the Author of the Generation, and that the Mother contributed no more than Place and Nouriſhment.
Diodor
. Sic. l. 1. c. 80. p. 72. Ed. Rhodom. To the fame purpoſe ſpeaks Theages, the Pythagorean in his Treatiſe of
Vertues, The Father produceth the Form, and the Mother only Supplies the Matter. 'Opuſcula Mythol. Eth. & Phys. printed
at Amſterdam in 1688. p. 683, 684. (c) The contrary Opinion is maintain'd by Plutarch, de Educat. &c. and
by Phavorinus in Gell. I. 12. c. 1. Add Ferdinand Pinto's Travels, chap. 54. where he tells us how Strict and Religious 3
Point the Japoneſe eſteem it, for a Mother to give her Infant Suck. In the Alcoran, the women are commanded to pero
form this office to their Children for the two firft Years. (8) P. I. Epift. 17.
with XXIV. 4. (f) Neuhof. in Legat, p. 281.
+


(e) Comp. Gen. XXI. 21.
wealth:

Chap. II.
374
Of Paternal Power.
Can you
up : But th
Beatings they procure Abortion.
the Temper of their Children,
wealth: And again, between that Power, which doch by no means reach to fo extravagant a De.
the Father holds, as he is a Father, and that gree, as that he may deſtroy the Child whilſt in
which he bears, as he is the Head of a ſeparate the Mother's Belly ( 2 ), unleſs the Mother muſt
Family. The Power which a Father enjoys, on otherwiſe infallibly periſh (e) or after the Birch
the bare Score of his being a Father, inaſmuch ( 2 ) expoſe or make away with it, much leſs after
as it accrues to him as a neceſſary means of dif- the Increaſe of Growth and Years. For altho
charging che Obligation towards his Iſſue, which it be very true, that the Infant hath his Riſe and
Nature lays upon him, muft confequently be ſo Original from the very Subſtance of the Parents,
great, as ſufficiently
to anſwer and effect thac yet he is immediately plac'd by Nature, ( 3 ) in
Deſign. Now the Obligation, or Dury of a a Condition of Equality with them (f); at leaſt
Father, as ſuch, chiefly turns on this general ſo far as to be capable of receiving Hurt and in-
Performance, that he duly educate his Chil- jury($). Therefore the Opinion deliver'd by
dren ; that is, nouriſh, prorect, inform and go- Ariſtotle in his Politicks ( b ) is to be exploded as
vern them, in order to the rendring them uſeful unjuſt and inhuman. As to the expoſing and the
to themſelves and others, till they are able to preſerving of Children, ſays he, let it be order d by
conſult their proper Benefit, and are grown Law, that nothing Lame or Defektive be ſuffer'd to
Maſters of their own Wills and Actions. (For, grow up. If any Nation think it not allowable to ex-
as to the A&t of Begetting, that is not ſo proper- poſe their infants, there, certain Bounds are to be ſet
ly a Part of the Paternal Dury, as the Occaſion of to the Number of Births, and if the Buſineſs of Gene-
it). Parents ought to apply more Diligence and ration happen to exceed the due Limits, it will be con-
Caution in fulfilling this Obligation, the more venient to procure Abortion, before the Fætus is arriv'd
Truth there is in that (1) ſaying of Plutarch, (a), at Life and Senſe, for ſuch a period of its Growth'is
Good Infitution is the Fountain and Root of all Huneſty to determine, wbether the Act of deſtroying it be harma
and Virtue. Eſpecially if they take this Obſervati- leſs or finful. Lycurgus did not expreſs more Mercy
on of Plato (bj along with it, which commonly in his Spartan Diſcipline. We learn from Plutarch
holds true ; Perſons (ſays he) who are naturally en that, when a Child was born, it was not left to the
dued with the moſt excellent Wits, if they happen to be Parents Choice to preſerve and nouriſh him. But he
Spoilt in the Breeding up, commonly prove the very was carried immediately before an lembly of the Se-
worſt of Mankind. think that all thoſe bar- niors, who conſidered and ſurveyed him. If they found
barous Villanies, all that borrid Wickedneſs which we his Limbs ſtrong and well Jet together, they orderd be
tions, and not rather from brave and generous Spirits they adjudg’d to be carried away and thrown into a
perverted by ill Education? Or do you ſuppoſe, that a kind of Whirl-pool near the Mountain Taygetus; as
natural Weakneſs and Feebleneſs of Temper, does ever it to live, when Nature had provided them ſo infiron
prove the Cauſe of any very great Good, or very great or ſo unfightly a Body, could neither be for their own
Miſchief (c).
Good and Credit, nor for the Advantage of the Com-
It is plain then, that the Power of the Father mon-wealth (i). Indeed this unnatural Practice
Mr. Barbeyrac's NOTES on Chap. II. 96.
(1) Plutarch’s Greek is, Múyn gå vej Bild Nsekong gagics to vobeles Tuzco Traufelus. Plato's Greek is, Kai tais fugee's Štro cã refu
τις ευφυεσάτας, κακής παιδαγωγίας τυχέσας, διαφεροντως κανείς γίγνείς, ή οίει τα μεγάλα αδικήματα και τίω άκραίον πονηeίαν εκ
φαύλης, αλλ' άκ έα νεανικής φύσεως τερού διoλλυμένης γίγνεως, αδενή ή φύσιν, μεγάλων έτε αγαθών έτι κακών αιτίαν ποτε έσεθς.
Further, we may find ſeveral excellent Precepts about the Education of Children in Plutarch's Treatiſe betore quoted, as
alſo in Montaign's Eſſays, Lib. II. Cap VIII. of the Affe&tion of Fathers to their Children. In Charron, of Wiſdom, Lib.III.
Cap. XIV. but eſpecially in that excellent Treatiſe of Mr. Lock, which has been ſeveral times printed, but the beſt Edi-
tion is in 1708. becauſe the Author has made ſeveral Additions to it, to which Mr. Cofte, who has tranſlated it into French,
has added ſeveral excellent Notes in diverſe Places.
2 ) This deteſtable and inhuman Cuſtom was very common heretofore among the Grecians and Romans. See Mr. Noodt's
Julius Paulús, where he fifts this Matter to the bottom. The Law of the Digefts
, quoted by our Author, where the
Lawyer Paul condemns this abominable Cuftom, as contrary to the Rules of Humanity, Civility, and Natural Juſtice,
tho 'twas not puniſh'd by the Civil
Laws : deſerves to be fet down here at length. Necare videtur, non tantum is, qui
Partum perfocat, ſed Ego is qui abjicit, & is qui publicis locis miſericordiæ causâ exponit, quam ipſe non habet. He kills a Child,
not only, who ftrangles it, but he that cafts off all Care of it, and denies it Food, and he that lays it in a publick Road,
find that Mercy from others, that he is wholly devoid of. Digeft. Lib. XXV. Tit. III. De agnoſcendis, ego
alendis Liberis
, Egc. Leg. IV. See about this, Chap. VIII. Égc. of Mr. Noodt's Treatiſe before quoted.
( 3 ) See above, Lib. I. Cap. I. $ 7.
(a) De Liberor. Educat. p. 4. B. Ed. Wech. (b) De Republ. 1. 6. p. 676. Ed. Wech.
(c) Idem de
LL... 7. calls a Child, A Creature more intradable than a Beaft
. Liban. Declan. 20. Education is one of the higheft Goods
of Human Life. Horat' L. 4. Ode 4. v. 33.
Doctrina ſed vim promovet infitam,
But Learning feeds the in-born Flame,
Reftique cultus pectora roborant:
And Culture gives great Souls a firmer Frame :
Utcunque defecere mores,
If Genetons Morals once decline,
Dedecorant bene nata culpa.
Baſeneſs and Vice attaint the nobleſt Line.
(?) vid. L. 47. t. 11.1.4. D. de extraordin. crim. & L. 48. t. 8. 1. 8. D. ad L. Cornel. de Sicariis, & tit. 19. 1. 38. f. 5.
(e) Vid. Ant. Matth. de crimin, ad 1. 47. D. t. 5. f. 5. Grot. in Flor. Spars. ad l. 39. D. de pænis.
self a Man, and the Father of a Man. Vid. Philo Jud.
de Special. Leg p 794, 195. Ed. Parif. Lactant. Dio. Inftit. 1.6.c.20.
c. 77. Add. Grot. ad Exod. XXI. 22. Leg. Wilogoth. 1. 6. t. 3. c. 7. Selden. de 7. N. Ego G. 1.4. c. 1. It is a
moſt abſurd and mot barbarous Cuſtom which they praxiſe in Formoſa, where it is reckon d feandalous for the Women to
conceive before their Thirty fifth or Thirty fixth Year. And if they breed ſooner than that time, by miſerable Pains and
(h) L. 7. c. 16. (21.)
(i) I know not whether we may venture
of
that it may
D. de pænis.
(f) See B. 1. c. 1. f. 7.
Diod Sic. 1
Of Paternal Pomer.
Book VI.
Poffefſions,
VIII. I
372
of expoſing Infants was ſo frequent and almoſt ſo
Univerſal a Cuſtom with the Ancients, that Strabo Child, under this imperfea Period of Reaſon, be
,
(a) mentions it as ſomething very particular in by the Law of Nature, capable of Propriety of
the Egyptians, that they breed up all their Children of being the Maſter of any Goods or
(b). So Dionyſius Halicarnaſſeus (c) ſets it down
in ſuch manner as to exclude the Claim of his
as a remarkable Opinion of the Aborigines, They Parents ? On which Point it
refuſe to make away with any of their Infants, think- diſtinguiſh between Goods gotten by private In
ing this one of the higheſt and most execrable Villanies. duftry, and thoſe which are left or made over by
And Tacitus, in his Account of the Jews (d), the Liberality of others, as in Legacies, Donaci-
makes their Abhorrence of this Cruelty one partons, &c. In that tender Age, what can a Child
of their Character (e).
be ſuppos'd to get by his own Induſtry ? Cer-
Nor doth it appear reaſonable to extend the tainly not ſo much as his parents have laid out
Paternal Authority, as ſuch, to the Power of Life on his Education. This therefore the Father may
and Death, even in the Caſe of Faults committed ; fairly challenge, in Requital of his Pains and
but rather to fix its Bounds within the Exerciſe of Charges. For tho? he were oblig'd indeed, by
moderate Corredion : Becauſe its whole Care and the Law of Nature, to ſupport and maintain his
Buſineſs is taken up about ſo tender an Age, as off-ſpring, yet he was not, in the leaſt
, prohi-
can ſcarce be imagin'd capable of ſuch grievous bited to make what Fruit and Advantage he
and incurable Offences, as demand Capital Pu- could of his Labour. One might as well ſay,
niſhment (f). It ſeems the more proper way of that Parents are forbidden to take any Delight or
proceeding, when
a Child of obſtinate and incor- Comfort in their Children; a Satisfa&ion to
very
rigible Perverſeneſs rejects and deſpiſeth his Fa- great, that moſt, who are ſo happy as to enjoy
ther's kind Labours on his account, to caſt him it, eſteem it invaluable, and beyond all Com-
off
, as unworthy of all Care and Notice. And penſation or Equivalent ( i ). For the fame
thus to abdicate, or dif-inherit a Son, may paſs for Reaſon, it would be a high Degree of Impudence,
the ſevereſt Penalty that a Father, by virtue of his for a Son, in this State of Minority, to re.
being 'a Father, can inflict (4).
quire a Reward for the Service he does his Father.
VII. Of this Paternal Power ſtrictly taken, we 'Tis a wiſe Saying of Sophocles, (k),
muſt underſtand that Place of Grotius ( g), where
he divides the Age of Children into three Peri Good Children ſhould forget the Toils they bear
ods: Firſt, 'Of imperfect Judgment and Choice; Tobelp their Parents ( 1 ).
Secondly, When they have attain'd to Maturity
• of Judgment, but ftill remain as Members of In Peru the Children were obliged to allift their
their Father's Family, and have not undertaken Parents with their Labour, till the Age of five
the ſeparate Management of their own Affairs; and ewenty(1).
Thirdly, When they have left their Father's In the other Caſe, when any thing is to be
Family, either to join themſelves to ſome other, transferr'd on the Child, in way of Gift or Le-
or to erect one of their own. Which Diſtinction gacy, at firſt View, ſuch a Donation may ſeem
Ziegler ſeems to have condemnd on no very invalid, becauſe Acceptance is a neceſſary Con-
good Reaſon. For though, as he obſerves, the dition required in the Receiver, which cannot
Holy Scriptures ( b ) preſs the Duty of Obedi. be perform'd without deliberate Conſent, and
ence on Children, withour making any ſuch Dif- therefore not without the full Uſe of Reaſon.
ference, yet they do by no means forbid that But becauſe it would be an intolerable Hardſhip
grown Perſons ſhould be treated in another way to make Children incapable of theſe Advantages,
of Management than Infants ; nor do they re on account of their Immaturity, when, for that
quire that a Son, when arrivd at a State of very Reaſon, they have more need of the Affi-
Diſcretion and Maturity, ſhould ever remove ftance of others, it is moſt agreeable to Equity,
out of his Father's Houſe. During the firſt that another Perſon ſhould accept this Bounty in
• Period of Age, then (ſays Grotius) all the Acti- their Name, and ſhould likewiſe have the Goods
ons of the Children ought to be regulated and in Charge till the Children are capable of being
directed by their parents; for he who cannot their own Managers. And for this Truft no Man
govern himſelf, falls of courſe under the Go- is fo fit as the Father. Whence it appears, that
vernment of Another; and the Parent, ac it is by no means natural for the Father to acquire
cording to Nacure, is the moſt proper Perſon a Property over Poſſeflion of this kind, tho' it be
to exerciſe this Authority over the Child. very Equitable, that he take not only the Care,

6
<
(e) Yet
Mr. Barbeyrac's NOTES on Chap. 2. § 6, 8.
( 4 ) Çeę what we have ſaid, Lib. IV. Cap. XI. 7, 11.
(i) The Greek of Sophocles,
Τους τεκέσι 8
Oud Hi Tv@ ns, dã nóvx uynulwegere.
(a) L. 15.
(b) Add Diodor. Sic. 1. 1. c. 80. (c) L. I. p. 13.
(d) Hift. l. 5:
Curtius, 1. 9. c. 1. reports that the Spartan Cuſtom was pra&tis'd by fome of the Indians. They bring up their Infants
,
ſays he, not at the Pleaſure of the Parents, but according to the Order and Direction of Officers appointed to ſuperviſe this Affair;
who command all ſuch Children to be kill'd, as they find either extremely Now and heavy, or uſeleſs and defective in
of the Body. Strabo, 1. 15. gives the like Account of the Catheans. It is common, amongit the Chineſe, for the Parents to
kill their Children, eſpecially the Females, without falling under Cenſüre or Puniſhment. And, holding the Tranſmi-
gration of Souls, as moſt other People of the Eaft do, they think they do them a Kindneſs, by preparing their way to a
happier Birth and a more advantageous Condition. (f) Thus the Roman Youths, whilt they wore the Pratexta,
were not liable to Fines and Amercements, but receiv'd corporal Correction. Plin. N. H. 1. 9. c. 23.
C. 5. f. 2x (h) Ephef. VI. I. Col. III. 20. (i) Vid. Senec. Confol. ad Marciam C.12.
Colon. p. 289. Ed. H. Steph,
(1) Garcilaſo de la Vega, 1 4. c. 19.
but

any
Part
(g) L. 2,
(k) in Oedip.

Chap. II.
373
Of Paternal Power.
but the Profits of them, as Helps towards main- periſh with Hunger. Ælian ( c ) hath recorded
taining the Child, cili arriv'd at proper Years a memorable Conſtitution of the Thebans to this
of Inheritance. And hence too, we may difco- purpoſe : No Man, under Pain of Death, ſhall ex-
ver the juft and ſolid Grounds of thoſe Diſtincti- poſe an Infant, or caſt him out into an uninhabited
ons, in the Roman Law, becween the (2) Peculium Place. But if the Father be reduced to extreme Pover-
Profe&titium, Adventitinm and Caſtrenſe of Chil.. ty, the Law directs him to carry the Child, immediate-
dren; che Stock or Wealth chey get, by labour- ly after the Birth, to the Magiſtrate, who upon receiv-
ing under their Parent, by the Bounty of others, ing, an eaſy Price ſhall deliver it, whether Male or Fe-
and by che Military Pay.
male, to another Perſon, taking Security of the Buyer
IX. Another Enquiry that may be rais’d on that he ſhall honeſtly breed up the Infant, and for his
this Subject is, Whether the Paternal Power and Pains ſhall take its Service when grown to Man or
Duty can be made over by the Father to a Subſti. Woman's Eſtate. The Defence of which Law is
cute? On which Point we are to know, that grounded on this Rule, that Nature is ſuppos'd
altho the Father's Authority and Obligation to give us a Right to every thing, which ap-
took their Occaſion and Riſe from a ( 1 ) Per- pears abſolutely neceſſary to our fulfilling her
fonal Act, which is incapable of being tranſ- Commands. ( 3 ) In the ſame manner the Em-
ferr'd á ), yer this doch not hinder him from perour Conſtantine (d) permits a Father, in the
recommending his Office to a Deputy, the Ad- Caſe of extreme Want (e), to ſell his son or
vancage or Neceſſity of the Child ſo requiring. Daughter, ſo ſoon as they come into the World,
But then he would do well to keep Plutarch's Ad- leaſt they ſhould otherwiſe ſtarve: yet ordering,
vice always in mind: Thoſe Parents, (ſays that at the ſame time, that whoever would repay their
wiſe Author) do juftly deſerve Cenſure, who having Price to the firſt Buyer, fhould have the Power
committed their sons to the Care of Maſters and In- of redeeming them into Freedom (f). And
fructors, never trouble themſelves to make Trial of when, in an Edict of Theodorick, and a Law of
their Proficiency. This is a very ſcandalous Miſtake in the Wifo-Goths, we find a Prohibition againſt Sel.
Education. They ought, at proper Diſtances of Time, ling Children for the ſake of Food ( g ); it is meant
to enquire into the Boy's Paris and Improvement, and of Food for the Occaſions of the Parents, not for
not to place all their Hopes in the Faith of a mercenary the Neceſſary Suftenance of the Children. Yec
Teacher. Beſides, the Maſter himſelf will, by this Romulus granted Parents a very unreaſonable Pri-
means, be engaged to uſe more Diligence and Applica- vilege, when, as Dionyſius Halicarnalleus ( b ) in-
tion, when he finds that so frequent a Judgment forms us, He allow'd a Father to make Money, by fel-
will be paſs’d on bis Pains.
ling his Son Three times ; thus giving him more Au .
Farther, it is not, in the leaft, repugnant to thority over his Son, than over bis Slave. For a Slave
the Law of Nature, for a Father to reſign his once sold, and then obtaining Liberty, is ever after at
Child to be Adopted by ſome other honeft Per- bis own Command and Diſpoſal. But a Son, thỏ twice
fon, when 'tis likely to prove to the Child's Ad- ſold, and twice recovering bis Freedom, return'd under
vantage ( b ). But that he ſhould pawn, or bis Fatber's Dominion, and was not exempted from it till
( 2 ) ſell his Child, Nature ſeems not to allow, he had paſs’d the third Sale. Numa, in ſome mea-
in any Caſe ; except when he cannot otherwiſe ſure, ſoftned the Rigour of this Law, by except-
feed and ſupport him. For then, he ought ra- ing from Sale thoſe Sons who had contracted
ther to ſell him into ſome eaſy Servitude, whence Marriage, provided they had done it by their
there is Hope of being releas'd, than to let him Facher's Orders, or with his Conſent. The De-
him;
Mr. Barbeyrac's NOTEŞ upon Chap. 2. §. 8, 9.
( 2 ) We call a Peculium, the Goods, that a Slave, or son hath gotten of his own; what a Son hath gotten by War,
or his father, Mother, and other Relations have given him, while he follow'd that Buſineſs, belong abſolutely to
ſo that he can diſpoſe them, as his own Goods, as he ſees fit, and his Father hath nothivg to do with them. This
is call’d Peculium Caſtrenſe. See Digeft
. Lib. XLIX. Tit. XVII. 'Tis the ſame with that, which a Son has
other Employment, where he has a Sálary from the Publick, and this called Peculium quafi Caftrenſe. See Cod. Lib. III.
has gotten in any
Tit
. XXVIII. De inofficiofo Teftam. Leg. XXXVII. This is Peculium Militare. Peculium Civile, or as the Code expreſſes
it Paganum, conſiſts in the Goods, which a Son gets, who is not in publick Buſineſs, either by his Induſtry, or by fome
Gift, or Will, or by his Attendance apon the Laws, or by managing a Thing, of which his Father has only the Profits.
This the Interpreters call Peculium Adventitium. Or in the Advantage that a Son makes of the Goods of his father, or by
their means, and this was abſolutely in the Diſpoſal of the Father, and is call a Peculium Profe&titium. See the Inftit.
Lib. II. Tit. IX. Per quas perſonas cuique acquiritur, §. 1. and Mr. Daumat's Civil Laws in their Natural Order, Part II.
Lib. II. Tit. II. Se&. II.
(1) Libanius's Greek is, O 28 tò mag' fuis oz gogovéval Suba J austwa róues.
( 2 ) Theſe Quotations might have been put into a Note.
( 3 ) This Law of Conftantine is the ſecond, and third in the Title of the Code before quoted. The Words are, Si quis
propter nimiam paupertatem, egeftatemque, vi&tis causå ( i.e. for the Life of the Child, not of the Parent ) filiam, filiumve
ſanguinolentos vendiderit, venditione in hoc tantummodo caſu valente. Emptor ejus fervitii habeat facultatem: Liceat autem ip-
fi qui vendidit, vel qui alienatus eft, aut cuilibet alii ad ingenuitatem eum propriam repetere, modò fi aut pretium offerat, quod
poteft valere, aut mancipium pro ejuſmodi præftet.
o(a) Liban. Declam. 20. P. 523. Edit
. Morell. No Law can recall the At of a Father, and caufe him not to have be-
(b) Add. Gell. lib. 5. cap. 19. Euripides ( lon.) v. 1535, 1536.
If that Friend want a Fortune, 'tis but fair
He give his Son to this who wants an Heir.
(c) v. H. 1. 2. c. 7.
(d) V.C. 1. 4. t. 2.
(e) V. Grot. 1. 2. c. 5. f. 5. Dil(f) Cap. 94, 95.
in Edia. Theodoric. Ego leg. Wiſigoth, 1. 5. t. 4. c. 12.
(g) V. C. b. 4. t. 2.
# (h) L. 2.
gotten,
eith
OSAS
cemvirs
374
Of Paternal Power
Book VI.
cemviri durit not quite take it away, but left it to themſelves into Freedom, at the ſame Rate at
wear off by gradual Diſuſe ( 4 ), till it was at which they were firſt fold.
length expreſly revers’d in the Code. Yet che old
X. ( 1 ) In order to our underſtanding what
Cuſtom was ftill kept up of ſelling a Son three power the Father hath over the Son, during the
times, tho' only in way of Fiation and Formali- ſecond Period, in our Diviſion of Age, we muſt
ty, at the Ceremony of giving him his Freedom: remind our felves of what was before flightly
Tho' this too was afterwards.taken off by Jufti hinted, that Fathers are inveſted with another
It appears from Plutarch (b), thaư kind of Sovereignty, as they are the Heads of
amongſt the Athenians
, at leaſt before Solon's time, their reſpective Families. Now this Authority is
a Father was allow'd to ſell his Son for the Pays différent, according as the Perſons live either
ment of his own Debes (5). And we are lately within, or without the Limits of a Commons
told of the Muſcovites, that a Father makes this wealth. Separate Families, as they very much
advantage four times, after which the Son is reſemble States and Kingdoms, ſo they are go-
releas'd from his Authority (c). The Chineſe
The Chineſe vern'd by their Heads, in a Way bearing ſome
make a frequent Practice of ſelling thoſe Chil- Proportion to Regal Power.
dren, whom they think they ſhall not be able to willing to give them abſolutely the Name of Ci.
maintain ; but with this good Condition, that a- vitates, as ( 2 ) Mr. Hobbes hach done (d); be.
ny of them ſhall have the Privilege of buying cauſe Families and publick States are inſtituted


For we are not
any
(a) L. 8. t. 48. l. ult. C. de Adoption.
(b) In vit. Solon,
(c) Sigiſm. Baro in Herberftein,
Add. Olear. Itin. Perfic, l. 2. c. 6. (d) De Cive, c. 5. f. 12.
Mr. Barbeyrac's NOTES on Chap. 2. S. 9, 10.
(4) We find a Law in the Code made by Dioclefian and Maximinian, where it is ſaid, That Fathers ſhall not have
Power to put their Children under the Authority of any other, either by ſelling them, or Gift, or Pawn, or any other
manner, nor under a Pretence of Ignorance of him, who has either of thoſe ways gor him into his Power.' Liberos à Pad
rentibus, neque venditionis, neque donationis titulo, neque pignoris jure, neque alio quolibet modo, neque ſub pretextu ignorantia
accipientis in alium transferri poffe, manifeftiffimi juris eft, Lib.IV. Tit.XLIII. De Patribus, qui filios ſuos diftraxerunt. Leg.I.
(5) Comp. Matth. XVIII. 25. 2 Kings IV. 1. Philoftratus, in vit. A poll. Thyan. 1. 8. c. 3. p. 401. Ed. Morell, re-
ports of the Phrygians, That 'twas an ordinary thing with them to ſell their own Sons ; and not to regard them, if they
happen'd to be led Captives into Slavery. Add. Plutar. Lucull.
From theſe Places it appears, that among the Jews a. Debtor, who found himſelf unable to pay, might become a
Slave to his Creditor with his Children; or "might ſell himſelf and Children. See Mr. Le Clerc upon Lev. XXV. 39. and
Deut. XV. 12. Laſtly, there was printed in 1708. a Book intitled Diſſertatio Juridica, De Jure patrio, Au&tore Abrab. à
Kerkraad, where we may find a Collection of all that this Author has put into his Lectures, about the Paternal Power,
principally in relation to the Cuſtoms and Notions of the Romans. It
may ſerve as an Hiſtorical Dictionary upon this
Subject.
( ) The Three following Paragraphs are otherwiſe plac'd in the Original, This is the Eleventh, the next the Twelfth,
and the Third the Tenth. Our Author, without any Reaſon, as appears from his Abridgment, De Oficio Hom. Ego Civ.
ſpeaks of the Third Age of Children before he treats of the Second.
( 2 ) Since Mr. Hobbes, an Engliſh Knight of the ſame Nation, named Robert Filmer, hath publiſhed a Book, entitled,
Patriarcha, to prove, that all Government ought to be Abſolute and Monarchical, and for a Foundation of his Opinion
afferts, That the Paternal Power is the ſame as Royal Authority, and is entirely Deſpotick. Algernoon Sidney, in his Trca-
tiſe of Government, and Mr. Locke, in the firft Part of his Work upon the ſame Subje&t, have quite overthrown the Con-
ſequences, which filmer has drawn from his falſe Principles. Mr. Sidney has not dwelt long upon it; but Mr. Lock ha-
ving taken pains in his Second Part to overthrow the Principle itſelf, we have thought it convenient to give an Abridge-
ment of the Reaſons he there gives. Firſt then, this able Writer obſerves, that all the Obligations that Infants have,
being founded on Generation, to which the Mother concurs, and contributes as much at leaſt, if not more, than the Fa-
ther, it follows, that both of 'em have an equal Right and Power over thoſe who ſpring from their Union. So that to
ſpeak exactly, we ought to call that Authority the Power of the Parents, and not of the Father, as we do ordinarily, lince
the Impropriety of the Expreſſion might be an Occaſion for Men to imagin, thar all the Authority over the Children re-
fides only in the Father. The Laws, which God hath given both to the Jews and Chriſtians, do plainly contradict this
Miſtake. Honour thy Father and try Mother, Exod. XX. 12. Children, obey your Fathers and your Mothers, Eph. VI. 1, 2.
This is the uniform Language of the Old and New Covenant. From whence it follows, that the Power which they have
over their Children can't be a Foundation for Monarchical Government. But, fuppofe we grant that, it will not thence
follow, that Kings have an Abſolute and Deſpotick Power, becauſe the Paternal Power is not ſo, as will appear from the
Conſideration of its Nature and Extent. All the Rights of the Father and Mother confiſt in governing their Children,
till they are able to govern themſelves by the Laws, which are the Rule of the Parents Conduct, and in a certain Ho-
nour, which they owe their parents, till they are of Age to underſtand and practiſe the Law. Altho all Men are natu-
rally equal, and every one is born free, i. e. has a Right to diſpoſe of his Perſon, A&tions, and Goods, as he ſees fit, ac-
cording to the Laws under which he lives. None of Adam's Poſterity found himſelf in this State, when he came into
the World. The Defect in the Uſe of their Reaſon, and the Impoffibility that Children are in to preſerve themſelves,
and provide for their Wants, obliges them neceſſarily to fabmit to the Dire aion and Power of their Father and Mother,
who by the Law of Nature are tyed to maintain and bring them up, not as their own Work, becauſe they contributed to
their Produ&tion only as bare Inſtruments, but as the work of the Creator, to whom they muſt give an Account. If
Child never attains to ſuch a competent degree of Reaſon, as to be able to order himſelf aright, as it happens
as are born Innocents and Lunaticks, he depends always upon the Abfolute will of the Father and Mother; but this is
rare, and out of the common Courſe of Nature. So that the Bonds of Subje&tion of Infants are like their Swadling-
Cloaths, and their firſt Garments, which are only neceſſary upon the account of their tender Years. When they come to
the uſe of Reaſon, their Age removes them from their Father's Juriſdiction, and makes them Maſters of themſelves;
that
then they are cqual to their Father and Mother, in refpe&t to that State of Liberty, when a Pupil becomes equal to
his Guardian, after the Time of his Minority, appointed by the Law. The Liberty of Children, become Men, and the
Obedience of their Father and Mother before that, are not inore inconſiſtent, than is, according to the moſt zealous Dei
fenders of Monarchy, the Subje&tion that a Prince is under, during his Minority, in reſpect to the Queen-Regent, bis
Nurſe, his Tutors, or Governours, with the Right he hath to the Crown, which he inherits from his father, and the Au.
thority of a Sovereign, with which he ſhall one Day be inveſted, when his Age will render him capable to manage
himſelf, and govern others. It is otherwiſe ſo true, that the Paternal Power doth not appertain to the Father by any para
ticular Privilege of Nature exclufive of the Mother; and that he is but in the quality of a Governour or Tutor of his
Children; that if he abandons them, and renounces all
paternal Kindneſs to them, he deprives himſelf of the Power be
hath over them, which is ſo inſeparably annex'd to the Care that he ought to take of them to nouriſh and bring them up,
that it paſſes from him to the Perſon who brings up an expoſed Child; for the ſingle Ad of Generation is a ſmall thing,




to ſuch
it
on

Chap. II.
Of Paternal Power.
375
on
different Ends and Deſigns, and conſequently XI. Buc after the erecting of Commonwealths,
many Parts of Civil Sovereignty are excluded of theſe Rights which before belongd to Fathers
from this private Dominion.
of Families, ſome were contracted, others quite
Mr. Hobbes himſelf elſewhere confeffeth ( a ),
elſewhere confeſſeth ( a ), taken away. Yet ſo much Authority was almoſt
that A Family is not properly a Common-wealtb, unleſs in all places allow'd, as appear’d fufficient for Edu-
it be of that Power, by its own Number or other Opt cacing the Children: Except that even this was
portunities, as not to be ſubdued without the Hazard of much retrench'd under Plato's National Govern-
War. Yet Family.Rule, in this ſeparate Condi- ment; and in the Perſian Conftitution, if we ad-
tion, ſo nearly approachech to the Legiſlative mit Xenophon for a true Hiſtorian (b). In many
Authority, as to have the Power of Life and Nations the Privileges of Family-Rule were little
Death in Criminal Caſes, as likewiſe the Ma-
Thus at Rome the Fathers had the
nagement of Arms, and the Care of Leagues and Power of Life and Death over their Children,
Alliances. This Dominion of the Father, over which they exercis'd in a kind of Judiciary man-
the Children, now grown up, is eſtabliſh'd by ner, calling a Council
tacit
Compact ; the Father extending his Com- Friends, and cauſing Sentence to be executed ac-
mands beyond the Affair of Education, and the cording to their Determination (c). Juſti-
Children freely putting themſelves into a State nian ( d ) calls this Right Proprium Civium Ro-
of farther Obedience. For the Laws of Equity manorum, Particular to the Roman Citizens, and
and Gratitude direct, that a Son ſhouid yield his not pretended to by other Men; for which Pofi-
Strength and Service chiefly to Him, to whom tion Bodinus ( e ) hath fallen heavily upon him;
he owes all that he now is or enjoys; till ſuch alledging that the Perſians and ancient Gauls ( f)
time as, with his Father's Conſent, he be re made uſe of the fame : And that, the Abroga-
leas’d from the Subjection.
tion of it in the Roman State was the Cauſe of
if we go no farther. In certain Places of America, when a Man and Wife part, which happens there often, the Chil-
dren go along with the Mother ; and are not theſe Children indifpenfibly obliged to obey the Mother, as much as thoſe
who among us loſe their Father in their Non-Age? And can we ſay, that a Mother can preſcribe'ſuch Laws to her Chil-
dren, as ihall be perpetually obliging, and by which ſhe may diſpoſe of all that belongs to them, and conſtrain them
under ſome corporal Puniſhment, to conform themſelves implicitly to her
Will ? Certainly a Father and Mother can di-
fpofe of their Goods as they ſee fit, when they put their Children into a Condition of ſubliſting of themſelves; but the
Power they have, as the Authors of their Being, doth not extend ſo far, as to be Maſters of their Lives, Liberties, and
Goods, whether they have gotten them by their own Induſtry, or are beſtow'd on them by others. God himſelf allows
Children to withdraw themſelves from the Parents Juriſdi&tion, when he ſays, Gen. II. 24. Matt. XIX. 5. Eph. V. 31.
That a Man fball leave his Father and Mother, and be joined to his Wife. But tho' Children as ſoon as they come of Age
to ſee what the Laws of Nature and Civil Society, of which they are Members, demand of them, are not obliged to
violate thoſe Laws to pleaſe their Parents, yet they are bound to honour their Father and Mother, as the Inſtruments
which God made uſe of to give them Life, and acknowledge the Care they have taken in their Education. They ought to
have for them a particular Efteem, Affe&ion, and Reſpect, and ſhew them in all their Diſcourſe and Behaviour ; do, or
ſay nothing that may offend them, or trouble them in the leaft, defend them, affiſt them, and comfort them by all poſ-
fible and lawful Means, and conform themſelves to their Will, when it may be done without any great Inconvenience to
them. There is no Perſon of any Age, Rank, or Dignity, that can exempe a Child from theſe Duties towards them,
from whom he hath receiv'd his Life, and to whom he has ſuch great Obligations; but he is not for all that bound to
pay them an abſolute Obedience and Submiſſion. The moſt powerful Monarch ought to obey his Mother, tho’ he is not
to follow her Will in the Government of his State, or Royal Family. We ought therefore to diſtinguiſh well between
theſe two forts of Paternal Right, viz. of directing a Child till he comes to the uſe of his Reaſon, and that which re-
quires only Reſpe&t and Acknowledgment. The firſt is really only a Duty to Fathers, rather than a Power; the Autho-
rity which it gives ends with the Wants of the Child, and when it is moſt in force, it may be alienated in ſome fort;
as when a Father trufts the Care of his Son's Education to another ; for by putting him into that Perfon’s Hands, he dif-
charges him of a great part of the Obedience due to himſelf and his mother. But as to Reſpect and Acknowledgment,
nothing can releafe a Child from it; and the Mother has as good a Right to require it as the Father ; ſo that if the Fa-
ther orders his Son, not to honour his mother, the Son ought to diſobey his Father. This Duty may be more or leſs en-
larged, according as the Father or Mother has taken more or leſs Care, and ſhew'd more or leſs Kindnels to the Child.
But it can never be entirely aboliſh'd; and in civil Societies themſelves, Fathers and Mothers prelerve their Right to re-
quire it, as well as to order them in their Education, inſomuch, that every Subject has not only as much Paternal Power
over his Children, as a Prince has over his ; but alſo the Sovereign himſelf ought to have as much Rcfpect to his Fa-
ther and Mother, as the meaneſt of his Subjeets has to his. Hence it appears that Sovereignty and Paternal Power are two
different things, which have neither the fame Foundations, End, nor Extent. 'Tis true, that as ſeveral Perſons cannot
live together without fome Order, and ſome ſort of Government, ſo we may eaſily conceive, that in the firſt Ages of the
World, when any Family was about to withdraw itſelf, and ſettle in a Place uninhabited, the Father became, as it were,
the Prince over his Children, tho' at the Age of Diſcretion ; but it ſeems as tho' that Authority were conferr’d by the
expreſs or racit Conſent of the Children, who could find nothing more advantageous to them, than to put themſelves un-
der the Government of their Father only, and give him the Right, which every one naturally has, to execute the Laws
of Nature. They were accuſtomed from their Infancy to be guided by their Father, and leave their little Quarrels to him;
and 'twas natural for them to continue their Subjection to his Dire&tion and Authority, when they were become Men.
Who could they better chooſe for their Governour than He, who after he had given them Life, had carefully nouriſhed
and
brought them
up and ſhew'd them ſo much Kindneſs? If then Fathers became Kings of their Families by this means,
'twas not by vertue of their Paternal Power. And tho’ Royal Authority actually began by the Fathers of Families, it
does not follow, that the Right of Sovereignty is founded on the Paternal Power, and conſequently belongs to the Prince
and the Prince only, ſince it is evident from the higheſt Antiquity, that Fathers were the only perſons in Families that
offer'd Sacrifices. "This is an Extract of Mr. Lock's Part II of bis Treatiſe of Government; and we ought to remember
this, when our Author treats of the Original of Sovereign Power.
(a) Leviath. c. 20. (b) De Educat. Cyri, 1. 1.
ç) Vid. Val. Max. 1 5. c. 8. f.2, 3, 5. Senec, de
Clement. I. 1. c. 15. 'Tis a Saying of Turnus in Livy, 1. 1. c. 50, That there can be no ſhorter way of deciding a Point, ihan
between the Father and the Son ; becauſe, if the latter oppoſe or diſobey the former, he is to expect the Plagues of Divine Ven-
(d) Inftit. L. I. t. 9. f. 2. De Patria Poteftate. (e) De Repub. I. 1. C. 4.
f) So Cæfar
Comm. de B.G. 1.6.c. 19. And ſome Footſteps of that ancient Cuſtom remain’d till the Year of Chriſt 1301, amongſt
the People of Bourdeaux, by whoſe Laws, Fathers and Husbands had ſupreme Power of Life and Death over their Chil-
dren and over their Wives: And if a Husband happened to kill his Wife in any Violence of Anger or Grief, upon decla-
ting his Repentance by a ſolemn oath, he was diſcharg'd without Puniſhment.
Еее
many
geance.
376
Book VI.
Of Paternal Power.
many Troubles and Miſchiefs. Connanus ( a ) is
a Farber muſt needs prove ouer bis Children (e).
of the ſame Judgment; and Dionyſius Halicarnaſ On the other ſide, thoſe Legiſlators who took
Jems (b ) is produced as an able Patron of the off this Rigour of Paternal Sovereignty, proba.
Cuſtom. Some, on the other hand, engage chief- bly did not want their due Motives. They might
ly in the Defence of the Emperour's Words, con-
have obſerv'd ſome Fathers making a very ill
fidently affirming, that no other Nations allow'd Uſe of their Power, when tranſported by the
the Fathers ſo extended a Power over their Chils (1) Extravagance of Paſſion beyond all Nature
dren as the Romans; amongſt whom it had in- and Juſtice. Again, they thought this Privi:
deed no Meaſure or Reſtraint. And in this Senſe lege altogether needleſs, ſince the Magiſtrates
they interpret the Diſcourſe of Dionyfius, which were ſufficient for the Puniſhment of Capital
was before alledged on the other ſide. Others Offenders. They might likewiſe eſteem it a
ſay the Emperor's Meaning was this, that the Pa great Hardſhip, that a Father ſhould be compen'a,
ternal Power in Rome was attended with certain in Contradi&tion to his own Wiſhes and Affe&ion
Atcributes and Properties, which it had not in o to pronounce Sentence of Death on his Son ( 2 ),
ther Parts of the World: As for Inſtance, if a tho' juftly convicted.
Roman ſuffer'd either the Minima capitis Diminutio, By the Jewiſh Law ( 3 ), it was one part of the
or the Deportatio, The loweſt Degree of forfeiting Li- Father's power to cancel and make void the Vows
berty, or the being tranſported, he loſt his Fatherly of his Son, or of his Daughter. The reaſon of
Rule; whereas it was never the Cuſtom to de- which Conftitution, was not only for fear the
prive'a Man, by thoſe Puniſhments, of any Pri- Children, in their imprudent Age, ſhould ruine
vilege he poffefs'd by the Law of Nature and of their
own Fortunes by raſh Donations, mov'd by
Nations. And they farther argue, that ſince all a falſe Appearance of inconſiderate Piety: But
Juſt Matrimony is founded on Civil Conſtitutions ; likewiſe left they ſhould imbezel their Father's
this Power of the Father being the Conſequent Goods on the ſame ſcore, or hinder themſelves
of that Union, muft derive its Force from the from doing him the Service they ought. So that
ſame Principle (c). But perhaps the eaſieſt the reſtraining Authority, in this particular, did
way of clearing that Paſſage in Juſtinian, is to not ariſe purely from the poſitive Ordinance, buc
keep to the Terms of Civium Romanorum, and to had a Foundation in Natural Reaſon; it being a
expound them ſtrictly, in Oppoſition to all other known Principle, that no Perſon, under the Suba
Perſons who were not free Subjects, and who had jection of another, can, with any force or Ef-
not the ſame Authority over their Children. fect, diſpoſe of thoſe things, with regard to which
Thoſe Founders of Common-wealths, who he is under Government. As for that Law in
left the Fathers in Poffeffion of their old Natural (4) Deut. XXI. 18, duc. about ſtoning the re-
Rights in ſo wide an Extent, ſeem to have pro- bellious Son, which in it ſelf appears ſo rigid,
ceeded on theſe Conſiderations : That the Re- Care was taken to ſoften it, as far as pofſible, in
ſpect, paid by the Children, might be thus rais’d the Interpretation. Thus they held that it did
to the higheſt Degree of Awe and Veneration; not extend at all to the other Sex; and that the
that the Fathers were the moſt likely Perſons to Males, in two Periods of their Age, ftood
know their Children's Faults, keeping them ge- excuſed from its Force; when they were not
nerally under their Eye; and, that at the ſame arrived to the Maturity of Reaſon, and when
time, their Natural Affeaion would probably re. they had left their Father's Family, and ſet up
ſtrain them from abuſing this power to unjuft Vio- for Directors of their own Affairs. And then,
lence;
the Exerciſe of it falling on an Age which the Words of the Accuſation running, This our
requires Clemency rather than Cruelty. Thus Son is rebellious, he is a Glutton or a Drunkard, there
Phineus obſerves in Diodorus Siculus (d), No Father was a great Difference of Opinion how much
will ever shew an Example of very ſevere Puniſhment the young Man inuſt have waſted in theſe Ex-
or his son, unleſs his Natural Tenderneſs be overcome ceſſes, before he could be proceeded againſt in
by the Greatneſs of the Crime. And Sopater, ſpeaking this ſevere Method. They farther obſervd it to
of the ſame unlimited Authority, The Law, ſays be requiſite, than both the Parents, at the time
he, thus order'd, well knowing how upright a Judge of the Charge, ſhould be alive; otherwiſe, the

Mr. Barbeyrac's NOTES on Chap. 2. 11.
(1) Liban. Declam. 33. P. 762. Ed. Morell
. Mà 18 irandu olede, dudpes dingsan
, dolor Tu quove we'regilo ela ais
τα πολλά όταν και τα νοσή μάλα ψυχής έρρωμβόεστρα γύητα, διακόπτης και ο πατήρ άλλο τι φαίνεθαι, σε σ ψυχώς αναγκάζονται τα
Iss. Do not imagin that the Bond of Nature hath, of it ſelf, ſufficient Force and Strength : Indeed for the moſt part it holds
firm and good; but any more violent Diſorder of Mind is able to break it afunder; and a Father tranſported with Paffion, lays
afide that Name and Relation, and afts quite another Part.
( 2 ) Add. Ælian. V. H. 1.'1. c. 34. Val. Max. 1.5. c. 9. f. 4. Add. Charron de la Sageſſe, 1. 1.6.43, 47. Libanius Dei
clam, 35. To do any thing againſt one's Children is the ſame as to undergo it one's ſelf. The Sentence which the Men on this
fide bring from L. 48. t. 9. 1. 5. D. ad L. Pompeiam de Parricid. The Power of á Father confifts in Affeftion not in Rigour,
contributes nothing to their purpoſe. For Adrian had then baniſh'd a Father for killing his son as they were hunting,
on account of Adultery with his Mother-in-Law. And the Father is there juftly cenſur'd for taking off the Offender in
a villanous and treacherous Manner, when he might have call'd a Council of Friends, and ſentenc'd him to Capital Pur
niſhment by vertue of his Domeſtical Juriſdiction. Or it is enough to ſay, as to that Paffage, that it is an Emblem of
the good Trebonianus's merciful Temper, who was the Author of it. See Mr Spanhemius's Orbis Romanus, Exercit. Il.
Chap. XXIII.
(3) . .
$} This Text makes nothing for our Author's Purpore ; becauſe "tis probable that the Sentence was infli&ted by the
Judges, as Mr. Le Clerc proves againſt Grotius.
( a ) Comment. Jur. Civil. 1. 2. c. 13. (b) L. 2. p. 96, 97. Ed. Lipſ.
fertius de Fuftitia Rom. I.L.C.27.
Ls) This is the Judgment of Me-
(d) L. 4. C. 45. p. 247. Ed. Rhod, () Add. Ælian: v. H. L. 1. 6. 47.

1
Son

Chap. II.
Of Paternal Power.
377
his Children.
Son might have had ſome Fortune left him, fuf- ſway'd by their Father's Judgment and Authority,
ficient to make Compenſation for the Expence of provided he propoſe nothing contrary to Hone-
his Vices ( a ).
fty and Decorum; eſpecially in cafe he ſupply
Amongſt the preſent Japoneſe, the Father hath them with Money for carrying on of ſuch De-
che moſt abſolute Power of Life and Death over ligns. Yet it would be, at the ſame time, a
Breach of Wiſdom and Juſtice, to compel Chil-
From theſe and other Conſiderations it appears, dren to a Method of Life, to which their Genius
how we are to underſtand that Rule laid down is utterly averſe ; and a horrid Villany, to drive
by
Grotius (6): In the ſecond Period, ſays he, when them to ſuch a Profeſſion as is either baſe and fin-
the Children's Judgment is ripe and perfect, those 4-ful, as the waiting on the Stews; or intolerable
tions only of theirs are ſubječt to the Command of the to the common Temper of Mankind, as Celiba.
Parents, which immediately contribute to the well or- cy without the Gift of Continence, and the Con-
dering of the Father's or Mother's Family: It being finement of a Monaftick Vow.
but equitable that every Part ſhould conform in promo XII. In the third Period of Age, when the
ting ibe Benefit of tbe Whole
. In other Reſpects, the Children have left their Father's Family, and are
Children bave a moral Liberty of doing whatever their releas d from his Command, they are perfe&tly
own Judgment recommends ; yet ſo that they are ſtill at their own Diſpoſal, yet ſtill retaining the
bound to take all poſſible care to pleaſe their Parents; Debt of Reverence and Dury, which is of perpe.
sbo’ ſhould they take contrary Meaſures, the Force of tual Obligation, ariſing from thoſe antecedent
this Duty will not reach ſo far as to render their actions Merits of their Parents, which can never be can
invalid. Theſe Words, then, are to be reſtrain'd cell'd or repaid. ( 1 ) Plato (f) is admirable on
to the Power of Fathers of Families, as now efta- this Argument. Juſtice requires, ſays he, that we
bliſh'd in moſt Chriſtian States : where the chief endeaviur to ſatisfy our greateſt and oldeſt Debt, our
Buſineſs of it is taken up in Matters relating to Debt to our Parents. Every one ought to be fix d in his
Education. And 'ois indeed but juft, that if the Perfuifion, that whatever be pollelleth belongs to thoſe
Children deſire to be ſupported at preſent by their from wbim be receiv'd bis Birth and Educ- tion, and
Father's Wealth, and to ſucceed to it hereafter, ought, so far as is necelary: to be spent in their service.
they ſhould freely obey his Pleaſure, while en-
To them therefore be is freely to afford bis Goods of
joyning nothing abſurd or indecent. If, without Fortune, of Body, and of Mind; as if he had only
fufficient Cauſe, they refuſe thus to comply, it borrowed them from their Kindneſs, and was now to
cannot be expe&ed but that the Parents ſhould reſtore them in their Age, when they bud i be greatest
withdraw all farther Care and Expence on their Occaſion for them; gratefully remembring the Cares and
account, and declare them Difinherited. Yet here Pains they long ſince underwent on his account.
too, it hath been the Care of Civil Laws to pro- cught we to expreſs our Reverence to sur Parents in A-
vide that Parents ſhall not inhumanly diſcard their étions only, but in all our Words and Converſation. We
Children, upon every Fit of Humour and Paſ-
are oblig'd to yield to their Paſſions, and to the common
fion, without ſolid Reaſon. Thus Plato (c) al. Effects of them; ever conſidering what juſt Reaſon a
lows not a father to caſt off his Son without the Parent hath to reſent the leaſt Injury or Diſreſpect from
Conſent of the other Relations (d). And, in a Child (8). He proceeds with the ſame Wif-
general, as it belongs to the Wildom of publick dom, in adviſing what Honours and Services
Governments to ſettle the Rights of private Per ſhould be paid to Parents after their Deceaſe;
fons, in Subordination to the common Benefit that we ought to grace their Reliques with a
and Honour; ſo it hath been uſual with moſt decent Monument, and purſue all Methods and
Legiſlators, to prevent all Abuſes of this Power, all Occaſions of making their Memory Sacred.
whether tending to the publick Damage, or to The Chineſe are remarkable in this Point of Duty;
the unjuſt Oppreſſion of the Children. For In-
a Perſon engag’d in the greateſt Affairs of the
ftance, a Father is oblig’d, as far as his Abilities Court, upon
the Loſs of a Parent leaves his Of-
will reach, to render his Children uſeful Mem- fice, if not Military, and retires Home to ſpend
bers of Civil Society (e): And ſince there is three Years in Privacy and Mourning. The Rea-
ſuch a Variety of Callings, ſo many different ſon of their fixing this period of Grief, was, be-
Ways of Living, it is very reaſonable that the cauſe the firſt three Years of our Life, we give
Children, in chuſing their Profeſſion, ſhould be our Parents the greateſt Trouble ( b ). Amongſt
Nor
Mr. Barbeyrac's NOTES on Chap. II. $ 12.
(1) Plato's Words are, Γονέων και παύτα τμαι ζώντων, ως θέμις, οφείλονlας αποτίνειν τα @ρετά τη και μέσα οφειλήματα
χρεών παγίων πρεσβύτατα. νομίζειν 5. α κέκτη 9 και έχει
, πείνα ή και ψωνησάλων και θρεψαμθύων Gesς παρέχειν αυτα εις καιρe-
είων εκείνους διώαμων πάσαν, αρχόμδυον από της εστίας διαπρα τα σώματά: τειτα τα της ψυχής αποτήνονlα δανείσματα όπιμε-
λίας τε και υπονέων & Μίνας παλαιάς όπι νέους δανεισθείσας αποδίδοντα και παλαιούς ή το γήρα σφόδρα κεχξημένους και πα να
βίον έχειν τε και εσχηκέναι χεή «εις αυτή
νέας ουρημίαν διαφερονίως . θυμειβόοις τε εν πείκειν δειν, και αποπεμπλάσι τον
θυμών, εν τον λόγοις εαν τ' όν έργις δώσει το τοιέτον. ξυγΓινώσκονται ως κόπως μάλισαι παθής υιεί, δοξάζων αδικείς, θυμίτ
αν διαφερόντως τηλάτησάντων 3 γονέων ταφή μου η σοφρωνιστάτη, καλλίση του και μη παραλίπων μνήμίω δέλεχ πρέ-
semulwoy, Tétº pores soi pursuery. Read Mr. Le Clerc's Notes on Exod. XX. 12. and Deut, V. 16.
(a) Grotius in Deuteron. XXI. (6) L. 2. c. s. f. 3.
(c) De LL: 1.11. p. 973.
(d) Add.
Quintil. Declam. 9. Senec. Contr. 1. 9. (c) And therefore it was one of Solon's Laws, That a Child ſhould not be
bound to maintain a Father, who had bred him up to no Art or Profeſſion, Plutarch. in Solon.
(f) De LL. l. 4.
p. 832, 833. Ed. Wech. (g) Vid. de LL. XI. p.975: Arrian. Epi&tet. 1. 2. c. 10. Remember you are a Son; and that
it belongs to your Duty to think your Father's Good, in all reſpe&ts, Tour own : To yield Obedience to all his Commands; never to
defame bim to others; nor to do or ſay any thing that may turn to his Prejudice or Inconvenience; to yield and give place to him
on all Occaſions, and to alift him with Tour utmoft Power. Oppian. Halieut. L. 5. v. 89.
Mansi
' s gmegoxoyle vedy ahor jees nidir.
Sons are new Strength to a decaying Sire.
(h) Neuhof. in Legat. More Signs of their Mourning may be found in Martinius's Hift. Sin. 1. 1. in Imp. 8.
Eee 2
the
378
Book VI.
Of Paternal Power.

for his
the ſame People the Son ever makes uſe of a thac, by this Agion of conferring a Being, cke
lower Seat than his father, and placeth himſelf Parents do, in ſome meaſure, reſemble the Al-
at his ſide, not over again ft him. And indeed, mighty Creator
. Some, again, give their Judga
that Children can never require the Kindneſs of menc in favour of Education, as that which
their Parents is a Truth in every Body's Mouch properly makes a Man deſerve his Name, and
(2). Tho' Seneca (a) hath for Oppoficion's fake, which is not perform’d without a long and
endeavour'd, in a long Diſpute, to prove that difficult Courſe of Application and Expence
.
a Son may ſometimes even outdo a Father in They illuſtrate their Opinion by this Obſerva-
Benefits : And Alexander, provoked once with rion in Nature, that amongft Brute Creatures
fome Complaints againſt his mother, could not the Male is not diſcover'd to have the leaft
forbear ſaying, that she made him p.ay very dear Regard for the Young which he begets
, and
nine Months Lodgings (b. But how vaſt the Dam's Tenderneſs ceafeth with her Care,
foever the Merits of our Parents be acknowledg'd, when they are able to provide for chemſelves :
this is certain, that it will not bear them out in whereas the Affe&tion between human Parents
impoſing an unlawful Command ; and therefore and Children is perpetual : which muſt needs
it was a brave Reply of the ſame Prince to the be a Token that the great Dearneſs on the one
fame Mother, urging him to put an innocent fide, and the Obligation to Duty on the other,
Perſon to Death, and reminding him of the do not chiefly relult from thac Act of the Pa
Pains ſhe had undergone for his Sake, My good rents which they exerciſe in common with
Mother, ſays he, demand ſome other Reward for your Beaſts, but from their peculiar Diligence in
Trouble; the Life of a Man is too precious to admit of forming and managing their Offſpring, in or-
any Equivalent (c). Mr. Hobbes d) is of Opinion, der ro a Life of Decency and Society. Ariſtotle
that this Filial Reverence ariſeth not only from is cited in Defence of the former Notion, A
the Law of Gratitude, but likewiſe from the Futher, ſays he (g), is the cauſe of the Son's Ex-
Force of a Tacit Compact ; it not being preſumed ijlence, which ſeems the greateſt of Benefits,) and
that he who releaſeth another from his Rule of his Nature and inſtitution. And again h) Men
and Dominion, intends ſo far to make him his ſtund engaged in the bigheſt Degrees of Friendſhip
Equal, as not to reckon it to him as a Favour: and Piety towards the Gods, and towards their Pa-
But a Perſon, thus diſmiſs'd from Subjection, is rents. Fir, from theſe they receiv'd the noblest of all
ever ſuppoſed to promiſe, that he will conftant- imaginable Goods, their being and Education. On
ly pay his Benefactor all thoſe external Marks, the latter of which Paffages we may remark,
at leaſt of Honour and Eſteem, which Superiors that altho the conferring of Life be firſt named,
are wont to receive from their Inferiors. yer it is not expreſly compared with the other
Yet it was, no doubt, a Strain of Superſti- Benefit. Philo fudæus (i) is produced on the
tion in the Jews, when they would not allow a ſame ſide ; it is a Saying of his, We can never
Son to let his Father Blood, to open a Sore for return our Parents equal Favours; ſince we can't re-
him, or to draw a Thorn out of his Flem (e). pay, in the Same manner, their Kindneſs of forf
Amongſt thoſe who live in a Commonwealth, bringing us into the World. And thus too, the Fa-
it may happen, that upon account of ſome Office ther in the Declamation (k); We firé produced
or Dignity born by the Son, the Father ſhall run out of our own Life and Subſtance, and opened to
be oblig'd to do him Reverence, yet not ſo as Your Proſpect this Vaſt Scene of Divine and Human
to quit his Prerogative of private Reſpect (3). things. We made you capable of ſeeing and of enjoya
Thus Fabius Maximus commended the Aation of ing the Sea, the Earth, ibe unwearied courſe of the
his Son the Conſul, who, as Fabius came riding Stars, the Heavens with all their ſacred and ſhining
towards him at a publick Meeting, ordered him Glories
.
to alight and make his Approaches to him on Yet we capnot but deliver it as our Perſwa.
Foot (f).
fion, that the Benefit of Educating is a much
Whether this perpetual Duty and Obligation ſtronger Ground and Spring of Filial Obliga-
of Children, remaining after their Father's tion, than the other of Begetting. Plato (1)
Power is expired, ariſe from the Act of Gene- ſeems to countenance this Opinion , Parents,
ration, or from the faithful Care and Labour fays he, ought either not to bave brought their Chil-
of Breeding them up, is a Controverſy that dren into the World, or not to refuſe any Pains in
hath divided learned Men. Thoſe who con training and inſtructing them. In another place
tend for the former, are wont to tell us, that (m) he introducech Demodocus thus ſpeaking of
the Kindneſs of giving Life is not only, in its his Son ; The A&t of planting ſhall I call it, or)
ſelf, the greateſt good that can be beſtow'd, of begetting my Son, was the eafieſt imaginable ;
but is likewiſe the Occafion of all others; and the breeding bim up was a Task of Difficulty and
but
Mr. Barbeyrac's NOTES on Chap. 2. 12.
(2) Ariftot. Ethic
. ad Nicom. VIII 16. O'spi'r torývas [ úds ), a Ecov Les carne Seelbar Ndegexer es wieł speidet
. No Perſon
can fully return the Benefits of his Parents; but he who ſerves and reſpects them to his utmoſt Ability, may
nounced Honeſt and Juft. Vid. Xenoph. Apom n. 1. 2. p. 431, 432. Ed. Steph. Stobæ Serm. 77.
(3.) Nam, quod ad jus publicum attinet, non ſequitur (Pater) jus poteftatis. V. D. L. 36. t. I. Ad Senatus Conful.
tum Trebell. l. 4. princip.
be pro-
(a) De Beneficiis, 1. 3. c. 29, 30, fosc. (b) Arrian. de reb. geft. Alex. 7. (c) Amm. Marcellin. I. 14. C. 1O.
Add Gell. 1. 2. 6, 9. (d) De Cive, c. 9. f. 8. (e) Conftant. L'Empereur in Babakama, c. 8. f. 3. Add. Selden.
de J. NO G. l. 7. c. 2. (f) Plutarch. Fab. & in Apophthegm. Valer. Max. l. 2. c. 2. f. 4. Add. Boecler in Grot.
I 2. c. 576. (g) Ethic VIII 13. (b) Ibid. c. 14.
62,
(i) Allegor. l. 1. p. 58. in fin. Ego 1. 2. p.
D. Ed. Parif. (k) Quintal, V. (1) In Crito. p. 34. B.
(m) Theag. init.
Trouble;

Chap 11.
379
Of Paternal Power.
citeeming Duty and Reverence to Parents, the firſt and chiefeft of Virtues,
Trouble ; ever filling me with Fears on his account () Ariſtotle himſelf (who was cited to countenance
And Socrates, in the ſame Dialogue, declares it the bcher ſide of the Queſtion) hath left this
as his Judgment, I know not any Buſineſs in which Saying on Record (e), that Parents, who take
a prudent Man ought to shew more Caution and Dili- Care.se ſee their Children duly informi'd and inſtructed,
than in forming bis Son's Mind to Goodneſs deſerve much higher Honours
, ihan thoſe who barely
and Virtue ( a ). So the Father pleads in Quintili lend them a Being : the latter make them capable of
an (b), I do not now, ſays he to his Son, fet to Living, the former of living boneftly and happily.
Tour Score thoſe vulgar Favours of bending You Life, Nor doth that Conſequence, on which the
and Light, and Liberty; but whatever Brapery Tou other Opinion is built, ſeem to hold.; Life is
have shew'd, whatever gallant Action You have per the greateſt Good; therefore the Act of the Parent in
form, this I charge upon Zou as my Merit; 'tis my giving that, is the moſt fit and proper to raiſe an
Strengib with which
you have conquerd. That Soul Obligation in the Child. For before I can charge
of Tours, ſo unſhaken to undaunted under the greateſt any Action of mine on another, as a conſide-
Dangers
, bad its Riſe and Original from mine. Is sable piece of Merit, it is neceſſary that I know
bath been my long Employment to render you a Man to what Perſon I do che Kindneſs, and whe-
of Abilities and Courage; in your early lears by my cher it will certainly reach him. Again, it
Precepts, and ſince, by my Example (c). It is not will be convenient for me to reflect and confi-
indeed eaſy to imagine or allow, that a Parent der, whether I really intended the thing as a
hath conferr'd any conſiderable Benefit on his Favour; how much it ſtood me in; whether
Child, ſhould he caſt him away when he firſt I undertook it more for the ſake of doing Good
comes into the World (4); or afterwards, entire to the other Party than for my own Pleaſure
ly negle&ing his Culture and Education, ſhould or Uſe; whether I was engaged in the Perfor.
let him grow up like a Beaſt, to lead a Life mance, upon Reaſon and Deliberation, or was
uſeleſs to others, and ſhameful to himſelf (d). drawn to it by the Force of Pallion, or Allure-
Juvenal's (5) Reaſoning is very Juſt and ments of Senſe: Laſtly, whether the Axion be
True,
capable of beneficing the other Perſon, with-
out the Addition of ſome farther Services.
Gratum eft quod patriæ civem, populoque dediſti, Whoever diligently weighs theſe ſeveral Points
Si facis, ut patriæ fit idon:us, utilis agris, of Enquiry, will be eaſily inclind to acknow-
Utilis & bellorum do pacis rebus agendis
.
ledge, that the Kindnefs of Educating, is much
Plurimum enim intererit, quibus artibus , quibus more proper to found an Obligation, than the
Moribus inftituas.
(bunc tu vulgar Office of Begetting.
Yet we do by no means approve of all that
The State and People will your Zeal commend, Seneca hath urged on this Head, in his Diſcourſe
In giving that a Man, and theſe a Friend; of Benefits (t). For he is not to be born with,
If fic to aid the publick Good: if skill'd when he calls the Life of a Man, whom GOD
In Rural Labours, or the Martial Field, hath endued with an Immortal Soul, a Thing
Or grave Debates of Peace. Th’ important Stake common to us with the wild Beaſts, with the ſmalleji,
Now waits your Care, what early ſteps you take ; and with ſome of the fouleft of Creatures ; and, the
What Scheme of Arcs or Manners is deſign'd, Happineſs of Flies and of Worms. But ſome Parts
To fix his Pains, or cultivate his Mind.
of his Argument may be admitced without Cen-
Mr. Barbegrac's NOTES on Chap. 2. $ 12.
(4) Senec. de Benef. 1. 3. c. 31. Vis ſcire, quam non fit magnum beneficium, vitam fic dare ? Expoſuiſſes ; nempe injuria
erat genuiſſe. Quo quidem colligo, minimum effe beneficium, Patris Matriſque concubitum, niſi acceſſerint alia, quæ proſe-
querentur hoc initium muneris, in aliis officiis ratum facerent. Non eft bonum vivere, ſed benè vivere. . Ti me mihi
mihi
rudem & imperitum dedifti : ego tibi filium, qualem genuiſſe gauderes
(5) Sat. 14. V. 70, c. He alſo ſpeaks well to this purpoſe. Sat. 7. v. 184, &c.
Quanticunque domus, veniet, qui fercula dotte
Componat; veniet, qui pulmentaria condit.
Hos inter fumtus seſtertia Quintiliano
Ut multum, duo ſufficient : res nulla minoris
Conftabit Patri, quam Filius.
(6) Solon hath left us this wife Law, Plutarch in vita That he that contemns the Honeſty and Sanctity of Mar-
So'on o 28 er seiyue malgpõv to retrów, Tikywy évenge riage, and deſires Women only to ſatisfy his Defire, and
drabs , am ni oviñs, a 2014 G gwaing riv med do el mi get not to have Children, has this Reward, that he has no
ay maipnoiar au T wegs mo pavorefuos ex Storé Olmuy ois aute To Right over the Children that proceed from ſuch a Con-
guías mendinger oyad G.
junčtion, whoſe Life he has made an Eternal Ditgrace.
(a) Euripid. Hecub. Good Inftitution is the Spring of virtue. (6) Declam. 258. . )
(c) Add. Declam. 27$. &
fab.
5
(d) Si res nulla minoris conftet patri, quam
filius ; If his Son flands bim in the leaſt Charge
of any thing he poſteljeth. By the Law of Solon in Plutarch, Children balely born were not obliged to maintain their
Parents. The Realon of which Exception was grounded on this conſideration, that he who forlakes the honeft way
Marriage, plainly frews that he ſeeks a new Partner, not on the account of Illue, but of Pleaſure ; and therefore his
Vice is his Reward; and le can by no means complain of any Ingratitude in ſuch Children, becauſe he hath injured
and diſgraced them by making their very Nativity a Reproach. Add. Vitruv. 1. 6. Prafat.
(c) In Diog. Laert.
It is worth obſerving in Martinius Hift
. S. n. 1. 4. c. 2. what mighty Refpe&t and Veneration the Chineſe pay to their
Hiftorian, 1. 6.c. 1. reporrs, That the Son, in China, never rifeth to a higher Degree of Honour than what had been for-
merly born by the Father; and if
, for his ſignal Services to the State, he be advanced farther, the Dignity, with which
he is to be inveted, is for it to be preferr'd
, by a kind of Pofthumous Promotion, on his deceas'a Fakher? That Pcople
(f) L. 3. c. 30, E36,
ſure,
Phædr. Fab. l.
3.
of
380
of Paternal Power.
Book VI.
ſure
. (7)
, Look, ſays he, upon my Nativity, as wealths, it is not uſual to deny a Free-Subjeca
it appears barely in it ſelf, and you will find it to the Liberty of tranſplanting himſelf, when tied
be a ſhort and uncertain Favoir, a Subječt lying e to Reſidence by no particular Obligation.
qually open to Good and Evil. No doubt it was my
XIV. To the ſame Head belongs that com-
firſt step to all the Benefits I enjoy, but it was not mon Queſtion, Whether Children may diſpoſe
therefore the greateſt, becauſe the firft ; nor, becauſe of thémlelves in Marriage againſt the content
the greateſt without it could never have been. And of their Parents (b)? For the solution of which
again, barely to live is the leaſt Degree toward living we ought carefully and diſtinctly to confider
well. I would thus talk with my Father : ſuppoſe, what is incumbent on Children, by Vertue of
as You for f gave me my Life, so I had ſaved Yours: their Natural Dury; and what on account of
in this 1 hould certainly exceed Your Kindneſs, for I the Obedience which attends their State of Sub-
conferr’d my Favour when you was ſenſible from wbom jection : and again, what Rights belong to Fa-
you received it, and I to whom I did it and then, thers ſtrictly, as ſuch ; what as chey are the
1 did not conſult my own Pleaſure, at leaſt not my Heads of Families. Paternal Power, as ſuch, we
Pleaſure alone, in the Performance. Would you con have already obſerv'd to be juſt ſo great as is
ceive bow small a Boon You beſtow'd on me in my fufficient to the Government of the Children,
Birth? Fancy your ſelf to bave immediately caſt me till able to be their own Managers. This there-
out to periſh naked and belpleſs; in this caſe Your fore does not ſeem to extend it ſelf ſo far as co
A&t of Begetting me bad been a manifeſt Injury. From the reverſing of a Matrimonial Contract: an
all which I infer
, that the acquaintance of my Father Affair fuppofed to be carried on by Perſons of
and Mother bad proved but a fender Kindneſs to me, mature Age and Reaſon. Indeed the Duty of Fi-
bad it not been follow'd with other good Offices which lial Piery and Reverence requires, not only thac
ratified and confirm'd it (a).
the Children apply themſelves to their parents
XIII. Laſtly, As the Father ought not, with. for Advice in theſe Proceedings, but likewiſe
out weighey Reaſons, to expel the Children that they make a Conſcience of oppoſing fo
his Houſe; ſo they, on the other hand, ſhall awful Directions (C). Yet if they happen to
not, according to the regular Courſe, paſs into break their Duty in this point, it doth not fol-
another Family without his good Leave. Yet low that the Act muſt be null and void. For an
in caſe they have juſt Grounds for their De- Obligation to hear and to reſpect Another's
parture, and yet cannot prevail on their Fa. Advice, doth not preſently divert a Man of the
ther's Perverſeneſs to give Conſent, I ſhould Power to govern his own Concerns. The Liberty
be of Opinion, that their Duty doth not hinder of a Son, as (8) Quintilian obſerves, if it be at
them from removing, ſo as to concert their all allowable, is ſo in the Matrimonial Affair: For
own Affairs, contrary to his Humour ; eſpeci. who can love by tbe Eyes, or by the Rules of another?
ally when they freely reſign all future Depen But what ſhall we ſay of that other Power,
dence on him, for their Fortune and Inheri- which the Fathers hold as they are the Heads of
For as Civil Conſtitutions do wiſely Families ? Its true, in many Common-wealths,
countenance and ſtrengthen the Authority of the Laws have variouſly reſtrain'd the Liberty of
Parents, ſo they are not wont to encourage im. Marriage. Thus, in ſome places, no Perſon of
pertinent Obſtinacy and Moroſeneſs. Nor doth the Royal Family can Contract, without the
it ſeem to be in the Power of thoſe who are King's Approbation ; ſuch Matches often proving
Heads of Separate Families, to retain their Chil- of very conſiderable Conſequence to the Publick.
dren, when they have reaſonable Occaſion to In Japan the Prince chuſech Wives for his No-
remove: inaſmuch as, in regular Common- bles id). In ſeveral Countries Marriage Con-



tance.
Mr. Barbeyrac's NOTES on Chap. 2. §. 12, 13.
(7) Senec. de Benefic. Lib. 3. c. 30, 31, 34. Sed vide, ne illud verius fit æftimari, an' id quod potui, ege id quod feci,
meum fit, mearum virium, meæ voluntatis. Illud quod natus fum, per ſe intuere quale ſit : animadvertes exiguum & incer-
tum, so boni malique communem materiam : fine dubio primum ad omnia gradum, ſed non ideò majorem omnibus ; quia
primum. Puta me vitam pro vita reddidiſe. Sic quoque munus tuum vici, cùm ego dederim fentienti, cùm fentiens me
dare : cùm vitam tibi non voluptatis mea causă, aut certè per voluptatem dederim. ... Ego vitam dedi ftatim illâ ufuro:
tu neſcituro an viveret. . . . Paternum munus Ego fimplex eft eo facile. ... In quo confortem habet, in quo fpe&tavit
Legem patriam, premia Patrum, domus ac familiæ perpetuitatem, omnia potius, quam eum cui dabat.
(8) Quintil. Declam, 272, 376. Nufquam tamen libertas tam neceſſaria, quàm in matrimonio. . . .
Quis enim amare
alieno animo poteft?
(a) A little after he files Generation a Vulgar Benefit; the Office of a Father, Eaſy, Night, and of little Value ;
regarding any thing elſe, rather than the future Perſon to be produced, (b) V. Grot. l. 2. c. 5. f. 10,
(c) Non &quum eft pugnare, pater cui tradidit ipſe, 'Twould be Rebellion to refift thoſe Arms
Ipfe pater cum matre, quibus parere neceffe eft :
On which
your
Parents have beftow'd Your Charms.
Virginitas non tota tua eft : ex parte parentum eft. Your Virgin-Jewel is not all Your own,
Tertia pars matri data, pars data tertia patri;
A third each Parent claims, a third alone
Tertia fola tua eft: noli pugnare duobus,
Reinains to you; forbear with Two to Fight,
Qui genero fua jura fimul cum dote dederunt. Catullus. Who, in their Portion, give the Son the Right.
Thus Hermione moſt dutifully ſpeaks in Euripides (Andromach.) v. 987, 988.
---My Marriage is my Father's Care,
His Judgment guides my Choice,
And Xenophon Cyrop. L. 8. tells us, that Cyrus would by no means engage in Nuptial Affairs without the conſent of
his Parents, (8) Varen, Defcript. Japon. c. 12. Add. Conftit. Sicul. 1. 3. t. 21.
tracted

Chap. II.
381
Of Paternal Power.
thing but his Confent: provided ftill, that they
tra@ed between a Subject and a Foreigner, be- poneſe, Marriages are intirely directed by the
tween a Noble Perſon and a Commoner, are Parents, or, if they are dead, by the next Rela-
declared void. But as in all States and Govern- tions (d). And in Peru, under the ancient Go.
ments, a Liberty of marrying and of removing vernment of the Incas, all Matrimony engaged
is ever ſuppos’d, except where there is either an in, without the Parent's Approbation, was de.
expreſs Law to the contrary, or a Cuſtom equi- clard Null, and the Children Illegitimate (e).
valent to a Law; ſo in Separate Families, where This, in general, is certain, that as the Laws
moſt of the Reaſons fail, on which the Civil of a particular Country may pronounce a Con-
Conftitutions, about this Affair, are built ; the tract invalid, either becauſé defe&tive in Form,
Father of the Family doth not ſeem to have a or becauſe tranfa&ed between Perſons to whom
Right of prohibiting or of reverſing his Chil- ſuch particular Agreements are prohibited, they
dren's Marriage, when not defective in any may, in like manner, ſuſpend the Validity of
are willing immediately to leave his Houſe; for ſo that if deftitute of this neceſſary Condition,
it would be unreaſonable to bring a Perſon to it ſhall paſs in Civil Eſtimation for Null and
live under his Eye whom he profefſeth to diſlike Inſignificant (f). For the Agreement of the
(a). Yet if a father ſee his Authority flighted Parties to cohabit like Man and Wife, can no
by his Children, without very ſufficient Grounds more render Matrimony good, when contrary
for their Non-compliance (b), he may, as a to Law, than the Bargain of a Minor and the
Puniſhment of that Neglect, exclude them from Delivery conſequent upon it, boch undertaken
all preſent Benefits and all future Expectati- without his Guardian's Influence, can effe&u-
ons ( c).
ally and irrevocably paſs away his Eftate. Tho'
What Rights thoſe Fathers of Families, who Parents are to be admoniſh'd, that when the
live not in a ſeparate Condition, but under Government allows them ſo high a Prerogative,
fome Common-wealth, do in this reſpect enjoy, they ſhould be very cautious, and very merciful
muſt be diſcover'd by the Cuſtoms and Conſti- in purcing it in Execution (g).
cutions of different Nations. Amongſt the Ja-
(2) Genef. XXVI. 34, 35. (b) Vid. L. 23. 4. 1. 1. 12. f. 1. D. De Sponfal. (c) Vid. Leg. Wiſigorh. l. 3. t. 2.
6. 8. Leg. Burgundion, t. 13. c. 5. (d) Varen. Defcrip. Japon. c. 12. (a) Garcilaſo De la Vega, l. 6. c. 36.
(f) Vid. L. 23. t. 2. 1. 2. D. De Ritu Nuptiarum, Ego L. 48. t. 5. 1. 7. D. ad L. Jul. De Adulter. (g) Add. Boecler.
& Ziegler. ad Grot. l. 2. Co 5. f. 10.
сHAP.
382
Book VI.
Dofon
CHA P. III.
1 to 200m
nuo 520 gheoxo 120g 1979 2
Of a Maſter's Power.
0901 oda 34x9
I. What is the Relation of Mafter and Servant. | VII. They are almoſt of the ſame Nature with other
II. ' Servitude was not ordained by Nature.
gli Goods.se
III.
Nor by God immediately.
VIII. Yet an Injury may be done them.
IV. The Original of Servitude ſeems to bave been IX. Of the Children of Servants.
from Contract.
X. ci The Inconveniences of servitude.
V. War made the Number of Servants greater.
How many ways a Servant may become free.
VI. Wbat is the Duty of Captives to their Maſters.!


XI.
01 am
A
1. S the Husband and Wife (whence they can manage no Concern with tolerable
proceeds the common Off-ſpring) Care; nor ſo much as Save or Spend, by the
make the principal Parts of a Family, Direction of their own Judgment. The latter
fo Servants come in for inferior, fecondary Mem- Kind, are thoſe whom Ariſtotle calls Slaves by
bers, to bear the Burthen of common Labour Nature, not that Nature by her own immediate
and Buſineſs: Now theſe being uſually treated - Act, fets them in ſuch a Condition of Bondage,
in a way of ſeverer Diſcipline, give Occaſion without any Human Deed or Covenant inter-
to the forming of a new Species of Government vening : but becauſe by forming them with ſo
on their account ; different from that which is much Diſadvantage in their Frame, the hath
exercis'd over Children, who demand a milder rendred it more convenient for them to live uñ-
and more indulgent : Sway. Yet we a
are per- der abſolute Subjection and Controul, than to
ſwaded, that neither this Society, between Ma- undertake the Government of their own Pro.
fter and Servant, can claim the Name of a Com- ceedings (b). It was a Saying of Ageſilaus, that
mon-wealth or Civil-State, as Mr. Hobbes (a) is The Alaticks were the worſt of Free-men, and the
inclined to call it: not only becauſe it generally heft of Slaves: which Paſſienus turn'd upon the
conſiſts of fewer Perſons than are neceſſary for Emperour Domitian, when he obſerv'd, that
mutual Preſervation, in a Condition of Natural There was never a better Servant, and never a worſe
Liberty ; but likewiſe becauſe a Mafter furniſh- Maſter (c).
eth himſelf with Servants, not ſo much for the III. Hornius, in his firſt Book De Civitate (d),
Sake of Reciprocal Defence, as that by means jars upon the old String, in contradicting the
of their Labour, he may, in a more ample and general Opinion of the (2) Lawyers who
more convenient manner diſcharge his Dome- derive the Origine of Servitude from the Law of
ſtick Affairs.
Nations. He ſays, " The Manner only of this
II. As to the Original of this kind of Society, Inftitution is to be refer'd to the Practice of
we muſt, in the firſt Place, diſcard that old Mankind; a Cuſtom having prevaild amongſt
Opinion, which makes Nature her ſelf to have moft People, to impoſe ſuch a Condition upon
actually eſtabliſh'd the Relation of Maſter and their Captives in War. But we ſhould always
Servant amongſt Men. (1) It is true, we diſ diſtinguiſh the Cauſe of the Society, from the
cover a ſtrange Variety of Parts and Capacities. Cauſe of the Sovereignty; the latter not being
To give one Inſtance for all; we obſerve ſome deducible from Cuſtom, nor from the Law of
Perſons of ſo quick and piercing Sagacity, as Nations, but being eſtabliſh'd by GOD him-
to be able always to apprehend their own Inte ſelf. For fince all Victory is from GOD, and
reſt and Benefit, and, at the ſaine time, of ſuch by his Providence the Conqueror gets into
Vigilancy as to proſecute their Affairs, by their his Hands the Perſon of the Enemy, it follows,
own free Motion, without the Admonition or that the Life of the Captive might immedi-
Compulſion of others. Some, again, are of ſo ately be taken away: But ſince Humanity
heavy Diſpoſitions, as not to ſee their own Ad 'would ſcarce have ſuffer'd, that the Victor
vantage, any farther than they are guided; be ' ſhould always exerciſe this Rigour on an
ing much fitter for the Labours of the Body, sunarm’d and ſuppliant Perſon, it was thought
than the Employments of the Brain ; and far convenient to forbear Execution, and to retain
ther, ſo given over to Supineneſs and Sloth, as his Power over the Priſoner, who might thus
unleſs they are forced and drag'd to Application, 'be of good Uſe in the Affairs of Life. But
6
Mr. Barbeyrac's NOTES on Chap. 3: $ 2.
(1 ) This Opinion is confuted at large, Lib. 3. Chap. 2. 5. 8. What our Author adds here, is an Abridgment of
what he has there ſaid, to which it is better to refer the Reader.
( 2 ) Their Words are, Servitus autem eft conftitutio Juris Gentium, quâ quis domino alieno contra naturam ſubjicitur
.
Servi autem ex eo appellati ſunt, quod Imperatores captivos vendere, ac per
hoc Jervare, nec occidere folent : qui etiam mancia
pia difti ſunt,
eo quod ab hoftibus manu capiuntur. Servi autem aut nafcuntur, aut fiunt : nafcuntur ex ancillis noftris
:
fiunt autem Jure Gentium, id eft, ex captivitate; aut Fure Civili, cùm
liber komo major viginti annis ad pretium particia
pandum fefe venundari pajus eft.' Inftit. Lib. 1. Tit. III. De fure perfonarum, ".2, 3, 4. We fee that our Author
makes two things the Cauſes of Servitude, viz. Poverty and Force.
(a) De Cive, c. 5. f. 1, 2.
(b) V. fupra L. 3. 6. 2. f. 8.
(c) Tacit. Ann. VI. c. 20,
(d) L. I. c. 3.
indeed,

Chap. III.
383
Of the Maſter over bis Servant.
6
6
indeed, as the Occafion of Men's engaging in we can by to means prevail with our ſelves to
War, was ever partly their own Defence, and allow.
partly the Vindication of their Righes; ſo upon IV. In our Judgment, the Origine of Servitude
their obtaining the Victory, when they thought ought thus to be traced out. In the early Ages
good to
to ſpare the Lives of the Conquer'd, it of the World, when Men began to quit their
was at their Pleaſure, either to put them in a primitive Plainneſs and Simplicity, to cultivate
State of Slavery, or only to keep them in Hold the Method of Living, and to enlarge their For-
till ſuch time, as by Ranſom or Compact they tunes and Poſſeſſions, it is very likely the Wiſer
Thall be deliver'd. All which Privileges and and Richer Sort, invited thoſe of leſs Parts, and
Proceedings, together with the Authority over lets Wealth, to aſſiſt them in their Buſineſs, for
Perſons thus brought into Subjection, were not Hire. Afterwards, when both parties found
immediately appointed by GOD himſelf, but their Benefit in this way of proceeding, the
were approv'd by Him upon Human Inſtitution. meaner Tribe were, by degrees, perſwaded to
Nor is that Affertion true, 'The Victor ſtill re. join themſelves perpetual Members to the Fami:
cains that Power of Life and Death over the lies of the Greater ; under theſe Conditions,
Captive, which he once procur’d; and conſe- that che latter ſhould engage to ſupply Food and
quently, his Right is the ſame, before he re- all Conveniences of Living, and the former
ceives him into Fealty and Service, and after he ſhould bind themſelves to undertake all proper
governs him as a part of his Family. For Labours and Employments, as their Patrons
theſe are quite different things. The conquering ſhould direct. So that the firſt riſe of Servitude,
Party, may by the Right of War, diſpoſe how is owing to the voluntary Conſent of the poorer
he pleaſeth of his Priſoner, either kill him or and more helpleſs Perlons, and is founded upon
fave him ; but this was never before term'd the that common Form of Contract, Do, ut facias;
Power of Life and Death, which denotes a lawful I promiſe to give you conſtant Suſtenance, upon Condi-
Authority of inflixing Capital Puniſhment, in tion You allijt me with your conftant Work. What
caſe of an antecedent Criine. Laſtly; what the Power Nature allows a Maſter over Servants of
ſame Author lays down, " That all Sovereignty, this kind, may be eaſily diſcover'd from the
of what kind ſoever, imports a Power over Ends of forming fach a Society (1). He may
the Life of the Subject, and therefore we muſt enjoyn them what Task he pleaſeth, (2) in Pro-
not ſeek for Diſtinctions in the Power it ſelf, portion to their Strength and Skill. He may
but in the Exerciſe of the Power, and by likewiſe correct (3) their Sluggiſhneſs, by ſuch
Conſequence, the Authority of the Husband Methods of Severity as are moft likely to pre-
over the Wife, of the Father over the Chil- vail on their particular Diſpoſitions tho he
dren, of the Prince over the People, is one cannot, on this Score, proceed to Capital Pu-
and the ſame with that of the Maſter over the niſhments : ſo that the higheſt Degree of Penal-
Servant; except that the ways of Treatment ty he can inflict on their Idleneſs, is, to expel
are more kind, and gentle in the former In- the lazy Drones from his family, and leave
ſtances, than in the laſt: is an Argument,that them to their own Beggarly Condition. Nor
6
8
revenge
Mr. Barbeyrac's NOTES on Chap. 3: $ 4:
(1) Grotius, Lib. II. Chap. V. 9. 10. diſtinguiſhes Servitude into 1. Perfe&, and 2. Imperfe&t. The firſt he there
treats on, the other is only for a certain Time, or on Condition, or for certain Things, according to certain Rules,
or by the Laws of the Country, or by the Agreement of the Perſons concerned: See the Examples alledged by him.
I Mall content my ſelf in teciting only what our Author fpeaks in his Abridgment of the Duties of a Man and Citizen,
Lib
. 2. Chap. IV. 5. 2. about Hir'd or Domeſtick Servants. The Maſter, ſays ke, owes his Servant the Wages agreed
on, and the Servant is oblig'd to do the Work faithfully for which he is hired by his Maſter. Farther, as in this Con.
ttaet
, the Condition of the Maſter is more advantageous than that of the Servant, the Servant ought to reſpect his
Mafter according to his Station in the World, and when thro' Malice or Negligence, he diſchiarges his Buſineſs ill, his
Mafter may correct him with Moderation, but not infli&t any Corporal puniſhment on him, unleſs it be inconſide-
table, much leſs put him to Death by his own Authority. Mr. Titius, Obfervat. DXXIX. affirms nevertheleſs, that
this Chaſtiſement, as moderate as our Author ſuppoſes it, is not a dire&t Conſequence of the Rights of a Maſter over
his Servant; for befides, ſays he, that ſuch a Permiſſion ſeems what ought not to be allowed to Maſters in any well-
govern'd State, the End of the Relation does not naturally require, that a Maſter ſhould have ſo great a Power over
his Servant ; 'tis fufficient that the Servant be oblig'd, ſome way or other, to make good the Damage he has cauſed
thro' his own Fault. Put if he has deſérv'd Blows for doing ſome Wrong, or Injury to his Maſter, his Maſter doth not
infli& them by way of Puniſhment, for that belongs only to the Magiſtrate, but by a Right of War, which allows us
the Injury done us with Moderation. But yet our Author, in all this Matrer, without doubt ſuppoſeth,
that no Servant or Slave is bound to obey his Maſtet, if he command any thing contrary to the Law of Nature, or the
Nation he lives in. See Grotius, Lib. II. Chap. XXVI. 8. 3
(2) We ought to obſerve, that one of the principal Reaſons for the Inſtitution of the Sabbath, was to procure Fafe
to Servants and Slaves : See Grotius, Lib. II. Chap. XIV. §. I. and Mr. Le Clerc's Notes on Exod. XX. 10. and Deut.
13 ) See Grotius, Lib. III. Chap. 14. 5.4. where to ſpeak by the bye, there is a falſe Quotation about Slaves, Thou
Jhalt not oppreſs tby Servant, nor rule over him with Rigour, Lev. XXV. 17, 43, 53. and not out of Deut. XV. 17, 45, 53.
and likewiſe the firſt words, which are at ver. 17, are not ſpoken of Slaves, for there it is ſaid, You ſhall not opprefs one
another, and 'tis ſpoken upon the account of felling of Lands, which the Lawgiver forbids, upon any Pretence what-
foever, longer, than the Year of Jubilee. The ſame Fault is found 9. 2. Num. 2. where Deut. XVII. is quoted for
Lev
. XXV. But to return to our Šubje&. we ought to obſerve theſe two Laws chiefly, viz. Exod. XXI. 20, 21, and
10,27. The firt imports, That if a Maſter beats his Servant that he die, he ſhall be puniſhed as a Murderer, but if he
a day or two, the Maſter ſhall be exempted from that Puniſhment: And the Reaſon is becauſe if the Slave dies
not preſently, 'tis to be fuppoſed, that the Maſter had no Deſign to flay him, and fo 'twas thought a ſufficient Puniſh-
Mi. Le Clerc expounds them, by theſe words, For the Slave was his Money. The other Law requires, That if a Mafter
has (mitten the Eye of his Servant, that it periſhes, or his Tooth, he hail let him go free, as a Satisfa&tion for that
Lofs; which without doubt hath 'place; when the Damage is more conſiderable, with greater Reaſon : Sce the ſame
F ff
dath
V. 14.
lives only
Commentator.

Book VI
we muſt diſcard chat fundamental Error of his,
384 Of De potical Power, or the Authority
doth it appear, that he can tranſmit them to and to their Slaves, if they happen'd themſelves
another Malter, without their Conſent: they, to be Inferior Maſters. Yet, in fome Common.
being really in the Capacity of (4) Perpetual wealths, it was quite taken off by publick De.
Mercenaries, or Hirelings, working for the Advan- crees, and in others very much abridgʻd and re-
tage of Him that employs them, whilft continu. itrain’d. The primitive Inſtitution therefore
, of
ing in that State, but not at his difpofal when Servitude; was not founded on War, but on vol
obliged to leave it
. Laſtly, If Perfonis, in this luneary Conſent; tho’ the Chance of War fup-
limited Order of Servitude, commit any grievous plied Occafion, not only to the increaſing the
Offence againſt the Members of another Family, Number of Slaves, but to the rendring their Con.
their Malter cannot, even on this account, prodition more hard and grievous (e).
ceed to take away their Life. Yet leaſt he ſhould
VI. Let us ſee how Mr. Hobbes (f ) derives
engage himſelf in Quarrels
, by defending their the Sovereignty of Maſters, and the Subjeion
Injuries and Crimes, he is allow'd, or rather he of Servants, from his State of War. And, firft,
is oblig'd to expel them his Houſe ; which is a
kind of delivering them up to Puniſhment. But that from the Condition of Nature, which he
if they prové guilty of any heinous Practice calls a War of every Man upon every Man, there
againſt the Mafter himſelf, and his Family, he can reſult to any perſon a Right of invading An.
may then juſtly kill them: yet not by Vertue of other, and of reducing him into Servitude upon
his Sovereignty, but as Enemies, by the Right of gaining the Vi&ory, Yet thus much is Senſe ;
War (a).
that as, by the Right of War, an Enemy may
And according to theſe Meaſures, the Con- fairly be kill'd ; ſo the Conquerour may, if he
dition of Servants, and the Power of Mafters are, pleaſeth, give him his Life, upon his Promiſe of
for the moſt part, 6 ) deſcribed in the Old perpetual Service. In which Contract and Com-
Teftament.
poſition, the Good which the Vanquiſh'd re-
V. The Convenience of diſcharging inferior ceives, is the Security of his Life, which, by the
Offices and Labours, by the Hands of others (b), Right of War, might have been taken away;
being thus found out: in ſucceeding times, when and the Good which he engages to bring to the
Wars
grew frequent in the World, ic pafs’d by Vi&or, is his Service and Obedience, and thoſe,
degrees, into a Cuſtom, to indulge Captives as far as poſſible, Abſolute
. For he that obligeth
with Life and Corporal Liberty, upon Conditi- himſelf to perform the Commands of Another,
on that they ſhould yield perpetual Service to before he knows the Particulars, is bound, with
the Conqueror. (1) Thus Diodorus Siculus (c) out any Limitation or Exception, to do all that
reports of the ancient Egyptian King Sefoftris, that the other Party ſhall enjoin. Tho' the Law of
he perform'd all his publick Works by the Help Humanity affords fome Relief and Temper to this
of Captives; fixing this Inſcription on the Ten- rigorous Juſtice (8).
ples which he built, None of the Natives have bere Farther, Mr. Hobbes (b) rightly obſerves, that
employ’d their Labour. Now theſe Slaves of War not every Captive, in War, is thus fuppoſed to
were, of courſe, treated with ſeverer Diſcipline, covenant with the Conquerour. For ſome do
being ſuppoſed' ftill to retain ſome Sparks of not obtain an abſolute Grant of Life, but a tem-
Hoftile Hatred. Beſides, an Ad of Cruelty was porary Reprieve to ceaſe at the Conqueror's Plea.
judg’d ſomewhat excuſable, when pra&is'd upon fure : which was the Caſe of thoſe whom the Row
thoſe who had formerly made an open Attempe mans preſerv'd to adorn their Triumphs, and to
on the Life and Fortune of their preſent Maſter; entertain their Amphi-Theatres. Nor is ſo much
and the Licenſe in this Point improv'd ſo far, Truſt and Credit given to every Captive, as that
that it was eſteem'd a harmleſs matter to kill his Mafter ſhould venture to leave him ſuch a De-
them, either in Violence of Paſſion, or upon gree of Natural Liberty as might enable him, were
committing any Offence (d). This Privilege he ſo inclined, either to run away, or to refuſe
being once introduc'd, was extended, tho' upon working, or to attempt any Miſchief or Damage
leſs Pretence, to the Children of the Vaſſals ; againft the Family. Such a One therefore per-



Chryfippus, as Seneca tells
ia
Mr. Barbeyrac's NOTES on Chap. III. § 4, 5.
(4) If thy Brother be waren poor, and ſells himſelf to thee, thou ſhalt not conftrain him to ferve, as a Slave, but be shall
be with thee, as an hired Servant, or a Sojourner to the Tear of Jubilee, Lev. XXV. 39, 40.
us, did ſay, That a Slave is a perpetual Servant. Servus, ut placet Chryfippo, perpetuus mercenarius'eft. De Benef.
Lib. III. Chap. XXII.
(5) Exod. XXI. 21, Esc. Deuteron. XV. 17, 43, 53, 8900. Sirac. XXIII. 25, &c.
See Busbequius's Epift. III. & Chriftop. Richerius, de Moribus Orientalium. As to the Original of this Cuftom, 'tis
an Affertion of Pliny's, that The Lacedemonians invented Servitude ; (1. 7. c. 56.) which cannot be admitted, except.
one of theſe two Senſes, either that they were the firſt in Greece who introduced this Practice, or that they made slaves
of their Countrymen the Grecians, as well as of the Barbarians, when taken in War. The foriner Senſe is favour’d, by
that Place of Herodotus ( Erato, towards the End ) where ſpeaking of the Iſland Lemnos
, its being ſeiz'd by the Pelafo
gians, he adds, Neither they nor any other of the Grecians had then Slaves.
( a ) Yet after another Manner than the Old Germans, who kill’d their Slaves, as Tacitus ſays, Not out of Diſcipline and
Severity, but pure Heat of Paſion. (b ) Hence Ariſtotle ( Polit. 3.) calls a Servant, "opgaver meg égzerwy.
(c) L. 1. c. 56. p. 52. Ed. Rhodom.
(d) Add. Grot. I. 3. 6. 7. 8. 3.
Grot. 1. 2. c. 5. 8. 27.
(f) De Cive, c.8.8.1.
(g) Vid. Grot. 1. 3. c. 14.
Supra. ſ. 2, 3,4.
(d) V. Grot. 1. 2. 6. 9. f. 1.

(e) Add. Becler ad
(h) Ubi
forms

Chap. III.
385
Of the Maſter over his Servant.
upon
my
forms Service, not upon account of mutual Faith join’d with ſome Uſe or Advantage. Every So-
and Contract, or by vertue of a Moral Tye, but vereign may indeed, as Mr. Hobbes (6) semaiks,
meer Force, like Brute Creatures; being fay of his Subje&, bic meus eft ; This Man is
keps in Fetters, or under cloſe Confinement. Property ; yet 'tis in a quite different senſe that
The Obligation therefore of a Slave of War, co we call a Thing our own. For, by the former Ex-
wards his Mafter, doch net ſpring from the bare preſſion, I mean no more, than that I and none
ſaving his Life, nor deferring his Death; but is elſe have the Right of governing ſuch a Perſon;
built on his Exemption from Chains and Impri. yet ſo as to be my ſelf under ſome kind of Ob.
fonment
. By this Ad, the Maſter expreffech fo ligation to him, and not impower'd to exerciſe
much Confidence in him, as to leave him pof- that Right upon him, in an unlimited abſolute
fels'd of Corporal Liberry; by which means, if manner. But, on the other ſide, the Property I
no Moral Bonds and Engagements had pals'd be claim over a Thing, implies à Right of uſing,
tween them, the State of War would ſtill conti- ſpoiling, and conſuming it, to procure my Ad-
nue; and the Slave might not only make his E- vantage, or to ſatisfy my Pleaſure; ſo that what
Icape, but might fairly lay his Preſerver (a way ſoever I diſpoſe of it, to ſay it was my own,
From all which it is clear that there is a great Dif- ſhall be a ſufficient Excuſe. It muſt be confeſsa,
ference between thoſe Slaves who are iecur'd in that altho' the Law of Humanity doth by no
Priſons, Work houſes, and the like, and thoſe means allow us to extinguiſh all Marks of primi-
who are tied by Covenant to their Maſter: the tive Equality in a Slave, who, whatever he may
former ſerving not out of Duty, but to avoid have formerly delign'd, is now in a Condition of
Puniſhment; and conſequently, not acting a Peace and Kindneſs with us, ſo as to uſe him in
gainſt the Law of Nature, ſhould chey either run the ſame manner as a Beaſt or Inanimate Crea-
off, or aſſault their Maſter's Life.. For to hold a ture, towards which we cannot ſtand under any
Perlon in Chains, or Durance, is a Sign, chat Engagement; yet the barbarous Cruelty of ma.
we do not think him fufficiently enſured to us by ny Nations hath proceeded ſo far, as to reckon
any Obligation, or Moral Reſtraint.
their Sluves in the Number of their Goods and
Yer that Affertion of Mr. Hobbes cannot paſs Poffeflions, and to treat them not in a way of
for Truth, that the Maſter bath altogether the ſame Sovereignty, but of arbitrary Violence, ( 1 ) cal-
Right over the Slave, whom he thus keeps in Bonds; ling them their own in the ſame Senſe, as their
and him whom he holds only by Articles; in as much Caitle. Amongſt theſe People, if a Mafter pera
as his Right over borb is ſupreme. For that kind of form’d the leatt Good towards his Vaffal, he did
Hoftile Privilege which the ( ) Vi&or referves it purely for his own fake, left he ſhould luffer
to himſelf over his Priſoner, is a different thing by loſing him: and the poor Wretch was piried
from his proper Sovereignty: Since, by means only upon account of bis Price (c) But all
of the former, the Captive may, at any time, be this is not enough to prove what Mr. Hobbes af-
deprived of his Life, under Pretence of the State firms, that Whatſoezer the Slave prisid before bis
of War, from which he ſeems to be not yet pér. entring on that Condition, doth then fall to his Ma-
feâly exempied. Whereas the higheſt Degree fter: which can be admitted only in this qualified
of Sovereign Rule or Dominion, doth not direct Senſe, that as much as the Slave was, before bis i ap-
ly include a Right over the Life of the Subject, tivity, able to get by his Work, ſo much bis Mester
except on a criminal Account.
may now claim, and oblige him to make good. When
VII. But altho' Dominion, which is properly the a Man voluntarily engageth in Servitude, he
Right of governing another's Perſon, when efta- may, indeed, deliver up his little Poffeffions, as
blith'd with the free Conſent of the Subject, can well as himſelf into his Maſter's Power.
Buc
not, regularly, be transferr'd without his Good. there is no conſtant Neceflity of thus proceed-
liking ; Men having uſually peculiar Reaſons ing. And as for thoſe Perſons, who in ancient
why they chuſe to ſubmit to this perfon rather Times, fold themſelves into Slavery, it is pro-
than to any beſides; yet in thoſe kinds of Domi- bable, that they retain'd not only the Price gi-
nio which are grounded upon Force, it hach ven, but likewiſe their former Goods, at leaſt,
been ever judg'd allowable for the Sovereign to in the manner of their Peculium ; ſo as to have
alienate them by his own fole Will
and Ad. Yet themſelves the Propriety
, and Management of them,
ſo long as the Subjects enjoy any Remains of Li- tho' their Maſters bad the chief Advantage; or elle,
berty, we cannot in Striétneſs ſay, that the Men that they ſurrendred them up to their Children,
themſelves are thus alienated or made over, but or aged Parents, whom before they were obli-
only the Right of governing them, as being ged to maintain. Tho' indeed, the ( 2 ) Fewills
Mr. Barbeyrac's NOTES on Chap. 3. S. 6, 7.
(1) The Captive having defervid to loſe his Life, as we ſuppoſe, 'tis no Injury to him to make him a Slave ; and
if he finds his slavery more unſupportable than Life is ſweet, he may procure his Death at any time, by diſobeying
his Maſter; as Mr. Locke ſays in his Second Treatiſe of Government, Chap. IV.$ 23. in the Original.
(1) In the Roman Law, a Runagate Slave is ſaid to rob himſelf. Ancilla fugitiva quemadmodum fui furtum facere
intelligitur, ita partum quoque contreft ando, furtivum facit. Digeft
. Lib
. XLVII. Tit. II. ' De Furtis, Leg. LX. See alſo
Cod. Lib. VI. Tit. I. De Serv. fugit. Leg. I. and Quintilian. Declam. VI. The poor Man; that by the Chance of War
had been made a Captive and Slave, had
reaſon to ſay, Meipſum perdidi ; I have lojā my ſelf.
( 2 ) Vid. Seiden. De J. N. G. Sec. Hebr. 1. 6. C. 7.
( a ) See Locke's Treatiſe of Civil Government, c. 3. S. 2.
(b) Ubi fupra, f. 4.
Dio: Chryfoft. Orat. 15. De Servitüte, p. 241. Ed. Morell.
Doctors
(c) Add.
Fff 2

386
Book VI.
Of Deſpotical Power, or the Authority
to
Doctors held it unlawful for a Man to ſell him former
, and therefore can be no Injury to bim; only
ſelf, except under Danger of Starving: A. proves thus much, that the Slave ought nocis
mongſt the Romans, it was a known Trick with complain, whatever Work is enjoin'd him by his
Sharpers, to ſuffer themſelves to be ſold, for the Maſter, provided it lie within the Compaſs of
ſake of going Sharers in the Price: And for his Strength, tho' never lo contrary to his Incli-
their Puniſhment they were condemnd to real nation : No more than a Subject can pretend he
Servitude. The Sham was this ; Caius, ſuppoſe, is unjuſtly dealt with, when an abſolute Prince
pretended Seites to be his Slave, and accordinglý doth not manage things to his good liking. That
offer'd him to Sale, tho' indeed a Freeman: this Subjection of Will amounts to nothing more,
Seius being, upon Bargain, to receive a good we will elſewhere fully evince. In other Mat:
part of the Gain, conſented to the Proceeding. ters, Who will deny but that it is an Injury
But the Man being once paſs’d off to the Cu a Slave, to ſet him a Labour above his Ability,
ftomer, and the Price deliver'd ; a third Perſon (1) to beat him for not performing ſuch an
was ſuborn'd to claim Seius in the Court as a impoflible Task, or to deny him neceſſary Food
Freeman, by preferring an Action againſt the Pur- (d)? The Jews were ſo Inhuman, as to think
chaſer; who, ( Caius being, in the mean time, themſelves not obliged to furniſh a Gentile Slave
flipt out of the way, ) was thus doubly gulld of with Cloaths, or Viduals, cho', at the ſame
his Money, and of his Man ( a ).
time, they exacted from him the hardeſt Sera
If a Man be compell’d to Servitude, by the vices, with all imaginable Cruelty (e). The
Right and Courſe of War, the Goods which reaſon of this barbarous Rigour might probably
are taken with him ſhall be the Victor's. But be, becauſe they had themſelves ſuffer'd the
thoſe which are not taken with him ſhall be as like Treatment in Egypt (f). And as for that
if he were naturally dead: At leaſt till ſuch Command in Leviticus XXV. 43. prohibiting
time as he recovers his Liberty. Thus much is Severity, they confined it to Perſons of their
moſt certain, that what the Slave gets, during own Nation. The Romans in their Cuſtoms and
his Servicude, he gets for his Maſter. For to Laws, as to the point of Food, expreſs’d more
whom any perſon fully belongs, to him ſhall be- Kindneſs (g). It was a noted Saying of Cato's,
long whatever that Perfon can procure or pro- that To quarrel with Servants about tbeir Bellies, look's
duce. And in this Senſe Mr. Hobbes ſays truly ſcandalouſly mean (h). Yet, in other Reſpects,
enough, that The Slave bath nothing which he can the Roman Maſters were remarkably Unmerciful .
retain as his own, in Prejudice to his Maſter's Ti- As in ſelling their. Slaves, when grown Aged
tle. Yet what his Mafter peculiarly aſſigns or and unfit to Work; a Practice which Plutarcb (i)
allows him for Management or Uſe, he may juſtly cenſures, upon this Argument, that it is
keep and defend, againſt his Fellow. Servants; Natural for Men to expreſs ſome kind of Clemency and
as Victuals, Cloachs, Lodgings, Vails, and the Beneficence, even to Brute Creatures, which have un-
like (b).
dergone Labours for our Advantage ( k). On
VIII. When the ſame Author (c) adds, that the whole, Ariſtotle's reaſoning will ever hold
A Slave cannot be injur'd, the words are not fit good : We owe, ſays he, Some Friendſhip even to a
to be receiv'd without much favourable allow- Slave; not as be ſtands in that Relation, but on the
ances, large Abatements and Limitations. The
account of his being a Man. Since there is a common
Argument which he makes uſe of, The Slave Right, which each perſon may claim in regard to
having fubje&ted bis Will to the Will of his Maſter, every other Perſon, with whom he is capable of paro
whatever the latter does, is done with the Will of the taking in Laws, or Covenants (1).
Mr. Barbeyrac's NOTES on Chap. 3. S 8.
(1) We ought always to remember, that they are Humane Creatures : Theano's Greek is, 'Iva uns diá xómoy xei urwote
uñ Te d'dwarão de the codeíur, eigi 8 ay spcontos tñ puose. To the Quotations of the Author may be added what Petronius
makes Trimalchion fay, Amici, & jervi homines funt, Ego aquè unum laftem biberunt, etiamfi illos malus factus opprefferit,
Chap. LXXI. upon which the Commentators have heaped up many Authorities. But the Jews believed, that they
were not oblig;d to uſe any Kindneſs to Slaves, except of
their own Nation : See Selden de Jure Nat
. & Gent. &e.
Lib. VI. Chap. VIII. Further, Qạr Author in his Abridgement of the Duties of a Man and Citizen. Lib. II. Chap. IV. 9.5.
ſays, That it we fell or alienate a Slave in any other
manner, we ought not deſignedly, and without his defert, put him
into the Hands of ſuch as will uſe him inhumanly. I will alſo add here, that there was a Law among the Greeks, which
allowed Slaves, when they were uſed hardly by their Maſters, to require that they might be ſold to ſuch as would uſe
them better : See Plutarch de Superftit. Ego Pollur. Lib. VII. §. 13. The Emperor Antoninus Pius commanded much the
ſame thing in a Law above quoted, Digeft. Lib. I. Tit. VI. Leg. IÍ.
(a) We have an Inſtance of this Trick in Plautus. Perf. A&. IV. Sc. 4. Soo 9. (b) V. Plin. L. 5. Epift. 16.
(c) Ubi Supr. f. 7. (d) Theano (Epift. 3. in Opuſc. Mythol. &c. p. 746.) makes it neceſſary to the juft' Uſe of sera
Vants, that They be neither broken by Labour, nor by Want. (e) vid. Selden, de 7. N. Ego G. Sec. Hebr. 1. VI. c. S.
(f) Exod. V. 13, 14. (g) Vid. L. 1. t. 6 1. 1. f. 2. D. De his qui ſui vel alien. jur. funt. & L. 7. t. 6.1.1.1. 3:
C. De Latin. Lib. Toll.
(h) Plut. in Cat. M. (i) Ibid. (k) Plaut. (Menächm.) If you are deſirous of keeping
a Slave ſecurely, You muſt tie him to you with large commons. You may eafily pin down a Fellow's Noſe to a full Table
.
Juvenal (Sat. 14. v. 125) cenſures the Miſer, that
Servorum ventres modio caftigat iniquo, With ſcanty Meaſure ſhrinks his Servants Guts.
It was a commendable Decree of Claudius, which Suetonius mentions ( c.25.) When certain Perſons had expoſed their fackly
and crazy Slaves, in the Iſland of Aſculapius, being weary of providing for their Cure ; be ordered all thoſe who had been thus
expoſed, to be declared free
, and not to return to their old Maſters, if they happened to recover: at the same time Enafting,
that ſuch Perſons as choſe rather to kill their Slaves
, than thus to diſpose of them, ſhould be held guilty of Murther. We mest
with the ſame Account in Dion. Callius, l. 60.
(1) Ethick. ad Nicom. VIII. 13. Add. Oeconom. 1. 1. c. 5
Senec. De Ira, l. 3. c. 4. De Clement. I. 1. c. 18. Ego Epift. 49. Arrian. Epi&tet. I. 1. c. 13.
As

Chap II.
of the Maſter over his Servant.
387
As the other Rights of Fathers of Families, an equal Intereſt in their common Iſſue: and
hath been moderated and reſtrain'd by Nacional therefore if the Municipal Laws are filent in
Conſtitutions, ſo it hach happened to this Au this Point, the Father's Claim is as good as the
thority over the Slaves, which, in different Mother's (d ). But we do not think this Ar-
Countries, we find more or leſs reftrain’d. But gument of any Force ; having before made out
,
where it remains abſolute and unlimited, we that the original Right over the Child is in the
muft fuppofe it not to have been thus appointed Mother; and only transferr'd to the Father, ac-
by Civil Ordinances, but to have been paſs’d by, cording to the Tenour of the Matrimonial Co-
and left as it formerly ſtood, before the Erection venant.
of Common wealths. Yet it is obſervable, chat As for the other Difficulty ; fince, in a Con-
the Laws of ſome States do encourage the Cru. dition of perfect Slavery, not only the Works
eley of Maſters, and impoſe greater Hardſhips but the Perſons belong to the Mafter, their
on the Slaves, than che Law of Nature permits
, Children will likewiſe fall under his Dominion,
under the moſt abſolute Command. We have a as every thing elſe which they produce ( e ).
famous inſtance of chis, in the Roman Cuſtom, Now why the Maid's Maſter ſhould have a bet-
of dragging the whole family to Puniſhment, ter Title, in the Caſe, than the Man's, there
when the Maſter happened to be kill'd: Which are ſeveral Reaſons to be given. As firft, confi-
Caffius in Tacitus ( a ) endeavours to Defend, bydering the Life and Familiarity of Slaves, to
Arguments drawn from Uſe and Convenience. point out the true Father, mighe prove a Matter
The Emperor Adrian, in ſoine Meaſure, leſſen'd of Difficulty (f). Again, the Mother is, on
this Severity, by Decreeing, that upon ſuch a account of her Burtben, rendred for ſome time,
Misfortune, not all the Slaves ſhould be arraign'd unfit to perform her uſual Work; and conſe
for Murther, but thoſe only who were ſo near quently brings a Loſs and Prejudice to her Ma-
in the Houſe, as to be able to hear and appre- fter, which ought thus to be repair'd. To which
hend the Miſchief ( b ).
we may add the common Maxim, that Things
IX. About the Offſpring of Slaves, there are planted belong to the Proprietor of the Soil (2). If
ewo Points of Enquiry, whether it neceffarily the Maſter himſelf have Iflue by his Female
follows the Mother? And whether it aſſumes Slave, the Condition of it ſhall be ſuch, as either
the ſame Condition of Servitude ? As to the for. his Pleaſure, or the Laws of the Country thall
mer Queſtion, it is a Rule in the Roman Laws, determine. And by them likewiſe Judgment is
which holds of Slaves as well as of Beaſts that Par. to be paſs'd on a Child, which was Conceiv'd
sus fequitur ventrem (1), The Birth goes along with by the Mother, whilft in a State of Servility,
the Bearer. This Grotius (c) judgeth not to be alto- buc Born after ſhe had obtain'd her Freedom;
gether conſonant to the Law of Nature, in caſe or vice verſa. Tho' Humanity ever inclines to
the Father can, by ſufficient Tokens be diſco- the favourable ſide, and declares ( 3 ) for the
vered. For, ſays he, ſince we may obſerve, Child's Liberty (g).
even in ſome Brute Creatures, that the Sire, It is eaſy to fhew, that the Maſter doth no
as well as the Dam, expreſſeth a Care for the Injury to his Slave's Off-ſpring, (4) by dooming
Young; we may hence inter, that both have it to the ſame Subjection. For ſince the Mother
ز
Mr. Barbeyrac's NOTES on Chap. 3. $ 9.
(1) Partum Ancillæ Matris fequi conditionem, nec fatum Patris in hac Specie confiderari
, explorati juris eft, Cod.
Lib. ill. Tit. XXXII. De Rei vindicatione, Leg VII. See alſo Lib. VII. Tit.XVI. De liberali causå, Leg. XLII. And
about Beaſts, what is ſaid above, Lib. IV. Chap. VII. 9.4.
{ 2 ) See above in B. 4. c 7. f. 5.
(3) The Roman Law
agrees here with the Laws of Humanity; for it requires, that the Child be Free, if the Mother be
ſo when it is born, tho' the conceived it, when ſhe was a Slave; and on the contrary, if ſhe were Free, when ſhe conceiv'd,
the Child was Free, tho' the Mother was a Slave, when it was born ; it being unreaſonable, that the Child (as Fuftinian
ſays ) ſhould ſuffer the Misfortune which happened to the Mother, while it was in her Womb. Sufficit autem liberam
fuifle Matrem eo tempore, quo nafcitur, licet ancilla conceperit
. Et è contrario, fi libera conceperit, deinde ancilla falta pariat,
placuit, eum, qui nafcitur, liberum nafci : quia non debet calamitas Matris ei nocere, qui in ventre eft. Much more, when
the Mother was a Slave at the time of Conception, if ſhe was made free while ſhe was big, and again became a Slave, the
Child muſt be accounted Free. Ex bis illud quæfitum eft, fe ancilla prægnans manumiſa fit, deinde ancilla poſtea fatta pe-
perit, liberum, an fervum pariat? Et Martianus probat, liberum naſci : ſufficit enim ei, qui in utero ejt, liberam Matrem
vel medio tempore habuiffe, ut liber nafcatur. Quod & verum eft. Inditit. Lib. I. Tit. IV. De Ingenuis .
(4) Mr. Buddeus (in his Philof. Pract, Part II. Chap. IV. Seet XII. Q: 5. and Chap: V. Seet VI. Q. 12.) affirms,
That this is unjuſt, and that the Children that are fo born, are obliged only to acknowledge him their Mother's Ma-
fer. I ſhall leave it to the Reader to examine whether the Reafons of that able Profeſſor are ſtrong enough to over-
throw Grotius's and our Authors ; cſpecially as this
laſt has laid them down with a Temper in his Abridgment of the Du-
ties of a Man, and Citizen, Lib. II. Chap. IV. 5. 6. where he fays, It is evident, that theſe Children of a Slave being reduced
to Servitude by their unhappy Birth, their Maſter can have no reaſon to uſe them worſe, than perpetual Mercenary Servants.
(b) In Spartian. Add. L.29. t. 5. D. De Senatus Conſulto Silaniano Conf. 1 Sam. XXVI.16. The
put out the Eyes of their slaves, as we are told by Herodotus (Melpom. in the Begioning.) (c) L.2. c. 5. f. 29.
()) Vid. Edif. Rey. Theodoric. c. 67. (e) Add. Grot, ad Exod. XXI. 4. whete he ſhews, that the Marriages of
Slaves were difannull’d at the Pleaſure of their Maſters. Xenophon (Oeconom.) laying it down for one Rule, that ser-
Vants ſhould not wed without their Maſter's Conſent, gives this Reaſon for it; becauſe As thoſe who are Good, do by this
means grow more Loving and Faithful, so thoſe who aré Bad, improve in Knavery, (f) Vid Plaut. Caſin.
(g) Plato
thus difpofèth of Servile Iflue, (LL. 1. 11. p. 975. A.) If a Female Slave bear a Child to another Slave, or to a proper Free-
man, or to one that hath been ſet at Liberty, the Child ſhall belong to her Maſter. If a Mafter, or a Miftrefs, be convicted
of having a Child
their proper Slave, the Father and the Child ſhall, in the former Cafe, be driven to another Country by
the Woman ; in the latter case, the Mother and the Child ſhall be Baniſh’d by the Magiſtrates.
hath
(a) Ann, XIV.
Scythians
388
Of Deſpotical Power, or the Authority
Book VI.

· Liberty is
C
hath nothing of her own, 'tis impoſſible The petual Certainty of Maintenance, for which
Thould maintain the Child, but with her Maſter's choſe, who work by the Hire, are often at a
Goods. And in as much as the Maſter is o. Loſs, either through wani of Buſineſs, or willful
bliged to furniſh ſuch an Infant with Food, and Idleneſs (c): Some have thought, and not al-
other Neceſſaries, long before he is capable of together without reaſon, that the ( ") Prohibi
.
making any Requital for his Labour, and ſince, tion of Slavery, among Chriſtians, hath chiefly
when ne firſt begins to Work, his Pains are occafion'd that Flood of thieving Vagrants, and
ſcarce equivalent to his daily Maintenance, he iturdy Beggars, which is uſually complain’d of.
cannot eſcape Servitude, unleſs by the Matter's Tho' there are States which have, in a great
particular Diſpenſation. And this Reaſon will meafure, put a ſtop to this Nuiſance by Erecting
hold, not only whilſt he is ſuppoſed to continue, publick Work houſes, and compelling lazy Ral
as it were, in the Maſter's Debt, but ever after ; cals to a Life of Honeſty and Induttry (d).
becauſe the Condition, on which the Maſter Mr. Hobbes, in his Bock De Cive (e), ftating
firſt undertook to keep him, was, that he ſhould the Difference between Liberty and Servitude,
perform perpetual Service : and, to this Condi- expreſſech himſelf to this purpoſe.
tion, he is preſumed to have yielded a tacit nothing elſe but the abſence of all impedi.
Conſent; eſpecially if it be conſider'd, that ments of Motion. Thoſe Impediments may
his very Birth is owing to his Maſter's Favour; ' be either Natural and External, or Moral and
who, by the Right of War, might have put his Arbitrary. With regard to the former Kind,
Parents to death. And as for that Natural Free Things are ſaid to be more or leſs Free, as
dom, with which all Men are in common inveft they have more or leſs ſpace to move in ; as a
ed, it then only takes place, when no A&t or "Man in a wide Priſon, is more at liberty,
Agreement of our ſelves or others, hath rendred than another under cloſe Confinement. And
us obnoxious to a State of Inferiority.
thus a Perſon may be Free to proceed one
And thus we ſeem to have clearly ſtated the way, and not Free to proceed another: as
Caſe of Children, born to perfe& Slaves, ſuch when a Traveller is hindred, by Hedges and
as were Captives in War, and thence reduced to • Mounds, from diverting out of the Road, into
this Condition. As for thoſe of the other Kind, the Corn-fields or Vineyards. This Species of
who engage themſelves in Servitude by their Liberty may be term’d Phyſical or Corporal; in
own free Motion; if there be no expreſs Law which Senſe, all Servants and Subjects are
or Covenant to the contrary, Equity and com • Free, who do not ſuffer Bonds or Impriſon-
mon Favour incline to this Reſolution concern ment. Moral Impediments do not abſolutely
ing them; that the Food of their future liſue hinder Motion but by Accident ; that is, by
is contained, or implied in their own Mainte our intervening Choice, whilſt we judge it
nance, which their Maſter owes them as a juſt better for us to abſtain from ſuch a Motion,
Debt: and conſequently their Children are not than to perform it. Thus a Paſſenger in a
involv'd in a Neceſſity of Slavery (a).
Ship, is not reſtrain'd from throwing himſelf
X. Let us, in the next place, examine what • headlong into the Sea; yet, if he be in his
Inconveniences do really attend a State of Ser Senſes, he'll think a ſafe Cabin preferable to
vitude, which, in the Opinion of moſt People, a Leap amongſt the Waves. In like manner,
paſſeth for the greateſt Miſery incident to Man whatever Penalties are denounc'd againſt any
kind, and ſuch, as one ought rather to die than Adion, a Man, that fears not the Danger,
endure (b). The full Sum and Notion, then, ' fticks not to break the Command. And this
of Perſonal Servitude, amounts to this ; that a ' is that intrinſick Liberty of the Will, inſepara-
Man, for the ſake of Food, and the other Ne ble from it, which Slaves no leſs than all other
ceſſaries of Life, ſhall lie under an Obligation to kind of Subjects enjoy. We muſt ſearch there.
perpetual Labour ; whchif taken in its true Natu fore elſewhere to diſcover a Difference. And
ral Extent, extracted from the barbarous Cruel- ' firſt, altho' ſcarce any Maſter is ſo ſevere, as
ty of ſome Maſters, and the unreaſonable Rigour to hinder his Servant from doing thoſe things,
of fome Laws, doth not imply any extravagant which are neceſſary for the Preſervation of
Degree of Hardſhip and Severity. For that
' his Life and Health, which are the chief Ob-
perpetual Obligation is well requited by a per jects and Purſuits of Human Care; yet Frees
C
Mr. Barbeyrac's NOTES on Chap. 3. g 10.
(1) There are ſome that affirm, that Slavery is quite aboliſh'd among Chriſtians. Mr. Thomafius ſays, he has proved it
in his publick Le&tures
on the Inſtitutes (Not. in Huber. de Jure Civitatis, p. 396.) and he publiſh'd in 1901. a Diſcourſe
,
De Hominibus propriis Germanorum, which proves it in reſpect to Germany, where he affirms nevertheleſs, that the
manner of Servitude hath been different from the Cuſtoms of the Romans. Mr. Hertius has a Diſcourſe alſo upon theſe
(Homines proprii) in Tom. II, of his Comment, and Opuſcula.
(a) Comp. Bæcler. ad Grot. l. 2. c. 5. 8. 29 (b) Roſar. Perſic. Sadi. Cap. 1. It is better to fit down feeding on one's
own Bread, than to ſtand waiting at another's Table in a Golden Girdle.
(c) Vid. Arrian. Epicter. I. 3. c. 26. p. 257.
Lucaa Phars, l. 3. W. 152.
Non tibi, ſed domino gravis eft, quæ feroit egeſtas. Want in a Slave turns to the Maſter's loſs.
Add. Grot. 1. 2. c. 5. 8. 27. (d) Add. Bodin. De Repub. 1. 1.6. 4. Busbeq. Epift. 3. p. 118.
(c) C. IX. 8. 9.
•
men

Chap 11 I.
Of the Maſter over bis Servant. 0 389
a
6
• men are, for the most part, allow'd to provide him for what Right the Slave before trans-
for themſelves, in theſe relpeets, with more ferr’ú on his Maſter, the Mafter may reſtore
• Plenty and more Eaſe, than Perſons of that to him again. Tho' it be cuſtomary, in many
low precarious Condition, whoſe Conſtitution States, that the Slave, thus releas'd, ſhall ſtill
often ſuffers by their hard Fare, and unreaſo- yield ſome kind of Duty and Reverence to his
nable Labour ( 2 ). Again, Free-men do in Maſter (c). In caſe the Maſter own'd a Supe-
this ſhew their eminent Advantage above rior, he cannot otherwiſe beſtow Liberty, than
Slaves, that they are admitted to the more in a way conſiſtent with the Rights of that Su-
Honourable Offices in Families and Common- perior, and with che publick Laws. Secondly, if
wealths; and that they poſſeſs Superfluities in his Maſter Renounce and Diſcard him or which,
far larger Meaſure. Both which Privileges in Commonwealths, is reckond a kind of Pus
are wonderfully pleaſing, to Men of lofty niſhment ; and differs not from Manumiſſion or
Spirits and Deſigns. For the Trouble of Buſi- formal conferring of Liberty, in the Effect, buç
neſs is ſoftend and ſweeten’d by the Honour only in the Manner and Deſign. In boch Caſes,
and Credit of an Employment; and to ſwim the Maſter reſigns his Right; but in the former
in Affluence, is ever efteem'd a moſt valuable by way of Reward, in the latter by way of
Happinefs ; as well, becauſe we ſeem by.chis Puniſhment : for that it is a real Grievance and
. means, to be well provided for, againſt all fu- AMi&tion to loſe a Wealthy and Convenienc
cure Accidents and Occaſions; as becauſe our Maſter, even Free Servants are often ſenſible.
*Life will thus paſs the more ſmoothly, and we Thirdly, In caſe a Slave be made a Caprive,
• ſhall have larger Ability of doing Kindneſſes, whether alone, or together with his Maſter, his
and gaining a numerous Party by our Bene- new Servicude excinguiſheth his old. But if
• fađions. But the main Diſtinction of all, is the Maſter be only made a Caprive, the Slave
this, that free Subjects are only engaged to obey falls into the ſame state and Condition as he
the Supreme Power, and the general Laws of would do, were his Maſter naturally Dead, at
the State, and fearing no Puniſhment, but what leaſt till ſuch time as the Maſter be reſtored to
is by them particularly denounced, in all other Liberty.
Liberty. Fourthly, a Slave may be releas'd Upon
things they follow their own Fancy with full Uncertainty of a ſucceeding Posſeſſor(a); as ſuppoſe
Delight and Satisfaction. But Slaves are obnox. his Matter dies without inaking over his Right
ious to the private Commands, and to the coer to any other; becauſe then he is under no En-
cive Power of their Fellow Subject, and are gagement of performing Service. For no Man
compell d to bear his Humour, tho' the moſt is ſuppoſed to ſtand Obliged, unleſs he can know
froward or imperious ; which is the greateſt the Perſon to whom the Debt is to be paid. But
Hardſhip, by reaſon of their near Abode, and whether a Man, thus releas’d, can claim the Pria
frequent Intercourſe with their Maſter. And vilege of a Free-Subject, in a Common wealth,
to render their Bondage ſtill more grievous, the is a Queſtion that the particular Laws and
publick Laws do feldom afford them Relief a Cuſtoms muſt determine Some tell us, that
gainſt their Maſter, unleſs in Caſes of moſt amongſt the Turks, the Act of fecting a Slave ac
barbarous Severity and Cruelty. 'I he more ſoft Liberty will hold good only againſt his old Ma-
and gentle à Man's Nature is, the more muſt ſter, but that any other Perſon may again com-
he be afflicted under theſe uneaſy Circumſtances pel him into Service. Another Caſe when a
(a). We may add, that the Yoak of Servitude Slave may be releas’d, Upon the Uncertainty of a
is much the more galling on account of Human ſucceeding Polelor, is, if his Maſter dye, either in
Pride; which encourages every Man to think a Natural or Civil Senſe, without an Heir. For
himſelf worthy of Command; and thus when the the Goods of ſuch a Man are adjudg'd Derelict,
Slave efteemis himſelf altogecher as fit, if not fitter, and paſs to the firſt Seizer, yet his slave cannot
to bear Rule than his Maſter, he fancies that For be forced into a new Service by the ſame Claim.
tune hath done him á mightý Injury, and de- Things may be laid hold on by any Man, if no
hres on any Terms to change his Condition (b). other hath already a Right over them : but Perm
XI. A Slave may obtain Freedom ſeveral fons cannot be challeng’d by any other Title,
ways. As first, if his Mafter fortnally Releaſe than what ariſeth from their own Conſent, or
Mr. Barbeyrat's NOTES on Chap. 3. §. 10.
(2) It is a Saying of Tully (De Orator. 1 2. c. 6.) Mihi Liber eſſe non videtur qui non aliquando nihil agit. I don't
look upon him as properly Free, who hath not ſometimes the Privilege of doing nothing.
(a) Yet there is a great Difference in Maſters. In Terence (Eunuch. A&. 3. Scen. 2. v. 33.) a Gueſs is made from
the Slave, that his Malter is poor and miſerable. But on the other ſide, as Juvenal obſerves (Sát. 5. v. 66.)
Maxima quaque domus ſervis eft plena ſuperbis ; Great Families are plagued with haughty Slaves.
(b) In Xenophon (Cyropad. I. 8.) Chryſantas ſeems to eſtabliſh ſome ſuch kind of Difference. In the same manner,
ſays he, as swe think it reaſonable to be obey'd by thoſe under our Command; let us yield a ready Obedience where it is our
Duty. Yet there should be this Difference between Subjects (as we are) and Slaves, that whereas thoſe are compelled to their
Labour and Service, we ought to perform our Devoirs with Readineſs and willing Compliance. Add Dion. Chryfoft. Orat. 14.
(c) Lex. Wiſigoth. b. 5. t. 6. c. 17, Ego 21. (d) Vid. Grot. 1. 2. C. 9. f. 1.
De Servitate.
from

390
Of Deſpotical Power, or the Authority
Book VI.
from fome antecedent Deed, in which they are (1) or on account of any preceeding Offence,
concern'd. And therefore, that Right being now is thrown into Irons, or otherwiſe deprived of
extinct, which the Vi&or bý War obtain'd over Corporal Liberty, he is by this Ad releas'd
his Slave, Natural Liberty returns : And this
, from his former obligation by Compact ; for his
altho' the Diſpoſition of the Perſon ſhould make Maſter is ſuppoſed to take off his Moral Bonds
,
it more proper for him to continue in Servicude; bỹ thus impoſing Natural. It is inconſiſtent with
for the Fitneſs of a Man's Temper, or Inclina, Covenant, not to believe the Party Covenan,
tion can by no means give another a Right of ting, and that Faith cannot be violated which
dragging him into Bondage, nor is it, always, was not given. And hence a Slave under this
lawful for me to force a Perſon upon that which Treament may, if Opportunity favour him,
is really for his Intereſt and Advantage. Fifthly, without incurring the leaſt Guilt, make his
When a Slave, not by way of Puniſhment Eſcape.
Mr. Barbeyrac's NOTES on Chap. 3. Sri
(1) We muſt take great notice of this Reftri&tion, for it may ſerve to rectify Mr. Hobbes's Notions, eſpecially if he
were of that Opinion, which another Author of that Nation charges him with. Richard Cumberland, De Legibus Natura,
Chap. IX. 5 14. See what has been ſaid above, Lib. 3. Cap. 6. $ 9. and Chap. 7. $ 5. Our Authos has borrow'd all
this Paragraph of Hobbes.

OF

Chap. I.
453
105
S10 190
euobilam di
sigila yd gitt
bidaiwgoon
bru.
Samuel Puffendorf
ta muito 10 to
mit look
OF THE
en dat een toob
LAW of NATURE
Coque
FA AND
od
N A TI ON S.
yd tila
wohl W
300 50
venants.
Bolig
BOOK VII.
ans
1 Son
10 Doisnuid is baie
shoo DP
С на Р.
bus no
01006
one vois qisibnen Luftiniai bat
miliste of the Cauſes and Motives inducing Men to eſtabliſh Civil Societies.
Pn nuo
znots bonbouni 975 20 10o2 oldu -LOT 1919 Dimintame 10 do
soola
I. Introdu&tion,
teculo Visus id sem
VII. The true Origine of Civil Government.
IL Man naturally
naturally loves himself more than Com. VIII. The bare Reverence of the Law of Nature
,
274
000 bo
not fufficient to ſecure the peace of Man-
III. Tet the Love of Company does not immedi-
kind:
i brs: 19
ately infer the Love of Civil Society. IX. Nor the fole force of Arbitrators; or of Co-
W. Many Vices in Man
prejudicial tó Civil Union.
AM to 10
V. Whether Civil States aroſe in the World by X. Difference in Opinion greatly prejudicial to the
Natural Conſequence.
Peace of the World.
Y VI.Whether Indulgence was the Cause of Civil XI. Men need a much more ſevere Reſtraint, than
no Eftabliſhments.
the Law of Nature only. Ons : 901191.!
visous
So bass a bou IA
Roat bots too odois barvois ?
Darvi Roto
FTER thoſe which are term'd Primary II. And here the Generality have recourſe to
Societies (1), we come now to treat of the peculiar Frame of human Nature, by which
a Common-wealth t, which is the laft Man is ſuppoſed to be ſo ſtrongly inclined to
and moſt perfect Form of Society, and a Civil State, that he would neither be willing
that whereby the beſt Proviſion is made for the nor able to live without it. This they confirm
Safety of Mankind, ſince their Increafe. What by Arguments drawn chiefly from the Miſeries
induced Men to quit their primitive way of living, of a ſeparate Life; the wearifom Condition of
in ſeparate Families, will be evident, upon our Solitude ; the Ends of Speech, which would be
Enquiry into the Nature of Civil Society, and loft without
Company, the Natural Defire of
che Diſpoſition of thoſe who compoſe it. Før Converſation ; the Advantage of uniting toge-
the better Illuſtration of which, it will be of ther; and the like: which we have before(a)
great Uſe to examine the Accounts that are com- alledg’d, to prove Man a Sociable Creature from
monly gives of this Matter. Vieldo vstu: 5 31 313H
@ the Relation that there is between Society and
din
A
Moni vairo 5110 or gerti bati 2010
(1) See above in B. 6. c. 1. f. 1.1 Brost od
Sirid ont + Civitas, aid ai.
(«) B. 2. c. 3. f. 15. This is
not the immediate Cauſe of the forming of Civil Societies, as it appears by what our Author ſays at the third
Section, and in the long Note on the
ſeventh yet it is certain, that Mankind naturally love
Society : and he himſelf
proves it in his ſecond Book. But if any one has a mind to ſee a larger and more exa&t account of this Matter, as alſo
fome. Thoughts quite new, and
expreſs'd in the moſt lively and juſteft manner in the World; he need only read a Book
dans les Converſations qui roulen; fur les masieres les plus importantes. p. 94. Soc. Mr, Barbeyrac's I. Note upon this Se£t. p.
the
212
31452
G88
454
Of the Cauſes and Motives inducing Men
Book VII.
6
nay, ſuch as make a Profeſſion of diverting
tance ; preferable to what he could expect from a lhewing their Wit, to recommend them-
This he en 6
Follies of other Men, in Caſes lupou never (S Inſtance, did Matters go never to well with
Mind is either
the Nature of Man. Mr. Hobbes (1), on the
" Therefore, for any one to deride Others, is,
contrary repreſents Man as a ſelfiſh Animal
, in effe&, to declare his Contempt of them in
whoſe Kindneſs chiefly terminates in his own
reſpect of himſelf, and a certain malicious
Perſon and Intereft (a), and whofe Love for So.
• Deſign of ſetting off his own Luſtre by their
ciecy and other Men is Secondary, being enter-
Blemiſhes. Even with them who keep within
tain'd with a view of ſerving his own Pleaſure
" the Bounds of innocent Mirth and inoffenſive
or Profit by their Affiſtance (2). For no one Raillery, there is none but aims more at his
(as he argues) was ever determind in the Choice
own Satisfaction, than that of other Men:
he made of anothers Company, by the bare Con-
fideration of his being a Man, but by ſome Pro- thoſe about them, mean nothing more than,
fpect of Honour or
the . Beſidesmoft Men
have naturally an itching Deſire to be examin-
deavours to illuſtrate, by Deduction from parti. ing, cenſuring and expoſing the Words and
cular Societies. * They who unite in a Body A&ions of others; which, if they have fre
for the promoting of Traffick, are led to it quent Occaſion of gratifying, they look upon
• purely by the Hopes of advancing their Goods
it, as a notable Ingredient in the Pleaſure and
more in Conjunētion with others, than they Happineſs of Life. And this Humour 'cis a
• could by their privace Induſtry : and what difficut thing, to." ſuppreſs; api keep within
ever diſappoints, or puts an end to theſe Compaſs, by the Proviſion made againſt it by
• Hopes, prevails with all, but Fools or Mad Laws and Penalties (b). Laftly, ſuppoſe ſome,
men, to put an end likewiſe to the Society. that pretend to more Knowledge and Wiſdom
· So where any are Joint Commiſſioners in a than ordinary, met together to confer aboue
• publick Office, they contra, a ſort of Law- Matters of Learning; each Man is for preſcri-
Friendſhip, implying in it more of mutual Fear bing his own Opinion to the reſt, and finding
sthan Love; and conſiſting rather in Forms his Abilities or Authority diſputed, reſents it
. and Ceremonies, than in any fincere Union of as the moft Heinous Affront. Whence it
• Minds, and Combination of Affections. So plainly appears, that all Society or Intercourſe,
that ſuch Men may fometimes bandy together • between ſuch Men, is founded on the Deſign
• in a Party or Fa&ion, for the ſake of carry either of ſupplying their Wants,
or of gratify-
ring on ſome private Ends; but to a generous ing their Vanity, or of finding Diverſion and
and dif-intereſted Friendſhip they are com • Entertainment. The fame is aſſerted upon
• monly utter Strangers. Nor will any one of is another Argument, taken from the Definition
• theſe, if he dare rely on his own ſingle of the Will, and of what is Good, Honourable
Strength for accompliſhing his Aims, ever trou • and Profitable. Societies are introduced among
ble himſelf about Aſſociates. Again, when Men by their Voluntary Confent. Now where
Perſons meet upon the common Deſign of there is an Ad of the Will, there is of Neceflity
paſhing the Time away pleaſantly, 'tis a an Object of that Act; which Object is always
mighty
hey Satisfaction that each takes in making ſome ſuppoſed Good to the
ſome ſuppoſed Good to the Agent. For be a
• himſelf and the Company merry: in which he thing never ſo good in it ſelf, yet if it be not
cannot ſucceed without expoſing the Faults or . fo likewiſe with reſpect to us, it loſes all its
* Influence on our Powers of aging: Thus, for
6 reach would
allow him to cenſure that in Another, of which the King of Perſia, I ſhould not look upon my
he was not himſelf acquitted in his own Con- felf as having and she
any Share in his good Fortune.
• ſcience : according to Juvenals Rule ;
• All Good is attended with ſome Pleaſure, ei-
• ther of the Mind alone, or of the Body in Con.
Loripedem rectus derideat, Æthiopen albus (3). jun&ion with it. That of the
vir ons 18. Er
the Paſſion of Glory, or what may ultimately
• Let him cry filthy Black whoſe Skin is white; be reſolv'd into fuch a Principle. Thac which
And Bandy-legs; who treads himſelf upright.) affects the Body is Profit: which proves all
Mr. Taté. Society to have firft commenced upon the
vorio




to
All
(1) De Cive, c. 1. f. 2. W
(a) Ifans, Orat. 2. No Man values others more than himſelf. Euripides (Medea)
v. 85, 86.
In this firft Maxim of Philoſophy : Do not frila sta
Bu Mode Oropa
That Love begins at Home
toidu lofteriuili 19135d sels
Iſocrates, de Pace, p. 285. Ed. Pariſ
. In my opinion, 'tis the cammon Defire of Mankind to advance their own Profit ; and
their common Labour to poſlefs more than thoſe about them. (2) Here we may obſerve, as well as in other places, that
our Author agrees with the Sentiments of Mr. Hobbes.
(3) Sat. 2. v. 23.
(6) Arrian. Epi&tet. 1. 3. c. 2. ' Suppoſe in a Diſpute who was the chief Philofopher,
One thould tell you, he heard a judicious Friend ſay, that you were certainly the Man : Would not your Heart ſwe!!
: with the ample Teftimony, and enlarge its Dimenfions at the blaft of Fame ? But what if another Ill-natured Crio
tick thould
give ſuch Inftru&tions as theſe ; Why do you loſe your time in bearing this Pretender to Wiſdom? What does
be know ? Perhaps he has learnt bis firf Principles, but I will venture him for getting a Step farther? Why, You'd be
• Thunder-Atruck with this mortifying Sound, you'd be put to't to keep your Colour ; and would have only Spirit
enough to ſay, I'll flew him what a Man be has affronted, and what a Philoſopher be bas under-rated. Add. Cbarrane
de la Sageſſe. l. 1. c. 36. f. 6.

nh
Score,

Chap. I.
455
to eſtabliſh Civil Societies.
6
Score, either of Profit or Glory : that is, upon as in Time, is antecedent to a Commonwealth ; and as
- account of Love to our ſelves, excluſive of all the Propagation of Race is the moſt common Labour of
• Others. However 'cis certain, that Glory can- Animal Beings. This is what Mr. Hobbes proves in
not be a laſting Foundation of Society for any the following manner. Civil Society conſiſts not
number of Men; becauſe, in Glory, as in in a bare Aſſembly of Men; but in an Aſſembly
Honour, where the Title to it is General, combined together by mucual Leagues and Co-
there is in effect no Title at all: the very venants. The Force of theſe Covenants, igno-
Nature of Glory conſiſting in the Opinion of rant People and Infants do not at all apprehend;
s ſome Advantage (1), which, upon Compari, nor is their Uſe diſcover'd by thoſe, who never
fon, we appear to have above the reſt of the felt the Miſchief of living without them. So
World. Neither does our joining in Society that the former are utterly incapable of Inſti-
with Others give us any farther Occaſion of tuting a Civil State, as being ignorant of its Na-
Glory, than our Alliance with Men of great ture : the latter are wholly regardleſs of it, as not
and extraordinary Virtues, may ſeem to argue being any way ſenſible of its Benefit; or at beſt
a Parity of Worth in our ſelves. For, other- they live under it in a manner, that ceſtifies
wiſe, a Man is valued in Proportion to that no Eſteem of its Excellence and Worth. And
• Ability he has of ſupplying his own Wants; therefore all Men, being born Infants, are, by
without depending on the Aid of his Fellows Birth, unqualified for Civil Society, and ſo a
(2). It muſt be confeſſed, that by mutual great Number of them remain to their dying
Affiſtance the Good of Human Life is highly Day: and the reſt are formed and adapted to
promoted. Yet to have the Service of other it, by the Force of Diſcipline, hot of Nature.
Men at our Command, would ſeem much Neither is the Crediс of this Doctrine ſhaken
more eaſy and agreeable : As amongſt the other by that known Maxim of Ariſtotle, chat Man is
Conveniences and Helps of Living, that is ſtill Born, or is by Nature, a Political Creature
. For,
prized above the reſt, which ſerves to more ſometimes, affirming a thing to be ſuch or fuch
Purpoſes, and is purchas'd, or preſerv'd with by Nature, we denore it to be actually endow'd
• Jefs Coft and Trouble. Whence we may con: with ſome Quality, without any antecedent
(clude, for certain, that Man would be more Act of his own, or of any one elſe, by which
inclin'd to Empire than to Society ; that is, the Quality might be introduced. In which
would much rather command abſolutely, being Senſe, a Fiſh is endued with the Faculty of
himſelf exempted from all Obedience, than be Swimming, a Bird of Flying, and an Oak of
oblig'd to any ſuch Exchange of good Offices, bearing Acorns. Sometimes,
the fame Expreſ-
as ſeems to be required in a ſociable Life: fion ſignifies a Fitneſs in the Thing, to receive
· were it not that he is reſtrain'd from a&ing fome Perfection by Culture and Diſcipline; the
after ſuch an arbitrary manner, by the Dan- Reception of which Nature ſeems to intend, or
ger which he apprehends from ſo violent Re at leaſt to approve, as agreeable, or, however,
ſolutions (a).
no ways repugnant to ics Temper and Frame.
III. But altho' it cannot from hence be con Thus a Horſe has the Natural Faculty of pran-
cluded, (as we have before obfervid (3),) that cing, which an Aſs has not ; a Parrot of pracing;
Man is not by Nature a ſociable Creature; yet a Field of bearing Corn, and a Hill Vines ; a
allowing him a Natural Deſire of Society, ſince Man of diſcourſing, and of learning divers Arts
this may be gratified by the primary Societies and Sciences : In which Senſe, alſo, we ſhall
already deſcribed, this infers not his Deſire of hereafter demonſtrate Him to be a Political Crea-
Civil Society, any more than his general Love ture, notwithſtanding his being born an Infant :
of Imployment beſpeaks his Affection for that ſince we are wont to take our Meaſure of what
of a Scholar, in particular. (b) Ariſtotle ſays, does, (c) or does not, agree to Man by Nature,
That Man may be rather term'd a Conjugal Anic from what he appears to be in his grown Eſtate,
mal than a Civil; as a Family, in Neceſity as well and under his full Uſe of Reaſon (4). Ariſtotle
<
a
our Profit,
(1) Sec B. 8. c. 4. f. 11.
(2) See the Hiſtory of Calviſius Sabinus in Seneca's Epift. 27.
(a) Arrian. Epiftet. 1. 3. c. 21. ' No Creature is engaged with ſo deep an Affection to another’s Perſon, as to his
own Profit : whatever ſtands in the way of this, whether Father, or Brother, or Son, or Lover, or Beloved, he
hates and reje&ts with Curſes and Scorn. For ſo has Nature appointed, that the ſtrongeſt Charm ſhould be our own
Intereſt
. This is our Father, our Brother, our Kinſman, our GʻOD. Wherefore if we refer to one and the fame End
our Piety, our Honeſty, our Country, our Parents and our Friends; all are fecured. But if we meaſure
our Profit by one Standard ; and our Friends, our Country, our Relatiotis, our Juſtice it ſelf by another ; in this
Caſe, Profit turns the Scale, and all other Conſiderations ſink and are out-weighed. For I and Mine, are words
which never fail to draw the Animal Nature after their Charm. Did you never obſerve (ſays he a little before)
Whelps playing and fawning upon each other as the very Patterns of Love and Affe&tron? But would you know
how long-lived this Endearment is ? The Experiment will coſt you no more than a Bone. Tully, Off. 3. That every Man
fbould procure the Neceſities of Life, for himſelf rather than any beſides, is an allow'd Privilege, and ſuch as natural In-
clination does by no means oppoſe. (3) B. 2. c. 2. 1. ;, &c. and č. 3. S. 16, &c.
(6) ad Nicom. 1. 8. c. 14.
Vid. Digby de Origine Mundi, c. 9. 1. 8, &c.
(c) Vid. Cumberland de LL. Nat. c. 2: f. 2.
(4) That is (according to our Author's own Obſervation) that the Words by Nature, do not here import the actual
Exiſtence of ſome Quality in a thing, with which it is endow'd by Nature, independent of any antecedent A& or Ope-
ration of his own, or of any other elſe ; but only an aptneſs or Diſpoſition to receive certain Perfe&tions, by Improve-
ment and Education, with which Nature deſigns to adorn it, or which at leaſt ſhe ſeems to approve of, as being
agrecable, or however not contrary to its Make and Conftitution. Beſides, we muſt obſerve, that 'Ariftotle ſometimes
ules the words Swv momsTixdy in a large and general Senſe, to denote fimply a ſociable Creature, or one made
for So-
ciety, and not ftriatly for ſuch a one as has a natural Inclination for Society, and is exa&ly by Nature framed and fitted
for it. The word sometimes is an Addition of mine : I know not whether I have in this cioſely followed my Author,
ſays
992
G g 2
456
Of the Caules and Motives inducing Men
Book VII.

per-
ز
ſays in the ſame Work (a), that a Man is by Na. make his own private Satisfaction and Intereft
ture a Political Creature, and therefore would defore the Scope of all his Axions. Some weighty
the Company of Orbers, though he did not ſtand in need Motives there muſt needs have been, and fuck
of their Aſiſtance. But now his Affection for Civil as amounted almoſt to Neceflity, that could
Government can never be inferr’d from the bare ſwade him to overcome theſe ſo very foothing
Deſire of Company ; ſince this, as was obſerv'd, Defires
. Man, therefore, firſt embraced Civil
may be equally gratified by Primary Societies
, Society, not as led to it by the Bials of Nature,
ſuch as may well be ſuppos'd without admitting but as driven by the Fear of greater Evils. The
a Common-wealth. So again, the Philoſopher name of Political Creatures, or good Members of
(b) proves Man to be a Political Creature from the a Stare, may be truly applied to thoſe who pro-
Reaſons of Speech, which elſe had been aflign'd mote the Common Welfare to the utmoſt of their
him to no Purpoſe: whereas, the Uſe of Speech Power, and freely prefer it to any private
is not confia'd to a Commonwealth ; Men hav. Conſideration; nay, and even meaſure their
ing lived and converſed together, long before private ( 1 ) Good by the Relation it bears to
the Inſtitution of Government. In like manner, that of the Publick; and, laſtly, at all times
is to be underſtood that Paffage in his firſt Book demean themſelves, with Kindneſs and Courteſy
of Ethics to Nicomachus (c): That Good may de- ro their Fellow-ſubjeâs (d). But no one, now,
ſerve the Name of Perfed, which appears to be Suf- is ſo little acquainted with Human Nature, as
ficient ; and that we call Sufficient, which anſwers not to know how ill-qualified the Generality
not only to the Wants of a ſingle Man in a ſolitary are for diſcharging ſuch a Part: it being evident
,
Life, but thoſe of our Parents, our Wife, our Children, that very few do acquit themſelves in all Points
our Friends and Fellow Subjects: 'Brudd QÚSH TOMTIxo's of their Duty ; chat Nothing, beſides the Fear
av bgarros, Becauſe Man is by Nature a Political Creature of Puniſhment, could keep the greater Number
And yet, there is room for the ſeveral Relations in any tolerable Order; and that very many
of Parents, Children, Wife and Friends, with- continue all their Life long, Impolitick Animals,
out ſuppoſing a Commonwealth.
which is the ſame thing, Evil Subjects.
iv. For the clearing up of this whole Matter, Nay, it may be affirm'd, that no Creature is
we ought to conſider, what that Condition is more fierce and unruly than Man, or expoſed
which Men enter into, upon their erecting a to more Failings, which tend to the Diſturbance
Civil State ; what Qualities they are which may of Society. Beafts ſometimes contend about
encicle them to the Name of Political Creatures; their Food; and then 'tis only in the Caſe of
and laſtly, what there is in their Frame and Scarcity: ſometimes, again, they enter the Lifts,
Conſtitution which ſeems (if we may lo ſpeak,) at the Inſtigation of their Luft, which yet has
to indiſpoſe them for a Civil Life. Firſt then, only its Seaſons of returning. But be they of
whoever enters into a Community, diveſts himſelf never ſo ſavage a Diſpoſition, they feldom ex-
of his natural Freedom, and puts himſelf under preſs it againſt their own Kind. Whereas Men
Government, which, amongft other things, com- quarrel with Men ; not only as excited by the
prehends the Power of Life and Death over him ; Stings of Hunger, and by a Luft ſo vigorous
together with Authority to enjoyn him ſome as never to be out of Seaſon; but by other
things to which he has an utter Averſion, and Vices and Paſſions, unknown to Beaſts, and of-
to prohibit others, for which he may have as ten repugnant in Nature one to the other. Of
ſtrong an Inclination : ſo that 'cis poſſible he theſe, the chief are an endleſs Thirſt after
may often, in Obedience to this Authority, be Things ſuperfluous (e), and Ambition, the moſt
oblig'd to ſacrifice his private Good to that of pernicious of all Evils ; of which, as no Crea-
the publick. Whereas, were Man to follow his ture ſeems to have any Senſe, excepting Man;
natural Inclinations, he would be ſubject to no ſo He has the moſt lively and tender Senſe ima.
Body, but live wholly at his Diſcretion, and ginable : while, in the mean time, 'tis the Pri-
or,
but thus he ought to have expreſs’d himſelf at leaſt : For in the Paſſage which he himſelf has quoted in the beginning
of his Paragraph, it evidently appears that wor Torstinòr is a Creature made for Civil Society, ſince 'tis opposid to
Swey guys asinòn, or a Creature made for the Society of Marriage : part of Mr. Barbeyrac's third Note on this Se&tion, p.
214.
(a) L. 3. c. 8. p. 345.
(b) Polit. I. 1. c. 2.
(c) C. 5.
(1) That is to be underſtood in a negative Senfe
, and not always in a Pofitive ; I mean, that if a thing is but in the
leaft prejudicial to the Welfare of the State, a Subje&t ought to forbear doing it, what private Advantage foever hé
might make of it to himſelf. But for all that, there may be ſome things that a particular Member may make an Ad-
vantage of, which are neither prejudicial nor ferviceable to the State ; and in that Cafe, why ſhould he not mind his
private Intereſt? 'Tis in this Senſe, that we muſt take the following Paſſage of Cicero de Offic. Lib. III. Chap. XXVII
poteft autem quod inutile Reipublice fit, id cuique civi utile effe? Can a good Citizen think that advantageous to himſelf,
that is prejudicial to the State ? Mr. Rarbeyrac's firſt Note on this Section, p. 215.
(d) Arrian. Epiftet. I. 2. c. 10. Wilt then is the Duty of a good Citizen? That be meaſure nothing with reſpe&t to his
own private Advantage; that be conſult about nothing, as if releasʼd and disfranchisºd from the rest of his Kind. But,
that he fos bebave himself
, as the Hand or Foot, if they were endued with Reaſon, and underftood the Order of Nature, would
never entertain
any other Motion or Deſire, than what was dire&ted to the good of the whole Body. Herodotus obferves
of
the Perſians (Clio.) That thoſe who facrificed amongſt them, did not put up Petitions for themſelves and their own
private Happineſs; but in behalf of the whole Nation, and of the King in chief.
Love of Money, and afterwards, that of Empire were the source of all our Miſchiefs. Covetoufneſs lubverted
• Fidelity, Probity, and other worthy Endowments of Soul ; introducing in their ſtead, Pride, Cruelty, Profanenes,
together with a common Sale and Market of all things. Ambition engaged its numerous Votaries to put up
· Colours ; to have one thing in their Mouth, and another in their mind; to meaſure Friendſhips and Enmities
not by Reality, but by Ådvantage ; and to endeavour more the keeping a good Face, than an honeft
6 Heart.
vilege
(e) Saluft (Catalin.). The
2

Chap. I.
457
to eſtabliſh Civil Societieso
as much as be , up ,
or ,
vilege of Brures to be moved at nothing, but bo- any Multitude, who are to unite in a Society
díly Sufferings. Add to this, that quick Reſent- o). So far it is therefore from true, that Man
ment of Injuries, and eager Deſire of Revenge ; is by Nature a Political Creature, or by Birth is
an Evil leſs common and leſs active in Bruces
, ficted for the Diſcharge of Civil Duties; that 'tis
Men purſue the can done, to train fome few
Ruin of each other with lo much Induſtry, by long Diſcipline, to a colerable Behaviour in
that of all the Miſchiefs to which Human Con- this Reſpect (d). Not to mention the Vices of
dition lies open, che moſt Part are owing to the vulgar Sort, (who are the greater Part of
their own Malicé. Nor may it unreaſonably Mankind,) ſo often enlarged upon by other Au-
be aſcribed to the peculiar Care of Divine Pro- thors (e). So that a thorough knowledge of
vidence, that Men advance to Maturity ſo much Human Malice and Fraud, in order to the a-
lower than Beaſts; to the End that they may, voiding and diſappointing them, makes up a
by length of time, be in ſome meaſure broken very conſiderable Part of Civil Prudence (f ).
of their fierceneſs and haughtineſs of Temper, From what has been ſaid, may be ſufficiently
and brought to an Accommodation with diffe- gather'd the Senſe and Import of this Expreſſion,
renc Difpofitions. Otherwiſe, ſuppoſing Man that Man is by Nature a Political Creature : by
to be put immediately in Poſſeſſion of his Full which is meant, not that all and each of us are
Strength, the Foreſt could ſhew nothing ſo un- fitted, by Nature, for ſuſtaining the Part of
craable (a). What Mr. Hobbes (6) obſerves
, good Citizens ; but that fome, at leaſt, by the
concerning the Genius of Mankind, is not im- Force of Inſtruction and Diſcipline, may be fo
pertinent to our preſent Argument : that All formed as to acquit themſelves well, under that
have a reſtleſs Defire after Power; not becauſe Character, and that ſince Men have increas'd
they really wiſh to be advancing ſtill to higher and multiplied, Civil Societies are abſolutely
Degrees of Command, or that they may not neceſſary to their Safety; for which as they are,
in their own Temper, be fatisfied with a mo- by a Natural Principle, engaged to provide, ſo
derate Portion of it, but becauſe they have no they have the ſame Natural Obligation to enter
way of being ſecured in the Poffeffion of what into Regular States and Governments, the chief
they already enjoy, but by farther Acquiſitions : Benefit of which Inſtitutions is, the Habitual
the old Stock being ever ſpending, and there. Exerciſe of an Orderly, Decent and Friendly
fore ever requiring new Supplies. And this Life.
End being accompliſh'd, there again ſucceeds a V. Hornius ( 8 ) calls a Common-wealth the
freſh Defire, either of Fame by new Conqueſts, Work of Nature, and accounts for its Rile in a
of Eaſe and ſenſual Pleaſure. Moreover, Natural way: As, that the firſt Pair, from whom
Competition for Riches, Honour, Command, deſcended the whole Race of Mankind, were
or any Prerogative and Power above Others, united by the Bonds of Conjugal Love, and their
inclines to Contention, Enmity and War: the Children by thoſe of Natural Affe&tion, to them
way, by which any one Competitor may arrive and to each other : that theſe Engagements
at his Hopes, lying through the Death or De. founded a Family, which by conſtant lacreaſe
feat of his Rival. It may farther be urged, that from new Births, with that Love of Society,
whereas in Brutes of all Kinds, there appears vi- implanted in Men by Nature, and improved by
fibly a great Affinity of Deſires and Propenfi- Neighbourhood and Alliance, at length furniſh d
ons; with us, there is not more Diverſity of out a Civil State: it being abſurd and ſenſeleſs
Men, than there is of Opinions and ways of to imagine, that Men were once diſpers’d in
living ; each of which is cry'd up, with a won Woods and Deſerts, and there led a Vagabond
derful Perverſneſs, by the ſeveral Patrons of Life like the Brutes about them. But admitting
them, in Preference to all beſides : a Thing the Origine of Common-wealths, according to
ſufficient, of it ſelf, to make Diſturbances in this Natural Account; yet to exclude all Com-
But
(a) See Proverbs XIII. 24. XXIII. 13. 14. Ecclef. XXX. 1, &c. 12. (6) Leviath. C. XI. (c) Euripid.
(Phaniſ. v. 502, 8900.)
If what is Good, or Beauteous always bore
The ſame conſpicuous Marks, to Mortal Eyes,
Men would be Friends, the World a peaceful Scene.
But Name and Species only join us now:
Differing in things, and claſhing in Deſires.
(d) Plato de LL. 1.6. p. 864 Ed. Wech. We, affirm Man to be a mild and tra&table Creature. And indeed, if, beſides
the Happineſs of Nature and Birth, He obtains the Benefit of Good Inſtitution, He becomes moft gentle, lovely and divine.
upon ill inſufficient Education, be grows the fiercefi Animal of all that the Earto breeds. Arift
. Pol
. 1. 1. c. 2. in fin.
4. Man, if rightly perfected, is the beft and nobleft of living Creatures, so, if eſtranged from Law and Juftice and Virtue,
he is the worſt and moji contemptible. Idem ad Nicom. 1. 2. c. 1. in fin. Tis not an indifferent Matter whether a Person
has been thus or thus accuftom’d from his Youth : but rather 'tis a Point of the greateſt Conſequence
, and uport which all de-
pends
. Ibid. 1. 7.6.7. in fin. A Man, left to himſelf, would do a thouſand times more Miſchiefs than a Beaft. Add. Senec.
Epift
. 103. Polyb. 1. 17. c. 13. As Men exceed other creatures in Craft and Cunning, ſo they may many ways render them-
ſelves the vileft of all that breath. Other Animals being govern'd wholly by bodily Pleaſure, are by that alone led into Fail-
ings and Diſorders: but Mankind, who are diftra&ted
with Variety of Opinions, offend
as often through Perverſeness of Fudg-
ment, or Rajhneſs of Thought, as through Frailty and Imperfe&tion of Nature. La&antius de Ira Dei, c i2. What could be
More fierce and cruet than Man,
if living under no Refraint of a Superior, he might evade or deſpiſe the Authority of Laws ?
Plutarch in Cicer. p. 884. D. Ed. Wech. Were Power added to Palion and Inclination, Man would be the wildeſt thing
(e) Add. Mornay deVer. Relig. Chriftiana, c. 16.
(f) See Bacon's Adv. of Learning
(g) De Civitate, 1. 1. c. 4. f. 6.
pacts,
living.
B. 8.c...

458
Of the Cauſes and Motives inducing Men
Book VII
one Body, the inconveniences attending ſepa-
pacts, and all other Motives from a Share in
their Inſtitution, is no leſs irrational than to ſay, rate Families might be removed, they hereupon
that becauſe a Seed grows up to a Tree, and thought it not ſufficient to agree together upon
becauſe a Tree is cut qut into Planks and Beams entring upon the ſame Covenant
, and ſubmitting
and theſe, rightly framed and compacted toge-
to the ſame common Power, unleſs, for their
ther, compole a Ship, therefore a Ship is the better Convenience and Security, they likewiſe
Work and Product of Nature ; withour allowing agreed to contract their Dwellings, and, for the
the Labour of the Artificer, or any other
parci fucure, confine them to the ſame place. And,
cular Cauſe, to conſpire in ere&ting that ſort of in this Senſe, are we to interpret thoſe Authors,
Fabrick. We therefore readily acknowledge it who ſuppoſe Men, from being diſpers’d about in
for falſe and fabulous, whatever is fancied of a the Woods, to have been afrerwards aſſembled
great Number of Men firſt aſſembled together, and united together by the firſt Founders of ci.
then diſpers’d into Woods and Deſerts, and after vil Government.
that reunited into one Common-wealth. But
VI. Some make the Wants and Neceſſities of
then their Opinion is no better grounded, who Men to be the principal Cauſe of their fram.
ſuppoſe Mankind, from the primitive Couple, ing Political Societies; upon a Proſpect of living
or from four Families after the Deluge, to have in better Faſhion and greater Plenty, when
fallen immediately into the Order of Civil State. united together, than they could poſſibly do in
For, however a Father might keep his Children
a Condition of Solitude. In which Account,
under his Care, and the ſame common Roof, thus much is certain, that were Men left alone
till ſuch time they came to Years of Maturity; each to ſhift for himſelf deſtitute of all Help from
yet ſince, in thoſe firſt Ages of the World, they others, no Creatures could be more exquiſitely
lived altogether on Tillage and Paſturage, when miſerable. On the other ſide, 'tis undeniable,
Children were married, the Father had no Rea. upon the Inſtitution of Common-wealths, Hu-
fon to detain them longer. On the contrary, man Life grew refined to a Degree of Luxury
we are inform'd by Scripture, that it was uſual and Delicacy (c). But notwithſtanding this, it
for them, when arrived at an Age proper for ſeems evident to us, that Neceſſity was not the
taking the Care of a Family upon them, to ſepa- fole, or the principal Cauſe of Commonwealths,
rate and chuſe out new Habitations': eſpecially howſoever Plato (d) may favour that Opinion:
while the World was yet unſtock’d, and while Since the Arts of making Wine, of providing
the Pleaſantneſs of the Scene invited them to Cloaths, and of curning Ground to Paſture and
diſtant Quarters (a). Nor was it peculiar to Tillage, being even then known, while Men
Sicily of old, to have ſuch Inhabitants as Homer lived as yet in ſeparate independent Families ;
(b) deſcribes;
there ſeems already to have been a ſufficient
Proviſion made for all the Neceſſaries of Life
Toron N Et egogai, &-
' τ , &c-----
(e). For let us ſuppoſe a Father of a Family
poſſeſs'd of a large Portion of Land, and well
No Councils they, nor Courts of Juſtice hold; ftock’d with Servants and Cattel, what could
But on ſome Mountain's Top in Caves grow old. ſuch an one want for his Support ? What, at
Each o'er his Wife and Children Empire bears ; leaſt, that might not be ſupplied by the means
And none beyond his Cave extends bis Cares. of Commerce (f)? In like manner, as it is now
uſual, for different Nations, to import from
There is, it is granted, a Natural Affe&ion be- each other any ſort of Commodities, for Uſe
tween Brethren; yet not ſuch as excludes their and Pleaſure ; without thinking it neceſſary,
Deſire of living rather upon the Level, than for that Purpoſe, to unite together under the
with any Diſtinctions of Superiority amongſt fame Government and Conſtitution. And In-
them: Neither ſuch as does convince us, that ſtances may be given of People living for many
their Friendſhip could not be Long-lived enough, Ages, under Civil Eſtabliſhments, in a Condi-
fuppofing their Effects to be diſtinct and ſeparate. tion no way ſuperior, for Plenty and Abundance
So that, according to this Account, the Propa- to that of the Fathers of Families in ancient
gation of Mankind muſt rather tend to the in- Time (8). So that all that mighty Plenty and
creafing their Diviſion, than to the uniting Luxury, which now reigns in ſome parts of
them in Society. But when the wiſer Part be- the World, ſeems to derive its Origine from
gan to confider, that, by their aſſembling into great Cities, rather than from Common-wealths.
(a) See Geneſ. XIII. 5, 6, 9.
(6) Odyll. L. 9. v. 113, &c.
(c) Lactantius, de Opif. Dei, c. 4. n.
20, 21. If each Man alone had ſufficient Strength to ward off all Dangers, and food in need of no Aſiftant; what
Society would there be in the World? What mutual Reverence or Refpe&t? What Order ? What Reaſon? What Humanity
What would be more vile than Man ? What more extravagant? What more fierce and cruel? But now while each fingle Per.
Son is poor and indigent, and cannot
fubfef without the help of his Fellows, all defire Society for
Ornament and Defence
of
common Life.
(d) De Repub. 1. 2. p. 598, &c. Ed. Wech.
(e) See Genef. XIII. 2. XXIV. 35.
(f) Vid. Cornel. Nep. Attic. c. 13. (g) Who therefore might make the fame Boaft with him in Valerius Flaccus, 1.5.
I your Impriſonment of Walls diſdain,
Nec mienia nobis
Who live a Free-man on our Northern Plain.
Veftra placent, feror Arfois nam liber in arvis,
Of little Wealth I boaſt, but what I wear ;
Cuneta tenens mecum : omnis amor jacturaq; plauftri And if the Plough goes well, ſhall never die with Care
Sola ; nec hac longum vi&tor potiere rapina !
No other Prize can tempt a Vi&tor's Toil;
Aft epule quodcunque pecus, quodcunque ferarum, Nor ſhall this long remain an envied Spoil.
Nature purveys for the fiercelt Beaſt
True Veniſon yields, and every Flock a Feaft.

me
3
Becauſe,

Chap. I.
459
to establiſh Civil Societies.
.
seperc has obſerv’d. 'Tis probable, thar
to induce Men to form For could
Becauſe, in the Cities, the meaner People, ha- Man's real Neceſſities: which yet Civil Life
ving no Income from Cattel or Land, are forced could very contentedly be without ( 3 ).
(for a Livelihood ) upon improving divers Arts VII. Therefore the true and leading Cauſe,
and Inventions. Which, likewiſe, are not a lit. why the Fathers of Families would conſent to
tle promoted by a sort of Vanity, common to reſign up their Natural Liberty, and to form
great Towns, of vying one with the other in a Commonwealth, was thereby to guard them-
Preſs and Finery, and thereby of running out felves againſt thoſe Injuries, which one Man
into Extravagance ; for the Support of which was in Danger of ſuſtaining from another (2).
more Trades are intended, than for the Relief of For, as nothing, next to Almighty God, can
See our Author's Diſſertation De Statu Hominum Naturali, f. 6.
(2) This is the opinion of Mr. de la Bruyere (in his Cara&teres at Chap. du Souverain & de la Republique, P. 319.)
"Twas the Injuſtice, ſays he, of the firſt Men, that was the Original and only Source of War; and that put them un-
der the Neceſſity of ſubmitting to ſome Power that might fettle and eſtabliſh their Rights and Pretenſions : For if
they would have been contented with their own, and not have invaded the Rights of their Neighbours, the World
would have enjoy'd an undiſturb’d Peace and Liberty'. Mr. Bayle (in his Nouvelles Lettres à l' occafion de la Critique
generale du Calviniſme de Maimbourg, Lett. XVII. Scat. 2. adds to theſe fome cloſer Reaſons. 'Tis worth the while
relate his Words. ' 'Tis not to be ſuppos’d, ſays be, that Mankind, at the beginning of Societies, had any great
regard either to the good or evil to come. They had no other Thoughts than to remedy the Miſéhiefs they had
experienc'd, or which they look'd upon to be near at Hand.----I cannot perſuade my ſelf, that Communities were
formd, becauſe Men forefaw by conſulting the Ideas of Reaſon, that a folitary Life would be no Honour either to
their own Species, or to their Creator, or to the World in general. 'Twas the preſent Satisfa&tion, and the approaching
• Hope of living ſecurely, or elſe Force, that produced the firft Commonwealths; without Men's having had in view
Laws, Trade, Arts, Sciences, the enlarging of States, and all the other things in which the Beauty of Hiſtory
• confifts. They did not foreſee theſe Confequences at the Beginning, and tho' they had foreſeen them by the Light of
an Underſtanding free from Paſions, it would not have touch’d'em in the leaft. Mankind are too cold and re-
miſs when they are ſpurr'd on by nothing but Reaſon; and the Affairs of Human Societies would have been but in
a very ſad Condition, had Men been tempted to have liv'd together only upon this Conſideration ; that it is riot rea-
Jonable for a Creature proper for Society, to live in Solitude. As the nature and frame of our Conſtitution is, 'tis only
• by the means of Senſe that we muſt be wrought on and determin’d'. We cannot in my Opinion, but approve of
theſe judicious Refle&tions : And that the original of States and Empires is partly to be attributed to Force, is what we
may
with
great Probability conclude, from the manner in which the Holy Scripture ſpeaks of Nimrod the inolt ancient
King, and the firſt Conqueror we have any account of. This Nimrod, ſays Moſes, began to be a mighty one in the
Earth : He was a mighty Hunter before the Lord; wherefore it is ſaid, even as Nimrod the mighty Hunter before the
Lord. And the beginning of bis Kingdom was Babel, and Erech, and Accad, and Calneth, in the Land of Shinar, Gen.
X. 8, 9, 10. The very Name of Nimrod may give us to underſtand ſo much, ſince it is deriy'd from a Word which in
, infolent, as Mr. le
before this Of-ſpring of Cuff, there was no Family but what liv'd in an entire independent State; ſo that the Mem-
to and ,
bers, of which it was compos’d, were ſubje&t to no Body but to their Chief or Father of the Family. But when Nimrod,
contemning paternal Authority, ſet himſelf up as a Sovereign over People, who either wanted Strength or Courage
enough to oppoſe him, or elſe who chole rather to ſubmit to his Power than expoſe themſelves to worſe Inconvenien-
cies, by going to ſettle in ſome diſtant place; then a ſort of Kingdom was form'd. And therefore our Author is too
indeterminate, and too imperfect in his Notions, in maintaining that it was only the fear of being injur'd and inſulted
that
gave
Birth to all Civil Societies. The very Cauſes of this fear, as Mr. Titius obſerves, (Obſervation DXLVII. Numb.
.) ſo
not then have been able to have fufficiently provided for their Quiet and Safety, by ſeveral of 'em joining together in
Treaties and Confederacies, for the defence of each other againft ſuch as Should pretend to moleft them in the Enjoy-
ment of what they had purchaſed by their Labour and Induſtry ? Theſe Treaties and Alliances being founded on the
mutual Advantages of the Parties concern’d, cach would have been induc'd
to have obſerv'd 'em by his own proper
Intereft; as ourºAuthor ſays himſelf a little farther in the ninth Se&tion. This is ſo very true, that'a long time after
Mankind began to encreaſe and multiply, there were Nations, that for ſeveral Ages liv'd without Laws, without Ma-
giftrates, or without any form of Government. See Gronovius's II. Note upon Grotius, Lib. I. Cap. I. Se&. I. Nay,
even to this Day there are ſeveral Examples of it to be found among the People of Africa and America. See la con
tinuation des penſées diverſes of Mr. Bayle, Artic. CXVIII. Beſides, thoſe who refer the Riſe and Settlement of all
States to one general and uniform Principle, ſuch as ſome ſuppoſe Fear to be, others the Neceſſities and Occaſions of Life,
others ſome other Motives (See Lactantius Inft. Divin. Lib. VI. Cap. X. Numb. 13, EC. Edit. Cellar. and Tacitus Annal.
Lib. III. Cap. XXVI.) ſeem to ſuppoſe that in the firſt Ages of the World, ſeveral Fathers of Families met together,
to conſult in what manner they might moſt commodioully provide for their Security, or for their Neceſſities; and
that upon mature Deliberation, they agreed that it was abſolutely neceſſary for 'er to form among themſelves a Civil
Society. Now this Notion is not agreeable either to Hiſtory, or to common Experience, which demonſtrate that all hu-
man Inſtitutions of Government had but ſmall Beginnings ; that they are at firſt very rude and defective, and that it is
by degrees, and in a long Series of time, that they arrive to any, tolerable Perfection. But tho' one could find out,
in the Monuments of Antiquity, fome Footſteps of ſuch an Aſſembly, it would be mighty difficult to ſuppoſe, that
theſe Fathers of Families did immediately form an Idea of Civil Societies, and did foreſee and nicely weigh the Advan-
tages and Inconveniences of it. This is a thing that requires a long Experience, and it is very unlikely that the Plan
of ſo beautiful a Building was deſign’d and finiſh'd all at one time; Gince even now that it has been form fo
ago, the generality of Mankind know nothing of its Uſe, its Stru&ture, or its Beauties ; it being a Knowledge that even
Perſons, who have had ſome Education, do not attain to but by Study and Experience. Our Author himſelf in his
Introduction to the Hiſtory of the States of Europe, Chap, I. Se&. 3.) acknowledges that the firft Governments were very ſmall
very defe&ive, and that the different parts of Sovereignty were not eſtabliſh'd but by little and little, and one after
another. In my Opinion, there is not Refe&tion enough inade here upon the Simplicity of thoſe Times in which Civil
Societies began; and it ſeems to me, that it is the poſture of Affairs at preſent that our Author had his Mind fix'd
too much. The World not being as yet very full of People; and Senſuality or Luxury, not having as yet infinitely en-
creas’d the Wants, or rather the Belires of Mankind; every one could caſily get enough to ſatisfic himſelf, and nothing
but the moft excelive and unruly Malice in the World, could induce a Man to take away his Neighbour's Goods by
force. Belides, tho Ignorance and Rufticity are not, without Diſpute, the Parent of Virtue and Regularity, nor were
thoſe of the Golden Age, certainly, better than the People of the ſucceeding Ages (as Mr. le Clerc has ſhewn us in his
Comment upon Hefiods Theogonie
, v. 211.) yet ſince they were not in thoſe times Maſters of any great Cunning; and the
Rules and Stratagems of War, together with thoſe deſtruktive Inſtruments that make up what is wanting in the
Atrength of the Body, and render the Wickedneſs of Mankind more bold and enterpriſing, were not yet found out,
twas no difficult matter to ſecure themſelves againſt Inſults, eſpecially by ſeveral joining together in a defenſive al
be
as
and
39am
400
Of the Cauſes and Motives inducing Men
Book VII.
more Art
Of which
And
« Monarchies thus limited, fubfifted a long time upon that Foot, as among the Lacedemonic har de Juſtice. The little
be more beneficial to Man than Man himſelf; Proviſion againſt future Evils.
1o nothing is able to work him greater Mil Ariftophanes b) sightly obſerves ; 'Heundleid
chief; as Cicero ſhews at large in his ſecond best warta, Caution preſerves all things.
Book of Offices, C. 5. &c. Now Man being by this Expoſition of the word Fear, we avoid
infeſted with various Evils, has found out for all the Force of what is objected, that, had
each a proper Remedy: Sickors and Diſeaſe Men, been really afraid of each other, they
he prevents or removes by the Succours of would have been ſo far from uniting together
Phyfick'; Hunger, by tilling, and manuring in a Civil State, that they would not have en
the Ground ; againſt the Severities of Weather dured each other's Sight, but, One Aying this
he is defended by Houſes, Cloaths and Fire; way and Another that, would thereby have re-
and by Weapons or Stratagems, againſt the main d in a perpetual Separation. As if fear
Fury of Wild Beaſts. But for redreſs of thoſe implied in it nothing but Flight, and not allo
Evils, which Men, at the Suggeſtion of de. Diffidence, Suſpicion, and Caution. Nay, this is
praved Nature, delight to bring upon each one Property of being afraid, the providing
other, they had recourſe to themſelves, as the againſt the probable Grounds of Fear. Thus
,
ſureft Defence, by joining together in one going to ſleep we ſhut the Doors, for fear of
Body, and erecting a Civil Society (a). And Thieves ; when they are ſhut, our Apprehen-
when they were once reduced to ſuch Order, fion is over. We go armed in a Journey for
as to be ſecure from mutual Injury, they muſt, fear of Robbers; and, being well armed, fear
of courſe, enjoy a greater Share of thoſe Bene- no more. To which Purpoſe Thucydides (c)
fits, which it was in their power to confer upon obſerves, that the Cuſtom of wearing Swords,
each other (1). And this Account is ſeconded which was generally receiv'd in the barbarous
by thoſe who deduce the Original of Common- Nations, continued likewiſe among ſome People
wealchs from Fear. By which we are not to of Greece, by the Neceſſity of ancient Times,
underſtand the violent Diſorder of one in a when, as yet, they had no Walls to defend
Fright and Confternation ; but only a wary them from Enemies abroad, and could not
liance. It will, perhaps, be obje&ted, that if People had not in thoſe Days a great deal of Cunning in carrying on an
Attack, neither had they more in making a Defence; and that therefore things were ſo far upon an equal Foot. Bat to
and Ingenuity than to defend ones felt. There is ſuch an Inſtrument, or ſuch a Stratagem, againſt which it is eaſy
enough to be provided ; and which a Perſon that is but moderately prudent, will with the leaſt Difficulty render the
Deſign of uſeleſs and ineffe&tual, tho' the Contrivance of it cost a great deal of Labour ; and tho” abundance of Care
and a particular Dexterity be requir’d to manage it. : 'In the firſt Ages, a Ditch, a ſtrong Wall, ſome large Maſtiff-Dogs
were a Rampart and a Guard fufficient for a Man's Security. If we do but conſider how long they were formerly in
taking a Place, even after Battering-Rams and other Warlike Engines, often pretty well contriv'd, that the Ancients
made uſe of, were found out, tho' the Fortifications were but very indifferent : If we do but obſerve, that even now-s-
days, fince the Invention of Artillery, the Beſieg d have much the Advantage of the Beſiegers ; I am certain we
ſhall be obligʻd to conclude, that in the Simplicity of the firſt Ages, an Attack muſt be, without Compariſon,
more difficult than a Defence ; and that therefore a Government had no ſuch preſſing Occaſions to unite the Forces of
ſeveral for their common Security. What we have to offer in this matter is, That in proportion as Mankind encreasºd,
Civil Societies were form’d by degrees for different Reaſons, more or leſs imperfect according to the Times, and ac-
cording to the Abilities of the Founders. Mr. Titius (as aboue, Numb. 6.) conje&ares, and "tis probable enough, that
it was the Craftineſs of ſome ambitious Mind, ſupported by Force, that gave Mankind the firſt Plan of Governments ;
and what I have obſerv'd with reſpect to Nimrod, ſeems to favour this Thought. Such a Body Politick being once
forin'd, ſeveral afterwards joind themſelves to it upon different Motives, others form'd new ones upon the fame Mo-
del : When there were ſeveral of 'em inſtituted, thoſe who had hitherto liv'd in a natural Independency, fearing to
be inſulted and oppreſs’d by theſe riſing States, reſolved alſo to form the like, and to chuſe themſelves à Chief. At
firſt theſe petty Kings were little more than for the determining of Diſputes, and for the commanding of Armies. This
appears by the Hiſtory of the Judges, and of the firf Kings of the Iſraelites, and, by what Herodotus relates of Dejoces
King of the Medes, Lib. I. p. 26, 27. Ed. H. Steph. ſee allo Hefiod Theogon. verf. 85, &c. & Oper
. & Dier, verľ
. 38.
39. And therefore it is that there were ſometimes ſeveral Kings among one and the ſame People, as Mr. le Clerc has
not fail'd to remark and to prove from the Teſtimony of Homer, who mentions ſeveral Kings of the Pheacians, Odyſs
.
Lib, S. verſ. 40, 41. He alſo quotes a fine Paſlage of Dionyſius Halicarnaſſeus, from whence it appears, that the Abuſe
which Kings made of their Power, oblig'd People to eſtabliſh Ariſtocratical or Democratical Governments. Kat’épzés
bitrarily as barbarous Nations were, but according to the Laws and Cuſtoms of the Country ; to that he was eſteem a
as the beſt King, who was the moſt juſt and the ftri&teft Obſerver of the Laws, and who never departed from
; but Kings begin-
ning to abuſe their Power, and to govern by their Fancy, rather than according to the Laws; the generality of the
• Greeks would not endure it, and therefore aboliſh'd this form of Government. Antiq. Rom. Lib. V. Cap. 74. Ed.
Oxon. I will here add a Paſſage out of Iſocrates, where this Orator having a deſign to Compliment the Athenians,
ſays, that he will
back to the time, ότ' εκ ήν έπ δημοκρατίας, έτ' ολιγαρχίας όνομα πολεγόμενον, Αλλά μοναρχία και
τα γένη των Βαρβάρων, και τις πόλεις Ελληνιδας απάσας διώκες. When the Name of neither Democracy nor Αriftocracy was
in Being; but Monarchy was the only Government both among barbarous Nations, and among all the States of Greece
.
Panathenaic, P: 443, 444. Ed. Pariſ. min. See alſo the Commentators on the beginning of Juftin's Univerſal Hiſta-
and what is farther, in Chap: V. Se&. 4. of this Book ; Mr. Locke has likewife treated of the Origine of Civil So
cieties in his ſecond Treatiſe of Civil Government, Chap. 7, Syc. Mr. Barbeyrac's firft Note upon this scetion, p. 218,
(a) The Perſians took the true way of demonſtrating this; who had a Cuſtom, upon the Death of their King, to
live the five enſuing Days without any Law ; to the end, 'That finding, by Experience, the miſerable Effects of Anar.
chy
, the Slaughter, ibe Rapine, and if there be any thing worſe, that accompanied ſuch a Condition, they might be engaged
in a firmer Allegiance to their Sovereign for the future, Sext. Empir. adv. Mathem. 1. 2. p. 70. Ed. Genev. To the ſame
purpoſe may be applied ſome of the Reaſons, which according to the Account of Herodotus, B. 1. induc'd the Medes,
Tiving before in independent Villages, to inveft Deiox with the regal Authority over them. (i) The Remainder of
this Scation is taken from our Author's Abridg. de Offic. Hom. Ego Civ. 1. 2. c. 5. 6. 7. (6) In Avibus, p. 532. Ed.

221.
219, 220,
Lug. Bai,
(c) L. 1.
meet

Chap. I.
401
19 eſtabliſh Civil Societies.
Him ;
ture.
thаt
suas are
meet together without ſome Fears, and Jea- moderare Gains were not, with bad Men,
louſies at Home Remarkable likewiſe is that Temptation enough to do wickedly! Or as if
Speech of Pyrrbús to the Asbenians, recorded by Thefts and Robberies were not as common of
Plutarch in his Life ; when being permitted to Old, as they are at this Day, amongſt People
enter the City, and offer Sacrifice to Minerva, living wholly on Graſing and Tillage ! Noc to
upon his recurning thence, He ſaid, " That for ſay, that the Occaſion of founding Common-
his part, He rerain'd a graceful Senſe of their wealths wa
not only to protect Men from
Kindneſs and the Confidence they repoſed in Robberies, but alſo from any Injuries, which
but adviſed them, Not to open their they might be capable of offering or receiving.
Gates, if they were wiſe
, to any King for the fos- What he afterwards affirms is very true; Thar,
Civil Communities, even in the times of Let the Suſpicions of Another's miſchievous Defign be
profoundeſt Peace, do yet fortify their Towns, never ſo well grounded, this will not juſtify an At-
their Granaries with Warlike Stores ; all Righe and Power of all over All, with which
which would be an unneceſſary Expence, did Mr. Hobbes inveſts Mankind in his State of Na-
not they apprehend ſome Danger from their ture, ought to be extended no farther than right
Neighbours : of whom, after theſe Precautions, Reaſon allows of; amounting only to this Senſe,
they are no longer afraid. So that 'tis the Na- that Man, in a State of Natural Liberty, has a
tural Effect of Fear, to find out Remedies againſt Right to employ againſt all Perſons, all ſuch
it ſelf. And, in like manner, becauſe Men were means for his Preſervation, as Reaſon judges ne-
áfraid of each other, they ſupplied each other ceſſary for him to uſe, and dangerous to let a-
with Relief, by joining in a Civil State. Of lone. Wherefore to carry our Caution farther
the Force and Efficacy of which, thoſe Authors than right Reafon ſhall preſcribe, is, doubtleſs
,
ſeem to have a deep Senſe, who affirm, that, a Breach of the Law of Nature. so that he,
in Caſe there were no Courts of Juffice in the World, who on any uncertain Fears, kills the Perſon he
Men would deſtroy and devour each other (a). And is afraid of, when he might, as conveniently,
indeed, that Men have abundant reaſon to ap: have eſcaped from him, muſt be adjudged guilty
prehend and fence againſt mutual Danger, we by the ſaid Law. Whence they appear to be
have, in another place (b) (1), fully made out: certainly in the wrong, who imagine that this
Which is no leſs true for what Hornius objekts, Principle juſtifies Rapines and Robberies, upon
That the Fatbers of Families, for many Ages, lived ſuch as are not open and profeſs’d Enemies,
together on Terms of Equality; without the fear of any For Robbery and 'Rapine plainly denote ſuch
ſuch pretended Invaſion on their Rights: and that Means, as found Reaſon can never judge neceſ-
and then giving occaſion to the Diſtinctions of Honour rice and Cruelty: it being never alledg’d, in
and Dignity. As if it were not Ambition which Plea for Robbers, that they ſpoil Men of their
occafioned the firſt Murther in the World ; Goods, in their own Defence. That other Ex-
when Cain was enraged, that his Brother's preſſion feems very ridiculous ; Suppoſing Hatred
Offering ſhould find more Acceptance with and Diffidence to have reign'd never ſo much amongſt
God than his own (2)! Beſides, Ambition is but Men; yet this could never be ſaid to have happened
one Root of thoſe Evils, which ſpring, in like purely for the ſake of Common-wealths: for Men did
manner, from Perverſeneſs of Temper, and not therefore hate or diſtruſt one another, pur-
Competition of Deſires. Of which, even in poſely that they might conſtitute a Civil State ;
thoſe plain and primitive Ages, the former but they therefore conſtituted a Civil State, be-
produced that ſavage and brutiſh Fierceneſs in cauſe they diſtruſted or hated one another. And
the Race of the Giants; the latter occaſioned tho’ we ſhould allow as fully as can be deſired,
Strife and Diſfention betwixt the neareſt Rela- that while the Hatred of one Perſon extended
tions (c). In the Breaſts of Kings, Ambition only to ſome few, who were diſagreeable to
('tis true ) reigns with greater Violence, and him, he might, at the fame time, love and fa-
tranſports them to Actions more bloody and your all others, or, at leaſt, not be enraged a-
Cruel: yet we may trace ſome Footſteps of gainſt them ; yet if each Man had but his fingle
the ſame Paſſion in Shepherds and Ruſticks. Foe, this alone were enough to fill the World
Horniuss () proceeds to obſerve, That, in thoſe with Hatred and Diffention. 'Tis therefore a
early times, to provoke others with Words or Blws, vain Attempt to aſcribe the Original of Com-
would bave proclaim'd a Man's Folly as well as bis munities, to The Accidents of Neighbourhood and
Malice; becauſe, this would have given a Right to the the Natural Increaſe of Mankind by Generation:
Party thus provoked, to take the firſt Opportunity of This latt, indeed, affords a conttant Supply,
killing him. Again, there could be no Hopes of Booty whence Civil Bodies are ſtock'd and maintaind:
amongfe People as yet unacquainted with Wealth, in like manner, the former might perhaps give
and poleſing no other Stores but thoſe of Fruits, plenty Occaſion for Neighbours to join themſelves to
of wbich was to be had in other places, with little the ſame Community, rather than to divide.
Pains and no Danger. As if the Proſpea buc of But the Cauſe which firſt moved Men to eſta-
(1) V. Grot. 1. 1. c. 4. f. 4. n. 2.
(d) Vid. Virg. Eclog. 3. V. 25, Est,
(a) Comp. Hobbes de Cive, 1. 1. f. 2. (6) B. 2. c. 2. f. 6, 12.
(.) Genef. IV. 4, Erc.
(c) See Genef. XIII. 7. XXVI. 15, 20, 21,
Raçlog. 7. Theocrit. Idyll. 5. ep. .
Hhh
nol
2
bliſh

462 Of the Cauſes and Motives inducing Men
Book VII.
i
each
bliſh Societies, is, by no means, deducible from ing, till then, many better ways les
the of are '
open of
theſe Grounds.
compoſing Matters amicably. For, as to that
VIII. Nor has any One reaſon to imagine, Pravity of Nature and Diſpoſition, which is com-
that a bare Reverence of the Law of Nature, mon to the whole Race of Men, and which
which prohibits indifferently all ſorts of In- therefore admits of various Degrees, we cannot,
juries, could ever have been able to ſecure the on the account of it alone, conclude a Man
whole Body of Mankind, (as conſider'd in a an open and profeſs’d Enemy. 'Tis own'd
,
State of Natural Independency,) from mutual therefore, that as to the Diſcharge of Natural
Prejudice. Some there are (it muſt_be con- Duties from Others to me, I cannot have it, in
feſs'd,)" with whom Honour, Juſtice, Faith and a State of Nature, ſo well ſecured, as under Ci.
Innocence are ſo much in eſteem, that they vil Government : yet neither is it left in fomi.
would not violate theſe Rules, tho' ſure of Im- ſerable an Uncertainty, as that hereby I mult
punicy. Many alſo may be well repreſented by be obliged, or may be permitted, to creat All
that Character which we find in Ariſtotle (a); Men in a hoſtile Manner. For, while I find my
Who refrain from Injury upon a Principle of Fear own Strength to be equal or ſuperior to another
(it being difficult to wrong others
, without being like Man's, and while that Man, by Word or Deed,
wife wrongʻd by others :) and who are therefore unwil. teſtifies a Deſire of living peaceably with me,
ling either to do Wrong, or to receive it (1). Now, and by real Proofs confirms the Truth and Sin-
were all. Men of this Temper, the Eſtabliſh- cerity of that Delire ; What reaſon have I to
ment of Civil Communities might not appear ſo account him my Enemy? Or, How can the bare
very neceſſary a Work. But, on the contrary, Suſpicion, that all this Friendſhip is but Coun-
what Numbers are there, who make light of terfeit ; or, that, in time, he may come to al-
breaking through the moſt
facred Ties of Duty, ter his Mind, give me Authority to aſſault him
whenever invited to injure Others by the Proſpect by way of Prevention? And the Truth of this
of ſome Gain to themſelves, and the Hopes of will appear more evidently if we look upon
eſcaping, by Force or Fraud, from the Hands the Practice of entire and independent States and
of the injured Parties ? Not to diftruft ſuch Men Governments, which are, with regard to
as theſe, would be Voluntarily, to expoſe our other, in a State of Nature. Here all Men a
felves to their Wickedneſs and Inſolence. Pa- gree in judging it a Crime for one Nation, by
Tum tuta per le ipſa probitas eft, ſays Salluft (b). ſecret Stratagem or open Force, to Attack ano-
Unguarded Honeſty is but as undefenſible Hold But ther, (as yet not known by any Exchange of
as it is the part of Prudence, to keep a watchful good or bad Offices, nor engaged in Friendlip
Eye on bad Men, and to make an early Provi. and Alliance by Covenant of overt A&,) only
fion againſt their Attempts ; ſo is that Affertion becauſe there is no cornmon Power preſiding 9-
of Mr. Hobbes (c) unreafonably harſh, wherein ver both, by which the other State, if attempt-
he affirms, That the Hope of any Man's Security and ing any injurious Deſigns, might be reſtrain'd
Preſervation confifts in his being able, by his own and puniſh’d. Which clearly proves againſt
Strength
b and Cunning, either openly or ſecretly, to be Mr. Hobbes (3), that the Law of Nature is not
before-hand with his Neighbour in Miſchief. Indeed together dumb even in a State of Nature : tho' in-
that wherefoever there is Appearance of greater this Law obey'd, under Civil Government;
Advantage from the Tranſgreſſion of Laws, than where the Power of the Magiſtrate is at hand,
from the Obfervation of them, they make no to compel thoſe who are wanting in returns of
Scruple to tranſgreſs them : According to that Kindneſs and Peace. But, notwithſtanding all
of Plato (d); Whoever conceives it in his power to this, thus much Prudence ſuggeſts to us, that we
do unjustly, readily does fo: each. Perſon concluding ſhould not only provide, by a timely Defence;
Injuſtice to make much more for his private Intereſt, againſt the open and profeſs'd Malice of Wicked
than Juſtice could do. Yet to reproach all Man- Men ; but that we ſhould likewiſe eſteem the
kind with this perverſe Diſpoſition, is carrying Goodneſs of others, not infallible and immura.
the Point and the Cenſure too far. Nay, by the ble. And, to anſwer all theſe Ends, no fuch
Confeſſion of Mr. Hobbes himſelf (2), Tome univerſal Safe-guard, as Civil Society, could be
modeft Natures there are in the World, that do invented or conceiv'd.
not aſſume to themſelves more than they leave IX. Moreover, altho’ the Law of Nature di-
to others ; always having their Eye on that rea us, in caſe any Difference ariſe, to adjuſt
Rule, To do as they would be done by. How any it amicably amongſt our ſelves, or refer it to
one, upon Pretence of providing for his own the Arbitration of Others; yet neither chus
Security, could ruſh upon the Oppreſſion and would the common Peace be ſufficiently ſecured.
Ruine of ſuch innocent and excellent Perſons, For with the ſame Eaſe, that we diſpenſed with
I muſt, for my part, own my ſelf at a loſs to our ſelves, in breaking the other Nacural Rules,
underſtand. Nor can it ever be, that right Rea- we might alſo flight this of appealing to Arbi-
ſon ſhould warrant my going to kill or oppreſs trators, and ſo have immediate recourſe to
another, of whoſe Deſigns to do me hurt I have Arms. Beſides, ſuppoſing two Men, had by
not had very particular Indications: there be Conſent, referr'd their Differences to a chird
al-
(a) Ad Nicomach. 1.4. c. 3. p. 46. C. Ed. Pariſ.
vetouſneſs : Our Author has expreſsd himſelf more to the point
, in his Åbridgment De officio Hom. es. civ. 1.2; 6.5
:
(1) This Paſſage is not to the purpoſe, reſpekting only Co.
(b) Adherbal. in Bell. Jugurth.
(c) De Cive, c. 5. f. 1.
p. 593. Ed. Wech.
(2) De Cive, c. 3. f. 27.
(3) De Cive, c. 5. f. 2.
Perſon;
f. 8.
(d) De Repub. 1.2.

Chap. 1.
463
to eſtabliſh Civil Societies.
Perſon; yet were either of the Parties diſſatiſ- noble a Temper, as to have, at the ſame time,
fied with the Deciſion, it were no hard Matter that piercing Sagacity, which may diſcern what
for him to renounce and reject it; in caſe he is for the laſting Advantage of all Men in gene-
found his own Strength ſufficient to ſhelter him ral, and of each in particular; and that Strength
from Human Puniſhment : eſpecially ſince the and Fırmneſs of Soul, which may conſtantly
Arbitrator is not endued with any Authority and purſue what has been prudently foreſeen. The
Command, by Virtue of which, he might ob greater Number are, on account of their Natu-
lige the Parties to itand to his Sentence. There- ral Dulneſs, imposed upon by grofs Error, in
fore, in a State of Natural Liberty, Prudence the likeneſs of Reaſon. Others are hurried by
will adviſe us, that we rely not too much on the Violence of their Paſſions, whereloever the
the bare Faith of others ; but that we believe Gratifications of Luft, or the falſe Appearance
the Obſervation of all Compacts to be then of Advantage ſhall draw them. Now in ſo end-
beſt aſcertain'd, when either they are grounded leſs a Diverficy of Opinions and Defires, What
on the mutual Advantage of the Parties, or when Hopes can there be of Peace and Agreement :
'tis in our Power to force thoſe with whom we whilſt every Fool is as ſtrongly conceited of his
treat, to be juſt and honeſt. But where Perfi- own way, as the Wiſelt Man is convinced of
diouſneſs is encouraged by Hopes of Profit, and his ; and the former will no more ſubmit to the
not reſtrain’d by Fear of Puniſhment, there it latter, than the latter will condeſcend to be in-
were Madneſs to think, that bare Covenants ſtructed by the former ? Since therefore Reaſon
ſhould be able to warrant our Safety. This ap- alone, according to the Tenour which we find
pears from the Pra&ice of all Nations; who it to hold in particular Perfons, is inſufficient
when they break off their Alliance with one to compoſe theſe Differences in Judgment; other
State, ſtrengthen themſelves with the Friend. Means are to be uſed, by which an agreeable U.
fhip of another: by which Act they do not pre- nion and Harmony of Mind may, in fome De-
fently Condemn themſelves of Treachery, in ihus gree, be obtain'd (2).
ſeeking for Protection to the Faith of Others; XI. In fine; altho' it be evident to all Men,
but, in as much as Communities are chiefly that by breaking the Law of Nature, they ex-
guided by Intereſt, in fixing their Alliances, they ceedingly obſtruct their own Happineſs (the
do but ſubſtitute an advantageous League in the Promotion of which depends on the Afifànce
room of one which was either unprofitable or of Others,) and bring many grievous Evils and
dangerous. And 'tis under theſe Reſtrictions Dangers on themſelves; tho' Nature has like-
and Mitigations only, that we can any ways wiſe imprinted it on the Minds and Conſciences
admit of Mr. Hobbes's (a) Poſition, that Covenants of Men, that ſuch as act contrary to her De-
founded upon mutual Faith, in a State of Nature, are crees, by light invading and harming their
invalid. For tho' it be plauſibly enough ſaid by Neighbours, ſhall not, in the laſt Event, go un-
Livy (b), that All Men are ambitious of being cre- puniſh'd (c): laftly, tho' the Benefits that would
dited ; and that, to repoſe Faith in them, is, with redound to them, from their obſerving Natural
moſt Men, a Tye upon their Fidelity ; yet 'tis the Precepts, and the Evils which they incur by
ſafer Courſe, in a State of Nature, to think upon tranſgreſſing them, are à manifeſt Argument,
that vulgar Saying;
that it is better for Men to live kindly and ſocia-
[v. 830. bly than otherwiſe : yer would not all this be
Tisu Xshuat' caearch, anisin Mo god mora. Theogr. enough to procure the ſettled Peace of Man-
kind. And that, becauſe the Multitude act
Undone by Truf; and by Difruft preferu'd. not by rational Motives, but by wild Impulſe,
miſtaking Paſſion for Reaſon; chiefly thro'
X. Again, there is another reaſon why the the Fault of Cuſtom or Education, which
Law of Nature cannot be able, of it ſelf, to ftifle and ſuppreſs the Force of inward Re-
enſure the Peace of Mankind. For this is the flection. As alſo, becauſe the greateſt Part of
Caſe of Natural Liberty, that each Man, as he Mankind are wholly intent upon the preſent,
places his Defence and Safety in his own proper without any Care or Thought of the future ;
Strength, ſo as to the means of obtaining that and are commonly moved by theſe Objects,
End, and the whole Management of his Actions, which thruft themſelves upon their Senſes,
he purely conſults and follows his own private while thoſe of a higher and nobler Nature are
Judgment. And what a wide Difference there too Refined for their Affections, and tco Re-
is between Men in this reſpect, no one can be mote for their Deſires. Whence it comes to
as not to have made part of his Ob- paſs, that the dread of Human Puniſhment, is,
ſervation (1). Few there are of ſo happy and with too many, more prevalent than that of
ſo ignorant,
the ſame Laws,
(a) De Cive, c. 2. f. 11.
(6) L. XXII. 22.
(1) Mr. Bruyere in his Character of Man, has this,
If a Man ask why the whole World does not make one ſingle Nation, nor ſpeak the ſame Language, nor live under
nor agree in the ſame Uſages and Worſhip, I anſwer, that, conſidering the variety of Mens Humours,
the difference of their Tafts
, and the contrariety of their judgments, 'tis ſtrange that even ſeven or eight Perſons can
live amicably under the fame Roof, within the fame Compaſs, and compoſe one ſingle Family.
(2) The latter part of this Period is taken out of our Author's Abridgment, De Officio Hom. Ego Civ. B, 2. c. 5. f. 8.
(c) Claudian. De IV. Conſulat. Honor. v. 204.
Extruite immanes fcopulos, attollite turres,
Heap Rocks and Towers the vaſt Aſcent to win ;
Cingite vos fluviis, vaftas opponite Sylvas;
Let Floods ſurround, or Foreſts hem you in;
Non dabitis murum feeleri.
All Nature is too weak a Fence for Sin.
H h h 2
Divine
464 Of the Cauſes and Motives inducing Aden, &c.
Book VII.
Juſtice of Providence is, for the moft part, dom reaches to the End of. The
Divine Vengeance ; which yet ought to hold Action can be aſſign’d, which is not the Beginning of
llow, and the Methods of it Secret and Re- Accidents of Life, are fo firmly link'd together, that be
tired (a): Which, with bad Men, is an Argu. who receives the Pleaſure, is, at the same time, ob-
ment, that the Calamities, which ſometimes liged, r whether be apprehends it or not,) to accept
attend Impiety, ariſe from other Cauſes (b); of the attending Pain. Thus the Abuſe of Power is
eſpecially, when they find, that the worſt puniſh'd by the Power and Violence of Orhers; In-
amongſt them often abound in thoſe things, temperance by Diſeaſes, &c. and theſe are what I call
which the Vulgar take for the Meaſure and Natural Puniſlaments
. Yet the Generality of Men,
Standard of Happineſs, while the Good are either through Defect of Judgment, or Vehe-
oppreſs’d with many Amiations, ſufficient to mence of Paſſion, are commonly hindred from
perſwade the Wicked and Fooliſh, that Virtue giving theſe conſiderations due weight. Where-
has little Power, unleſs in making Men miſe. fore there remain'd no way of laying ſo power-
rable, Thus Plutarch (6) obſerves : When ful a Reſtraint on Human Corruption, as what is
Judgment is immediately executed on a Crime, it ſtops now afforded, ſince the Inſtitution of Civil
thoſe men in the Courſe of their Wickedneſs, whom States, Plutarch (b) ſeems to have forgotten
Succeſs would have encouraged to proceed. For nothing himſelf, when he cenſures Colotes for the follow-
does ſo much enfeeble the Hopes and deject the Mind of ing Affertion : They who firſt regulated Life, come
the Oppreſſed, as the Reſpite and Delay of Divine Vena poſed Laws, ſet up Governments and Magiſtrates over
geance; and nothing more encreaſes the Cruelty and In- Cities, and enforced Obedience to their Direčtions, were
Jolence of their Oppreſſors. And with this very Pro- certainly the Perſons who deliver'd us from Trouble and
spect it is, that the Wicked encourage and hearten them- Tumult, and eſtabliſh'd Peace and Safety in the World.
Jelves in Villany; that the Fruit of their Crimes they Take away theſe Engagements; and we ſhould live
ſhall receive in Hand, but the Puniſhment in Reverſion, like wild Beaſts, and hardly forbear to devour the next
and at a great Diſtance from Enjoyment. It may far we meet. For, that grave Writer, who repre-
ther be added, that the Stings of Conſcience, hends this way of ſpeaking, could have no
preceding a villainous Act, are not ſo fierce and very deep Inſight into Human Nature and Dif-
raging as thoſe which follow after, when what poſition, if he imagin'd, that, upon reverſing
is once done, we find paſt our Skill to undo (d): the Laws of all Civil Communities, the Honour
and that the Voice of Reaſon, which could not and Safety of Mankind could be preſerv'd by
be heard in the Hurry and Tumult of our Palli- the Wiſe Rules of Parmenides, Socrates, Plato, or
when theſe once begin to cool and ſettle, Heraclitus. And, tho’ we ſhould never ſo freely
will found moſt forcibly in our Breaſt (e). In ſubſcribe to Ariſtippus's Boaſt (i), who, when
like manner (ſays the Wiſe Author but now cited ask'd, What Advantage Philoſophers had above
(f),) as Malefactors
, when led to Execution carry other Men? replied, Were there a general Repeal
each their Croſs, so does Sin, out of every Offence, of all Laws, we ſhould continue to live as regularly and
frame its own Torments : that moſt ingenious Artiſt of peaceably as we do at preſent : yet, what would be-
'a miſerable Life! ſuch as is not only confounded with come of the far greater Number; who, if left to
Shame, but diſtracted with Horrors, Convulſions, Re- themſelves, would fancy Luſt and Paſſion the
morfe ; and all the Tumults of a troubled Mind. beſt Reaſon and Philoſophy ? Rather therefore,
But becauſe theſe inward Torments make no let this be the final Deciſion of the Caſe; Quira-
Impreſſion on Senſe, they have ſo much the leſs tione traduci ad meliora non poflunt, metu continean-
Efficacy towards reſtraining the Growth of tur (*): 'Tis fit, that they whom Reaſon cannot per-
Wickedneſs in Others. Mr. Hobbes (g) is in the Swade to do Better, Fear ſhould reſtrain from doing
right, when he tells us, that Scarce any Human Worſe.

ons,

(a) 'Tis an Obſervation of Cæfar,that Divine Providence,to ſtrike Men with a deeper Senſe of Affiliation, by a ſudden Change
from proſperous Affairs, ſometimes grants to thoſe, whom it intends exemplarily to puniſh for their Wickedneſs, the more for-
tunate Succeſs, and the longer Enjoyment of Impunity, De B. G. 1.1. c. 14. n. 5.
(b) Add. Ecclefiaft. VIII. IJ.
(c) De Sera Numinis Vindicta, P. 548. D. E. (d) Curtius VIII. 2. Nature ſeems unkind in leaving Men under
this great Weakneſs and Diſadvantage, that generally they conſider things leſs before they do them, than after they bave
done them,
(e) Plutarch De Ser. Num. Vindict. p. 555. E. When a Man, out of Avarice, Envy, Ambition or ſenſual Delight, has
committed ſome heinous Wickedneſs, and after the violent Thirſt of his Deſire is coold and appeas’d, takes time to reflect, that
what he propos’d of Profit, Convenience, or Satisfa&tion in any kind, has left him utterly diſappointed, while the baſe Im-
preſſions and horrid Tyranny of Sin remain in full Force ; muſt neceſſarily be brought to this Perſwafion, that when for the
ſake of empty, Glory, or unworthy Pleaſure, he broke through the moſt facred, most beautiful and excellent Rules of Man-
kind, he at the ſame time, filled his miſerable Life with Shame and Diſquiet.
(f) Ibid.
(g) Leviath, c. 31. towards the End. (5) Againſt Colotes, p. 1124. D.
(i) In Hefych. De Vir. Illuftr.
(*) Quintil, Inftit. Orat. I. XII. 6. 7.
С НА Р.

Chap. I.
465
CHA P. II.
Of the inward Structure and Conſtitution of Civil States:
II,
venants.
how many
I. Men only are a ſufficient Defence againſt XI. XII. Hobbes's Arguments anſwer’d.
the Wickedneſs of Men.
XIII. A Civil State, how defined.
To this End it is neceſſary that many ſhould XIV. In a Monarch, the Will of the Prince is
join together.
the Will of the State.
III. Thoſe who join'd in this manner ought to a. XV. Under other forms of Government, according
gree in their Reſolutions.
to the regular Courſe, the Community is
IV. The Difference between the Polities of Bees
concluded by the Votes of the Major Part.
and Men. -
XVI. This Rule admits of a Limitation.
V: An Union of Wills and of Strength neces XVII. Of Equality of Votes.
ſary to a Civil State.
XVIII. Of joyning, or dividing Suffrages.
VI. This Union produced by intervening Co. XIX. How many Perſons at leaſt are requiſite to a
Ruling Council.
VIL.
The Firſt Covenant, with the Decree follow- XX. Civis, or a Member of a Civil State, who
ing upon it.
may properly be fo term’d.
VIII. The Second Covenant, giving the final Per- XXI. Subordinate Bodies, of how kinds.
fection to a Civil Eſtabliſhment. XXII. Inveſted with what Rights and Priviledges.
IX. The Reaſon for which Hobbes will acknow. XXIII. Of Unlawful Bodies, and Factions.
ledge but One Covenant.
XXIV. The peculiar Duties incumbent on the Mem-
X, This Reaſon inſufficient,
bers of Civil States.
T follows now, that we enquire more exact. this Nature. For tho' we meet with a Story of
ly into the inward Structure and Conſtitution two Dogs, that performed Military Service a-
of Civil States. That Men, therefore, might gainft the Americans (a) (I); and tho’the Em-
render themſelves ſecure againſt the Wickedneſs perour of Ceylon in his Royal City of Candy, is
of Others, ſo far as the Condition of their Na- reported to have a Life-Guard (as it were) of an
ture will admit, no other Expedient could have hundred Elephants, which go their rounds upon
been invented but this, that each Perſon ſhould the nightly Watch, aud are the publick Execu-
provide a ſufficient Guard about him ; by means tioners of Criminals: Yet many Men muſt join
of which, the Deſigns of others might appear in teaching and training them, e'er they can be
ſo dangerous in the Execution, that they would made fit for theſe Employments. It remains
think it their ſafeſt Courſe, rather to refrain therefore, that againft the Dangers, which
than to engage, rather to keep the Peace, than might be apprehended from Men, Men alone
to be the Challengers and Aggreſſors in a War. could afford an agreeable Remedy, by joining
For the malicious Inclinations of Men, and their their Forces together, by interweaving their In-
ready Diſpoſition to their Neighbour's Hurt, tereſts and Safety, and by forming a general
cannot any way be more effectually kept under, Confederacy for their mutual Succour ().
than by ſetting before their Eyes ſome preſent II. But it is manifeft, that the joining toge-
Danger, which muſt certainly fall on him that ther of two or three, or a few Perfons, muſt
Thall dare to Aſſault another, and by taking a- neceſſarily prove infufficient for this Defence ;
way all Hope and Proſpect of Impunity. Now becauſe, then, the leaſt Addition, on the ſide of
ſuch a Defence, or Aſliſtance as this, can by no the Invaders, would turn the Scales, and carry
means be afforded by any fortified Place, whe- them on to certain Victory ; and therefore
ther it derives its Strength from Nature or from would encourage and embolden them to begin
Art: For to lie thus continually in Hold, is to the Aſſault, by promiſing not only Impunity,
be a perpetual Priſoner: nor would it be eaſy, but Succeſs
. So that to obtain the Sécurity,
for a ſingle Man to Defend his Poft. But if he of which we are now in ſearch, it is requifite,
let in others to help him, there will be a Danger that the Number of the Confederates be fo
from them likewiſe, and he will ſtand in need of great, as that the Advantage of a ſmall odds,
a new Protection. Some kind of Aid might in on the Enemy's fide, ſhall not viſibly determine
deed be expected from Arms ; but not to ſuch a the Iflue of the War; and conſequently, that
Degree, as that one Perſon alone, ſhould be able this League and Union be made by a conſidera-
to promiſe himſelf any long Security from hence, ble Multitude. Hence Plato (c) 'demands ſuch
againſt numerous Oppreffors. So too, the De a Number of subjects in his Common-wealth,
fence, which might be made by Brute Crea as ſhall be able to repel their Neighbours, when
tures, is very ſlender and uncertain, and by no they prove Injurious, and to ſuccour them when
means capable of ſhielding us from Dangers of they are Oppreſs’d. From what has been offer'd,
(a) Gomara, Hift. Gener. Ind. Occid. 44, 8 65. (1) See Montaign's Eſſays, B. 2. c. 12. p. 336. See alſo an ac-
coant of the Iſland of Ceylon, by Robert Knox. Book III. Chap. I. to which may be added, that according to Strabo,
the ancient Gauls, in their Wars, made uſe of Engliſh Dogs, as well thoſe as of their own Country. Geogr. Lib. iv.
301. Ed. Amft. ſee other Examples in Pliny, Hift
. Nat. Lib. VIII. Cap. XI. Polien. Stratag. Lib. IV. Cap. II. Se&t. 16.
Lib. VII. Cap. II. Se&t. I. Ælian. Hift. Animal. Lib. VII. Cap. XXXVIII. Pollux Lib. V. S. 47. Ed. Amft. Spar-
tian, in vit. Caracall. Cap. VI,
(6) Comp. Hobbes De Cive, c. 6. (c) De LL IV. p. 845. E. Ed. Wech,
yu
11.
2
this
466
Of the inward Strultare
Book VII.
. and
this farther Remark may be drawn, that the juſt gage in Compact, and ſubmit to Government;
Meaſure of any State, ought to be taken from yer by joining Conſent, that is, by deliring and
che Proportion it bears to the Strength of thoſe declining all the very ſame things, do fo direct
about it. And therefore thoſe Communities, their Actions towards the common Good, as that
which were heretofore look'd on as ſufficiently their pecit Confederacies are liable to ino Diffe-
large, when Mankind was divided into a prodi- rences or Diffentions. Why it ſhould happen
gious Variety of diftin& Governments, are too otherwiſe with Mankind, and why a conſidera-
little ſince the forming of Mighty Empires. ble Multitude ſhould not be able to live amica-
For, as Pliny (a) obſerves, Bodies, however high bly together for any time, without the Reſtraint
and towring, ſenſibly diminiſh, when ſet in Compari- of Civil Authority, is a Queſtion not unworthy
Jon with thoſe that overtop them.
our Debate. The Reaſon, then, for which the
III. To proceed; 'tis no leſs neceſſary, that wiſe Appointment of Nature hath join’d theſe
the Multitude, united on this account, do agree little Creatures, rather than others, in publick
about applying the means for the Attainment Bodies, ſeems to be this, that they continue all
of the deſired End. For otherwiſe, how nume the Winter, and are ſtill nouriſh'd after their or-
rdus foever they may be, yet if they conſent dinary manner, whereas moſt other Inſects, du-
not in uſing the beſt Methods for effe&ting the ring that Seaſon, either periſh, or are preſerva
common Security, but reſolve to manage each without any external ſupply of Food. Now
his own Strength according to his own Fancy, theſe Winter-Stores may be much more conve-
the Deſign will come to nothing. Becauſe, being niently brought together and laid up, if many
divided in Opinions, and moving contrary ways, join their Service, than if each labours apart
they will not help, but hinder one another. Or, from all the reſt. Whence 'tis evident, that the
to ſuppoſe the beſt, if they ſhould once happen Communities, form’d by theſe Creatures, have
to agree well enough about the Undertaking a quite different End from that of Human and
of a ſingle Adion, either upon ſudden Impulſe, Political Sociéties : tho’ we may diſcover in
or upon Counfel and Deliberation, led on by them fome Reſemblance of a Communion of
the Hope of Victory, of Booty, or of Revenge; Goods, whilſt they labour all for the ſame gene-
(as may ſometimes be obſerved, in the mad Diſ- ral Stock, and afterwards do all receive their
orders of popular Tumults (b): yet afterwards, Maintenance from it. Hobbes offers this farther
either by the Difference of their Tempers and reaſon of the Difference, that all the Governa
Judgments, or by that Envy and Emulation, ment of theſe Animals, is nothing but an univer-
which is natural to moſt Men; or through fal Conſent, or, many Wills directed to the ſame
Lightneſs and Inconſtancy, they will be fo torn Object, not one arbitrary Will, as in Civil States :
aſunder, as that, for the future, they will have he means, that each of them, in particular,
no manner of Inclination, either to afford their conſpires with the reſt to work together, and to
mutual Succour, or ſo much as to keep the Peace treaſure up their Proviſion in the ſame Heap;
amongſt themſelves (c). And conſequently and that all their Wills are not reduced into
theſe united Bodies, which are form’d of a great one Sovereign Will, as in Politick Bodies; fo
Number of Perſons, are, of all, the moſt un that what a ſingle Ruler, or a governing Coun-
likely to hold for any long time ; unleſs they cil determine, ſhould paſs for the Will of All in
are kept together by ſome general Fear, reſtrain. general. The main Cauſes why, in theſe Crea-
ing them from quitting a Reſolution, at their cures, which live by the Guidance of no Supe-
Pleaſure, which they have once, by Agreement, rior Faculty than Appetite and Senſe, the bare
taken up. Whence it follows, that the bare Agreement of Inclinations ſhould be ſo laſting,
Conſent of a Multitude, tho' confirm'd by Co- and fo effectual, as to ſtand in need of no other
venant, cannot give us that Security, which Aſſiſtance, ſeems to be theſe that follow. I.
we now ſeek after ; or, that 'tis not enough, Men are continually in Competition for Honour
for many Perſons to enter into a Confederacy and Dignity, whereas theſe Creatures are not:
of mutual Aſſiſtance, and to promiſe on both And conſequently, that Envy, Hatred and Emu-
ſides, that they will direct their Strength, and lation, which flows from this Spring amongſt the
all their A&tions towards this End, and towards former, is not to be diſcover'd amongſt the latter.
the common Good. But tis ſtill neceſſary, that 2. The Natural Appetite of the Bees, and that
ſome farther Tye be laid upon them, that they Faculty, which we may call the Judgment of
who have once conſented, for their general Be. their Senſes, are exactly uniform, and are care
nefit, to be peaceful and helpful to each other, ried on toward the publick Good, which in
may ibe hindred by ſome Fear, from drawing them differs not from the private. Whatever
back and diſagreeing, when they find their pri- not good for the Hive, (as Antoninses (d) obſerves)
vate Advantage claſhing with the publick. is not good for the Bee: To fee their Hives full
IV. For the Illuſtration of this point, Hobbes flourilhing, is their whole Wifh and Defire. But
(1) examines ſtrictly the Nature of ſome inferior amongſt Men, So many Heads, ſo many Wits: and
Animals, which (after a ſort) do appear like- ſcarce any thing is look'a 'on as truly Good,
wiſe to maintain Society among themſelves; which doth not afford the Poffeffor fomewhat
of which kind, the molt Remarkable are the ſingular and extraordinary above his Neigh-
Ants and the Bees (2). For theſe Creatures, bours
. 3. Creatures, which have not the Üle
tho: void of Reaſon, by which they might en- of Reaſon, neither fee nor fancy that they fee




(a) Panegyr. c. 61. n. 2. (6) Vid. Tacit. Anmal. I. c. 32.
on the Vices of the Athenian Commonwealth, l. 6.c. 45.
Georg. 40
(d) L. 6. f. 54.
(c) Compare the Diſcourſe of Polybius,
(1) De Give, c.5. 1. 5.
(2) V. Virgil
.
any

Chap 1.
467
and Contruido postes
1910
Government, c. 2. f. 8.
any Defect in the Adminiſtration of their com- bees, there is no sovereign Authority properly
mon Societies ( 1 ) ; in as much as they Erected ſo call'd (3), (tho this be che very Life and Soul
them not with the Guidance of Judgment, but of a Community; for which reaſon their Mo-
by the bare Inſtinct of Nature, and have not the narch is not Arm'd with a Sting. And therefore
Art of comparing them with others. Again, not 'cis the greater Miracle of Nature, chat
one of the Bees ever entertains a Deſign of form-
ing her Comb in any other, than the Common
Rege incolumi, mens omnibus una;
ſexangular Figure : whereas, in Human Polities, Amilo, rupere fidem.
there are very many, who, thinking themſelves
Wiſer than their Fellows, are Diſguſted with the Their Prince ſecure, one common Mind they bear ;
preſent Condition, and are for introducing a But, Him cnce loft, with wild Diftra&tion jár (a).
Change in the Government. And according to
the Difference of Judgments, ſeveral of thoſe . Yet here it ought to be well obſerv'd, that
Projectors are for fetting up ſeveral Models, or the Compariſon, thus purſued, between the two
for reforming things each in his own way, the Multitudes, one of Men, the other of Bees, hach
Conſequence of which muſt be the Diſtraction of been alledg’d to no other End, but to ſhew why,
the State, and, in the Iſſue, a Civil War. 4. in a great Body of Men, deſtitute of the Advan-
Theſe Creatures, tho' they have ſome Uſe of tages of Civil Government, no long Agreement
Voice, in making known to one another their or good Underſtanding can reaſonably be ex-
Deſires, at leaſt, when their Affections are more pected. But we would by no means be thought
warmly rais’d; yer they want that Art of diſgui- to inſinuate, as if theſe Inclinations, in which
ſing things in the falſe Colours of Speech, which the Seeds of Diſcord are contain’d, were found
is neceſſarily required to the
diſturbing the Minds to be of equal Force and Efficacy in each par-
and Paſſions of a Society : This being the Inſtru. ticular Man; or, as if ſound Reaſon did noc,
ment by which what is Good is Repreſented, from the bare Conſideracion of Human Nature,
either under a greater or a leſs Degree of Good ſuggeſt ſuch Arguments, as muſt engage and com-
neſs than it really hath, and what is Evil is in mand Men, rather than any other Animals, to
the ſame manner, either Aggravated or Extenu- follow Concord and mutual Kindnefs. And there-
ated: or, perhaps both are painted with a quite fore cur Deſign, in this Matter, is not in the
different Face from what they truly bear. But leaſt thwarted by a Learned Author (6), who
now, the Tongue of Man is often us'd for a hath undertaken to retort theſe fix Reaſons of
kind of Trumpet of War and Sedition; which Mr. Hobbes by ſhewing, That as Man naturally
is able, not only to propoſe falſe Rules of living loves Honour, ſo Honour is the Natural Reſult
and of acting, but alſo, with fair Glofſes and of good Actions : That he more perfectly un-
much infinuating Language, to recommend derſtands the Force of the publick Good, in ſe.
them to Others, and thereby to render their curing his own private Intereſt : That he enjoys
Minds utterly averſe to the Genius of a peaceful the Gift of Reaſon, which equally diſpoſeth
and ſocial Life. On which account, it was not him, as his Lot ſhall fall, to Govern or to Obey :
without Juſtice ſaid by the Comedian (2), of the That he hath the Art of enlivening and adorn-
eloquent Pericles, that He thunder'd and lightend, ing his Racional Faculty, by ſetting an Edge
and confounded all Greece. 5. Irrational Crea- and a Grace upon it, with the moſt proper Ex-
tures cannot diſtinguiſh between Contumely, or preſſions : That he apprehends himſelf to be un-
Contempt, and real Damage ; or rather, they der the Guidance of a Law, by the Power of
have no Senſe at all of Contempt. Therefore, which he diſtinguiſheth a down right Injury,
whilſt they find the Neceſſities of their own Bo- from a Damage offer'd without Injury: Laſtly,
dies ſupplied, they commence no Quarrel with That Agreements, made amongſt Men, are not
their Fellows. But of Men, thoſe are the great- only ſtrengthen’d and confirm'd by Nature for a
eft Diſturbers of the Common-wealth, who enjoy long Continuance, but do likewiſe receive from
the greateſt Opportunity of being eaſy. Nor do Art, as the Aſſiſtance of Nature, many Defences
they engage in Contentions about their Honour againſt leſs uncertain Dangers, and, by means
or their Reputation, till after they have gaind of Writing, a Duracion beyond the Age of Man.
an abſolute Victory over the Force of Hunger, The Argument doth not at all affe& us, unleſs it
or the Injuries of Weather. Laſtly, the Agree- could make out, that a numerous Body of Men,
ment of theſe Creatures is Natural ; but that of united under no common Government, might
Men only Federal ; that is, Artificial, or rather not be diſturb'd by a very few : As likewiſe,
held together by no other than Moral that all Men are judicious and Wiſe, and do,
Ties, which do not, in the leaſt, extinguiſh the after the cleareft manner, apprehend the Didates
Natural Difference of Men's Inclinations, the of lober Reaſon, and have utterly diſabled all
Roughneſs of their Tempers, and the Power their evil Affe&ions and Defires. He cer
which they have of taking quite contrary Mea- tainly ereás a Civil State upon no better than a
fures. To all which, we may add this farther ruinous Botcom, who makes too large Allow-
Confideration, that, in the Kingdom of the ances to the Modeſty and Ingenuity of Man-
(1) The Government among fuch Creatures is but pretended and Chimerical. See Algernoon Sidney's Diſcourſe of
by a kind of Miracle in Nature, the whole Hive diſperſe, themſelves, affoon as their King leaves them. V. Senes.
De Clementia, L. 1. c. 4, Ego 19.
(3) Bp. Cumberland De L.N.C. 2. f. 22.
(a) V. Virgil. Georg. L. 4. y. 212, &c. Add, Xenophon, Cyropæd. I, V.
Moral;
kind;

468
Book VII.
of the inward Structure
kind; and meaſures the Integrity of Others,
So again, as to the other Remedy propos'd,
eſpecially of the loweſt Rabble, by his own.
'tis impoflible to conſticute ſuch a Power as ſhall
V. But what that is which we may depend be formidable to the whole Multitude, by Na
upon, as ſufficient for the long-keeping together tural Means that is, by transfuſing the real
the Confents and Inclinations of an united Mul- Strength of All and Each of them into one
titude, will eaſily appear to one that throughly Perſon, ſo as to leave all the reſt utterly weak
examines the common Bent and Genius of Man- and impotent. But one Man can thus only be
kind. Now in this there are two Vices to be ſuppoſed to poſſeſs the Scrength of All, when
diſcover'd, which eſpecially hinder any Num- the whole Body, and every particular Member
,
ber of Perſons, from long continuing in the have obliged themſelves to uſe and apply theié
ſame general Deſign. One is, the great Va- Strength, as He fall judge expedient. When
riety of Inclinations and Judgments, about diſ- this Union of Wills and of Forces is once com-
cerning what is moſt expedient for the common pleated, thence at laſt ariſeth what we call a
End : to which there is joind, in many Men, a Commonwealth, or Civil State, the ſtrongeft
Dullneſs of apprehending which of ſeveral Means of all Moral Perſons, or Societies.
propos'd, is more advantageous than the reſt;
What hath been offer'd may, perhaps, be
as likewiſe, the obſtinate Stubbornneſs in de more diſtinctly underſtood if we conſider, that
fending what they have once, right or wrong, by the Submiſſion of their Wills, made on the
happened to embrace. The other general Vice, part of the Subjects, theic Natural Liberty of
is a ſluggiſh Coldneſs in Buſineſs, and an Aver- Choice is not extinguiſhd; by virtue of which
fion to doing willingly what we know to be for they are ſtill able, de facto, to refume what they
our Intereſt: when we are under no neceſſary once gave, and to deny and withdraw their
Force, which might drive us on if we hung Obedience which they promis'd: as likewiſe,
back, and oblige us, whether we will or no, to that the Strength and Power of the Subjects are
the Performance of our Duty. The former of not, by any Natural Conveyance transferr'd
theſe Evils may be remedied, by uniting in a really on the Sovereign, as if, for Inſtance, the
perpetual Bond the Wills of all the Parcies, or Strength, which lay in the Shoulders of all the
by ſo ordering things, that in all Affairs rela- Subjects, ſhould be removed to the Prince's
ting to the common Good of the Society, there shoulders; and conſequently that both the Wills
ſhould be but one Will to govern their Pro- and the Strength of thoſe who are govern'd,
ceedings. The latter, by conftituting ſome are, as we may lay, turn'd into the Scales, and
Pawer which ſhall be able to inflia a preſent renderd conformable to the Governour's Plea.
and ſenſible Puniſhment, on thoſe who oppoſe ſure, only by theſe two Moral Weights, which we
or hinder the publick Benefit. Tully (a) hath come now to examine. The firſt is taken from
a remarkable Saying to this purpoſe: They ob- their own Ad and Covenant, by which they
Jerve (ſpeaking of the Ariſtotelians,) that even the engage their Allegiance : and this receives all
Paſion of Grief was not conſtituted by Nature, with. poflible Force from the Command of GOD,
out our great Uſe and Advantage; that Men, taken and from the facred Authority of an Oath;
ix Offences, might be beartily troubled at the Correttin both which are ſo much the more effectual in
on, the Reproof, the Ignominy which they undergo. over-ruling Men's Minds, the more carefully
For they, who can bear Infamy and Reproach with the Parties have from their Childhood been É-
out Concern, ſeem to bave obtain'd the Privilege of ducated with good Diſcipline and Inftru&ion,
finning with Impunity.
are and the more Knowledge they have obtain'd of
Now the Union of Wills could not poſlibly the Neceflity and Uſefulneſs of Civil Govern-
be compaſs’d in any of the following ways: ment. But they who, through the extreme
Either that, by a Natural Conjunction, the Pravity of their mind, refift the Force of this
Wills of all the Parties ſhould be amaſs’d into Weight, whilſt they either fooliſhly imagine
one ; or that one Perſon only ſhould exert his Government to be a Stratagem found out for
Will, and all the reſt ſuppreſs theirs ; or that the vexing and oppreſſing of all others, to ſatis-
the Natural Diſagreement of Inclinations and fy the Tyrannical Pleaſure of a few; or elſe
Contrariety of Deſires ſhould by any means are overcome with a heavy Liſtleſsneſs, ren-
whatſoever be abſolutely taken away, and com- dring them averſe to the voluntary Performance
bined in perpetual Harmony and Concord of what their Duty requires ; theſe, we ſay, are
The only Mechod then, by which many Wills drawn to obey their Superiors, by that other
may be conceiv'd as join'd together, is at leaſt Weight which we have ftill in reſerve; that is;
this ; that each Member of the
Society fub- by the Fear of Puniſhment, and by external
mit his Will to the Will of one Perſon, or of Compulſion. Farcher, fince he who compels
one Council; fo thar whatever this Perſon or Another, ought to furpaſs him in Strength, and
this Council ſhall reſolve, in Matters which fince that Strength, by which Governours ex-
neceſſarily concern the common Safety, ſhall be ceed the Force of private Perſons, ariſeth from
deem'd the Will of All in general, and of Each hence, that the Subjects are ever ready to apply
in particular. For when I have made over my their united Power, as they ſhall be commanded ;
Power to Another, his Act and Choice is inter- hence 'cis evident, that the Ability, which Ru-
preted as mine (b).
lers have to compel and reſtrain Evil and Diſo-
(a) Tuſc. Quæft. 1. IV. c. 20. (6) A good Man ſubmits his own Fudgment and Choice ia the Governour of
the Univerſe, as good Subjeéts do to the Laws of the State. Arrian Epictet. I I. 6. 12. p. 118.
bedient

Chap. II.
of Civil States.
409
na-
GO
bedient Subjects, is owing to the Obedience of way approve or partake of it, the faid Act or
die Good. Now, thao che greater Part of a Na- Compact ſhall on no accounc affect his Perſon. So
tions Strength, ſhall always be in the Hands of that, on the whole, to join a Mulcitude, or
the Sovereign, 'tis eaſie for him to effect (1); many Men, into one Compound Perfon, to which
provided that he firft obtain’d his Crown by one general Act may be aſcribed, and to which
Lawful Means, and that he expreiſeth any tole- certain Rights belong, as ’tis oppoſed to particu-
rable Care and Endeavour towards the Diſcharge lar Members, and ſuch Rights as no particular
of his Truſt For as he may ever reaſonably Member can claim ſeparately from the reſt; ’tis
hope, that the Majority of the Subjects will be neceſſary, that they Mall have firſt united their
mindful of the Divine Command, and of their Wills and Powers by the Intervention of Cove-
Oath of Allegiance and Fealty ; ſo 'tis indeed nants : without which, how a Number of Men,
ever the Intereſt of the larger and better Part who are all naturally equal, ſhould be link'd to-
of the People, that the Stace ſhould remain Se- gether, is impoſſible to be underſtood.
cure and Undifturb'd, and that the Lawful Go VII. The Nature and the Number of thoſe
vernment ſhould be maintain'd in its due Privi- Covenants, by the Mediation of which, a Civil
leges and Authority. But beſides all this, Go State is compacted, may be diſcover'd by the
vernours have ready at Hand certain uſeful En- following Method of Enquiry. Let us con
gines, which afford a vaſt Addition to their ceive in our Mind a Multitude of Men, all
Power ; ſuch as are good Fortreſſes and a ſtand. turally Free, and naturally Equal, going about
ing Force, engaged to the Prince by more than voluntarily to Erect themſelves into a new Com-
ordinary Ties; by means of which Aſſiſtances, a mon-wealth : here it will be neceſſary, firſt of
Multitude, how numerous ſoever, may be re- all, that they covenant each with each in par-
duced to Obedience, eſpecially if they want ticular, to join into one laſting Society, and
Arms, and are ſcatter'd at a wide Diſtance, to concert 'the Meaſures of their Welfare and
through the ſeveral Parts of the Country; and in Safety, by the publick Vote. (Tho', in a Com-
caſe the Sovereign uſeth due Caution, to hinder pact of this Nature, 'tis the moſt uſual way, for
his People from bandying into Factions.
particular Perſons, to reſerve to themſelves the
VI. That the Union, which we have been Liberty of departing, if they ſhall ſee fit (2).
thus explaining, may be more throughly appre- This Covenant may be made either Abſolutely
hended, we are to know, that many Natural or Conditionally. The firſt is done, when a
Perſons, before they cloſe into one Moral Per. Man engageth himſelf to ſtick to this Society,
fon, whatever they Act, and whatever Obliga, whatever Form of Government ſhall afterwards
tions they take upon themſelves, they Act and be approved of by the major Part. The latter,
Undertake in their ſingle Capacities, fo that the when the Perſon engaging adds this Clauſe,
Number of the Actions and Obligations is equal provided ſuch a Form ſhall be introduced, as is
! ,
often, when we would denote many indepen. when this Covenant is to be tranſacted, 'tis re-
dent Men, we uſe the Word Multitude, which quiſite that all and each of them give their Con-
ſeems to imply ſome kind of Unity ; yet if we fent
. He that ſhall diſagree, tho he may hap-
conſider more exa&ly, this Term is not one of pen, for ſome time, to continue in the ſame
thoſe which we call Colle&tive Words, or ſuch as Place with the reſt, yet ſtands without the
as ſignify an united Body, compoſed of many Bounds of the riſing State, nor is obliged by the
Individuals, as thoſe other Names of an Army, Vote of his Fellows, tho' the greater Number,
a Navy, an Aſſembly, a Senate, and the like ; but ſo as to be under any Neceflity of joining him-
really imports no more than a bare Number of ſelf to the new Eſtabliſhment; but he remains
things in general, without ſpecifying whether under his Natural Liberty, in which it ſhall be
they be of the ſame or different kinds, whęcher lawful for him to provide for his private Secu-
they be united or diſpers’d. And therefore, pro. rity, according to his own Meaſures. But after
perly ſpeaking, a Multitude of Men is not one ſuch a Society, repreſenting the firſt Rudiments
compound Body, but many
ſeparate Perſons, and Beginnings of a State, hath been united in
each of which hath his own Judgment, and his the manner deſcribed, it is then farther neceſ-
own Will to Determine him in all Matters that fary, that a Decree be made, ſpecifying what
hall be propoſed. For which reaſon, if we Form of Government ſhall be ſettled amongſt
thus conſider a Multitude, and then abſtrax it them. For before this point is adjuſted, 'tis im-
from the particular Men of whom it confifts
, poffible they ſhould take any regular Step to-
we cannot aſcribe to it, in this general Notion, wards maintaining the Safety of the Publick.
any one Adion diſtinct from chole of the private Now when Matters are come to this Iſſue, they
Perfons, or any, peculiar Privilege or Right
. who joind themſelves in the Society, upon ab-
Hance ſuppoſe a Man to be in a Multitude, or folute Terms, ſhall, if they deſign to continue
to have many other Men about him, noc join'd longer in the Place where the Society is fixed,
in a common Society; ſhould moſt, or ſhould all be bound, by the Agreement of the Majority,
the reſt of theſe perform any Ad, or engage in to acquieſce in the Form eſtabliſh'd, tho' their
any Compact, whilft he alone enters his Diſſent own Opinion more incline to ſome other Model.
to the Buſineſs, or, negatively, doth not
t any For, by adding no Exceptions to the Covenant,
Mr. Le Cterc- tin this Additions to Moreri's Dictionary, at the bottom of the Article of Calvin,) fays, - That
Princes who have but a moderate ſhare of Integrity, may be'almoſt ador'd by their Subjects
.
(2) See hereafter in B. 8. c. 11. f. 2
nisd
I ii do siw aliae iatas?
hal v they
470
Of the Inward Structure
Book VII.

par-
on.
Law, a Merchant, &c. for here if this Titius, as
enjoy the Sovereignty, nor any part of it, but gaged to obey one Man, or one Council of
or
they are preſum'd to have, in this reſpect at publick Good, with which his own private Wels
leaſt, ſubmitted to the Will of the greater Num- fare is inſeparably United. However, altho' it
ber; from whom it can, with no manner of rea- it may not, perhaps, be altogether fo neceſſary
ſon be expected, that they ſhould quit their own in Democracies, as in other Governments, thác
Judgment, to comply with a few that obſtinately this Covenant, or mutual Engagement for per-
ſtand out. But on the other hand, they who forming the refpe&ive Duties of Sovereign and
entred themſelves in the Society upon Conditi- Subjeđ, ſhould be openly and exprefly made;
ons, unleſs they exprelly conſent to the Govern- yet 'tis abſolutely requiſite, that we ſuppoſe it
ment reſolv'd upon, ſhall not become Members to have paſs’d by tacit Agreement. For whether
of the new State, nor be concluded by the Vote we look on that firſt Decree, for the Eſtabliſh-
of the Majority.
ment of the Democracy, as the bare AG of many
VIII. After the Decree hath paſs’d, to ſettle Wills conſpiring in one Deſire, or as the Cove.
the particular Form of Government, there will nant of each Man with each, to this purpoſe
,
again be Occaſion for a new Covenant, when I will ſubmit my Will to a general Aſembly of us all
the Perſon or Perſons, on whom the Sovereignty upon Condition You will do the like : yet from all
is conferr’d, ſhall be actually conſtituted ; by this, thus ftri&ly conſider'd, there can no other
which the Rulers, on the one hand engage them- Obligation ariſe but what follows, that every
ſelves to take care of the common Peace and Se- Perſon ſhall be bound to acquiefce in this
curity, and the Subjects on the other hand to ticular Form of Government, ſo long as 'tis not
yield chem faithful Obedience; in which like- alter'd by univerſal Conſent. But now the Sub-
wiſe is included that Submiſſion and Union of jects, in a popular State, are certainly under a
Wills, by which we conceive a Stare to be but one farther Obligation. For firſt, each Member is
Perſon. 'And, from this Covenant, the State bound to ſtand to ſuch Decrees, and Commands
receives its final Completion and Perfecti. as ſhall proceed from the general Aſſembly; and
But now, if the Form eſtabliſh'd ſhould then again, they are engaged every one in
happen to be a Democracy, this latter Covenant particular, to contribute each his utmoſt Service
doth not ſo manifeſtly appear; becauſe the fame to the State, and to prefer the publick Good to
Perſons are, in different reſpects Sovereigns and his own private advantage (a). Otherwiſe, on
Subjects: whereas every Covenant requires two what Pretence ſhould any Man be puniſh'd, for
diſtinct Parties. Nor doth the different Reſpect not giving Attendance at the publick Councils?
ſeem a ſufficient Diſtinction; as, for Inſtance, Since then ſuch an Obligation is evidently diſa
when the ſame Titius is ſaid to be a Father, a cover'd, there muſt of Neceflity be fome Princi-
Son, a Husband, a Son-in-Law, a Father-in- ple whence its Origine is derived ; and this can
be nothing elſe but the Covenant of which we
a Merchant, ſhall promiſe any thing to the ſame have been now diſcourſing.
Titius, as a Father, there is no Covenant in the But, if the Society agree to erect an Arifto
Caſe. We are therefore to underſtand, that, in cracy, or a Monarchy, then this latter Coven
a popular Government, the particular Members nant is far more viſible. For upon creating the
and the Sovereign Aſſembly, are not only diftin- Senate, or the Prince, both Parties interchange
guiſh'd by different reſpects, but are really diffe- their mutual Faith, and mutual Performances
rent Perſons, (tho' not of the fame kind) who thence ariſe, as their neceſſary Duty. In as
have diſtinct Wills, diſtinct Ads, and diſtinct much as, after the Sovereignty hath been once
Rights from each other. For the Will of parti- conferr'd and receiv’d, the Prince or the Senate,
cular Men is not immediately the Will of the no leſs than the Subjects, ſtand bound to diſ-
People: nor can, what particular Men ſhall charge certain Offices, with which they were
happen to do, be conſtrued as the People's Ad, not before concern'd: The People, before the
or vice versa. Again, particular Men neither "paffing of this Covenant, being no more en.
'tis lodgʻd in the Body of the People. For to Men; than that Man, or that Council of Men
have a part of the Sovereignty, and to h have a were engaged to undertake the care of the
Vote in that Aſſembly in which the Sovereignty Publick. But now, from what Principle could
reſides, are two different things. So that, hither- this mutual Faith and Obligation to Duties
,
to, there feems to be no reaſon why we may not which were not required before, take their Riſe,
ſuppoſe a Covenant to paſs between the general but from Covenant?
Aſſembly, and the private Members of the State. What we have hitherto deliver’d, concerning
with ſome Colour to the contrary: 'tis that ſuch Decree, may be illuſtrated by that Account,
a Covenant would be of no manner of Ufe ; be- which Dionyſius Halicarnaffeus (1) gives us
5 of the
cauſe each Man by giving his Conſent to the firſt Settlement of the Monarchy in Rome.
For
ſetting up of a Democracy, is, at the ſame time, here, firſt of all, a Number of Men flock toge-
preſumed to have ſubmitted his Will to the Will ther, with Deſign to fix themſelves in a new
and beſides, the Love Seat, in order to which Reſolution, a tacit Com
that he hath for his own perſon and For- venant, at leaſt, muſt be ſuppoſed to have paſsa
tunes, feems to lay a ſufficient Neceflity on any amongſt them. After this
, they deliberate about
Man to labour with his utmoſt Ability for the the Form of Government, and that by Kings
(a) In Thucydides, a Member of a Democratical State, unacquainted with publick Affairs, is ſtyl'd an uſeleſs citizens
1.24. 40. Ed. Oxon. Socrates's Diſpute with Charmides in Xenophon, Memorab. 1. 3. p. 486.° (1) B. 11.in the Beginning
being
2

Chap. II.
471
and Conſtitution of Civil States.
being preferr’d, they agree to inveſt Romulus arbitrary Fiction, becauſe the firſt Riſe of moſt
with the Sovereign Authority. And this holds Governments is unknown, or at leaſt we do not
too in the Caſe of an Inter-regnum, during which, certainly apprehend them to have been compoſed
the Society being held together only by the and cemented after the manner here deſcribed.
prime Compaa, it is frequent to enter the De. For ’tis certain every State once had its Begin-
bare about the Frame and Model of the Com- ning (2). But now, before the fixing of any
mon-wealth (a).
State, the Perſons, of whom it was to confift,
We ought carefully to obſerve, that this could not be united to each other, by the ſame
Method of Producing and Conſtituting a Civil Ties as they are after the State is actually ſet
State, by the means of two Covenants and one up; nor could they yet be ſubject to thoſe to
Decree, is the moſt Natural, and what agrees in whom afterwards they owe Subjection. And
general to every kind of Government (1). Yet ſince we cannot underſtand, how either this U.
· Monarchy may ſometimes happen to be Con- nion, or this Succeſſion could be made, without
ftituted by one Covenant alone; as ſuppoſe the Covenants or Agreements before-mentioned,
many Perſons, without any antecedent Agree- it is neceſſary that the ſaid Agreements muſt
ment amongſt themſelves, ſhould at the fame tacitly at leaſt have paſs’d in the Inſtitution of
or a different time, each Man for his own Per- Commonwealths. Nor is there any thing to
ſon only, ſubject themſelves to a ſingle Mafter, hinder, but that the Original of ſome things, not
almoſt in the ſame manner as an Army, which is committed to the Monuments of Time and Hi-
form’d out of Strangers and Mercenaries, who ftory, may be traced out by the Diſquiſitions of
come from all Parts to offer their Service. So Reaſon.
again, they who join themſelves to a Commus IX. It may be worth our while, on this Oc-
nicy already Eſtabliſh’d, have need of one A. caſion, to examine with particular Stri&neſs the
greement only, by which they, on their own Opinion of Mr. Hobbes, who, in the Generation
part, petition to be admitted into the State ; and of States, acknowledgeth no more than one
on the other part they who repreſent the State, Covenant of each Man to each Man; frequently
upon Security given for their Obedience, admit repreſenting and declaring, that there paffech
and receive them.
no Covenant between the Prince, or the
It would be an unjuſt Suſpicion, in any Pere Senate, and the Subje&ts. Indeed, we may
ſon, to imagine thàt what we have offer'd about eaſily gather from the Deſign of his Books of
theſe Covenants, in making them the Cauſe and Policy, which is clearly diſcover'd in the Levia-
Foundation of a Civil State, is purely our own than, the Reaſon that put him upon this Aſſertion,
(a) See the Debate of the Perſian Nobles in Herodot. Thalia, p. 121, &c. and of Brutus and his Aſſociates,
in Dionys. Halicarn. 1. 4.
(1) Mr. Buddeus (in his Prattical Philoſophy, part 2. c. 4. f.
13, 14.) ſays, that Philoſophy teaches us the ſame concerning the Origine of States ; but, if we conſult Hiſtory, we fall
Scarce fond one Example of any State that has been form’d by ſuch expreſs Compacts. And indeed, (as Mr. Titius remarks,
Obferv. DLV.) the firſt Covenant and the general Decree relating to the Form of Government, had nothing to do with
the Eftabliſhment of all Civil Societies, not even of thoſe that appear'd the earlieft in the World, which (as I have
obſerv'd in the firſt Note on the ſeventh Section of the preceding Chapter) plainly owe their Rife to the Cunning and
Management of ſome ambitious Mind, ſupported by Force. In that Cafe, Subjects did not make any Covenant among
themſelves, but only treated every one for himſelt, with him to whoſe Government they ſubmitted . And much more,
had the new Comers, who afterwards joind themſelves to ſuch a Society, when there was already an acknowledg’d
Sovereign, any Buſineſs to treat with any other elſe but him, as our Author himſelf owns. As for thoſe, who after,
wards join'd ihemſelves ſeveral of 'em together, with an Intention to leave the Independency of a State of Nature, and
to form a new Civil Society; we muſt acknowledge, that they were oblig'd to engage themſelves, the one towards the
other ; for ever to unite their Forces together for their mutual Preſervation and Security. But beſides, that this co-
venant was rather tacit than expreſs; it was only made but for a Time, and in view of a ſecond, with reſpect to which it
was what Scaffolds are with reſpect to the Structure they ſerve for the building of. So that we may ſay, that the re-
ciprocal Covenant between Sovereign and Subje&ts is what properly conſtitutes a State : A Covenant which is the
Foundation of all Government, tho" it is often only tacit. Mr. Barbeyrac's 2d Note upon this section, p. 234.
(2) See Mr. Locke upon Civil Government, C. 8. 8. 7, &c. It is not at all to be wonder’d, lays Mr. Locke excellently
well in his ſecond Treatiſe of Civil Government, Seá. 101, & c. that Hiſtory gives us but a very little account of Men
that liv'd together in the ſtate of Nature ; the Inconveniency of that Condition, and the Love and want of Society
no ſooner brought any number of them together, but they preſently united and incorporated, if they defign’d to
continue together. And if we may not ſuppoſe' Men ever to have been in the State of Nature, becauſe we hear not
much of them in ſuch a state, we may as well ſuppoſe the Armies of Salmanaſſer and Xerxes were never Children,
becauſe we hear nothing of them till they were imbodied in Armies. Government is ever antecedent to Records,
and Letters feldom come in among people, till a long Continuation of Civil Society has
, by other neceflary Arts,
provided for their Safety, Eaſe and Plenty. And then they begin to look after the Hiſtory of their Founders, and
to ſearch into their Original when they have out-liv'd the Memory of it. For 'tis with Commonwealths, as with
particular Perſons; they are commonly ignorant of their own Births and Infancies : And if they know any thing of
their Original, they are beholden for it to the accidental Records that others have kept of it. And thoſe that we
have of the beginning of any Polities in the World, excepting that of the Fews, wherd God himſelf immediately in
terpos'd, are åll either plain Inſtances of ſuch a Beginning as I have mention'd, or at leaſt are manifeft Footſteps.
He mul ſew a ftrange Inclination to deny matter of Faá; who will not allow that the Beginnings of Rome and
Venite were by the uniting together of ſeveral Men free and independent of one another, among whom there was no
or Subje&ion: And if Foſeph Acofta's Word may be taken, he tells us, (Lib. 1. Cap. 25.) that in many
parts of America there is no Government at all: There
are great and apparent conje&tures, fays he, that theſe Men,
speaking of thoſe of Peru, for a long time bad neither Kings nor Commonwealths
, but liv'd in Troops
, as do this Day in
Florida
, the Cheriquanas, thoſe of Brazil, and many other Nations, which have no certain King, but as occaſion requires
either in Peace or War, they chuſe their Captains as they pleaſe. And I hope thoſe who went away from Sparta with
Palantus mention d by Juftin, Lib. III. Cap. IV. will be allow'd to have been free Men independent of one another
,
and to have ſet up a Government over themſelves, by their own Conſent. See Algernoon Sidney upon Civil Government,
Chap. III. Se&t. XXV, XXXIII. Mr. Barbeyrac's third Note upon this se e. p. 234, 235.
His
Superiority
lii2

472
Of the inward Strukture
Book VII.
His principal Aim was to oppoſe thoſe feditious X. Nor, upon admitting this Covenant be.
and turbulent Spirits, who, in his time labour'd tween Prince and People, do thoſe Inconve
to bring down the Regal Power to their own niencies, to which Mr. Hobbes ſeems to have had
Model, and either uccerly to extinguiſh, or to an Eye, neceſſarily follow. This indeed is com-
renderit inferior to the Subje&s. To cut off mon to all Covenants
, that they lay upon Men
from theſe Men their ordinary Plea for Rebel. an Obligation to ſome certain Performance
.
lion, which was, that there is a reciprocal Faith But then, there is the greateſt Difference imagi
between the Prince and the People, and that nable, between thoſe Covenants in which one
when the former departs from what he en of the Parties doth, at the ſame time, put him.
gaged by Promiſe, the latter are releas'd from ſelf under Subjection to the other, and thoſe in
their Obedience, as alſo to hinder reſtleſs and which neither Party requires, with reſpect to the
factious Perſons from interpreting every Adion other, any Superiority or Command.' Thus the
of their Prince, which ſuited not with their own Right of a Mafter over his Servant, at leaſt over
Humour, as a Breach of his Faith; he reſolves ſuch an one as freely enters into that Condition,
to deny that there is any ſuch thing as a Cove- depends upon Covenant; and in the ſame man-
nant between Subjects and their Sovereign. ner the Authority of a Father over him that of-
And having undertaken to maintain, that every fers himſelf to be Adopted, and the Command
Monarch, properly and truly fuch, hath an ab- of a General over his mercenary Troops. And
folute and unlimited Power ; it follow'd, of yet this doth not hinder, in the leaft, but that in
Courſe, that he ſhould exclude all Covenants all theſe Caſes there is a Right of Governing
or Compacts from this Affair, becauſe theſe feem on the one ſide, and an Obligation to Obedience
to be the chief Inftruments of reducing Authority on the other : nor may the Party in Subje&ion
to Bounds and Rules. But now, although it throw off the Yoak, when his Superior's Com-
highly concerns the Intereſt of Mankind, that mand proves diſagreeable to his own Humour
the Regal Power ſhould be kept ſacred and in- (a). For, in all theſe Covenants which do not
violable, and be ſecured from the impertinent include a Submiſſion of Will and of Scrength,
Cavils of thoſe bufie Deſigners, who are always ſome certain Duties are ſpecified, to be mutually
plucking at it; yet this Conſideration doth by perform’d on the inward Principle of Conſci-
no means make it neceſſary for us to deny what ence; and when either Party refuſeth volunta-
is as clear as the Light, and to acknowledge no rily to fulfil his Engagement, there remains no
Covenant, in a Caſe where there is certainly Redreſs but either from War and Violence, or
a mutual Promiſe for the Performance of Duties from the Compulſion of their common Lord.
not before required. Whilft I voluntarily ſub. But in Covenants, where one of the Parties is
ject my ſelf to a Prince, I promiſe Obedience, made ſubject to the other, the latter may, as he
and engage his Protection : on the other hand, thinks fit, preſcribe what ſhall be done by the
the Prince, when he receives me as his Subject, former ; and hath likewiſe a Power of forcing
promiſech his Protection, and engageth my O. his Compliance, in caſe of Refuſal; whereas the
bedience. Before this reciprocal Promiſe, nei- former Party cannot, on any account, be ſaid
ther was he bound to protect me, nor I to obey to hold the like reciprocal Power over him.
him, at leaſt by any perfe& Obligation. And Wherefore a Governour cannot be cax'd wich
who will pretend to ſay, that an Ad of this kind Breach of Covenant, unleſs he either utterly
doth not fall under the Head of Covenants? Nor abandon all Care of the Publick, or take up the
is this Covenant uſeleſs becauſe they who, by Mind and Carriage of an Enemy towards his
their own free Choice, appoint a King over them- own People, or manifeſtly, and with evil De-
felves, ſeem before-hand to have entred into an fign, recede from thoſe Rules of Government,
Agreement for the advancing ſuch a particular the Obſervation of which was, by the Subjects,
Perſon to the Throne. For as the bare Election, made the neceſſary Condition of their Obedi-
without the Acceptance of the Party Elected, ence. And 'tis very eaſy for one in Authority
confers on him no Power over the reſt ; ſo 'tis to avoid and eſcape all thoſe Imputations, pro-
plain enough, from the Nature of the Bufineſs, vided he will but conſider, that the higheſt of
that they who freely put themſelves under the Mortal Men are not exempt from the common
Power of Another, defire he ſhould, in the Ex- Laws which attend their Fortune and Condition,
erciſe of that Power, purſue the End for which and that, as Pliny (b) obſerves, No Prince was
it was given him : and that he receiv'd the Power ever himſelf deceiv'd, who had not before deceiv'd
on this Condition, that thoſe who conferr'd it on others. Laſtly, that Prince muft either be ex-
him ſhould not, by his means, miſs of their Aim. tremely vicious, or extremely weak and impo-
They who create a Sovereign therefore, as they licick, who cannot ſo order Matters as that it
at the ſame time promiſe whatever the Nature ſhall be always the Intereſt of the greater, or the
of Subje&ion requires ; ſo, on the other part, ſtronger Part of the People to ſee Him preſerv’d
engage him to endeavour the procuring of all in his Perſon and Government. And it may be
thoſe Benefits, for the ſake of which Civil Go- a ſtrong Motive to him, to apply his beſt Endea.
vernments are introduced. And what can we vours towards the compaſſing this good End, if
call this but the entring into Covenant ?
he barely reflect on that Saying in Livy (c);
(2) Xiphilin. Epit. Dion, in Neron. All Sovereign Force and Authority, when conferr'd by a private Perſon, pafleth immen
diately from the Giver, and holds good againſt him in the Hands of the Receiver.
() L. 8. c. 21.
(6) Paneg. c. 66. in fin.
2

Chap. II.
473
and Conſtitution of Civil States.
their Sovereign, from Such a Covenant by which turning, when he might have gone on in the
be it to be imagin’d that any people
, or ſo much as any be bound to his Sovereign, in his
own Perſon,
fingle Man, will continue longer than they needs muft, without any Dependence on the Obedience of
in a Condition which is grievous and uneaſy to their others; to the end, that how uneafy ſoever one
Mind? If chen the Majority of the People find
or two perhaps appear under their Confinement,
it their Intereſt to ſtand by their Prince, and to the Sovereign may make uſe of the united
defend the publick Adminiſtration as lodg’d. in Strength of all the reſt, in reducing the Rebelli.
his Hands; as they cannot but do, if he guide ous to their Dury.
his Councils with Juſtice and Wiſdom, then his No lefs incongruous is that Affertion of Mr.
Fortune refts upon a ſafe Bottom. He that can- Hobbes to this purpoſe ; That the Obligation to obey
not compaſs thus much is fitter for any other Im- the Supreme Civil Power doth not ariſe immediately
ployment, than for Sovereignty and Command. from that Covenant by wbich particular Perſons give
XI. Let us proceed to weigh more particu- up all their Right to the State ; but only mediately
larly the Reaſons urg'd by Mr. Hobbes in favour from bence
, that, without Obedience
, the Right of só
of his Opinion. And here, firſt of all, we think vereignty would have been vain and inſignificant
,
is very inconvenient, that he ſhould go about and; by Conſequence, no Common-wealth would bave
to derive the Obligation of Subjects, towards been
towards been formd (b). What need of this winding and
each Man obligeth himſelf to each of bis Fellows, that ſtreight Road? The Reaſon, which moved him
be will not reſiſt the Will of that Perſon, to whom he to this pofition is certainly idle and frivolous.
batb yielded himſelf to be governd (a). Indeed, He proceeds upon a tacit Suppoſal, that things,
they who have agreed amongſt themſelves, to agreed to by Covenant, cannor lawfully be re-
confer the Sovereignty on a certain Man, are fuſed; whereas a Prince may lawfully command
preſumed to have agreed likewiſe, that they his Subject, what the Subject may as lawfully
fhould all ſubmit their own Will to his Will; diſobey; as if the King ſhould order me to kill my
or, that, in the Management of the Common ſelf, or himſelf, or my Father, though judicially
wealth, his Will ſhould repreſent the Will of condemn'd: wherefore, in his Opinion, the
them Áll. Nor is it unuſual to ratify ſuch a Obedience of Subjects is to be drawn from ſome
Conſent about conferring the Sovereignty, as other Principle, than from any Compact with
alſo the Terms under which it is conferr'd, by the Sovereign. But now, we maintain, that the
the mutual Covenants and Oaths of the Peo- lawful Power of the Prince, and the Duty of
ple
. Yet to agree about inveſting ſuch a Per- the Subjects do exa&ly and compleatly anſwer
ſon with the Government, and to confirm their one to the other : and therefore we deny that,
Inveſtiture, by interchanging their Faith one in any caſe, the Subject can lawfully refuſe what
with another, are two different things. But to the Prince lawfully enjoins. For he can lawful-
go farther, there's no Abſurdity in ſuppoſing, ly enjoin no more, than what really is, or, at
that Subje&s ſhould mutually engage their Faith leaft, is judgd to be agreeable to the End for
to yield Obedience to their common Prince; as which Civil Communities were firſt eſtabliſhed.
we know, there are ſuch Covenants in which If either, through evil Deſign, or through un-
All engage for each, and each for All.. Yet wife Councils, he attempts any thing contrary
there is no Necefficy, but that this may entirely to this End, the A& ſhall on no account be és
be omitted, and in Fact 'tis ſeldom practis'd. fteem'd lawful. But whether the Subjects may
When a Stranger is incorporated into a State, reſiſt all ſuch unreafonable Injunctions, is pro-
he ſwears Allegiance to the Sovereign : but he perly another Queſtion, and ſhall be diſcuſs'd in
is now here required, ſo far as we can diſcover, another place. Mr. Hobbes's Inſtances are of no
to contract with the other Subjects about paying weight in this point. For, if the Prince might
Laſtly, it would be a thing of lawfully command any of thoſe Actions which
very dangerous Conſequence, to build our Ob- he mentions; that is, if the Performance of ſuch
ligation to our Prince on a Covenant with each
a ching, by a Subjeđ, ſhould ſeem Conducive
of our Fellow-ſubjects, which ſhould import as to the Good of the Common-wealth, the Sub-
follows, I transfer my Right upon the King for your ject could not lawfully refufe to comply (c).
Sake, that You, for my fake, may transfer your Right And, on the other ſide, if the Commands were
upon him alſo
. For at this rate every Subject will void of all Juſtice and Reaſon, and the Subject
ſeem to make the Obedience of every other ſlain for not performing them; no Man in his
Fellow-ſubje& the neceſſary Condition of his Wits will fay that ſuch an one was lawfully put
own: and conſequently, if any one happens to to Death
violate his Engagement, all the reſt ſtand re As to what he affirms in the fame Chapter (d).
leas’d from theirs. And this Reaſon alone ſhews That the Right of a Sovereign is conferrid on
what Neceſſity there is, that each Subje& ſhould him by the People, in the way of Donation ;
(a) De Cive, c. 5. f. 7.
(6) Ibid. c. 6. f. 13.
f) See Judges 1x. 54. 1 Sam. XXXI, 4. Zonaras, Part III. reports, that when Theophilus the Emperor upon the
Loſs of a Battle, ſtood almoſt benumm’d with Fear, and would not ftir out of the Field; Manuel, with his Sword
drawn, accoſted him to this Purpoſe, Unleſs you
follow me, I am reſolu'd to kill you on the spot ; for 'tis better you ſhould
loſe your Life, than that you ſhould fix a Mark of the higheſt Diſgrace on the Roman State, by falling into the Hands of the
Enemy. At which Threats the Emperour, with ſome Unwillingneſs, awaken’d from this Lethargy, and following his
Guide, got off ſafe. The Poet obſerves, "Quint. Calab. 1. 13.
A Prince ſhould rather fall amongſt the Brave,
Than wear the Badges of a Royal Slave,
(4) Seat, ult, in fin.
this
474
Of the inward Structure
Book VII.

this is not ſo much as confiftent with his own Covenant; the Woman's Will being then put
Notions. Donation he himſelf allows (a) to be under Subjection to the Man's
. Whereas in the
the transferring of Right from one Party to ano very act of taking or choofing ſuch a Woman
ther, without the like Recurn. Buc now.when for a Wife, a Covenant might paſs between the
a Prince is inveſted with the Sovereignty, there the Parties. Epicurus's Fallacy about Death was
is a mucual transferring of Right ; or a recipro- a piece of Sophiftry much of the fame Strain,
.
ent, the Prince to take care of the Common. When we are in Being, Death is not"; and when Deals
wealth, to which Duties neither of them ftood is in Being, we are not: therefore Deatb fignifies now
bound, before this A& paſſed between them. thing to us; or, Death and We have nothing to do
For, as before the Government was conferr'd on
with each other. What a nice Cheat was this upon our
ſuch a Perlon, the reſt of the Society might have Underſtanding? As if we fear d Death when 'twas
oppoſed or reſiſted his Command, though they once over, and bad taken away our Senſes
s with it ;
afterwards appoint him for their Sovereign ; lo and not rather fear'd to Die, by which set our Senſes
he on his
part,
if they had demanded his Care are thus taken from us! For there is a certain Point
or Protection, might likewiſe have reſiſted them; of time, when We ſeem to be gone, and yet Death is
that is, might have denied thoſe Performances, not quite arrived. And bere's the miſerable Momene
,
as things which they had no Right to require of when Death begins its Being, and We conclude ours.
him (6).
But farther, ſhould a Man contend with
XII. The other Set of Reaſons, which He never ſo much Earneſtneſs, that he cannot, in
makes uſe of (c), to overthrow all Compacts Democratical Governments, conceive ſuch a
between Prince and People, will appear to be Compact in his Mind, or that he judgeth it
no leſs weak than the former. In the firſt utterly uſeleſs; yet he cannot fairly take Oc-
place, he undertakes to prove that Democratical caſion thence to exclude it from other Forms,
States are conſtituted not by Covenants between where, thoſe who command, and thoſe who
each Man and the whole People, but between obey, are really and naturally different Per-
each Man and each Man. His Argument is; fons. For here cercainly a mutual Covenant
Becauſe, in every Covenant, the Parties cove- is required, by which the former engage to
nanting muſt exiſt antecedently to the Cove- undertake the care of the Publick, and to
• nant it felf. Whereas before the Settlement of make the Safety and Welfare of the People
the State, the People cannot be ſaid
to exiſt, as
the chief Law of their Actions; and the latter,
being not one Compound Moral Perfon, but again engage to yield Obedience. Hence 'tis
• only a Multitude of Individuals
. And then a- evident, what Judgment we ought to make of
gain, after the State is ſettled, to enter into that other Affertion laid down by Mr. Hobbes
• lucha Covenant would be to no Purpoſe ; (e), that, Becauſe the particular Members of the So-
• becauſe the Will of the People includes in it ciety, not by any Compa&t with the People, but by pri-
the Will of any private Subject, to whom the vate Covenants between themſelves, are bound to ac-
People muſt be ſuppoſed, in this caſe, to en- quieſce in every A&t of the People; they are, by the ſame
gage their Faith ; ſo that they may releaſe Covenants, bound to acquieſce in that A&t of the Peo-
themſelves when they pleaſe, and, by Conſe- ple, which transfers the Sovereign Right of the State
quence, are actually free. But now 'tis mani, upon a Seriate, or upon a Monarch. For 'cis no good
felf, that there's a Medium between theſe Suppo Conſequence to ſay; if the General Aſſembly
ſitions. Before the Settlement of the State, of the People agree to transfer the Supreme
many Men are not indeed a People, that is, a Command on a Senate, or on a King, particu-
Democratical Community: therefore no Cove- lar Perſons are bound to ſtand to their Reſoluci-
nant can be made with them as ſuch. And ſo on; therefore there paſſech no Covenant between
too, after the State is ſettled, a Covenant of this the People, who transfer the Right, and the No,
Nature would in one Senſe be in vain; that is, bles, or the King, on whom it is transferr'd.
'twould be in vain, for one or two particular He has ſtill an Argument behind, of as much
Subjects, to make a private Compact with the Strength and Weight as the reft. He tells us, that
People about the publick Adminiſtration : for he a King, though elected by the People, cannot by
that hath once given his Conſent to the intro- the ſame People be obliged to any Performance;
ducing a Democracy, is preſumed to have there becauſe immediately upon his Ele&ion, the People
by obliged himſelf to obey ſuch Decrees, as ſhall are diſſolv’d, and loſe the Exiſtence they had as one
proceed from the Majority of the
People; which Perſon; for which Reaſon the Obligation dire&ed
Obligation muſt needs ſuffer Prejudice from any towards them as one Person, doth likewiſe periſh
particular Covenant. But, fill in the very AA and is diſſolv'd. Now, what he fixech here for
of conſtituting a popular State, a mutual Cove- the Baſis of his opinion, that the Obligacion
nant may, and really doth, pafs between the towards any perſon ceafeth, the Perſon himſelf
People and the private Members; the Nature of being taken away ; is to be underſtood of thoſe
which we have already explain'd. A Man might Caſes only, in which, either the Perſon is exting
argue, with juſt as much Reaſon and Confe- by a natural Death, or that Quality expires in
quence, that a Husband cannot poſſibly have en- which alone the Obligation was founded. But
tred into any Covenant with his Wife: becauſe, when a free People transfer the Government on
before Marriage, ſhe was not his Wife ; and, at- a King, neither do themſelves die in a natural
ter Marriage, 't would be in vain to come to a Senſe, nor is the King's Obligation founded in
ز
ز
(a) St.ult in fin. (b) Comp. Luke XII. 13, 14. (c) C.7. 1. 7,&c, (d) Inftitut, Divin. 1. 3. C. 17. (e) De Cice,c. L.
f. 9.
that

Chap. II.
475
and Conſtitutions of Civil States.
was
C
C
6
C
(© For that Definition of Dion. Prufaus (in Boryſthenic.) A State is . & Multitude of Men living this section, 239.
chat Quality of the People, which denominated cular A&s, diftin& from thoſe of the private
them a Free State ; but in that by which they Members. Again, as ’cis diſtinguiſh’d and known
reſolve to be for the future, a Society of Men from the fame Members by one general Name
under a ſingle Governour. As a Suitor, who is (d), ſo it hath peculiar Rights and ſeparate Pro-
engaged by Covenant to a young Woman, can- perties, which neither particular Men, nor
not after the Marriage hath been conſummated, many in Conjunction, nor all together, with-
except againſt the Contract, on pretence that
out him'in whom the Supreme Authority reſides,
his Obligation is expired, becauſe ſhe is not a can make any Claim or Pretences to : and laſt-
made. For the Obligation of Şuitor was not which private Perſons can, on no account, al.
founded in the Quality of Virginity ; but he ſume or challenge to themſelves. So that the
contra&ted with a Virgin in order to her chang- moſt proper Definition of a Civil State ſeems to
ing her Condition to that of a Wife. Up. be this, (3). (It is a compound Moral Perſon,
on the conſtituting a Monarch, the People are whoſe Will, united and tied together by thoſe
diffolu'd in this reſpect only, that the Supreme
Covenants which before paſs'd among the
Authority doth no longer reſide in a General * Multitude, is deem'd the Will of all; to the
Aſſembly; but they are by no means diffolvid End, that it may uſe and apply the Strength
into a looſe Multitude, not united by any mu ? and Riches of private Perſons towards main-
tual Bands : for they ſtill continue one Society, taining the common Peace and Security (e).
held together by one Government, and by their Mr. Hobbes hath given us a very ingenious
original Covenant amongſt themſelves. The Draught of a Civil State,conceiv'd as an Artificiah
whole of the Matter therefore is this; Mr. Hobbes Man: In which the Sovereign is the Soul, as
impoſeth upon leſs intelligent Readers, by the giving Life and Motion to the whole Body;
ambiguous Signification of the word People. In the Magiſtrates and the other Officers, Artificial
Democracies, the People denotes the whole Bo Foints ; Rewards and Puniſhments, faſtened to
dy of Men, who in different refpe&s, govern the Seat of Sovereignty, and, by which every
and are governd (a). But who will venture to Member is moved to the Performance of its
affirm, that an Obligation towards a People in particular Duty, the Nerves which do the ſame
this latter Senſe, or as they are ſubject to a in the Body natural ; the Wealth and Riches of
Monarch, or to a Senate, may not continue and particular Members are the Strength; Salus Populi
fubfift, cho' contracted whilſt they were yet free, (the People's Safety,) its Buſines; Counſellors, by
but in order to their future Subjection, and in whom all things needful for it to know are ſug-
certain proſpect of it? To conclude, Mr. Hobbes geſted to it, are the Memory; Equity and Laws
himſelf elſewhere (b) expreſly aſſerts, That God an Artificial Reaſon ; Concord is Health, Sedition
was made the King of the Jewiſl
. People by vir Sickneſs, and Civil War, Death. Laſtly, the
tue of a Covenant between him and them (1). * Patts or Covenants, by which the Parts of this
And how then can he pretend, that there is Body Politick are cemented together, reſem-
no Covenant between a mortal King and his Sub. ble the Divine Fiat, or the Let us make Mar,
je&s? A little before he delivers the direct con pronounced by GOD in the Creation (f).
trary: When a Man, ſays he, ſubmits himſelf to Whence we may gather by the way, that Iſo-
bis Conqueror, he is bound by as neceſſary an Obligation crates (g) was in the wrong when he affirm'd
as the trueſt Subject : for a Contract
, lawfully entred the form of Government to be the Soul of the State,
into, cannot fairly be broken or tranſgreſs’d (2). having the ſame Force and Power as the Mind
XIII. By the means of theſe Covenants then, hath in the Body. Whereas the form of Go.
a Mulitude of Men are ſo united and incorpo- vernment is rather the ſame in the State, as in a
rated as to form a Civil State ; which is conceiv'd human Body the Structure and Diſpoſition of
to exiſt like one Perſon (c), endued with Under- the ſeveral Parts and Members.
ſtanding and Will, and performing other parti-
(a) Vid. Hobbes de Cive, c. 13. f. 3.
(6), Leviath. de Interregnis, f. 7. Comcluf.
(1) Vid. Hobbes Ibid. c. 35, 40,
(2) Vid. Hobbes Ibid. c. 20. (c) Starius Achil. 1. 1. V. 437, 438.
Sparſa ac diſſona moles
A wild and ſhapeleſs Maſs
0302 In Corpus vultumque coit, Ego rege ſub uno de Affumes a Figure and a comcly Grace,
vd bo. Difpofita eft.
Under a Monarch's Reign-
(d) Vid. L. 1. t. 8. 1. 6. f. 1. D. De Diviſ. Rerum, Eo L. 2. t. 4. I. 10. f. 4. D. De in Fus vocando, in L. 3. t. 4. 1. 7. %. 1,
D. Quod cujuſcunque Univerſ. Nom. Ego L. 47. t. 18. 1. 1. f. 7. D. De Quaftion. Add. Senec. de Beneficiis, 1. 6. c. 19.20
(3) This Definition is a little intricate, and as Mr. Titius obferves (obferu. DLVII.) confounds the Sovereign with the
Siate
. The State indeed is a Body of which the Sovereign is the Head, and she Subje&s the Members. Our Author bas
here too blindly follow'd Hobbes's Definition de Cive, Cap. V.S.9. Part of Mr.Barbeyrac's firft Note upon this seation, 239.
, in
Place, under the ſame Laws, we may perhaps hereafter find Occaſion to examine ; it being founded
on the Maxims of
Grecian Policy. Nor hath Apuleius much better Succeſs when he defines the Platonic Commonwealth, as the moſt
per-
fe& Model of Government, in the following manner; from the Authority of Plato himſelf; A State is 4 Union on
Conjunation of many Men,
amongft wbom ſome govern and ſome are govern'd, but all agree and mutually a flift each
other,guide
themſelves in their Duty by tbe" same Laws, (ſuch as are good and juſt,) and have accuftom'd themſelves to live with-
in the ſame Walls, and to have the same Inclinations and Averſions in all things.
(f) Leviath. Proæm.
(8) Areopagit. p. 245, Sgp Panathenaic. p. 450. But it ſeems to me, that Iſocrates is not ſpeaking there of the
form of Government, and that Ilonsteia ſignifies here only Civil Government in general, which as our Author
himſelf allows in the following Chapter, Sect. 1. is the Soul of the State. Mr. Hertius has lately obſerv'd the ſame
thing in his Remarks on Wolfius's Tranſlation, which led our Author into this Miſtake. Part of Mr. Barbeyrac's
ſecond Note upon this Se&tion, p. 240.
XIV, The
476
Book VII
Of the Inward Strukture
XIV. The State in exerting and exerciſing its rience ſhews to have a very greac Virtue and
Will, make uſe either of a ſingle Perſon, or of Efficacy towards the preventing of theſe Incon.
a Council, according as the Supreme Command veniences; as Fundamental Laws, good Edu-
hath been confer’d, either on the former or on cation and Diſcipline, and above all, the Pre-
the latter. Where the Sovereignty is lodg'd in cepts of Religion.
one Man, there the State is ſuppoſed to chufe It follows on the other hand, that whatever
and deſire whatever that one Man (who is pre- any particular Perſon, or many together, or
fumed to be Maſter of perfect Reaſon,) ſhall all, without the King, ſhall will or do, beſide
judge convenient (1); in every Buſineſs or Af- or contrary to his Authority or Command, not
fair, which regards the End of Civil Govern. only in Buſineſs of the latter, but alſo of the
ment, but not in others. For Inſtance, if a former kind, ſhall not in the leaſt be look'd on
Prince declare War, if he make Peace, or enter as the Will or the Action of the State, but as a
into an Alliance, this is interpreted as the Will private Will, or a private Action: Nay, there
and Ad of the State (a): but not if he eat, or ſhall be ſo many diſtinct Wills, and ſo ma-
drink, or ſleep, if he marry a Wife, or if he ny diſtinct Adions as there are particular
be guilty of any Vice or Diſorder. So that we Men concern'd in the willing, or the doing
may
form a Diſtinction between the publick Will thus or 'thus. And the ſame Judgment is to be
of the Monarch, repreſenting the Will of the paſs’d on that which ſingle Men, or a Number
State, and the private Will of the ſame Mo- of Men ſhall attempt, by their own private Mo.
narch, which he uſeth like any other Man, tion, without Authority or Order from that Go.
in the Proſecution of his perſonal Affairs. verning Council, in which the Sovereign Power
Hence there naturally ariſeth this Queſtion, refides. Therefore amongſt the Opinions which
Whether if he in whom the publick Will reſides, encourage Sedition, and which tend to the diſ-
wills otherwiſe than he ought to do, and conſe- ſolving the inward Frame and Structure of any
quently ſins in the Exerciſe of this publick Will, State, eſpecially of a Monarchy, Mr. Hobbes (6)
the Adion which proceeds from a Will thus de- reckons this for one, that the Vulgar are not able
praved, is to be look'd on as the Axion of the rightly to diftinguiſh between a Štare, or People,
State ? For every Perſon, who ſubmitted his and a Multitude. A People or a State makes but
own private Will to that of the Prince, is ſup- one Perſon, having one Will, and performing
poſed to have done it with this Intention, that only one and the fame Action. Neither of which
the Prince ſhould will nothing, but what ſhould can be ſaid of the Multitude of Subjects oppoſed
be juſt in it ſelf, and advantageous to the Pub- to the Prince or Sovereign Council
. But what
lick. Here it ſeems reaſonable to pronounce, he affirms afterwards, that The People Rule in every
that an A&ion, proceeding from the Abufe and State, comes to nothing through his idle Affe&a-
Corruption of the publick Will, is in it ſelf tion of over-much Nicery. For the Word People
a publick Adion, or the A&tion of the State; be. muſt import one of theſe two things, either the
cauſe perform’d by the Sovereign, as conſider'd whole State, or the Body of the Subjects. In
in that Capacity. Thus if a King or a Senate the former Senſe 'tis ridiculous Tautology, the
ordain evil Laws, execute wrong Judgment, People, that is the
People, that is the State, rules in every State: in the
appoint unfit Magiſtrates, or undertake unjuſt latter Senſe 'tis abſolutely falſe, the People as dia
Wars, the Ad in all theſe Inſtances is certainly ſtinet from the Prince, rules in every State. As for
publick. As when a Coach-man overturns, the that which follows, In Monarchies the People govern;
Axion is his as a Coach-man, tho' as one un becauſe the People, by the Will of one Man, exert their
skilful or negligent in his Art. But then, in the own; he ought rather to have ſaid more plainly
Court of Conſcience, no Man is accountable thus: In a Monarchical Government, the Will
for ſuch an Ad, unleſs he contributed poſitively of the Prince is ſuppoſed to be the Will of the
and effectually towards its Production. There- State. Nor can that Paradox, Rex eft Populøs,
fore Subjects are not charged with the Faults of The King is the People, be explain'd in any other
the Government, nor they in a Senate or Ruling Senſe than this. His other Remarks are true
Council, who difſent from any ſuch Propoſal, enough; as, that the Vulgar always ſpeak of a
and are out voted by the reſt. But the Inconve- great Number of Men, as of the People, or
niences, which innocent Subje&s ſuffer on ac- State, and are wont, upon Occaſion to ſay, the
count of theſe publick Crimes, are to be rank'd State hath Rebell’d againſt the King, which is
amongſt thoſe general Evils to which Human impoſſible ; and that the People or the State,
Nature, in this Condition of Mortality, lies ne- defire and refuſe what is deſired or refuſed by
ceſſarily expos'd; and which we muſt therefore ſome troubleſome diſcontented Mutineers, un-
endure with the ſame Patience as we do extreme der the Name and Colour of the People, anima-
Drought, or immoderate Rain, and thoſe other ting the Members of the State againſt the State,
Misfortunes which we ſtyle naturally Evil. the Subjects againſt the Sovereign, Laild vos soi
Though there are ſeveral things, which Expe.




the
(1) Provided firſt, that he ae with Knowledge, and not thro' Error, nor thro" any, raſh Motion, which for of
time deprives him of the Ufe of his Realon ; "and, ſecondly, that he don't violate the Fundamental Laws of
- the State. Titius Obſerv. 559.
(a) Euripid. Supplic. o. 1188, 8.
isted 'Tis fit Adraftus fwear ;
The King and Lord of Greece ſhall fwear for all.
(6) De Cive, c. XII. I. &
vo) 36702
Czwolle 11 maid
So in tigning
XV. Bat
Chap. II.
477
and Conſtitation of Civil States.

XV. But where che Supreme Authority is con- he cannot require, that all the reſt ſhould be
ferr'd on a Council, made up of many Perfons, govern'd by his Vote, or that they ſhall omit
each of whom retains his own Will: the Que- what ſeems neceſſary or profitable for them, ini
ftion firft to be determind is, What Number of Deference to one diſſenting Member; he is at
cheſe Perſons agreeing in the ſame Reſolution, the ſame time, preſum'd to have obligʻd him-
Shall repreſent the Will of the Council, and by ſelf to the acknowledging and ratifying all Re.
Conſeguence of the State ? For otherwiſe, as ſolucions, which the major part fhall have
no Man is bound to follow Another's Judgment ſettled. For if he looks on this as any Hardſhip,
rather than his own, unleſs he hath ſubjected his he ſhould have put in his Exception to it, when
Will to the Will of the other Party; ſo tho' a he firſt created about his Admiſfion into the
Man enter into Society with others, in order to Society. But it would now betray a Spirit, un-
the directing their Buſineſs by the common reaſonably proud and troubleſome, to think
Vote, yet if by expreſs Condition he reſerve to himſelf wiſer than all his Fellows. If a Man
himſelf this Privilege, that he will not be fo far perſiſt in his Opinion, as to be uneaſy,
oblig'd to any thing to which he doth not give becauſe he cannot force it upon the whole Com-
his Conſent, the Decrees of the Majority ſhall pany, he is at his liberty to quic the Union in
not in the leaſt affect him, or force his Com- which he was before engaged. But 'would be
pliance. Thus there are Bodies. Incorporate, in high Injuſtice for a Perſon, when he hath been
which each Member hath a Negative, and by it out-voted, to follow the Example of thoſe we
can render the Conſent of all the reſt void and find deſcribed in the Hiſtorian (b). Every one of
ineffe&ual (1). Yet, if a Perſon abſolutely them, (ſays he) taking it heinouſly that his own Opi-
refuſech to hearken to Reaſon, and out of mere nion was not followed, applied bimſelf more negligently
Stubbornneſs oppoſeth thoſe who are in the and heavily to the common Buſineſs; nay, rejoyced up-
right Opinion, he may be expell’d the Society, on any ill Succeſs or Miſcarriage, that he might bave
as a Nuiſance, or in ſome caſes, may be Occafiori thence' to boaſt amongje thoſe of bis own Para
brought to farther Puniſhment. For tho’here ty, and Demonſtrate that there could be no other Cauſe
he is not bound to follow the Ad of the greater of the Diſappointment, but the fighting his particular
Part by his own precedent Covenant ; yet he is Advice. Hence, according to the regular Courſe,
under the Obligation of a general Law, which the Votes of the Majority in Affemblies have
commands him to fhew himſelf Friendly and the Force and Virtue of a general Decree: not
Eaſy to others, and as a Part, to conform him becauſe there is any Neceſſity of this, by the
felf to the Good of the whole (a). It muſt be Appointment of Nature, but becauſe there is
confeſs’d, that in Meetings of this kind, ef- hardly any other poſſible means of tranſacting
pecially when conſiſting of a great Number of Buſineſs amongſt Numbers (c): Tho' it fome-
Perfons, Buſineſs is never diſpatch'd without times happens, that a Propoſal more for the
much Difficulty, and many times falls and comes Benefit, or the Honour of the State, may be re.
to nothing, by reaſon of the Difference of Men's jected, when the Authors cannot form á Party
Judgments, and the impregnable Obſtinacy of ſtrong enough to carry it : For in theſe general
fome Tempers. And, according to the ordina- Eſtabliſhments, for the ordering of Human
ry Courſe, if any Perſon hath once abſolutely, Affairs, which often admit of ſo great Variety,
and without Terms of Exceptions, united him- ſince 'twas not impoſſible for Men to invent ſuch
ſelf to any Society or Aſſembly, in as much as a Method, as ſhould be free from all manner of
(1) Every one knows, that in Poland the Oppoſition of a ſingle Member breaks up the Diet, See Hartknoch de Polon.
Lib. 11. Cap. I. Se&t. 15. The States of Holland likewiſe obſerve this Maxim, when they have any Affair of great
Importance to be debated. See Mr. Hertius's Note. Mr. Barbejrac's fitft Note upon this section, Pag. 242.
(a) On which Subject, we may add the Argument in Father Paul's Hiſtory of the Council of Trent; (i.
4. :788.) that the French were not bound by the Decrees of the Council, having proteſted againſt it. Where
the Judgment of the Parliament of Paris is alſo produced, and runs to this effe&. That the Authority of the
whole Body is then, indeed, transferr'd on the major Part, when the Cauſe affects All in common, but toucheth nono
in particular; but when the whole Cauſe ſo belongs to all, as that each are to be allow'd their reſpe&tive Shares
;
in this caſe, the Conſent of every one in particular is neceſſary, and the Negative is the more favourable ſide: nor
are the Abſent in the leaſt obliged: unleſs they confirm the Reſolutions by their own Vote. That, Eccleſiaſtical Af
ſemblies are of this kind ; in which, how frequently ſoever Councils may be held, the abſent Churches are not at all
bound by their Decrees, except they pleaſe to receive them. (6) Agathias, I. IV. c.5,
) Vid. L. 50. t. J. 1. 19. D. Ad Municipalem. Plin. Lib. 2. Epiſt. 13. n. . The Votes páſs by Number, not by
Weight
, nor is it posſible, that in a publick Ajembly it ſhould be otherwiſe
, where nothing is ſo unequal as the very Equality
it felf; whilf All have not the same Wisdom, and yet All have the ſame Right
. Idem Lib. 6. Epift. 13. n. 4. Whilft ihe Point is
unreſolu'd, every Man bath the Privilege of diffenting; but when 'tis once determin’d, All are bound to maintain what the
Majority bave Decreed. And of this regular Courſe of proceeding we are to underſtand that of Ariftotle, Polit. IV.
6,8. That which
moſt agree in, is receiv'd under all manner of Governments. For in Oligarcby, in Ariftocracy, and in
Popular States, the Reſolution of the greater part of thoſe concern'd in the Supreme Management, is confirm.d and ratified as
a publick Decree. Sce alfo Grotius Lib. II. Cap. V. Se&. 17; so Ld continuation des penſées diverſes de Mr. Bayle, Pag.
14. Gronovius, in a Note upon
the Place I have juſt quoted of Grotius, adds the following Reftrictions to this Maxim
of the Plurality of Voices. Firft, That the point in Debate be determind by fair Voices, that is, that there be no Com-
bination among the Members, and that the Majority of 'em, before they enter the Aſſembly, have not agreed to carry
fuch a particular Opinion. Secondly, That the majority of the Aſſembly be not fufpe&ted Perſons, who, according to
to the eſtabliſh'd Laws and Cuſtoms, ought not to be in the Buſineſs that is debating, that they may not be Judges
in their own Cauſe. Thirdly, That the Matter in Debate be not contrary either" to Divine Laws, or to Reafon.
Bourthly
, That it does not defroy the Fundamental Laws of the State, and that it does not tend to the changing,
without Neceflity, the form of the Government. Fifthly and laſtly, that it be not in the leaſt
prejudicial to the Rights
particular Perſons, nor to the Privileges and Ancient Cuſtoms eſtabliſh'd for the good of the Publick. Mr. Barbey-
rac's third Note upon this Setion, P. 242.
Kkk
In-
478
Of the Inward Strukture
Book VII

take place, againſt what proceeds from this Chara&er better, than the counting of
Inconvenience, that muft be fallow'd which holds hath been therefore thought moſt proper, to
good for the moſt part (a). And therefore, 'tiş enter upon ſuch a Method as ſhould be the lealt
idle to pretend, that fince it ſeems agreeable to expoſed, either to Difficuley or Uncertainty
Nature, that what proceeds from more Wiſdom and none can be invented which ſhould anfwer
Thould
leſs, it is therefore repugnant to Nature, tha Voices (c). Beſides, whoever is allow'd the
the weaker Opinion of many ſhould qut-weigh Privilege to Vote in a Council, is prefumed of
the wifer Opinion of a few, and conſequently, fufficient Ability to penetrate and comprehend
that the former ſhould compel the latter to an all Affairs, that ſhall fall under their Delibera-
imprudent Undertaking. Indeed, in determi- tion. Which muſt be allow'd to be true
of thofa
ping fpeculative Truths, Opinions are not pafsd Councils at leaſt, into which Perſons are not
by Number
, but by Weight: And the Mulcitude admitted, without fome kind of Choice and Ap-
of Patrons is it ſelf look'd on as a Mark of probation of others. Neither would it be als
Error (b). But this Rule can by no means be ways expedient, to give any one Man in the
applied to the Management of Buſineſs in an Council, as fuppoſe the Prefident or chief Di.
Afſembly, the Members of which have all an recor, the Power of controlling the whole
equal Right to influence the Proceedings. For Matter by his Vote, and declaring which of the
who fall be the Judge here which Opinion is Opinions is the better. For, if the Prerogative
the wifer ? Certainly not che Parties themfelves, pould be granted to him, he mighe prefer the
which are thus divided. For neither fide will Judgment of the fmaller Party to that of the
allow the other thus to over-rule a Point, in greater ; nay, he might reject both Propofals,
which their Credit, as well as their Intereſt, is on Pretence chat neither was Good; and thus he
ſo nearly concern'd. And where's the Man, would, to all Intents and purpoſes, be the fole
who doth not think his own Parts and Wiſdom and arbitrary Governour of the State. As ab-
more conſiderable than his Neighbours ? Nay, foluce Princes may follow that Advice which is
How many are there who take a Delight in dif. offer’d by the feweſt of their Counfellors; or
paraging an Opinion or a Project, tho the beft may take ſuch Meafures as are contrary to the
that could have been advanced, only becauſe Opinion of them all.
they were not themſelves the Authors and Con XVI. But as to this Point of the Plurality of
trivers of it? Nor would it be eaſy, for the two Votes, it is needful to obferve, that in fome
diſſenting Parties to refer fuch Controverſy as Councils 'tis not enough for an Opinion propoſed
this, to the Deciſion of a common Arbitrator ; to have the Advantage of one Vote, or of fome
for again, the Arbitrator's Wiſdom or Integrity few more than the contrary, but e'er it can be
might be call’d into Difpute, and might require carried, it muſt have a Majority to ſuch a cer-
a new Judge to determine the new Queftion. tain Number (1). Thus the Law about the
Not to fay, that moſt of the Points, debated in Ele&ion of the Pope (d), requires ewo Thirds
thefe Aſſemblies, relate to ſuch Matters as can- (2) of the Cardinals to agree in their Nominaa
not conveniently be committed to the Judgment tion. And the fame Rule appears to have been
of thofe who do not belong to the Society. It follow'd in (3) the Election, and in the Orders




(a) Bodin. De Republ. I. III. C. 4. p. 456.
(6) Senec. De Beat. Vit. c. 2. Whilft I am treating of a Happy
Life, Tou are not to anſwer me, as upon a Diviſion in the Senate Houſe, The greater Number is on this ſide ; for the
greater part.ise for that very reason, the worst i Mankind are not fo. Happy and that ihe befi, things. fball-bave the moft-Patrons
and Defenders. And therefore a Multitude is generally an Argument of the Wrong, Phocion, when a certain Propoſal
of his was received with general Applauſe, turn'd to his Friends, and ask d them, Whether he had unadviſedly
ter drop ſomewhat that was amiſs. Plutarch in Apothegm. 188. A. Idem De Educat. p. 6. 4. Ed. Wech. To pleaſe
the Vulgar is to diſpleaſe the Wiſe ; Euripides will bear Teftimony to this Obſervation, whom we find ſpeaking to the fame
Purpose.
I've not the Art of tickling vulgar Ears,
But yet my Vote weighs ſomewhat with my Peers,
When Ajes judge, 'tis Mufick to be loud;
2
And that which ſhocks the Thinking, charms the Crowd.
Hence, as Quintilian obferves, (Inſtitut. Orat. 1, X. C. 1.) They who are ambitious of appearing Wife to the Fools, ap.
pedy Fools to the Wife. Plato Conyiv. p. 1188 C. Ed. Wech. A few Men of Underftanding are mone to be feared, than a
Whole Multitude compoſed of Ignorance and Weakneſs. Add. Valer. Max. l. 3. 6. 7. , 1, Ext. Dio. Chryfoft. De lia non
capto,
p. 190, D. Ed. Paris. More). For 4 thing to have been believed
a long time by Fools, is no. Authority om Argument
for its Truth, (c) Plin. Panegyr. c. 62. in fin. 'Tis better to truft the whole Company, than any private Member :
particular Perſons may deceive and may be deceived; no Man ever cheated All, no Man was ever cheated by all.
(1) V. Grot, L. 2. c. 5. f. 17. ibid. Becler. (d) Jul. Canon. C. 6. De Ele&t. & Elc&ti Poteſtate.
(2) V. Gratian. Can. 36. Diftin&t 63.
(3) Our Author is very much miltaken in this point, in reference to the Ele&tion of the Decuriones among the Ane
cient Romans, and tą prove the Truth
of this
Affertion, we need only
caſt our byes upon the very Laws here cited by:
him : For they
evidently prove that there muſt be two thirds of the Members of the Council preſent in the Afſembly
and not that two thirds
of the Votes
of thoſe that are preſent are required, to determine abſolutely in an Affair
. See
better
applied; for it fignifics likewiſe, that to make Decree of the Senate valid, it was anciently requiſite, that there
Thing. For it was ſufficient,
that among thoſe three hundred Senators, the majority of Voices was for one particular Opl
nion. This appcars among others from this Paſſage of Livy, Plebs fac juflit ; quod Senatus juratus Maxima PARS
CENSEAT,
Note
. Our Author himſelf, Se&. 19, cites, in the ſame Senſe I have done, the very Laws which he here applies wrong:
Part of Mr. Barbeyrac's ſecond Note upon this Section, p. 243, 244.
of


Chap. II.
479
and Conſtitution of Civil States.
Contra Symmach. v, 604. Eric.
Minerva's Vote : On which Subject the Reader may conſult a whole Diſſertation of Boecler's.
B. 2. c. 5. f. 18. Note the laſt.
of the Decuriones under the Roman Emperours (a). the Balance hangs even, and the Buſineſs na-
In the Venetian Hiſtorian (b), we find this Clauſe, turally ſtops. Hence, even in Criminal Caſes,
added to the Decree of the Senate for Baniſhing upon an Equality of Votes the Party is acquitted:
the Jeſuites, that nothing ſhould be determin's Tho' the Penalties Enacted againſt falſe Accu-
in Prejudice of the ſaid Decree, unleſs eighteen ſation or litigious Suits, feem not to take place
Senators were preſent, and unleſs five Parts out on theſe Occaſions (8). Amongſt the Jews,
of fix conſented to the Reſolution. Yet, where the Criminal was not condemn'd (1), tho' there
there is no ſuch particular Appointment, that happen'd to be one more Vore againſt him than
fide which exceeds the other, tho' by a ſingle for him. Which Cuſtom was no doubt, founded
Vote, ſhall be accounted a true Majority, and on this Principle, that ſince there is no leſs Re-
equivalent to the Conſent of the whole Body ligion and Conſcience to be obſervd in what is
(c). 'Tis to no Purpoſe, that ſome urge againſt pronounced by a Judge, than in what is depoſed
this Judgment, the Maxim of the Civil Law by a Witneſs; as a ſingle Witneſs is not ſuffici-
(d), Quod omnes- tangit, id ab omnibus approbari ent to Convict (2), ſo a ſingle Judge is not
equum eft, Equity requires, that what Affects or Con- fufficient to Condemn. For the reſt of the
cerns All
, ſhould have the Approbation of All: for we Judges, by declaring directly contrary to each
cannot hence conclude, therefore 'cis Injuſtice, other, ſeem'd mutually to evacuate the Force of
that, for the more convenient Diſpatch of Af- their own Authority. We ought to add one
fairs, a few diſſenting Members ſhould yield to more Remark on this Subject; and it is, that
the tronger ſide. But farther, the Maxim pro- where Suffrages are given by Companies or
duced doth noc relate to thoſe Aſſemblies or Tribes, the particular diſſenting Members in one
Councils, which are conſtituted for the Regula. Tribe, who were out-voted by the Majority of
tion of publick Affairs, but to private Partner- their Fellows, ſhall not be allowd to encreaſe
ſhips and Confederacies, form'd by bare. Com- the Number of diſſenting Suffragans in any o-
pact, or by the Agreement of ſeveral Men, to ther Tribe.
be Joint-poſſeſſors of ſome one thing. Now XVIII. Laſtly, when more than two Opini-
ſuch an Agreement, or Confederacy as this, ons are ſtarted, the Queſtion is, whether they
doth not give the Perſons concern'd, a Right to are all to be reckon'd ſeparately from each other,
determine any thing about the common Affair, ſo as to give the Preference to that which; taken
if ſo much as one of the Partners diſagrees to apart, hath more Favourers than any one beſides;
the Propoſal, thinking ic prejudicial to his own or whether two or more Sentences, tho' diffe-
Intereſt (e). As for that Clauſe, which is rent between themſelves, may be firſt join'd to-
added, by the Law before-mention’d, about the gether to caſt out a Third, and then play'd a.
Papal Election,that What is there particularly gainſt each other, ſo that the Motion, which
order'd, about the two Thirds, ſhall not upon the laſt Reſult hath moſt Voices, ſhall pre-
abridge the Liberty of their Churches, in vail? Here, if we conſider things barely accord-
which the Opinion of the greater and foundering to their Natural Equity, without any ſpecial
Part ought always to prevail ; the reaſon of Compacts or Conſtitutions to the contrary, it
it ſeems to be this; becauſe according to their ſeems proper to diſtinguiſh between thoſe Opi-
Hypotheſis, the Supreme Judge, the Pope, may nions which really and totally differ one from
declare which Opinion is the founder, in caſe the other, and thoſe of which one is included in
a Diſpute ſhould ariſe on that Point. Where- the other as a Part, or which differ only in Quan-
fore the founder fide, unleſs it be the ſtronger city ; ſo that the latter may be allow'd to unite
likewiſe, ſhall not be confider'd, except in in that common Point where they agree, but
Caſes where there lies an Appeal to ſome Su- the former may not be join'd, being abſolutely
perior (f).
Inconſiſtent. Thus they who adjudge a Delin-
XVII. If the Parties divided are equal, no quent to pay twenty Pounds, and they who ad-
Reſolution ſhall paſs; but Matters ſhall conti. judge him to pay ten Pounds, may unite in the
nue as they ſtood before : becauſe there is not ten Pounds, againſt thoſe who would entirely
ground enough for any Alteration either way; acquit him; and he ſhall ſtand guilty to the
but, the Weight on both fides being the ſame, Value of the ſaid Sum, as that in which the
(a) L. 3. t. 4. 1. 3. 4 D. Quod cujuſcunque univerſ. Nom. &c. & C. L. 10. t: 31. 1.45. De Decurion. Prudent, l. 1.
Sic conſulta patrum fubfiftere conſcriptorum.
Whilſt ancient Honeſty poffeſs’d the Throne,
Non aliter licitum priſco fub tempore, quam fe
To Axts of Senate juſt' R efpeét was hown,
Tercentum fenfilie ſenes legerentur in unum.
Becauſe three hundred Heads had join'd in one.
Servemus leges patrias ; infirma minoris
Still let the Laws prevail ; the Weaker Few
Vox cedat numeri, parvâque in parte filefcat. Yield up their Falle Belief, a Captive to the True.
(c) Vid. L 4. t. 8. 1. 17. S. 6. D. De Receptis. Vid. Grot. d. I. (d) Cap. Quod
omnes de Reg. Jur. in Decretal. Lib. VI. (e) By which we are to explain l. 11. of B. 8. c. 3. D. De Serv. Prad.
Ruft. & L. 18. t. 3. 1. 28. De Communi dividundo.
(f) Add. Gratian. c. 36. Diftin&t. 63.
(3) Quintilian. Declam. 254. Equal Votes favour the Perſon in Danger. Antiphon. Orat. XIV. When things are
equal
, they make for the Priſoner, not for the Accuſer ; as an Equality of Votès a fifts the former, not the latter. Add
the other Acquits ; of twódifferent sentences, the Milder ought to take place
. The Greeks called this favourable Cafe,
( 1 ) See Grot.
(2) See above in B. 5.c. 13. 1. 19.
Kk k 2
Majority




(6) Maurocen.l. 17.
480
Of the inward Structure
Book VII.

The Fine of ten Pounds being contain'd under Number ſhould agree: Upon hearing the Cafe, two of
Majority of thoſe that are to try him agree: was to ſtand, in which the greateſt Part of that
that of twenty (a). Hence aroſe that Cuſtom the Judges declared for the Priſoner's Baniſhment, two
in the Roman Senate, of ordering a Member Sen more would have him Fined, and the other three voted
tentiam dividere (b), to divide bis Opinion, when he bim to ſuffer Death : Being demanded, in order to his
had not deliver'd himſelf diſtinctly, but had ad- Execution, be demurs to the Sentence. This Cafe
vanced two Motions at once, one of which was was then offer'd for ſuch an one as they term'd
approved by the Company, the other not. But droegs
, or unexplicable. Cnemon in Heliodoruss
if ſome Vote a Criminal to Death, Others to Hiſtory (f), is Condemn'd by ſeventeen Hun-
Baniſhment, and a third Part are for clearing dred Voices to Death, and by a Thouſand to
him ; neither can they who propoſed Baniſh- Baniſhment : Yet, in as much as the former
ment join with thoſe who declared for his Death, Party was divided, fome requiring that he
againſt the acquitting Party, nor the Acquitters ſhould be Stoned, others that he ſhould be
and the Baniſhers againſt thoſe who condemn'd thrown Alive into a vaſt Cavern of the Earth:
him to Capital Puniſhment. For theſe Sen- the Thouſand who decreed to Baniſh him made
tences are altogether incompatible ; Death be- the greater Number (g).
ing neither a Part of Baniſhment, nor Baniſh It is farther obſerv'd by Grotius (b), that
ment of Death. And tho' the acquitting when ſeveral Perſons, join’d together, do not
and the baniſhing Parties thus far agree, that form a Society, or general Body, properly la
both are for ſaving the Man's Life ; yet their calld, but are only tied to each other with re-
Opinions do not directly produce this Agree. gard to ſome certain thing which they all para
ment, but only by way of Conſequence: the take of, yet by unequal Shares; then not only
Opinions being in themſelves really different. the Order and Precedency. ſhall be fix'd accord-
For they who would abſolve the Criminal, do ing to their different manners of partaking,
thereby releaſe him from all manner of Suffer- but the Votes, in ſtead of being Numbered,
ing; whereas they who ſentence him to Baniſh- Thall be meaſured by that Proportion which
ment inſiſt poſitively upon having him puniſh'd, each Suffragan holds in the common Pcffefiion
tho' in ſuch a particular Manner and Degree (c). (i). On which Rule we may add this Re-
Polybius (d) reports a remarkable Cauſe of this mark; that ſince a Society or Combination of
Nature. Certain Grecians were held Captives at this Nature, is founded only upon ſomewhat,
Rome, and a Motion made in the Senate after which all have a common Title to enjoy, and
what manner they ſhould be diſpoſed of. Upon not upon ſuch a Covenant as is requifice to the
the Debate three Opinions were propoſed, one Eſtabliſhment of a juft and regular ommunity,
that they ſhould be releas’d, another that they and by which each Member ſubmits his private
ſhould be condemn'd, and a third that they ſhould Will to the Will of the Majority; therefore
be detain's Priſoners ſome time longer ; the firſt, when 'tis affirm'd, that the Vore of him, who
in the Number of Votes, exceeding both the o holds a larger Share in the Poffeffion ſhall have
ther, if ſeparately caken. Here Pofthumius the the Advantage of Another's Voce who holds a
Prætor, who then preſided in the Senate, ha- ſmaller Share; we are to underſtand it with this
ving a Grudge againſt the Captives, made uſe Limitation; that the former ſhall not be allow'd,
of the following Stratagem to the great Preju- by Virtue of his Superior Vore, to diveft the
dice of their Cauſe. When the Members were latter of his Right, or any way to procure his
to divide, he omitted one of the Opinions and Prejudice. And thus we may apprehend what
propoſed cwo only, ordering thoſe who were is to be look'd on as the Will of the State, where
for releaſing the Men, to go to one part of the the Sovereignty is lodg'd in many Hands.
Houſe, and thoſe who were for diſpoſing of XIX. As to the Number of Men who may
them any other way, to go to the other part. compoſe a Council or Aſſembly, in which pub-
By which means, they who would have confin'd lick Affairs are to be debated and determin’d,
them for a time, united themſelves with chole 'tis manifeſt that three at leaſt, are abſolutely re-
who would have condemn'd them; and ſo both quired (k). For ſhould there be but two, if
together out voted thoſe who would have grant- they happen to be divided in Judgment, there is
ed them their Liberty. In Gellius (e) we find none elſe to turn the Scale on either ſide, and
the following Controverſy propoſed : Seven ſo no Buſineſs can be concluded (1). Nor is it
Fudges were to ſet upon a Criminal, and that Opinion any Objection againſt this Rule, that ſometimes
(a) To this Purpoſe ſee I. 38. f. 1. d. 1. D. De Re Judicat. & 1. 27. D. De Receptis, d. 1. So cap. 1. Jur. Can. de
Arbitris in VI
. Tis but loft Labour in Grotius (Flor. Spars.) when, as to the Cale propoſed
in one of theſe Lauwe
2.27.) he oppoſeth the Determination there made, and ſays, the Criminal ought to be condemn’d in ten, becauſe
the greater Part agreed to this Sum, and that
what they diſagreed in, ought to be rejected. For in five they All
agreed, but the Majority only then prevails, when the whole Body do not unite in any ſingle Reſolution.
(b ) Vid. Cicer. Epift. Fam. 1. 1. Ep. 2. Senec
. Epift. XXI. What is cuſtomary in the Senate, ought likewiſe
, I think,..
be the Practice in Philoſophy : when any Man delivers an Opinion, which I like in part, I bid bim divide, and í follow
cordingly,
(@) *L. IX. c.75. The fame Cafe is the subje& of Quintilian's 356Declamation, where among other things, there
is this good Remark. Non idem fentientes non potes jungere, idem fentientes compara.' You can't join thoſe that diſagree's
therefore compare thoſe that agree. See likewiſe the Argument of the zeth Declamation in Liban.
S'On this Subje&, vid. L.
2.4, 14.44.8. D. De Paltis, L.76.1.3.1. 14: D. depofiti
, &o L. 42.1.5. 1. 16. D.
De Reb. author. judic. poflid.
(k) Vid. L. 54.t. 16.1, 85, D. De Verb.fignif. (1) Vid. Cap. I. Jur. Can, de Arbitris,
(b) Ibid. f. 22.
two

Chap. II,
1
and Contitution of Cinii States.
4.8
two Perſons only are teri'd Colleagues, as tor their whole Poſterity. We muit therefore pre-
Inſtance, the Roman Conſuls. For that Word ſume them to have had this in their Aim,
often imports no more than the Equality of that their Children and their future Race
Office and Dignity (a). In Latin we meet with ſhould, as ſoon as they come into the World,
Collegium Tribunorum, the College of the Tribunes ; enjoy the Benefits and Bleſlings of the Publick
and yet any one of thoſe Magiltrates, by entring Conſtitution. Which ſince it is impoſſible to
his particular Diffent, could evacuate any Re- obtain without Government, the very Life and
ſolution agreed on by the reſt. So that they who Soul of a State, therefore all who are born with-
are united to each other by ſuch a Relation, and in ſuch Dominions, are hereby ſuppos'd to have
bear ſuch a common Title of Honour, do not ſubmitted themſelves to the ſtanding Government.
always form a regular Affembly, in which the Hence there is no Neceſſicy, that they who have
Wills of all the Members are, by Virtue of ſome been once inveſted with the Supreme Command,
Covenant, compacted into one Will. But Men ſhould require the expreſs Homage and Allegi-
may happen to compoſe a Body or Society, and ance of their new Race of Subjects, cho' all the
yer retain each his particular Will, diſtinct from Perſons, who firſt conferr'd their Authority upon
Therefore to urge, them, may poſſibly be extinct. Farcher, ſince
that a Contract of Fellowship may be made between every Civil Community is fix'd in ſuch a parti-
two Perſons only (b), is of no Conſequence in cular Scene, where the Members have placed
the Point before us. As for what may be alledg'd themſelves and their Fortunes in Security, which
to the contrary out of the Digeſts ; che meaning could not but be endanger'd, were all Men al-
of the Law in that place is, not that a College or low'd promiſcuouſly the Privilege of coming
Company may be originally conſtituted by a ſingle thither without acknowledging the Governinent ;
Perion; but that upon Failure of the other therefore 'tis to be look'd on as a general Law in
Members, by any extraordinary Accident, one all States, that he who comes within the proper
Man ſhall be ſufficient to preſerve and repreſent Limits of a State, and much more if he deſire to
the Body already eſtabliſh’d, till ſuch time as reap the Benefic of it, ſhall be preſumed to have
new Members
may
be ſubſtituted in the room of abandon'd his natural Liberty, and to have fub-
the former,
jected himſelf to the Government there efta-
According to regular Courſe, the abſent bliſh'd ; at leaſt for ſo long as he thinks fit to
Members are not conſider'd in theſe Aſſemblies, reſide in thoſe parts. If he deny to make this
provided they have receiv'd lawful Notice (c), Acknowledgement, he is to be reputed as an
but their Right devolves (as it were) upon thoſe Enemy; fo far however, as that he may lawful-
that are preſent. When two (ſays ( dj Seneca ) ly be expell’d the Borders. So it is manifeft,
aft by a common Commiſſion, be that is preſent bath that they are no leſs fubjected to the Civil Au-
the Power of both. Yet in our Judgment, this thority, who join themſelves to a State already
Maxim ought to be reſtrain’d to Buſineſs of ſeccled, than they, who by aſſembling and uniting
daily Occurrence, and ſuch as will admit of no themſelves together, form'd it at the Beginning.
Delay. It is likewiſe an Exception to the ſame
It may not be improper to Remark on this
Rule, if the Laws require ſuch a preciſe Num- Occaſion, that there is ſome Diſagreement
ber of the Members to concur in every Buſineſs amongſt Learned Men, about the true Notion
(e). In ſome places, the abſent Members are of Civis, a Member of a Civil State. Mr. Hobbes
allow'd to exerciſe their Power by delegating (g) ſeems to make Civis an equivalent Term
ſome others who appear in Perſon, and thus to with Subditus, a Subject. According to which
give their Suffrage amongſt the reſt, either in way of ſpeaking, Women, Children and Ser-
Writing, or by the Mouth of their Proxy (f). vants will be made proper Deniſons. Our
XX. The Civil State being thus framed and Judgment on the Point is, thac fince every
ſettled, the Perſon or Perſons on whom the State is conſtituted by Mens ſubmitting their
Supreme Authority is conferr'd, whether one Wills to a ſingle Perſon, or to an Aſſembly, they
Manor a Council, either particular or general, principally have a Title to the Name of Members,
obtain the Name of a Monarch, a Senate, or á by whore Covenants the Society was firſt incor-
People ; and private Men, as oppos’d to theſe, are porated, and they who regularly ſucceed into
fyld Subje&s. Here we muſt obſerve, that a the place of theſe primitive Founders. And
may
become Member of a State two ways, fince theſe Acts belong to the Maſters of Fami-
by expreſs or by tacit Covenant. For they who lies, they ſhould ſeem to merit this Name by
were the Original Founders of Commonwealths, an eſpecial Right: but Women, Children and
are not ſuppoſed to have Acted with this Deſign, Servants, whoſe Wills were before included in
that the State ſhould Fall and be Diſſolv'd upon the Wills of their Domeſtical Governour and
the Deceaſe of all thoſe particular Men, who ar Director, can challenge it only by way of Con-
firſt compos’d it ; but they rather proceeded up ſequence, and by Virtue of their Dependence
on the Hope and Proſpect of laſting and per- upon him ; in as much as they likewiſe enjoy
petual Advantages, to be derived from the pre- the common Protection of the State, and hold
fent Eſtabliſhment, upon their Children and ſeveral Rights and Privileges on the Score of that
Man
Boc.
& Ele&ti Poteftat.
(d) Controv. VII. 4.
De Decurion.
(a) Vid. l. 173. D. d. I. De Verb. ſignif. & L. 26. t. 7. I. 14. D. De Admin. tut. Eso L. 46. t. 3. 1. 101. D. De Solutione,
(6) L. 3. t. 4. 1. 7.8. 2. D. Quod cujuſcunque Univerſit. Nomine, fgc.
(c) Vid. C.36. Jur. Can. de Electione
(e) vid. L. 3. D. d. l. Quod cujuſcunque Univerſit, Nomine, sec. & 1.45. D. d. I.
(8) De Civc, c. V.8. 11.
(f) Vid. Cap. 46. De Électione & Ele&ti Poteſtate, in Ultimo.
Re,
482
of the inward Structure
Book VII.

together,
tom.
Relation. But Inmates, Strangers, and other So likewiſe, if in a barbarous State, where all
Temporary Inhabitants, are not Members of Improvements of Learning are publickly dif
.
the Commonwealth, becauſe they propoſe only couraged, ſome Perſons fould meet
to tarry for a certain Space, but not to ſettle to join in the Purſuit and Enquiry of Wiſdom
their perſons and Fortunes on the publick Bot- ſuch a Body of Men cannot be pronounced an
Ariſtotle's Definition fram’d to expreſs a unlawful Society. Both are again divided inte
Member of State, and taken from his bölding a Regular and Irregular
. The former are thoſe, in
Share in the Magiſtracy, and in the judicial Proceedings, which by Virtue of certain Covenants, there is
agrees only to a Democratical Government, as an Union of Wills amongſt all the Members:
he himſelf obſerves (a).
The latter thoſe, in which we do not ſo much
XXI. To proceed; in moſt Commonwealths, apprehend any Union of Wills, as a Conſent and
the Members are found eſpecially diſpoſed to Conſpiracy, without any mutual Bond or En-
two ſubordinate Bonds or Engagements, by one gagement, ſuch as may proceed from ſome com-
of which they unite in certain Numbers, to mon Affection, as fuppoſe, from Hope, from
form a particular Body, yet ſtill under the Di- Defire of Gain, or of Revenge; from Ambi-
reation of the Publick; and by the other, the tion, Anger, and the like.
Ruling Power calls them to ſome Inferior Share XXII. With Regard to all Lawful Bodies, 'tis
in the Adminiſtration. Theſe Bodies of Men, to be obſerv'd, that whatever Right they poſters
,
form'd in Subordination to the State, or general and whatever Power they hold over their Mem.
Body, whether they are term'd Companies, Cor- bers, is all under the Determination of the
porations, Colleges, or paſs under any other Supreme Authority, which it ought on no
Title, may firſt be divided into thoſe which account to oppoſe or to over-balance.
For
were fram'd before the Settlement of Civil States, otherwiſe, if there could be a Body of Men
and thoſe which have been erected ſince. The not ſubject to the Regulations of the Civil Go-
Bodies or Syſtems, preceding Civil States in vernment, there would be a State within a
point of Antiquity, are Families ; in which the State. Therefore, if any Commonwealth was
Authority and the Right, held by the Father at firſt fram'd by the Union of ſeveral abſolute
and the Maſter, have been already explain'd. and independent Bodies, 'twas altogether re.
Of which Right, fo much remains in their Pof- quiſite, that the reſpective Bodies ſhould give
ſeſſion, as hath not been cut off, either by the up ſo much of their former Power and Right,
Nature and Frame of the publick Society, or by as was neceſſary for the forming a Civil Com-
civil Ordinances, or laſtly, by general Cuftom.munity : Becauſe elſe they could not but fall
Such Bodies as have been form'd ſince the Efta. ſhort of the End which they propoſed. But,
bliſhment of the Civil Society to which they be- if we look on theſe Bodies or Syſtems in a State
long, may be diſtinguiſh'd by the Names of Pub. already ſettled, we are then to conſider, what
lick and Private. The Publick are thoſe, which was the Intention of the Supreme Governour,
have been ſet up by Authority from the Sovereign in founding or in confirming ſuch a Company.
Power in the Commonwealth. The Private are, For if he hath given, and aſcertain’d to them,
either thoſe which have been compoſed by thé in expreſs Words, an abſolute and independent
ſole Act of the Subjects amongſt themſelves, or Right, with regard to ſome particular Affairs
ſuch as depend upon ſome Foreign Power, which concern the publick Adminiſtration; then
which, within the Dominions of Another, is he hath plainly abdicated part of his Authority,
to be look'd upon only as a private Right and a and, by admitting two Heads in the Conſtitution,
private Act. Private Bodies may again be divided hath rendred it irregular and monſtrous : which
into Lawful and Unlawful; of which the former no one in his Wits will do, unleſs upon extreme
are, or ought to be, approv'd of and allow'd by Neceſſity. But if the Sovereign is defirous to
the State, the latter not. We ſay ought to be al preſerve the Power whole and unimpair’d, it is
low'd: For fuppoſe under a State where the neceſſary that the ſubordinate Body ſhould fo
Divine Worſhip is corrupted, fome endued with reſtrain and moderate its Rights, as not to pre-
Senſe and Knowledge of the true Religion, judice the Supreme Authority, nor to put any
Thould hold private Aſſemblies, without either ſuch Extent upon their Privileges, or to draw
open Tumults, or ſecret Conſpiracies againſt the any ſuch Conſequence from them, as ſhall tend
Government Eſtabliſh'd; how much foever the to the releaſing the faid Body from their inferior
Perſons in Authority may diſlike what differs and ſubordinate Condition. Now after what
from their own Perſwaſion, yet no one will pre- manner the Power of theſe Bodies is limited,
ſume to term theſe Aſſemblies Unlawful, ſince we are to learn from the particular Charters of
the Supreme Governours themſelves (1) ſie un- their Foundation, or Confirmation : as likewiſe
der an Obligation to acknowledge, approve and from the Common Laws of the State, which are
maintain the ſame Truths that are there profeſs’d. ſuppoſed to bind all and each of the Members,


(a) Polit. I. 3. c. 1. See the reſt of this Chapter where he thus goes on, According to different States, the Members are
different. Wherefore the Deſcription we have given belongs eſpecially to the Members of a Democracy'; to thoſe of other
Governments it may accidentally, but doth not neceſſarily, agree. Idem Polit.1. 3. c.8. There being many Forms of Civil
Bodies, there muſt, hy Conſequence, be many kinds of Members, who compoſe them.
(1) 'Tis not for this Reaſon: For the Sovereign doubtleſs' believes his own Religion better than that which differs
from it ; and as long as he is of this Perſuaſion, nothing obliges him to alter it. But 'tis becauſe Sovereigns, of what
Religion ſoever, have no Right to hinder any one from peaceably ſerving GOD according to the Light and Di&tates of
his Conſcience.' See hereafter, Chap. IV, Sect. 11. Note 2. Mr. 'Barbeyrac's Note upon this Se&tion, p. 247.
unleſs
2

Chap. II.
483
and Conſtitutions of Civil States, &c.
,
unleſs where they have been exprelly abridgd Money to the Company, as ſuch, he can only
or repeald. From all which it follows, that, if charge the Goods of the Company, and if they
the Adminiſtration of ſuch a Body be committed fall ſhort, he muſt thank himſelf for the Lofs (a).
to a lingle Man, whatever he acts according to If a Controverſy ariſe between any Member
the Rules of their Foundation, or according to and the Company, the Company fhall not be
the general Conſtitutions of the State, ſhall be Judge, but the State to which the Company is
look'd on as the Ad of the whole Body. But in Subordination. For 'would be very incon
what he doch contrary to, or beyond either of venient, that they ſhould be allow'd to give Sen-
theſe, ſhall be his own proper perſonal Ac, tence in their own Cauſe,
when the Matter may
which ſhall not affect the reſt, and for which he be referr'd to a Common Power.
alone ſhall be accountable. If the Government XXIII. Unlawful Bodies are not only thoſe
of ſuch a Body be lodg’d in a Council of ſeveral which unite on the account of ſome manifeſt
Perſons; when any thing is done by them con- Villany, or fome Defign contrary to exprefs
trary to Law, or to their Foundation, thoſe only Law, as the Companies
, of Thieves, Beggars,
Thall be liable to Puniſhment on this account, Strowlers, Pirates, Highway-men, &c. but like-
who agreed to the Proceeding; but they who wiſe any Confederacies between Subje&s build
either diffented, or were abſent from the Aſſem- on a private Compact, without the conſent of
bly, ſhall be judg’d innocent : whom therefore the Government, and repugnant to the End of
ic concerns, for the ſake of their own Security, Civil Communities : which are uſually term’d
to proteſt againſt the Decree of the reſt, and to Conſpiracies or Factions. The Deſign of theſe is
regiſter their Proteſtation in the publick Ads and various. Sometimes the Perſons thus Affocia.
Memorials, left they ſhould happen to be involv’d ting aim at the chief Command, and would
in the Puniſhment of their Fellows Crime.Where- ſeize the Government into their own Hands :
as on the other ſide, in an Independent Aſſembly, ſometimes they propoſe, by this means, to bring
no particular Member hath the Liberry of proteft. the Management of publick Buſineſs to their
ing againſt a Decree; becauſe this would be to own Humour or Advantage. Some are for in-
deny the Supreme Power of the fáid Affembly: creaſing their private Fortunes by plundering
As to the Debts of theſe Bodies or Companies, the Publick: others bandy into Factions, only
the firſt thing to be conſider'd is, in whole Name to ſecure themſelves from Puniſhment. Nay
they were contracted. For what any Member thoſe Confederacies which carry a plauſible Pré-
owes on his own private account, is not a Debt tence, as ſuppoſe Prote&tion from
Danger, Re-
of the Company. Only in this refpect, that dreſs of Grievances, Removal of Evil Counſel-
when the Sentence of the Court obligeth him to lors, and thoſe likewiſe, the Cauſe of which is
Payment, Execution may be taken, not only kept ſecret, are ſuſpicious and dangerous. For
Society. But fuch Debcs as are contracted by which belong folely to his Care and Dire&ion;
the Governors of the Company, (whether this and then farther, when the Mutineers are grown
Power be lodg’din the Hands of one, or of more confident of their own Strength, they may eaſily
Perſons;) according to their Charter of Foun. be encouraged to curn it upon the State (6).
dation, and thoſe Rules which are to guide their Hence many Adions, not otherwiſe culpable
Proceedings, oblige the whole Body, as fuch; in their own Nature, become unlawful when
and unleſs they have a common Scock, each perform'd in a tumultuous or factious manner.
Member is to anſwer for his Quota. Yet here Thus to Petition the Government, or to Accuſe
again there is this Difference, that ſuch Creditors any perſon of a ſuppoſed Crime, are Proceed-
as do not belong to the fame Common-wealth, ings which the Law allows; but to do either of
upon Denial of Payment, may treat the Mem- theſe, with a numerous Body of Men gather'a
bers no otherwiſe chan if each had engaged for for that purpoſe, bears the Appearance of Riot
the whole. As in all other Caſes, any Perfon and Sedition. And ſo in Martial Laws, it is
under a foreign Juriſdiction, ftands liable to uſually made a Capital Offence, for Soldiers to
fuffer Repriſals for the Debts of his Country- petition for Pay, in a large Company, drawn
men. Debes contracted otherwiſe than the Rules together on that Deſign (c).
of the Company allow, bind thoſe only who XXIV. Beſides that common Bond, which
gavel their exprefs Conſent to the contrading engageth all Subjects to their reſpective Sove-
them; and not chofe who diffented, except to reigns, there lies a particular Obligation on
tie Value of what they have been Gainers by thoſe who are entruſted by the Higher Powers
them. And ſuch a Debt, when the common Stock, with the Exerciſe of ſome part of the Govern-
fo: far as 'tis: affe&ed by it, will not hold out, ment, in their Name and by their Authority;
is to be diſcharg’d by Contribution of the diffen- and who paſs under the general Style of Magi-
ting Members, according to their reſpe&ive ſtrates and Publick Miniſters. Diftinct from there
Proportions. But if a particular Member lend are the private Miniſters or Servants of the
(a) Comp. Hobbes Leviath. c. 22.
(6) Thus Otho ſpeaks in Tacitus. (Mift. L. 1. c. 84. in the Beginning.) At preſent indeed, and in the Poft Tou now
bold, You are for me, but wbilf You run up and down in the dark, and All are in Confufion round Ton, Chance or Opportua
nity may engage Tou against me.
(c) Add Ads XIX. 39, 40. Vid. Hobbes, De Cive, c. 13. S. 12, 13. Ego Leviath.7. 22: where he compares lawful
Bodies to the Muſcles, and unlawful to Wen's
, Boils, and Impofthumes, Engendred by the unnatural Conflux of Evil Hu-
Prince,
mouts.
484 Of the Generation of Civil Sovereignty or Majeſty
.
. Book VII

Prince, who perform Common Offices for him, Treaſury ; the Judges and others concern'd in
as they would for any other Mafter
. Amongſt pronouncing or executing
Juſtice ; the publick
the former kind, or thoſe who ſerve the Prince Cenſors of Do&rines, Ambaſſadors to foreign
in his Politick Capacity, there is this Difference States, and the like. In the other Claſs, we are
obſervable, that ſome of them Exerciſe a part of to reckon the Counſellors, who do not them
the Government and Princely Office, and do felves Exerciſe any part of the Sovereignty, buc
therefore in ſuch a particular Meaſure, repre- only declare to the Sovereign their Opinion a-
ſent the Perſon of the Sovereign ; who are pro- bout Affairs: thoſe likewiſe who are any other
perly and ftri&ly term’d Públick Miniſters: Others way ſerviceable to the publick Management, as
barely aſlift in the Diſpatch and Execution of the Secretaries, the Gatherers, Keepers or Di.
Publick Buſineſs. To the firft Claſs belong the ſpenſers of the Revenue, the Souldiery : thoſe
Regents, or Prote&ors of the Kingdom, during who lend an inferior Aſliſtance in the Proceeds
either the Minority, or Captivity, or Delirium ings of Juſtice, and if there be any Others of the
of the Prince; then the Governours of Provinces, like Characters ; the Order and Diſtinction of
Cities, and Diſtricts ; the Commanders of the which, in every particular State, eaſily may be
Militia, by Land or Sea ; the Directors of the underſtood (a).
(a) Comp. Hobbes Leviath, c. 23. & Bodin. De Republ. 1. 3. c. 70
C# A P. III.
of the Generation of Civil Sovereignty or Majeſty:

by 여
​I. Sovereignty, sbe Reſult of thoſe Covenants by | VI. Whether a Father of a Family may, without
fi which the Publick Body was firſt united.
any new A&t, commence a Prince.
II. This done by the Divine Will and Appro- VII. How a Vaffal or Feudatory may become a
bation. TDI
Hot
Sovereign Lord.
III. Whether the Majeſty of Princes is immediately VIII. Whether a Free State, or a Monarch, re-
derived from GOD.
ſigning their power into other Hands, are the
IV. The Arguments which ſome make uſe of to prove Efficient Cauſe of the Sovereignty produced.
the Affirmative.
IX, Who has properly the Power of conferring the
V. Civil Authority not the Effeet of War. .
Regal Title.
ET us proceed to examine, whence that the ſame time, thereby oblige themſelves to
appears in every State, and which, as a kind of and Endeavours of applying their Strength and
Soul, informs, enlivens and wields the Publick Wealth to the Good of the Publick ; it appears,
Body, is immediately produced. In order to that He who holds the Sovereign Rule, is pof-
which Enquiry, we ſuppoſe firſt of all, that
Ci- ſeſs'd of ſufficient Force to compel any Perſons
vil Authority, for the obtaining of its juſt Effe&, to a Diſcharge of the ſeveral Injunctions, which
requires as well Natural Strength, by means of he lays upon them (a). So likewiſe, the fame
which the Subject, if he prefumes to decline Covenant affords a full and eaſy Title, by which
Obedience, may be terrified into his Duty, the aforeſaid Sovereignty appears to be Efta
through the Fear of Puniſhment ; as alſo a Title, blifhd, not upon Violence, but in a Lawful
by Virtue of which, as by juft Right, the Per- manner, upon the voluntary Confent and Sub-
formance, or the Omiſſion of any. Adion, may je&ion of the refpe&ive Members. This then is
be impoſed on Others : to which Title there and the neareſt and immediate Cauſe, from which
ſwers in the Subje& an Obligation to comply Sovereign Authority, as a Moral Quality, doth
with what is thus enjoin'd. Now both theſe reſult
. For if we ſuppoſe Submiſſion in one
Requiſites do immediately flow from thoſe Pacts Party, and in another the Acceptance of that
by which the State is united and ſubliſts
. For Submiffion, there accrues preſently to the latter
tho' no Perſon can transfer his Strength to ano a Right of impoſing Commands on the former ;
ther by any real and natural Conveyance, yet which is what we term Sovereignty or Rule.
He is ſuppoſed to be Mafter of other Men's And as by private Contrat, the Right of any
Strength, according to whoſe Pleaſure, they are thing which we poffefs, fo by Submillion the
bound to exert and apply it, not having any Right to diſpoſe of our Strength and our Liber-
Power to reſiſt or to refuſe his Commands. In ty of a&ting, may be convey'd to another
.
as much as chere can be no other way of tranſ- Whence, if any perſon ſhould, for Inſtance
,
ferring Strength, amongſt Men. And ſince all voluntarily and upon Covenant, deliver him-
the Members of the State, in fubmitting
their ſelf
to me in Servitade, he thereby really
confers
Wills to the Will of a ſingle Director, did, at on me the Power of a Maſter. Againſt which
(1) Liv. b. 2. c. 59. The Forse of the Supreme Command is built on the Conſent of thoſe who Obey.
way

Chap. III. Of the Generation of Civil Sovereignty or Majeſty. 485
way of arguing, to object the vulgar Maxim of Origine of Civil Government with very liccle
Quod quis non habet, non poteſt in alterum transferre, difference from what hath been here deliver'd on
No one can tranſmit to Another what he doth nor poſleſs the fame Head. The Supreme Authority, ſays he,
himſelf; is but a Piece of trifling Ignorance. Yet is not to be derived from the bare A&t of Men, but from
fill to procure to the Supreme Command an the Command of God, and from the Law of Nature :
eſpecial Efficacy and a Sacred Reſpect, there is or from ſuch an A# of Men by which the Law of
need of another additional Principle befides the Nature is followid and obey'd. For He that enjoins
Submiſſion of the Subjects. And therefore, he Society, enjoins likewiſe the Order and Method to be
who affirms Sovereignty to reſult, immediattly, obferu'd in it: but now the very Soul of Society is Gos
from Compact, doth not in the leaſt detract from vernment ; and of all the Societies the most perfe&t is a
the Sacred Character of Civil Government, or Civil State. Which is right enough; provided
maintain that Princes bear Rule by Human Right we add, that the Divine Command, concerning
only, not by Divine.
the Erection of Civil States, exerred and diſco.
11. Yet this is beyond Diſpute, that ſound verd it ſelf through the Suggeſtion of Reaſon,
Reaſon fufficiently intimated to Mankind, how by which Men came to underſtand, that the
chat upon their Multiplication in the World, Honour, Gracefulneſs and Peace, which she
cheir Honour, Peace and Safety could not ſube Law of Nature propoſeth as its Aim, could noe
•Silt
, without the Eſtabliſhment of Civil States, poflibly ſublilt without Civil Society, eſpecially
which cannot be underſtood without a ſupreme after Mankind was confiderably multiplied. And,
Authority. And thus both the States them in this very Point confifts the Difference between
felves, and the chief Government erected in Civil Communities and other Human Inftituti,
them, are ſuppos’d to proceed from God, as the ons: the latter alſo being introduced through the
Author of the Law of Nature. For not thoſe Perſwaſion of found Reaſon, yet not after ſuch a
things alone are from God, which He inſtitutes manner, as if the Honour, Safety and Welfare of
and ordains by his own immediate Act, without Human Race could not be preſerv'd withouc ic.
the Concurrence or Interpoſition of Men; but As to the Fifth Commandment in the Decalogue
thoſe iikewiſe which Men themſelves, by the (2), which enjoins Obedience to the Civil Ma-
Guidance of good Reaſon, according as the dif- giftrates (urg'd by Becler,) we are to obſerve,
ferent Circumſtances of Times and Places re, that this doch not exclude the next and immediate
quired, have caken up in order to the fulfilling Cauſe of Government ; as the Commandment
of ſome Obligation, laid upon them by God's againſt Theft doth not, in the leaſt, exclude or
Command (a). And, in as much as the Law of fuperfede the Origine of Property. And then
Nature cannor, amongſt a great Multitude, be for the Title of God's Vicegerents upon Earıb, aſcribd
conveniently exercis'd, without the Aſliſtance of to Governours, we think it may very fairly and
Civil Government; 'tis manifeft, that God, who conveniently be explain'd in this Senſe; that
impoſed the ſaid Law on Human Race, did com, whereas the Peace and good Order of Mankind,
mand likewiſe the eſtabliſhing of Civil Societies, was not ſufficiently procured by a bare Reve-
ſo far as they ſerve for Inſtruments and Means rence towards the Law of Nature, and towards
of improving and enforcing the Law of Nature. the Author of it, that End is now happily pro-
And hence likewiſe it is, that God, in the Holy duced, by the Virtue and Efficacy of Civil Do
Scriptures, exprelly approves of ſuch Govern- minion. In which Senſe, the following Politie
mene, acknowledging and confirming it, as his ons of the fanie Writer are plain and intelligible:
own Appointment, and guarding by che ſevereſt therefore, That a State might properly be a Staré,
Penalties the ſacred Awe and Veneration of it. and might obtain its End, God, by the Law of Na-
But whether or no God exprefly commanded the ture, inſtituted a certain Order and Method of Com-
inftituțing of States, as to particular Times and manding and obeying, in which Order, by the Will of
Places, is a Point in which we have no certain God, and by the Di&tate of Natural Reaſon, there muſt
Information. For the Precept of the Sons of be ſomewhat Supreme and Independent, controllable by
Noab, concerning Judicatures ( 1 ), which may no human Pleaſure, which as it is ſubject to God alone,
perhaps be urged to this purpoſe, doth not ſpea so it is the Second or the Deputy of His Power; and
cily the particular Time and Place of ereding this is nothing elſe, but the Supreme Civil Authority:
them. So that we may underſtand it in this But it is purely the A&t and Diſpoſal of Men, whether
Senſe, that the Methods of judicial Proceſſes, they will intruſt the Supreme Authority with one or with
when once ſeccled, ought diligently to be exer many Perſons, and what particular Methods they will
cis'd and adminiſter'd. Bæcler (b) explains the follow is eſtabliſhing diftine Forms of Commonwealths.
(a) Comp. 1 Tim. II. 2. (1) Vid. Selden. de Jur. N. Eg G. Sec. Heb. 1. 7. c. 4. &c. ego Le Clerc in Deut. I. 17.
(6) Add Grot. l.1. c. 3. f. 6. (2) 'Tis in the Original the Fourth Commandment, inſtead of the Fifth, in which
our Author follows the Lutheran diviGon of the Decalogue. Beſides, he too freely grants, that it relates in that place
to Sovereigns. I know very well, that Divines and Preachers, by Strength of Conſequences, or rather Artifices, include
all Superiors under the names of Fathers and Mothers. But no good Interpreter will draw any ſuch Concluſions frorn
thence; and without examining the general Foundation of thoſe tedious Expoſitions that are commonly made on thş
Decalogue (on which we may fee what Mr. Le Clerc fays in his Note on the firſt Verſe of the XX, Chap. of Exod. and
what our Author ſays, after Gronovius, Lib. VIII. Cap. 1. Set 4. towards the End,) we need only but conſider a little
the reaſon that the Legif stor fubjains, to induce the Iſraelites to obſerve this Precept, That thy days may be long upon
the Land which the Lord thy God giveth thee This is a manifeft Alluſion to the efficacy that is attributed to the Prayers
of Fathers and Mothers for their Children who are Obedient. See Mr. Le Clerc upon this Commandment, and upon Gen.
XXVII. 133. This will still appear more evident, if the ingenious Expoſition of Mr. des Maizeaux (in bis Nouvelles
de la Republique des Lettres, November 1700. p. 500. &c.) be well grounded. Mr. Barbeyrac's Note upon this Section,
LII
Grotius's
p. 251, 252.

486 Of the Generation of Civil Sovereignty or Majeſty. Book
,
VII
the tis the un-
Grotius's Opinion concerning the Original of Free People, when they Voluntarily chooſe to
fo profane, but that it may themſelves a King, do not confer the Majeſty
be born with, if affifted by a dexterous Interpre- upon him, but only mark out the particular Pera
tation. He ſays (a) that Men, not influenced by ſon on whom that Character is; by the Divine
the expreſs Command of God, (and no ſuch expreſs Gift, beſtow'd: As in many Boroughis or Towns
Command doch indeed appear;). but of their own Incorporate, the Election of Magiſtrates belongs
accord, (yet noe without the Dictate of Right to ſuch an Order of Men; and yee the Magi-
Reaſon, and the Will and Pleaſure of God) ftrates receive their Power of acting, noe from
baving experienc'd the weak Defence of ſeparate Fami- that Order of Men, but from the Supreme Ruler
lies againſt the Aſſaults of Violence, (after Mankind in the State. Which Poſition, tho it may por
had conliderably ſpread and increaſed,) united fibly take with ſome Perſons, through a ſpecious
themſelves in Civil Society; the Effect of which was Appearance of more than ordinary Piety; yec
Civil Power, ſtyled on this account by St. Peter (b), 'tis manifeſt, that it tends to the breaking in fun-
the Ordinance of Man, as eſtabliſhd, immediately, der all thoſe Compacts and Fundamental Laws
by Human Appointment. But as for the other which paſs between Princes and Subjects, with
Affertion of Grotius, That the Civil Authority is regard to the publick Adminiſtration. And in
therefore termd Divine or ſaid to be of God, becauſe the firſt place, we cannot admit, that he ſhould
God approved of what Men wholformly inſtituted; we aſcribe Majeſty to Kings alone, and urterly deny
can on no account admit it in this Senſe, as if it to Free States and Democracies
. It's true,
God approved of the Eſtabliſhment of Civil the Cuſtom of Speech, during theſe laſt Ages
Government, (as 'twere) ex poft fa&to, or after seems to have appropriated the Term of Maje-
it had been actually ſettled; as he hath been fty to Kings, by placing it amongſt their Royal
pleas'd in many Places of Scripture pic), to Titles. Yet this doth not hinder but that the
confirm and ratify the Condition of Servants, fame Word may be uſed to denote che Supreme
which no doubt is an Human Invention. But Authority, under any Form of Government.
'twas abſolutely requiſite to add, that Men were And thus too, that Definition of Majeſty, poor
able antecedently to apprehend the Divine Will, and dry as it is, in which he calls it, The chief
by duely weighing the Condition of Mankind Power, every where, over the State, agrees as well
upon its Multiplication; which as it could not to a Senate, or to a Popular Aſſembly. Tho'
be preſerv'd withouc Civil Societies, or in a ſoli- in this reſpe& Kings have the Pre-eminence,
tary Life; ſo Men, whilſt in this Matter they that each particular Member of the Senate, or
followed the Guidance of Reaſon, agreeably to of the general Aſſembly, is ſubject to the Su.
the Scope and Deſign of the Law of Nature, muft preme Power of the People ; whereas the Per-
be ſuppoſed to have fulfill'd the Divine Pleaſure. ſon of a King acknowledgeth no Superior upon
III. Tho' we think what hath been here deli- Earth. Yer as to the Force and Efficacy of
to &tify
Command over Subje&s, 'very fame
of Civil Government, as to engage the Vene- der all ſorts of Conftitutions. To proceed, the
ration of Subjects towards their Rulers; yet it fole Cauſe of this Majeſty he makes God him-
may be worth our while to conſider, what soli- ſelf, who, upon the People's Election, immediately
dity there is in the Arguments of a late Author transfuſetb it on the Prince. Here I am miſtaken,
(1), who maintains that we ought to go much if he did not conceive Majeſty under the Notion
higher in this point. He ſuppoſech then, that of a real and phyſical Quality; as they mani-
what is the Cauſe of Civil States is not likewiſe feſtly do, who affirm Civil Government to be
the Cauſe of the Publick Government and Su. the Creature, or the Act and the Work of God, so
preme Authority in them. And therefore he al. that no other Creature, either in an equal or in a ſupe-
lows the States themſelves to be eftabliſh'd by rior kind of Caufation, or by any innate Principles
,
Covenants ; but aſſerts on the other ſide, that doth at all contribute to its Inſtitution. By which
the Sovereignty is conferr'd on Princes imme. Diſcourſe their groſs Ignorance of Moral Things
diately by GOD himſelf, and that nothing is ſufficiently betray'd. The Argument which
which proceeds from Men, doth at all contribute fers forth, how that perſons, exalted to the
to its Production. And, conſequently, that a Throne from an inferior Station, have ſuddenly
I Tim. VI. I.
(a) L. 1. c. 4. £. 7. n. 3. (b) Epift. 1. c. 2. v. 13. (c) Ephef. VI. 5, 6, 7, 8. Colol. III. 22.
Tit. II. 9.' (1) Joh. Fred. Hornius de Civitate, 1. 2. c. 1. Never were more pitiful and weaker Reaſons given
than in this Matter. If any one has a mind to ſee a Specimen of 'em, among abundance of Authors whom their Pre-
judices, Intereft, or the Situation of Affairs where they liv’d, have molt grofly perverted.; let him only read, for In-
Itance, Becler's Differtation de Aufpicio Regio, in the firł Vol. of the Collection of his Difertations Academiques; and
ſo much the more ridiculous, as he has brought it in by Head and shoulders
, and that of fixty Pages which he ſpends
in giving us ſome few Notes upon his Tranſlation, he wafts five or fix in an impertinent Digrellion. But when he af-
terwards publiſh'd the Original with larger Notes in 1695 upon the Revolution, the Reader will find that he takes care
in a more
effe&tual manner, refuted
the contrary
Opinion, by cauſing to be burnt by the Hangman at Copenbagen,
a Booke
of Mr. Thomaſius, in which that Civilian maintainid, that God is not the immediate Cauſe of Sovereignty. See what
blind Zeal, or rather Flattery of Churchmen can do. As for Hector Godefroy Mafius, who is the other I am
of the Fa&t I have juſt now related, obſerves in the ſame place, Inft. Juriſpr
. Div. Lib. III. Cap. VI. Se&. 68. that it.
which is to be found in the Bibliotheque Univers
. Tom. XI. Pag. 47. &c. Mr. Thomaſius, from whom I have the Account
was formerly propoled, in France, in the general
Affembly of the States of the
Kingdom, to canonize this Propoſition
that Kings derive their Authority immediately from God; but it came to nothing, becaule feveral made it appear, that the
Welfare of the State did by no means depend on any ſuch Opinion; and that if ſo, that the Queſtion muff'be left to the
Determination of the Schools, Gramond Hift. de France, Liv. 1. Mr. Barbeyrac's firẢ Note upon this Section, p. 252,2830
ſpeaking of,
Chap. III. Of the Generation of Civil Sovereignty or Majeſty
. 487

been ſurrounded with an unuſual Glory or Splen- of the People, by telling him, ?f you deſpiſe them
dor, which could not ſhine from any other Man by Man, you ought likewiſe to deſpiſe them
place than Heaven ; may ſerve for a Declama- when gatber'd into a Multitude (b), Farther, ſince
tion before ſuch an Audience, as are unable to Sovereignty reſults from the Non-reſiſtance of
diſtinguiſh empty Flouriſhes from folid Truth. the Subjects, and from their Conceſſion that the
That Kings are the peculiar Care of GOD Al- Sovereign ſhall diſpoſe of their Wealth and
mighty, ferves not in the leaſt towards the Proof Strength; 'tis eaſily ſeen that ſome ſcatter'd Seeds
of his Opinion. And beſides, the Divine Pro- (as it were) of Government lie hid in particular
vidence hath been pleas'd to ſhew no leſs Evi- Perſons, which, by Means of concurrent Com-
dences, as it were, of a particular Favour, to pacats, being excited into Motion, do grow and
other Perſons preſerv'd to be hereafter in an ſhoot forth. So that 'tis grolly abſurd to infer,
eminent manner uſeful to the World. At the that. Sovereignty is not immediately of human
fame time, we read of no inconſiderable Num- Original, becauſe it is not diſcoverable in the
ber of Kingsy who have drunk Poyſon out of Natural Powers or Faculties of Men: as if we
their precious Cups, or have fallen by the Trea were all this while ſpeaking of a phyſical Qua-
chery of their own People. As to that Temper lity; or as if there were no moral Qualities,
and Conſtitution of Body in ſome Princes (1), diſtinct from the phyfical. I know not what Re-
which is obſerv'd to produce Effects not unlike liſh Wiſe and Chriſtian Princes can have for ſuch
to Miracles, the Phyſicians are to be conſulted fartering Titles as theſe ; that God tranſcribes in
on the Point. Nor doth he prove what he aims the Perſon of the King, that Right of governing Man.
at, by alledging the Puniſhment, either of Ty- kind, which he held alone by virtue of Creation : Yet
rannical Kings, or of Stubborn and Rebellious ſo as that GOD ſtill retains His ancient
Subjects ; or by heaping up Teſtimonies in ſo Right, and therefore reachech out this. Power
plentiful a Store; (which too acknowledge God to Kings by Accumulation, and not by an abſolute Ab-
no leſs for the Author of Ariſtocratical than of dication : together with the like Infinuations, by
Monarchical Government;) or by reciting thoſe which baſe and wicked Parafites delight in 'rai-
Divine Predi&tions concerning fome Kings, ſing the Glory of their Prince to the Diſhonour
the like to which have not been wanting in po. of their God. You would think ’was a moot
pular States. And as to what paſs’d in the Na. Point with them, whether after the conſtituting
tion of the Fews, this can carry no Evidence as of Monarchs, God reſerv'd to himſelf any
to the Original of Kingly Government in ge- Power or Command over Mortal Race; and
neral (2); there having been many other King- whether theſe who govern below, ought to
doms eſtabliſh'd long before: but it belongs ra own his Superior Authority. Certainly nothing
ther to the manner of conferring the ſupreme can be more manifeſt, than that Civil Govern-
Command on a particular Perſon, according to ment is quite different in kind from that Com-
particular People.
mand of God, which he holds by Right of Crea-
IV. Let us conſider the Arguments by which tion: and therefore 'tis not only abſurd, but blaf-
he labours to make out, that all Human Cauſes phemous to affirm, that the Sovereignty which
are of a far more inferior Power, than to be God alone is inveſted with, as the Maker of All Things,
capable of producing Majeſty or Sovereignty, be out of bis fingular Benevolence, doth communicate to
the moſt Auguſt thing upon Earth. Amongſt Men.
which, that which carries the Prize from all the Endeavouring to give us another Proof that
reſt is this; That ſince neither particular Men, nor God is the immediate Cauſe of Sovereignty, he
e looſe and ungovernd Multitude, are themſelves en- diſtinguiſheth between the immediate eficient
dued with Majeſty, therefore neither can they confer it Cauſe, and the immediate conffituting, or appointing
on the Prince. But now it may and often does Cauſe. The Sovereignty, only is, he ſays, imme-
happen, that a Moral Quality, in which Claſs, diately produced by God; the Crown and Scepter
Government ought to be reckond,) ſhall be being commonly receiv'd from other Hands.
produc'd in another Perſon, by the Concurrence · Hence he obſerves, that we ought to ſeparate
of thoſe who had it not truly and properly in theſe two ways of ſpeaking, God is the im.
themſelves before : ſo as that they may be right- mediate Cauſe of Sovereignty; and God im-
ly deem'd the productive Cauſe of the ſaid Qua mediately conſtitutes the Prince, or God im-
lity (a). As many Voices joining in Confort mediately confers the Sovereignty. It being
produce a Harmony, which no lingle Perſon ſomewhat tolerable to affirm, that God
could pretend to, by himſelf. And on this ac . fers the Sovereignty, by the Mediation or In-
count, it muft be cenſured as very falfe Reaſon- terpoſition, either of the popular Vote, or of
ing in Socrates; when he encouraged Alcibiades Succeſſion, or of Occupancy (c). But that in
not to fear the venturing himſelf in an Aſſembly every A& of producing Sovereignty, God
con-
ili o no
(1). The Souls of Kings and of Coblers are caſt in the fame Mould. When we conſider the Importance of the
Actions of Princes, and their weight, we imagine that they are produced from ſome Cauſes as important and weigh-
ty. We are miſtaken ; they are mov'd to and fro in their Inclinations by the ſame Springs as we are in ours. The
ſame Reaſon that makes us quarrel with a Neighbour, happening in a Prince, makes him ruin a whole Province.
Their Wills are as fickle as ours, but their Power is greater. The ſame Deſires move a Worm and an Elephant. Mon-
taign's Eſſays, B. 2. c. 12. p. 343. Edit. Pariſ
. in fol.
(2.). See Algernon sidney's Diſcourſe upon Go.
Vernment, Č. 2. S. 9.
(a) Vid. L. 41. t. 1. 1. 46. D. de Acquir. Rer. Dom. (6) In Alian, V. H. 1. 2. c. 1.
f) In this Senle are we to underſtand that Paffage of Themiftius, Orat. 6. Ed. Harduin. p. 73. C. Do not imagine the
Souldiers to have been the main Cauſes and Authors
of this Election. The Concurrence of their votes was
the A# of Heaven :
the Vacancy of the Throne was the Appointment of the Gods, and Human Aliftance was only the Infrument of compleating
and executing the Divine Counſels,
Lil 2
can

488 Of the Generation of Civil Sovereignty or Majeſty.
Book VII.
cannot bear or permit any proximate or le- ed them to maintain a peaceable and well orderd
condary Cauſe'. Now whoever looks more Converſation, and hath likewiſe endued them
nicely into things, will perceive that theſe Men with Reaſon, whence they are enabled to find
apprehend Sovereignty under the ldea of ſome
out Means conducing to this End, amongſt which
phyſical Being, which after the Production of it the Eſtabliſhment of Civil Government juftly
by God, wanders up and down in the World, challengesh the firft place ; who will make any
without any certain Seat or Subject, till the farther Queſtion, whether or no the Power of
Prince being at length deſign'd by the People, ſetting this Conſtitution on Foot, was a Privi.
it falls upon him and cloaths him with Auguſt lege vouchſafed to them by God himſelf? Thoſe
Majeſty and Splendor. Where they muſt cer- Maxims of Philoſophy, which our Author fo
tainly be at a Loſs, if a Man ſhould be ſo im- frequently lets fly againſt us, are partly but of
portunate as to demand, whether this Sovereign- ſlender Credit, and partly, through Ignorance
ty, before it finds a place of Reſt in the Perſon and Miſtake, are unskilfully transfer'd from Na-
of ſome Prince, be a Subſtance or an Accident; tural to Moral Things ; which we are not now
and if the latter, how it can exiſt without a at leiſure to diſcuſs in particular. And then, as
Subje&? Farther, at what time it was created for the Account which Ovid gives of the Origine
at the Beginning of the World, or afterwards ? of Sovereignty in the Fifth Book of his Fafti
,
As likewiſe, whether there be but one Sove. 'tis meer Poetical Fiction.
reignty only, diffuſed through the whole World
i
V. No leſs Pains hath He taken in confucing
or whether particular Princes have each a pe- the Opinions of thoſe, who derive the ſupreme
culiar and entire Sovereignty of their own? Authority from any other Head. Upon which
Whether upon the Death of the Prince the So. Argument, as he hath deliver'd a great deal of
vereignty dies with him; or whether it ſurvives, Truth, ſo are there ſome things which are juſtly
fike the Soul in Separation from the Body, or liable to Cenſure. He is ſo far in the right,
finds Reception, by a kind of Metempſychoſis, in when he denies that Wars occaſion'd by the Am-
the new King (a)? But in Truth, to enquire bition or the Luft of Tyrants, could give Rife
after the Cauſe of Majeſty or Sovereignty, taken to the Sovereign Power. For Wars occafion'd by
in a ſeparate Senſe, is no better than Imperti- Tyrants, do certainly pre-ſuppoſe Civil Commu-
nence ; in as much as it never exiſts, but in the nities. Yet ſtill, the notorious Violence of ma-
Subject. 'Tis juft the ſame as if I ſhould make a ny Perſons, and their Deſire of oppreſſing others,
particular Search into the Cauſe of Human Na- might poſſibly give occaſion to the Fathers of
ture, ſeparately confider'd; when as to the Families, living independent and ſcatter'd up
Cauſe of Men, as they exiſt, I have ſufficient and down, to unire in Political Bodies (1). Ic
Information. And ſince this Author, before any is moreover evident, that moſt Empires, which
hath obtain'd a Right to the Sovereignty, leaves have made a Noiſe and Figure in the World, if
it in the Power of the People, to elect what not all in general, have owed their Growth and
Perfon, and at what time they pleaſe, or to in- Progreſs to War. And yet this is no reaſon
troduce any Form of Government (b): I would why we ſhould pitch upon War for the Original
deſire to know what would become of his Sove- and Fountain of Government. For at leaft,
reignty, ſhould all the People agree in preferring that Band of Men, which firſt conſpired to in-
an Ariſtocratical or Democratical State to it. vade their Neighbours, voluntarily engaged in
We acknowledge indeed, that Election properly Subjection to a common Leader. And as for
and ſtrictly ſpeaking, is no more than the manner thoſe who were invaded, no lawful Sovereignty
of acquiring Empire. But there ſeems to be no could be eſtabliſh'd over them, till by giving
reaſon which ſhould hinder, why by one and the their Covenant and Faith, they had promis'd
fame A& the Perſon may not be mark'd out, and Obedience to the Conquerour.
likewiſe the Sovereignty confer'd as then firſt com VI. Yet it is not ſo utter an Impoflibility, that
mencing its Exiſtence. For’tis very Childiſh to Civil Empire might ariſe from Paternal Go-
imagine, that in Moral Things, when any vernment (2); ſuch we mean as extended it felf
Right, or any Moral Quality is confer'd on ano to ſome Breadth, taking many perry Villages un.
ther, it muſt of Neceſſity have ſomewhere exiſted der its Direction. 'Tis true, the Command of
ſeparately before. On the contrary, it is evi. Fathers belongs properly to the Care of educa-
dent, that Rights and all other Moral Qualities ting Children, as that of Maſters doth to the
do rather ariſe from the Concurrence of Men's Management and Improvement of Eſtates; nor
Minds in mutual Compacts (c). Nor will there can either be alter'd by the bare Number of Chil-
be any Difficulty in removing that other Scruple; dren, or of Servants. Yet there is not ſo wide
If the People. be the ſecondary Cauſe of Sovereignty, a Diſtance between Paternal and Civil Govern-
then the power by which they produce it, muſt have ment, but that Men might paſs from one to the
been receiv’d from God; which doth not appear to be other, without the Production of any new So-
true in Fa&t. For, lince God hath implanted in vereignty by the immediate Power of God. For
Men a Care of their own Safety, hach commands ſuppoſe a father of a Family, bleſsd with a


(d) Add the Diſpute in Father Paul's Hiſtory of the Council of Trent, 1. 2. p. 213. concerning the Nature of the
Sacramental Symbols, where the Managers are put to great Shifts, by Reaſon of their Únskilfulneſs in Moral Things
.
(b) See Deuteron XVII. 14.
(c) Comp. Hobbes de Cive, 1. 2. f. 4. ſee alſo above in B. 3. c. 5. ſ. 2, 3, 4.
(i) See Mr. Barbeyrac's First Note upon the Seventh Se&tion of the Firft Chapter of this Book
22 See Mr. Burbeyrac's Second Nofe upon the Tenth Seation of the Second Chapter of the Sixtb Book, and
Mr. Lock's ſecond Treatiſe of Civil Government, C. 8. s. II, Esco
plen.
Chap. III. Of the Generation of Civil soterrig ntv or Majelis. 489

plentiful Iſſue and with a numerous ſervile not here be confer'd on the Monarch till ſuch
Train, to allow both the Children and the Ser- time as the People have firſt renounced their
vants, by Emancipation or Infranchiſement, the Right; but the People, in that very Moment,
Privilege of managing their own Concerns, and in which they renounce their Right, have no
of conftituting particular Families, upon this longer any thing to do with the Sovereignty :
Condition, that in order to the common Securi, therefore all that they do, is to elect a Perſón,
ty, they ſhall ſtill be ſubject to his Government; who having receiv'd' his Power from GOD,
I know not what ſuch a perſon wants to make ſhall, for the future, rule over them. But now
him a compleat Prince, provided he be Mafter upon the ſame Argument, it may be denied,
of ſo much Strength, as is ſufficient to compaſs that Property can paſs from one Man to ano-
the End of a Civil State. Upon his Deceaſe, if ther. For, juſt in this manner, another cannot
he left any Appointment with regard to a Suc become Proprietor of my Poffeffion, till I have
ceffor, eſpecially if his Sons conſented to the firſt reſign'd my Property. But after my Relig,
Diſpoſal, that Settlement ſhall be followed. If nation, I have loſt my Property, and confe-
he did not, then the People, as if they were to quently cannot transfer that on Another which
frame the whole Conftitution anew, ſhall reſolve I have not my ſelf: and therefore all that I do,
what Government or what Governour they will is to chooſe a certain Perſon, into whom the
hereafter receive. In which Caſe there will be Property, (ſprouting up a-new, I know noc
no Breach of the Law of Nature, tho' the where,) is afterwards to be infuſed.
Younger Son ſhould by the free Votes of the Ar As to the voluntary Abdication of Monarchs,
ſembly, be elected in his Father's room (a). his Opinion runs in the following Senſe; That
VII. He farther endeavours to evince, that the Government being firſt abdicated, and the People
neither can ſuch a Perſon be term'd che Cauſe loos’d from their Allegiance ; the Sovereignty doth af-
of Sovereignty, who firſt poffeffing it himſelf, terwards return to its original Author, in order to its
conters the Regal Dignity on ſome one who is being again brought back, and communicated to the
at preſent his Subject, releaſing him from all appointed Heir. This is manifeſtly a Metempſychoſis
future Dependence: as if a King remits to his or Tranſmigration of the Sovereign Power ; which
Vaffal his former Engagement, and allows him a wiſe man will not require us to be at the
to hold as a Sovereign Prince, what he before Trouble of confuting. In reality, he who ab-
enjoy'd only as a Feudatary Tenant : or if he dicates a Crown, gives his Succeſſor an Occa-
makes a Grant to any of his Subje&s of ſome fion, and a Capacity of receiving it from the
Province in his Dominions, exempting it, for Hands of the People, upon their Submiſſion; or,
the future, from his own Juriſdiction. For a of actually entring upon the Government, to
Ceſſion of this kind is (he ſays,) no more than which the Decree of the People, ſettling the
the Manner of obtaining Sovereignty, and may Order of the Succeſſion, had before given him a
be reduced to the Head of Elections. Now Right.
whoever throughly conſiders the Matter, will ix. It may not be improper, before we leave
eaſily find out, how the Supreme Authority is our preſent Subject, to enquire in ſhort, to
produced in this caſe. And 'tis plainly thus; whoſe Power it belongs, to confer the Regal
the King by quitting his Right, both over thé Titles and the Enſigns of Majeſty, or any De.
Vaſſal and over the Feud, at the ſame time nomination by which the Supreme and'Inde.
makes one Perſon capable of Sovereign Power, pendent Authority in a State, inhering in a
and others capable of ſubmitting to the Exer- ſingle Perſon, is wont to be expreſs’d. And here
ciſe of it. For that Feudal Territory cannot it's manifeſt, that to beſtow the Name and Ti-
hereafter belong to the Vaſal, as an Abſolute tle, belongs to the ſame Perſons, who have a
and Independent Prince, unleſs it be firſt utter. Right to beſtow the ſame thing it felf, that is,
ly diſengaged from the Authority of the Lord. the Supreme Command. And by Conſequence,
And by this Means, the Government, thus efta- a People, that either now firſt unite themſelves
bliſh'd really and truly proceeds from the Con- in a Civil Body, or elſe, laying aſide their for-
ſent of the People. For if the Lord hath Power, mer Frame of Government, reſolve on a Mo.
by his own ſole Act, to beſtow ſuch a Province narchical Conſtitution for the future, whilſt they
on whom he pleaſeth, he certainly, at the Be- confer on one Man the Authority over thema
ginning, receiv'd this Power from the Conſent ſelves, they, by this very Act, gave him a Right
of the People, either Voluntarily given, or ob- to bear the Title and Style of King, and to ſigni-
tain'd by the Iffue of a juft War. But if the fy his High Station by decent Badges of Honour.
Lord cannot do this by his own bare Authority, Such a King, as he owes his Dignity and Empire
then 'tis evident, that the expreſs Conſent of the to no Foreign Power, fo he need not wait for
People muſt concur in the Diſpoſal.
the Conſent and Approbation of other Princes
VIII
. To conclude this Diſpute; the ſame or States, in order to the affuming the Axions
Author in the laft place maintains, that even or the Character proper to his Office. But as a
then the People are not the Cauſe of Sove. Foreigner could not diſpute his Right to the
reignty in the Prince, when having before liv'd Government, without a manifeſt Injury, ſo
under a Democratical Form, they chooſe a ſingle would it be (1) injurious likewiſe to deny him
Governout. Por, ſays he, the Sovereignty can- the Appellation of King. Nor can any Pretence
92
(a) See Genef. XXVII. 29, 37. (1) Mr. Titius (Obferv. DLXI.) afferts not : and that Foreigners are at their Liberty
whether they will acknowledge or not acknowledge ſuch a Sovereign for King ; becauſe, Says be, this Title generally
gives a Rank and Pierogatives that may occafion
fome Prejudice to other States. Mr. Barbeyrat's
Note upon this
section,
P.256.
490
Of the Parts of Sovereignty,
Book VII:
to the contrary be drawn from the ſmall Extent Territory by Arms, as he may, by the Right of
of his Dominions. For a Kingdom doth not de- War, acquire the Power and Authority, to
note any certain Meaſure of Territory or of he likewiſe obtain the Title and Character of a
Power, but a particular Form of Civil State, King (b). If a Prince would ere& any particu-
which may happen to be greater or leſs. But lar Province of his Empire into a diftin& King,
to make him a King, who before own't the dom, the way of compaſſing this Deſign, is to
Command of ſome Superior, 'tis neceſſary, that ſeparate it from the reſt of the Body, and to
he obtain the Conſent of his Superior, to releaſe govern it by a peculiar Juriſdi&ion, independent
Himſelf and his Dominions from the Bond, by from his other Dominions. That the Roman Se-
which they ſtood engaged to their former Lord. nate frequently beſtow'd the Title of Friend and
Thus he who is under a Feudal Obligation, can- King, as Marks of Eſteem and Honour, is a piece
without his Lord's Conſent, take up the of Hiſtory vulgarly known. And this they
Character of a Sovereign Prince. And unleſs he might juſtly do with regard, either to thoſe
be releas'd from this Obligation, tho his Lord Princes on whom they themſelves had conferr'd
ſhould grant him the Title, yet he will hold the the reſpective Dominions, or to thoſe, over
Dignity itſelf after an imperfect and ſubordinate whoſe Kingdoms they ſtill held ſome Superior
manner. So we find that the Succeſſors of Alex- and Tranſcendent Right. But to have offer'd the
ander the Great durſt not aſſume the Regal Seyle, ſame Title, as purely a Matter of Favour, to
till Alexander's own Family was extind, to which other Monarchs, over whom they could not pre-
the Sovereignty did of Right belong. And even tend to the leaſt Authority, had been a moſt
after this, 'twas neceſſary for them to have the inſolent piece of Uſurpation. And yet ſuch a
Conſent of the People under their Command, preſuming Prerogative, the Popes have not been
which the numerous Forces kept in Pay about aſhamed to challenge over the moſt Free and In-
them, ſecured beyond the Poſſibility of a Denial dependent States of Europe (c).
(a). In the ſame manner, he who ſubdues a

not,
(a) Vid. Cornel. Nep. Eumen. Plutarch Demet. Juſtin. I. 15. c. 2. Appian. Alexand. in Syriac. Diodor. Sic. I. 20. . 54.
55.
(6) Vid. Juſtin. 1.41.6.4, 5.
(c) See Father Paul's Hiſtory of the Council of Trent, 1. 5.
P: 354., where he reports, how Paul IV. advanced Ireland to the Honour of a Kingdom: and Thuanus's Hift. 1. 46.
about the Title of Great Duke conferr'd on Cofmo of Florence,

C H A P.
IV.
90
Of the Parts of Sovereignty, and their Natural Connexion.
1. In what Senſe the Supreme Power may be ſaid IX. Government, a more ſtrict Obligation than
to conſiſt of Parts.
bare Compact.
II. The Legiſlative Power.
X. Who may properly be ſaid to hold a part in
in
III. The Vindicative Power.
the Government.
IV. The Judiciary Power.
XI. The Connexion of Parts in the Supreme Au-
V. The Power of War and Peace, and of
thority demonſtrated ;
making Leagues.
XII. And illuſtrated,
IV. The Right of appointing Magiſtrates. XIII. Many are for dividing thoſe Parts :
VII. The Right of levying Taxes.
XIV. Grotius amongſt the rest ; whoſe Opinio is!
VIII. The Right of examining Doctrines.
particularly
difcufid.

TH
HE Supreme Civil Authority, tho' in its are term'd Potential (2), in Natural Philoſophy.
own Nature it be one indiviſible thing For the Sovereign Command is, by no means,
(1), yet becauſe it exerts its ſelf in different ſuch an entire Compound Being as is made up
Ads, according as it is imploy'd about different of Heterogeneous Parts, which as they are join'd
Means, neceſſary to the Preſervation of the and knit together, by ſonie common Band, com-
State, is generally conceiv'd as conſiſting of many poſe one Body, yet ſo as that each Part is capa-
Parts; with Reſemblance to thoſe Parts which ble of fubfiſting ſeparately by its felf. But as the
nors
olqooy
(1) Theſe are Grotius's Terms, in B. I. c. 3.f. 17.n. 1. 'Tis founded upon a falſe Hypotheſis, which our Author has
confuted in the preceeding
Chapter ; by which the Supreme Civil Authority is conceiva" to be as a phyſical Being, that
has no Parts, and that only receives different Names according to the Diverſity of Objects, with
regard to which it
a&ts. Indeed, the Supreme Civil Authority contains an Union of different Rights, or different diftinét Powers, but comes
ferred for the ſame End, that is, for the good of the Publick ; ſo that to conſider them in themſelves, nothing hinders
Obferv. DLXIX. Numb. 2. and his specimen Juris Publici, &c. Lib
. V. Cap
. VIII. Se&. 26, 8c, as alto whis
but that
they may be either entirely ſeparate one from another, or in the Hands of different
Perſons. See Mr. Titius's
the learn d Obrecht ſays againſt our Author, in his Diſſertation de Unitate Reipublicæ in S. Imperio Romano, Se&. .
underſtood the Species of the fame Genus: "For the potential whole is what the Schoolmen call in other Terms, the
Logical or univerſal whole ; upon which we may confult the Metaphyſicians. Thus
Sovereignty is conceiv'd as a Genie
Power of raiſing Taxes, &c. To that is oppoſed
the Subordinate parts of Sovereignty, that is, the different Subjects

Chap. IV.
491
and their Natural Connexion.
Soul is one ſingle Subſtance, diſpenſing Life and ther's; what is to be eſteem'd Lawful or Unlaw-
Vigour through the whole Body, and yet as it ful (1) in the State, what honeſt or diſhoneſt :
exerciſeth different Operations, in Proportion As likewiſe, what Degree every Man retains of
to the Difference of the Objects preſented to it, his Natural Liberty, or after what Manner each
or of the Organs through which it works, is Perſon is to moderate the Uſe and Exerciſe of his
conceiv'd as having Potential Parts ; fo, in like own private Rights, in order to the publick
manner, the Supreme Authprity, as it is būGed Tranquillity (2).
in preſcribing general Rules of A&ion, is term'd III. To proceed; The chief End of Civil
che Legiſlative Power; as it determines the Çolk Communities .is, that Men, by conſpiring mu-
troverſies of the Subjects by the Standard of theſe tually to aid and aſſiſt each other, may be fecured
Rules, 'tis the Judiciary Power, as it either arms againſt thoſe Damages and Injuries, which they
the Subjects againſt Foreigners, or commands might otherwiſe ſuffer from their own Kind;
them to lay down their Hoftility, 'tis the Power and by this means, may either enjoy Peace, or
of War and Peace; as it takes in the A&ftance of have ſufficient Defence againſt any Aſſaults or
Miniſters in the Diſcharge of publick Buſineſs, Moleſtations. Now in order to the procuring of
it is called the Right or Power of appointing Magic Peace, 'tis in an eſpecial manner neceſſary, that
firates; and ſo with regard to its ocher Offices each Perſon be ſo farguarded againſt the Violence
and Functions.
ont of his Fellows, as chat he may be able to live
II. What therefore theſe parts of Sove- ſecurely; that is, without having juſt Cauſe to
nty are, may plainly be diſcover'd from the fear Injury from others, whilſt he himſelf is not
Nacure and End of Civil States. A State then injurious to others. Indeed, that Men ſhould
is a Moral Body conceiv'd to ad by one Will. be abſolutely protected from mutual Hurt, or
But in as much as it is made up of many Natu- that all Injuries ſhould be impoſſible, the Con-
ral Perſons, each of whom hach his particular dition of human Things will not allow. Yet
Will and Inclination; and fince theſe ſeveral ſuch Care may be taken, ſuch Proviſion made,
Wills cannot, by any Natural Union, be join'd as that there ſhall be no probable Grounds for
together, or temper'd and diſpos’d into a laſt- the Apprehenſion of Danger. And this Secu.
ing Harmony, therefore that one Will, which rity is the Aim which Men propoſe, when they
we attribute to the State, muſt be produced by ſubmit themſelves to the Direction of others.
the Agreement of all Perſons, to ſubmit their of which, if no greater Degree could be ob-
own private Wills to che Will of one Man, or tain'd by joining Strength, than each private
one Aflembly of Men, on whom the Govern- Man could give himſelf by ſtanding ſingly upon
menc hach been confer'd. Farther, ſince the his own Guard, 'twould be Folly to renounce our
reſpective Members ought in Duty, to conform Natural Liberty, in which every Perſon is his
themſelves to the Will of the State, 'tis neceffa- own Protector. But to compaſs this Security,
ry, that this Will be made known to them by 'tis not enough that each of thoſe who are about
clear and evident Signs. Hence we apprehend to form a Civil Body, do covenant with the reſt,
it to be one of the chief Offices of Sovereignty, by Word or Writing, that he will not kill, ſteal,
to preſcribe and declare to cthers what they or offer any other Harm or Prejudice : For 'tis
ought to perform, or to omit. And becauſe manifeſt how far Human Nature is in moſt Per-
'cwould be impoſſible, in ſo great a Multitude, ſons corrupted; and Experience, ſadly informs
to give Injunctions to every particular Man, on ụs, how little Force the Reverence of verbal
occafion of every particular Action; therefore Engagements, or the Authority of Oaths hath,
general Rules are eſtabliſh’d, for the perpetual with the generality of Mankind, towards the
Information and Direction of all Perſons in all keeping them in their Duty, ſhould the Fear of
Points, either of Poſitive or of Negative Du- Puniſhment be once remov'd. For which reaſon
ty. Beſides, ſince we eaſily diſcover amongſt likewiſe, 'tis not enough to have one who ſhall
Men, an immenſe Variety of Judgments and of preſcribe Rules of Axing, if he be inveſted
Appetites, whence an infinite Field of Contro- with no farther Power. Therefore, to engage
verfy mighe aviſe ; it is on this Score highly Men to an Obſervance, both of the common
conducive to the common Peace, that publick Precepts of Nature, and thoſe particular Laws,
Determinations ſhould letile what each Man which are enacted for the good of the State,
ought to look on as his own, what as ano- there muſt be added the Fear of Puniſhment,
T
or the different Perſons among whom the Sovereignty is divided, as when the Roman Empire was in the Hands of the
RIUM VIR 1, Auguſtus, Mark Anthony, and Lepidus, &c. But I muſt obſerve by the by, that Mr. Çourtin, accord-
ing to his uſual Exactneſs, ſays in his Index, that by potential parts of a State, Grotius means the parts that have the
Sovereign Power ; -fo that, adds he, it happen'd that the same Roman Empire bas had two Sovereigns or two potential
Parts, who reign’d at once, one in the Eaſt, and the other in the Weſt, the Imperial Authority however remaining fill one
and indiviſible. On the contrary, the subordinate Parts are, according to him, thoſe that are ſubject to the Sovereign
Power
, that is, the Subjects of the Provinces that compoſe the State, which are with reſpect to the State or Sovereign Pow-
et, what in the Schools Several Species are with reſpext to the Genus. By this ſmall Specimen one may caſily ſee what De-
Pendance there is upon this Tranſlator's Explanation both of the Terms and of fome Thoughts of Grotius; without
ſaying any thing of the Tranſlation it felf
. This heap of Nonſenſe is ſo much the more inexcuſable in him, becauſe
he might eaſily have avoided it by following Gronovius, whoſe Notes 'tis plain he had read. Mr. Barbeyrac's ſecond
Note upon this Section, p. 258, 259.
(1) Tho' here our Author uſes the Terms of Houbes, (De Cive, c. 6.1. 9.) yet he means always, that the Laws of a
Sovereign include nothing contrary to the Divine
Laws, whether Natural or Reveal’d, as he will prove in the firſt
Chapter of the next Book. (2) The latter Part of this section is taken from our Aathor's Abridgment, De Offic.
Hom. & Civ. B. 2. c. 7. 8. 2.
2
and

492
of the Parts of Sovereignty,
Book VII.
par-
and the Power of infli&ing what is fear'd. And, Powers already mention’d. The Office of the
that Puniſhment may produce the proper End Judiciary Power, is to hear and decide the Caules
of its Inſtitution, it ought to riſe to ſuch a Mea- of the Subje&s, to examine the Adions of
fure and Proportion, as that there ſhall be ma. ticular Men, which are repreſented as Breaches
nifeſtly a greater Evil in tranſgreſſing the Laws, of the Law; and to pronounce Sentence accor-
than in obeying them; fo that the severity of ding to the Legal Penalties. Mr. Hobbes (6)
what is to be ſufferd may over-ballance any ſeems to have had an improper Notion of this
Pleaſure or Profit, which may now, or here Power : ſince the Right of Judging, as to the
after be obtain'd by the Offence : It being im- Uſe and Exerciſe of any Part of the Sovereign-
poſſible for Men out of two Evils, not to chooſe ty, is underſtood to be implied or included in
that which to their Judgment appears the leaft. the reſpe&ive Part.
And thus the regard which Men have to their V. But tho' the Means hitherto preſcribed,
own Lives and Safeties ſecures mine. And al- may afford the Subjects full Security againit thoſe
tho' it may ſometimes happen, that Perſons ſhall of their own Body ; yet this is not enough to
be ſo tranſported, either through Raſhneſs and anſwer the End of Civil Eſtabliſhments. For
Precipitancy, or ſome other extravagant Com- 'tis to little Purpoſe, for Men to be at Peace
motion of Mind, as to prefer the Satisfaction of amongſt themſelves, if they are nor able to de.
the Crime, to the Bitrerneſs of the Penalty; fend themſelves againſt Strangers ; and this they
yer chis is to be reckon'd amongſt thoſe uncom cannot effect, unleſs they are united in their
mon and extraordinary Accidents, which the Strength. Becauſe it's purely owing to Con-
Condition of our Nature, and che Circum- junction, that many are itronger than one: in
ſtances of our Affairs will not ſuffer us to pre as much as otherwiſe, a thouſand ſeparace Men
vent. This Power of inAiding Puniſhment, are not fuperior in Force to a lingle Perfon. In
on thoſe who tranſgreſs the Commands of the order therefore to the general Safety and Wel-
Sovereign, is preſumed to be then confer'd, fare’tis neceffary, that there be fuch'a Power in
when particular Men yield up the Uſe of their the State, as may affemble, unite and arm fo
own Serength to the Service of the Community. many Subje&s, (or hire Mercenaries in their
By which A&, they oblige themſelves to execute room,) as fhall be thought lufficient for the
Juſtice on Delinquents, when the Sovereign de- common Defence, with Proportion to the ún-
mands their Affiffance in this particular; or at certain Number and Strength of the Enemy;
leaſt, not to aid and defend thoſe who are to ſuf- and may likewiſe, when it fhail be afterwards
fer. But, for a Man to oblige himſelf to under- expedient, embrace Conditions of Peace. And
go Puniſhment, without Reluctancy or Refift- lince both the Seaſons of Peace and of War re-
Itance, is a void Engagement, and ſuch as can-ceive a conſiderable Advantage from Leagues,
not hold good, on account of that natural Aver for the berter communicating the Benefits of
kron, which we bear to all things, deſtructive of different States, and for repelling and reducing
our Safety and our Life. It is truly enough to Reaſon fome ſtronger Enemy, by a confede-
affirm'd by Mr. Hobbes (a), that this is the high- rate Force : there muſt be inherent, in the So-
eft Degree of Power, which Man can hold over vereignty, a Power to enter into fuch Alliances
Man, to be able to preſcribe to others, in what. as ſhall be ſerviceable in either Condition, and
ever he thinks beneficial to the State; and by to engage all the Subjects to a juft Obſervance of
denouncing juſt Penalties, to terrify the Stub- them; and at the ſame time, to derive upon the
born and Diſobedient into a Compliance with Publick fuch Fruits and Advantages as ſhali accrue
what he thus enjoins. But then, as for what the by their Means.
ſame Author farther aſſerts, That be who hath a VI. Again, ſince the Affairs of the Communi-
Right of inflicting Puniſhment as he shall ſee fit, bath ty, occurring as well in Peace as in War, can-
a Right of compelling all Perſons to all things at his not be adminiſtred and executed without Officers
Pleaſure ; it ought to have a Limitation affix'd to and ſubordinate Magiftrates, there is need of
it, taken from the End of Civil Government: in ſuch a.Power as may appoint Men, to enquire
as much as we are to prefume, that he in whom into the Controverſies ariſing between Subje&s
the Supreme Authority reſides, hath no other (c), to dive into the Policies of neighbouring
Will or Pleaſure, but ſuch as upon good Princi- States, to gather in and give out the publick
ples of Reaſon, appears to have ſome Tendency Revenues, and laſtly in every reſpect, to con ,
towards the faid End.
ſult and promote the Common Benefit. And
IV. Moreover, ſince under the exacteſt Sy- then, it muft be another part of the ſame Power
Atems of Laws, there ariſe frequent Diſputes, to compel theſe Officers, when once, con-
about the right Application of them to particu- ftituted, to the Performance of their Dury,
lar Cafes, and many Circumſtances are to be and to call them to account, upon proper Occa-
confider'd, before a fact can be pronounced Il- fions (d).
legal, or the Author of it convicted : On this VII. Farther, in as much as publick Buſineſs
account, the Judiciary Power is ſuppoſed to come in the time of War or of Peace (1), cannot
in to the Afiſtance, and Support of the two proceed without Expence, ſuch a Power is like-
(a) De Cive, c. 6. f. 6.
(6) Ibid. f. 8. (4) See Exod. XVIII. 15. Philo. Juda de Creatione, init. Joſep. Archeolog. III. 3.
(dAdd. Bæcler ad Grot. l. 1. c. 3.5.6, p. 218.
this Cause pay you Tribute alſo (to the Magiftrates) for they are God's Miniſters, attending continually upon this very
(1) This is what St. Paul intimates to us, when he ſays : For
themſelves to thoſe of the State, without having fomc Recompence for it ; nor maintain the Dignity of Ministersca

Chap. IV.
493
And their Natural Connexion.
wiſe requiſite, as may ſet aſide for theſe Uſes, World : very few being able, by the Strength
ſome part of the Goods or Products of the of their own Parts, to diſcern what is good and
Country; or may compel private Men to côn-. folid in the Conduct of Human Life. There is
tribute ſo much out of what they ſeparately pofa indeed ſcarce any one Opinion, either relating
ſels, as is judg’d neceſſary to ſupport the .com to the Worſhip of God, or concerning thoſe
mon Charges ; as likewiſe to command and re-l things the Knowledge of which is ftrialy
quire the Hands of the Subjects, upon occaſion term'd Human, but may be made the occaſion of
of any needful Work.. To the ſame Power bes Diſſention, Diſcord, Reviling; and in the final
longs che Invention of other lawful Ways and Iſſue, of Blood and War. And this doth not
Means of increaſing the Riches of the State. happen, on account of the Falſity of the Opi-
The Principal of which, is the Right of im- nion, or becauſe to admit the contrary, would
poſing Duties on Goods imported or exported; bring heavy Inconveniences on Mankind, or
and alſo of paring off ſome moderate Propor. on Civil Communities ; bue by treaſon of Mens
tion from the Price of Commodities, conſumed unhappy Diſpoſitions, who always imagining
by the Subject.09
themſelves to be wiſe, would gladly appear fo to
VIII. Laſtly, Tho' to take away the intrin- all others, and are violently enraged againſt
fick Liberty of the Will, and at the ſame time, thoſe who prefume to be of the contrary Per-
to unite and compoſe Men's Judgments of things (waſion. This any one will readily confeſs, who
in a perpetual Harmony, by an inward Prin- : hath but chanced to caſt his Eye on thofe Quar-
ciple, be above Human Ability to effe&; yet rels of the Learned about meer Trifles, carried on
to provide that theſe Sentiments and Perſwaſions, with no leſs Heat and Fury, than if their Lives
however different, may not diſturb the publick and Religions lay at Scake. Now fuch Differences
Peace, is a Buſineſs abſolutely neceſſary. For and Diſpures, tho' they cannot be abfolucely pre-
ſince all voluntary Adions take their Riſe from vented, yet they may be hindred from inter-
the Wild, and have a Natural Dependence upon rupting the publick Peace and Tranquillity, by
and ſince the Inclination of the Will, to the due Penalties enacted againſt thofe who ſhall
doing or the not doing of anything, is built on maintain and foinent them (a). Yet what we
the Opinion of that Good or Evil, of that Re- would obſerve on this Subject, is not properly
ward or Puniſhment, which the Party conceives leveld againſt thoſe Opinions concerning ina
will follow from the Performance or the Omiffi- different Points, but againſt ſuch as being ob-
on ; and conſequently, ſince Men's Adions are truded upon Mankind, either under the Colour
ever guided by their Opinions; ſome outward of Religion, or with ſome other fair Pretence,
Means muſt needs be found out, by which theſe ſhock and confound the Laws of Nature, and the
Opinions and Judgments ſhall be brought as near Principles of found Policy, and tend to the
as poſſible, to conſpire and agree; at leatt ſhall breeding of Moral Diſeaſes in a State. Nor
be hindred
from giving the State any Diſturbance will any true and juſt Opinions be in Danger of
by their Oppoficion. To this End it is expe- ſuffering by this Cenſure. For, no true Doctrine
dient, that the State do publickly own and pro- is oppoſite to the common Peace ; vand that
fefs ſuch Doctrines, as are agreeable to the End which doth contradict Peace cannot be true; un-
and Deſign of Civil Government, and the Minds leſs we may at the ſame time affirm, that Peace
of the Subjects be, from their Childhood, and Concord are repugnane to the Laws of Na-
grounded in them. In as much as the Generality ture. Wherefore the Power of examining the
of Mankind judge of things, according as aforeſaid pernicious Doctrines, and of baniſhing
they have been accuſtom'd, and according to the them from Civil Societies, is juſtly attributed to
common Nocions, which they ſee obtain in the the ſupreme ruling Authority (b).
Wolio
it;
this part
ز
2 Society, and defend it againſt thoſe that diſturb and invade it without an Expence. So that this is the Foundation
of all the Taxes of lawful Powers, and which conſequently a Subject ought io pay, becauſe every one is oblig'd to
contribute to the ſupport of the Society, in which he lives quietly, and enjoys the Prote&tion of the Laws. And to
of Sovereignty we may alſo refer the Right of coining Money, the Right of Hunting or Fiſhing ; and in
general the Power of appropriating the uſe of things that have been left in common, and that cannot conveniently be
divided
among private Perſons.
EST
(a) Plato de LL. l. 11, p. 977. D, Ed. Wech. Let no Man revile another ; but in Cafes of Doubt and Controverſy, let
the Parties behave themſelves towards each other, and towards the Company, after the manner of Learners, as well as of
Teachers; fo as utterly to refrain
from Reproach.' For, to abuſe each other in a Diſpute with foul and
ſcandalous La
Language,
is to ſcold like Women and very frequently Words, which in themſelves are trifling Matters, give Occaſion to the deepeſt
Hatred and Enmity amongft Men. (b) Diogenes Laert. (in Theophraft. 1. 38.) reports a Law of Sophocles Son of
Amphiclidas, to this Purpoſe, That no Philoſopher should keep a School, unleſs by the Decree of the Senate and Commons;
and that to do the contrary shall be a Capital Crime.
Plato de LL: 1. 7. p. 888° C. Ed. Wech. Let no Poet preſume to feign any thing, but what is confiftent with the Laws of
the State, and is juſt, honeſt and good. Nor ſhall be be allow'd to Jhew his Compoſitions to any private Perſons, before the
Guardians of the Laws, and the Fudges appointed for this Service, kave reviſed and approved of the Performance
. To this
Purpoſe fee Caſaubon Exercitat. in Baron, and his Epifle to Eronto Ducaus, n. 624. Ed Grav. Nor is it a deſpicable
Remark of Mr. Hobbes, which he gives us in his Book de Homine, c. 13. f. 8. Many Books, ſays he, we have, compild
by Romans, either under the Commonwealth, or ſoon after its Extinction, and by Grecians, during the 'flouriſhing Condition
of the Athenian State, repleniſh'd as well with Precepts as Examples, by which the Minds of the Vulgar are render'd averse
to Regal Power; and this for no other reaſon, but becauſe they find theſe Author's making Panegyricks on the Villanies of bafe
and perfidious Men, that is, on the Murthers of Kings, when they have before branded them with the Name of Tyrants.
But ftill the Genius and Diſpoſition of the Multitude is much more corrupted
by the reading of thoſe Beoks, and the bearing of
those Preachers, who would have a Kingdom within a Kingdom, an Ecclefiaftical within a Civil Supremacy. Hence inſtead
of the Old Bruti and
Callii, we have our Modern Clements and Ravalliacs, who whilft in alfafinating their Princes, they
fuere only the wicked Inftruments of other Men's Ambition, thought they did God Service.
IX. Our
M m in
494
Of the Parts of Sovereignty,
Book VII.

the Government it felf; but whilſt the Power of War, or that of exacting Tribure be ſeparated
IX. Our next Buſinefs is to fhew, that theſe tranfg, eis the Rules preſcrib'd, is conferr'd ei-
Parts of the Sovereign Power are naturally ſo ther on a fingle Perlon, or upon an Aſſembly;
united, and, as it were, interwoven with one all Perſons lie under a far greater Neceſſity to
another, that ſhould we ſuppoſe ſome of them remain obedient, than if they were united by
to inhere in one Perſon, ſome in others, the Compact only ; which could not take away the
regular Frame of the State muſt abſolutely be Equality of the Members, or their Right of adi
deſtroy'd. Which Truth that we may throughly miniftring their private Affairs according to their
apprehend, it ought to be obſerv'd, that there own Judgment. Con
are, above all others, two Bands eſpecially, by X. It ought farther to be confider'd, that if
which the Wills of many Men, or of whole Af- any will maintain the Potential Parts of the so.
ſemblies, are cloſed and made to confpire intovereignty (as they are term’d) to be within the
one ; Covenant and Command : of which, never- ſame State, feated in diſtinct Perſons or Coun.
theleſs, the latter adds a much ſtronger Tie cils, they muſt at the ſame time neceffarily al-
than the former. They who are held together low, that he to whom any Part belongs, muſt
by bare Covenant, ftand obliged, by the Law be furniſh'd with ſufficient Power, as well to
of Nature, voluntarily to perform the Terms of compell the Subjects co the Obſervance of what
Agreement ; their Natural Equality, in other he ordains, by virtue of that Part, as to defend
reſpects, remaining as before. Now ſo long as this his Right, when attack'd or diſturb’d; tho'
the Articles are on both ſides obſerv'd, a fair that particular Limb of the Prerogative, which
Union and Concord may continue amongſt contains the Power of War and Peace, may
them. And when any one Party, with a wicked poſſibly refide in another Perſon : and laſtly,
Deſign, flies from the Engagement, he is guilty that he have a right of determining, by his own
of a Breach of the Law of Nature : but then the Judgment, at what time and in what manner,
reſt, whoſe Intereſt it was that the Covenant the Part of the Government which he holds ſhalí
ſhould remain inviolable, have no means left be exercis'd and employ'd. For to poffefs a
of reducing the falſe Brother to Reaſon, but Right of declaring to Others what you would
meer Force of Arms, in which he who offer'd have them do, and yet to be deftitute of Power,
the Injury, is frequently not inferior to him that for the obliging thofe to a juft Compliance who
receiv'd it. After the ſame manner, they, who refuſe Your Injun&ions, deſerves any other
upon equal Terms, ftand bound to each other Name rather than that of Authority or com-
by virtue of ſome League or Confederacy, are mand. And we hold that by a very precarious
at Peace and Agreement, ſo long as each Party Title, which we cannot defend againſt others.
makes good what he promis'd; but when either Nor is he any better than Another's Officer or
proves perfidious, the Band of Union is diffolv’d, Miniſter, who exerciſeth any kind of Right at
and an Occaſion of Hoftility enſues. Whence the Pleaſure and Diſpoſal of that other Party.
it appears, that bare Covenants are not Bonds XI. From what we have laid down, it will
ſufficient, at leaſt, for the long
holding toge- be evident, that there is ſo near and ſo neceffary
ther many Perfons in a Moral Body: eſpeci- a Connexion between all the parts of the Sove-
ally ſince it doth not always ſo happen, that the reignty, as that not one of them can be ſeparated
fmaller and weaker Party recede from their Ob- from any other, but the regular Frame of the
ligation, to the Prejudice of the more numerous Commonwealth muſt be deſtroy'd, and inſtead
and the more powerful, but very often the direct of it an irregular Body muſt ſtart up, held coge-
contrary. And tho' we ſhould ſuppoſe, in the ther only by an infirm and ineffectual Covenant.
Principal Compact, a Clauſe to this purpoſe, For if we appropriate the Legiſlative Power to one,
that whoever preſumed to break the Articles, and to another, the Judiciary, each primarily
ſhould be proſecuted with the united Strength and independently, it will of Neceſſity follow,
of all the reſt, yet (not to ſay, that this Clauſe that either the former is null and void, or that
would be of no effect, in caſe many Perſons the latter miniſters only to the former. Be-
ſhould join in ſuch a Breach, unleſs a Democra- cauſe, to make Laws which you can't put in
tical Government were eſtabliſh'd amongſt the Execution is vain and inſignificant: and on the
Members, or unleſs they who before compoſed other ſide, to have Strength whereby You may
a Society, do unite more cloſely in a Formal compel and controul, and yet ſuch as You muſt
State, there will be need of another Covenant, not uſe or apply but at the Pleaſure of another,
to determine what Method ſhall be obſerv'd in is to be an Officer barely executive. Again,
proceeding againſt him who ſhall refuſe to ſtand ſhould we grant the latter the Privilege of ap:
to this additional Engagement ; and ſo on, in plying his Strength according to his own Dif-
infinitum. But now Sovereignty or Command crecion, without being accountable to Others,
is a much ſtronger Tie, for the keeping an u. then we utterly overthrow the Legiſlative Power,
nited Body of Men in firm Agreement. For as before. It is neceſſary therefore, that boch
they who are bound to each other under the theſe Powers ſhould depend upon one and the
fame Government, do not continue equal to fame Will. Nor can the Power of Peace and
preſcribing Rules to, and of inflicting certain from this vindicative or judiciary Right. In as
Evils, by way of Puniſhment, upon fuch as much as no one can fairly compel the Subje&s
Add the Preface of the fame Author to his Book de Cive; as allo Leviath. cap. 21. where he reckons up the Mil-
chiefs, that have ariſen from the Ariftotelian Do&trine of Liberty. Comp. de Cive, c. 6. Leviath. c. 29, 46, 47,

Chap. IV.
495
And their Natural Connexion.
oso 20
Faults from ,
to bring in Contribucions towards the Expences Civil Government, and which are of Force and
of the State, on either account, but he who hath Efficacy either in promoting or in hindring Obe-
alſo che Right to puniſh the diſobedient. Far- dience co che Sovereign Ruler. For if one ſhould
ther, it would be abſurd to give the Right of command the Subjects to do a thing, under Pain
making Leagues for the Service either of Peace of Temporal Death, and another perſwade them
or War, to any other Perſon, beſides him who that to do it would be to incur Eternal Death,
hach alſo the Right of decreeing Peace or War, and each by his own Right, ſeparately and in-
as he judgeth convenient. For otherwiſe, either dependently enjoy'd (1); the Conſequence muſt
the former will be only a bare Miniſter, or the be not only that the Subjects, tho innocent,
later will depend upon Anotherlie Puthu soovin muy link into an irregular Syfem, a Monfter
Right. So likewiſe, if you conſtitute any Pers with two Heads
. Foraneither can any Man
fon for the chief Management of Buſineſs, and ſerve two Maſters, nor, in the Caſe before us,
do not, at the ſame time, impower him to ap- is he whom we think we ought to follow, úpon
point inferior Afiftanes, and to require their Pain of Eternal Damnation, leſs our Mafter,
Service in their reſpective Poſts, (without which than he whom we obey upon the Fear of tempo-
Aſliſtants the Buſineſs cannot be perform’d, You ral Deſtruction. And were the Right of control-
really make him as meer a Servant as the reſt
. ling and regulating Do&rines once taken away,
For which reaſon, neither can the Power of ap- the more fuperftitious Subje&s would be drawn
pointing Magiſtrates be divided from the other into Rebellion by their own Fancies (a). Whaç
parts of the Supreme Authority. Laſtly, to the farther Power the Sovereign hath, as to Sacred
ſame Authority it muſt belong, to take Cogni. Matters under Chriſtian Government, is a Point
zance of Doctrines and Opinions, of ſuch eſ which we leave to
pecially, as bear any Relation to the End of Others (b) (2). Nor are we here at leiſure,
(1) See a Diſcourſe of our Author's, intituled, De Concordia vere Politica, cum Religione Chriftiana, f. 11. and the
Rights of the Chriſtian Church, &c.
(a) Comp. Hobbes ibid. Ego Horn. l. 3. c. 11.f: 3.
(6) See eſpecially Grotius De Imperio ſummarum Pole-
fiatum circa ſacra, c. I.
(2) It is, however, worth our while to ſay ſomething upon this important Matter.
If we here make uſe of an unprejudiced Mind, it may be decided in few Words, at leaſt as far as is neceſſary to eſtabliſh
general Principles, from whence we may eaſily draw Conſequences in particular Caſes ; and in other Points depending
upon that
. The following Letter concerning Toleration contains what is ſufficient to ſatisfy us. : The Toleration of thoſe
that differ from others in Matters of Religion is ſo agreeable to the Goſpel of Jeſus Chriſt, and to the genuine Reaſon
of Mankind, that it ſeems inonſtrous for Men to be lo blind as not to perceive the Neceſſity and Advantage of it in ſo
clear a Light. I will not here tax the Pride and Ambition of ſome, the Paſſion and Uncharitable Zeal of others. Theſe
plain Impụtation of, without covering them with ſome ſpecious Colour ;, and ſo pretend to Commendation, whilſt they
are carried away by their own irregular Paflions. But however, that ſome may not colour their Spirit of Perſecutio
and Unchriſtian Cruelty with a pretence of Care of the Publick Weal, and Obſervation of the Laws ; and that others
under pretence of Religion, may not feel Impunity for their Libertiniſm and Licentiouſneſs: In a word, that none may
impoſe either upon himſelf or others, by Pretences of Loyalty and Obedience to the Prince, or of Tenderneſs and Sin.
cerity in the Woríhip of God; I eſteem it above all things neceſſary to diſtinguiſh exa&tly the Buſineſs of Civil Govern
'ment from that of Religion, and to ſettled the juſt Bounds that lie between the one and the other. If this be not done,
there can be no end put to the Controverſies that will be always ariſing between thoſe that have, or at leaſt pretend to
have, on the one ſide, a care of the Common-wealth. The Common-wealth ſeems to be a Society of Men conffituted
only for the procuring, preſerving and advancing their own Civil Intereſts. Civil Intereſts I call Life, Liberty, Health and
Indolency of Body ; and the Poffeflion of outward Things, ſuch as Mony, Lands, Houſes, Furniture, and the like.
It is the Duty of the Civil Magiſtrate, by the impartial Execution of equal Laws, to ſecure unto all the People in gene-
ral, and to every one of his Subjects in particular, the juſt Poſſeſſion of the Things belonging to this Life,' If any one
preſume to violate the Laws of Publick Juſtice and Equity, eſtabliſh'd for the Preſervation of thoſe Things, his Pre-
fumption is to be check'd by the Fear of Puniſhment, conſilting of the Deprivation or Diminution of thoſe Civil In-
tereſts or Goods, which otherwiſe he might and ought to enjoy. But ſeeing no Man does willingly fuffer himſelf to
be puniſh'd by the Deprivation of any part of his Goods, and much leſs of his Liberty or Life, therefore is the Magi-
frate arm’d with the Force and Strength of all his Subje&ts, in order to the Puniſhment of thoſe that violate any other
Man's Rights. Now that the whole Juriſdiction of the Magiſtrate reaches only to theſe Civil Concernments ; and that
all Civil Power, Right, and Dominion, is founded and confined to the only care of promoting theſe things; and that it
neither
can, nor ought in any manner to be extended to the Salvation of Souls, theſe following Confiderations ſeem unto
me abundantly to demonſtrate. Firft, Becauſe the Care of Souls is not committed to the Civil Magiſtrate any more than
other men. Ít is not committed unto him, I ſay, by God, becauſe it appears not that God has ever given any ſuch
Authority to one Man over another, as to compel any one to his Religion. Nor can any, ſuch Power be veſted in the
Magiſtrate by the Conſent of the People ; becauſe no Man can ſo far abandon the Care of his own Salvation, as blindly
to leave it to the choice of any other, whether Prince or Subjeet, to preſcribe to him what Faith or Worſhip he ſhall
embrace. For no Man can, if he would, conform his Faith to the Di&tates of another. All the Life and Power of true
Religion conſiſt in the outward and full Perſuaſion of the Mind; and Faith is not Faith without. Believing. What
Profeſſion foever we make to whatever outward Worſhip we conform, if we are not fully ſatisfied in our own Mind that
one is true, and the other well pleaſing unto GOD, ſuch Profeſion, and ſuch Practice, far from being any further-
ance, are great Obſtacles to our Salvation. For in this manner, inſtead of expiating other Sins by the Exerciſe of Religion,
I ſay, in offering thus unto God Almighty ſuch a Worſhip as we eſteem difpleaſing to him, we add into the Number
of our other Sins thoſe alfo of Hypocriſie and Contempt of his Divine Majeſty. Secondly, The Care of Souls cannot be-
long to the Civil Magiſtrate, becauſe his Power conſiſts only in outward Force; but true and faving Religion confifts
in the inward Perſuaſion of the Mind, without which nothing can be acceptable to GOD. And ſuch is the Nature of
the Underſtanding, that it cannot be compelld to the Belief of any thing by outward Force. Confiſcation of Effate,
Impriſonment, Torments, nothing of that Nature can have any ſuch efficacy as to make Men change the inward Judg-
ment that they have framid of things. It may indeed be alledg'd, that the Magiſtrate may make uſe of Arguments,
and thereby draw the Heterodox into the way of Truth, and procure their Salvation. I grant it ; but this is com-
mon to him with other Men. In teaching, inſtru&ting and redreſſing the Erroneous by Reaſon, he may certainly do
what becomes any good Man to do. Magiftracy does not oblige him to put off either Humanity or Chriftianity; but it
M m m 2
;
the

496
Of the Pares of Sovereignty,
Book VII
to any
that it has a who wrote the Letter concerning Toleration, which is of very great weight : fince the Learned Mr. Locke
to diſcuſs the Opinion of Philo the few (a), who deliver them up to take their Tryal-before the
having ſhewn, that Moſes was a King, a Law. Senate. Now ſhould we admit the former of
giver, a Prieſt, and a Prophet, adds, Since all theſe, it doth not appear, how he, whom we
ebele ofices are reducible to one and the ſame Head, fuppofe not to have the Power of putting the
they ought by mutual Ties, to be united and excloſed Laws in Execution, can puniſh the Subjeås be
.
one with the orber ; and they are all requifite in the fore they are actually liſted, and brought under
Same Person, ſo that be who wants any one of the four, Martial Diſcipline. If You ſay, that, in this
is to be book'd on as a lame Ruler of an imperfe& Com- particular Caſe, the King hath a Right to punih
mon-wealth.
the Diſobedient, tho' not in other Cafes ; You,
XII. This will be more clearly diſcern'd, if at the ſame time, give Him the Privilege of op-
we examine thoſe ſeveral Diviſions of the Sove- preſſing and grieving his people as he thinks fit,
reignty, which might be propoſed. Let, there and ſo you cancel the Rights of all befide. For
fore, the Power of Peace and War be in the when he orders them to take up Arms, he'll pu-
Prince ; the Power of making Laws and execu- niſh them if they dare to refuſe ; and when he
ting Juſtice in the Senate ; the Right of levying hath once led them out on an Expedition, then
Tribute, in an Aſſembly of the People. Here, the Nature of Military Diſcipline gives him the
if the King commands the Subje&ts to Arms, and Power of Life and Death over them : and no
they refuſe to obey his Orders, either the King thing is eaſier than for a General to cut off any
may compel then by Puniſhments, which he Soldier, who hath the Misfortune to fall under
himſelf has a Right of infli&ing, or he ought to his Hatred or Diſpleaſure (b). On the other
is one thing to perſuade, another to command ; one thing to preſs with Arguments, another with Penalties. This
Civil Power alone has a right to do ; to the other, Good Will is Authority enough. Every Man has Commiſſion to
admoniſh, exhort, convince another of Error, and by Reaſoning to draw him into Truth : 'but to give Laws, receive
Obedience, and compel with the Sword, belongs to none but the Magiſtrate. And upon this ground I affirm, that the
Magiſtrate's Power extends not to the chabliſħing of Articles of Faith, or Forms of Worſhip, by the force of his
Laws. For Laws are of no Force at all without Penalties ; and Penalties in this caſe are abſolutely impertinent, be-
cauſe they are not proper to convince the Mind. Neither the Profeſſion of any Articles of Faith, nor the Conformity
outward Form of Worſhip, (as has been already ſaid) can be available to the Salvation of Souls, unleſs the Truth
( of the one, and the Acceptableneſs of the other unto God, be thoroughly believ'd by thoſe that ſo profeſs and pra&ife.
• But Penalties are no ways capable to produce ſuch Belief. It is only Light and Evidence that can work a Change in
* Men's Opinions ; which Light can in no manner proceed from Corporal Sufferings, or any other outward Penalties.
Thirdly, The care of the Salvation of Men's Souls cannot belong to the Magiſtrate ; becauſe, tho' the Rigour of Laws
. and the Force of Penalties, were capable to convince and change Men's Minds, yet would not that help at all to the
Salvation of their Souls. For there being but one Truth, one way to Heaven ; what hope is there that more Men
would be led into it, if they had no Rule but the Religion of the Court, and were put under a Neceflity to quit the
Light of their own Reafon, and oppoſe the Dictates of their own Conſcience, and blindly to reſign up them-
• felves to the will of their Governours, and to the Religion which either Ignorance, Ambition or Superftition
' had chanced to eſtabliſh in the Countries where they were born? In the variety and contradi&tion of Opinions in Reli-
gion, wherein the Princes of the World are as much divided as in their Secular Intereſts, the narrow way would be
much ſtraitend ; one Country alone would be in the right, and all the reſt of the World put under an Obligation of
following their Princes in the ways that lead to Deftru&tion; and that which heightens the Abſurdity, and very ill
• ſuits the Notion of a Deity, Men would owe their Eternal Happineſs or Miſery to the Place of their Nativity'. Theſe
are the Author's own Words : From whence he aſſerts, that the Magiſtrate ought to leave every one the Liberty of pro-
feſling ſuch Opinions as he believes the moſt reaſonable, and to take care that no Violence be offer'd to any perſon upon
that Account. 'He ſhews at large the Inconveniences that there would be in ſubmitting ones ſelf to the Humours of
Princes ; who act nothing but by the Suggeſtion of the Churchmen that are about them. If a Man were obliged to follow
the Religion of the Prince, he muſt change his Religion as often as his Prince ; ſo that if Princes of different Opinions
ſhould ſucceed one another, as it has happen'd in England, the Inhabitants of a Country muſt in a few years be of different
Religions to be ſay’d. ' But as in every Church there are two Things eſpecially to be conſider'd, the outward Form and
• Rites of Worſhip, and the Doctrines and Articles of Faith. The Author takes notice there of the Duties of a Magi-
• ftrate with reſpe&t both to the one and the other. As for Ceremonies, or the outward Form and Rites of Worſhip,
appears by the Definition of a Church, which is, according to him, a voluntary Society of Men joining themſelves toge-
ther of their own accord, in order to the publick worſhipping of God in ſuch manner as they judge acceptable to bim, and efe-
• Aual to the Salvation of their Souls. It appears, I ſay, by this Definition, that the Prince has no Power to enforce by
* Law, either in his own Church, or much leſs in another, the Uſe of any Rites or Ceremonies whatſoever, in the Worſhip
of God. We cannot ſay, that being things indifferent, the Prince has a Right to regulate them as he finds convenient,
becauſe when ſuch things are brought into the Church and Worſhip of God, they are remov'd out of the reach of the
Magiftrate's Juriſdiction, and in that uſe they have no Connexion at all with Civil Affairs. Beſides, if they are indif-
ferent in themſelves, they do not by the Prince's Approbation become acceptable to God, who has not promis'd to be
pleas'd with the Worſhip that the Magiſtrates ſhould eſtabliſh. As to the Do&rines and Articles of Faith: Firf,
Princes ought not to tolerate any Opinions contrary to Civil Society. Secondly, They ought not in particular to tole,
rate thoſe, who under the pretence of Religion would deveft private Perſons, or even Magiftrates of their Civil
• Rights and Poffeßions
. Thirdly, They ought not to ſuffer Churches which are conftituted upon ſuch a Bottom, as that
• all thoſe who enter into them, do thereby, ipfo facto, deliver themſelves up to fome Foreign Authority which they
are ready to pay a blind Obedience to, notwithftanding they have Princes of their own. Fourthly, and láfly. Atheifts
who deny the Being of a God are not to be tolerated, becauſe having no Religion, they make a Conſcience of nothing
Treatiſe. One is
, Their being a neceſſary Conſequence of a Truth which our Author himſelf has folidly proved in his
Diſcourſe de habitu Religionis Chriftianæ ad vitam Civilem, I mean, that Rcligion is antecedent to Civil Societies, and
to do with their Etabliſhments. See Se&. 1, 2, 3, 4, 5, 6. The other Reaſon is the Authority
of the Perſon
, :
jure Gentium libera ; publiſh'd by me in French in the beginning of the Year 1707. and fince tranſlated into Englib.
The Reader will find in my Notes, the principal Treatiſes that have been written upon this Subje&t, ſpecified and re-
(a) De Pram.& Pæn. P. 919. A. Edit. Parif. Our Author might plainly have ſaid, that this Opinion, having no other
Foundation than Philo's Authority, was not worth refuting. (6) Vid. Liv. I. 11. c. 23, 32, 58.7. 111. c, 10, 20,
24. 1. IV. c. 1, 5.58. 1. V. 6. 2. 10, and in many other places. Diodor. Sic. 1. XIV.C, 73. Quintus Curtius, 1. VII. C. 26
Polyb. l. 1.6.9.
it
hand
Chap. IV.
497
And their Natural Connexion.

any Perſon againſt whom the Judges had proa
hand, if the King muſt be obliged to have re- Here the two unfortunate Perſons were able in
courſe to the Senate for Juſtice, when any Per- fome fort to make up the Defects of Nature, lo
fons refuſe to lift themſelves under his Command; long as they agreed to afford their mutual Atift-
in this Caſe, either the Senators muſt pronounce ance. But ihould this Agreement have been
che Sentence of their Condemnation, and give once broken, and a Quarrel have happen'd be
Orders for the Execution of it, barely by the cween them, each Party would have been alike
King's Commiſſion and Authority ; which is at a lofs about their way. In the ſame manner
contrary to the Suppofition: or they muſt judge ſhould any perlift in dividing the Parts of the
whether the Act alledg’d be Criminal or not ; Sovereignty, he will by no means compoſe a
and this Proceeding will certainly be vain and regular Seate, but a diſorderly Body, the Mem-
fruitleſs, unleſs the ſame Judges may likewiſe bers of which holding theſe ſeparate Limbs of
take upon them to examine, whether or no the the Government, ſhall be kept together, not by
War now engaged in by the Prince, be for the any common Authority, but by bare Compad or
Advantage of the Commonwealth : And thus Agreement. Now in ſuch a Society, ſome kind
the King's Right will again be deſtroyed. We of Peace and Concord might be maintain'd, fo
fhall diſcover the ſame Inconveniences, if we long as particular Perſons kindly conſpir' in
compare the Right of the Prince, with ehát of the their opinions with regard to the Publick Good,
People, under ſuch a Conſtitution, as we did be- and were each of them ready voluntarily to per
fore with that of the Senate. For as the Meaſures form what was requiſite towards this End. But
of War are now ſettled in moft Countries, Ta- ſhould any Diffention ariſe, no means of Redreſs
citus's Obſervation (a) holds true; that Armies would be left, but either to ſeek abroad for an
cannot be without Pay, and Pay cannot be bad with- Arbitrator, or to decide the Controverſy by the
but Taxes. If therefore the Prince have not a Pow. Sword.
er of compelling the Subjects by vircue of his XIII. Tho’the Caſe be manifeſtly thus, as we
Sovereign Command, to bring in their Shares of have repreſented it, yer there is no inconſiderable
the Publick Contributions, his Right over the Number of Men, who ſtand up reſolutely for
Affair of War will be no more than a bare Pow. the Diviſion of the Sovereign Power, that here-
er of perſwading and adviſing the People, that, by they may frame I know not what Mixtures of
in ſuch or ſuch a particular Juncture, to engage Commonwealths, which being rightly temper’d
in a War would be for the Advantage of the and qualified muſt needs forſooth, produce the
Commonwealth. On the other hand, if the moſt happy Syſtem of Government. They
People are not impower'd to judge whether the would gladly engage Ariſtotle to be of their Pare
War towards which theſe Subſidies are levied, ty, but without Effect; he in the place of his
be for their Intereſt or not; then what have Works which they alledge (e), ſpeaking of a
they to boaſt of, but the laborious and ſervile Mixcure far different from any that can be ap-
Office of Aſſeſſors and Collectors ? Nor will plied to the parts of the Sovereignty. Which
things be in a better Poſture, ſhould we ſeparate makes it feem the more ſtrange, that ſome In-
the Branches of Sovereignty, according to any terpreters (and Mich. Piccart amongſt the reſt)
other Diviſion that could be invented (b). So when they come to treat of this Mixture, put
juſt was that Remark of Afinius Gallus, in Tacitus fuch things togecher, as probably never entred
(c), that As a Government bath but one Body, so it into the Philoſopher's Head. The Temperature
muſt be directed but by one Mind: (whether of a which be ſo much adviſech and recommends, runs
fingle Perſon, or of a Council or Aſſembly.) in the following manner ; That the King Mall have
This may be well illuſtrated by the Example of the Power of making War, of Coining Money, of ena
the Human Soul, to which the Sovereign Au- gaging in Leagues, of conferring publick Rewards:
thority in a state, ſeems to bear fome Reſeni bat the Senate Jhall polleſs Juch Righis as demand Ex-
blance. Now ſhould we ſuppoſe the Potential perience and Deliberation ; the framing and the execut-
Parts of the Rational Soul, the Underſtanding ing of Laws, and the adminiftring of Publick Juſtice
and the Will to exiſt ſeparately, in two different laſtly, that the populacy ſhall manage ſuch Affairs, as
Subjects or Suppofitums, one of which ſhould their knowledge chiefly directs them the Examinai
have only the Faculey of the Underſtanding, the tion of the Revenue, the Diviſion of Lands, the Cream
other only the Faculty of the Will ; neither of tion of Magiſtrates, the Inſpečtion of Buildings,
theſe Suppofitums could be call'd a Man, nor could Highways, Aqueducts; Corn, and other Helps and
Human A&ions be expected from either ; whilft Ajift ances of the State. In like manner, it would
one lay unactive and immoveable, the other not argue any Diviſion in the Sovereignty,ſhould
blind and inſenſible. To which purpoſe the we for Inftance, ſuppoſe that the Senate had
Epigram in the Anthologia (d) ſeems proper to be the Power of condemning, but the Prince or the
applied :
People of pardoning and acquitting. For here
the Prince might by his Prerogative, abſolve
Ingås i Mir guos, &c.
nounced Sentence; and conſequently the latter
The Blind Man bears the Lame : what Fate denies
would be only an inferior Court, whoſe Deci-
The wretched Pair, their mutual Help Supplies ;
One lends his Feet, the other lends bis Eyes.
fions muſt borrow their Force and Ratification
to
3
(a) Hift. 1. IV. c. 74.
(6) Add Bodin. De Republ
. 1. 2. c. 1. p. 287. with the Obſervation made on that Author, by Arniſaus De Republ. 1. 2.
6. 6. f. 1. par. 56.
(c) Annal. 1. 1. c. 12,
(4) L, I
(e) Polit. I. IV. c. 8, 9,
from
498
Book VII.
Of the Parts of Sovereignty,

it is
from the Authority of the former. Whence it People by an Oath, that he will perform in ſuch
fufficiently appears, that if in any State, the a peculiar manner, things which belong to the
Judgment of Capital Cauſes belongs to the Se. Adminiſtration of the Government, doth noc
nate, the King Atill retaining the Right of Grace, argue a Partition of Power. But through all the
or Pardon; the Senate doth really hold, by De- reſt of his Diſcourſe, he falls into the common
putation from the King, chis Power of preſiding Error.. One way then, by which he thinks the
in Criminal Proceſſes, and of pronouncing Sen. Sovereignty may be divided, is when a Partition
tence as the Law dire&ts; and this as well for ſhall be made by expreſs Agreement. A Prece-
the Baniſhing all Partiality from the Methods of dent of this kind he alledgeth from the Roman
Juſtice, as to divert the Odium from the King: State in the time of Probus, when the Senate
yet ſo as that the Power of Life and Death are confirm'd the Prince's Laws, heard Appeals,
radically or originally inherent in the King's created Pro-conſuls, and ſupplied the Confuls
Perſon. Some would frame a Diviſion in the with Lieutenants. As if any perſon could be
Judiciary Power it ſelf; ſo that the Prince ſhould ignorant, how that amongſt the Emperors, choſe
have the Power of Life and Death over Strangers who affected to ſeem more Modelt than others,
Only, but the People over the Natives. But exerciſed the Sovereignty under the Mask and
now, if the People exerciſe this Power over the Diſguiſe of the ancient Commonwealth; lear-
Natives, only as an inferior Court, then they ing to the Senate ſome inferior and petit Affairs,
do not in the leaſt intrench upon the Prerogative ſuch as had little Influence on the main Govern-
of the Prince. On the contrary, if they hold it ment; but reſerving (triąly to themſelves the
originally and independently, then the King chief Force and Command, which conſiſted for
will have nothing left him but an empty Title, the moſt part in the Souldiery. Another Pro-
and will only perform the Office of Prætor pere- ject of dividing the Sovereignty, he expreſfech
grinus, a Judge of Foreign Cauſes. As for what in this manner; If the People being as yet Free,
they add, about dividing the Right of Coinage, Mall require thus much of him whom they chooſe to be
too impertinent to deſerve a Repeci- their King ? and ſhall lay it upin him after the man-
tion.
ner of a Standing Rule or Command. Now here 'tis
Arniſaus (a) is very large on this point, and not eaſy to apprehend what kind of thing a
amongſt many accurate Remarks, juftly reje&s ſtanding Command is, when ſuppoſed to continue
fome ſpurious kind of Mixtures in Government. after that the Party hath loſt the Power of Com-
And at laſt, the faireſt Model he could invent manding. For every Command pre-ſuppoſech a
was, that the King ſhould have che Power of compulſive Force, to be exerted fo often as the
War and Peace, of levying Tribute, of Coining Command ſhall be tranſgreſs’d. Wherefore the
Money, of diſtributing Publick Rewards; that people who appoint themſelves a King on ſuch
the Senate ſhould be employd in judging Cauſes, Terms, ſhall either keep this compulſive Power
and in receiving Appeals, as likewiſe in the Rea over him, or they fhall not keep it. If the for-
formation of Manners by good Laws, and in ex- mer, the King is only fo in Name; the Force
ercising the Power of Life and Death: And and Efficacy of the Government reliding in the
laſtly, that the People fould be allow'd the People: If the latter, the Command will be in-
Care of the Revenue, and the Creation of Ma- fignificant. He ought therefore to have ſaid,
giftrates. Of which Model, a Judgment may that a People as yet continuing in a State of Li-
be form d, by what we have before obſerv'd. berty, may oblige the future King to follow cer-
XIV. Grotius himſelf (b) hath attempted ſome- tain Rules in the Diſcharge of the Government.
what towards dividing the Parts of the Sovereign. But that ſuch a Compact doth not imply or infer
ty. Where he is ſo far in the right, when he a Diviſion of the Sovereign Power, we ſhall
denies that any ſuch Partition of Power, be- hereafter make appear. His laſt Inſtance of divi-
tween the Prince and the People can be made, ding
Sovereignty is, When in conferring the Govern-
as that the prime Compact ſhall be thus looſely ment, some Clauſe was added, importing that the King
expreſs'd, If the King govern well, then the People might be compellid or puniſh'd, upon Default. Buc
Jhall obey him ; if he govern ill, then the People shall indeed, the Sovereignty can by no means be
compel bim to bis Duty: Obſerving, that certain ſaid here to be divided, buc the People really
Bounds and Limits ought rather to be aſſign'd poſſeſs ic entire, only allowing the King, under
to the Power of either Party ; ſuch as may a great and ſpecious Title, the Office of an ex-
eaſily be apprehended from the Difference of traordinary Magiſtrate ? in caſe the People have
Places, Perſons, and Affairs; but that the bare a Right, on any account to compel or to puniſh
Good or Evil of an Action, conſiſting in the Ap. their Prince. For Puniſhment ever proceeds
plication of "fit Means to the publick Safety, from a Superior, conſider'd in that Capacity.
which often admits of very great and obſcure And as for Compulfion, this may be uſed two
Debates, cannot be a proper Bottom to ground ways, either Morally or Phyſically; that is,
a Partition upon ; in regard to that extreme either by way of Authority and Command;
Confuſion which muſt follow, whilſt the King, or by way of Force and Violence. Authori-
on the one hand, would infilt upon the Manager ty over an Equal, as ſuch, is impoflible. There-
ment of an Affair
, alledging that he order dit fore when Grotius argues that the People at leaft
well, and the People on the other hand, would are equal to the Prince, becauſe in ſome parci-
challenge the Direction of it; pretending that it cular Cafes they may compel him ; he muſt at
had been ill managed before. His other Remark the ſame time allow, that neither Prince nor
is no leſs true, chat for a Prince to promiſe the People have Authority or Sovereignty over the
(4) Rel. Polit, 1. 1.6.6.f. 1.
(6) L. 1.c. 3. f. 9. 17,
other:

Chap. V.
If the Different Forms of Government. 499
other : which is repugnant to the Nature of a ty, by Hoftile Force. If then, we would align
Civil State. The other kind of Compulſion, by this way of compelling to the People, we muſt
Arms and Hoſtile Violence, takes place only withal állow, that both Prince and People live in
berween Equals, or ſuch as are not properly a State of Natural Freedom; that is, that the
ſubje& one to the other. And of this Compul- Civil Government is utterly diffoly'd.' To con-
fion muft we underſtand the Cale urged by Gro- clude, we readily acknowledge the Truth of
tius ; That a Creditor bath naturally a Right of com. Grotius's Obſervation, that, In Civil Infiitutions,
pelling bis Debtor. For certainly he hath no ſuch there is nothing abſolutely free from all Inconvenience ;
Natural Right, by way of Command or Sove- and that therefore we ought not, on account of the In.
reignty inherent in his Perſon : for then it muſt conveniences attending a divided Power, to conclude it
neceſſarily follow, that every one who com- impoſſible : in as much as every Right is to be mea-
menceth a Debtor, muſt fall under Subjection to Sur'd not by the Opinion of one or two particular Perſons,
his Creditor. But ſtill the Credicor hach the full but by the Will of him from whom the Right proceeds.
Privilege of compelling his Debtor to Payment, But then, it muſt be granted us in requital, that
either by the Aſſiſtance of the Judge, (ſuch as if any pleaſe themſelves with framing ſuch a Par.
cannot be had between Prince and People ;) or tition, they will hereby conſtitute, not a regular
elſe, if he live in a Condition of Natural Liber- State, but an ill-jointed and diſtemper'd Body.
CHA P. V.
Of the Different Forms of Government.
.
1. The Accidents of Civil States cannot con., XIII. Of the mixt Governments, propoſed by moš
ſtitute a new Species.
dern Authors.
II. Irregular Forms and Syſtems of Government. XIV. The Nature of Irregular States.
III. The three Forms of Regular Government. XV. This Irregularity bejt illuſtrated by Ex-
IV. Democracy ſeems to be the moſt Ancient
amples.
Form.
XVI. States which admit of Provinces do not
V. Democracy no leſs inveſted with Supreme
bence become neceſſarily Syſtematical.
Power, than Monarchy.
XVII. Of Syſtems, occafion'd by a Common
VI. Democracy, how conftituted.
Prince.
VII. The ordinary Requiſtes of Democracy. XVIII. Of Syſtems, compoſed by League and Con-
VIII. How Ariſtocracy is eſtabliſhed:
federacy.
IX.
And how Monarchy.
XIX. Of the Communication of Councils and
X. In Bodies Politick, there may be Vices of
Buſineſs in theſe united Bodies.
Men, and Vices of State.
XX Whether the greater part ought bere to cona
XI. Yet theſe compoſe not a peculiar Species of Go-
clude the leſs.
XXI. Hw theſe Syſtems are diffoly’d.
XII. As neither do the various Accidents of Demo XXII. The ſeveral Forms of Government compared.
cies and Ariſtocracies,
vernment.
HE Sovereign Authority, beſides that it may at any time be deprived, holding it only by
,
a or a precarious Title ; therefore 'tis great want of
General Subject ; ſo, farther, according as it re. Accuracy in a certain Author to affirm, that
fides either in one Perſon, or in a Council (con- · When a King ſuffers himſelf to be led by the
fiſting of ſome, or of all the Members,) as in a Noſe, by ſome few Counſellors, who abuſe
proper or particular Subject, it produceth diffe. the Eaſineſs of his Temper, or a People by
rent Forms of Common wealths. And here, ' ſome powerful Demagogue, or when, in a ru-
e're we proceed to enquire into this Variery, 'ling Senate one Member leads the reſt, by his
we take it for granted, that we may have free Wiſdom or Eloquence, or over-awes them by
leave to retain the Word Form, when we would his Intereſt and Strength; a Polyarchy is really
expreſs that conſtitution or Model of State, introduced in the firſt of theſe Caſes, and a
which ariſeth from the Difference of the Subject, Monarchy in the two latter: and that in the
in which the Supreme Power is primarily and firſt Caſe there is nothing but an empty Name,
originally feated. That the actual Adminiſtra and outward Semblance of Monarchy, in the
tion of the Government recedes, in many Caſes, • ſecond of Democracy, in the third of Polyar-
from the particular Form, is a thing vulgarlý chy or Ariſtocracy. Thus alſo, no intelligent
known: as in Democracy, for inſtance, Tome Perſon will imagine the form of a Common
Affairs are managed in the way of Monarchy, O wealth to be alter'd, upon a Change either in
thers in the way of Polyarchy; according as Bufi- the Perſons or in the Number of Miniſters ; no
neſs is committed to the Care of one Perſon, or more than he will think, that when a new Suc-
to ſuch a Number of Commiſſioners. And be- ceſſor baniſheth from his Councils and Preſence,
cauſe it is a Matter of great Conſequence, one who was chief Miniſter under the former
whether the Power any Perlon exerciſeth be his Prince, and had the Management of all Affairs,
own, or whether it be Another's, of which he an Interregaum muſt hereupon enſue. The Capa-
6
city
500
Of the Different Forms of Government.
Book VII

S
city and Inclinations of him or them, who either lege of a Vote; and this is call’d'a Democracy.
by their own Right, or by Delegacy from others, Another is, when the Sovereignty reſides in'a
exerciſe the Sovereign Power, do indeed affect Council compoſed of ſelect Members, termd
and vary their Adminiſtration, but do by no an Ariſtocracy. A third when the Sovereignty
means touch the form of Government. In the is in the Hands of one Man; "call’d a Monarchy of
ſame manner, ſuppoſing the chief Authority to a Kingdoin. In the firſt, the Sovereign is ftyla
be exercis'd well in one place, and ill in ano- a People in the ſecond Optimates or Senators
ther ; yet a new Model of Scate doch by no and a Monarch in the third. Pindar (a) hach er?
means reſult from the different Exerciſe of the preſs'd all the three together:
ſame Power. Wherefore as a perſon in found i modi noi: mol
Health, doch nor differ in Specie from one that is -11:09 When Choice of Fateollut with us
Sick, and as the unnatural Diſtortion of the Bo- Puts to the Reins a ſingle Maſter's Hand; HDMI
dy doth noc produce Men of a new kind; fo Or when th' impetuous Multitude Command, iboreid
neither do the Vices of thoſe who command, or Or when wiſe Patriots guard the thriving State.
of thoſe who Obey, nor the Corruption of Laws,
make the leaſt Step towards Conſtituting another IV. In the firſt place, we will examine the
Species of a Commonwealth. Nature of a Democrátical Government; noe
Il. It may be uſeful farther to obſerve, that that we think it to excel the other Forms, either
moſt Authors who have treated of Civil Know- in Dignity or Splendor, or in real Uſefulneſs
ledge, have employ'd themſelves in explaining and Advantage (b); but becauſe in the greateſt
the regular Forms of Government; as for the part of the World it appears to have been the
irregular Forms, many have not ſo much as moſt Ancient; and becauſe Reaſon ſhews it to
thought of them, ſome few have very ſlightly be more probable, that many Men, being in a
touch'd upon them. Hence it came to paſs, that Condition of natural Freedom and Equality,
if they happen'd to meet with a Civil Body, which when they reſolv'd to join in one Body,
ſhould
did not exactly come up to one of thofe uſually at firſt be inclined to adminiſter their common
term'd Simple Forms, they had ſcarce any Word Affairs by their common Judgment, and ſo to
left to expreſs it by, beſides the Name of a mixt conſtitute a Democracy. Nor is it to be ſuppoſed
Government. But now, not to urge how very that a Father of a Family, as yer Free and In-
ill this Mixture is applied to ſome Commun- dependent, who upon weighing the Inconvenia
wealths; it is weak to imagine, that befides theſe ences of a ſeparate Life, voluntarily join'd him-
three Regular Forms, there are none other, ſelf to thoſe of his own Condition, in order to
which may be term’d Irregular. i. For all Men the forming a Civil Community, ſhould in a Mo.
don't build their Houſes juſt according to that ment have ſo far forgot his former State, under
Model which the Rules of Architecture preſcribe which he diſpos’d of all things relating to his
The Regularity of a State we conceive to confiit own Safety meerly as he pleas’d, as to be willing
in this, that all, and each of the Members ſeem to ſubmit himſelf immediately to a ſingle Dire-
to be govern'd as it were by one Soul: Or, that ctor, with regard to the Common Intereſt
, with
the Supreme Authority is exercis'd through all which his own private Security had a neceffary
the parts of the State by one Will, without Divi- Connexion. But at the Beginning, it ſeems
fion or Convulſion. And hence the Nature of rather to have been thought more equitable,
an Irregular State, may without much Difficulty that what belong'd to all, ought to be managed
be Collected. Farther, there are ſome Political by all ; 'till in Progreſs of Time, moſt receded
Syſtems, compoſed of ſeveral perfe& States in from this Model, either Voluntarily or by Ne-
Conjunction, which with unskilful Judges paſs ceflity; whether this Neceſſicy was brought up!
for ſingle States, and theſe too may have their on them by ſome of their own Members, or by
uſe in our Enquiries, concerning the ſeveral Strangers. What Plato (c) diſcourſeth concern-
Forms of Commonwealths.
ing the Athenian Commonwealth, ſeems to be of
III. The Forms of a regular State are three, weight on this Subject: The Original (ſays he)
only ariſing from the proper or particular Subject, of our Government (under which the chief Aucho-
in which the Supreme Power reſides; which is ricy was in the People, and the Magiftracies
either a ſingle Perſon, or a Council Selea or were conferr’d on Perſons of the greateſt Abilicy
General. For the Sovereignty is committed and Merit,) was taken from the Equality of our
either to one Man, or to a Council of ſeveral Race. Other States there are, compoſed of different
Men. And this Couucil is made up, either of Blood, and of unegual Lines; the conſequences
of
all the Members, or of the ſmaller indeed, but which are diſproportionable Sovereignty, Tyrannical or
the better and more ſelect Part. One Species Oligarchical Sway. Under which Men live in ſuch a
or Form therefore is, when the Sovereignty is manner, as to eſteem themſelves partly Lords, and
lodg’d in a Council, conſiſting of all the Mem- parily Slaves to each other. but we and our Country.
bers, and where every Member hath the Privi- men, being all born Brethren of tbe Same Mother, do

(a) Pyth. Od. 2. v. 157, &c. Ed. Oxon,
(6) Philo. Jud. De Mundi Opificio, gives this Cenfure of the Fa-
yourers of Polytheiſm ; They
who are not aſhamed to transfer, from Earth to Heaven, the worfe frame of Government
, the
Dominion of the Multitude. Our Author "cites this Paftage, as if Democracy were there acknowledgʻd to be the worfe
ever the vile Populace is at the
Head of Affairs (@gcxoredzia) and beldes the fame Author in another
Treatiſe (de creations
principis towards the End) ſays in expreſs Words Enat Democracy is the beſt and moſt lawful Form of Government-
Εν δ' άστσιν και ευνομωτάτη και πολιτείων αρίσι δημοκρατία.
( ) In Menexeno, p. 519. B.
not

Chap. V.
Of the Different Forms of Government.
501
Ariſtotle (2) Atas
ſerves, that The moſt ancient Kingdoms paſi'd by In- he comprizeth under the General Name of Free
Son's who join'd in forming theſe States, were them. Confuſion of the promiſcuous Multitude : Thar
not look upon our ſclves to ſtand under fo bard a Rela.
preſent Caſe. But indeed, as the Right of
tion, as that of Lords and Slaves. But the Parity of Primogeniture was not of ſo great Force and Ef-
our Deſcent inclines us to keep up the like Parity by our ficacy, as to Etabliſh Regal Dominion amongſt
Laws; and to gield the Precedency to nothing, but to Brethren without their Confent, and to oblige
fuperior Virtue and Wiſdom. Now it is manifeft, them to unite their families to that of their ÉL-
that moſt Civil Communities aroſe, at firft, from der Brother's ſo beſides, theſe primitive Gover-
the Union of ſuch Families as were allied in nours, whom we find dighified with the Title of
poſed by the Authority of ancient Story, which, Magiftrates in Popular Societies; tho this Ho-
tho' it makes frequent mentions of Kings, yet at nour was moſt frequently beſtow'd on the chief
the ſame time informs us, that moſt of them were of the Race, when the reſpe&ivé Society was
fuch, as had rather an Influence in perſwading, compoſed of Families, which had the ſame Ori-
than any Power of commanding. So Juſtin (1),ginalyet ſo as that this Right of Birth and
in the entrance of his Work, deſcribes that kind Seniority was not always obſerva.
of Government as the moſt primitive, which V. It ſeems needful, on the preſent Argument,
an Heroical Kingdom ; ſuch, as to bring the Opinions advanced "by Hornius (f)
is by no means inconſiſtent with a Democratical under a particular Examination. He then, in
Stare. To the ſame purpoſe Thucydides (6) obe relation to Ariſtocracies and Democracies, which
beritance, and were confined within feriled Honours, States, paſſeth his Judgment to purpoſe
and tied to certain Terms and Conditions. Thus in There may be ſuch an Établiſhment found out, as shall
molt Nation, Liberty and popular Sway were avoid the Confufion of the promiſcuous Multitude, and
at firſt eſtabliſh’d; till, by Degrees, that vaſt ſhall attair to a decent and agreeable Order, making
Multitude of pecit Common wealths was re. Proviſion for the Common Safety, by Parts and Cove-
duced, chiefly by War and Violence, into ſome nants, without Subje&ion, and without the loss of that
few great Empires. What Ariſtotle (c) urgeth Liberty which is extinguiſh'd under a Monarch's Reigt.
for
the Antiquity of Regal Government is as Here we have almolt as many Miſtakes as Words.
follows; Wherefore Cities were at firſt under Kings, That the Order, which may be obſerv'd in Free
the barbarous Nations are at this day: for the Per. States, is the only thing which fhields off the
Jelves before under the Same Government: the Sovereign Free States are held together barely by Compact
Rule in Families being that which is kept up in King- and Covenant, without any Sovereign Com-
doms. Which laft Words receive a fair Illuſtra. mand: That particular Perſons are not fo ftrialy
tion from the ſmart Saying of Lycurgus, who fubject to a popular Aſſembly, to a Council
when a Perſon adviſed him to introduce a De. of Senators, as to a Prince under a Monarchy:
mocracy in the State, anſwered, Do You firſt efta- That all the parts of Sovereignty are not ſo fully
bliſs a Democracy in your own Houſe (d). But real. Exercis'd under the former Governments as un-
ly, Ariſtotle's Argument doth not conclude. der the latter: That the Power of Life and Death
The contrary might rather be inferr'd ; that theſe is leſs employd, with regard to private Men, by
ancient Fathers of Families, having been accu a People than by a Prince. What he aſſerrs far-
ftom'd before to bear Rule, ſhould be more in- ther, that Certain Fathers of Families, living as yet
clined to a Democratical Forin, under which in a ſeparate Condition, learnt from the neighbouring
they might ſtill enjoy the Privilege of giving Kingdoms, what Form of Government to introduce
their own Judgment upon Affairs, and might is ſo far from appearing true, that in the firſt
bear a part in the publick Adminiſtration. Nor Union of Families and Nations, moft Commu.
do tbey ſettle the Point, who tell us, that ' Pa nities ſeem rather to have been of the Popular
ternal Government was the moſt ancient a- Form; till upon Diſcovery of the Inconveniences
mongſt Men; being ac firſt mild and gentle, attending ſuch a Government, they fell, ſooner
till, upon the Increaſe of Families and of or later, under the Command of a ſingle Sove-
Vices together, it was ſtrengthen’d with the reign ; ſome, by their own voluntary A&t, ſome,
Power of Life and Death. That this Govern- by Force and Compulſion. No leſs vain is that
ment was continued down through ſucceeding Remark; As Art endeavours to imitate Nature, but
Families, in the Perſons of the Firſt-born, can never reach to Equal or to Excel ber; ſo in theſe
who, by a kind of Natural Right, held both Artificial Forms of Government, the Nature of King-
the Sacred Office, and the Civil Authority; doms is, in ſome ſort, repreſented, as to the Influence
that, by this means, the Heads of Families which they have on the Common Uſe and Benefit ; but
grew into ſo many petit Kings; the great the inward Force and Virtue and Dominion, with which
Multitude of whom, diſcover'd in the Land of Monarchies are endued, being the work of Almighty
Canaan (e), ſeems a plain Argument in the GOD, was beyond the Power of Men to produce. Of
or to
6
(a) Iſocrates is of the ſame Judgment, It ſeemd unjuſt to us, ($thenians) ſays he, that many should be ruled by the And
thority of a few, that thoſe who were inferior in their fortune alone, and in no other Respet, fhould be debar'd from a Sbare in
the Magiftracies and Honours : And that, whilft we have All the fame Common Country, the same Privileges of Birth, Some
should be Maſters and Proprietors of the State, orbers no better than Strangers and
Dependents, and that, under the Pretenca
of Law, Perſons by nature Members of the Common-wealth, ſhould be denied the offices and Employments in it. Add Li
ban. Progym. loc. comm. contra Tyrannum. (1) Principio rerum, Gentium Nationumque Imperium penes erar
(2) In his Politicks, B. 1. c. 14. (6) L. 1.c. 13. p. 8. Ed. Oxon.
(d) Plutarch in Lycurg. P. 52. A.
(e) Vid. Joſhuah Xíl. Sy Judg. 1. %.
(ft De Civitate, l. 3. 6. 116
the
Reges, L: 1.c. 1.
1. c. 2.
(é) Polit. I.
Nan

502
Of the Different forms of Government.
Book VII.
between All in general, and Each in particular ; time, particular would be by regal Injunctions.
Author ; Wbere the Sovereignty is afcribed to Al, as they are under Monarchies (a). 'Tis no bet.
there either All do really pollefsit, or some few only. If ter ihăn trifling to argue ; that if the Sovereignty
up the Council Thall be deem'd the Conſent of cafe all the Senators pretbren; it follows, that in
the Origine of Majeſty, or Sovereignty we have Reſolution which they once embrac'd; and ſince the Ol
not this as well ligation, riſing from their Authority, doib not affect
agree to a Moral Compound Perſon, as to a them as taken all together in a general Body: For as it
lingle Mag? For ſurely 'tis no Contradi&tion to doch noc deſtroy the Sovereignty of a King, cha
are all equal, as to their private and feparate ca: Decree
, upon which A& the Obligation of the
pacities, and yet are each of them ſubje& to the Subje& to the ſaid Decree expires ; ſo whatever
Authority of the whole Council
. And it requires Power the Common Affembly may have as to the
no Depths of Parts to apprehend the Difference altering of their own Decrees ; yet in the mean
no by
between she Allembly of the People in Demo- them, than they
cracies, and private Men diſpers'd according to If not, let thoſe who maintain the contrary Opi-
their reſpective Habitations. Therefore 'tis but nion thew us, thac Offenders againſt the Laws
a trifling
Argument which we find urged by this are not ſo liable to Punishment under Free Seares
,
,,
Ally then they will have none io be sbeir Subjects: beo be lødgʻd, indiviſibly in the Hands of many together
,
cgale ne command and to obey cannot belong to the same then each of those many muſt necellarily bolå some
Petfon : if it be Jaid ibat the particular Men are Sub. pare it, out of the Collection of which Parts the
jiets
, shen All cannot be Governours; becauſe when whole Sovereignty muff at length be conſtituted
. But
each Separate perſon is in a Condition of obeying, the at the same time will be likewiſe necelary, that each
Multitude, which they compoſe, muſt likewiſe ſtand of theſe parts be Supreme : and thus in one State
,
under the ſame Engagement for Obedience is the only there will be more than one Supreme, which is abfurd.
thing which, in ibis Cafe, the private Members confer For in Moral Conſideration, there is no manner
on the Common Body
. Certainly in Moral Com- of Abfurdity in ſuppoſing, that thoſe particular
pound Bodies, ſomewhat be attributed to Wills which unite and conſpire to make up the
All in Conjun&ion, which we cannot allign Will of the Community, ſhould want fome Powa
either to each Member tåken a-part from the er or Quality which the general Will is poffefs
relt, or to any one of thoſe Particulars, and of. So that 'tis no good Conſequence to ſay,
confequently the whole Society is in reality a the Sovereignty is the ſupreme Right; therefore
Moral Perſon diſtiną from the ſeparate Mem- each Man holds a part of it, which part is like.
bers, to which ſuch a peculiar Will, Tuch Adions, wiſe Supreme. We might with as much reaſon
and ſuch Rights may be appropriated, as private infer, that becauſe the Votes of particular Per-
Men are not capable of poflefling. Thoſe Scru- fons, ſeparately and ſolitarily confiderd, are in-
s likewiſe muft ſoon
vanilha which are rais’d effetual towards the enading of a Law, there-
from this Conſideration, that in populác Affem fore many of them in Conjunction, are fill un-
blies the Majority always prevails. For this is able to perform this work. Laſtly he adds, that
one of the Moral Affections which attends the Since in a governing Senate, there is no one Member
very Eſſence of a Compound Body, that the who may not if he offend againſt the State, be broughr
Conſent of the greater part of thoſe who make to due Puniſhment by his
ſhuuld ibe puniſhing
All; in as much
h as
no other means can be of them would belong to the People. But each Member
affign'd, by which the Wills of many natural being thus puniſh'd and remood, the Sovereignty of the
Perſons, when they happen exa&ly to conſpire, whole Council could no where fubfift. This Difficulty
Thould be brought to a Moral Union. Where- will admit of an eaſy Solution, if we firſt right-
fore it cannot be pretended, that in Ariſtocratical ly explain what it is to offend againſt the State.
or Democratical States, the Subje& in which the He then is properly ſaid to be thus guilty, who
chief Authority reſides, is obſcure and uncer- commits any thing tending to the Prejudice
tain, tho' it ſhould happen that thoſe Individual the Publick, contrary to the Laws and Injunkie
Perſons, whoſe Voices upon one Occaſion com- ons of the Sovereign. Wherefore the whole Bo-
poſed a Majority, upon another ſhould prove to dy of Senators cannot offend againſt the Seace,
be of the weaker ſide. For none of theſe Cir. unleſs they either violate thoſe Laws, the Obfer-
cumſtances take away that Unity of Will, which vation of which was made the Condition of their
is to be attributed to the whole
Body. In a Se holding the Sovereignty'; or turn profeſ'a Ene-
nate, if ſo many Members happen not to agree, mies to the People under their Charge : Upon
as are required towards making a Majority, the which Suppoſitions, their Fate will be the ſame
Senate is preſumed to deſign or to declare no as that of Kings in the like Caſes. What he
thing, and therefore no Step is to be made in the farther vents in prejudice of Free States is noto-
new Affair. Which tho'it often turn to the Dif- riouſly falſe. As that, The Sovereignty exercis'd by
ge of the Stare, yet doth not prove that a Monarch is quite a different thing from that which
the Senate is not inveſted with Sovereign Com- appears in Free Governments, to their Effekts may be
mand. Beſides, that other Allegation is falle: alike. Becauſe a Monarcb, beſides that perſonal
True and proper Sovereignty cannot be eſcribed to * Dignity and Splendor, of which no Man is ca-
Multitude, by reaſon that tbe Obedience which is pable in a Commonwealth, is endued witb Majeſty,
cefary, upon ſuch a Suppoſition, muſt be here wanting: which Free States may not alume. But now we look
fince the Multitude cannot be bound always to keep the on it as a certain Truth, that GOD may wich
ples
(a) Add. Liv. h. 2, 6. 3,
aqual
Chap. V.
Of the Different forms of Government. 503

.
that
ter,
ther, cures in a Civil B
equal Juſtice, be ſtyl'd the Author of Monarchies State, which cannot be properly fyld a Demo-
and of Free Commonwealths ; and the former cracy. For we muſt not preſentiy make uſe of
are no leſs produced by Covenants than the lat- this Name, when every Man harh a Right to
ter; from which Covenants che Sovereignty, re- give his Opinion, or when the Time and Place
fules in both Caſes; the immediate Cauſe of are pitch'd upon for another. Congreſs; in as
Obedience being in the People: that a Subject much as this way of proceeding is common to all
conſider'd under that Capacity, is obliged to the kinds of Societies and Conventions at their firſt
fame Duties in a Common-wealth, and in a Riſe, and before they are fully eſtabliſh’d: Buc
Kingdom; th
his Obedience is no leſs ſtri&tly we are then to call it a Democratical Govern
required, and his Subje&tion is in no leſs Degree, ments when the Righę of ſettling Matters rela-
under the one Form than under the other; and ting to the publick Safety, lis conferr'd for ever
that both Governments have the ſame Right of on a general Aſſembly. W tentu
puniſhing Criminals. For who will believe, VII. Towards compleating the Nature of a
upon
the bare Word of this Author, Tbat, in a Democratical State, theſe Conditions ſeem ef-
Kingdom the Puniſhment of offenders is grounded on a pecially neceſſary. Firſt, thatna certain Time
Right over the Lives of the Subjects, which is want and Place be aſſignd, for holding thoſe Aſſem-
ing in Free States: and that therefore under the lat- blies, in which the common Affairs are to be
the Tranſgreſſors of the Laws are puniſb'd as Ene- debated and determin'd. For as on the one ſide,
mies; or only by the Right of War?
the private Buſineſs of particular Men will not
VÍ. We may now enquire how a Democracy ſuffer them always to attend the Publick, ſo on
is erected, and what this Form of Government the other ſide, if nothing be agreed upon as to
hach in it, peculiar from others. When there. the Time and Place; thoſe who belong to the
fore a Number of Free Perſons affemble toge- Society may either meet at different Times and
parative Aſſembly hath already ſome Appearance Caſe they will not be a People, but a ſcatter'd
of a Democracy ; properly in this reſpe&, that Multitude, to whom no Aaion, and no Right
every Man hath the Privilege freely to deliver can be attributed as to one Compound Perſon
his Opinion concerning the Common Affairs. (b). Secondly, Thac the Vote of the Majority
Yet he who diſſents from the Vote of the Ma- ſhall paſs for the Vote of the whole Body :
jority, ſhall not in the leaſt be obliged by what fince, as the World goes, it ſo very rarely hap-
they determine, till ſuch time as by means of a pens, that a great Multitude of Men agree in
ſecond Covenant, a popular Form ſhall be actual- their Judgments as to the ſame Matter. In the
ly confirm d and eſtablith d. Mr. Hobbes (a), for laſt place; ſince ſome Affairs of the Common-
want of diſtinguiſhing theſe two Covenants
, wealth occur every Day, and are of inferior
hath handled this Subject with great Confuſion. Moment; others are leſs frequent, and affect
For we have formerly proved (1), that no Man the main Intereſt; and ſince it cannot be con-
can be obliged by the plurality of Votes, before venient, for the whole People to meet about
he hath given his Conſent to ſuch a Form of pub. fectling the former Concerns, either in daily
lick Adminiſtration. Therefore what he aſſerts Councils, or at Intervals of ſo little Diſtance, as
is falſe, that By their voluntary aſſembling of them. to let nothing of this Nature eſcape their Exa-
ſelves together, we are to ſuppoſe, that they ſtand obliged mination ; it is therefore neceffary to appoint
to whatever the major part shall reſolve. What he certain Magiſtrates, as Subſtitutes or Delegares,
farther delivers, may in the following manner be who by the Authority of the whole People, may
more clearly explain'd. When many Men up- diſpatch Buſineſs of every Day's Occurrence;
on a general Meeting, oblige themſelves by may with mature Diligence, fearch into more
Compact, to unite their Strength and Wealth; important Affairs, and in caſe any thing hap-
either in this very Meeting a Decree is paſs’d, for pens of greater Conſequence, may report it to
the introducing ſome particular form of Go- the popular Aſſembly ; and may likewiſe fee
vernment or not. In Cafe no ſuch Decree about the Decrees of the People put in Execution : for
the Government be made, nor the Time and a large Body of Men is almost ucdeniy uſelefs in
Place aſſign’d for the holding another Aſſembly, reſpect of this laſt Service, as of many others.
then the preſent Meeting is preſumed to be void, VII. An Ariſtocracy is then conftituted when
and each perſon continues in his natural Condi- the Aſſembly, who by means of their firſt Co-
tion of Liberty as before. For a Number of venant united themſelves, as it were into the Ru-
Men cannot become one Body, unleſs they have diments of a State, do by Common Decree en-
agreed upon a conſtant Method of tranſacting truſt the Supreme Adminiſtration in the Hands
publick Bufineſs. If they break up without of a Council, conſifting of fome ſelect Mem-
ſettling this point, yet prefix a Time and Place bers. Theſe Members when they have been de-
for conſidering and debating the Matter farther, clared and deſign’d by the ſaid Aſſembly, either
in order to a final Reſolution ; we have then no by their Names, or by ſome other Mark of Di-
more than the Rudiments and firſt Principles of a ftinction, and have alſo accepted of their De-
(a) De Cive, c. 7. f. 5.
(1) C. 2. f. 7.
(6) Thucydides (1. 2. c. 22. Ed. Oxon, in the beginning) reports, " That Pericles, once finding the Athenians to be of
a wrong Opinion about the Method to be uſed in a War, would neither caltan Aſſembly of the People, nor hold
fele& Council ; leaſt ſome very falſe Step ſhould be taken, whilſt their Debates would be guided rather by Paſſion
than by Reaſon.
Nnn 2
fignation
a
504
Of the Different Forms of Government.
Book VII.

C
ſignation, are then ſuppoſed to enter upon the IX. Laſtly, A Monarchy is ſettled, when the
Sovereign Command. And here we may ob- Sovereign Authority is conferr'd upon one Mani:
ſerve, that Mr. Hobbes (1) is miſtaken when he And that this is done by means of a Covenant
draws the Origine of Ariſtocracy from Demo- intervening, we have already ſufficiently demont
cracy, if his meaning be, that all Governments ſtrated againſt the Opinion of Mr. Hobbes (4)
of the former kind were Changes from the lac- Before we proceed farther, we cannot but cake
ter, which are fuppofed ro have been before com under Examinacion che peftilent Notion of a
pleatly eftabliſh'd For Experience provos, and cercain Anonymous Dutch Author in his Political
Reaſon does nor deny, that Men might paſs on Balance, which runs in the following manner
.
from the firſt preparatory Covenant, either to
Since the Ad of conferring the Sovereign
Ariſtocracy or to Monarchy, without taking Power is always defign'd for the more conve-
Democracy in their way. Beſides, we have be. • nient Prevention and Removal of Evils, whe-
fore made it appear (2), that Mr. Hobbes doch ther proceeding from inward or from outward
but play with an Argument, when he tells us, · Cauſes; it cannot be preſumed that a Demo-
That no Covenant can be tranſacted between cratical Society fhould ever have devolv'd this
' the Senators and People, becauſe the Govern. Authority on one Man and his Heirs, by a
ment, being once conferr'd on the former, perpetual Succeſſion. For, in as much as their
the latter do no longer exiſt after the manner Hopes of a more commodious Protection, un-
of one Perfon'. For to make Men capable of der a fingle Governour, were grounded purely
fuſtaining Obligations cowards others, 'tis fuffi on the Virtues which appear'd at firſt in the
cient that they ſtill continue natural Perſons, Perſon Elected; and ſince no one can be igno.
tho' the Moral Perſonality, which they once rant, that all Men are changeable and niortal,
bore, may be expired. We may add, tho' the and that, in a ſhort time, either Age will reo-
People upon transferring the Sovereignty from der them unfit for Government, or, if they die
themſelves, do not henceforth exiſt as one com fooner, they will leave either no Iſſue, or ſuch
pleat Perfon, oppoſed to their newly received as muft be young and unexperienced ; or chat,
Head ; yet this doth not diffolve them into a . fhould they happen to leave Children grown
looſe Multitude ; in as much as being join'd to to mature Years, yer theſe may either not be
their Head, the Senate, they ſtill conftiture one more able to rule than others, by any Natural
Perfon. Farther, what he infers in another place. Capacity; or may want Will and Inclination
(a) is falſe ; that As the People under a Democracy, to defend their Charge; we muſt therefore by
jo the Court of Senators under an Ariſtocracy, are free no means ſuppoſe that a popular Society ever
from all manner of Obligation. For ſhould we be • intended to debar themſelves of the Privilege
never ſo willing to grant the Antecedent (3), ' of chooſing a better Governour, in the room
upon Suppoſition that the reſpect, which all'in of one, who is either weak or wicked. But
general bear to each in particular, may perhaps that when Perſons had thus got the Sovereign-
ſeem inſufficient to found a mutual Obligation ty into their Hands, it was eaſy for them, by
between them; yet it cannoc hence be concluded, drawing to their Alliſtance the greateſt part
that neither is there any mutual Obligation be of the People, eſpecially the Souldiery, fo to
twixt Senators and People. As 'would be no ' confirm their power to themſelves and their
Conſequence to ſay, I do not any way ſtand ' Pofterity, as to be able ever to hold the Com-
oblig'd to my ſelf, whilft I manage my own Affairs mand even againft the Will of the Subject.
in Perſon ; therefore if I transfer the Care of To which we reply, if it ever entred into the
them on another, he likewiſe ſhall be exempt Thoughts of a Society, to confer the chief
from all Obligation. One thing this Author Rule on a Perſon under this Condicion, chat
rightly obſerves (b), that under an Ariſtocrati- whenfoever the People ſhould vote his Govern-
cal, as well as under a Democratical Form, un ment not fo Effettual towards. procuring the
leſs certain Times and Places are appointed for common Safety, as their Democratical State
the Senators to meet, there will be no longer any was before, he ſhould be depriv'd of his Office;
ſuch thing as a Court or a Compound Perſon, but a they did not, by ſuch an Ad as this, conſtitute
diſorderly independent Multitude, without Autho- a Monarch, but only an extraordinary Magi,
ricy or Rule. In as much as the Wills of the par- ftrate, who was to depend upon the Breath
of
ticular Members, from the Combination of which the Multitude, and therefore was not inveſted
we apprehend the will of the Court to ſpring, with the Supreme Authority. Beſides, fince
cannot be known otherwiſe than by their aſſem- 'tis evident, how little a State is a Gainer by
bling together for this purpoſe. For to take the frequent Changes in the Throne, other Men
Senator's Votes, by a diſtant Scrutiny ſent about rather than other Manners ftill fucceeding ;
in Writing, is a Mechod full of Inconvenience. how great a Blow it muſt be to the Publick
Farther, it is no leſs neceſſary in an Ariſtocracy to force a Prince from his Command, who hath
than in a Democracy, that the Times of meeting had Opportunity, in his publick Adminiſtration,
in a Council be nor fixe too far alunder, unleſs the to ſtrengthen his private Intereft; it is but a fair
Exerciſe of the Sovereign Power, at leaſt with and ealý Preſumption, that a People ſhould be
regard to Bufineſs and daily Occurrence, be in the willing to truſt their Fortune once for all, by
mean Time encrufted with ſome one Magiſtrate, fixing the Government irrevocably in a King:
or with Commiſſioners not many in Number. the Evils which naturally flow'd from their for-




and
(1) Ubi Supra, f. 8.
(6) S. 10.
(2) C.2. 12.
(4) C. 2, 1:9,856
(a) S. 9.
(3) the Fifth section of this Chapter.
mer

Chap. V.
Of the Different forms of Government,
505
unskilful in preſerving Peace.
inferior to Tyranny it felf.
mer uncertain, unſertled Condition, being much may be look'd on as ſome kind of Perfection to
more to be dreaded, than any
which a degene- have the feweſt Failings. Of thoſe Diſeaſes,
rate Monarch might create. Eſpecially, if we which infe& Civil Socięcies, ſome, we ſee, také
conſider how far the exorbitant Inclinations of their Riſe from the Wickedneſs of particular Per-
ſuch a Prince may be limited and retrench'd by ſons, others from ſome Defect in the publick
fundamental Laws. And, laſtly, 'tis by no means Conſtitution. The former we may ſtyle che Vices
allowable to revoke all Tuch Acts, the Iſſue of of Men, the latter the Vices of the State. It may
which doch not exa&ly anſwer our Expectation: be proper to touch on ſome Inſtances of each
fince Human Affairs muſt be always liable to Kind, for Illuſtration and Diſtin&ion. In a
Accidents, and ſince we can eſtabliſh nothing, Monarchy then, the Vices of Men, or perſonal
but what will be attended at leaſt with ſome Faults are as follow; if he, whom either the
Inconveniences (a).
Chance of Blood, or the unhappy Suffrage of
A Monarcby differs from the Two former the People hath advanced to the Throne, be de-
Species of Government in this reſpect (1), that ſtitute of the Arts of Government; and very little
under them, before any Matter can be debated or not at all affected with any Care or Concern
or determin'd, that is, before the Authority can for the Common Intereſt, which he proſtitutes
be actually exercis’d, 'tis neceſſary that certain to the Ambicion, or to the Avarice of bad Mini-
Times and Places be aſſign’d for this purpoſe : fters; if he render himſelf Terrible, by Pallion
whereas in a Monarchy, (at leaſt if it be ſuch as or Cruelty, forgetting that he is a man himſelf
we term Abſolute,) Deliberations may be held or that he governs Men ; if he take a delight in
and Reſolutions taken, at all Places and Times expoſing the Commonwealth to unneceſtarý
(b). For a People, or a Senate, in as much as Hazard or Danger; if he ſquander away what
they do not compoſe one Natural Body, muſt hath been gather'd to defray the Expences of the
wait an Opporcunity of meeting together. But Publick, either in Luxury, or in unadviſed
a Monarch, who is but one Perſon in Natural, as Grants and Bounties (d); if he heap up Money
well as in Moral Account, is always furniſh'd beyond the Bounds of Reafon, firft ſqueez'd out
with an immediate Power of exerciſing his So- of the Subject ; if he be notoriouſly abuſive or
vereign Command, thro' all Inſtances of Go. unjuft (e); or guilty of any other Practice,
vernment. It is likewiſe true what Mr. Hobbes which enters into the Character of a bad Prince
(2) obſerves on this Head, that in a People, or (f). The Vices of Men in an Ariſtocracy are :
in a Court of Senators, in caſe any Decree paſs if, by Corruption and baſe Ads, Perſons, of no
which is contrary to the Law of Nacure, the Honeſty or of no Ability, find an eaſy Admiſ-
State it felf, or the Moral Perſon, is not affected fion into the Senate, whilſt True Merit is ex-
with the Guilc, but thoſe Members only whoſe cluded ; if the Senators break into Parties and
Votes concurr'd in the Refolution. For Sin re- Factions amongſt themſelves; if they make it
gards only the Natural or Expreſs Will, not the their Endeavour to enllave the Commonalty to
Moral or Political Will, which is purely Artif- the Service of their private Intereſt, and to in-
cial. Otherwiſe they alſo, who diſliked the creaſe their own Eſtates at the Expence of the
Proceeding, would be included in the Crime (c). Publick. In a Democracy, perſonal Faults are
But in a Monarchy, if the Prince decree any ſuch as theſe; if Mens who really want Judg-
thing which the Law of Nature forbids, the ment; turbulently and importunately maintain
Prince himſelf is the Sinner; becauſe, in his their own Opinions ; if extraordinary Virtue,
Perſon, the Civil or Political
' Will is the very yer ſuch as is not likely to prove too hard a
ſame with the Natural.
Match for the Common-wealth, be oppreſs'd
X. To theſe Regular Forms of Government, and born down by Envy; if through a Light-
it hath been the Cuſtom, with moft Authors, to neſs and Incoñítáncy of Humour, Laws are raſh-
add certain others, which they term Vicious, ly made and as rafhly repeald; and what was
Diftemper'd, or Corrupt. Now here it is certain, embraced but now with Applauſe, is ſoon af-
that in many Common-wealths, no leſs than in ter diſliked and rejected without Reaſon; and
particular Men, we may obſerve a very plentiful if ſordid and worthleſs Perſons are entruſted
Field of Corruption and Diſeaſes ; lo chat it with the Management of Affairs (g). Laſtly,
(a) Add. Grot. L. 1. c. 3. 5.8. n. 1.
() Vid, Hobbes, De Cive, C. 9. f. 13.
(6) Herodian. 1. 1.
6. 14. 2: 13. Ed. Oxon. 'Exsi no i Palun &te pos'o Baciatus. Where the Emperour is, there Rome is.
(2) Ibid. f. 14.
(c) Sce Luke XXIII. 51.
(d) Drepan. Paneg. apon Theodofius, c. 27. ti. 1. Éd.
Cellar. 'Tis tbe laft Defence of wicked Princes, to plunder ſome that they may be bountiful to others.
(e) 'Tis remaro
kable what Philoftratus reports, (De Vit. Apollon. 1. 3.c. 9. in the Beginning.) of the old Indians, that they allow no man-
ner of Honour or Privilege to the Heirs of the Crown; That negle&ful Treatment may be a Lefón to them againft une
reaſonable Pride.
(f) Stich as Claudian ſéts down, De Bello Gildon. v. 157, EC.
Quecunque profunda
Thoſe Heaps which boundleſs Avarice ſapplý,
Traxit avaritia, Inxa pejore refundit :
Vainly he ſpends in viler Luxury ;
Inftat terribilis vivis, morientibus bares,
Tyrant to all that live, and Heir to all that dye.
Virginibus raptor, thalamis obfcenus adulter.
Alike the Nymphs and injur'd Matrons move,
Nulla quies : oritør preda ceſante libido ;
Or Brutal Rape, or foul adult'rous Love.
Divitibufque dies Ey nox metuenda maritis.
Sin nevet ſleeps ; new Spoils, new Lufts invite :
The Wealthy fear thë Day, the Married dread the Night.
Themif. Orat. 10. De Pace ad Valent. Imper. He is but a lame Prince or Legiſlator, who is fit for the Service of War, but
( 8 ) In Plutarch, Dion. p. 978. E. Popular Ambition iš teim'd a wild Diftemper, not
ſuch
}
506 Of the Different forms of Government.
Book VII.

is and
this
Laws a
avoid finking into effemina che é
vels, or, on
2Foreign Princes, who with a fricter
(e) in Cicero, Tuſc. Quæft.
ſuch Vices of Men as may affect any species of fineſs, of whom the inferior Commonaley al-
Government are: if the perfons on whom the ways intake up the greater Number, call this ara
chief Adminiſtration lies, perform their office ochlocracy; or a State where the baſe
Rabble fit
hand, it the Subje&s, who ought to reft con- lowd to ſuch extraordinary Merits, as they look
tented with the Glory of obeying, gtow refra- on themſelves to be poſréſs'd of. And
yet
Name as full of Contempt as it is, might with
&tory and aſpire to Command (a).
1.3: 011900.
read of amongſt the Epheſians of old : who when
modated to the Nature of the People, or of the they expelld Hermodorus out of the City, gave
Place ; or when they are ſo framed as to Breed
this realon for their Proceeding ; Let no Man
in ward Diſtractions, or to provoke the jaft Ha: amongst us excel bis Neighbours ; if he doth, let bema
tred of Foreigners; or whien they render the find out another Seat, amin
Zingſt another People : and
Subjects incapable of performing fach Service whom Heraclitus for this Judgment, declared to
is neceſſary for the Preſervation of the Common- be all worthy of Death (0) Again, if any Pers
wealth : as ſuppoſe the Conſtituciohl be fuch, fon is diſcontented that he hath not a place in
that Men, whilſt they comply with it, carnot the Senate, and at the ſame time thinks him felf
not in the leaſt inferior to many of char Oider:
the other hand, cannot bear the eafy unactive Enty and Contempt together prompt him to
Condition of Peace (1); or laſtly,
or laſtly, when they give them the Name of onlóxiza the Fem; tbåt
contradi&t ſome of the principal Maxims of Civil fome inconſiderable Mortals, who having in tio
Doctrine and the Miſchief will ftill be the reſpect the Advantage of thoſe about them, do
greater, if theſe Irregularities happen to wear yet exerciſe Authority over their Equals or their
the Diſguiſe of Religion (b).
Berters. And a Manunder this Chagrine, hach
XI. Though a found and a diſtemper’d Con- cominönly in his Mouth the Complaine which
món-wealth are yaitly. different from each other, Ajax makes in the Poet (f)
yet we are not, on this account, to multiply
the Forms of Government, and to oppoſe one or : zelis ir bet aos gel riega, &c.
two Vicious Forms to each of thoſe which we
term Good and Regular. For theſe Vices or De Merit no longer finds & juft Reward:
fects do neither change the Nature of the Au. Folly's a Favourire, and Vice prefer'd.
thority it ſelf, nor the proper Subje& in which
it reſides. And thus far Mr. Hobbes (c) is in the People of a more lofty Genius, and thoſe on the
right, when he denies, that Anarchy oppoſed to
contrary who ar
Democracy, Oligarchy to Ariſtocracy, Tyranny to Mo- join in giving the Title of Lords and Maſters to
narchy , are three other kinds of Commonwealths govern a
(2). "'I think í ſays he) no Man believės, that Want Hand : whereas ’tis well
known, that when a Fa-
true ;
That Anarchy, Oligarchy and Tyranny Kindneſs, in both Inftances he exerciſeth the
are three Names impos’d by thoſe who either very fame Paternal Power.
• miſliked the Government, or the Governours. affirm'd of the Name of Tyrant, which is
5 now
' It being uſual with Men to ſignify by Names, attended with an indelible Mark of Hatred and
not the things only, but at the same
at the ſame time their Deteftation, from the Cuſtom of the Grecians,
Affe&tions, as their Love, Hatred, or who thought the chief Happineſs of the States
Anger, their contempt, or Eſteem. For, as to conſiſt in a popular Liberty. Lucian (g) him-
it happens in other Matters, that one Man loves felf paffech this Cenſure' upon them: In general,
what another violently abhors, ſo the ſame Form ſays he, People, not conſidering whether the Perfor
of Government meets with the Approbation of who bears Ruld be Faft or Unjujt, have an Abhorrence
ſome, and with the Averſion of others. And to bare Name of Tyranny. Many of their Au.
this not only becauſe ſome perhaps reap a par- thors apply the ſame Word to any kind of Go-
ticular Advantage from ſuch, or ſuch a Species vernment in the Hands of a fingle Perfon. Thus
of. Commonwealth; but likewiſe on account of Aſchines (6) particularly ſays, There are three
peculiar Tempers and Inclinations (d). Men of Political Forms in afe in the World, Tyranny, Oligar-
haughty Spirits, and who diſlike the Equality of chy and Democracy (1). Hence 'tis worthy our
a popular State, when they ſee all Men without Remark what Mnemin (k), in Photius
, reports of
Diftin&ion, giving their Votes in publick. Bu- Dionyfius, the Fourth Tyrant of Heraclea ; Having,
(a)
Add. Hºbbes Leviath. c. 29. about the End, where he diſcourſeth ingenioufy on ſome Diſeaſes of the State
.
(1) Theſe Inſtances are taken out of our Author's Abridgment, De Offic. Hom. Ego Civ. L. 2. c. 8. f. 10.
(6) Such was the Authority of the Prieſts amongf the People of Meroe, mention d' by Diod. Sic. l. 3. c. 6. and Strabo
1.17 p. 566. Ed. Genev Caſaub. to whom the Kings themſelves were accountable.
(c) De Cive, c.
(d) So that we cannot univerſally allow
that of Lyſias, De Populari Statu, Orat
. 24. No Man is more inclined by Nature either to a Popular, or to ax Ariftocraticak
State ; but every one endeavours to eſtabliſh that Form of Government, which tends moſt to his particular Advantage.
slove that beft in which they themſelves, meet with tbe greatest Honour and Efteem.
1. 5.0, 36. Diog. Laert. l. 9. in Heraclite f. 2. Strabo, 1. 14. p. 441.
(f) Quint. Calaber. 1. 5.
(g) In Phalarid. I. pag. 735. tom. 1. Ed. Amft.
(b) Contra Creſiphonr.
nel. Nep. Miltiad. c. 8. n, 3.
(k) Of the Tyrants of Heraclea, c. 5.
ſays
ng the more mild and tractable both
or
are not accom.
28
as
2.VN
are
42
6
own

(i) Add, Cor-
Chap. V.
5 7
Uf, the Different form of government to

to
latter being leſs Odious and more Honourable. State and after then their Succellors
bare Déviation is ſufficient to conſtitute a new Share with-themſelves in
Fourth Book of his Politiche e
ficient for the conftituting a Democracy, if thoſe have invented many kinds
ſays he, arrived to a high pitch of Glory, he diſduin d Perlons are allow'd the Privilege of Vores,
the Name of Tyrant, and all umed that of Kings the who by uniting, together, fiift compoſed the
Yee there is no one who doth not apprehend, whom their Places and Rights properly def-
that theſe invidious Titles are ſometimes af- cended. But now it's manifeft, that Civil States
fix'd with ſufficient Juftice, to diſtinguiſh the were originally composed by Fathers of Fa.
Government of bad Princes or Senators from milies, who held the inferior Train before
that of Good, the Fury of a turbulent and in- mention'd, under their Domeftica) -Sway, and
conſtant Multitude, from the wife Adminiftra- certainly did not intend to relinquith all Autho-
tion of a modeft People. Arifforle's Deciſion of rity over them, or ro fet them on the level with
this Point differs latèle from what hath been here themſelves. It was ' neceſſary therefore, that
eftabilith'd; who terms Tyraning, Oligarchy and A Perſons who were thus in Subje&ion, thould be
narchy; (for as to this latter word, he uſeth the debarr'd from giving their Suffrage with their
the general Nane of Polity for a found
popular Lords. After the Democracy was once fercied,
Government,) stepexbdoris Deviations or Degene- 'twas in the Power of the Members to receive
racies from a Kingdom, an Ariſtocracy and á others into the State or not to give them a full
Democracy (a). And who will pretend that a or imperfe&t Right ; to let them have the fame
the Adminiſtration, of
Species. As for that Latitude of which the Word utterly to exclude them from it. Whence it may
"A teos or Species is capable, we think it not confi- happen, that in free Govertiments, many ſhall
derable enough to afford any juſt- Matter of want the Privilege of a Voice, whilft yet the
Sons udawanie to ona popular Eftabliſhment continues as perfect as
XII. But when we meet with ſuch a Govern ever. On the other hand, 'cis poſſible indeed,
ent, as we can neither bring under any of that a State Par firft Democratical
, may, by re-
thoſe Forms which are found and regular, nor ceiving large Additions, and by fhutting out all
yer explain how it differs from them, by the bare theſe new Comers from their Honours and their
Notion of a Difeafe or Deviation, then the Councils, ar length commencé an Ariſtocracy.
Learned are put upon a more laborious Enquiry. In the ſaine manner, the Species of Ariſtocrati-
Molt Authors judge it the ſhorteft way of get cal Government will not be multiplied, though,
ting over this' Difficulty, t to call ſuch Governi- in one place, Virtue and Merit ſhould be a fuf
ments Mixt Stares; as if they were the Reſult ficient Qualification for a Senator, in another,
of the more regular Forms, allay'd and blended the Eſtate and Family ſhould be likewiſe contia
together. Ariforle is called in by many to coun- der’d. No more could it be faid, thae
there
were ſo many ſeveral diſtinct Forms of Demo-
worth our while to examine his Opinion in the cracy; if
, under one State, every Free Deniſon
Caſe. Firſt then, as for what he delivers, in the had a Vore in the
under another,
(c), concerning the none but Men of ſuch and ſuch Fortunes were
ſeveral kinds of Democracy and Ariſtocracy, it admitted; under a third, ſome particular Pro-
bears no Reſenıblance to the Mixture propoſed feflion rendred Perfons incapable of this Honour.
by our modern Deſigners. The chiet thing he Much leſs do any new Forms or Species (proper-
there inſiſts on, is the reckoning up of certainly ſo calld,) ariſe from the different Laws of
Conditions and Qualities, to be found in thofe Democracies, relating to the Election of Magia
who are to be admitted into the Popular Affem- ftrates ; whilſt in ſome places, for Inſtance, all
bly, or into the Ruling Senate. By which Perfons promiſcuouſly have a Right to bear thefe
means, neither is the Sovereignty it ſelf any Imployments ; in others, again, an Eſtate, to
way varied, nor are the parts of it torn and ſuch a Value, is made a neceſſary Condition :
wreſted from each other, nor the State rent into as ſuppoſe, under one Government, the Rich
two or more diſtinct Bodies; but the Forms of were allow'd to abfent themſelves from the pub-
Government which he there mentions, are only lick Councils without Cenfure, the Poor not ;
hereby ſlightly diverſified according to their fé- or vice versa. And indeed, this whole Matter is
veral Accidents, or circumſtantial Differences. plain beyond Diſpute. What Judgment we
Thus, although in the Definition of a Democra- ought to paſs on the Mixtures, ſuppoſed to be in
, the chief Authority ſhould be laid to reſide the Commonwealths of Sparta and Cr te, as
in a General Council, or a Council made up of deſcribed by Ariſtotle, we ſhall elſewhere diſcuſs.
all the Members, and at the ſame time tho' it be The Athenian State, which Ariſtotle (d) and Iſo-
true, that Women and Children have as much crates (e) defcribe and commend, was in all re-
Intereſt as others in the Common Welfare; yet ſpects truly popular. Polybius's 'Opinion (f ),
who will maintain thar a new Form of Govern- concerning the mixt Government in the Roman
ment is eſtabliſh’d, when the Women, the Chil- Common-wealth, comes under our Examination
dren and Servants are excluded from the pub- in another place.
lick Debates ? Tho', in our Judgment, 'tis fuf- XIII. As for the Moderns, ſome of them
of mixt States;
Affembly;
cy,
(a) Vid. Polit. I. 3.c.7, 8. (b) Add. Salluft. Philofoph. de Diis & Mundo, c. 11. and to the ſame purpoſe, Themiftius,
Orat
. 16.p.336. Edis. Petav. Who then will be ſo bold as to maintain, that the Corruption of a state is fufficient to con
fitute a new Form of Government? See likewiſe what Mr. Perizonias ſays concerning ſome of Ariſtotle's Terms, in his
fourth Note 02 Ælian. Var. Hift. Lib. II. Cap. XX.
(6) C: 3.06
(d) Polit. do 2. c. 9, 10.
(f) L. 6. 1. 20.
yet
(e) In Areopagit.
508 Of the Different forms of Government.
Book VII.

yet ſo as that, upon the whole, rejecting the will be throughly clear'd from what follows.
greareft part of them as inconvenient, they We have above demonſtrated, that in order to
applaud two ways, as eſpecially proper and compleating the Eſſence of a juft and regular
uſeful. The firſt is, when the parts of the State, ſuch an Union is requir'd as ſhall make all
Sovereignty reſide Separately and Indepen- things which belong to the Government of it,
dently in different Perſons, or Bodies of the ſeem to proceed from one Soul. Now hence it
ſame Common-wealth, ſo that each Perſon or is manifeft, that the former way of Mixture
Body hold their reſpective Parts, by their conſtitutes ſuch a Body as is held together not by
own proper Right, and adminifter it according the Bond of one Supreme Authority, but barely
to their own judgment, whilſt in reſpect of by Compact; and which therefore is to be ranka,
the other parts they are altogether in the Na. not amongſt the regular, but amongſt the irre-
ture of Subjects. Much after this manner, was gular States; being but weakly guarded againſt
the Diſpoſal of the Kingdom of Numidia, by Sci- foreign Affaults, and very obnoxious to iaward
pio, after Maſſiniſſa's Death; his three legitimate Diſorders and Convulſions. As to the other
Sons being all allow'd to bear the Regal Title kind of Mixture propos’d, we think it oughe to
and Dignity ; but with this Difference, that the be conſider'd, whether thoſe Perſons in whom
Elder Brother Micipfa ſhould keep his Court at the Sovereign Power is ſaid thụs indiviſibly to
Cirtha, the ordinary Seat of the Kings; that reſide, do make up a ſtanding Senate, which is
Gululla, the next to him, ſhould have the chief to guide and direct the whole State as one laft-
Command of War and Peace; and that the ing Body. If ſo, the Form will be Ariſtocrati-
youngeſt, Manaftabales, ſhould preſide in Judicial cal ; yet ſuch as muſt be very unfit for the Dif
Affairs (á). The other way which they propoſe patch of Buſineſs, whilſt ſome few, or bue one
is, when the Sovereign Authority inheres indi- of a contrary Judgment, may vacate the Reſo.
viſibly in many together, yet ſo as that neither lutions of all the reſt. Again, if thoſe particu-
the moſt conſiderable Majority, without ſome lar Members in other reſpects equal, do each of
few diſſenting Members, nor indeed all the reſt, them hold ſome part of the Government, yet ſo
when any one of the Number ſtands out, can as that the Sovereign Acts cannot be exercis'd
act to any purpoſe, or exerciſe any part of the without the unanimous Conſent of the whole
Supreme Power. And this again is ſubdivided Number, then the State is Syſtematical, accord.
into cwo Models, either that all the Members ing to the proper Notion of that Word; yet ſuch
Shall have equal Power; or that ſome one or as will likewiſe have great Diſadvantages, as to
two of the Number ſhall be inveſted with cer. the Management of Affairs, by reaſon of this
tain extraordinary Rights and Prerogatives, very great and unneceſſary Streightneſs
.. If
which they may uſe without the Aſſiſtance of ſome one Perſon be endued with high Degrees
their Brethren. They proceed to alledge many of Authority, and ſeveral parts of the Supreme
Authorities from the Ancients, where Mention Power above others in the Council, then the
is made of Mixt Commonwealths; with regard State will be plainly Irregular, lying between
to which Authorities we have already obſerv’d, ſuch a Monarchy as is over-awed by an affuming
that what is deliver'd in them concerning the Senate, and a Syſtematical Form. And chịs (!)
mixture of Governments, doch not in the leaſt Irregularity will in Proportion be the greater,
belong to the Diviſion of the Sovereign Power Cale more than one are inveſted with theſe lig-
amongſt ſeveral Perſons or Councils; but either nal Prerogatives above the reſt.
to the
ſettling the due Qualifications of thoſe Per XIV. For our part, as we envy no Man the
ſons of whom the Governing Council is to be Praiſe of his Conſtancy and Reſolution, who
compoſed, or to the joining together of ſeveral will on no account lay aſide the Term of a mixt
good Inſtitutions drawn from different States. State ; ſo we think it the more commodious and
Beſides, we are of Opinion, that ſome Exam- eafy Method, and the more expeditious for the
ples of theſe Mixtures, might receive a con- Explication of certain Phanomena in particular
venient Explication, by diſtinguiſhing between Commonwealths, to call thoſe Governments Ir-
the Sovereignty ic ſelf and the manner of ad- regular, in which we can neither diſcover any
miniſtring it. So that we may affirm thoſe States one of the three regular Forms, por yet any
to have mingled as it were ſomewhat of others proper Diſeaſe or Deviation, and which at the
in their Compoſition, in which the Method of ſame time cannot with due Exa&neſs, be rank'd
Adminiſtration ſeems to have been borrow'd from amongſt the Syſtematical Models
. Concerning
another Form : as ſuppoſe for inſtance, in a which, we may in general obſerve, that they
popular State, the main Buſineſs ſhould be dif- differ from regular States in this reſpect, that all
patch'd by ſome one principal Officer or by a things do not ſeem to proceed in them from one
Senate; or if under an Ariſtocracy, one Magi- Soul and to one will, nor all and each of the
ftrate ſhould be inveſted with extraordinary Au. Members to be ruled by one Common Power
.
thority, or the People conſulted in many im- Again, they vary from Syſtematical Forms, be-
portant Affairs; or if in a Kingdom, the Diffi
. cauſe they are not compos'd of leveral compleat
culties of publick Buſineſs ſhould be refer'd to and diftin& States. Laſtly, they do not fall ja
the Debates of a Senate or of a popular Affem- with Diſeaſes or Deviations, becauſe a diſtemper'd
bly. And if this come not up to a full Solution State always appears under Circumſtances of Ig-
of che Paſſages cited from Antiquicy, the Point nominy, and hath as it were somewhat of the
in
(a) Appiar in Lybic. Bell. p. 64. Ed. A. Stepb.
trouver un juge Milieu dans un Gouvernement miste, Tom. I. of the Reponse auf Questions
d'un Provincial, pag. 611.88
( 1 ) See Mr. Bayle's Reflections on La difficulté de
Bastard
Chap. V.
509
Of the Different Forms of Government.

Baſtard in its Countenance ; in as much as it pro- fhall, for the future, bear the Style of a juft
ceeds either from the ill Management of a good Right and Privilege.
and regular Frame, or from incoherent Laws and XV. Theſe Irregular Forms (1) of Govern-
improper Inſtitucions. Whereas the Irregularity mene can neither be brought within any certain
of a Government doth not only affect its Frame Number, nor divided into proper Kinds, by
after an intrinſick and ſecret manner, but being reaſon of that great Variery, which either really
openly confirm'd, and as it were declar'd Legioccurs in Fact, or at leaſt may be framed in our
timate, ſhews it ſelf in publick without Shame Imagination. So that we have ſcarce any other
or Guilt. Therefore the former, or the Diſeaſe, means of diſcovering their Nature, but by ga-
cannot be ſuppos'd to have entred into the Inten- thering it from particular Inſtances, and the Il-
tion of thoſe who firſt founded the Common- luſtrious Examples in Story. Such an Example
wealth, ever appearing as a fubſequent Vice or we endeavour'd to exhibite in the (6) Roman
Defect : but the latter, the Irregularity owes, if Commonwealth : as the like hath been attempt.
noc its Original, yet at leaſt its Confirmation to ed in the German Empire by Severinus de Mon.
the Will and Approbation of the firſt Authors. Zambano (2). At preſent, 'twill be ſufficient to
It is juſt the ſame Difference as may be obſervd offer a Remark or two concerning the Irregula-
between two Buildings, one of which is deſign'd ricy, which ſome obſerve, in the Government of
according to the Rules of Architecture, but ei- Rome, under the ancient Emperours: whilſt
ther the Materials are naught, or through the fometimes the State appear'd a Monſter with a
Negligence of the Inhabitant, the Roof gapes, double or triple Body, one Prince ruling the Eaſt,
the Walls ſhake, the Beams crack, the Founda. another the Weſt, or three dividing the World
tion finks and gives way: in the other, ei- amongſt them ; ſometimes again, with a dou.
ther the Builder at firſt propos'd a Model not ble or a triple Head, whilſt two or three of the
agreeable to the common Rules; or ſome great Royal Family held the Sovereign Power, as
Fault, which afterwards happen'd, hath been curd Copartners, and govern’d in Common. Now as
and made up after a ſtrange and unſeemly man. to the former of theſe Caſes, we may note, that
ner. Farther, ſome Irregularities appear'd upon whilft cwo Emperours preſided, one over the
the firſt Settlement of a State, others crept in Eaſtern, the other over the Weſtern World, fe-
by filent Steps, and in long Progreſs of Time. parately and independently from each other,
For it might ſo happen, that the Authors or the then there were really Two diſtinct Kingdoms,
Reformers and new Modellers of a Common- which, taken both together, ftill retain'd the
wealth might not be able to introduce a regular Name of the Roman Empire, out of which they
Frame, either on account of Ignorance, or be had been compoſed. Beſides which Agreement
cauſe the preſent Poſture and Exigence of as to their Original, the Reſemblance of Laws
Aftairs would not ſuffer them to conſider of a and Manners, the Natural Relation between
more accurate Conſtitution (a). Sometimes too, the reſpective Sovereigns and between their
Perſons, who have been the chief Leaders and Subjects, the ſtriat League and Alliance, which
Affiftants in winning a Kingdom, have before- enſured their mutual Help and Support, all con-
hand contracted for ſuch Lordſhips, or ſuch Pri- curr’d to make up fome Appearance of Unity.
vileges in it, as that they cannot be rank'd in the But what Name we are to impoſe on that Form
Number of true and proper Subje&s. Again, of Government, when Two or Three Royal
many times, either through Negleæ of the Partners adminiſtred. Affairs in Conjundion, it
Governours, or upon ſome other Occaſion, a is not eaſy to determine. Certainly two Perſons
Diftemper ſeizeth a State, and having taken ſo cannot make an Ariſtocracy. For fince each is
deep root that it cannot be removed, without inveſted with equal Power (upon which Suppo-
the Deltrudion of the publick Frame, there ſition the Caſe before us proceeds,) they cannot
remains no Cure for it, but this; to diveſt it; as be united otherwiſe than by Covenant; and
it were, of its Faultineſs, and to vindicate it from there could be no Expedient found out for the
Cenſure, by turning it into a ſolemn and legal Diſpatch of Buſineſs, ſhould they happen to
Appointment; by which means what was before diſagree about any Propoſal, there being no
term’d Uſurpation, Fa&ion, or Contumacy, third Perſon to turn the Scales. And tho the
(a) Add. Hobbes Leviath. c. 29. poft. princip:
(1) See our Author's Differtation de Republica Irregulari among his
Differtationes Academica Sele&tiores, where he treats more fully of this matter. (6) In a Diſſertation entituled, de forma
Reipublicæ Romanæ, among thoſe juſt now cited.
(2) This work is generally attributed to our Author : How-
ever, he has never, as I know of, publickly own'd it; he has indeed ftrenuouſly defended it againſt ſeveral Authors who
attack'd it, in his Diſſertation de Republica Irregulari; and thoſe who are acquainted with his style and Chara&ter do
not much doubt of its being written by him: Neither after all, is it a Work that does him any manner of Diſcredit, but
rather the contrary, for noe to mention the principal Deſign of the Work which the world has highly approv'd of,
the Preface has abundance of Wit and Life in it. Since the firſt Edition of this Tranſlation, the Monzambano has been
printed in 1706. at Berlin, with the Author's Name to it; who at his Death order'd his Heir to publiſh it from a Co-
py full of ſeveral Alterations, Corrections and Additions. There are likewiſe ſome things left out, which together with
the Suppreſſion of the Preface, will doubtleſs make the learned very well pleas'd to have the Edition which was fura
reptitiouſly publiſh'd as well as that which is now extant with the Author's Name and Approbation. Mr.Titius has taken
care to ſatisfic their Curioſity in that point at an eafic rate, in bethinking himſelf of a thing odd and ſingular enough;
which was his printing in 1798. at Leipfick the Book we are here ſpeaking of, in ſuch a manner as to give them the two
Editions all together, for the Pallages which Mr. Puffendorf had either retrench'd or alter'd are here inſerted again,
proper Places between two Crotchets, and diſtinguiſh'd by a different Character. Beſides, the Editor has made
2. fort of variorum of it, by putting at the bottom of every Page the Notes of ſeveral Commentators upon the old
Monzambano. Mr. Barbeyrat's third Note upon this Scēlion, p. 281, 282,
bit.10
ооо
fame
3
510 Of the Different forms of Government.
Book VII.

I hus,
Soon
neſs. Now that which put the Emperours upon
reign ;
8,
ther; unleſs the latter be
ables
relates, Th.the outward Majeſty, and empty Badges of Honour. Much to the ſame purpole, Alexander de Rhodes
mer barel ni Aingdom of Tonquin there are two Kings, one called Bua, the other Choua ; yet ſo as that the for-
ſame Inconvenience may ſeem to attend any ru- in-Law, or two Brothers; ſo that the Party ad.
ling Council or College, where the Members are mitted as a ſecond in the Dignity, might be fac
of an even Number; yet it cannot ſo frequently ther reſtrain'd by the Ties of Blood, or the Allia
happen, that upon a Diviſion in Judgment the ance of Marriage, from abuſing the Power which
Vores ſhall be equal
. Beſides, in this Caſe it is had been given him, to the Prejudice of the Do.
not difficult to bring over ſome one out of ſuch nor. Whence it appears, that this Practice of
a Number to che Oppoſite Sentence : or, if aſſuming a Colleague was not any Partition of
this can't be done, the next Expedient is to let the Sovereignty, but as it were the Deſignacion
that Opinion prevail, which declares againſt In- of a Vicar General and Heir Apparent, who was
novation, and would have things continue in immediately receiv'd into the Bufineſs of State,
their preſent State. Farther, neither can we, and join'd with the other in the Adminiſtration
properly ſpeaking, affirm the united Govern- being likewiſe inveſted with the moſt ſhining
ment of three Cæſars, reigning together, to have Ornaments and the richeſt Trappings of Greaca
.
did not compoſe ſuch a Collegiate Body, as was to this Mechod, was the inconſtant Humour of the
determine State Affairs by the Plurality of Voices, Souldiery ; who, on frequent Occaſions, took a
or where two Members, agreeing in Opinion, Pride in complementing their Leaders with the
might by their proper Right and Authority com- Imperial Title (a). If this Explication will not
pel the third, who diſſented, to follow their Re ſatisfy ſome Men, or if it ſeems not applicable to
Iolution. And in all Caſes, a Council or Body every particular Inſtance which we find upon
of Men, in which the Major part cannot influ. Record; we have no way left but to affirm, that
ence and draw over the reſt, ſeems to be held the Government then commenced Irregular, when
together, rather by bare Compact, than by any more Perſons than one held the Monarchy', (if it
Government or Command. We may therefore might ftill deſerve chat Naine,) in Conjun&ion;
ſay, as to the Queſtion before us, that the So- and yet were engaged to each other only by
vereign Authority did truly
and radically inhere Compact or Faction. Amongſt whom if any
in that perſon alone, who affumed the other into Diffention or Hatred ſhould chance to ariſe, the
a Partnerſhip with him ; tho? both might ſeem Conſequence could be nothing leſs than mucual
equal as to the exterior Enſigns of Majeſty. Suſpicions, Plots and Deſigns, and in the final
That he lived not as a Free and Sovereign Prince, but Roman State was evidently ſenſible of, whilft
under Marcus, inveſted with the Imperial Authority. Romulus and Tatius fat as Partners in the Throne
Nor was it eaſy to ſuſpect, that any Man would r.). In general, we may apply to all theſe
be guilty of ſo notorious Ingratitude, as to op: Polyarchical Governments, what Solyman che
poſe the Will of his Patron, to whom he owed Turk obſerved in the German Empire ; that it
his Promotion and Honour. To which we may might be well compar'd co a Lute, which coſts
add this Conſideration, that for the moft part a great deal of Labour, and skill to put it in
the Perſons thus ſharing the Government, were Tune, and is very eaſily put as far out of Tune
either Facher and Son, Father-in-Law and Son- as ever (d).
(1) Julius Capitolinus, c. 1. bu (a). Themift. Orat. 16. Fratres Amantes, p. 76. B. Ed. Pariſ. ſpeaking of Valen-
tinian
ian who had admitted his Brother Valens into a Partnerſhip with him in the Empire, uſeth the following Expreſfion:
own Aft and Choice, tho' be bath conferr'd an equal Share of his Power, yet, in effect, be fill keeps it entire'; by reaſon of the
He receiving the Whole and giving the Whole, at the ſame time a Brother and a Father, the one by Nature, the other by bis
Obedience and Compliance of him on whom it was conferr’d. Mr. Barbeyrac's firſt Note upon this Section, p.
Thus Solinus, c. 8. reports of Æneas, that he reign’d with Latinus three Years, focia poteftate, as his Fellow or Equal
in the Supreme Authority, sri (6) Lucan, 1. 1. v. 92, &c.
Diens
Nulla fides regni fociis ; omniſque poteftas
To truſt a Partner's Rule impairs our own,
Impatiens confortis crit. More
And Empire hates a Confort in the Throne.cz
Statius, Theb. i.
Sociiſque comes diſcordia regnis. ?
Du will
-Howe'er the Crown is ſhar'd,
Diſcord's a Partner.
(c) Vid. Plutarch. Romul. Add. Eryc. Putean. Hift
. Inſubric. 1. 2. the Story of Pertharite and Gundebert, jnint Kings
Ibat Theoderick and Odoacer Rould in the City Ravenna with equal Power. And for ſome time the Compact was
treacherouſly for him. 'Tis a true Remark of Euripides, Andromach. v. 471, &c.
?
Dit 15 minutter Two Tyrants can no more be born than one,
na pia is a lot! But preſs the Subječts with a double Load
nois. Till Diſcord and Sedition work their Fate.
citai tiesos. Hi H cin C18110 cou
it with anos
? Add. Herodian, 1,
c. 1, loc. See likewiſe Racine's Fréres Ennemis
A&. T. Scen. V. and the Fables de la Fontaine, Lib. I. Fab. XII. intituled le Dragon'a plufieurs Tétes, so le Dragon.
plufieurs queues. )
Carron reports of Dayre in Fapan who he ſays was the true Heir of the Crown, yet was put off by the Prince in polis
, with
the
, , ;
the Titlė, the latter really holding the Command only Bua hath the Power of conferring the De
gree of Doctor, and receives the Oaths of the Subjects when they renew their yearly Allegiance , as to other matters,
Be pafleth his time ſhut up in an old Palace without A&tion or Buſineſs, Itin. par. 2.c. 6.
aggolis
282.

2 liv! DOCH
11
,
7311
y enjoys
XVI. When

Chap. V.
SIL
Of the Different Forms of Government.
XVI. When ſeveral States are, by fome fpe- ſeems to look on theſe Provinces which are de-
cial Band fo clofely united, as that they ſeem pendent on ſome Ariſtocratical or Democratical
to compoſe one Body, and yet retain each of State, as ſo many diftin& Monarchies
. Now
chem the Sovereign Command in their reſpective tho' we eaſily allow, that 'tis the more uſual
Dominions; theſe we term Syſtems of States
. Practice to govern Provinces by one Man, than
Whence it is in the firſt place evident, that by an Aſſembly conſiſting of many, as the ſame
when a State is compoſed of ſeveral ſubordinate Author ſhews at large (c); yet we think it
Bodies, we muſt not on this account preſently needleſs to enquire what Form of Government
give it the Name of Syſtem : tho' Mr. Hobbes (1) is eſtabliſh'd over a dependent People. For
is pleas'd thus to ſtyle it, and to compare the Provinces have loſt the Nature of States, and are
faid Parts with the Muſcles in the Body Nacu- made the Appendages of other States, having no
ral. No more are we to apply this Term, in kind of Sovereign Authority in themſelves.
general, to all thoſe larger States, which have Whether therefore ſuch a Province is govern'd
vaſtly increaſed their Dominions by ſwallowing by a Preſident, or by an Aſſembly, is an indif-
up their little Neighbours, and by reducing them ferent Point, which doth not in the leaſt affect
into the fame Body with themſelves. Which we the proper Sovereignty, in as much as both He
may obſerve to be done chiefly in the following and They bear only a ſubordinate or delegated
Methods. Firſt, when the Vi&or either removes Power. So that the Sovereignty, exercis’d over
the Vanquiſh'd into his own Territories, or theſe additional Dominions is exactly of a piece
however gives then the ſame Privileges with his with that of the main State, and cannot, with-
former Subjects. Secondly, when the conquer'd out Impropriery, obtain the diſtinct Name of a
Nation is left to poſſeſs its ancient Seat, but Monarchy or an Ariſtocracy; which are Terms
utterly lofing the Sovereignty which it held belonging to true and independent Stares, ſuch
before, is rendred purely the Subject of the as really poſſeſs a Supreme Government of their
Conquering People. In both Caſes, the State own.
thus ſubdued loſeth its Name; but in the for XVII. Of Syſtems properly ſo call’d, theſe
mer, the Conquer'd are made equal to the Cor- Two kinds do eſpecially fall under Notice: One,
queror ; in the latter, they are put under an in- when two or more States are ſubject to one and
ferior Condition, being reduced into the form the fame King (2); the Other, when two or
of a Province. Tho' it often happens, that the more States are link'd together in one Body by
Vanquiſh'd are partly left in Poffeffion of their virtue of ſome League or Alliance. In regard
ancient Laws or Privileges, how different ſo to Syſtems of the former kind, 'tis obſervable,
ever from the Manners and Inſtitutions of the that it implies no Contradiction in Mral Bodies,
conquering State (a). For in order to preſer- to have but one Head over ſeveral of them toge-
ving the Unity of a Commonwealth, 'tis not ther, and conſequently to have one Perſon the
tequired, that all its particular Parts ſhall uſe the Head of many diftinct Bodies; which, in Na-
fame poſitive Ordinances, or ſhall ſtand exactly ture, would bear ſo Monſtrous an Appearance.
upon the fame Bottom; but 'tis enough, if they But becauſe the Union of theſe Syſtems is founded
depend upon one Government. And it's fre- either in the ſole Perſon of the Prince, or in his
quently the Art and Policy of a Conqueror, to Family, hence it comes to paſs, that when the
make no Alterations in the Cuſtoms of thoſe the Perſon is deceas'd, or the Family extinct,
who are fallen under his Dominion : or, at leaſt reſpective People recover their particular Right
to accommodate himſelf to them for ſuch a time of ſettling their own Government, and are no
as he thinks convenient.
longer obliged to make Uſe of a Common Head.
In relation to the Government of Provinces, Nay, during the Continuance of the ſaid Head,
we are to examine what Mr. Hobbes delivers on the States are really diſtinct from each other.
that Subject (6). Whereas, ſays he, heretofore the The Cauſes whence fach Combinations ariſe
Roman People govern'd the Land of Judæa (for Ex- are various ; but the moſt frequent ſeem to be
ample,) by a Preſident ; yet was not Judæa therefore a the Marriages of Princes, and the Right of In-
Democracy, becauſe they were not govern’d by an Af heritance. For there are many States, in which
Sembly into which any of them had right to enter ; nor the Crown deſcends to the Female Iſlu e of the
by an Ariſtocracy, becauſe they were not govern'd by an Royal Houſe, not only when the Male Line is
Aſembly, into which any Man could enter by their utterly extinét, but when there is no Male Heir
Election : but they were govern'd by one Perſon: which, in a nearer, or in an equal Degree. Now here
tho
' as to the People of Rome it was an Aſembly of if the Lady Sovereign happen to take another
the People, or a Democracy; yet as to the People of Sovereign for her Husband, the two Kingdoms
Judæa, which had no Right at all of participating in will come to a Conjunction, if not in their Per-
the Government, was a Monarch. For tho', where fons, at leaſt in their Common Iſfue. For it is
the People are govern’d by an Aſembly, choſen by not neceſſary, that in a Match of this Nature,
themſelves out of their own Number, the Government the Princeſs ſhould put her ſelf and her Domi-
is call'd a Democracy or Ariſtocracy ; yet when they are nions in Subjection to the Prince. So likewiſe in
govern’d by an Aſembly, not of their own chooſing, 'tis one undivided Kingdom, where the Hereditary
a Monarchy ; not of one Man over another Man, but Succeſſion is eſtabliſh’d, (3) either according to
of one People over another People. So that Mr. Hobbes the plain and direct, or the lineal Courſe, if one
(1) Leviath. c. 22. (a) Hobbes Leviath. c. 26. (6) Leviath. c. 19.
(c) Ibid. c. 2.2.
(2) For Example, Great-
Britain and Ireland, See our Author's Diſſertation, De Syſtematib. Civit. S. 9, 10, (3) Sce the Seventh Chapter of
0002
of
this Book, S. 12, 13.
512
Book VII.
Of the Different Forms of Government.

of the remote Heirs any way become Maſter of nited Kingdoms are held together, may be re-
another Crown, and the Rule of Succeſſion (all nounced on that fide, to the Prejudice of which
the reſt failing who ſtood nearer,) call him to the Laws of the Union have been violated, tho
receive that of his own Country, the two the Injury be not very conſiderable ; in caſe the
Kingdoms will by this means be united under other Kingdoms concurr'd in the A&ion, or if it
his Reign. The Conſequence is the ſame, if a was undertaken for their Sake, or converted to
People Chooſe for their King one who bears the their Uſe and Service. Wherefore upon the
fame Character elſewhere, in Poſſeſſion, or in Deceaſe of the Common Prince, the injured
Reverſion. Again, ewo or more Nations may State may diſclaim the Union, reſerving a Right
engage by League to elect one Prince over both to proſecute the Authors or Abertors of the Fact,
by joint Suffrages, and yet, as to other Matters, and to recover what is loft by their means. If
continue ſeparate Kingdoms, without tranſact- by the Marriage of Hereditary Princes, ſeveral
ing their Affairs in a Common Aſſembly. Laſtly, States are conjoin'd, which obſerve a different
ſuch a Syſtem doth then ariſe, when a Prince, Courſe and Order of Succeſſion, the Union will
conſtituted by the free Conſent of the People, be diffolvd, if ſuch a Caſe happen, as that the
fubdues by Arms another People, in his own fame Perſon proves incapable of ſucceeding to
Name, and at his own Hazard and Expence; not both Crowns according to the publick Laws.
in the Name or at the Charges of the State over Let us ſuppoſe two Kingdoms in Conjunction,
which he preſides. For that this is no impoſſible one of which receives the Method of Lineal De-
Cale, Grotius (a) hath ſufficiently made out, ſcent by Agnation, the other by Cognation. Here,
againſt the Opinion of Hottoman the Civi- if it ſo fallout, that the Common Prince deceaſe
lian (b).
without Male Iſſue, the latter of the Two King-
As for the Diſſolution of theſe Syſtems, 'tis doms ſhall paſs to his Daughter, the former to the
manifeſt it muſt happen, either upon the Death Heir Male in the next Degree. But if an Union,
of the Prince, if the Union was founded in his at firſt contracted on the Oceaſion of Marriage,
Perſon only ; or upon the Extinction of the ſhall be afterwards confirın'd, and turn'd into a
Royal Family, in caſe the reſpe&ive Kingdoms perpetual Eſtabliſhment, by means, either of a
were all entaild in the way of Inheritance. For ſolemn League paſſing becween all and each of
then, each ſeparate People recover their Right the Kingdoms to this purpoſe, or of a Decree
of conſtituting a new King, or of introducing made by the Common Sovereign, with the Ap-
what Form of Governinent they think fit, with- probation of the reſpective Stares; then any dif-
out conſulting the reſt ; they being ſuppoſed ference, which was before obſerv'd in their way
to have no other Bond of Union. If a Prince of Succeſſion, ſhall be underſtood to be actually
holds one Kingdom by Right of Inheritance, and taken off. And, for the future, ſuch a Method
another by free Election; upon his Deceaſe the ſhall be followed, as is exprelly ſpecified in the
Union between them will be broken, and the League, or in the Decree; or ſuch as the Au-
latter Kingdom ſhall have no Obligation to ad- thors of the Union appear to have been moſt in-
vance his Son to the Crown.
clined to; or ſuch as is moſt agreeable to Rea-
But if this Union depend upon a League be- ſon, and moſt conducive to the Safety of the
tween the Kingdoms, 'tis no leſs manifeſt, that united States. But when one Kingdom happens
if the Agreement happen to be violated, eſpeci- to be join'd to another, in the manner of a Pro-
ally in the principal Articles, then the injured vince, the Union founded on a precedent League
State may diſengage it ſelf from the other. Yet expires, and a much cloſer Bond ſucceeds in its
here we ought carefully to diſtinguiſh between room, by means of which they unite into the
the Obligation by which particular Kingdoms are ſame Civil Body.
tied to their reſpective Kings, and the Obligaci XVIII. The other kind of Syſtem is, when ſe-
on by which the ſame Kingdoms are united a- veral States are join'd co each other by a perpe-
mongſt themſelves. A King once elected, and tual League or Alliance (2); the chief Occaſion
who hath receiv'd the Fealty and Allegiance of of which ſeems to have been that each particular
his people, may not afterwards be deſerted on People loved to be their own Maſters, and yet
account of any Misbehaviour, or any Adion each was not ſtrong enough to make Head againſt
contrary to his Engagement, ſo long as he doth a Common Enemy. The Purport of ſuch an A
not profeſs open Hoftility towards the State. greement uſually is, that they ſhall not exerciſe
Unleſs perchance the Compact, between the E- lome part of the Sovereignty there ſpecified,
lected King and the People, had this conditional without the General Conſent of each other
. For
Clauſe exprefly annex'd to it (1), that the Obe the Leagues to which theſe Syſtems owe their riſe,
dience of the latter ſhould be due on no other ſeem diſtinguiſh'd from others (ſo frequent a-
account, but upon the former's performing all mongſt different States,) chiefly by this Confide.
and each of the Articles ſettled betwixt them. ration; that in the latter, each Confederate Peo-
On the contrary, the Engagements by which u- ple determine themſelves by their own Judgment
(a) L. I, c. 3. f. 12.
(6) Quæſt. Illuftr, 1.
16. Numb. v. ’by that is generally underfood a conditional Clauſe added to a Contract, the not performing of which
(1) Lex Commiſſoria : See Grotius Lib. I. Cap. III. Se&.
fenders void or makes the thing in diſpute to be forfeited. We have ſeen fome Inſtances of it relating to the contrast of
Sale, Book V. Chap. V. Se&. IV, and of Pawns and Mortgages. Chap. X, Se&t. XIV. fo in that place the lex com
miſſoria or conditional Clauſe is an Article impoſed upon the King; by virtue of which, if he breaks the Engagement
which that obliges him to perform, he forfeits ipfo faéto the Crown: juſ ſo in Mannors, when the Valſal does not do
Homage, or does not pay the Rent due to his Lord, or becomes guilty of Felony; the fee falls into Lapſe as the Law
terms it ; that is, is forfeited to the uſe of the Lord, and is re-united to the Mannor. Mr. Barbeyrac's third Note upon
this Se&. p. 284, 285.
(2) As for Example, the United Provinces of the Netherlands, the Swiſs Cantons, or to
to
2

Chap. V.
513
Of the Different Forms of Government.
6
to certain mutual Performances, yet ſo as chat, the Confederates themſelves, the other Mem-
in all other reſpects, they defign not in the leaſt bers who are unconcern'd, ſhall immediately in-
to make the exerciſe of that part of the Sovea terpoſe their Mediation, and not ſuffer the Con-
reigncy, whence thoſe Performances proceed, troverſy to come to Blows. Thus the wiſe
dependent on the Conſent of their Allies, or to Prince Philip of Macedon, declares in the Hi-
retrench any thing from their full and unlimited ſtorian (a). chat The mutual Wrongs of bis Allies
Power of governing their own States. Thus to particolarly concern'd himſelf, as that be could not
we ſee that ordinary Treaties propoſe, for the but uſe his beſt Endeavours for a Compoſition, by Words
moſt part, as their Aim, only ſome particular to the preſent, and by Letters to the abſent Parties :
Advantage of the States thus tranſacting ; their Whereas thoſe other Dangers or Injuries, which affected
Intereſts happening at preſent to fall in with each the whole Confederacy, belonged to the Care of the
other : but do not produce any laſting Union, as common Aſſembly, and were thence only to receive their
to the chief Management of Affairs. Whereas in proper Redreſs. As for other Matcers, which ſeem
thoſe Leagues we are now ſpeaking of, the con not ſo neceſſary to be tranſacted in common, as
trary is obſervable; they being carried on with Negotiations of Traffick, Subſidies for the par-
this Deſign, that the ſeveral States ſhall for ever ticular Occaſions of any fingle State, the con-
link their main Safety one within the other, and ſticuring of Magiſtrates, the enacting of Laws,
in order to this mutual Defence, ſhall engage the Power of Life and Death over the reſpective
themſelves not to exerciſe certain parts of their Subjects, the Ecclefiaftical Authority, and the
Sovereign Power, otherwiſe than by a Common like; there is no reaſon but that they may be left
Agreement and Approbation. For the Promiſes to the Pleaſure of each diftinct Government ;
made in the two Caſes here compared, run in Tho' at the ſame time, particular States ought ſo
very different Terms; in the former thus ' I to manage theſe Privileges, as that they ſhall
' will join You as a Confederate in this particu- cauſe no Diſturbance in the general Union.
lar War, and the manner of our Attacking the Whence 'tis evident, that one or more of the Al.
Enemy ſhall be concerted by our Common lies cannot be hindred by the reſt from exerci-
Advice : in the latter thus; none of us, who fing, according to theirown Judgment, ſuch parts
have entred into this Alliance, will make uſe of the Civil Adminiſtration, as were not in the
of our Right, as to the Affair of Peace and Treaty of Alliance, referr'd to the Common
War, except by the General Conſent of the Direction. Yet as to the Power of Life and
whole Confederacy. We obſerv'd before, Death, ſome Scruple may be made on account of
that theſe Unions ſubmit only fome certain that Paſſage in the Civil Law (b) (1): At fiunt
parts of the Sovereignty to mutual Direction. apud nos rei ex Civitatibus fæderatis, & in eos dam-
For it ſeems hardly poſſible, that the Affairs natos animadvertimus. But Some Perſons, Members
of different States ſhall have ſo cloſe a Con- of our Confederate States, are here arraign'd in Judg-
nection, as that all and each of them muſt look ment, and receive from us both their Condemnation and
on it as their Intereſt, to have no part of the Puniſhment. Grotius (c) hath taken a great deal of
chief Government exercis'd without the general Pains to ſolve this difficulty ; but whoever
Concurrence. Or, if there be any Communi. throughly conſiders his Diſcourſe, will find that
ties thus mutually depending, it had been the he hath labour'd to little purpoſe. For he certain,
wiſer Courſe for them, rather to have incorpo- ly leaves the following Queſtion unanſwered ;
rated themſelves under the ſame Government, How that State can entirely preſerve its Liberty,
than to rely on the bare Engagement of a the Subjects of which are liable to be arraign'd
League. The moſt convenient Method there- under another Government, and to be puniſh'd
fore ſeems to be, that the particular States re upon Conviction ? We find that the Freedom of
ſerve to themſelves all thoſe Branches of the the Achaians was look'd on as conſiderably im-
ſupreme Authority, the Management of which pair’d, when, by the Treachery of Callicrates, the
can have little or no Influence (at leaſt directly) moft worthy Perſons in that Commonwealth
on the Affairs of the reſt. The ſame muſt be were accuſed of favouring Perſeus's fide, againſt
ſaid of ſuch publick Bufineſs, as either occurs the Romans, and were cited to Rome, there
every Day, or elſe requires ſo speedy Meaſures to anſwer the Charge ; upon Occaſion of Xe-
as to prevent a general Debate. But then as to non's Proteftation, who under a juft Aſſurance
all Affairs, on which the Safety of the Allies of his own Innocency, happen'd to declare,
hath a joint Dependence, theſe ought in reaſon that if any Man had Thoughts of impeaching
to be adjuſted by common Conſtitution. And him amongſt the reſt, he was ready to take his
in this Number War, whether Offenſive or De- Tryal, not only in the Common Aſſembly of
fenfive, ſeems to claim the firſt Place; after that, his Countrymen, but amongſt the Romans them-
Peace as the Reſult and Iſſue of War. To which felves (d). On another Occaſion, the Achaians
we may add Taxes and Subſidies, as they con ſeem to have made a Breach on the Laws of
tribute to the mutual Support ; and Alliances Regular Government, when they demanded
with Foreign States, as they promote the com- thole Spartans to be deliver'd up into their
mon Safety. It falls under the ſame Head of Hands who had been the chief Inſtruments in
Duties, that in Caſe any Diſpute ariſe amongſt promoting the Siege of Las, a Lacomian Town (e).
(a) Polyb. 1. 4. c. 24.
(6) L. 49. 1. 15.1.7. L. 1. D. De Captiv. Ego Poſtlim.
(1) This Law is more na-
turally brought in hereafter, in the Eighth book, c. 9 1. 4. (c) L. 1. c. 3. f. 21.
(d) See the Caſe at
large in Pauſanias, (Achaiac.) It is likewiſe touch'd upon by Polybius. (Excerp. Legat, 105.) (e) Liv. l. 38. c. 31.
Whereas
514
Of the Different Forms of Government.
Book VII.

Whereas the Cauſe ought firft to have been the expreſs Terms of the League were appointed
heard in a Common Council of both States, and to be managed in a Common Affembly; ſo far
upon Conviction, the Spartan Government ſhould as that the few diffenting States ſhall be bound,
have been moved either to puniſh the Criminals, tho' againft their Will, to do as the Major part
or to ſurrender them to their Accuſers. As for have determin’d. Here in our Opinion, the
the place alledg’d from the Civil Law, we think Negative ſide of the Queſtion ought to be pre-
this the cleareſt way of replying to it; that fer'd ; if we ſpeak of regular Syſtems, and where
whereas the precedent Diſcourſe had explain'd the particular States reſerve to themſelves the
what the Nature of Leagues would bear, and entire Poffeflion of their former Liberty. In as
what ought to be done, the Words here cited de- much as the Liberty of a State, which is nothing
clare what was actually done in later Times; elſe but the Power of finally reſolving and deter
when the Romans, growing inſolent on Succeſs, mining, according to its own Judgment, all
uſed their Aliies, who by_free and voluntary Matters in which its Safety is concern'd, cannor
Leagues had engaged their Friendſhip, with the be underſtood, in caſe the State may by virtue of
fame Treatment as thoſe whom they had con the Authority held over it by ſome other, be
quer'd by their Sword. Of which Injuſtice Ci- compelld to certain Performances againtt its
cero himſelf complains (a).
Will. Nor can any reaſon to the contrary be
XIX Since in theſe Syſtems, 'ris neceſſary there drawn from hence, that in the League 'twas
ſhould be a Communication of certain Affairs agreed not to exerciſe ſome particular parts of
expreſs'd in the League, and ſince this cannot be the Sovereignty there expreſs'à, unleſs by com-
done ſo conveniently by Letters, a determinate mon Conſent. For'cis one thing to ſay, i engage
Time and Place ought to be ſettled for the hold not to uſe my Right unleſs you are willing ; and ano-
ing Aſſemblies, and one or more Perſons appoin-ther to ſay, I give you a Power of compelling me to
ted, who ſhall have power to call the States to- uſe my Right, tbo’ againſt my Inclination. Now the
gether, in Caſe of any extraordinary Buſineſs, firſt of theſe Forms is only implied in the League,
which will not admit of Delay. Tho' it ſeems á not the latter. For the clearer Apprehenſion of
much more compendious Method, to fix a ſtand- which Point, it ought well to be obſerv'd, that
ing Council, made up of Perſons deputed by the when the Wills of many Perſons are bound to
ſeveral Confederates, who ſhall diſpatch Buſineſs conſpire in one, this muſt ariſe either from a
of daily Occurrence, or of leſs Importance, Compact between them to this Effect, or be-
according to the Tenor of their Commiffion; cauſe one of them hath ſubmitred his Will to the
who in Matters of greater Conſequence ſhall Will of the other. An Union or Concurrence
make report to the States, and ſhall publiſh and of Wills, grounded on bare Compact, doch noc
execute ſuch Decrees as are return'd to them on in the leaſt deſtroy the Liberty of which we
theſe Occaſions; to whom the Miniſters of the have been now ſpeaking. For they agree before-
Confederacy in Foreign Parts, ſhall give an im- hand in ſettling thoſe Affairs, which are refer'd
mediate account of their Proceedings, and who to their
joint Management; or if any new Bu-
Thall treat with the Ambaſſadors of other Nati- ſineſs offers it ſelf to their Debates, they deſire
ons, and conclude Buſineſs in the general Name to be influenced not by Authority, but Argu-
of the Confederates : but who ſhall determine no ment and Reaſon. But when I have ſubmitted
thing that exceeds the Bounds of their Commiſ my Will to the Will of another, and by this
fion, unleſs all the Subjects have been firſt con means have given him a full Authority over me,
fulted on the Point. How far the Power of this I may then be obliged to things which are very
Council of Delegates extends, is to be gather'd inconſiſtent with my good liking. Nor doth The
either from the Words of the League it ſelf, or Right of the Majority (b), (which ſone may urge,)
from the Warrant by which they act. This is oppoſe our Judgment in this Caſe. For firit,
certain, that the Power, whatever it be, is not The greater part draws the leſs only in Bodies al-
their own, but deriv'd co them from thoſe whom ready conſtituted, not in thoſe which are ſtill to
they repreſent ; and althothe Decrees which be eſtabliſhed. And then farther, the Preroga-
they publiſh paſs ſolely under their own Name, tive of the Majority in a ſettled Council to
yer the whole Force and Authority of them oblige the reſt is owing to Human Compact and
flows from the States themſelves, by whoſe Con. Inſtitution, not to Nature; tho' natural Reaſon
fent ſuch a Council hath been erected. So that adviſeth the Reception of this Method (as the
the Deputies are no more than Miniſters of the moſt convenient) in numerous Aſſemblies, and
Confederate States, and are altogether as unable where Buſineſs of various kinds, and of every
to enjoin any thing by their own proper Au- Days Occurrence, is to be diſpatch’d. Now in
thority, as an Ambaſſador is to command and order to this, 'cis neceſſary that each Member
govern his Maſter.
do in ſuch manner ſubmit his Will to the Will of
XX. Yet it may ſtill appear doubtful, whether the whole, or of the major Part, as that he,
or no the whole Body of the Aſſociates, or the tho' himſelf of a contrary Opinion, ſhall be
Majority of them have not a Power over parti- bound abſolutely to follow what they deter-
cular States, or over thoſe whom they exceed in mine ; which we cannot conceive, unleſs at
Number, with regard to fuch Matters as were the ſame time, we ſuppoſe the lateer to hold 2
the firſt occaſion of the Alliance, and which by Command or Authority over the former. Be-



(a) Ofic. Add the Story of Decius Magius, who was laid in Irons by Hannibal, Livy, l. 23. c. 7, 10. and Scipio's
Advice to the Romans, that they ſhould not hear the Informers againſt the ſame great Enemy; Livy, 1. 33. C. 47.
(6) See B. 7. 6. 2. , 15.
ſides,
Chap. V.
Of the Different forms of Government.

leſs, un muft neceffarily break theſe Unions, un-
fides, in an Aſſembly of Confederates, theie pendent of the reſt : as the Romans did, in the
feems to be no Occafion for this Right of the Caſe of the vanquiſh'd Achaians (d). We are
Majority ; inaſmuch as they are feldom com; farther to obferve concerning thoſe Diſſolutions
,
poſed of any confiderable Number of States, and which ariſe from external Force, that the Enemy,
are chiefly united by the Proſpect of General by poffeſfing himſelf of one or two more of the
Advantage, which 'tis preſumed none in their united States, acquires no manner of Right over
Wits will obſtinately oppoſe. Yet if any, thoſe that remain, nor can demand to be admit-
through a malicious and unreaſonable Perverſe ted into the Confederacy, by virtue of that
nefs, ſhall refuſe to join in the wholſome Coun- League which engaged the conquerd States to
fels of the reſt, and, by this means, ſhall endea- the others. But a new Agreement muſt neceffa-
vour to becray the Common Safety, or Intereſt; rily paſs, before any ſuch new Member can be
it will be then lawful to apply the ſame Methods receiv'd into the Alliance, in the room of thoſe
of Redreſs, as they who live in a Condition of whom he hath fubdued. Thus we find King
Natural Liberty are allow'd to uſe againſt the Philip, by a Decree of the Amphictyonians, ob-
Violaters of Faith and Contract. Unleſs it be taining a Seat in their Common Aſſembly, in
judg’d the more eligible Courſe, utterly to purge the room of the Phocæans (e). For altho’ the
the Society of fo intractable a Partner. To all League, by which the ſeveral States are thus
which we may add, that it muſt frequently oc- combin'd, may ſeem to be a real laſting Engage-
caſion great Injuſtice, if in a confederate Syſtem ment (1), and tho'a State doth not ceaſe to be
che Plurality of Votes were to bind the whole the ſame, upon the Alteration of its Govern-
Body : as when the Allies are diſproportion’d in ment; yet the Alliance muſt always be preſumed
theirWealth and Strength, and conſequently ſome to expire, when any one People are brought
contribute more than others to the Common De- under a Foreign Yoak, or made the Acceſſion of
fence. For tho' we may be apt to imagine, that another Kingdom. Becauſe, the League being
they who contribute, according to the Propor- made between Free States, conſider'd in that ca-
sion of their Ability, do really bring equal 'pacity, whenever this Condition fails, the League
Shares; yet it may happen very frequently, that muſt fail with it. Nay, tho' we ſhould go fo
one who hath but flender Fortunes may be more far, as to ſuppoſe, that in the Terms of the
willing to expoſe them to Danger than another League there was an expreſs Clauſe, that the
who hath larger Poffefſions. Thus let us fup- Change of Government in any State ſhould not
poſe, that in a Confederacy, ſome one State exempt it from the Engagement, yet the Change
contributes more to the common Security, than here ſpoken of, muſt be preſumed to be made in
All taken together; here it would be a manifeſt a lawful manner, and with the Confent of the
(a ) Breach of Equity, if this State ſhould by People. And conſequently neither an unlawful
the Agreement of the reſt, be compelld to en- Ufurper, nor any Foreign Enemy, ſhall have a
gage in any Adion, the chief Burthen of which place in the Congreſs of Allies,
muſt lie upon its own Shoulders. On the other On the other hand, theſe Syſtems do more
hand, if the Votes were to take place according clofely unite, and are incorporated into the
to the Proportion of Force, or Treaſure fupplied fanie Civil State, by the following means. Ei-
to the common Cauſe; then the more powerful ther if all the Confederates, by a voluntary
State would actually obtain a Sovereignty over Submiſſion, put themſelves under the Govern-
All beſides (b). So that we may conclude from ment of ſome one Perſon or Council. Or if
the whole, that where ever Buſineſs is decided fome one
People which hath the Advantage in
by Plurality of Voices, in ſuch a manner as that Strength and Power, ſhall reduce the reſt to the
the diſſenting Parties are likewiſe bound to ſtand Condition of dependent Provinces : which uſų.
to the Reſolution ; there the Regular Form of ally happens, when weaker States allow any
Syſtems or Confederacies is deſerted, and the laſting Preference or Prerogative to thoſe that
Members either break into an irregular Body, are ſtronger, and engage themſelves in unequal
or cloſe together in one undivided State. Alliances (f). Laſtly, if ſome particular Man
baXXI: The Diſſolution of theſe Syſtems hap- invade the Sovereign Command ; through the
pens, when ſome of the Confederates volanta. Favour of the Souldiers, the Éſteem of the
fily quit the League, and govern their own Commonaley, or the Strength of a prevailing
Státes apare"; which they are induced to, chiefly Faction.
by this Motive, that they hope to receive more XXII. To conclude ; The laſt Diſpute up.
Advantage by a Separation, than they could ex on this Head commonly is, concerning the Ex-
pe& under a Conjunction, and apprehend their cellency of particular Forms of Government,
Allies to be rather a Burthen to them than an and which ought to be preferr'd to another :
Aſſiſtance (c). Inteſtine Wars are another
Cauſe whether that under which the publick Welfare
League be alſo revived. If a Confederate Power Authority is leſs expoſed to Corruption and
happen to be overcome in a Foreign War, it is Abuſe. Now as to the point of Compariſon,
fometimes a Policy of the Conquerour to cut thus much in the firft place is evident, that no
the Knot, and to make each Government inde- Frame of Civil Conſtitution can be ſo exactly
Tort 29
(a) vid. Grot. Apologet. Cap. 1. ſub fix.
(6) Add. Diodor. Sic. 1. 19. c. 28.
(d) Comp. Xenoph. 1. 4, s. Rer. Grac. where he ſpeaks of the Peace with Antalcidas,
(1) See hereafter in B. 8. c. 9. f. 6.
(f) Vid. Grot. 1. 1. c. 3. f.21, n. 10. circa fin.
(c) Add. Liv. 1,38, c. 31, 32.
fe) Diod. Sic. 1. 16. c. 81.
modeld,
516 Of the Different Forms of Government.
Book VII

modeld, and ſo well guarded by Laws, but that cratical or Ariſtocratical
State, affumed a Monarchical
either through the Negligence or the
Wickedneſs Power, met with ſo univerſal Hatred and Cera
of thoſe who bear Rule, the ſame Government fure: and what Motives induc'd them to main.
which was inſtituted for the Security of the tain their Authority, by ſuch evil Arts as we find
Subjects, may turn to their Prejudice and deſcribed in Ariſtotle and other Authors; da
Miſchief. The Reaſon of which is, becauſe account of which, the Name of Tyrant hath
Government was firſt eſtabliſh'd as a Defence been branded with an indelible Mark of Den
againſt thoſe Evils, which Men were capa- teftation. Now the Grecian Scaçes feldom ſtretch-
ble of bringing on each other. But at the ed their Dominion beyond the Compaſs of a
ſame time, they who were to be inveſted with fingle Town. And to ſuch the moſt agreeable
this Government were likewiſe Men, and conſe- Government was, either a Democracy, or an
quently not free from thoſe Vices which are the Ariſtocracy, moderately exercis’a; : or laſtly,
Spurs to mutual Injury. Vitia erunt
, donec homines what Ariſtotle terms an Heroical Kingdom, a prince-
(1), whilſt there are Men in the World, there muſt be ly Sway, founded rather upon the Authority of
Faults: and therefore we cannot but ſometimes, Perſwafion, and upon the general Character of
ſuffer from their Hands the very Evils from which extraordinary Vertue, than upon any proper
they ought to protect us. Hence the old Re- Sovereignty, or Force of Command. Beſides
,
mark is ſo often true,
the Grecian Nation, being of
a haughty Spirit,
and of a ſtirring and reſtleſs Temper, was moſt
Quicquid delirant reges, ple&tuntur Achivi (2).
in love with ſuch a Conſtitution, under which
every Man might bear a part in the Govern-
The Kings grow frantick, and the People ſmart. ment. Wherefore in a State of this kind, he
who had taken on himſelf a Regal Authority, a
As therefore the Condition of Human Affairs thing ſo odious to the People againſt their Con-
will not bear an abſolute Perfe&ion; ſo 'tis con- fent, was obliged for his own Security, to awe
troverted becween many Perſons, what Form the Town with a Caſtle or Cittadel, and to
of Government ſeems to have the feweſt Imper- place a ſtrong Guard round his Perſon; and then
fe&ions: and the Generality of Judges pro- this Guard was to conſiſt of Foreigners, becauſe
nounce in favour of Monarchy (a). It is not it had not been ſafe to truſt his own Subje&s, and
our Deſign to examine the particular Allegations becauſe he had not the means of bridling one Pro-
of each Party. Only thus much we would ob- vince by another, by interchanging the Native
ſerve, that Arguments of this kind are by no Forces. Farther, the Truth and Loyalty of the
means ſo very ſtrong and concluſive, as that the Guard was not otherwiſe to be purchaled than by
Inferences, drawn from them, muſt neceffarily the largeneſs of their Pay; and hence for the rai.
fall out in all places and at all times : and that ſing of ſufficient Funds, the Subjects were to be
the Axions of one or two Governors are no drain’d by conſtant Impoſitions. Again, it was
manner of Proof, that all others of the ſame no leſs neceſary that the Natives thould be dif-
Order or Title muſt needs follow their Example. arm’d, and render'd as weak and little as poſſible;
And in our Judgment, the wiſe Speech of Mar. that the Heads of the Poppies ſhould be cut off ; that
cellus in Tacitus (6), is what every good and all Meetings of the wealthier Subjects ſhould be
uſeful Subject ought to meditate upon; He ſuppreſsd; and that Informers and Court Spies
faid, He could not but remember that happy hould be maintain'd and encouraged. So that
Age, under which he himſelf came into the 'twas not Injuſtice only, but down-right Mad-
< World, and that Form of Government which neſs, in theſe Tyrants, to affect ſuch a Govern-
• had been inſtituted by their Forefathers; yet ment as was to be preſerv'd by evil Arts, which
" 'twas his Principle, Ulteriora mirari, præſentia could not be laſting, and under which 'twas im-
ſequi ; bonos Imperatores voto expetere, qualeſcunque to- poſſible for them to gain the Love of their Sub-
lerare: To admire what was paſt, but to follow what jects. And it is equally abſurd to inſtitute a
was preſent ; to wiſh for good Emperours, but to bear Monarchy in a State, confin’d to a ſingle Town;
with
and a Democracy in larger Territories, and
It may not ſeem improper on this Occaſion, vaſtly extended Dominions. But ſince Princes
to fhew briefly the Reaſon why, amongſt the who ſtand poſſeſs’d of wide and ſpatious Realms,
ancient Grecians, ſuch Perſons as under a Demo- have no need to make uſe of theſe Arts for their
any,
(3) Vid"
ment,
be
turn'd
soos
(1) Tacit. Hift. 1.4. c. 74.
(1) Tacit. Hif. 1.4.C. 74 Nantesa
is (2) Horat. L. 1. Ep: 2. v. 14.
Ifocrat. (in Nichol.) Herodot. (Thalia) where the Perſian Nobles debate about eſtabliſhing : Form of Govern
after the Magi had been kill'd. Euripid. (Supplicibus, verf. 405, &c. Bodin de Rep. 1. 8. c. 4. Arniſæus, Relea.
Polit.'1. 2. c. 7. f. c.) and many others. On the other hand, the Dutch Writer of the Political Balance ſeems to have
omitted nothing that Malice or Envy, could ſuggeſt againſt Monarchy. A great part of whole Arguments may
Sec Maximus of Tyre, Dillert. VI. p. 66. Edit. Davis, where he maintains, that 'as Ariftocracy is better than Democracy, fo
Monarchy is preferable to both. See likewiſe Montagne, Liv. III. Chap. IX. p.711. Ed. Par. in Folio, where there is in
the Margin Police, la meilleure à chaque Nation? And les Cara&teres of Mi. la Bruyere, Chap. du souverain, ou de la Repub-
lique at the Beginning. Montagne however, ſays in another place, that Democracy is moſt natural and moft equitable. Liv.:
Chap.III. p. 11. But after all, no body has better
handled this Queſtion relating to the Excellency of particular Forms of
Government than Mr. Sidney'in his Diſcourſe on Government. "Tis worth while to ſee what he ſays from the ſixteenth
Section of the ſecond Chapter, quite to the End of it ; or, if any one has a mind to have a general 'Idea of it at one view,
he need only read the Nouvelles de la Republique des Lettres, Avril 1700, p. 444. &c. See alſo the
Parrbaliana, Tom. II
.
p. 161.&c. and the Eray upor Popular Diſcontents, which is the firt Piece of Sir William Temple's Pojihumous Works,
Publiſh'd in 1704.
Support,
2

Chap. VI.
Of the Different Forms of Government. 517
Support, inaſmuch as they may be able to poize and rebellious cannot ſo eaſily communicate their
and balance one Province with another; thoſe Deſigns, unite their Strength, or touch and taint
Perſons are guilty of no leſs Baſeneſs and Wicked- the Loyalty of others. Whereas when a whole
neſs who ſuggeſt any ſuch Practices of Tyranny, State is confin’d within the ſame Walls ; the way
to the Imitation of great and potent Monarchs, lies ready for a handful of Mutineers to ſpread
than thoſe who make it their Endeavour to turn the infectious Madneſs, and to corrupt the whole
the Odium of the old Grecian Tyrants upon Mo- Body of the Subjects, before the Government
narchy in general. And hence likewiſe it is evi- can either prevent; or apprehend the ſurprizing
dent that Princes live much more ſecurely in am- Danger (a).
ple Dominions ; becauſe there the diſobedient
(a) Compare the Reflections which Mr. Gravina makes in his Origines Juris Civilis, &c. Publiſh'd at Leipfick in 1 708.
with theſe of our Author in this section.
C H A P. VI.
of the Affections, or Properties belonging to Sovereignty.
1.
II.
III.
1.
IV.
How the Ruling Power in a State comes to , IX.
be ſtyld Supreme.
X.
He that is inveſted with this Power is un- XI
accountable,
And above Human Laws.
XII.
Of the Diſtin&tion between Real and Per- XIII.
ſonal Majeſty
XIV.
That a King may be Superior to a whole
People, demonſtrated.
XV.
The Arguments to the contrary refuted.
Abſolute Government, what.
XVI.
Not occurring alike in all forms of Civil XVII.
Eſtabliſhments.
Limited Governments, how occafion'd.
Founded on what Covenants.
In what reſpect the different parts of the Go-
vernment may be limited.
of the Power of Eſtates, and Councils.
Hobbes anſwer'd.
The various ways of holding the Sovereign
Power.
A Temporary Sovereignty, whether
poſſible.
of Patrimonial Kingdoms.
of Kings, aſſumed by the free Act and
Grant of the People.
V.
江
​VI.
VIT.
VIII.
Hen we would enquire into the Affe&tions own joint Diſcretion, independent of the Will
and Properties of the Supreme Power, the of any Superior (1), to reſolve and decree ſuch
firſt Point, which falls under Examination, is Matters as appear conducive to the general Bene-
how it comes to obtain that Name and Title. fit and Safety. And hence likewiſe it follows,
And the chief reaſon ſeems to be this ; becauſe by neceſſary Conſequence, that ſuch a Power
'tis impoffible, that one Man ſhould bear a great being Supreme, or not acknowledging any Supe-
er Sway over another, than that the latter ſhall rior upon Earth, the Acts which proceed from it,
be oblig'd to imploy his Strength, and his For cannot be diſannull’d at the Pleaſure of any. -
tunes for the Advancenient of the Publick Good, other Mortal (2). But that a Perſon or a State
as the ruling Party directs, and ſhall farther be ſhould be able to alter the Decrees and Reſolu-
obnoxious to Capital Puniſhment upon Default
. tions of their own Will, is ſo far from abridging,
To which may be added this Conſideration, that that it really inhanceth their Liberty.
as, ſeccing aſide the Divine Sovereignty, particu II. For the ſame (a) Reaſon muft the Sovereign
lar Men cannot enjoy a higher Degree of Liber- be acknowledg’d Unaccountable : that is, not of
ty, than the Power of guiding and applying by noxious to Human Judgment, or Human Puniſh-
their own Judgment their Adions, Perſons and ment (3). For both theſe ſuppoſe a Superior;
Goods ; To'che Freedom of a Community or Bo- but a Superior to the Supreme, in the ſame Ora
dy of Men conſiſts in their being able, by their der of Men, and the ſame Notion of Govern-
(1) Proprio, con aliunde non dependente judicio, theſe are the Author's own Words; but if this be true, then Princes
whoſe Power is limited, are not Sovereigns; ſince they cannot do any thing good in Law, in ſome certain Cafes without
conſulting an Affembly of the People, or of thoſe who repreſent them : But our Author in the tenth Section of this
Chapter plainly aſſerts the contrary. He ought therefore to have expreſſed himſelf here in ſuch a manner as to have
compriz a more clearly what is agreeable both to an Abſolute Sovereignty, and to a limited one. Mr. Barbeyrac's firft Note
upon this Section, p. 290.
(2) Vid. Grot. 1. 1. c. 3. f. 7. n. 1.
(a) Nam impunè quelibet facere id eft Regem effe. C, Memmius apud Saluft, Bell
. Jugurt. Cap. 36. ' To do with Im-
punity whatever one will, is to be a King. Pliny the Younger ſays, that what is moſt agreeable in Sovereignty, is the
not being accountable for any Thing whatſoever : Ereptumque principi [Nerva] illud in principatu beatifimum, quod nihil
cogitur. Panegyr. Cap. 6. Num. 1. Our Author cites theſe Paſſages. See Grotius Lib. I. Cap. VI. Num. 6. Se&?6. How-
ever all that our Author here fays is to be underſtood with this Reftriction, as long as he does not forfeit bis Right. See
hereafter, Chap. VIII. Mr. Barbeyrac's firſt Note upon this Se&tion, p. 290.
(3) Scc Sir George Mackenzie's Fus Regium, and Archbp. Uſher of the Obedience of Subje&s to their Princes, and the
Homily of the Church of England againſt Rebellion.
Рpp
OT
ment,
518
Of the Affe&tions or Properties
Book VII.

Superior
ment is a Contradiction. But it will be proper man Puniſhment only, infli&ted by a
here to obſerve, that I may give an Account Earthly Judge. For the Divine Juſtice finds ma?
two ways, either to a Superior who upon his ny ways of thewing it ſelf on thoſe high and
Dillike, may reverſe all my Aas, and
farther in- tent Sinners
, who violate the Laws of Nature
,
fli&t a Puniſhment upon me; or elſe to an Equal
, in Contempt of all Earthly Tribunals
. Reges
whoſe bare Approbation of my Proceedings I in ipſos imperium eft Jovis (a), Princes are but ihe
am willing to obtain ; only to keep up my fair Subjects of Heaven. As to what Hiſtory (6) tells
Chara&er with him, and to juſtify my Integrity us of the Egyptians, that when their Kings had
and Honour. In the former manner, ſupreme been ill Governours, they denied them the uſual
Rulers are not accountable to any Earthly Power. Honours of Burial : this piece of Diſreſpect can
But in the latter way, Princes who are tender of ſcarce fall under the proper Notion of Punilli-
their Reputation, commonly endeavour to lay ment.
open their Actions and Counfels to the View of III. Farther, when a Civil Power is conſti-
the whole World : which being done only to fe- tuted Supreme, it muſt, on this very Score, be fup.
cure the Credit of their Reign, cannot imply the poſed exempt from Human Laws, or, to ſpeak
leaſt ſhadow of Subjection. In the ſame man more properly, above them. As for the Laws of
ner, I may expend my Money and Fortunes at GOD and Nature, to bring them into the Que-
my own Pleaſure, and as I fee Occaſion; and ftion, would be no leſs abſurd than impious (c).
yet I am willing to keep Books of my Accounts, Now Human Laws are nothing elſe, but the
to ſatisfy my friends, that I am no ill Hul- Decrees of the Supreme Power, concerning
band.
Matters to be obſerved by the Subjects, for the
And then as for the other Point, the being ob- publick Good of the State (1). That no ſuch
noxious to Puniſhment, this cannot affect him, Edicts can directly oblige the Sovereign is ma.
who owns no Court that can give him his Tryal, nifeft; becauſe his very Name and Title ſup-
no Judge that can pronounce or execute Sen- poſeth that no Bond or Engagement can be laid
tence upon him. For the Courts of Juſtice in a on him, by any other Mortal Hand: And for a
Commonwealth, reach no farther than the Sub- Perſon to oblige himſelf under the Notion of a
jects, and are beholden to the Sovereign for all Lawgiver, or of a Superior, is an impoffibility
their Authority and Power. But if, as it frequent. (d) (2). Yet in an indirect manner and by way
ly happens, Princes condeſcend to anſwer an of Refle&ion, the Force of his own Ordinance
Aetion in their own Courts, in Matters of Debt frequently reacheth the Legiſlator, on account
and the like Caſes; this is not done, as if they of natural Equity, and publick Decorum ; to
acknowledged any Superior Force, that could excite and encourage Obedience in the Subject
,
oblige and compel them, but only expreſſeth by acting that himſelf which he preſcribes to
their Deſire of ſeeing the plaintiff's Pretenſions others, as expedient for the common Intereft ;
clearly made out ; which if they once appear and leaſt by forbidding ſuch Practices, as he is
juft, they are ready to ſatisfie and diſcharge in a himſelf obſerv'd paſſionately to purſue, he ſhould
voluntary manner. Yet we ſpeak here of Hu- ſeem to envy others the sweetneſs of Vice, and

3
(a) Hor. Ode 1. v. 5, 6. L. 3.
(6) Vid. Diodor. Sic. I. 1. c. 72.
(c)' The Generality of Man-
kind imagine, that the principal Advantage of Sovereignty congifts in not acknowledging any Superior Power-
• who then ſhall govern the Prince ? That Law which Pindar calls the Living and Supreme Direitreſs of Men and Gods:
• not written in Books, or engraven in Tables ; but imprinted in a lively Senſe upon the Reaſon, ever reſiding and
• keeping a conftant watch, nor ſuffering the Mind to be one moment without a Guide and Ruler. Plutarch ad princi.
pem indo&tum, p. 780. c. See alſo upon the fame Subject Mr. Buddeus's Differtation, intituled, Principem Legibus Hu-
maris, fed non Divinis folutum. Printed at Hall in 1695. Mr. Barbeyrac's firſt Note upon this Section, p. 291.
Omae fub regno graviore regnum.
Monarchs muſt anſwer to a higher Throne.
(1) Our Author is here guilty of the very fame Error which I have taken notice of in the firſt Note upon this Se&tion.
.
For neither does this agree with Sovercigns whoſe Power is limited; becauſe, tho' they ratify and confirm the Acts
which the Aſſembly of the People, or their Repreſentatives, have paſs'd relating to Publick Affairs, the whole Manage-
ment of which they are not willing to leave entirely to them, and tho' theſe A&ts derive their Power and their Au-
thority immediately from them, yet however they cannot revoke 'em, or make any Alterations in them without the
Conſent of the People. It muſt ſtill be obſerved that what our Author here fays only regards the A&ions of the Sove-
seign, and not the fees which the Laws that he has abrogated may have already produced with reſpect to the Sub-
jects. See Book I. Chap. VI. Sect. 6. Mr. Barbeyrac's ſecond Note upon this Se&ion, p. 291,
(d) Vid. Hobbes de Cive, c. 6. f. 14.
( 2 ) V. Grot. L. 2. c. 4. f. 12. n. 1, Gronovius in his Notes on this
place of Grotius cavils like a truc Grammarian at the ſame time that he reproaches that great Man with a wretched piece
of Sophiftry (Sophiftica cavillatio). When the People, ſays he, make a Law, does not the Law it ſelf oblige them to obſerve it?
Do they not make the Law ahove themſelves? Whence then proceeds that Remark of Titus Livy (Lib. 11. Cap. I.) that from
the Time of the Expulfion of the Kings out of Rome, the Empire of Laws, more powerful than that of Men, immediately
began ? If each particular Man can bind himſelf by a Promise, or by an Oath, why ſhould not a whole People be bound by the
Laws of their own making ? The Law is, according to the Civilians, a general Convention of the Citizens (Communis
Reipublicæ Sponfo, Digeft. Lib. I. Tit. III. Leg. 1, 2.) and a fort of Oath, by which
they engage themſelves to certain
Things:
And this is the Reaſon why Juſtin calls the Laws'of an Ancient Society of Pythagoreans, Sodalitii Sacramenta (Lib. XX.
Cap. IV. Num. 14.) But 1. Grotius had a mind, and certainly he ought to ſpeak with a Philoſophical Exa&tneſs
, and not
as Gronovius does, to diſpute about a figurative Expreſſion very common both in Ancient and Modern Authors, as
even thoſe to whom it is preferiba; with leſs reaſon than that the Law it ſelf impofes on them any Obligation. The
Obligation proceeds from the Authority of a Superior ; and every Superior is a perſon and not a Thing. If we are
bound to obey
the Law as Law, it is not dire&tly becauſe it ſeems to be or is even really juft, or adyantageous to the Pabia
lick, (otherwiſe we might difpenfe with obſerving thoſe which only related
to indifferent Things) but becauſe it is
preferibed by a Superior, who has a Right to demand our
Obedience in everything that is not contrary to the Laws of
God or of Nature. Therefore when a Free People eſtabliſh Laws of their own accord to govern themſelves by, every

well as
engros

Chap. VỊ.
519
Belonging to Sovereignty.
engroſs it all for his own Poffeffion and Preroga- if applied to this Senſe, that there ſhall be fup.
tive. The Life of a Prince (ſays Pliny (a)) is a per- poſed at the ſame time, in the ſame Monarchy,
petual Cenſorſhip ; by this, we are turn'd and directed a Real and a Perſonal Sovereignty; the latter to be
in all our Proceedings; and to ſecure our Obedience, we lodg’d in the King, the former in the People, as
bave ever more need of bis Pattern than of bis Pre- oppoſed to the King; and that in this, as in moſt
ſcriptions. For Fear is a moſt unfaithful Guide to other Caſes, the (e) Real Authority and Right
Vertue. Men are much better influenced into Goodneſs ſhall have the Aſcendant of the Perſonal. No-
by the Power of Examples: which at firſt ſight, dif- thing can be more evident, than that ſuch a No-
cover this Advantage in themſelves, above all other tion contradicts it felf, curning every Kingdom
Methods of Inſtruction, that they ſew the Poſſibility into a Monſter with two Heads, and expoſing it
of obtaining what they adviſe us to purſue. There is to utter
Convulſion and Ruine. The Neceflity
á Remark, not unworthy the Majeſty of Kings, of this Diſtinction doth by no means appear from
which Atbenæus (b) hath made from the Re- the Reaſon commonly alledg'd, that the King or
ports of more ancient Hiſtories, that of the two the Royal Family being extinct, the People fo
great Monarchs in India and in Perfia ; the for- far return to their firſt Right and Freedom, as
mer was abſolutely forbid to exceed the mode. that they may at their Pleaſure either chooſe a
rate Bounds of Drinking; and the latter allow'd new King, or ſet up another form of Govern-
his Liberty in this Reſpect, but one Day in a ment. It may as well be affirmºd, that we ought
Year, at a ſolemn Sacrifice and Feſtival. Clau- to ſuppoſe a Real Power in a Servant, contra-
dian's Admonition to the young Emperour was diſtinct to the Perfonal Power of his Maſter, meer-
wiſe and proper ;
ly becauſe if the Maſter dies without Heirs, che
Servant is at his own Diſpoſal. Nor can any bet.
In commune jubes ſi quid, cenfelque tenendum, ter Argument be drawn from the Poſition of Gros
Primus jusſa Jubi: tunc obſervantior aqui tius (f) and others, that there is a twofold Sub-
Fit Populus, nec ferre negat, cùm viderit ipſum ject in which the Supreme Power reſides, one
Authorem parere fibi : Componitur orbis
Common, the other Proper; the former the whole
Regis ad exemplum ; nec fic inflektere ſenſus State or Kingdom, the latter a ſingle Perſon, or
Humanos edi&ta valent, ac vita regentis (c). a Council, whether conſiſting of many, or of few.
For the Senſe of that Obſervation can be only
Would you your Publick Laws ſhould ſacred ſtand ? this, if we ask in a general and confuſed man.
Lead firft the way, and act what you command.
ner, Where the Supreme Power is lodged ? The
The Crowd grow mild and tra&table to ſee
The Author govern'd by his own Decree.
Anſwer will be, In the whole Commonwealth:
The World turns round, as its Great Maſter draws, but if we propoſe the ſame Queſtion diſtinctly,
And Princes Lives bind ſtronger than their Laws (d). and enquire what Perſon bears the Sovereignty in
the State ? It will be anſwer'd, The King, or the
IV. For the better aſſerting and vindicating Senate, or the People. But who will hence infer,
the juſt Pre eminence of the Supreme Power, two diftin& Sovereign Powers, one Real in the
eſpecially in Monarchical Governments, it will People, another Perſonal in the Prince? This
be proper to take under our Cenſure that vulgar would be no leſs ridiculous, than to conceive two
Diſtinction of Sovereignty into Real and Perſonal; diftinct Sights in a Man ; one reſiding in a Com-
which ſeems in our Judgment, to be not only mon Subject, the Perſon, the other in a proper Sub-
very abſurd, butof very pernicious Conſequence, je&t, the Eye.
Member indeed promiſes to obſerve them as long as they are in Being, becauſe with Reſpea to him they are lo many
Ordinances of a 'Superior, or of the whole Body of the Community, to whoſe Will he has ſubmitted himſelf. But the
whole People are not bound by any Compact, becauſe they cannot be Superior to themſelves. I own, that if theſe Laws
arc congſtent with the Good of the Society, they ought not lightly to be aboliſhºd, as long as things remain in the ſame
Situation. But it is not becauſe they are Laws that have been impoſed and eſtabliſh'd as Superior to themſelves; 'tis
only by virtue of the Law of Nature which the Creator and Sovereign Legiſlator impoſes on every, particular Society,
as well as on every individual Perſon, to take care of their own Preſervation. II. The Conſequence that Gronovius draws
from the Obligations, into which we enter by Promiſes or Compacts, and by an Oath is evidently falſe. When I make a
Promiſe to any one, he whom I promiſe acquires from that Moment a Right with reſpect to me ; and I am a&tually bound
by my Word till I have accompliſh'd it, or he acquits me of it. But who does acquire, by the Laws that a' People
çitabliłh to govern themſelves, a Right by virtue of which he can demand of them not to aboliſh 'em? The ſame is to
be ſaid of an Oath : For, in every valid Oath the Divinity which we call to witneſs, acquires, if I may ſay fo, a Right
to demand the Performance of what we have Sworn ; whether the Oath be reduced to a ſort of Vow, or whether "tis
only inſtead of an Acceffory, as in the Engagements which we enter into with other People. See what I have ſaid in
one of my new Notes. Book IV. Chap. II
. Sect. 17. Note 2. III. The Laws properly ſpeaking can never be look'd ups
on as Conventions. See what our Author has ſaid Book I. Chap. VI. Sect. 2. IV. In ſhort Grotius, as well as our Au.
thor, is here only ſpeaking of the Civil Laws purely poſitive, and not of the Laws of Nature : For with reſpect to the laſt,
nothing is more true than what Pliny the Younger ſays, Non eft princeps fuper Leges, fed Leges fuper Principem, Panegyr.
Trajan Cap. LXV. Num. I.
(a) In Panegyr. c. 45.n. 6.
(6) L. 10, ex Otel:
(c) De IV. Conſul. Honorii, v. 296, EFC.
(d) Liv. I. 26. c. 36. Would You lay an Injunction on an Inferior? The moſt likely means to engage bis Obedience, will be
to apply Tour ſelf, and thoſe about You, to the fame Pra&tice. Plin. l. IV. Epift. 22. towards the End. As in a Body, so in a
Government, the moſt dangerous Diſeaſe is that which flows from the Head. vid. Juftin !. III. c. 2. n. 8. The Old Perſian
Proverbs to this purpoſe carry much
good Senſe in a very odd Dreſs : If a King pluck but an Apple in a Subje&t's Garden,
bis Servants will root up, the Tree. If a King allows his Soldiers the ſtealing of half à Dozen Eggs, their next Éxploit will be
80.vidual the Camp with Hens. Roſar. Perlic. c. 1.
(e) Thoſe are callid Rights purely Perſonal, which are only lodg'd in the Perſon who is inveſted with 'em ; and thoſe
Real Rights, which indeed
ſuit with a certain Perſon (for that is common to all ſort of Rights) but which are alſo in ſome
manner fix'd to a certain Thing, which they always follow, ſo that whoſoever acquires the Thing, has from that mo-
ment the Right, by that very Circumſtance, that he lawfully poſſeſſes it. Scé Grotius, Lib. I. Cap. 1. Sc&t. 4. Mr. Bar-
beyrac's Note on this Scētion, p. 292:
(f) L. I, c. 3. f. 7.
Рpp 2
V. Many
520
Of the Affe&tions or Properties
Book VII.

V. Many have taken the Liberty to affert, that nounce all their Right in this manner, and yield
the Power of the Prince neither can, nor ought it up into the Hands of an abſolute Lord. Ma-
to be Superior to that of all the People. Ariſtotle ny of theſe we find put together by Tully (d):
feems very much to countenance this Opinion, Men, ſays he, ſubject themſelves to the Power and
in the ſixteenth Chapter of his third Book of Command of another, for ſeveral Reasons. They are
Politicks (1). And in the fifteenth Chapter of led by Kindneſs and Good Will, by extraordinary Be-
the ſame Book, he diſcourſeth to this purpoſe nefits, by ſuperior Worth and Excellency
, by the Hopes
(2), A King ought indeed to be inveſted with Strength of Advantage, and by the Fears of compulfion ; large
and Power ; but in ſuch a Degree, as that he ſhall be Promiſes of Bounty and Favour; and laſtly, as we
greater indeed than ſingle Perſons : and than many in have ſeen it often happen in our Commonwealth, by
Conjunction ; yet ſtill inferior to the whole Body of the downright Wages and Hire. But thoſe Caſes which
People. Grotius (a) hath undertaken the Contro- Grotius chooſeth to infift upon are; if a People
verly with theſe Men; and the firſt Argument ſhould chance to lie under manifeit Danger of
he urgeth againſt them is, that as each particular Ruine from an Enemy, and have no other means
Man may give up himſelf in perſonal Servitude of being deliver'd, than to put themſelves with-
to another; ſo a whole People or Nation may out any reſerve, under the Command of their
transfer on a ſingle Governour all their Right Protector (e): Or, if being in Diſtreſs with vio-
and Power over themſelves, without Limitation ‘lent Want, they cannot otherwiſe procure Suſte-
or Reſtriction (b). Tho' indeed in other rel- nance and Support (f): If a Father of a Fa-
pe&ts, it ſeems by no means fair to compare the mily, having large Territories, ſhould refuſe to
Condition of Subjects, under an abſolute Mo- admit any perſon into his Lands, but upon Co.
narch, with that of Slaves. For as Claudian (3) venants of abſolute Subje&ion : Or if a Maſter,
well obſerves:
who poſſeſſeth a vaſt Number of Slaves, ſhould
give them cheir Freedom on the fame Condition.
Fallitur egregio quiſquis ſub Principe credit Befides, it's poſſible, that ſuch a Form of Go.
Servitium : nunquam libertas gratior extat, vernment may fuit with the Genius of ſome par-
Quam ſub Rege pio.--
ticular People. Nor ought the Defire of living
under an abſolute Monarchy, be always judg’da
They grofly err, that think a ſlaviſh Chain Token of a low and abject Spirit, tho' it hach
Binds them beneath a vertuous Monarch's Reign. uſually lain under this Cenſure, in the Opinions
When Juſtice, Piery and Goodneſs ſway of Perſons born in Democracies; who on chat
The Regal Power, 'tis Freedom to obey (c). Score, will never pardon the Cappadocians for re-
fuſing Liberty, when offer'd them by their Ro-
Grotius proceeds to reckon up ſeveral Clauſes man Conquerours (ģ). But on the contrary to
and Occaſions which may induce a People to re any People, amongit whom there are a Number



(1) In the Beginning : where he cites the Reaſons of thoſe who are of Opinion, that Abſolute Monar-
chy is contrary to Reaton. For that Philoſopher calls an Unlimited and Abſolute Monarchy, a Government where
the King manages as he thinks proper all the Publick Affairs with the ſame Authority, as a Father commands
in his Family, and a Commonwealth governs it ſelf. In the ſeventeenth Chapter Ariftotle decides this Queſtion accord-
ing to his Ideas; and ſays, that as the Temper and Genius of every People require one certain Form of Government
more than another, if in a Nation proper for Monarchy, there be any Perſon or Family that ſurpaſſes all the reſt of the
Subjects in virtue, that then it is equally juſt and advantageous to the State, that that Perſon, or that Family, ſhould
reign with an Abſolute Power. Therefore that Philoſopher does not affert that no King can ever be above the people,
tho" our Author ſeems here to charge him with it. The Qualifications that Ariſtotle requires in an Abſolute Monarch are
very rare ; and that gives room to Mr. Sidney in his Diſcourfe upon Government (Chap. III. Se&. XXIII.) to maintain,
that that Philoſopher fuppofes a Man that is not to be found in the World, to inſinuare by that, that we ought not to
truſt any one whatſoever with Abfolute Power. But perhaps Ariſtotle never conceiv'd any Idea of a perfe&t Vercue, and
that only ſuppoſing men to be as they generally are, he deſignd only to exclude thoſe enormous Vices which denominate
a Tyrant. Beſides, our Author here cites another Paſſage out of Ariſtotle, which does not at all relate to the Superiority
of the People above the King, but only to the Strength and Power with which the King is inveſted to put his Laws in
Execution, and to reſtrain his Rebellious Subje&s. He ought, indeed
to be greater than every Subje&t in particular, or than
many in Conjun&tion, but ftill
' inferior to the whole Body of the People. Mr Barbeyrac's firſt Note upon this Section, p. 293.
(2) Towards the End. (a) Ibid, f. 8. Gronovius here alſo finds fault with that great Man;
but his Cenſure
is no better grounded than that mention'd in our fourth Note, Se&t. 3. He takes abundance of pains to prove that when
a
King degenerates into a Tyrant, and governs in a manner manifeſtly tending to the rain of the State, or if he violates
the Fundamental Laws, to which he has ſworn to conform himſelf, the People may reſift him, and free themſelves from
that unjuſt Subjection. But this is what Grotius himſelf owns in expreſs Terms, Cap. IV. Se&t. 7. Num. 1, 2, 3, 4,5
And Se&. 11, 13, 14. All that he pretends to eſtabliſh in the place here mention d is, that the Sovereignty does not be
long to the People always, and without Exception, ſo that they may refift and puniſh their Kings as often as they abuſe their
Power. So that Gronovius might have ſav'd himſelf
the Trouble of refuting what his Author does not maintain.
(6) Vid. Exod. XXI. 6. Levitic
. XXV. 39. Add. Selden. De F. N. Ega G. Sec. Heb. I. 6. c. 7. V. L. 40. t. 12. 1. 37;
De liberali caufa, & C. L. 7.1. 16. 1. 10. D. d. t. l. 7. & 1. 33. & D. Quib. ad Libert..proclam. non licet. L. 49. t. 13. 1.4
& L. 28. 1. 3. 1. 6. 5. 5. D. De injuſt
. Teftam. Soc. Novell. Leonis, LIX. Cæfar reports of the Ancient Gauls, that amongit
them, moft of the inferior Populacy, when oppreſs’d, either by Debts or Taxes, or the Injuries of too powerful Neighs
bours fix'd themſelves as Vaftáls, on ſome of the Nobility, who enjoy'd all thoſe Rights over them, which Maſters
VIn2. (3) De laudibus Stilicon. L. 3. v. 113, Sec.
(c) There is an excellent Saying to the
fame purpoſe in Philoftrat. De Vit
. Apollon. 1.5. c. 12. p. 245. B. Ed. Morel,
"As Yome one Man in a Commonwealth, highly furpalling others in Wiſdom and Vertue, ſeems by his good Management to twin
the Popular Government into the command
of "a Jingle Perſon ; So a ſingle Perſon reigning Sovereign in a State, if he dires
all his Counſels to the Publick Good, ſeems to expreſs, in his Authority, the Freedom of a Popular Government. Add. Hobbes
De Cive, c. 10.S. 8.
(d) Offic. II. c. 6.
(e) vid. Liv. l. 7.6.3!;
(f) Vid. Genel. XLVII. 19.
(8) Vid. Strabo, 1. 12. P. 273. & Juftin, l. 38.c. 2. 'Tis a Saying of Euripides, in ( Helen. v. 283 ) and 'ris no more
than what was the current Notion of the Grecians ;
Τα Βαρβέρων δελα πάντα πλήν δρός. .
In Barbarous Kingdoms all are Slaves but One.
D.
of

Chap, VỊ.
5 2 1
Belonging 19 Sovereignts
of proud, inſolent, aſpiring Men, impatient of once invested elim. Whereas, in many Caſes,
Equality, a popular Liberty muſt be the moſt per. it is at firſt a Matter of free Pleaſure and Choice
nicious thing in the World ; and yet the ſame to appoint the Perſon, and yet the Appoint,
Men very contentedly ſubmit to a Monarchical ment being once made, becomes neceſſary and
Government. For they had rather ſerve One, irreverſible. Others anſwer the ſame Argument,
and lord it over all others in the State, than live with this Diftin&ion; a Man nay Conſtitute
on the common Level; and, as Aufonius ſays(1), Another, either over a third Perſon, or over
For the Sake of Commanding, they are willing to obey. himſelf. In the former Caſe, the Conſtituting
The Eaitern Nations have been of old, and are Party is Superior to him whom he thus Conſti-
ſtill ſo accuſtom'd to Monarchy, that we are tutes. For 'tis ſuppoſed, before-hand, that the
told the Chineſe could not form any Notion of the third man, both was, and ſtill is, under the
States of Holland, having heard of no Government, Power of Him, who thus fets a new Ruler over
but that by Kings (a). And a Venetian Traveller Him. Whence it follows, that this new Ruler
(b) reports, that the King of Pegu, when he was muft depend on the Will and Pleaſure of the old.
inform’d, that the Sovereign Power at Venice was For ſince no one can Jerve two Maſters, unleſs in
lodg’d in the Senate, burſt out into a Fit of Laugh- Subordination; I cannot appoint another Lord
ter, taking it for a meer Jeſt in Politicks. On
over my proper Subject, without making him
the other lide ſuch Men are fit only to live in a accountable to my ſelf : and conſequently, he
popular State, as have moderate Spirits and eaſy is no more than a ſubordinate Governour. Thus
Paſſions, and know how to reſt ſatisfied with the a free State, when it gives a General the full
fame humble Condition as their Neighbours. Command of its Souldiers, was, and ſtill is Su-
Laftly, it often falls out, that free States are by perior to him and them. But he, who Conſti-
inteſtine Diviſions brought into ſuch Circum tutes Another with Authority over himſelf, can
ftances, as that they cannot be ſafe otherwiſe no more be ſuppoſed to continue Superior to
than under the abſolute Command of a ſingle him, chan he can, at the ſame time, and in re-
Perſon; and, as Lucan obſerves,
ſpect of the ſame Perſon, Command and Obey.
But 'tis farther urged on the other ſide (3),
Cum Domino Pax ifta venit (c)..
that ſince all Government is inſtituted for the
fake of thoſe who Obey, not of thoſe who Rule;
They gain a Maſter when they gain a Peace. or, ſince the King is made for the People, not
the People for the King ; on that ſcore, che Peo-
VI. It may, perhaps, ſeem more to the pure ple muſt be Superior to the Prince: In as much
poſe, to examine the Reaſons of thoſe Men, as, that for which another thing is ordain'd,
who are ſo fond of exalting, above Kings, that ſeems more Noble and Excellent, than what is
Real Sovereignty of the People,(d) which they have thus framed on its account. Here the Affertion,
fram'd in their own Fancy. They tell us, then, if held in General, is falſe ; for all Government
that all Kings are Conſtituted by the People, and or Command is not inſtituted for the ſake of
that 'tis Natural the Parties, who Confer the thoſe who Obey ; as is clear in the Authority of
Dignity, ſhould be Superior to the Parties who Maſters over their Servants : altho' the Maſter
Receive it (2). Now, as to this point it muſt cannot, indeed, well enjoy the Fruits of his So.
be obſerv'd, that altho', in the Conſtituting of vereignty, unleſs he take ſome Care of thoſe,
all Kings, the People interpoſe their Conſent, who are chus placed in Subjection under him.
yet there is a great Difference in the manner Beſides, the Queſtion is not, whether the Perſon
how ſuch Confentis obtain'd and applied. Some of the Prince be of more value than the whole
Nations take a King, upon their own free and People ; as is in caſe, either He or They were
voluntary Motion : others under the Diſtreſs of ueceffarily to periſh : but, whether fince Civil
War, or ſome other great Neceſſity, receive the Government is ſet up for the Benefit of the
ſame kind of Government ; which they would Community, the means of procuring this End,
have been very far from deſiring, had they not ſhould be determin’d by the Judgment of thoſe
been driven to it by theſe Misfortunes
. It is a- who have fubmitted their Wills to the Will of
greeable to the common Uſage of Speech, to the Prince, or by Him, to whoſe Prudence and
fay, that thoſe Princes only are Conſtituted by Conſcience the Adminiſtration of Affairs hath
the People, whom the People appoint by their been given in Charge.
own free Act. On the other hand, thoſe Some, becauſe we read of the People's being
who extort the People's Conſent, by Arms, puniſh'd for their Prince's Sins, thence infer, that
or the like means, are not ſaid to have been the People had'a Power to reſtrain them from
made by the People's Appointment, but to finning, which cannot be fuppofed, without a
have ſubjected the People to their Command. Right Superior to the Regal Authority (4). For
But, farther, then only the Parties who confti- I am not chargeable with the Guilt of another
tute Another are properly Superior to Him, when Man's Axion, when I contributed nothing to it.
it is always in their power to determine how long But 'tis impoſible to conceive how the People
he ſhall poſſeſs the Dignity with which they have can partake in the Sin of their Prince, at which
Et dominari
Ut poflint, ſervire volunt, Idyll. 15. v, 37, 38.
(a) Neuhof. in Legat.
(b) Caſpar Balbi, in Itinerar,
(c) Lib. I. Pharſal. v. 670.
(d) Our Author hints at, eſpecially, the famous
Book, intituld, Vindicie contra Tyrannos. See Queſtion III. of that
Book, p. 67, Egc. Ed. Francof.
(2) V. Grot. L. 1. c. 3. 1.8. . 13.
(3) V. Grot. ubi fupra, f. 14.
(e) See the Vindicia contra Tyrannos Junii Bruti, p. 29, &C.
(4) V. Grot. ubi fupra, f. 16.
they
522
Book VII.
Of the Affe&tions or Properties

they are heartily diſpleas’d, unleſs by negle&ing ſoftening the Rigour, and varying the Meaſures
to uſe ſome proper Method of Correction. In of his Reign. No leſs ridiculous is it to infer,
anſwer to what is thus urged, we take it for a that becauſe a Maſter or Proprietor, who abuſech
certain Truth, that the Sins of the Princes do his own Poffeffions may be puniſh d, or deprived
not, dire&ly, and on their own account, derive of his Goods, therefore a Prince too, who makes
any Guilt on the Subjeđ, unleſs the Subjects ill uſe of his Power, may be corrected and rea
themſelves have contributed ſome poſitive Affi- duced to Reaſon. For that which makes ſuch a
ſtance to them (a). But they cannot contract Proceeding Lawful in the former Caſe, is the
a Guilt from the Omiſſion of any Reſtraint or Prince's ſuperior Right over the Goods of the
Puniſhment : becauſe being inferior to the Subje&s, which 'tis the Intereſt of the whole
Prince, they had neither Power nor Obligation Community to preſerve from being thrown away
to apply ſuch means of reclaiming Him. For to no purpoſe. But who will pretend, that the
as our Ability, ſo our Dury of hindring another People have a kind of Prerogative, or a more e
Man's Sins ariſeth from our Power over him, or, minent Right over the Rights of their King ; or,
from ſuch an Authority as implies our Righé that they are Maſters to their own Matter?
of directing, and controlling his Proceedings. As for the Sayings of ſome Princes, produced
Therefore, what the Prince acts, before he re- in favour of the oppoſite Opinion, it cannot be
ceives that Dignity, certainly cannot affect the denied but that many ſuch fine Speeches have
reſt of the People ; fince Equals have no Com- been uſed, out of a principle of Oftentacion.
mand one over the other. No more can the But they will all fall under this general Anſwer,
Subjects be charged with what He commits after that a Prince ought indeed to direct every thing
his acceſſion to the Crown : fince 'tis ridiculous to the Good and Safety of his People : but the
to ſay, that thoſe who, during his private Static People are not thereupon inveſted with a Power
on, had no Command over him to reſtrain him of puniſhing Him, as often as they fall judge
from offending, whilſt he was in all Points their that He applies wrong Means towards the ob-
Equal, ſhould then at laſt obtain ſuch a Com- taining of that End. Alike ſenſleſs and crifling
mand, when they gave up themſelves to his Di- it is to argue, that, in as much as the People
rection and Sway. Nor doth that Act or Cove- have not a Right of deſtroying themſelves, or of
nant, by which ſubjects inveſt a Prince with Ab- practiſing any grievous Cruelty on their own
folate Power, by any means make them partakers of Body, therefore they can transfer no ſuch Righe
his Sins. For by ſuch a Covenant the People do on the King. For who ever maintain'd, that
not indulge an Impunity to the King, but only Princes had a Right of deſtroying their People?
leave him in Poſſeſſion of that which he before We ſhall hereafter make it appear, that Abſolute
enjoy'd by virtue of his Natural Liberty: fince he Government is by no means fo formidable a
could not exerciſe the Supreme Authority, were thing, as theſe Men are willing to fancy: And
he not exempt from Human Puniſhment (b). how far a People may proceed, in caſe the Prince
What fome urge, that, as he who hath given manifeſtly ſeeks their Ruin, will be likewiſe
himſelf up for a Slave, ſtill keeps a Right of re conſider'd in its proper place (2). When we are
covering himſelf from that State ; 1o a People, told of the ancient Conſuls, and other Magi-
who have ſubmitted to the Yoak of Monarchy, ſtrates, ſaid to be placed over the People, and
retain an equal Right of reaſſuming their Free- yet frequently reform’d by the People's Cen-
dom: This no Man in his Wits will allow for ſure and Puniſhment; theſe Allegations are vain
Truth, unleſs it be added, as a neceſſary Con- and idle, the Inſtances not coming up to the Que.
dition, that ſuch a return to Liberty be made, ſtion (7).
with the Conſent of the Maſter or the Prince, Laſtly, as to what is objected from Scripture
by their voluntary receding, from that juſt Right Hiſtory, that the Jews threw off the Yoak of
and Authority which they had before obtain'd, the ſtrange Nations, when they ſeem'd to have
over the Servant, or over the Subje&t (c). Be- been ſufficiently Chaſtiſed for their Rebellion a-
fides, 'tis a groundleſs Aſſertion, to fay, that a gainſt GOD;we thus reply, that either they ſtill
People, to whoſe Temper and Diſpoſition an continued in a ſtate of War with thoſe Nations,
abſolute Monarchy was once agreeable, when never engaging their Faith, or ſubmitting as
they have, in Courſe of Time, worn off their true Subjects; and ſo they had a Right of treat-
their ſervile Genius, may re-eſtabliſh themſelves ing their Oppreſſors as Enemies : or elſe, they
in a Free Commonwealth. For if ſuch a Caſe acted in theſe extraordinary proceedings by ex-
ſhould happen, it will be incumbent on the prefs Command from Heaven; which if it ſeem
Prince, ſo far as Prudence permits, to humour to intrench on the common Meaſures of Righs,
this Change of Inclination in the Subje&, by is no Precedent for the Imitation of Others (d).


(a) Euripid. Suppl. v. 879, 88@.
The State which ſuffers in its Fame
For a Bad Prince, it ſelf is Innocent.
(6) The Argument urged from the 2 Sam. XXIV. is ſufficiently anſwer'd by Grotius, in the place above quoted. See
a remarkable Paſſage in Martinius's Hiſtory of Chira, (l. 3. c. 1.) applicable to the fame Chapter, v. 17.
(c) Vid. Xenophon Cyrop.l. 3. princip. ( 2 ) Chap. 8. (3) For thoſe Conſuls and Magiſtrates
Sovereigns, but the meer Miniſters of the People.
(d) 'Add. Sanderſon De Obligat. Conſcient. Prale&. IX. S. 16, &c. & Prale#. X. S. 13, 16, 22, 23.
were not
VII. TO
Chap. V.
523
Belonging to Sovereignty.

VII. To proceed, nothing is more apparent, A&t. For 'tis a Contradi&tion to ſay, that ſuch a
than that in ſome Scates the ruling Power, (eſpe- Community is obnoxious or ſubject to none, but
cially, if Monarchical,) is free in its Proceedings; purely free and independent, and yet that it hath
in others, it is reftrain d to a particular manner of not a Right of adminiftring its proper Affairs by
ading: which Difference gave Occaſion to the its own Inclination and Judgment. And that
Diftin&ion of Sovereignty into Abſolute and Li- this Abſolute Sovereignty implies noching that can
mited. And here we think our ſelves obliged, in be term’d unjuſt or intolerable, we may ealily
the firſt place, to explain, with what Accuracy apprehend from the End of Civil Eſtabliſhments
we can, the proper 'Signification of this Term and Communities. For theſe publick Bodies
Abſolute, which bears à hateful Sound in the were never inſtituted with a Deſign, that Men
Ears of Perſons born under Free Governments. ſhould throw off the Reſtraints and Commands
Indeed the Word, if fallly applied and under of Nature, and run into all the Extravagancies
ftood, may encourage ill Princes to grieve and of evil Lufts, but that, by the united Strength
oppreſs the State, and to commit the worſt of of a Mulcitude, a better Proviſion might be
Diſorders. Eſpecially, ſince there will be ſel- made, for the Intereſt and Security of each
dom wanting á Tribe of Flatterers to ſecond the Member ; and, conſequently, that we might be
Motion, and, under this Fair Pretence, to feed put into an eaſier and ſafer Courſe of obſerving
and infame the Ambition, and other Vices of the Edicts of Natural Law.
their Maſter. ' You are Abſolute, will they ſay, VIII. But when we conſider the Supreme
therefore your Pleaſure is your Law : there- Power, as it inheres in one Manor in a Council,
fore waſte your Subjects and your Neighbours whether of all, or of a few, as in its proper and
with Unneceffary Wars, to procure your ſelf peculiar Subject; it is not every where thus free
the Name of a great Commander: therefore, and abſolute, but in ſome places we find it under
take the Liberty of treating with Inſolence and the Reſtraint of certain Rules and Laws. In-
Abuſe, whomſoever you think fit: therefore, deed, as for Democracies, the Diſtinction be,
drain your People with Rapines and Exaétions, tween Abſolute and Limited Sovereignty is not in
to ſupply your Luxury, or your Pride. A high them ſo eaſily diſcoverable. For although, in
Strain of this Paraſitical Rhetorick was that every ſuch free State, there muſt be ſome lettled
which Anaxarchus uſed to Alexander, when under Rules, founded either upon Cuſtom, or upon
Diſcontent for his Murther of Clytus ; he told written Law, determining at what Time, and
him, " That Juſtice was therefore feign’d by the by what Perſons, the People ſhall be cali'd co-
Poets, to fit on the ſame Throne as the Gods, gether, publick Affairs propoſed, and the Reſo-
or to ſtand behind Jupiter's Chair, that Men Jutions executed; (for we can form no Notion
might apprehend and acknowledge whatever á of a Civil Community, without theſe conſtant
King acts to be Good and Right (a).
Methods of proceeding:) yet ſince the Council,
Nay, there are Authors, who upon profeſs’d in which the Sovereignty reſides, conſiſts of all
Principles maintain the Abſolute Right of Kings, the People, and conſequently every Man is there
by ſuch Arguments and Reaſons, as if they mea. who obtains any Right by ſuch Rules or Orders
ſured it only by a general Impunity, and a Li- therefore nothing hinders, but that the People
cence to oppreſs and ſpoil the People. The true thus aſſembled, may, at any time, alter or repeal
State of the point then is this : As we cannot them (b). Anacharſis in Plutarch (c), laugh'd
conceive, in ſingle Perſons, a higher and more at Solon for hoping that he ſhould be able to curb
abſolute Liberty, than that they ſhall determine the Injuſtice, and the other Vices of his Coun-
and diſpoſe of their Goods and A&ions, not by trymen, by written Ordinances, things of no more
the Will of another, but by their own Judgment Strength than Cobwebs : Solon wiſely anſwered,
and Pleaſure, yer ſtill with a full Obedience to that Men commonly ſtand to Bargains and A-
the Law of Nature ; and as this Liberty Natu. greements, when it is the Intereſt of neither
rally belongs to all Perſons, who are not ſubject Party to break them: and that he would ſo frame
to the Command of Others : ſo, where many and temper his Preſcriptions, as to make it evident
Men cleave together in an eſtabliſh'd State, there to all Perſons in the State, that it would be much
too, as in a Common Subje&, muft neceſſarily re more for their Benefit and Advantage to obey
fide the fame Liberty, or the Power of chooſing the Laws than to tranſgreſs them. But the E-
by their own Judgment, all Means and Methods vent of Things confirm'd the Judgment of Ana-
tending to the Preſervation of the whole Society. charſis rather than the Hopes of Solon. The moſt
And this Liberty is attended with an Abſolute likely Means, that can be thought of, for the
Command, or a Right of preſcribing thoſe Means enſuring and perperuating theſe Decrees, is for
to the particular Members, and of compelling the People to bind themſelves, by a ſolemn Act
a due Obedience and Conformity. of Religion, that they will ever obſerve them:
Therefore in every State, properly ſo call’d, there as was pra&tiſed in Rome, with regard to the
muſt always be ſuch an Abſolute Authority, at leaſt Law prohibiting Regal Government. Yet whes
in Habit and Power, if not always in Exerciſe and ther ſuch an Oath is any longer Obligatory,
6
them to
() Plutarch, ad Princip. Indo&t. p. 780. And ſo in Sophocles, Antigon. p. 234. Ed.[H. Steph.
Kings have large Privileges ; and, in chief,
The Power to act or fpeak whate're they pleaſe.
(6) Add. Mauroceni Hift. Venet. 1. 13. p.517, E96.
(6) In Solon, p. 81, A, B,
when
Of the Affections or Properties
524
Book VII.
being inform Seventy Thouſand Men. · The Books of Ezra, Nehemiah and Daniel, manifeſtly diſcover the like Flu-
when none of the Perſons Survive who firſt en- nible. He then, under ſuch States or
Kingdoms,
gaged in it, hath been the subje&t of a former is properly Abſolute; who exerciſeth the publick
Enquiry (a). Cafar found an eaſy piece of So Adminiſtration by his Judgment, not according
philtry to elude ſuch a publick Conſtitution to any ſettled Rules or perpetual Decrees, but as
The Roman People had laid up a certain Sum in the various Conditions of Affairs ſeem to res
the Treaſury, with a ſolemn Execratich of any quire : or, in ſhort, who procures the Safety of
one chat ſhould dare to touch it, unleſs in caſe the Cominonwealth, by ſuch means as his own
of an Invaſion from the Gauls : Caſar laid Hands Prudence ſuggefts, in every Exigency of Things
on the Money, and ſolv'd all Scruples with this and Times. And in this Senſe the Term Abſolute
Bravado, that by ſubduing the Gallick Nation, he is ſo far from implying any thing that looks Odi-
had, at once, freed the Commonwealth from
ous and Tyrannical, that it lays on Princes a
their Oath, and from their Enemy (b), Herodo- Neceſſity of applying a ftricter Care and Caution,
tus (c) informs us
, that the Athenian Lawgiver than thoſe who proceed in all Buſineſs by conſtant
but now mention'd made his People ſwear, that Forms ; if they would fully ſatisfy their Conſci
they would not reverſe one of his Ordinances ence and their Duty.
within the space of Ten Years. Others have admirably to this purpoſe : A good Prince, ſays he,
endeavoured to preſerve ſuch publick Rules, by covets nothing, becauſe he thinks himſelf to posſess aí
decreeing a Penalty againſt any. Perſon, who things: be abſtains from Pleaſures, becauſe he knows
ſhould move to have them repeald ; tho' the they are all within his reach, if he ſhould be inclined to
Penalty, in this Caſe, may as well be abrogated make uſe of them : be is juſter than all Oshers, becauſe
as the Laws. Thus the Tbaſians made it Death be knows bimſelf to be the Fountain of Juſtice to the
for any Man to propoſe a League with the A- whole State : be takes a Delight in Buſineſs and Labour,
thenians (dl). And the Athenians themſelves de- becauſe he engageth in it by bis own free Motion : aná
nounced a Fine againſt him who ſhould prefer a he loves the Laws, becauſe he doth not fear them. And
Bill for the Recovery of the Iſland Salamis (e). in this way of arguing he proceeds truly and rationally
.
Charondas decreed amongſt the Thurians, that For who bath need of greater Prudence, than one
whoever attempted to correct, or alter the ſet. who is to ſteer and direct ſuch important Affairs?
tled Laws, ſhould come into the publick Affem- who of a ſtricter and more accurate fuffice, iban one
bly with a Halter about his Neck (f). In the who is above the Laws ? who of a more tender Mode
ſame manner Xenophon (8) reports, that by an fty, than one who hath a Licence to do all thing? and
Order of War in Cyrus's Expedition, it was de- who of a more reſolute Courage, than one, who is by his
clared Capital for any Perſon to ſpeak of dividing Office, the Common Guardian and Protector?
the Army.
IX. But ſince, in conſulting the publick Safety,
But in Ariſtocracies and Monarchies, where the Judgment of a ſingle Perſon may eafily be de-
the Perſons governing are different from thoſe ceiv'd; and ſince all Men are not arrived at ſuch
who are govern'd, and conſequently where the a Strength of Soul, as to be able to rule their
latter may obtain a Right by the Paes and Pro. Paffions under lo vaſt and ſo tempting a Liberty
miſes of the former, the Diſtinction betwen ab- (1); many Nations have thought it the more
ſolute and limited Sovereignty is clearly diſcer- ſecure and prudent Courſe, nor to put ſo un-
(a) B. 4. c. 2. f. 17.
(b) Appian, Alexand. de Bell. Civ. I. 2.
(c) Clio.
(d) Polyæn.
Strateg. 1. 2. c. 33: (e) Plutarch. Solon. p. 82. B. (f) Diodor. Sic. 1. 12. c. 17.
(8) Meei draßes,
1. 6.
(b) Orat. 63. de Regno fg Tyranno, p. 588. A. B. Ed. Morell.
(1) This is what M. Antoninus
acknowledges in Herodian, Β. 1. c. 8. Edit. Oxon. Καλεπεν δε μετρήσαί τε, και όρον επιθειναι επιθυμίαις, επηρετήσης εξεσίας.
This is a Quotation of the Author's. Plato faid long before that Time, that tho' a Prince ſhould be pertectly inftru&ted
in the Maxiins of true Politicks, yet if he were to be accountable to none, he will not be able during the whole Courfe
of his Life, to have only in view the publick Good, and to prefer it always to his own private Advantage : The Pro-
penſity of Human Nature, which inclines us to ſeek Pleaſure, and rafhly to avoid Pain, will conſtantly put him upon
trampling under foot the Laws and Intereſt of the State, to ſatisfie his immoderate Defires, and to bring at laſt, by that
means, both upon himſelf and the Publick an infinite number of Evils. 'Edy äga xal to yvão al tis o Te TāUTC OÚTW
répuré, &c. de Legibus, Lib. IX. p. 875. B.C. Edit. Serran. p. 936. D. Edit. Francof. As for the reſt, I refer the Rea,
der to Mr. Sidney's Diſcourſe upon Government, Chap. II. Sect. XXX. where that skilful Politician ſhews for ſeveral
Reaſons, and by a great number of Inſtances, how very difficult it is for a Monarchical Government to be regulated as
it ought to be, when the Power of the Prince is not limited by ſome Laws; and I ſhall content my felf with only re.
lating the following Words taken from another place of the fame Author. If the Rulers of Nations be reftrain'd, not
only the People are by that means ſecur'd from the Miſchiefs of their Vices and Follies, but they themſelves are pre-
* ſerv'd from the greateſt Temptations to Ill, and the terrible Effects of the Vengeance that frequently enſues upon
An unlimited Prince might juſtly be compar'd to a weak Ship, expos’d to a violent storm, with a vaſt Sail and no Rud-
. der. We have an eminent Example of this in the Book of 'Ether. A wicked Villain having fillid the Ears of a foo-
• liſh King, with falſe Stories of the Jews, he iſſues out a Proclamation for their utter Extirpation; and not long after
being inform’d of the Truth, he gave them leave by another Proclamation to kill whom they pleas'd, which they
i upon .. , ,
« Etuation in all the Counſels of Nebuchadonozor, Cyrus, Darius, and Artaxerxes. If a frantick Fit come into the
« Head of a drunken Whore, Perſepolis muſt be burnt, and the Hand of Alexander is ready to execute her Will. If 2
6 dancing Wench pleaſe Herod, the moſt venerable of all human Heads muft be offer'd in a Diſh for a Sacrifice to the
* Rage of her impure Mother. The nature of Men is fo frail, that whereſoever the Word of a ſingle Perſon has had the
« force of a Law, the innumerable Extravagancies and Miſchiefs it has produc'd have been ſo notorious, that all Nations
• who are not ſtupid, ſlaviſh,and brutiſh, have always abominated it, and made it their principal Care to find out Remedies
againſt it, by ſo deciding and ballancing the Powers of their Government, that one or a few might not be able to ope
preſs and deſtroy thoſe they ought to preſerve and prote&t. This has always been as grateful to the beſt and wiſeft of
Princes, as neceſſary to the weakeſt and worft. (Chap. III. Se&i XLIII., -Moſes was a Man of as great Parts as
any
in the World, and yet could not bear the weight of Government alone, and therefore GOD choſe out ſeveral
• Perſons to eaſe him of it.Power, as Theopompus King of the Lacedemonians ſays very well, was ſecureſt when
o 'twas lefs courted and leſs hated. Book II, likewiſe Mr. Titius Obf. in Pufen. DCI. Mr. Barbeyrac's firſt Note upor
* this Seet. p. 298, 299.




it.
6
2
bounded

Chap. VỊ.
525
Belonging to Sovereignty.
Rus
Pbilos. o apoir (c) i Sam. VIII. II, Esc.
bounded a Power entirely into che Hands of one noft convenient : except where Civil Laws
Man, who can neither be infallible in his Ua- have been divinely inftituted, by the extraordi-
derſtanding. nor inflexible in his Will; but ra- nary Interpoſition and Appointment of Hea
ther to preſcribe to him a certain Method of ven. 'Twas a wiſe Saying of Melangi bin (6)
Governing: it having been firſt diſcover'd that States and Kingdoms differ in their Fiame, some ad
theſe fixe Rules and Forms of publick Buſineſs, mitting Liberty in one Degree, fome in another
.
are agreeable to the Genius of the People, and God approves of all Forms of Government, which are
the Conſtitution of the State. Nor is this Limi. agreeable to Nature, and to Reafon. None will
tation of Power an Injury to thoſe Princes, who pretend, that when a Free People are about to
owe their Crown to the free Gift of the People. elect a King, one Candidate can plead che Divine
For if they thought it hard to receive an Autho- Deſignation more than another : or that there is
rity, which they could not exerciſe at their own any peculiar Form of Words eſtablifw'd by
Pleaſure, they were at Liberty to have refuſed GOD Himſelf, under which the Inveſtiture of
it. But when they have once accepted of the Sovereignty muſt neceſſarily be made.
Sovereignty under theſe Conditions, the ſolemni Nor will the famous Deſcription of a King by.
Oath by which they engage to obſerve the Con- Samuel (c), do theſe Authors any Service, which
ditions, utterly forbids them to uſe any Means, they expound as a general Right belonging to
whether of ſecret Contrivance, or of open Vio- every Monarch; whilſt others will have it to be
lence, in order to fubverting the Laws of the a bare account of Matter of fact, whär fome
Kingdom, and rendring themſelves Abſolute. Kings will do, tho' none may juſtly do it. Grom
Becauſe, as Pliny (a) obſerves, No one ought more tius (d) takes the middle way between theſe con-
religiouſly to obſerve his Oath, than be who bath the trary Interpretations, and tells us, that the Pro-
greateſt Intereſt in not being for/worn (1).
phets Words do neither expreſsa Matter of Right,
Tis a very poor Argument which ſome make nor yet a bare Fatt, ſuppoſed to be wrong and
uſe of, when they tell us, that ſince Princes are injurious; but ſuch a Fact as carries in ie the
ordain'd by God, and fince He hath commanded Firce or Conſequence of a Right, tho’ it hath not the
them fully to diſcharge their Duty, which can Foundation ; and this Force or conſequence is, that it
not be done without the Exerciſe of the Sovereign obligeth the Subje& to Non-reſiſtance: In other
Power ; therefore we ought to ſuppoſe, that words, that however the Prince may in ſuch
God, by the ſame Aa, gives them ſuch a certain Actions violate his Duty, yet the People have no
Meaſure of Authority; of which as they ought more Licence to oppoſe his Proceedings, than if
not to ſuffer themſelves to be, in the leaft, a. he did nothing but what was highly juſt and
bridg’d, ſo the People cannot, with any Juſtice, equal. And on this Account he obſerves it to
deſire to make an Encroachment upon it ; nor, be, that Samuel foretels the People, they Mould
if they did, could they be able to bind the cry to GOD under theſe. Oppreſſions; intima-
Prince, by a Contract ſo prejudicial to his Right, ting, that the Things were above Human Relief
and to the Truft which he receiv'd from God. or Remedy. In fine, he ſays, ſuch Acts as theſe
Ac the ſame rate, they ſay, a Wife might engage in Kings may be termd Right, by the ſame way
her Husband, by Covenant, to wink at her of Speech, as when the Civil Law (e) affirms the
ftoln Amours; ſo as to anſwer the Poet's Cha. Prætor jus reddere, to do Right, even when his
racter ( 2 ).
cert Sentence is unjuſt. But the true Import of that
on place of Scripture may perhaps better appear, if
Doctus fpe&tare lacunar,
we take this plain and eaſy Method of explaining
Do£tus & ad calices vigilanti fertere naſo. Dit. The Jewiſh Nation had hitherto liv'd under
soli a Democracy, but ſuch a one as often bore the
Who his taught Eyes up to the Ceiling throws, Semblance of that kind of Government on which
And ſleeps all over but his wakeful Noſe. Ariſtotle beſtows the Title of Heroical. Their
Mr. Dryden. Judges, rais'd up for the moſt part by Divine
mbro
Impulſe, either deliver'd them from their Op.
Or the Bargain might be mutual ;
preſſors by War, or adminifter'd Juſtice in Peace:
Yet, in ordinary Caſes, they had more Authority
Ut faceres tu quod velles ; nec non ego pallem to perſwade, than Power to command: and no
Indulgere mihi (3): S M Taxes were allow'd them beyond the ſtanding
Revenues, to encreafe their Strength, or to an
The Parties ſhould be pleas'd on either ſide; dorn their Dignity (f). At length the People,
And both may for their private Needs provide. grown weary of this Conſtitution, defir'da King,
Mr. Dryden. after the manner of other Nations; that is, one
dad who ſhould ſhine with external Pomp and Gran-
But, as we have already evinced (4) the Ori- deur, and ſhould either keep a conſtant Body of
gine of Sovereignty to be from God, Yo we take regular Forces, or at leaft ſhould train up the
it for a certain Truth, that it was left to the Subjects to Arms, that they might be ready to
Pleaſure, and Judgment of Men to chooſe what make Head againſt any ſudden Invafion (g)
particular Form of Government they though. When Matters ftood thus in the People's Opi-
(1) See Sidney upon Government, C 3. S. 14 (2) Juvenal. Satyr, 1. v. 56, 57;
(3) Juvenal. Satyr. 6. v. 281, 282.
(4) In the Third Chapter of this Book. to (6) In Epitom. Moral.
)
3.
(e) L. I. t. 1. 1. 11. D. De Íuft. Sy Jure.
This is what Pedo Albinovanus calls, Jus injuftum, Eleg. 1. Verf 54. Edit. Gorall.
(f) Add. Grot. ad Judic.
(8) See 1 Sam. XIII, 2. XIX, 48, 52.
nion,
50w 15 10 20
3)
(a) Paneg. c. 65.
4.
6. I.
Q99
526
Book VII.
is ,
(2) Thoſe Princes who have been the moſt jealous of
Of the Affections or Properties
nion, Samuels to put them upon a ſerious Delibe- the manner of a Law, ſo as to be incapable
of
ration, before the thing was paft recovery, fets receiving Addition, or Diminution from any
out to them, in lively Colours, the Rights of Human Agreement; but that the Prophet barely
ſuch a Sovereign, and the Inconveniencies which enumerates the Burthen and Charges of a Monar.
would attend the Government. You would have chical State, whether Abſolute or Limited. "Tis
4 King, ſays he, who ſhould appear with Scate certainly therefore left to the Judgment of a
ánd Magnificence: why, to compaſs this End, Free People to determine, whether they ſhall
he muſt attended with a numerous Train of confer the Sovereignty on a Prince in an abſo-
Guards (1); therefore, He will take your fons and lute manner, or whether they ſhall bind him to
appoint ibem for himſelf, for his chariots
, and to be certain Conditions ; provided theſe Condicions
bis borſemen, and some Mall run before bis chariots. imply nothing, which is either impious towards
You would have a King, who ſhould be furniſh'd GOD, or deſtructive of the proper End of Go
with a ſtanding Military Force : it will be neceſ- vernment. For although it be true, that Men
ſary, therefore, for him, to appoint captains over
firſt entred into regular Bodies and States, upon
thouſands, and captains over fifties, out of your their own free Choice, yet in as much as they
Sons, who might otherwiſe have been employ'd were always under the Command of the Law of
in the Improvement of your private Eſtates. Nature, they ought, on all accounts, to inftiture
Again, the Care of publick Affairs will not allow ſuch Rules of Sovereignty and of Civil Obedi,
ſuch a King to undertake the Culture of his own ence, as ſhould be conformable to that Law, and
Lands; therefore he will take your Sons to ear to the juſt Deſign of Political Societies.
bis Ground, and to reap his Harveſts; as likewiſe, to X. But that we may rightly apprehend what
make bis inſtruments of war, and inſtruments of bis Promiſe or Engagement, (for all have not the
chariots. Beſides, ſince his Court will be large ſame Force,) is required to the rendring a Mo
and full, and ſince it will be beneath the Dignity narchy not Abſolute, (and the ſame will hold of
of his Wives, or Daughters to govern the Kit. an Ariſtocracy ;) we muſt obſerve that a King,
chen, and to provide Suſtenance for ſo vaſt a at his undertaking the chief Government, binds
Houſhold; be will take your daughters to be confection himſelf to the due Diſcharge of it, either by a
naries, and to be cooks, and to be bakers. He will general, or by a particular Promiſe, to which is
have Occaſion for a Multitude of Officers, to uſually added the Confirmation of an Oath. A
inſpea and regulate the Affairs of War and Peace; general Promiſe may be inade either tacitly or ex-
and all theſe muſt have their fix'd Salaries to re- prefly. A King, by the very Act of accepting
ward their Service ; for which purpoſe, he will the Adminiſtration, is ſuppoſed tacitly to engage,
take your fields and your vineyards, even the beſt of that he will conſcientiouſly perform his Truit;
them, and give them to bis Servante: and for the altho' no express Promiſe be given (a). But the
ſame ufe he will require the tenth of your Cattel. moſt common way is to make this Promiſe in
And, after all if need be, he will not ſtick to expreſs Words, with the addition of an Oath, and
take your ſervants, and your beaſts, and put them to the solemnity of certain Rights and Forms. And
his work. In a word, if You'reſolve to have a nothing is more frequent, than to have the
King, You muſt maintain him like a King, and Princes Duty deſcribed in theſe fer Speeches, by
ſettle a large Revenue for his Support ; and way of Periphrafis, or an Enumeration of its prin-
ſhould You afterwards grow weary of the Bur- cipal Parts : As ſuppoſe, that he will be diligent
then, You cannot lay him aſide at Your plea- and watchful in promoting the publick Security,
ſure; Your Election having given him fuch a that he will protect the good, and puniſh the
Right to the Crown, as may not be taken from bad, that he will faithfully adminiſter Juſtice,
him without his Conſent. It is plain then, on will not oppreſs the Subject, and the like. Now
the whole, that this Paſſage in the Scripture Promiſes of this kind do not in the leaſt preju-
Hiſtory, doth by no means patronize ill Princes, dice the (2) Abſoluteneſs of a Sovereignty. The
nor doeh contain any certain Meaſure and Stan. King is, indeed, obliged by them to govern well;
dard of Regal Power, there preſcribed by God in buc they leave it to his Judgment and
ini
(1) How ingenious foever our Author's Paraphraſe on this place may be, it is highly probable that Samuel does not re-
preſent what Kings have a Right to do, but only to ſet before the Jews the Misfortunes that they would be expoſed to
under a Royal State, to endeavour to put them out of Conceit with it. See Mr.Sidney's Diſcourſe upon Government
, Chap.;
3, 4, 5, 7: The Afferters of abfolute Power depend chiefly, upon the firft Words of Samuel's Diſcourſe, which
they thus tranſlate: This will be the Right of the King, &c. but the Word ODUN in the original Miſchpath, often
Signifies as Mr. Le Clerc obſerves, the manner of acting, the common Method
whether good or bad, juft or unjuft.
I will be ſufficient to give one ſingle Inſtance of it, taken from the fame Book of Samuet. Now the Sons of Eli were
Sons of Belial, they knew not the Lord. And the Prieſts (Miſchpath Cuftom with the People was, that when any Man of:
fered Sacrifice, the Priefts Servant came while she Fleſh was in feetbing, with a Fleſh-Hook of three Teeth in his Handi
And he ftruck' it into the Pan, or Kettle
, or Cauldron, or Pot ; all that the Flesh-book
brought up, the Prieſt took for himſelf
1 Sam. Chap. 2. S. 12, 13, 14. Now the Prieſts had no right
to do that ; for only the Breaſt and the right shoulder of
the Sacrifices here mention
d belonged to them. Lev. vii. 36, &c. Mr. Le Clerc has likewiſe thewn by the Sequel of
Samuel's Diſcourſe that the Interpretation which they put upon it, is entirely contrary to the Rules of Críticiſm,
(6) Grotius on the 2 Kings XI. 14. The People promisd to take the King's Safety under their Care. So ſays
For that the King foould promiſe any thing to the People, was not the Cuſtom amongft the Jews : That is, by, an.
Promiſe, and ſuch as ſhould be made at the Coronation,
temarkable Inſtance of it, which Mr.Sidney has taken care to y relate; it is, that in the Treatiſe of the. Rights of the
the Spanish Netherlands, there are thele very Words,
That Kings have that happy cvart of Power, that they can do not
Eking contrary to the Laws of their country. Mr. Barbeyrar's fast Note upon this Sc&t.
, p. 302.)

24 and Pleaſure
as
firft Note
expreſs
part of
I.
60

Cháp. VỊ$ 27
.
Belonging to sovereignty.
ſpecifies the manner and means of Governing, But Monarchy is brought into much narrower
VI
to chooſe and apply the Means in order to the to with-hold their Conſent from the laiurary Pro.
obtaining this End. A particular Promiſe, which poſals and Intentions of the Prince.
may be divided according to its different Force Bounds, and under much ſtricter Ties, if at the
and Effect. For ſometimes it only binds the firſt conferring of Sovereignty, ic be exprelly
Conſcience of the Prince ; ſometimes it makes covenanted between the People and the Prince,
his due Performance the Condition of his Sub- that the latter ſhall govern according to certain
jects Obedience. The former is done, when the Fundamental Laws, and in all ſuch Affairs as are
Prince engageth, (for Inſtance, that he will not left to his abſolute Diſpoſal, ſhall have re-
confine the Offices and Places of Truſt to Men courſe to a Council of the Commons, or of the
of ſuch Rank, or of ſuch Qualifications ; that he Nobles, and determine nothing withour their
will inveſt no Perſon with Privileges and Im- Conſent: that in caſe he do otherwiſe, the Sub-
munities, burchenſome or prejudicial to others; jects ſhall not be obliged by any of thoſe illegal
that he will enact no new Laws, impoſe no new Commands. A People, who confticute a King
Taxes or Tributes, imploy no Foreign Souldiers, over them in this manner, are ſuppoſed to have
and the like. But then we ſuppoſe the People promiſed him Obedience, nor abſolutely and in
to demand all this of the Prince, without conſti- all Points, but ſo far as his Government is agree-
tuting any certain Council, to which he ſhall be able to the Original Contract and the Funda..
bound to apply himſelf, in caſe the Neceflities mental Laws: from which whatever Acts of
of the Commonwealth require a Digreffion his recede are thereby void, and loſe all Force
from ſuch Promiſes and Engagements, which of engaging the Subje&ts to a Compliance. Nor
are always to be underſtood with this tacit Ex- yet can it be truly ſaid, that theſe Fundamental
preſſion, unleſs the Publick Safety: (the Supreme Laws render the Supreme Power lame and ima
Law,) coinmand the contrary. Such a Council, we perfect. For all the Ads of Government may
mean, as might proceed, not precariouſly, but be exercis’d here, as well as in an abſolute King-
by its own proper Right, in determining theſe dom : only, that whereas in the latter, the Prince
Affairs, and without the Conſent of which, the proceeds by his own ſole Judgment, at leaſt as to
Subjects ſhould not be obliged to obey the the final Determination of things; in the former
Prince's Orders, in-Points of this nature. Now there is a Council eſtabliſh'd, which doch, as ic
in ſuch a State as we have been here deſcribing, were, bear him Company in the adjuſting of
the Adminiſtration of the Government is bound- Affairs; and on the Authority of its Deciſions
ed and confined by certain Laws, and che Prince, the Sovereignty depends; not as on the proper
who ſhall act otherwiſe, except in Caſes of Ne Source of Power, but as on a neceſſary Conditi-
celficy, hath no doubt violated his Word and on. Neither are there in ſuch a State owo Go-
Faith. And yet
And yet the Subjects are not impower'd verning Wills; ſince whatever the Common Bo-
ro reject his Commands, or to reverſe his Pro- dy acts, it acts by the will of the Prince: The
ceedings upon this Pretence. For whilft he de- Limitation of the original Grant only prodú-
clares, that the Safety of the People, or ſome cing this Effect, That (unleſs under iuch a
extraordinary Benefic to the Publick, is the Cauſe Condition, the Prince ſhall not incline his Will
and Motive of what he does, as indeed this Pre to ſome particular Deſigns, or that ſuch Acts
fumption always attends the Acts of Sovereign of his Will ſhall have no Force or Verrue. No
Princes, the Subjects are cut off from all farther more can it be pretended, that the King in a
Anſwer or Plea : inaſmuch as they have no Au- Realm thus conſtituted, lofeth his Sovereign
thority to take Cognizance of thoſe Matters, and Power, or that the Council is Superiour to him.
to judge whether the Neceſſities of the Common. For theſe are very faulty Conleqi ences, “ The
wealth require them or not. Whence 'tis eaſy Prince cannot act in every thing according to
to draw this Obſervation, That a People do not his own Pleaſure; therefore he hath not the
ſufficiently guard and ſecure their Liberties, Supreme Authority : I am not obliged to obey
when they create a King only with a Limited So • him in all things; therefore I am his Supe-
vereignty, and yet do not appoint a Council, with rior, or at leaſt his Equal : I can't command
out the Approbation of which, thoſe Acts, ex ' a Subject in an Arbitrary manner; and there-
cepted in the Limited Grant, ſhall not be per s fore he muſt have his Turn of peremptorily
form’d : or unlefs they oblige the King to hold commanding me who am his Prince. There
an Aſſembly, in which thoſe extraordinary Af- is a great deal of Difference (1) between theſe
fairs may be debated. For this is a much better two Propoſitions, 'I am bound to act with this
Expedient, than if the King ſhould be only · Perſon's Approbation, becauſe I have engaged
bound in theſe Caſes, to follow the Opinion of ſelf to it by Covenant: and I am bound to
a ſmaller Council: ſince it might ſo happen, that follow this perſon's Will and Pleaſure, becauſe,
the private Intereſt of thoſe few Members, who .by virtue of his Sovereignty, he hath a Right
compoſed ſuch a Meeting, ſhould interfere with of laying theſe Injunctions on me'. Supreme
the publick Good; whence they might be pre- and Abſolute are by no means one and the ſame
vaild on by the Motive of particular Advantage, Term. For the former only denies a Superior or
my
darmo
(1) Vid. Grot. L. 1. c. 3. S. 16. Numb. 1. where he explains this matter by the Example of a Father of a Family, who
if he has promis’d his Family any thing even relating to its Management, he is indiſpenſably obliged to keep his
Word, without ceaſing, upon that account, to be leſs the Head, or Sovereign if I may ſay ſo, of that little Society. A
Husband likewiſe does not loſe any thing of his Authority over his Wife, for having promis'd her fome thing, which
be cannot lawfully diſpenſe with the performing. Mr. Barbeyrac's ſecond Note upon this section, p. 302.
Q992
an
528
Of the Affections or Properties
Book VII.
an Equal in the ſame Order : the laccer farther im- Exerciſe of the Act, or directly the very Perver.
ports a Power of exerciſing any kind of Right,ac. That an A&t contrary to Promiſes of the former
cording to one's own Judgment and Inclination. kind is Unjuſt, and yet Valid; but an Act re.
But what ſhall we ſay, if in the Original A- pugnant to Engagements of the latter fort, is
greement it was expreſiy (a) (1) made a Con- not only Unjuſt, but void and ineffe Qual. As if
dition, that if the Prince acted otherwiſe, he he had ſaid, fometimes a King promiſech chache
thould forfeit his Sovereignty. We have many will uſe ſuch a part of his Sovereignty only in a
Inſtances of this Practice in Hiſtory. Diodorus certain manner : ſometimes he plainly abridgeth
Siculus (b) reports, that amongſt the Sabæans the himſelf of ſuch a part of his Power. Concern.
King, though in all other reſpects Unaccounta- ing which Diftin&tion we may offer theſe two
ble, yet if he fet a Foot beyond his own Palace, Remarks: Firſt, that an Act committed againſt
was to be ſtoned by the People. And this, he Promiſes of the former kind, may likewile be
ſays, was ordain'd by the Advice of an ancient Void: for Inſtance, ſuppoſe a Prince hach en-
Oracle. The People of Arragon heretofore, gaged, that he will not levy new Taxes without
when the King had taken an Oath to preſerve conſulting the States of the Realm, we conceive
their Privileges, engaged their Allegiance to that the Levies which he ſhall make in this Ar-
hiin in this Form, We who have as much Power as bitrary manner are null and unbinding. And,
You, make You our Savereign Lord, upon Condition You Secondly, that as to the latter part of the Diſtin-
keep inviolably our Laws and Rights, and not other- &ion, what Grotius there ſuppoſeth, cannot but
wile (c). Severus, when he entred upon his maim and diſmember the Sovereign Power.
Reign, not only ſwore that no Senator ſhould be XI. But to give us a deeper Inſight into the
ever put to Death by his Orders; but likewiſe Nature of Limited Monarchies, it will be uſeful
publith'd a Decree to this Effect, That whatever to remark, that the Affairs which offer them-
Emperour ſhould take off one of the Senatorian Rank, felves in the publick Adminiſtration, are chiefly
be himſelf, his Children, and the Agents be made uſe of two kinds. Some may be ſettled and regu-
of, with their Children, ſhould be declared Enemies of lated before-hand; becauſe, whenever they hap-
the Commonwealth (d). Though Julius Solon, who pen, they have the ſame conſtant Nature. O.
by the Emperor's Command wrote this Decree, thers there are on which Judgment cannot be
in a little time after loſt his Life. To come then given, whether or no they are expedient to the
to a Reſolution of the Queſtion before us, 'tis publick Welfare, but at the very time when they
plain, that no Abſolute Prince can receive his appear : becauſe the Circumſtances which atterd
Authority under ſuch a Clauſe or Condition as them, are not to be foreſeen. Now a People,
we have now deſcrib’d. Yet nothing ſeems to who have ſettled themſelves in a Limited Moa
hinder why a limited Government, and yet a narchy, may provide that in neither of theſe
true and proper Monarchy, may not be confer'd kinds of Affairs, any Prejudice ſhall ariſe to the
on a Perſon under the Terms of Reſtraint. For Good and Safety of the Commonwealth. As to
though we ſhould allow, That a Temporary Au- the former, by ordaining perpetual Laws, which
thority cannot rightly be term’d Supreme, yet we the King ſhall be bound to obſerve : and as to
muſt not call that Authority Temporary, which the latter, by appointing a Council of Peers, or
depends on a Condition in the Power of the of Commoners, who ſhall always be conſulted on
Prince to perform. Nor do we by this means ſuch Emergencies. Thus a People who are fully
ſubject the Prince to the Judgment of the Peo- fatisfied of the Truth of the Religion they pro-
ple, as if they were in a folemn manner to de- fefs, and likewiſe of the Decency of their Exter-
termine whether he hath broken his Engagement nal Rites, and their Eccleſiaſtical Polity, may
or not. For, beſides that the Condition we ſpeak oblige a Prince, when they inveſt him with the
of uſually conſiſts of ſuch Matters as are clear Government, to make no Alteration in the Eſta-
and obvious to Senſe, and therefore not eafily lia. bliſh'd Worſhip, by his own ſole Judgment and
ble to Doubt or Diſpute ; ſuch an Act of the Authority. Again, no Man is ignorant how
People, whereby they také Notice of the Prince's much the Juſtice of a Nation ſuffers when Cauſes
Miſcarriage and Forfeiture, doth not carry in it are determind, not according to written Laws,
the Semblance of a judicial Proceeding, for the but by the bare Sentence of the Prince, and by
eaking Cognizance of a Subje&t's Offence: but what they term Equity : ſince in this way of pro-
is no more than a bare Declaration, by which ceeding, Paſſion, or Ignorance muſt frequently
the one Party obſerves and proteſts
, that it's get the Advantage over Reaſon (f). To avoid
manifeſt Rights have been violated by the other which Inconvenience, a People may engage the
Party: and ſuch a Declaration may be made by Prince whom they create, that he ſhall either
an Inferior (e).
obſerve the Laws already extant, or enact new
Grotius (2) Ipeaks ſomewhat obſcurely, when and reaſonable Stacutes; and that according to
he obſerves that the Obligation, ariſing from theſe Conſtitutions, Juſtice ſhall be given by
the Promiſes of Kings, may reſtrain either the certain
Colleges, or ftanding Courts ; no Cauſes,




TE
(a) We ſay exprefly, for if the Clauſe run only thus, In caſe the King act otherwiſe, the SubjeftJhall not be obliged; it
will not amount to ſuch a peremptory Condition, as the Civilians call Lex Commiſforia. (1) Vid Grot. d. l.
3. c. 47. Add. Agatharcid. de Mari Rubro, c. 50. Strabo, 1. 15. pag. 488, Edit. Genev. Casaub. tells us of a Cuſtom much
like this ; that in India, if the Prince happens to drink to excels, the very Women have Liberty to kill him; and the
that doth the Feat, for her Reward, may claim his Succeſſor in Marriage.
(c) See Hottomann. Franco-Gall. c. 12. (d) Xiphilin. Epit. Dion, in Sever.
6. 3. S. 16.
(2) Ubi fupra.
(f) Vid. Taçit. Annal. 13. C. 4 & 42.

(e) Comp. Bæcler, ad Grot. l. I.
except

Chap. VI.
529
Belonging to Sovereignty.
except of very weighty Concern, or by way of the ſtanding Preſcripcions of the Law, than ac-
Appeal, being allowd to come before the King. cording to their own private and unconfined
Yet, as to this point, Kings themſelves are often Pleaſure. For, otherwiſe bare Laws are no fic-
fond of referring invidious Cauſes to the Deci- ter to govern a State, than the bare Needle co
fion of Others (a). And this Excuſe is often govern a Ship, without the Afliſtance and Dire-
ſerviceable, in putting off the importunate Inter- ction of a Pilot.
ceflions of Great Perſons on the Behalf of Crimi.
Many Examples and many Mechods we find in
nals. 'Twas a brave Saying of the Emperor Hiſtory, how the Regal Power hath been limited
Andronicus Comnenius (b), That the Severity and Au- and reſtrain'd (d) (1). But perhaps no Relation
thority of the Laws ought to be of more Force than bis is ſo extraordinary as that which Solinus (e) gives
private Will and Inclination ; and, that 'twas fit ibe us of the People of the Iſlands Hebrides in Scot-
Sentence of the Judges fould over-rule the Opinion of land: Their King, ſays he, hath nothing of his own;
the Prince. No leſs obvious is ic to remark, how all Pofeſſions lie in Common: He is tied to Equity by
eaſily Luxury or Ambition may ſquander away eſtabliſh'd Laws. And leaft Coverouſneſs ſhould tempt
what hath been got by the Induſtry and Sweat him from Truth and Rigbt, he is taught Fuſtice by the
of other Men. On this Score therefore, leaſt Diſcipline of Poverty ; baving no fixt Revenues nor
the Riches of the Subject ſhould ſerve only for private Estate, but owing his Maintenance to the Pub.
Fuel to the Vices of the Sovereign, many Nati- lick Stock. He is allowed no Wife, but makes free with
ons have wiſely aſſign'd their Kings ſuch fixt any of bis Şubje&t's Beds as he thinks convenient. And
Revenues as they thought ſufficient for his ordi- thus be bath no Hopes of a Family and Children, to en-
nary Expences on the Commonwealth ; and left gage and to enſnare bim. Apollonius Rhodius (f) tells
the raiſing of larger Sums, when there ſhould be us a lamentable Story of the Kings of the Moſty-
Occaſion for them, to the Conſideration of a neci, that if at any time they pronounced an un-
Council or Aſſembly. In like manner, ſince juſt Sentence, they were immediately ſhut up in
ſome Princes, cue of too great a Fondneſs for a Tower, and there ſtarv'd to Deach,
Martial Glory, hazard themſelves and their XII. But whereas, as hath been already ſhown,
Realms by engaging in unneceſſary Wars; it Princes, in a Limited Monarchy, are for the
was a prudent Caution in thoſe People, who, moſt part obliged, in ſuch Affairs as the People
when they conferr’d the Sovereignty on their thought fit not to leave to their abſolute Diſpoſal,
Kings, obliged them not to enter upon a War, to apply themſelves to a Council, either of all
at leaſt not on the offenſive ſide, without the the Subjects in general, or of Deputies, repre-
Advice and Concurrence of a proper Council. ſenting the particular Claſſes and Orders; it is
We are told of the Inhabitants of the Illand Bor- farther to be obſerved, that the Power of ſuch
heo (c), that they have ſuch a Natural Averſion Councils is not in all places alike. For there are
to War, and to Marcial Princes, that when they Realms, where the King, being in other reſpects
find their Monarch to be of a fiercer Diſpoſition, Abſolute, appoints a Council or Senate, the
they oblige him to fight at the Head of his Army, Approbation of which he makes eſſential to the
where he may meet with the greateſt Danger. Validity of his Decrees (g) (2). Now a Senate
In theſe therefore, and in all Inſtances of Bufi- of this kind is, as to its Authority, no more than
neſs, which a People find to be of publick Uſe a Board of Counſellors; and when it proceeds to
and Benefit, they may provide for their own take the Royal Ediets under Examination and
Security, bý ſettled Conftitutions and Decrees: Cenſure, and to reject ſuch as ſeem leſs expedi-
leaſt if they ſhould leave the abſolute Diſpoſalent to the Commonwealth, it does this, not by
of ſuch Affairs in the Hands of the Prince, its own proper Right, but by a power delegated
the Common Intereſt might poflibly ſometiines from the Prince ; who makes this prudent Provi-
Suffer.
fion, that nothing may be enacted prejudicial to
From what hath been obſerv'd on this Head, the Publick, either through his own Inadverten-
appears in what Senſe we ought to explain cy, or through the Inftigation of Flatterers. Plu-
thac Common Aſſertion of the Grecian Politici- tarch (b) reports it as " A Law of the Egyptian
ans, and others who follow them, when they ' Kings, which they conſtantly obſerved, to
tell us, That the Government of a State ought rather ( bind the Judges by Oath, that they ſhould not
to be committed to Laws, than to Men. For the obey the Prince himſelf, if he deſired them
only rational Interpretation of ſuch a Maxim to paſs an unjuſt Sentence. And on the ſame
muſt be this, that it is more expedient the Rulers Occaſion he tells us, that Antigonus the Third
of Commonwealths ſhould govern according to gave Notice to the States, ' Thac in caſe he
Vorsi
fa) Ovid. Metam.(1. 12. v. 626, Sc.) makes Agamemnon uſe this wiſe Conduct in diſpoſing of Achilles's Arms.
A ſe Tantalides odium invidiamque removit ; The King throws off the Odium, and deniés
Argolicoſque duces mediis confidere caftris
To fit fole Judge apon fo vaſt a Prize :
our or Fuſit, so arbitrium litis trajecit in omnes.
But cites a Council of the Martial Peers,
And to the General Vote the mighty Cauſe refers.
(6) Nicetas Acominat. 1. 1. De Imper. Andronic.
Franc. Lopez de Gomara Hift. Ind. Occidental. c. 95. (d) How the Power of the Egyptian Kings was con-
fined, ſee Diodor. Sic. 1. 1. c. 71. Add. Plin. Nat
. Hift
. 1. 7. c. 22. in fin. & Solin. C. 66. Philoftratus (Vit. Apollon.
Thvan. 1. 3. c. 1o.) reports, that the ancient Conftitutions of the wife Indians, permitted the King to ſtay among
ft
them but a ſingle Day at once:
(1) Grotius, B. I. c. 3. f. 16. Numb. 3. is more worthy to be conſulted upon
this
, than the Places juft mention'd.
(e) Cap: 35.
(f) Argonaut. l. 3. (g) See what Neuhof
telates of the Empire of China, Defcript. Sin, C. 1. (2) See Grot. B. 1. C. 3. f. 18.
(b) Apophtheg. p.
174. B. 183. E.
ſhould,
22
530
Of the Affections or Properties
Book VII.

Phyſician
ſwade che contrary ; ,
ſhould, by any Letter to them, command any fel, which ſuch a Senate offers the Prince, doch
thing contrary to the Laws, they ſhould not
not oblige him by its own Force, or by any Au-
perform ſuch an Injunction, but ſhould take thority inherenc in ic felf, yes, ic affords the
it for granted that he had forgot himſelf (a). Ground and Occaſion of an Obligatiete, by re-
By this means too, Princes often get rid of bold preſenting to the Prince after what manner he
Petitioners, whillt in appearance they grant the may truly diſcharge his Dury, in the Buſineſs ac
Requeſt, but at the ſame time know, that che preſent under Debate (c). For ſo a
Senate will cancel and reverſe it (b).
cannot be ſaid to oblige a Patient by his own
Yet, under this Conftitution, if at any time Power and Authority; yet when he ſhews him
the Prince poſitively inſiſts in having his Will what will conduce to his Health, the Patient is
take place, and doth not own the Reaſons, urged bound to follow his Preſcriptions by the Law of
by the Senate, to be of ſtrength enough to per- Nature, which enjoins every one to take care of
the Senate
his own Health and Safety. The ſame muſt be
farther in oppoſing the Prince's Power. For it ſaid of the Aſſemblies of the Eſtates in a Realm;
is not ſuppoſed, that he, in appointing ſuch a which ſerve only for a larger Council of the
Council, intended to give up irrevocably his Prince, by means of which the Complaints of
abſolute Right of governing, and of his own ac the People, which are often neglected or ſup-
cord to make his Subjects Obedience only con- preſs’d in private Councils, may be brought to
ditional, when he might have claim'd it without the Prince's Ear; who hath the Liberty of taking
any ſuch Terms of Reſtraint. The Senate what Method he pleaſech for their Redreſs (d).
therefore, in this Cafe, hath its Authority only It is well obſervd by Mr. Hobbes (e), that unleſs
by Commiſſion from the Prince, who may con we would rob the King of his Sovereignty, and
ſequently put a Stop to it, when he thinks fit : make a State with two Heads, ſuch an Affernblý
tho' indeed he ought not to think fit, unleſs on cannot undertake more Buſineſs than the King
very extraordinary Occaſions. But chus much hath propounded to them : Since the People cannot
may be done on the People's fide; when one chooſe their Deputies to other Intent, than is, in the
King hath, by his own free Aet, conſtituted ſuch Writing directed to them from the Sovereign, expreſsid,
a Senate, they may oblige his Succeſſors, (by For the ſame Reaſon, when the Sovereign ſhall
,
an Oath, at their Admiſſion to the Government,) declare, that nothing more at preſent remains to
not to diffolve it.
be propounded to their Debate, the Body is dif-
A Senate thus form'd, and eſpecially if it be ſolv'd. Yet they are allow'd, of their own ac-
left in the King's Power to ſuppreſs it, doth not cord, to inform the King of ſome Matters in the
hinder the King from being Abſolute. For when way of Addreſs and Petition.
we apply this Denomination to a Prince, we do But the Sovereignty may then properly be
not preſume that he acts whatever he pleaſeth, term’d Limited, when the People at firſt conferr'd
according as he is led by the Blindneſs of Luft, it on the Prince, under this Condition, that be-
or the Raſhneſs and Inadvertency of Paſſion; fore he proceeded to the Exerciſe of certain
but only that he determines, by his own final Acts, he ſhould conſult the Aſſembly of the E-
Judgment, all Matters belonging to the Com- ſtates, and that without their Conſent his De-
monwealth: which is very far from being incon- crees ſhould be of no Force. Yet ſtill we ought
fiſtent with a Neceflity of hearing good Rea- to leave it in the King's Power, to call this Af-
fon and found Advice. Hence, altho'che Coun- ſembly, and to diſſolve it (I): as likewiſe to
3. p. 133, 133. Ed.
(a) Vid. C. L. 1. ti 19. 1. 1. De Precib. Imperat. offerend. 9111 (6) Vid. L. 10. t. 12. 1. 1. C. De Petit. Bonor. ſublat.
Bodin. de Republ. 1. 3. c. 4. p. 455. Gramond. Hift. Gall. I. 5. p. 277. &c. Joh. Labardæ, Hift. Gall. I.
Pariſ. 167.
(c) Add 1 Kings XII. 7, 8. Martinius in his Hiſtory of China (1. 5. c. 37. p. 122.) relates, that the better fort of
of better
Princes amongſt that people, made it a Cuſtom, when they were admoniſh'd by Perſons celebrated for Wiſdom and
Goodneſs, of hunning Vice, or of purſuing Vertue, or of any Affair relating to the Publick Welfare, to receive the
Advice with bended Knee. Add 1.6.c. 1. p. 20, (d) See Grot. 1. 1, c. 3. f. 10. or
(e) Leviathan, c. 22.
(1) 'Tis worth the while to explain that point a little. Let us hear Mr. Sidney upon it : The Power of calling and
diſſolving Parliaments, is not simply in Kings. They may call Parliaments
, if there be occaſion, at times when the
Law does not exact it. They are placed as Sentinels, and ought diligently to obſerve the Motions of the Enemy:
and give notice of his Approach : But if the Sentinel falls alleep, neglects his Duty, or maliciouſly endeavours to be-
tray the City; thoſe who are concern’d may make uſe of all other means to know their Danger, and to preſerve them-
« felves.
The Confuls, or other Chief Magiftrates in Rome had certainly a right of aſſembling and diſmiſſing
the Senate : But when Hannibal was at the Gates, or any other eminent danger threatned them with Deſtruction ; if
that Magiſtrate had been drunk, mad, or gain’d by the Enemy, no wiſe. Man can think that Formalities were to
have been obſerv’d. In ſuch Cafes every Man is a Magiftrate ; and he who beft knows the danger, and the means of
preventing it, has a right of calling the Senate or People to an Aſſembly. The People would, and certainly ought
to follow him, as they did Brutus and Valerius againſt Tarquin, or Horatius and Valerius againſt the Decemviri ;
whoever ſhould do otherwiſe, might for Sottiſhneſs be compar'd to the Courtiers of the two laft Kings of spain.
• The firſt of theſe by name Philip the Third, being indiſpos’d in cold weather, a Braziero of Coals was brought into
• his Chamber, and plac'd fo near to him, that he was cruelly ſcorchid. A Nobleman then preſent ſaid to one who
• ſtood by him, the King burns; the other anſwer'd it was true, but the Page whoſe Office it was to bring and remova
• the Braziero was not there, and before he could be found, His Majeſty's Legs and Face were to burnt, that it caus d
an Eryſipilas of which he died.
Philip the Fourth eſcap'd no better,who being ſurpriz'd as he was a Hunting by a violent
“ found who carried his own, that he took a Cold, which caft him into a dangerous Fever. If Kings
like the Cona
ſequences of ſuch a Regularity, they may cauſe it to be obſerv'd in their own Families; but Nations looking in the
• first place to their own Safety, would be guilty of the moſt extreme Stupidity, if they thould ſuffer themſelves to be
óruin'd for adhering to ſuch Ceremonies The Law for annual Parliaments exprefly declares it not to be in the
* King's Power as to the point of their meeting, nor conſequently their continuance : For they meet to no
6
purpoſe, if
propoſe
2

Chap. VỊ.
531
Belonging to Sovereignty.
propoſe the Matters which are to be debated in done, the King hath it in his own Power to
ir; unleſs we would
give him the Name only correa, by Wiſdom and Art, thoſe dangerous
and Shadow of a King, or would throw the Eſtabliſhments. And the ſame Rule will hold,
Commonwealth into an irregular Shape! And with regard to the ſtanding Laws ; which are
altho' it be granted, that the Eſtates aſſembled now and then enjoin'd Silence, by the Supreme
may, of their own accord, lay before the King Law, the Safety of the People. Thus Agefilaus
Conſiderations relating to the publick Safety, commanded the Laws to Sleep one Day; that thoſe
yer the Decrees which they form on ſuch heads, who had Aed in the Battle of Leuctra, might have
hall derive their Force from the Royal Aſſent Leave to return, without the uſual Penalty and
and Ratification. The Difference between ſuch Diſgrace. In the fame manner, the ordinary
a Body of Repreſentatives, and Counſellors pro- Courſe of Judicial Proceedings is often hindred,
perly ſo call’d, is this, that although, in their either by the Neceflity of the Times, or by the
Applications to the Sovereign, they both a& in Condition of the Parties offending; who per-
the ſame manner by Reaſons and Advice; yet haps, were they to be formally Arraign'd, muſt
the Sovereign may reject the Reaſons of the firſt be vanquiſh'd as Enemies, before they can
latter, but not of the former. Nor ought the be Try'd as Criminals. Therefore Mr. Hobbes's
Prince to think it hard, if the Eſtates do ſome Poſition will not ſtand, without ſome Grains of
times deriy their Concurrence to what he offers. Allowance, when he aſſerts (a), That the Evil
For he hath engaged himſelf by his Promiſe, to infli&ted by Publick Condemnation, is not to be styl'd
have always an Eye and Regard to the common by the Name of Puniſhment, but of an Hoſtile A&t. He
Welfare, which in all Probability, muſt be bet. ſpeaks Truth, in caſe there was no precedenc
ter underſtood, and more ſurely conſulted by a Crime': but when the Offence is evidently
Number of ſelect Judges, than by a ſingle Man. proved, the Evil inficted will be truly and pro-
The Prince, therefore, in caſe his Eftates ſhould perly a Puniſhment, tho' the preſent pofture of
thus happen to diffent from his Opinion, muft Affairs hinder the Offender from being Con-
attribute the Misfortune to his own Inadvertency demn’d in the Common Method of Juſtice.
or Paffions, or to the ill Fate of the Kingdom. XIII. But Mr. Hobbes ſeems inclin'd to allow
'Tis an idlé Fear which poſſeffech ſome Men, no Diſtinction between Supreme and Abſolute
thac by this means we ſhall put it in the Power Power ; or rather to make all Power Abſolute,
of the Eſtates to preſerve, or to deſtroy the Com- that is, Supreme. To whoſe Notions this gene-
monwealth, as they think fit. For 'tis ridiculous ral Remark may be applied, that what he ſo
to ſuppoſe ſo much Imprudence, either in the crudely delivers, ſhould be limited with this
King, as that he ſhall be unable to repreſent to Condition, Só far as the End of Civil Government
the Aſſembly the real Neceſſities of the King- will admit : As, for Inſtance, when he ſays, that
dom; or in the Aſſembly, as that, when they He, to whom the Right of Puniſhing belongs in a Com-
ſee the Buſineſs thus clearly laid before them, monwealth may juftly compel all Men to all things that
they ſhall obſtinately betray their own Security be pleaſeth (b). And indeed he himſelf inſerts
But this is certain, fince the Perſon who firſt this Reſtriction; for he tells us, that by all
things,
inveſted the Prince with a Limited Sovereignty, he means, all things that are neceſſary to the Common
cannot be preſumed to have been deſirous, ei- Peace and Security (e). And ſo again, he obſerves,
ther of overturning and deſtroying the Govern- that There is connected with the Right of the Sovereign,
ment, or of hindring, by their Axts and Cove- ſo much Obedience in the Subject, as the Government
nants, the true End of Civil Communities from of a State neceſſarily requires. By the ſame Rule
being obtain'd; it may hence be gather'd, that therefore, when he affirms (d), that He, who hath
thefe original Covenants and Agreements are in ſuch a manner ſubjected bis Will to the Will of a
always ſo to be interpreted, as that they may Prince, as that the Princc may, without Reſtraint, do
confift with the publick Safety, and on no aca what he liſts ; make Laws, judge Cauſes, infliet pun
count contradi& and oppoſe it: And, confe- niſhment, uſe the Strength and Riches of the People at
quently, that the Perfons thus Covenanting, bis Pleaſure, and all this by Right; bath certainly
muſt be fuppofed to have done all, with this granted the higheſt Power of Sovereignty that can be
Reſerve in their Mind, that the Terms and Con- giden: we are to conſider, with what Purpoſe
ditions, which they now fercled, ſhould not, in and Intention Men firſt applied their Minds to
the leaſt, prejudice the General Intereſt or Secu- the conſtituting of Civil States : And then we
rity, or cauſe a Convulfion or a Diffolution in ſhall ſuppoſe no Perſon to have voluntarily
the Commonwealth. If then, ſuch a Caſe ſhould transferr'd on the Prince any farther Degree of
happen, that the Covenants firſt entred upon by Power, than appears conducive to that End, in
the People, ſhould afterwards, in any Inſtance, the Judgment of any Wiſe Man: cho' to deter-
appear prejudicial or deſtructive to the publick mine what is thus conducive according to parti-
Welfare, it will be convenient, if the Matters cular Circumſtances and Occaſions, doch not
Thall admit of Delay, to propoſe them in an Al- belong to thoſe who transfer their right, but to
ſembly of Eſtates. When this cannot well be Him, on whom it is transferr’d. The Sovereign
they may not continue to do the Work for which they meet; and it were abſurd to give them a Power of meeting,
if they muſt not continue till it be done : For as Grotius ſays, Qui dat finem, dat media ad finem neceſſaria, the only
reaſon why Parliaments do meet, is to promote the publick Good; and they by Law ought to meet for that end.
They ought not therefore to be diſmiſs'd, till it be accompliſh'd. Mr. Sidney's Diſcourſe upon Government, Chap. 3.
Se&. 38. See the reſt of the Chapter.
(a) Leviath. c. 28.
(6) De Cive, .. 6. f. 6.
(C) C.S.S. 6. Ego f. 9. in fin. (d) Ibid. c.
therefore
6.A 13.

532
Of the Affections or Properties
Book VII,
all him
only grant to Another the Uſe of their Powers as thoſe who are molt zums be revers’d by any o-
Tho' the continue hi to go
therefore hath a Right of compelling the Subjects bid them turn their Swords againſt each other.
to all ſuch things as he judgeth to be of any on the whole he is a prudent Prince, who tho:
intruſted with an Abſolute Sovereignty, yet in
Conſequence to the publick Good. But to con-
ftrain them to that which is inconſiſtent with the fome Inſtances waves his own particular Advan.
Safety of the Commonwealth, or with the Laws age, when he finds the Subjects are not to be
of Nature, is what he ought not to entertain, brought to a compliance, without endangering
even in Thought and Inclination. And if he the publick Welfare. But they are no less
ſhould engage in any ſuch Attempt
, no doubt prudenc People, who well knowing what things
he tranſgrefleth the proper Bounds of his Autho- would be inexpedient to their Conftitution,
rity
have, by means of Fundamental Laws, put it
It may not be amiſs, if we here examine the out of the Power of Princes to conſtrain them
Arguments alledg'd by the ſame Author (a), by in thoſe Inſtances.
which he endeavours to make out, that it would
XIV. Laſtly, It is incident to the Supreme
be a vain Deſign to introduce a Limited Sove- Power, that it may be enjoy’d, either fully, or
reignty. For, in this Caſe, ſayshe, The Affem- under more or leſs Degrees of Diminution : and
bly,which preſcribed Laws to the fucure Prince, this chiefly belongs to Monarchical Government.
had certainly an Abſolute Power, at leaſt actu. For ſome Kings poſſeſs their Realm in the way
ally or virtually. If then, the Aſſembly conti- of Patrimony, others in the way of Uſe only
,
nues; or; proroguing it ſelf from time to time, not of Property; and this is either for the Term
meets again at a fixt Day and at a certain of their own Life, or with the Power of trant-
Place ; this Abſolute Power remains ever as it mitting it to their Poſterity under certain (b)
was first ſeated; and ſo the Prince will not Conditions: and others are commiſſion'd to hold
have the Supreme Authority, but will be a bare their Sovereignty, only for ſuch a fix'd period of
Magiſtrate. (And thus much we grant, if the Time, which being once elapſed, their Power
Aſſembly thus neers by its own Right, and hath paſſech away with it, and they return to the
the Power of determining all kinds of publick Condition of private Men. Indeed Mr. Hobbes
Buſineſs, and of calling the King himſelf to an () will have thoſe Monarchs likewiſe to be
account:) . But if the Aſſembly diffolves it felf, callid Temporary, who receive their Power for
. unleſs the State be diffolvd with it, there muſt life, and affirms them to be properly no Mo-
be left ſomewhere a Power of puniſhing thoſe narchs, but only the Miniſters (d) of the Peo-
who tranſgreſs the Law; which cannot be done ple. But it is contrary to the Common Cuſtom
as utterly falſe ; and we have no better Opinion doth not lay down his Dignity, but with his
of the Reaſon, on which he builds it : 'A Prince Life; this Term being properly applied to thoſe,
(ſays he) who hath ſo much Strength granted whole Authority expires at ſuch a certain and
* him in a rightful manner, as to enable him to definite point of Time, not by Chance, but by
puniſh any Subject whatſoever ; enjoys the great- Right.
eft Power that a People can give. For the Weak. XV. But Learned Men are not agreed to ac-
neſs of this Argument will eaſily be diſcover'd knowledge any ſuch Thing, as a Temporary
by any one, who reflects on the Deſign of Civil Monarch. Grotius (e) will have the Dictator,
Eſtabliſhments, and conſiders, that by ſubmit- amongſt the Romans, whoſe Power lafted but fix
ting their Will, and their Strength, Men do not Months, to have been truly a Monarch: Becauſe
turn themſelves into meer Engines, to move no (ſays he) »bilt this period laſted, he exercis'd all the
otherwiſe than as they are drawn ; but that they Acts of the Supreme Authority, with the ſame Right
,
.
under a Condition ; ſo as that they themſelves Princes ; neither could his
are to judge whether this Condition be made ther Power
. But we underſtand the Nature of Moral
good, and if it be not, are at Liberty to retract Things by their Operations, and conſequently thoſe
what they gave. Alike abſurd is it to pretend, Powers, which produce the Same Effects, ought to go
, doth (
vernment (1). He who hath Strength enough yet there is no doubt to be made, but that a
to defend his people, (as all Wiſe Subjects muſt Temporary Command is in Dignity much in-
allow their Prince) hath not always Strength ferior to one Perpetual ; ſince Men are wont to
enough to Oppreſs or to Deſtroy them. The reſpect t
reſpect thoſe with a much more ſolid Venera-
Commands of a General may work with good tion, whom they apprehend to be incapable of
Force upon his Soldiers, when he orders, them recurning to a private Condition, than thoſe
vigorouſly to attack the Enemy: and yet they whom, in a little time, they are again like to
would be found very inſignificanr, ſhould he ſee on the fame Level with themſelves. But
rigid nied Telest on do prold Aucoindom
119 nou al di fronw no ailed llew 100. eida W 2916) lo uldmok
(a) De Cive, c. 6.
c. 6. f. 17.
V. Hobbes, c: 6.-5.-13. tbid. Annotat. not excepting the Clauſe -by-.which it is ftipulated that the Prince ſhall
be of ſuch a Religion. See Mr. Hertius's Differtation de Superioritate Territoriali ; which makes part of the ſecond
Tome of his Commentationes věE Opuſcula, &e. Se&t. 13. p. 217, Seilas alſo La Reponſe aux Questions d'un provinciah,
by Mr. Bazle, Tom. I. p. 135, &e. Mr. Barbegråt's Note upon this Se&ion, p.308 in (a) De Cive, ubi fupra
,
excellent Diſſertation, entiruled Fuviſprudentia Hiftorica Specimen, among his Selecta F. Natur.) Provided that the Nature
ori a thing has so close a Connexion with the Continuance, that the change of the one necesſarily takes away the other. Seth
4. Sce his 430 Scētion to the 48th. Mri Barbèyrac's fir& Note upon this Sc&tion, p. 308.
C
c. 7. f. 16.
indeed,

Chap. VỊ.
533
Belonging to Sovereignty.
indeed, Bodinus (a) before Grotius, and many But it is by many Men thought impoffible to
good Authors ſince him, have ſhown, that the give an Inſtance of Temporary Sovereignty, if
Þidator was by no means a Monarch, but only we ſpeak of ſuch Power as is properly Supreme,
an Extraordinary Magiſtrate. Nor doth chat and not conferr’d by Deputation. For what we
Axiom ſtand on very lure Ground, Thoſe are the read of Auguſtus (e), that he would ſuffer his
Same Powers wbich produce the fame Effects : for it Empire to be granted him only for ten Years,
muſt be farther conſider'd, whether the Perſon and upon the expiring of that Term, renewed it
exerciſeth this Power as properly his own, or as again for ten Years more ; was a meer Jeſt and
delegated to him by Orhers
, to uſe in their itead. a popular Cheat. Nabarzanes, in Q. Curtius (f),
On which account, it is a Miſtake likewiſe in hid the vileft Treachery, under the ſame ſpecious
Grotius (b), to rank thoſe Perſons in the Claſs of Propoſal: Put Your Government (ſays he to Darius)
Temporary Monarchs, Who, during the Minority into the Hands of Another, who ſhall bear the Name of
of Kings
, or in the time of their Captivity, or Lunacy, a King, Prill ſuch a time as be ſhall have driven the
are appointed Protectors : in as much as they are neither Enemy out of Afia; and when bis Victory bath ſecured
ſubject to the People, nor is their power revocable
, bem the Kingdom, let him reſtore it to its proper Maſter.
fore the time fix'd by Law : For theſe Governors Let Beflus enjoy the Sovereign Command, during this
exerciſe the Supreme Authority, not in their Functure; and when things are ſettled, let him deliver
owa Name, but in Another's ; and therefore can to You, the lawful Prince, that Power which he receiv'd
no more be term’d Monarchs, than we call a only in Truft (g). In Nicephorus (b) we find Mi-
Guardian the Proprietor of the Goods of his Ward. chael Palæologus obliged by Oath to adminifter the
And then no Man who is vers’d in the Roman Government, 'till the lawful Heir and Succeffor
Hiſtory, will allow that the Di&ator had all, fhould be grown up, and then to resign freely to
and each preciſe part (1) of the Sovereignty ſo him the Throne and all the Enſigns of Majefty.
committed to him together, as that during the Tho' indeed his Oath was never kept. As for
fix Months Space he might exerciſe it as he the Compact between Etéocles and Polynices, that
pleas'd. And as for what is urged, that His Acts they ſhould reign each a Year by Turns, this
could not be revers’d by any other Power ; it is not ab- Inſtance may eaſily be anſwered, by ſaying, that
furd to ſuppoſe a Magiſtrate ſo Commiſſion'd and it was contrived only as an Expedient to keep
Impower'd, that, at leaſt, in ſome certain Affairs, the Kingdom undivided; each Brother thus pofa
there ſhall lie no Appeal from his Sentence ; and ſeſſing the entire Command; tho’in an alternate
yet he ſhall be no more than a Magiſtrate (c). Courſe (i).
It is worth obſerving on this Head, that the XVI. As for that way of poſſeſſing Kingdoms,
Power of the Didators, and of all other Magi: by which they are ſaid to be in the Patrimony of
ftrates appointed for a certain time, doth at that the Prince, we are firſt of all to obſerve, that a
very Inſtant expire, and the Perſons do, by Man's Patrimony is not ſtrictly ſpeaking ſo much
Right, return to a private Station : And that what he derives by Inheritance from his Parents;
therefore, whatever they do, after this preciſe as what he enjoys with full Property or Do-
point of Time, is look'd on as a private Act, to minion, by whatever Means it came into his
which any Man may refuſe Obedience (2); tho', Hands. Hence, as Property is chiefly applied to
perhaps they ſtill bear the External Enſigns of Things ; ſo they too are eſpecially termd Patri.
Power. Hence to abrogare the Command of monial ; in as much as they have no inherent
ſuch Repreſentatives, there is no need of a new Right, which might hinder the Poffeffor, either
Decree of the People ; but, if they refuſe to re- from employing, or from abuſing them at his
fign, the old Decree is ſufficient to be immediate. Pleaſure. Afterwards Slaves came to be added
ly put in Execution againſt them. For thoſe to the Things or Goods, which compoſed the
Rights
, the Validity of which depends on a cer- Patrimony of their Lords; who challeng'd lo
tain ſpace of time as on a neceffary Condition, abſolute a Right and Title over them, as to make
do ceaſe with the elapſed Time, without far- the Servant not at all concern'd in his own Safety
ther Proceſs: But in Controverſies about Rights, or Deſtruction, affirming the one and the other
when the Quality of certain Adions is to be to be entirely the Maſter's Advantage and the
proved, there is need of long Debate, and of a Maſter's Lols
. And within theſe Bounds did the
formal Sentence. The reaſon of which Diffe- Fathers of Families confine Patrimonies in the
rence is this ; there can be no Diſpute whether early Times. For as to the Right of governing
ſuch a point of Time is paſs'd ; but whether an their wives and Children, tho this indeed be
Adion was good or bad, may be argued with long’d to them, and to them alone ; yer in as
Probability on both ſides (d).
much as theſe near Relations were Perſons con:
re
fore
(a) De Republ. l. 1. c. 8.
(6) Ibid.
(1) See Rofin. Antiq. Rom. L. 74. 17. (C) Such were hereto-
among
the Romans, the Præfe&ti pretorio ; upon which fee a Refcript of Conftantine : A prafeftis autem pretorio
provocare non finimus. Cod. Lib. VII. Tit. XLII. de Appellat. & Conſult. Leg. XIX. ſee alſo Tit
. XLII. de Sententiis
prafet. prator. & Digeft. Lib. IV. Tit. IV. de Minoribus, Leg: XVII, XVIII. The Biſhops, who never fail'd to take
the Advantage of the Indulgence of Princes to ſatisfie their own Ambition, obtain' that Privilege of the Em-
perors Arcadius, Honorius, and Theodorus, with reſpeết to the Cauſes that were determin’d by them. Epiſcopale judicium
ratum fit in omnibus, qui ſe audiri a facerdotibus elegerint; eamque illorum adbibendam effe reverentiam jubemus, quam
veftris deferre neceſe eft poteftatibus, a quibus non licet provocare. Cod. Lib 1. Tit. IV. de Epiſcopali Audientia, &c. Leg.
VIII
. fec Genes. XLI. 40, 44. Mr. Barbeyrac's third Note upon this Se&ion, p. 308. Add. Livy, 1. VI. c. 38. 1. vui.
6. 33. 1. XXII. 6. 25. Valer. Max. l. 2. 6. 7. 8. 8. in fin.
(2) See Sidney upon Government, c. 2 f. 24.
(d) Vid. Livy, l. III. c. 38, &c.
(e) Dio. I. 53. (f) L. V.c. 9.
(6) What we mcer
with in Diod. Sic. (1. IV.6.23,
Ego 33.) may be produced with a better Colour, for an Inſtance of a Kingdom in Truft
.
(i) Vid. Euripid. in Phænifs. Statius Theb. l. I.
Rrr
fiderable
(b) L. IV.
534
Of the Affe&tions or Properties
Book VII.

ſiderable on their own account, they did not pre- any Perſon whom he ſhall chooſe; and confe.
tend to puc them amongſt their poſſeſſions, or to quently may appoint any Method of Succellion
reckon them part of their Wealth and Eftate (a). that ſhall be agreeable to his Judgment of Incli
Nor are Men wont to let down their Learning nation.
and their skill in the Liſt of their Fortunes, how XVII. But where the King receives his Crown
ever advantageous to them (b): tho' many a from the Grant of the People, there each Perfon
Perſon, by theſe
Accompliſhments, ſupplies the thus concurring is ſuppoſed to have reſerv'd
want of real Poſſeſſions, and comes under that and ſecured to himſelf ſo much of his former
Character in Ovid (c);
Rights and Privileges, as is conſiſtent with the
Ars illi ſua cenſus erat.
Nature of a Civil State. And therefore, the
Condition of the Subjects, under ſuch a Confti.
His Art was his Eftate.
tution, rather depends on their own Choice, than
But when the Ambition of Princes began to on the Prince's Pleaſure. Yet they could not
rank, amongſt the chief Goods, a Power and but find it neceſſary, to abridge themſelves of
Command over other Men; and many of them their Natural Liberty in ſuch a Degree, as the
brought it into a Cuſtom to maintain their own Form of Government required which they are
Pleaſures and Vices at the Subject's Coft; thoſe now about to introduce. Farther, ſince in con-
Kingdoms came to be look'd on as Patrimonies, ferring Sovereignty by a voluntary AA, Men
which the Sovereign had receiv'd a Power of are uſually prevail'd upon, by the Conſideration
alienating, as he ſhould think fit : this being of ſome peculiar Merit or Advantage in the Per.
eſteemid the utmoſt Force of Property, and the ſon, and therefore would not perhaps fubmit to
very Eſſence, in which a real Poffeffion did the Authority of Another, as they are willing to
conliſt (1). Whereas other Monarchs, who had yield to his; it follows, that according to the
not obtain's ſo vaſt a Privilege, and ſo unbounded regular Courſe, the People are to determine on
a Power over their Realms, were ſaid to hold whom the Crown ſhall devolve, after the Deceaſe
them in the manner of Perſonal Poſſeſſions, of the King now elected. And here, if the Peo-
and rather to have the Uſe of them than the Pro- ple ſhould not think it proper to conſtitute every
perty. Which Diſtinction ſeems to have taken its new King by a particular Election, it ſhall be in
Riſe from the different ways of acquiring Go. their power to ſettle the Method of Succeffion;
vernment, eſpecially Monarchical. For altho' and the Prince's Nomination ſhall, in this point,
no Prince can be lawfully Conſtituted, without by no means hold good againſt their Aa. Upon
the Conſent of the Subjects, yet there are diffe- this account chiexy it is, that many Authors
rent manners of exerting and applying this Con- have affirm'd theſe Monarchs to hold their Realms
fent. So that, in fome Caſes, the King confers jure uſufructuario, by the Right of Uſe and Profit ;
a Benefit on the People, in taking them under as we have already hinted : in as much as by their
his Sovereignty : in others, the King is highly own Pleaſure, and without the Conſent of the
obliged and indebted to the People, for advan- People, they can ſettle nothing, either in regard
cing him to the Throne. Thoſe who have to the inward Frame and Conſtitution of the
given a Prince juſt Cauſe of proceeding to Ho- State, or to the alienating and transferring it
Itility againſt them, in caſe they loſe the Day, on any Perſon (e) (2). We are by no means
may by the Right of War, be deprived of all for extending the Compariſon farther between
their poſſeſſions, and of their perfonal Liberty Princes, conſtituted by the free Grant of the
itſelf. Therefore, if Men under theſe Circum- People, and thoſe Perſons whom the Civil Law
ftances are admitted to any Terms or Conditions, terms Uſufructuarii
, Poffeffors of things with a
they are to acknowledge it as the pure Favour Title only to the Uſe. And therefore we utterly
and Mercy of the Conquerour : who, tho' he diſike the Aſſertion of Mr. Hobbes, which we
leaves them to enjoy their Life and perſonal Li- meet with in his Book De Cive (f); if, ſays he,
berty, and their private Eſtates; yet is ſuppoſed the People, e'er they departed from the Election of *
to challenge the Sovereignty over them in the Temporary Monarch, (that is, in his Notion, a Prince
fulleſt and moſt irrevocable manner for himſelf who receives the Government for Life,) made a
and his Poſterity. The ſame Claim is preſumed Decree to meet again at a certain Time and Place after
to be made by a Prince, who receives a People bis Death; then, so soon as be ſhall bappen to deceaſe
,
into his Prote&tion, when they had otherwiſe the Sovereignty returns in full to the People; not by any
been inevitably ruin'd (d). Now the Effect re new A&t of theirs ; but by the Right which they before
ſulting from a Sovereignty thus obtain'd, is enjoy'd. For during that whole Interval, the Supreme
chiefly ſeen in this, that
not only the Condition Dominion was in the People, as to the Property, and
of the Subjects depends entirely on the Pleaſure only as to the Uſe and Exerciſe, in that Temporary Me
of the Prince ; but that the Prince may transfer narck. This Notion, if taken in the groſs Senſe
his ( 2 ) Right of governing fuch a Realm, on in which it is deliver'd, we cannot but look upon
(c) Metam,
2godio
(a ) Vid. L. yo t.17.1. 126. f. 1. D. De diyerf. Reg. Jur. & ibi Jac. Godofred. & L. 9.6. 2. 1. 33. D. ad L. Aquili
b) Philo Jud. De. Plantatione Noc, p. 224. C. Ed. Parit. The Painter reckons bis Art, and every Mechanick
the Myftery
of his Calling, a kind of Inheritance or Fortune
to him not as an Earthly Poffeſion, but as a free Reward. For thefe Ad-
vantages, tho' they do not fall under Property, yet are bighly Beneficial to the Perſons who enjoy them.
1. 3. v. 588.
(d) 'Twas thus among the Jesus, that the King choſe which of his Sons he pleas'd, to be his Succeffor. See
1 Kin. I. 35. 2 Chron. XI. 20, 22. with Mr. Le Clerc's Notes thereupon. The reaſons urged againf Patrimonial
Kingdoms by Franc. Hottomann. Quaft
. Illuftr. 1. are anſwered by Grotius, 1. 1. c. 3. f. 12.
t. 1. 7. 13. f. ult ſi 15.8. 1. D. De Uſufru&t. & L. 3. t. 33. 1. 9. Co (2) V. Grot. ubi fupra, f. 13.
f.
9,
Erc.
(e) Comp. L, 7,
(f) c.
VII. f. 16.
as

Chap. VII.
en Belonging to Savereignty. O 535
as highly dangerous and prejudicial to all thoſe yield a moft ftrict Obedience to the Prince, and
Limited Princes, who are ordain'd by the volun- be far from invading any part of the Sovereignty,
tary Donation of the People, and bourid up to or from thinking of a Succeffor, or of a new
certain fundamental Laws. And the rather, Form of Government, during the Life of their
becaule, ſince he hath taken the Liberty to call a preſent Maſter. And ythen, beſides, tista very
King for Life a Temporary Monarch, others may weak Conſequence to ſay, that becauſe an Elé-
with as much reaſon extend the Name to thoſe dive Prince cannot appoint a Succeffor at his
who receive the Sovereignty, with the Privilege pleaſure, therefore he hath the Uſe only, and not
of tranſmitting it by Inheritance, yet ſo as to the Property of the ſupreme Command, and is no
keep it within their own Line and Family. Be- more than the Miniſter of a Power which refides
fides, ſince Mr. Hobbes hath not determind how in others. For all the Power which, in this caſe,
far he would ſtretch the Parallel which he uſeth, continues in others, is, that upon the Deceaſe of
he may eafily be intangled in a Train of very the Prince, the Liberty of conſulting their own
pernicious Conſequences. For ſince Property Security, and of governing their Adions by their
conſider'd in it felf, is a much more noble Right, own Judgment, Thall return to them. But for
than that of Temporary Uſe; ſome Men may, the maintaining of this Power, 'tis by no means
on theſe Principles, conclude that the People are neceſſary fo to break and divide the Sovereign-
Superior to the Prince, and have a Power of ty, as to ſay that the xrñois, the Property or real
bringing him to Correction, in caſe he doth not Poffeffion reſides in the People, and the gaño es
govern according to their Pleaſure and Humour. only, or the Uſe, in the Prince. Since even in the
On the like Score we ought to reject what the Caſe of an Abſolute Lord or Governor, when he
fame Author lays down in his Leviathan (a), that is extinct, the Perſon who was under his Domi-
Ele&tive Kings bave not the Supreme Power; that, nion falls again into the Liberty which Nature
They, who bave the Privilege of appointing a Succellor gave him, and the Force of which ſeems now to
after the Death of the preſent King, do really hold the revive in him. Thus who for inſtance will
Sovereignty even in bis Life time : ſince none have Right pretend, that a Father hath only the ggãoss of pa-
to give that which they have no Right to polers
. For ternal Authority, becauſe upon his Death, the
as to the Power of a Sovereign over his Subjects, Children are at their own Diſpoſal ? Or that a
it matters little what Proviſion is ſettled, or what Maſter hath only the geñois of the Deſpotical
Method agreed on, in caſe of an Interregnum. Power, becauſe in cafe he die without Heirs,
And even when this point is ſtated and deter. the Slave recovers his Liberty?
minu'd by Law, the Subjects may nevertheleſs
(a) C. 19.
CHA P. VII,
Of the Ways of acquiring Sovereignty, eſpecially Monarchical.
I.
II.
III.
IV.
V.
The way of acquiring Sovereignty in De-X.
mocratical States is uniform.
In Ariſtocracies and Monarchies various. XI.
How far Government may be ſeiz'd on by
juft Force.
XII.
How far by unjuſt Force.
How a Perſon may be releas’d from the Go-
vernment of Another.
XIII.
Election, of how many kinds.
XIV.
Inter-regnum, what.
XV.
And Inter-reges.
Hobbes examin'd.
The Caſe of Pofthumous Iſſue in the He-
reditary Line.
Of Succeſſion in a Patrimonial King.
dom.
Of the same in Kingdoms eſtabliſh'd by the
free A&t of the People : and this either
Simply Hereditary.
Or Lineal.
Or Tranſverſe.
Of the Judge of Controverſies ariſing in
the Caſe
of Succeffion.
VI.
VIL.
VIII.
IX.
Ꮪ
INCE in examining how Sovereignty is ac. and the governd Parties are the ſame, 'tis abſurd
quired, it muſt (regularly) be ſuppoſed to ſay, that the People have obtain's the chief
before hand, that the perſon who acquires it, is Command by a violent Courſe; or that the Peo-
different from thoſe over whom he acquires it ; ple have, by ſuch Force as properly belongs to
dis manifeſt that the Queſtion before as is Subje&s, ereded a Sovereignty over themſelves.
but little concern'd with Democracies ; under In Democracies, therefore (contrary to what
which thoſe who command, and thoſe whoobey, we ſee in Monarchies,) the way of holding So
are diſtinguiſh'd by a Moral reſpect only, and vereignty is ever one and the fame. Yet theſe,
not a Phyſical. And though this Form of po- as well as other States, may ſometimes owe their
pular Government is ſometimes ſet up, upon the Increaſe and Improvement to the Force of Arms,
Expulſion of a King, or of the ruling Members tho' never properly their Originals
in an Ariſtocracy; yet fince ſtill the governing
Ref 2
IL. In

536
Of the Ways of acquiring Sovereignty,
Book VII
.
For where can we
Acquiſition moft viſibly diſcloſeth it ſelf. For inutual Ties, the State of War continues; and
and a refuſal to give him that juft Satisfaction which was due to him, have expos'd themſelves by ſo doing to the For
II. In Ariſtocracies there appears ſome Diffe- have been better omitted.
rence, with regard to the manner of obtaining find a man who will thus utterly wave and ab-
the Sovereign Power. Not only becauſe, in dicate his Freedom? He may perhaps think it
ſome places, this Form of Government was in convenient always to be under fome Maſter
troduced by the voluntary Ad of the People, but he will likewiſe claim it as his Privilege to
and in others by Violence; but likewiſe becauſe, chuſe one Service rather than another. Such
upon the Deceaſe of any Member in theſe ru- Occupancy then, is a proper Means for the ob-
ling Councils, the vacant Seat is fill'd up in taining of Sovereignty as pre-ſuppoſeth a juft
fome Places by. Ele&ion; and in ſome again, Cauſe of the Invaſion (3), and is confirm’d by
Birth and Inheritance give a Title to the Ho- the Conſent of the Subject, and by fubfequenc
nour. But in Monarchies, this Difference of Articles and Covenants (d). For without there
tho all Princes in order to legal Eſtabliſhment there can be no Fidelity or Obligation, and
of their Authority have need of the People's Con. therefore no true Authority or Command. On
ſent, yet this Conſent is obtain'd ſeveral ways; which Score Hornius (e) ought to fall under
and even when the Sovereignty is confer'd by Cenſure when he aſſerts, That he who fubdues anom
the free Motion and Grant of the People, there ther, upon precedent Injuries and juſt Provocation,
is ſtill this Diſtinction, that ſome Princes are ad. immediately obtains a lawful Dominion over the con
vanced to the Crown by Ele&ion, others by quer'd Party, and needs not to wait for his Conſent
.
Succeffion (1).
For how is it poſſible to deſcend from the Con-
III. The way of acquiring Sovereignty by dition of War to that of Peace, without ſome
Violence is uſually term’d Occupatio
, or. Seiſure intervening Compaa ? Or how can Allegiance
(2): which yet we muſt obſerve to be different be owed to him, who hath not purchasd and
from that by which we lay hold on things that receiv'd it by ſome certain Terms of Agreemeni?
want a Proprietor, and thus make them ourown. All the Advantage which the Conqueror in a juft
For ſince, in things of this kind, there is no in War gains in this reſpect is, that he lies under
herent Right, which might cauſe them to be- no Neceflity of careſſing thoſe whom he hath
long rather to one Man than to another, (ex- ſubdued, and of winning their conſent by Flat-
cepring the Determination of Civil Laws,) teries or Intreaties, but may extort it by denoun-
hence to obtain the Property of them, there is cing the ſevereſt Evils. And therefore Hornins's
no need of a particular Title, but it is ſufficient Argument comes to pothing, when he ſays (f),
barely to lay our Hands upon them, with a De. That if the Conſent of the Conquer'd were, in this
fire of poſfelling them. But ſince every Man is Cafe, neceſſary, a lawful Conqueror could never gain
by Nature equal to every Man, and conſequent- Dominion by Occupancy: in as much as the Occupancy
ly not ſubject to the Dominion of others, there- would be of no force pould this Conſent of the Conquer'a
fore this bare feiſing by Force, is not enough to be with-beld. For ſince ſuch Occupancy ſuppoſech
found a lawful Sovereignty over Men, but muſt the Victor to be ſuperior in Strength to the van-
be attended with ſome other Title. When Grotius quiſh’d, and therefore able to ſer before them any
(a) therefore tells us, That of Things which properly Pains or Puniſhments ; it cannot buc have fo
belong to no Body, two are capable of Seiſure, Sove- much Effect, as to hinder them from with-holding
reignty and Property; we muſt not underſtand the their Compliance. Becauſe, as there is no Man,
word Sovereignty in the ſtrict Senſe, for ſuch as is who would not rather conquer than be conquerid,
exercis'd over Men; but for a Sovereignty over ſo every wiſe Man, when he finds himſelf wor-
Lands, the Effe As and Vertue of which amounts ſted, will be glad to come off as cheap as he can;
to this ; That no Perlon ought to fix in ſuch a and will by no means think himſelf prejudiced
Lordſhip, or Diſtria of ours, againſt our Con- in yielding a Conſent to the Victor's Sway (4),
ſent, or unleſs he will yield himſelf a Subject to when without this he muſt have inevitably
us. For Men cannot be ſaid to belong to no Body ; periſh’d.
he is his own Man, who is not Anothers (b). And on IV. But what ſhall we ſay in caſe the Dominion
this account the ſame Author (c) truly remarks, be ſeiſed by unjuſt Force? As to this Queſtion, it is
That in Cafea Perſon dyes without Heirs, his Servants firſt acknowledg'd on all Hands, that a popular
regain their Freedom, and bis Şubječts are left to their State, or the Majority in ſuch a State, may for
own Judgment and Diſpoſal ; inaſmuch as neither the avoiding any grievous Evil, (whatever be the
of theſe fall under the Right of Seiſure. But as occaſion which threatneth it) relinquiſh their
for the Limitation which he adds, unleſs they wou preſent Liberty, and put themſelves under "che
luntarily relinquiſh their Liberty; it might perhaps Command of a ſingle Perſon, or of a fele&Coun-
(1) This manner of acquiring:Sovereignty by the Right of Succellion, takes place likewiſe in Kingdoms originally Eks-
bliſh'd by a forc'd Conſent of the People, as will be ſhown hereafter in the 11th Section,
(2) See above in B. 4. c. 6. the laſt Section,
(a) L. 2. c. 3. 1.4.
59. Éd. H. Steph. Nothing is so much our own as our ſelves.
(c) L. 2. c. 9. f. 1.
Incasot Peru, to advance the Empire, by the lowest and moft infenbible Degrees
, and father to invite new Subje&s by
Clemency and Kindneſs, than to compel them by Arms and Violence. vid. Garcil. de la Vega, Com. Reg. 1. 2. Sich
(e) Dé Civitate, 1. 2. c. 9. f. 2.
the Vi&tor thews to the vanquiſhºd, that he obtains a lawful Dominion over them. The Title of his Sovereigntys
farther grounded upon
the Reaſon, that the vanquiſh'd (having undertaken a War againſt him) upon precedent Injuries,
on them. Our Author's Abridgment, De Offic. Hom. Ego Cuis, 1. 2. c. 10. f. 2.
E
Orlato
(6) Xenophon. Cyrop. l. 4. P.
(d) It was a wife Rule with the
cil

Chap. VII. die Eſpecially Monarchical.
537
,
be a
cil. And for the ſame reaſon, that a People ſub in the State, ſhould treat his Subjects in a wicked
je& to Kingly Government, may to eſcape De- and injurious manner, we can ſcarce conceive,
Atru&ion, and when their Prince can no longer that they are by any intrinſical Obligation en-
aflift or protect them, ſubmit themſelves to ano- gaged to obey him. We muſt therefore grant
ther. But all the ſtreſs of the Difficulty lies in Hornius (6) what he aſſerts without Proof, That
this, chat ſince Fear unjuſtly, caus' invalidaces it dotbo not belong to the Nature of Sovereignty
, to coma
Proceedings hath endamaged another, is ob- times, and in
ob- times, and in all places, it demands the same Corref-
liged to make Reſtitution, how ſuch a Con- pondent Obedience
. For indeed, when a Perſon
fent of the Subject as is extorted by unjuſt hath not only intruded into the Throne, by Force
Force, can confer the Sovereignty in ſo lawful or Fraud, but likewife ftill grievoufly oppreſſech
a manner upon the Invader as to give him Quiet the People, and ſeems to make open and arbitrary
of Conſcience in the Poffeffion. For what Hor- Violence the Standard of his Reign ; this is a
nius ſays (1) is meer trifling, That ſince the So. Guilt which ſeems incapable of being purg’d by
vereignty which
the Invader receiv'd by the Conſent any Courſe of Years, tho' Time in other Cafés
of the People, he did not take from the People, but was be thought ſufficient to found a Right of Pre:
inveſted with it by GOD, therefore, were it to be re- ſcription. For long Poffeffion is here nothing
ftord, it muſt be reſtor'd to GOD, not to the People. elſe but a long continued Injury (c) (3).
But we ſhould rather conclude, that ſince the V. To theſe Enquiries another may be added,
People, as Hornius himſelf allows, have the by what means and at whạt times a Community
Power' of appointing the Perſon in whom the which hath thrown off Monarchical Govern
is ſufficient, if the Oppreſſor reſtores this Power Frame ? In reſolving which Doubc different
only to the People. For if the People do but Judgments muſt be given, according to the dif-
recover the Privilege of marking out the Perſon ference of the Caſes that may ariſe. Firſt, then
who is to govern them by their own free Choice, if a City or Country hath on any occaſion what,
they will not think themſelves much concern'd loever diſcarded the Sovereignty it once ſtood
whether the Invader retains the pretended Ma. under, and ſet it ſelf up for a Free Independent
jeſty he hath ſeiſed, or reſtores it to Heaven. Our State, upon Suppoſition that it hath tranſacted
Judgment on this point is, that we ought firſt the Affair in a friendly manner with its former
to conſider, whether the Forcible Invader, hath Lord, and hath by him been acknowledg’d for a
turn'd a Democracy into a Monarchy, or whether Free Commonwealth, it immediately commen,
he hath driven out a Monarch, and ſettled him- ceth ſuch, with the fulleſt Right of Liberty, and
ſelf in his room. In the latter Caſe, the Obli- need not wait for the tedious Confirmation of
gation to Reftitution doth not expire, till the Preſcription and Uſe. Secondly, If a Sovereign
expeld Prince and his Heirs, who had a Right of hath upon juft Reaſons been diveſted of his
ſucceeding, are all deceas'd; or till ſuch an unfor- Power, the Liberty is preſently valid ſo ſoon as
tunate Prince hath quite abdicated, or relinquiſh'd it is actually aſſerted; nor is there any Neceſſity
his Claim to the Kingdom: and this he is pré- of its being either confirm'd by long Poſſeſſion,
ſumed to have done, as by other Inclinations, or acknowledg’d for lawful by the former Lord
ſo if in a long courſe of time he hath made no except fo far as this laft Circumſtance may á
Effort towards the recovering of his Crown (a). means of preventing all unjuft Claims and quar-
And in the mean time, even whilſt the Invader's relſome Pretenſions for the future (d). Thirdly,
Title and Conſcience are both unſettled, the Al. if the Conſtitution be alter'd by an unjúft Re-
legiance promis'd by the Subjects to him, holds bellion, the Liberty thus uſurp'd ſo long con-
ſtrong and binding ; provided they did not give tinues Unlawful, as the Rightful Prince ſhall
it, till they had done all that could be requird of labour to reduce the Rebels to Obedience, or at
them towards ſerving their old Maſter (2). As leaſt by folemn Declaration ſhall proteſt and pre-
for the former Caſe, this ſeems the moſt proba- ſerve his Right over them; till by long Acqui-
ble
way of determining it to ſay, that ſince a eſcence and Silence he may be preſum'd to have
Nation may live in all reſpects as happy under a given up his Claim. Fourthly, if it ſo happen
Monarchy, as under a Democracy, twill be that a City or Country, being in great Diſtreſs
eaſy for them to digeſt the Loſs of their popular and Danger from an Enemy, ſhall in vain beg
Liberty, if their new Sovereign proves a good the Aliſtance of its Sovereign, who is unable to
Governor. And we may preſume they are thus afford any Shelter or Support, ſo as to be put on
fatisfied, when their quiet Deportment and long its own Defence, and oblig'd to ſeek for Safety
Uſe ſeems to have reconciled them to the Alte. from its own Strength and Counſel; we are of
ration. As for the few Murmurers and Male- Opinion that the Right of the ſaid Sovereign
contents which remain, they are not worthy to doth expire, when for a conſiderable time the
fall under regard: ſince there will not want ſome People have managʻd their own Affairs in a ſe-
of this unealy Temper in every Form of Go- parate manner, and have no Intercourſe, or
Vernment, however freely and fairly conſtituted Communication with their former Governour :
by the Community. But in caſe the Invader, inaſmuch as this manifeftly argues a Dereli&tion or
after having made this Change and Revolution Deſertion on the part of the Sovereign. For
(1) Ubi ſupra.
(a) Vid. Juftin. l. 4.c. 2. n. 3. Ed. Grev. (2) Comp. Grot. l. 2.C.4. s. 14. & 1. 1. c. 4. f. 19.
(b) De Civitate, I. 2. c. 9. f.4. (c) Vid. Juſtin. l. 3. c. 5.
(3) Comp. Grot. 1. 2. c. 4. 1. 14. Soo 1. 1.
6. 4. 1. 19.
(d) Vid. Baudium de Induciis Belli Belgici, 1. 3. pi 178.
tho

$38
Of the Ways of acquiring Sovereignty,
Book VII.
tho’a King, or a Commonwealth ſhould be forc'd the Vacancy of the Throne, not properly to
by the molt preffing Neceſſity, thus to abandon chooſe a new Prince, but only to declare that
a City or a Country under their Dominion, to its they find no Objection in the Son to hinder him
own Care and Defence (a); yet ſo ſoon as they from inheriting his Father's Crown.
recover out of that Neceflity, they ought imme VII. An Ele&tion may be made, either in a
diately to return to the Exerciſe of their former riſing State, now about to be fer up, or in one
Sovereignty. Otherwiſe how can he pretend to formerly erected and eſtablifh’d. In the former,
be my Prince, who for a long time hath neg. after the Original Compact between the Mem-
le&ed every part of his Princely Office towards bers thus uniting, and after a Decree paſséd for
me, when 'twas in his power to have perform’d the introducing of ſuch a Form of Government ;
it (b)?
the Communicy or the deputed Repreſentatives
VI. The manner of acquiring Sovereignty by proceed to Election. Which being finiſh d, and
Election is, when a People already incorporated, the Grant accepted, and a Covenant thereupon
or now about to incorporate, do, by their own ratified between the Prince Eleat, and the Peo-
free Choice and Judgment, deſigns or nominate a ple, there immediately commenceth a State per-
certain Perſon for the Supreme Command; whia, fe&ly Monarchical. Buc, in a Kingdom already
upon receiving ſuch a Decree of the People, or eſtabliſh’d, it may happen that a Monarch de
of their Repreſentatives, together with the Pro- ceaſech before his Succeſſor is appointed ; and
miſe of their Obedience, and having accepted then the Nation is ſaid to ſuffer an Interregnum
the Offer, is thereby inveſted with the governing (.). Now what Frame a State falls into during
Power. Ele&tion is uſually divided into Free and ſuch an Interval, may eaſily be apprehended, it
Limited. By the former any Perſon, without we conſider what thoſe Bonds were which held
Exception, may be deſigned, who either is at it together, in its former more regular and per-
preſent, or probably will be hereafter, in all na-
fect Condition. Since then the Incrinfick Perfe-
eural relpeas fit for Empire. By the latter no Etien of the State, and the actual Exiſtence of the
Perſon can rightly be pitch'd upon who is not Sovereign Power, were both owing to the latter
of ſuch a Nation, or of ſuch a Family, or in- Compact between the Prince and People; it
dued with ſuch a particular Qualification. But follows, that the Perſon in whom the Sovereignty
indeed, if we conſider the Right of Electing, as properly reſided being extinct, the Kingdom finks
it radically and fundamentally inheres in the into an imperfect Form, and is united only by the
People, every Election will appear to be in it firſt antecedenc Pact, by which we conceive the
ſelf Free. For tho' an Order may have been once particular Members of the Community to have
made, excluding ſuch a certain kind of Men from agreed to incorporate in one Society. Not but
the Crown ; yec nothing hinders but that this that this primitive Pact uniting the general Budy,
Order may be repeal'd and diſannuld. But if is during the time of an Inter-regnum conſiderably
the People devolve their Right of Electing on a ſtrengthen'd and aſſiſted, by the Endearment of
few Deputies, they commonly cie them up to a Common (c) Country, and that kind of Relation
certain Laws, defining the Conditions and Re or Affinity which refults from thence : together
quiſites to be conſider'd in thoſe who are Candi- with this Conſideration, that the Fortunes of
dates for the Sovereignty. In ſome Places the moſt Men are fixʼd and rooted in that particular
Government is conferr'd by a kind of Mixture of Soil, and the Effects of others not eaſily to be
Election and Succeſſion : when the Crown de tranſported or removed (d). And this too is
ſcends, in courſe, to the Sons of the deceas'd the reaſon why a Commonwealth, under an In-
Prince, yet ſo as that the Conſent of the Peo- terregnum, holds more firmly together than an
ple, or of the Nobles, ſhall firſt intervene. Which Army, (eſpecially if compos’d of Mercenaries,)
Conſent is not a bare Ceremony, like that of when it hath loſt its General :
Inauguration, or of doing Homage, but hath the Perſons, who compoſe the latter Body, are ſuch
Force and Vercue of a Negative Vote. As ſup- as either have no proper Country, or elſe a Coun-
poſing a People to have firſt conferr’d the Go try at a Diſtance. But now the wealthy part of
vernment on the Author and Founder of the pre a Nation, to preſerve and ſecure what they poſ-
fent Royal Family under this Condition, that ſeſs, will be ever moſt forward in maintaining a
he ſhould tranſmit it to his Deſcendents, pro- good Agreement, and moſt induſtrious in re-eſta-
vided they appear'd fit to receive it: in ſuch bliſhing and ſettling a Government.
Kingdoms the People, or the Nobles aſſemble on
inaſmuch as the
(c) See &
(a) Vid. Liv. l. 3. c. 6. 1. 23. c. 21.
(6) Vid. Liv. I. 35. c. 16.
(1) See a Diſcourſe of our Author's, De Inter-regnis, which is amongſt his Academical Diſſertations.
Diſcourſe of our Author's
, de Obligatione erga patriam, which is in the ſame Work of his juſt now mention'd.
(d) Lyfias contra Philon. Orat. 30. c. 2. p. 471. Thoſe who are natural Subje&ts, but yet of ſuch an Opinion, as to efieem
any Country their own where they can promote their own Intereſt and Gain, muft certainly neglect the common Good of the
State
, to ſerve their own private Advantage : fince 'tis not the place where they were born, but the Fortunes and
Riches they
polleſs
, which they look upon as their country, and their deareft Concern. Livy, 1. 2. c. 1. well obſerves, That Brutus
the firf Kings, before the Minds of that vaft Multitude of People which were gather together from all Parts, had been
engaged and united by the dear Pledges of Wives and Children, and by a kind of natural Affection to the Soil where they had
so long taken Root.
Antiphon, Orat
. 16. Nor was it an eaſy thing for him to defert the City ; bis Children and his Wealth being ſufficient
ing to their Eftatés ; Mbeſe being Pledges and Securities for Fidelity, whilf' they seem'd
now to bave pawn d or ſtaked all they
Tho
were worth,
Chap. VII.
539
Eſpecially Monarchical

(a) L. tic. i
Tho' we may, with Livy (a), call a Nation, Proviſional) Magiſtrates, who, by the Authority of
during an Inter-regnum, A State without Govern- the whole People, are to perform during the pre-
ment, and as it were, an Army without a Gene. ſent Exigency, the Acts of the Supreme Power, at
ral; yer becauſe Communities at their firſt uni- leaſt ſuch as are neceſſary to hold the Community
ting, before the Sovereignty hath been conferr’d, together ; yet ſo as to be accountable for their
either on a fingle Man, or on a Council, ſeem Management to the People, which account the
to bear the Semblance of Democracies (I); and new King doth, as in the Name of the People,
farther, ſince it is Natural that all Perlons upon demand.. The Power of theſe Officers, upon
the Deceaſe of Him to whom they committed the Election of another Prince, or the ſetting
their Guidance and Safety, ſhould take Care of up another Form of Government, preſently ex-
themſelves ; therefore an Interregnum, regularly pires.
ſpeaking, hath the Appearance of a kind of In thoſe Kingdoms where there are conſtant
Temporary Democracy : at leaſt ſo far, as that and perpetual Senates, yet fuch as in the Life-
the Conſent of the whole People is to determine time of the Prince do not hold the Sovereign
all Points, both in regard to the Adminiſtration Authority ; upon the Prince's Death, the Senate
of publick Affairs, and to the Creation of a new cannot, by, any proper Right, claim that Au-
Prince; unleſs they are more inclin'd to intro- thority which before they wanted. Yet 'tis moſt
duce ſome other Frame and Conſtitution. And convenient, that in caſe of an Inter regnum, the
yet it is not properly a perfect Democracy ; in chief Adminiſtration of Affairs ſhall for that time
as much as no Decree hath y'et paſs’d to fix the be delegated to them; as they were before em-
Sovereignty in a Council of the whole People, ploy'd by the King to aſſiſt him in his Counſels
by perpetual Right; and becauſe the Laws and and his Cares. But then the Power which
publick Inſtitucions are ſtill adapted to Monar- they exerciſe on this Occaſion, ſhall be ſuppoſed
chical Government. Tho' it may likewiſe hap. to be conferr’d on them by the Grant of the
pen, that when a Kingdom conſiſts of very large whole People. For whatever Authority they
Integral Parts, as ſuppoſe of diverſe Nations, receiv'd from the King, as a Body of Magi-
Provinces or great Cities, it ſhall, in caſe of an ftrates, expires upon his dying without a Succer
Interregnum, appear like ſome Collective or Syfte- for (c); and if they are allow'd to proceed in the
matical Form (2).
Exerciſe of their former Function, the Privilege
Hence 'eis evident in what ſenſe we are to ex. is not owing to the Commiſſion of the Prince,
pound that Affertion laid down by Grotius (b) and but to the Favour of the People (d). And there-
others, That when a King dies without a Succellor, the fore they can hold their Power no longer than
Sovereignty returns to the People: That is, altho' the Community pleaſech ; much leſs can they
during an Interregnum, the Sovereign Authority challenge a perpetual Sovereignty, or, by their
may lo far be ſaid not to be properly in the own Authority, ere&t themſelves into an Ariſton
People, as that they have not receiv'd it in a for- cratical Body, or a ſelect governing Council.
mal manner, or by a perpetual Decree; yet they For 'tis the Prerogative of the Community, to
may in the mean time, either by themſelves, or eſtabliſh what Frame of Government they think
their Delegates, exerciſe all thoſe Acts of Sove- fit ; unleſs they have, by Oath, obliged them-
reignty, which appear conducive to their Safety felves to avoid ſome particular Conftitution.
and Preſervation. For thoſe Authors are mani- Dionyfius Halicarnaſſeus (e) reports, that when the
feftly in an Error, who affert, that upon the frequent Changes of the Inter-reges diſpleas'd the
Extinction of the Royal Family, the Sovereignty Romans, who ſeem'd thus to have brought a hun.
doch not return to the People, but only the dred Kings upon themſelves by getting rid of
Power of deſigning and chooſing a new King. one, the Senate referr'a it to the Judgment of
As if, in the Caſe of an Inter-regnum, the People the People to put the Commonwealth into the
were neceſſarily obliged to conſtitute another hands, either of Kings or of Annual Magi-
Monarch! And as if they could not confer the ſtrates; as ſhould ſuit beft with their Inclinati-
ruling Power on a felea Council, and ſo make ons. Tho' indeed we find the People retuthitig
an Ariſtocracy; or, eſtabliſh the preſent De- the Complement, and leaving this option to
mocracy, for a regular and ſtanding Govern- the Senate (f).
ment!
TESTO
IX. To give farther Light to this Enquiry,
VIII. But thoſe States have conſulted their it may be worth our while co examine the café
own Peace in the fafeſt manner, which to avoid which Mr. Hobbes (8) puts, and the iſſue of his
the Inconveniences ufually ariſing from an In- Opinion upon it. If, ſays he, the People afſem-
ter-regnum, have ordain d beforehand on what bled deliver the Sovereignty to one particular Man to
Perſons the chief Adminiſtration ſhall fall, when bold, only during Life ; and when they have so dorse,
there happens to be a Vacancy in the Throne. depart, without ordering any thing about the Place
And theſe, by whatever Names or Titles they where they ſhall meet to make a new Eltation after bis
pals
, whether of Inter-reges, Protectors, Regents, Deatb; they will be no longer one Compound Person,
or the like, are Temporary, (or, as we may ſay, but a looſe independent Multitude : in which it shall be
(1) See above in Ch. 5. S. 6.
(2) Upon this ſee above in Chap. 5.
S. 16 See a Diſcourſe of our Author's De Syftematibus Civitatum, which is amongſt his Academical Diſſertations.
(b) L. I. c. 3. f. 7. Numb. 2.
Vid. Conneſtag. de Unione Luſitan. I. 3. p. 116:0 po (d) Add. Bodin de Republ. I. 3. c. 2. p. 417. (e) Vid. I. 20
Piaſec. ad Ann. Chrifti, 1632.
(1) Sce the Hiſtory of the Inter-regnum in Poland, upon the Death of King Sigiſmund, in Paul.
(g) De Cive, c. 7. f. 15, 16.
Lawful
So Liv. 1. 1. 6. 17.
540
Of the Ways of acquiring Sovereignty
Book VII.
lawful for any Man to meet and conjult with any o can never be true in this Senſe, that the People
thers, at any Time, and at any Place. Whence he
on ſuch an Occalion, relapſe into a confuſed
concludes, that ſuch a Monarch is, by the Law Muiticude, without any Tye or Relation to each
of Gratitude, obliged to take
Care that the State other; but only that they receive an abſolute
be not diffolv'd upon his Deceaſe : either by Right of liſting and diſpoſing themſelves a-new,
fixing a certain Time and Place, when and where under any Frame and Conſtitution.
as many of the People, as think fit, may meet X. In Hereditary Realms there ariſeth ſome
and form an Aſſembly; or elſe by nominating a Semblance of an Interregnum, when the King
Succeſſor, according as the Intereſt of the Com- dies leaving his Queen with Child, or, at lealt
monwealth ſhall ſeem to require. Now here under probable Hopes of Breeding Now by
Mr. Hobbes is in a Miſtake, whilft he thinks, the Conſent of moſt Nations, a Right may be
· Thac the People, by departing
from one Affem- transferr'd even on un-born Heirs, 10 as to give
bly, without appointing the Time and Place them the juft Title and Property, tho' as yet
for another, do disband and ſeparate into a incapable of the Uſe or Exerciſe (b). But now,
* diſorderly Multitude ; applying it, as he doth, whereas there is a proper Subject, in which the Su.
to thoſe who in chooſing a King, have eſta- preme Authority refides, there cannot be really
bliſh'd themſelves into a regular and perfect State; an Interregnum. On which account neither the
and not to thoſe who have it ſtill under Doubt Minority, nor the Captivity of Princes create an
and Conſultation, what State or political Syſtem Interregnum in the ftri& Senſe of the Word. Yet as
they ſhall introduce. For when a Multitude to the latter Caſe it hath been a frequent Practice
come together on the laſt account, and depart in the World, for the Relations of a Captive
without agreeing to meet again, 'tis plain they Prince to hold him for dead, and to proceed
are diffolv'd re infe&ta, and conſequently remain accordingly; whereas they ought rather to ad-
in the ſame divided independent Condition in minifter the Government in his Name, 'till he
which they were before. But they who have ſhall return from his Impriſonment, or die un-
once incorporated themſelves into a regular der it (c). Now altho', before the Royal Iffue
Commonwealth, have ſubjected themſelves to a be brought into the World, it cannot certainly
King, and have fix'd all their Forcunes in this be known whether the Child will prove alive or
Sear, cannot be preſum'd guilty of ſuch a Folly dead, a Son or a Daughter, (in Nations where
as to deſire that upon the King's Deceaſe, the the Fair Sex is excluded from the Crown :) yet
State ſhall likewiſe be extinct, and themſelves till this Point is clearly determin'd by time, the
thrown into the natural Condition of Anarchy, People can by no means challenge ſuch a Right,
not without manifeſt Danger of loſing the Secu. as they obtain in a proper Interregnum ; but the
rity, which they enjoy under the preſent Efta. Kingdom muit, in the mean while, be govern'd
bliſhment. Therefore, if they have not conferrd in the ſame Method as is wont to be obſerv'd,
the Sovereignty on the Prince, with the Right dnring the Minority of a Prince (d).
of Inheritance, or with a Power to diſpoſe of XI. By the way of Succeſſion or Inheritance,
the Succeſſion as he ſhall think fit, they muſt be the Sovereign Right which one Perſon hath ob-
ſuppoſed, ac leaſt, to have tacitly agreed, that tain'd or receiv’d, is continued to his Pofterity,
immediately upon the Prince's Death they will This Succeſſion (1) is appointed, either at the
hold an Aſſembly, either at the uſual Place, or Pleaſure of the Prince, or at the Pleaſure of the
where the Prince kept his Court. Nor will People (2). Thoſe Princes who poſſeſs their
there be wanting, in a whole People, foine Per. Realms after the manner of Patrimonies, have a
fons of great Authority and Worth, whoſe In- Right to diſpoſe of the Succeſſion, according to
Auence will be able to keep the Multitude in good their own Inclinations; and when they have
order, and to bring them as ſoon as poſſible to a once declared their Pleaſure in this point, it
general Conſultation, for ſettling the Common. ought no leſs ftri&ly to be obſerv'd, than the laſt
wealth. Hence too it is evident, how far we Will of any Tettator. And in this caſe a King
are to admit of another Affertion of Mr. Hobbes may divide his Dominions amongſt his Children
(a), that when a Monarch renounces and abdicates by equal Portions, and without regarding the
the Government for himſelf and bis Heirs, the Subje&ts Difference of the Sex. Or if his Legitimate
return to their Abfolute and Natural Liberty. For it Iſſue fail, he may tranſmit the Crown to his Na-

Tout
(a) Leviath. c. 71.
(6) Hence the Perſians, when their Prince Hormiſdas
died, leaving his Queen with Child,
proclaim d the unborn King, and crown’d him too, by fixing the Diadem on the Royal Burthen : nay, they voted the
Infant a particular Name, firmly believing it would be a Son. And this proved the great Sapores, ſo renown'd in Story:
Agathias, 1. 4. c. 10. (c) Vid. Juſtin. 1. 36.6 1. Trebell. Poll. in Gallien. c. 1. We have a story to this purpoſe
in Dion Caſins, 1. 36. Tygranes, the Armenian Prince, had vaſt Treaſures, laid up in the fortified Places of Sophene.
When Pompey demanded all his Wealth to be delivered up to him, by thoſe who had it in Charge, their Anſwer was,
That they would do nothing without expreſs Orders from their Maſter.' And when Tygranes, though againſt his Will, com-
manded
them to open the Caſtles, they ſtill refuſed to comply, urging that the King laid this injun&tion on them;
not voluntarily, but through Compulfion. Yet phey afterwards were oblig'd to deliver all up, when they found their
Prince was ſeverely uſed, and thrown into Chains upon their Refuſal, Demetrius, being made a Priſoner by Selexcus,
commanded his son, with his Captains and Friends that were at Athens and Corinth, not to believe his own Writing,
or Seal when they ſhould be Ahown to them : but to keep for Antigonus his Towns, and the Remains of his
dom, as if he were a&tually dead. Plutarch. in. Demet. p. 914. D.
(d) Vid. Serran, Hift
. Gall. in Philipp. Valeſ, ab init. (1) Vid. Grot. l. 2. c. 7.8
. 12, 13.
Dillertation de Succeſione Primogenitorum , Se&. 22. &c. and allo that De Teftamentis summorum Imperantium, & fpeciatim
Caroli II de Hiſpan. Reg.c. 1. f. zł, &c. See likewiſe Sidney upon Goverament, C. 3. 5. 18. and Tom. V. of the Reponſe
Aux Queſtions d'un Provincial by Mr. Bayle, p. 138, Egor
King-
(2) See Mr. Budde's
tural

Chap. VII.
545
Eſpecially Monarchical. 3
C
tural (a), or to his Adopted Son; nay, if he' (c) for one, long Guſtom,In as much as he who
thinks fit, to one no way related to his Family ſays nothing about his Succeffor, is ſuppoſed
(b). But when ſuch a Monarch hath made no to conſent to the ordinary Cuſtom of the King-
Provifion about the Succeſſion, it muſt then be dom: Which Cultom, whether it derives its
confider'd, what Perſon the common Courſe and
Original from the primitive Founder of the
Order of Nature calls to inherit the Throne. • Race, or from any of his Pofterity, hath in
For chough the Prince, in his Life-time, did nei-
time paſs’d into the Force and Authority of a
ther by Teſtament, nor any other way, fignify Fundamental Law. But the Enquiry which
his Refolution in this Affair; yet we muſt pre. we are now upon is, What Order is to be ob-
fume, that he did by no means deſire the State ſerv'd in the Succeſlion, when it is neither de-
Tould upon his Deceafe fall into Anarchy : termin’d by the Appointment of the laſt Prince,
Common Humanity not ſuffering him to leave nor by the Law or Guſtom of the Nation. To
his Subjects in a Condition of Miſery and Ruin. proceed then, our Silent Monarch muſt be pre-
Eſpecially lince, if he purpoſely declin'd to make ſumed to delire, not only that the Kingdom ſhall
a futare Secclement, it had been eaſie for him preſerve its regular Frame, that is, that the so-
to have given the People Notice; ſo that, upon vereignty ſhall not be divided into Shares a-
this Intimation they might have agreed on ſome mongſt his Sons, or near Relations, nor yec
Expedient for their own Security. Beſides, we held in Common by them All, with equal Pow-
dught in Reaſon to fuppoſe, chat Princes, as er ; but likewiſe that the State ſhall not be part-
well as ocher Perſons, are unwilling that the ed into diſtinct Governments, and many King-
Rights or the Poſſeſſions which they have ac doms introduced inſtead of one: In as much as
quired, ſhould at their Deceaſe, either be im- either of theſe Alterations would draw after it,
bezel'd, or left as it were to the firſt Taker ; not only the exceeding great Hazard and Detria
but that they would have them devolve entire to ment of the Realm, but alſo the utter Convul-
their deareſt Friends. Therefore when ſuch an fion of the Royal Family. The next ching which,
Omillion happens in Patrimonial Kingdoms, the in this Caſe, muſt be preſumed to have been the
fame Order is to be obferv'd as in Private Inhé. Will of the Monarch is, that notwithſtanding
ritances ; excepc fo far as the Diſpoſition and the Prerogative of Age, his Sons ſhould be pre-
Safety of the Nation make it adviſable to recede ferr'd before his Daughters; becauſe Men are,
from chat Method. For although 'tis very likely, for the moſt part much fitter to command, and
that a Father bears an equal Affection towards all the Government of Women is generally attenda
his Children, yet if he be wiſe, he will ſo fared with a long Train of Inconveniences, which
moderate and reſtrain it, as not to weaken the muſt needs be increasid, if the Brothers are to be
Hereditary Eſtate, on which che Security and ſet aſide to make room for a Female Sovereign.
Honour of the Family in a great meaſure de- Another thing to be taken for granted on theſe
pend : and he ſhall be preſumed to have taken Occaſions mutt be, that amongſt Children of the
this Refolution, if he hath not expreſly dec!ar'd fame Sex, the Eldeſt is to be advanced rather
any thing to the contrary. From theſe Conſi- than any of the reſt : and this not only, becauſe
deracions it follows, that ſuch a Prince as we are he is judg’d to excel the Younger in Wiſdom,
now ſpeaking of, is deſirous to have the Monar- as well as in Years, but becauſe, if we conſider
chical Frame of Government preſerved after his them with Relation to the Father, all Brothers
Death; in as much as he ſhew'd his Approbation are equal : And were the Crown co be beſtow'd
of it by his own Example, and did not after on the moſt Worthy of them, they could not
wards reverſe or alter it, by his Word or Deed. avoid falling into Irreconcileable Differences and
And farcher, fince Men are naturally inclin'd to Contentions. A famous Inſtance of which Truth
wiſh beſt to thoſe from whoſe Succeſs, ſome we have in the Revolutions, that not long ſince
Honour and Glory is reflected on themſelves, happen'd in the Empire of the Mogul, deſcribed
rather than on others, and fince the Power of at large by Monſieur Bernier. To prevent there-
Children cafts the brighteſt Glory on Parents føre all ſuch Confuſions, it is the beſt and ſafeſt
alfter their Deceaſe; it muſt be concluded, that Mechod to follow the Order of Birth, which
a Father is more heartily concern’d for the Hap is embraced by the univerſal Agreement of all
pineſs and Greatneſs of his own Iſſue, than of Nations, as a Rule which Nature her ſelf ſeems
Strangers. If he had any other Deſign, he ought to have preſcribed (d). Yet here it will be ne-
in expreſs manner to have declared it: fince, ceſſary, that the Eldeſt Son, who is thus pre-
commonly fpeaking, we do not ſuppoſe a Man ferr'd to the Crown, take effectual Care for the
to have been ſo little Maſter of his Wits, as to honourable Subſiſtence and Support of his Young-
deprive his Children of ſo fair an Advantage, er Brothers. But that he thould be obliged to
and to leave it, as it were, on purpoſe to create make their Fortunes as large, as if the Kingdom
Quarrels and Diſputes. But Mr. Hobbes is in the were to have been divided into equal Shares, is
wrong, when, amongſt the Tokens which a both needleſs and indeed impoſſible. For let us
Reigning Prince may give of his Reſolution not ſuppoſe four Brothers; whence can he Elder,
to tranſmit the Crown to his Family, he reckons who is to fill the Throne, procure fo much
(a) Thus Alphonfus, King of Arragor, gave the Kingdom of Naples, which he had conquer’d, to his bafe Son Ferdi-
nand: whereas others pretended, that it ought to have been united to Arragon, by the Arms and Wealth of which
Nation it had been ſubdued. Guicciardin. .5.
(6) Add. Juftin. 1.41.c. 5.n. 10. where Phraartes leaves the Parthian Empire to his Brother Mithridates, all his own
Children being excluded.
(s) De Cive, c. 9. f. 15. (d) Add. Xenophon. Cyroped. 1. 8. p. 139. Ed. H. Steph. in Cyrus's laſt Speech.
SIE
Treas
542
Of the Ways of acquiring Sovereignty,
Book VII.

апу
Treaſure to pay the Portions of the reft, as ſhall way of other Inheritances ſo far as that Method
be equal in Value to three Parts of the Realm can conveniently be applied to Kingdoms : of
(a)? If, in Monarchies of this kind, the Prince elſe they appointed a particular Courſe, by
dies without Iflue, his Brothers or siſters are to which it ſhould be regulaced and determin'd.
ſucceed;
and upon Failure of theſe, the next in Now the Safety of the State requires that the
Blood to the Deceas'd King; with due regard Succeſſion of a Kingdom, fimply Hereditary, for
ſtill to the Prerogative of Sex, and of Age. where it is barely appointed that the Crown
Nay the Government may at length, devoivé fhall paſs from each Prince to the next of his
to thoſe who were a&tually related to the laft Kin,) ſhould vary from the Order and Method
Poffeffor, tho’of a different Blood from the Au- of private Inheritances (3), chiefly in the follow.
thor of the Regal Line. And this, not only, if ing reſpects. Firft, That the Kingdom ſhall not
the Deceas'd Prince thus declared his Will, but be divided amongft ſeveral Brothers, or other
if, by the Cuſtom of the Country, the face Joint heirs (d), equally diſtant in Blood from the
Mechod of Succeſſion obtains in private Inheri deceas'd Prince. In as much as this Prohibition
tances : for then, we muſt ſuppoſe, that the is highly conducive to the Agreement of the
Prince would have the Cuſtom hold in regard Subje&s, and to the Support of the Nation and
to his own Patrimony (1), as well as to thole of Government. Secondly, That the Succeſſion ſhall
others, when he hath made no expreſs Diſpoſal ſtop at thoſe Perſons who are deſcended dire&-
to the contrary,
ly from the Monarch ; and not paſs to the Col-
Mr. Hobbes ſeems to have carried this Point a lateral Line, much leſs to the Degrees of Affini-
little too far, when he tells us (b), By the same tyre). For the People, by their primitive
way as the Sovereignty deſcends, the Right of Succeſſion Grant, deſign’d only to confer the Kingdom on
likewiſe deſcends: For in caſe the Eldeſt Sun dies before ſuch a perſon and his Poſtericy ; upon Failure of
his Father, he ſhall be ſuppoſed, unleſs the Father bath which, they again recover the Right of ſettling
mide other Settlement, to tranſmit the Right of Scthe Commonwealth as they judge convenient.
cellion to his own Children: and therefore the Nephew's Thirdly, That no Perſon ſhall be capable of Juc.
and Nieces ſhall ſooner come into the Succeſſion than their ceeding, but ſuch as are born according to the
Uncles by the Mother's (he means by the Father's) Laws of the Country. By which Caution are
ſide. Té cannot indeed but be acknowledg’d, excluded Natural or Baſe Sons, however they
that this Right of the Children to repreſent their ſtand in the Father's Affe&tion, who may perhaps
Father, and come into his place, looks very fair equal them to his Legitimate Iſſue. For, in
and equitable (2); and that his untimely Death thoſe Nations at leaſt which have any Honour
ſhould not be the Cauſe of a new Loſs and Pre- or Spirit, ſuch Men muſt lie open to Contempt,
judice to them, ſeems to be but a reaſonable Fa- whoſe Mothers were not thought worthy of Le-
vour. And yec, ſince the Son, during the Father's gal Matrimony, and were uſed rather for occa-
Life, hath not a full Right to the Inheritance, fional Inſtruments of Pleaſure, than for agree-
but only a juft Hope and Expectation ; and ſince ble Companions of Life. Beſides, ſince the La-
it doch not appear, that this bare Hope can be fodies of that Profeſſion are ſeldom famous for Con-
well tranſmitted to Children, as the Right it ſelf ftancy and Fidelity, and Gince they want the
might be; we may with more Probability con- Advantage of a fix'd Cohabitation, it cannot ſo
clude, that by the meer Right of Nature, the Ne- very certainly be known, whether the Prince
phews have not the Precedency of their Uncles ; be really the Father of this unworthy Progeny,
unleſs their Title is ſtrengthen'd and ſupported which they charge upon him. But now 'tis high
by the Laws, or Cuſtoms of the Kingdom (c). ly expedient, that the Perſon of a King ſhould
XII. But, in Kingdoms which were firſt con- be Awful and Venerable, and, as little as polible,
ftituced by the voluntary Aą of the People, the expoſed to Controverſy and Doubt (f). For
Order of the Succeſſion doth likewiſe original- which reaſon, 'tis the Cuſtom in ſome Nations,
ly depend on the People's Will. And, if they for the Queens to be deliver'd in an open Cham-
exprefly confer on the Prince, not only the So- ber, to take off all Suſpicion of a ſuppoſititious
vereignty, but likewiſe the Right of nominating Birth. And we read that Queen Conſtance, Mo-
his Succeſſor (which is ſeldom done, unleſs upon ther of Ferdinand the Second, was brought to
a very extraordinary account,) then he ſhall Bed of him, when ſhe was paſt Fifty Years old,
leave his Crown to whom he pleaſech. But, if in a Pavilion erected in the moſt publick Part of
the People themſelves ſettled the Succeſſion, they the City, before a large Aſſembly of the Nobi-
either were willing to have it paſs in the uſual licy of both Sexes (8). Adopted Sons come like-



.
(3) V. Grot.
(a) Add. Becler ad Grot. 1. 2. 6. 7.5. 13.
(1) V. Grot. L. 2. c. 7. f. 11. 2. 2. (6) De Cive, c.9. f. 19,
(2) See above in B. 4. c. 11. f 12.
(c) Add. Bodin de Repub. 1. 6. c. 5. p. 144, Sc.
d. 1.8.14,
Erc. (d) This is a Remark which the Hiſtorian Fuſtin attributes to the soldiers of Dionyfius, Tyrant
of Sicily, who after the Death of that Prince, advanced to the Throne Dionyfius his Eldelt Son. Extin&to in Sicilia Dior
Ay lio Tyranno, in locum ejus Milites maximum N.itu ex filiis ejus nomine Dionyſium Suffecere ; & nature jus fecuti, &o quod
firmius futurum eße regnum, fi penes unum remanfiffet, quam li portionibus inter plures filios divideretur, arbitrabantur. Tuo
rtin Lib. XXI. Cap. i.
(e) Add. Bæcler ad Grot. 1. 2. c. 7. f.
this in Martinius's Hiſtory of China, 1.6.c. 1. p. 202. When Perſeus and Demetrius diſputed which ſhould ſucceed Philip,
lock, whereas Perſeus's Mother was only a Miſtress of the King's: and that, for Evidence of this Diftin&tion, Performs
had no Mark of Philip in his Body, whilft Demetrius exa&ly reſembled his Royal Father. Livy, l. 39, c. 53. Add the
the Story of Ferdinand King of Naples in Paul, Jov. Hift. Neapol, l. 2,
(8) Pandulf Collennt, Rer, Neapol

(f) See a famous Inſtance of
1. 4.
wiſe

Chap. VII.
543
Belonging to sovereignty.
wife under this Rule of Excluſion : as well be. People to eftabliſh ſuch an Order of Succeſſion
cauſe to be deſcended from the true Regal Line as we have been all along deſcribing, ſeem to
makes a Prince more reſpected, and fills the be theſe : That che Throne may be fill'd without
Subjects with becter Hopes, that he will reſem. any Controverſy or Doubt; and the Inconve-
ble his great Anceſtors, no leſs in Vircue than in niences of new Elections avoided : that the
Blood: as becauſe the People originally con- Splendor of the Prince's Birth may increaſe his
ferred the Crown on the immediate Race of the Reſpect, and his Race and Education give the
firſt Poffeffor; defigning, when that ſhould prove Promiſe of more illuſtrious Verrue; and that the
extinct, to reſume the Power of ſettling the Go- Reigning Monarch may ftill govern the King-
vernment for the future. But allowing Adoption dom with more Vigilance, and defend it with
to give a Right to the Kingdom, this Power of more Courage, whilſt he is to deliver it down
theirs might be for ever foreſtalld and eluded. to choſe Perſons, who on the Score of Natural
Fourtbly, That in the ſame Degree of Kindred, Affection, are the deareſt to him in the World (c).
whether amongſt the Children or the Grand XIII. But ſince, in this way of Succeſſion,
Children of the
laft Monarch, the Males ſhall be which we call
fimply Hereditary, it may eaſily hap-
preferr'd to the Females, cho'che latter happen to pen amongſt Perlons, far remov'd from the Au.
be cheir Superiors in Age (a). Fiftbly, That in thor of the Race, that it ſhall not be clearly
the fame Degree, and the ſame Sex, the Advan- known which of the many ought to be preferrd,
tage ſhall be given to the Elder (b). Laſtly, The if the Crown fell thus abſolutely to him who
Succeffion of ſuch Realms differs from the Courſe was next in Blood to the deceas'd Prince; e.
of vulgar Inheritances in this, that altho' they ſpecially ſince the Favour of Repreſentation, (or
are deliver'd, as it were, from hand to band, and of letting the Children repreſent their parents in
do not devolve to a new Polleffor, 'cill the Death Right,) quite vaniſheth in chele diſtant Degrees;
of the former ; yet of cheſe Perſons, the one is to prevent any ſuch Controverſy, many Nations
the Occaſion only, and no: the proper Cauſe of have introduced a more accurate Succeffion,
tranſmitting them to the other : whereas com- which they term Lineal (2),
mon Inheritances paſs to a new Proprietor by this, all the Deſcendents of the Royal Founder
the Right, the Will and the Favour of the lajt. are conceiv'd to form a Number of perpendicular
For 'tis not the Pleaſure of the Prince, under Lines, each of which approacheth nearer to the
theſe Governments, which beſtows the Crown Throne, according as the Perſons, in the ſame
on the next Wearer : buc ir deſcends in the Royal Degree, ſtand poffeſs’d of thoſe Natural Adam
Line, by virtue of the original Act and Conſti- vantages, the Prerogațives of Sex and of Years.
tution of the People. And for the ſame reaſon And the Kingdom Thall not paſs into another
it is not neceſſary, that the Prince who ſucceeds, Line, till the former is quite exhauſted and ex-
though the neareſt in Blood, ſhould take upon tinc. Ic is needleſs therefore for Perſons in this
himſelf the private Affairs, Incumbrances, and Liſt of Succeſſion, to ſhew in what Degree they
Debts of the Deceas’d. But, if he thinks fit, he are related to the laſt Poſſeſfor, or to appeal to
may take Poſſeſſion of the Kingdom, and refuſe the Right of Repreſentation ; but according as they
the Inheritance of the private Patrimony (1), are born, the Law gives them a perfe& Right of
to which that nobler Right of the Crown is by inheriting in their proper Order : which Right,
no means inſeparably united; but is of it ſelf an tho they ſhould happen themſelves not to wear
entire, diſtinct, and tranſcendental Inheritance, the Crown, they cranſmit in the ſame Order to
For the People muſt be ſuppoſed willing to have their Children. Here then the firſt regard is to
the Crown deſcend by a clear and unqueſtion'd be paid to the Children of the deceas'd Prince,
Title: but as for the peculiar Eſtate and For- and not to the Living only, but to the Dead,
tune of the Prince, they are not in the leaft in caſe they have left lifue in any Degree what-
concern'd or affected with it. Befides, it might foever; for ſuch Iſſue ſhall exclude all others,
prove a Burchen to the Nation, were the Royal if their Parents were the neareſt Lineal Heirs:
Heir, at his Entrance on the Government, ob- yet ſo as ſtill to allow in the ſame Degree of the
liged to diſcharge ſuch Debes as his Predeceffor fame Line, a due Preference firſt to the Advan-
perſonally contracted; ſince in Caſe the private tage of Sex, and then to that of Age. (For that
Patrimony would not hold out, the Deficiency the bare Prerogative of Age ſhould out-weigh
muſt be ſupplied by the publick Stock. To and over-rule the Prerogative of Sex, can per-
conclude, the chief Reaſons which move any haps be inſtanc'd in no Example of Hiſtory.) If
Sect.
(a) Add. Becler ad. d. 1. Grot. s. 17.
(6) Thus Perſeus urgeth againſt his Younger Brother Demetrius, Com.
petitor with him for the Crown, " That he endeavour'd to invert the Order of Age, of Nature, of the Cuſtoms of Ma-
cedon, and of the Laws of Nations. Livy, l. 40. c. 11.
(1) This is Grotius's Opinion, Lib. II. Cap. VII.
19. Gronovius in his Note upon this place finds Fault with his incomparable Author, but without the leaft
ap-
pearance of Reaſon. Grotius is ſpeaking only of what a Prince has borrowed, or owes upon any other Account whatfo-
ever, not as Head of the State, but as a Private Perſon; ſo that his own private Patrimony which he poſſeſſes indepen-
dent of the Crown-Lands, are as it were mortgaged for the Payment of ſuch Debts and Incumbrances.. Whereas all
Gronovius's Reaſons only prove, that a Succeſſor is abliged to diſcharge all the Debts and Incumbrances that were cona
tracted by his Predeceffor as Head and Governor of the People, and for the Occaſions of the State, as could eaſily be
proved, if the Thing were not evident to any one who with never ſo little care will examine that Note. Now this is
what Grotius does not deny : On the contrary he confirms it himſelf ſufficiently at large in Chapter XIV. of the ſame
Book, Se&. 11, 12. See what our Author ſays after him, Book VIII. Chap. X. Se&. 8. Mr. Barbeyrac's Fourth Note
upon this Se&tion, p. 321.
(c) The Perfans had a very extraordinary Cuſtom, by which One-ey'd Per-
fons
, and thoſe who labour'd under any other Corporal Blemiſh were excluded from the Crown. Procop. de' B. Pers.
(2) See Grot. B. 2. c.7. [ 22, 23.
Sifa
the
1.1. é. II.
Book VII.
Conſtruction in his Note upon Lib. II. Cap. VII. Se&t. 37. for I doubt not' but that Grotius ſuppos'
544 Of the Ways of acquiring Sovereignty,
the laſt Poffeffor dyed Childleſs, the account Founder's Sons
Founder's Sons are the firſt in the Lift, according
paſſech back to the next Line above him, and ſo on; to their Age ; next to them his Nephews, with
ſtill aſcending from the deceas'di and not deſcend. regard ſtill to their Father's Age, and to their
ing from the firſt Progenitor : with the ſame Allow own: upon Failure of all theſe, the Founder's
ance as before to the two Prerogatives of Nature. Grand-Sons come in, then his Grand-Nephews,
The two Species of Lineal Succeſſion, com- and ſo on. This was the Courſe obſerv'd of old
monly affign'd, are what they term Cognatical
, in Numidia, as we may gather from Livy (c).
and Agnatical (1): The former kind which, on The like is practis'd in the Kingdom of Siam (d);
account of its being receiv'd in the Kingdom of and hath been in Fez and Morocco (e): as it was
Caftile, goes likewile by the Name of Caſtilian, heretofore amongſt the Curacs or petty Kings in
hath this Peculiarity in it, that in the ſame De- Peru, under the Empire of the Tricas (f). Thus
gree of the ſame Line, the younger Males are in many Pares of the Eaſt Indies, eſpecially on
preferr’d to the elder Females; yet ſo as that no the Coaſts of Malabar, 'tis the Cuſtom for the
Tranſition is made from one Line to another on Facher to be ſucceeded not by his own Son, but
the bare Obſtacle of Sex. Thus it doth not ex- his Siſter's Son : the People fancying themſelves
clude the Women, but poftpones them to the to have more evident Proof, that the latter is of
Men: and runs back to the Feinales again in caſe the Royal Blood (g). In Hiſpaniola, the Ne-
the Males, who were ſuperior or equal to them phews by the Siſter are admitted for the fame
in other reſpe&s, fhall happen to fail together Reaſon; tho' not till the direct Line fails (b):
with their Iſſue. By Conſequence therefore, a And amongſt other Indian Nations, in that Neigh-
Grand-daughter by a Son comes before a Grand- bourhood, even in private Inheritances, the pre-
ſon by a Daughter, a Niece by a Brother be- ſent Poffeffor prefers his Sifter's Children to his
fore a Nephew by a Sifter. The
The other kind of own: excepting the Family of the Yncas, where
Lineal Succeſſion, or the Agnatical, differs from the Son conſtantly fucceeds the Father (). The
this, in that is excludes from the Crown, the ſame Rule is follow'd in Canada, with regard to
Females and their Deſcendents for ever. A Cu- Honours as well as co Eſtates (k). Strabo (1) reports
fton which ſeems chiefly to have been taken up, a very ftrange way of Succeſſion amongit the
to hinder the Kingdom from paſſing by Marriage Chatramotitæ, a People of Arabia. The Crown
to Strangers; and to maintain the ancient Stock palletb, ſays he, from the preſent Poffeſor, not to bis
in its due Veneration, which might be in danger Son, but to the firſt Nobleman that was Born in bis
of growing weak and deſpicable, by ſuffering Reign. For soon as every new Monarch is ſettled in
ſo many foreign Graffs. This is commonly the Government, a Liſt is taken of all the Wives of
known by the Name of French Succeſſion, having the Nobility, who appear then to be with Child; and
long obtained in that Nation. In ſome places Reepers are ſet over them, to obſerve wbich Lady is forje
the Agnatical Method is temper'd with this Re- brought to Bed of a Son: and i be Child which thus gets
ſerve, that in caſe all the Male-line fails, the the ſtart, is declared lawful Heir, ond educated in a
Right returns to the Females (a).
Royal Manner againſt the next Vacancy in the Throne.
We may remark in general of Lineal Succeſſion, XV. 'Tis a Queſtion uſually canvaſs’d, who
that ſince'tis ſo very plain and eaſy, it might be ſhall be Judge of the Controverſy between two
a principal means of deciding Controverſies in or more Competitors for a Crown ; eſpecially
Kingdoms, to enquire firſt of all, what kind of if the Kingdom be not Patrimonial (3) ? For
Succeſſion hath been there by Cuſtom eſtabliſh'd. to try out an uncertain Title by the Sword, is a
A remarkable Inſtance of this the Hiſtory of the manifeſt Breach of the Law of Nature. Here
laſt Age preſents us with in the Diſpute about the then it is evident, in the firſt place, that Dif-
Succeſſion to the Crown of Portugal; when Ray- putes of this kind cannot poſſibly be determin'd
nutius of Parma ftood on the Right of Lineal, the in the way of Juriſdiction, or proper Sovereign-
other Competitors on the Right of Simple Inhe- ty: and that therefore they muſt be left to that
ritance (b).
Method of Deciſion, which holds amongſt Per-
Xiy. Another Method of Succeſſion (2) may fons, living in a State of natural Liberty, in
be introduc'd, by Virtue of which he ſhall
always ſubjection to no Judicial Authority (4). In
ſtand neareſt to the Crown, who is neareſt to the which Senſe we ought to underſtand what Gro-
Founder of the Royal Family. Thus then the tius (m) hath deliver'd on this point. Now
(1) Theſe Names come from the Words Cognati and Agnati, the former whereof ſignifies the Kindred by the Mother's
; the latter, the Kindred by the Father's ſide. The latter only inherit the Crown by an Agnatical Succeſſion, but
one or other may obtain it by a Cognatical Succeſſion.
(a) Vid Guicciardin. l. 12. p. 367.
(6) Vid. Conneſtag. de Unione Luſitan. l. 3.
(2) Vid. Grot. l. 2. 6., 7. 3. 24.
(c) L. 2.9. C. 29:
(d) Jodoc. Schouten in Deſcript, Regn. Siam.
Lulitan. I. 1. the laft of which "Authors ſeems to hint, that this proceeded from a particular Compa& between the Bron
(e) Thuanus l. 65. ad. Ann. 1578. Co Conneſtag. de Unione
thers.
(f) Garcilafl. de la Vega, 1. 4. c. 10.
(8) Petrus de Valle, Itin. Par. III. Epift. 6. &
Hieron. Oforius, in ſeveral Places of his work.
(h) Franc. Lopez de Gomara. Hift. Ind. Occidental, c. 2$.
(i) Idem c. 12.
(k) Franc. Creuxius Hift. Canad. l. 1.
(1) L. 15. p. 528. Ed. Genev. Caſaub.
(3) The beſt
way is to refer it to an Arbitrator
that is of the fame Royal Family. "De Ofic. Hom.
& Civ. 1. 2. Corona
amicable Methods of deciding Controverfies as are praktisd by Perſons living in a State of natural Liberty, and that he
(4). If then the King or the People, find that either of the Competitors refuſes to make uſe of ſuch
ving had minded that, he would not have thrown away to many words in cenfuring his incomparable Author, on whore
him to reaſonable Terms by forcible means, tho their Determination be not in the way of Judicial Sentence. If Gronia
which were Publiſh'd almoſt at the ſame time of the firſt Edition of mine.
Mr. Barbeyrac's Second Note upon
this Section, p. 323.
(m) L. 2. c. 7. f. 27.

fide
f. 12.
he
thoſe

Chap. VII.
545
Eſpecially Monarchical.
ſpeak ot, are not ſuppoſed to have defhebe ime. inghe to have the Preference ? When the former
thoſe are ſaid to live in a State of Nature, who Power to give Judgment, when they refuſe to
are neither ſubject one to the other, nor both own the Perſon who puts in his Pretenſions. But
to a common Lord. And tho' the Parties them- if, upon a Vacancy in the Throne, Two Com-
ſelves may perhaps, whilſt they are contending, petitors offer themſelves, and engage in a Di-
acknowledge a Sovereign; yet the Cauſe is of ſpute about their Title, and the People only
ſuch a Nature, as not to bear the Sentence of any ſtand ready to receive him for their Prince, who
Perſon under the Notion of a Superior. Firſt, a ſhall have the better Right ; there is here no need
Foreigner cannot pretend to interpoſe as a of Judgment properly ſo call’d, or ſuch as is
Judge. Nor, Secondly, is the King himſelf, if given by the Sentence of the Court, to com-
the Controverſy happen'd to be ſtarted in his poſe Matters between private Men. For in this
Life time, a fufficient Arbitrator : in as much as Caſe the controverted Point muſt be one of theſe
the People, in theſe Monarchies which we now two; either barely, which of the Rivals ſtands
elſe
thod of the Prince to have the Preference? When the former
Not but that we have many Examples in Hiſtory happens to be the Queſtion, the contending
of Kings, who relying on their own Authority Parties are to clear their Deſcent as well as they
and Worth, have aſſumed greater Power in this are able; and he who ſhall appear to the People
reſpect, than the Conſtitution of Free Kingdoms to make out his Claim moſt evidently, ought to
would otherwiſe allow. Thus Darius in Herodo- carry the Day. Now tho', in this Method of
tus (a), decides the Quarrel between his own proceeding, the People's Vote weighs conſiderá-
Sons : and in Plutarch (6), Arficas and Cyrus fub- bly towards turning the Scale, yet
it is not pro-
mit to their Father's Determination (c). And nounced like a Sentence from the Tribunal, but
laſtly, it may be maintain'd, that neither the only in the way of a bare Approbation : as a
People themſelves can have ſuch a Competicion Debtor who is ready to pay, deſires only to ſee
in an Authoritative manner. Yet not for the the Bill, and to ſatisfy himſelf in the Truth of
Reaſon aſſign'd by Grotius, Becauſe the People have what he is charged with.
transferr'd all their Juriſdi&tion to the King and Roy But if the Diſpute be, which Degree or which
al Family, and therefore can claim no Reliques of it for Line ought to have the Preference, this ſhall be
themſelves, whilf any of that Line Survive. For adjuſted by the Common Declaration of the
Succeſſion in ſuch a Caſe doth not belong to People, ſince every one is preſumed to under-
that Juriſdiction, which the People conferr'd on ſtand what way he likes beſt; and ſince the Peo-
the King: and if a Quarrel of this kind ſhould ple is ſtill reckond the fame as it was heretofore,
ariſe during an Inter-regnum, the People cannot when the Order of Succeffion was originally
be debarr’d, at leaſt from a Temporary Juriſdi. eſtabliſh’d. Thus the Controverſy between Ed-
&ion. But the true Reaſon muſt be drawn from ward King of England, and Philip Valois, as like-
the Nature of theſe Diſputes. For the Effect of wiſe that which happen'd before between Jane,
Judicial Power, as exercis'd over Subjects, is, Daughter to Lewis Hutin, and Philip the Long,
that they ſhall be obliged to acquieſce in the was diſcuſs’d before an Aſſembly of the Eſtates
Sentence given, and upon Refuſal, ſhall by vir- of France (d). Thus we find in Mariana (e) nine
tue of the Sovereign Authority be compelíd to ſelect Judges ſettling the Succeſſion in the King-
ſubmit. And this, becauſe 'cis one part of Civil dom of Arragon. And in Dionyfius Halicarnaſſeus
Subjection, to expect from their Superior, the (f), the People end the Differences between
Deciſion of any Controverſy that may happen Sylvius and lülus, in favour of the latter ; chiefly
between them and their Fellows. But now, if on this Argument, That he was born of a Mother,
we run over all the various Doubts which may who had been the True Heireſs of the whole King-
be rais’d on the Point of Succeſſion, we ſhall dom. And yet, this Declaration hath no more
find that not one of them is capable of being of the Nature of a judicial Sentence in it, than
ſolv’d by the People, in the ſame commanding when a Perſon, who hath firſt conferr'd a Grant,
manner, as the Cauſes of private Perſons are afterwards explains fome Terms that were
ended by the Ordinary Judge. For ſuppoſe a thought ambiguous, or obſcure in the Inſtrument
Prince already ſettled in the Throne, with the of Donation.
Approbation of the People, ſhould have a Claim In Caſe either of the Competitors ſhall re-
put in againſt him by another of the Royal preſent it as a Grievance, that the Affections
Family, who pretends be the nearer Heir: In of the People feem prejudiced in favour of his
this Caſe, the People having acknowledged the Rival, it may be the moſt ready Expedient to
Prince in Poffeffion, it cannot be imagind, that refer the Conteſt to proper Arbitrators; ſuch as
the new Claimant will appear, or ſtand to their are neither inclin'd to one Party more than to
Verdia. Nor, on the other side, will the Pof the other, and in regard to whoſe Intereſt, 'tis
feffor of the Throne ſubmit to be judg’d by an indifferent Matter which of the Two gets the
thoſe who have already own'd him for their Só- Victory (g).
vereign. Much leſs have the People a fufficient
(a) Polymnia, init. Yet Juſtin (1. 2. c. 10. n.9, 10.) reports that the Cauſe was referr’d by the Conſent of the Bro-
thers to their Uncle Artaphernes as to a Domeftical Judge. (6) Artaxerx. init. (c) Add 1 Kings I. 5, Egoc
(d) See the French Hiſtorians, and Polydor. Virg. Hiſt. of Engl. 1. 19. ab init. (e) Hiſt. Hiſpan. 1. 20.c, 2, 3.
(8) Vid. Conneſtag. de Unione Luſitan. I. 3.80 5. The moft uſual Controverſies that occur on this
Head, ſee in Grotius, 1.2.6. 7. 1, 28, 33c. Arniſæus Relet. Polit. 1. 2. c. 2. 1. 10, Soc. and in other Authors,
1) L. 1.
СНАР.
546
Book VII.
de toda einn
C H A P.
VIIJ.
The Supreme Power is to be held Sacred in Civil States. Other con la


I.
The Supreme Power not to be refifted in VI.
lawful Comands.
The Name of a Tyrant does not juſtify the
II.
Whether a Private Member can Sufer In- vit
. Grotius
, Umpikonce in the Subject."
VIII.
III.
IX.
IV.
jury from
Subjects very prone to unjuſt Complaints
againſt their Governours.
How many ways & Sovereign may injure
his Subject.
Whether in the Caſe of Grievous Injury
and Oppreſſion a Lawful Prince may be
reſiſted.
Digton
No Princes are to be held Sacred, but ſuch as
are truly inveſted with Royal Authority.
In what Cafe an Ufurper may be acknow-
ledg’d for a Lawful Prince.
How far the Commands of an Uſurper
oblige the Subjects, while their Lawful
Sovereign is alive, tho' in an Exild
condicion.
X.
V.
TO

I.
1. A
S Civil Empire, or Sovereignty, was firſt and in any Buſineſs of this kind a private Mem.
introduced to guard the Safety of Man- ber cannot complain of Injury, cho' he ſhould
kind, and to take off the almoſt infinite Miſeries happen to diſlike the publick Proceedings. But
of a State of Nature, ſo that it be held ſacred ſince it is very poſlible, that the Sovereign Power
and inviolable by all Men, is highly the Intereſt may enjoin the Subject ſuch Performances, or
of the whole World (a) (1). And thus much inflict on him ſuch Evils as bear no regard to the
indeed every Man in his Wits will confeſs, that publick Welfare, but intrench on the particular
'ris a Sin to oppoſe a lawful Ruler, whilft ading Perſon's Right, wherher acquired by Covenant,
within the Limits of his Authority. In as much or by the univerſal Law of Humanity; there
as it appears evidently from the Nature and De- appears no reafon why we ſhould not affirm that
ſign of Government, that there muſt of Necef- a private Member is capable of being injur”d by
ficy be join'd with it an Obligation to Non-re- the State to which he belongs. Bu
fiftance; or to a ready Obedience in performing III. But here it ought well to be conſider'd,
or omitting any thing, which it ſhall command that turbulent and querulous Subjects are wont
or forbid. The main Queſtion therefore muſt to cenſure many Adions of their Prince as Inju-
be, whether in caſe the Sovereign ſhould enjoin ries which are by no means ſuch. Every thing
the Subjects what is unlawful, or treat them in is by them condemn'd, for Oppreſſion and Mil-
an injurious manner, He is then alſo be efteem'd management, chat doch not exzely ſuit with
Sacred; and ſo, that the Subjects ought not in a their private Judgment. Now as the great Va-
violent way to reſiſt and repel the Injury ? riety of Men's Inclinations, and the Irregula-
II. Mr. Hobbes (b) indeed maintains, that A rity of their Aims and Wiſhes, make it impollible
State cannot do Injury to a Subject, as neither can as that the publick Adminiſtration ſhould be equally
Mafter to bis Slave. And he builds his Notion on grateful to all Perſons; ſo he who exclaims a-
this Argument, ' That no Covenant hath paſs'd gainſt all Proceedings as injurious, which do not
« between the State and the Subject, (all Injury hit his particular Humour, is either contriving to
according to him, conſiſting in the Violation of overthrow the Confticucion, or hach a Mind to
a Covenant ;) and that the Will of the Subject is be tampering in the Government himſelf. The
entirely ſubmitted to the Will of the State, ſo laſt is the caſe with many Murmurers; who are
. that whatſoever the State acts is ſuppoſed to be diſcontented only becauſe the Common-wealth
done with the Subject's Conſent. But now that is not in their own Hands. Of this Number was
what a Man willingly conſents to receive, can Avidius Caflius (), who boaſted that he took up
be no Injury to him, is a Maxim that every Arms againſt Marcus Antoninus, becauſe he was
Body is acquainted with. But we have alrea- diſpleas'd at the Prince's Greatneſs, and could not
dy evinced (2), both chat Injury doth not barely bear the Name of an Emperor. The ſame Pretence
conſiſt in the Violation of a Covenant, and that was made uſe of by Peſcennius Niger (d), and by
there doth really a Covenant (3) paſs between Clodius Albinus (e),' in their Rebellions againſt
the Monarch and his Subje&s. And as for Sub- Severus. Many complain of their Prince for em-
jects ſubmitting their Will to the Will of the ploying bad Miniſters; when if we ſearch into
State, this muit be interpreted, and reſtrain'd the Bottom of their Diſcontent, we ſhall find it
according to the true End and Deſign of Civil to be only that they are not themſelves preferrd
Communities; and then the whole Matter will to a Share in the Miniſtry. The Common Peo-
come to this lifue : every Subject ſubmits his ple often grumble at the Hardſhip of Taxes,
Will to the Will of the State in all thoſe Affairs, when no inore is demanded chan what the
which reſpeat the Common Intereſt and Safety; prefent Occaſions of the Publick, or ſuch Neceſ-


$
(a) Add. Diodor: Sic. l. 1. c. 90.
(1) V. Grot. 1. 1. c. 4. f. 2. And two Latin Diſcourſes of Mr. Noodt's
Publish'd in French by Mr. Barbeyrac in the beginning of the Year 1907, Entituled, Du Pouvoir des Souverains, so de la
Liberté de Conſcience at Amſterdam.
(6) De Cive, c. 7. f. 14. c. 8. f. 7.
venth Chapter of the fir At Book, Se. t. 13.
(3) See above in the Second Chapter of this book, Se&t. 8, Sc.
(c) In Vulgat. Gallican, c. 1.
(d) In Ælian Spartian.
le) in Ful. Capitolin.
fities
(2) In the Se-

Chap. VIIT.
547
Held Sacred in Civil States,
štates. sa
never happen
fo utter
. ,
ficies as are likely to ariſe hereafter, ſeem to re. Advantage of it. But it will be a much greater
quire. And what Anſwer they ought to re- Injury, ſhould he wish Hoſtile Intencions, di-
ceive, Mr. Hobbes (a) will inform us. As for the realy endeavour to overthrow the Common
Atri& and ſevere Execution of the Laws, no Safety; and put on the Perſon of
Perfon can make this the Ground of his Diffa. which cannot poſſibly conſiſt with the Perſon
tisfaction, but ſuch an one as deſires a Literty of of a Sovereign (1). But ſuch a Cafe as this can
where a Prince is Mafter of his
Man looks on thoſe Burthens as intolerable
, own Reaſon. For who, in his Wits,
Wits, would
which the Affairs of the Commonwealth make ruin what belongs to himſelf (2)? Or where
neceſſary, he hath the Privilege of quitting the will be meet with Subjects, who uſeth chem as
Scate. And if he is not inclined to make uſe of Eremies? Yet indeed, if he happens to enjoy
that Privilege, he hath nothing to blame but two Kingdoms at once, 'tis poſſible that he may
the Common Condition of Mankind, who are feek the Deftru&ion of the one, to advance the
not to expe& in this world any Degree of pure Intereſt and Greatneſs of the other (3). But
and untainted Felicity. But ſhould he think it we have an Inſtance even of the former Madneſs,
allowable for him, on this account, to rid him- in the Story of a certain King of Peru, in the
ſelf of the lawful Government by violent means; laſt Age, who by the Practice, as 'cwas reported,
'cwere the ſame thing, as if he ſhould reſolve to of ſome Magicians, was poſſeſs’d
improve his Fortune by Rapine and Theft, be- an Averſion to his Subje&s, that he took up a
cauſe he thinks it a Hardſhip to maintain himſelf Reſolution to make them all away; and in or
by his own Induſtry and Labour.
der to this, commanded
à that
no Perſon under
IV. Tho' all this muſt be acknowledg'd to be pain of Death, ſhould Till the Ground for the
true ; yet there is no doubt, but that a State, or ſpace of Three Years. Which occaſion'd fo grie-
the Sovereign Ruler of it, may do an Injury to a vous a Famine, that the People murther'd each
private Subje&: ſince here the Parties are both other for Food (b). Again, a Prince injures the
under the ſame common Law of Nature at leaſt, Community, if he ſubverts the Fundamental
which is ſufficient to make them capable of being Laws without the Conſent of the People, and
injured one by the other. Now a Sovereign may upon no urgent Neceffity; or if he go about to
be conceiv'd to injure his Subjects owo ways, if change the manner of holding the Government.
in his Dealings with them he violates either the As likewiſe, if he ſhould ruin the publick Patri-
Ducy of a Prince, or the Duty of a Man ; that mony; or if, by impoſing greater Tributes than
is, if he either creats them not as Subje&ts, or not the Occaſions of the State require, he ſhould
as Men. The Duty of a Prince reſpe&ts either firſt imploy the Subje&t's Purſes, and then ſquan-
the whole People, or particular Perions. Thus der away the Money in Extravagance, or ſend
much a Prince owes to the whole People, that it out of the Realm: with many Aas of the ſame
he procure the Good and Safety of the Com- Nature. To all which may well be applied the
munity, either by his own Judgment, in caſe he ſmart Concluſion of the Old Greek Epigram (c).
be Abſolute, or if his Power be limited by Laws,
according as thoſe Laws ſhall direct and pre 'Αλλα λύκες έργον τι δε το πλέον, ει το φυλαχθεν
ſcribe. Therefore he injures the whole People,
'Ολλυται, έιτε λύκους, ειθ' υπό τέ φύλακος;
if he quite throws off all Care of the Govern. But he keeps off the Wolf; we own the Deed 2
ment, in his own Perſon, and doch not ſo much
But where's the Difference, if the sheep muſt bleed,
as ſee, that the publick Buſineſs be diſpatch'd by Wbether the Keeper, or the Wolf they feed ?
his Miniſters, As for Inſtance, if he ihould nei-
ther inndertake the Defence of the Kingdom The Duty which a Prince owes to his parti-
againſt Foreign Enemies, nor by a due Execution cular Subjects is, that he permit them to enjoy
of the Laws ſecure its inward Peace ; and yet in the ſame Rights with others of their Rank and
the midſt of all this Neglec, ſhould continue to Order that he prote& and defend them, and
enjoy the Titles and Revenues, and ſhould judge adminiſter Juſtice to every one, ſo far as his re-
the Greatneſs of a Prince to conſiſt in the un gard to the publick Safery will allow him. If he
bounded Excent of his vicious Pleaſures. For if, fails in any of theſe Performances towards par-
together with the Adminiſtration, he lays aſide ticular Perſons, when the Condition of the
the Honours and Profics of the Regal Office, he Commonwealth would give him leave to diſ-
Thall be ſuppoſed to have plainly abdicated the charge them, he certainly does the reſpective
Government. Which Privilege of reſigning the Perſons an Injury (d). An Old Woman who
Crown ought to be allow'd him, unleſs he hath came with a Petition to the Emperor Adrian, and
firſt, by Evil Counſels, put the Stare under great was by him told that he had no leiſure at preſent
Difficulties, and then would deſert it in the to hear her, in a very angry mood made Him
midſt of its Danger. And this muſt be own'd this ſmart Reply, Ergo noli imperare, Therefore don't
for a manifeft Injury, thus to diſcharge no part pretend to Govern (e).
of a Duty, and yet to deſire the Reward and
1. II.
(4) De Cive, c. 12. 6. 2,
(1) As the Emperor Caligula, who wiſh'd that the Roman People were but
one Head, that he might daſh its Brains out, as we have it related in Sueton. c. 39.
(2) V. Grot. 1. 1. C. 4.
(3) This is what Philip King of Macedoń formerly did, as is related in Livy, B. 40. c. 3, loc.
(6) Joan. Moquct. Itiner.l. 4.
(c) Antipater in Antholog
(d) v. Juftin. l. 9. c. 6. near the
end. Tho' indeed Pausanias's A&tion is by no mčans to be commended.
(ė) Xiphilin: Epit. Dion. Ey Zoo
That
nar. T.11.

Book vir
may
.
vity
hath occaſion’d by ſome a Damage which he Convulſion of the State, the very worſt of Princes
amongſt Arms and Trum. As you immoderate Force of Rain, and the other In.
T.attempted ; or,
Avarice of ritgan
if taken off by the Surprize of unexpected Fate, carries World ſo long as there are Men; but then theſe are
(1) V. Grot. l. I. C. 4. f. 4. That maft be duly
$48 The Supreme Power is to be
That
at Duty which the Prince ſtands under as
wont to paſs over flight Miſcarriages. Therefore
a Man, he violare ſeveral ways, in his how much more juſt and reaſonable mult it be
Tranfa&tions with particular Subje&s. As ſup: to overlook
the pardonable Failings of a Prince,
pofe he ſhould undeſervedly brand an honeſt on whoſe Care the Tranquillity of the whole
Perſon with Diſgrace and Ignominy; if he Nation, and the Security of every Man's Life
Thould with hold the Reward promis tó his and Fortune depends ? And ſo much the rather,
Service, if he ſhould refuſe to diſcharge his lince Experience informs us, with how facala
Debes, or to fulfil his other Contracts or En- Deftruction of the People, and how miſerable 1
to repair a ,
; have been dethron’d. We are to forgive then
if he ſhould affault the Honour of chaſt Virgins, the lighter Injuries of Rulers'; as well in regard
ſhould defile his Subje&'s Beds by Adultery, to their high and noble Office, and to the
e many
ſhould hurt their Bodies, ſeize or deſtroy their Benefits we conſtantly derive from them in other
Goods; laſtly, if he ſhould take away the Life refpe&s, as out of a due Concern for our fellow
of an innocent Perſon, either by dire& and Subje&ts
, and for the whole Conmonwealth 85
downright Violence, or by ſuborning falſe (1) We ought to bear, ſays Tacitus (C), with the
Witnefles againſt him, or compelling the judges Tempers of Princes ; ſi ce
, frequent Alterations can med
through Threats and Promiſes, to paſs an unjuſt vér
, turn to the Advantage of a State. Tis a lentia
Sentence of Death : Ammianus Marcellinus (a) ble Argumenr, that which Cerialis (in the ſame
hath made a very ſenſible Reflexion on the Grie- Author (d)), ulech to the Rebellious Treviri
,
vances laſt mentioned. imongſt Arms and
, 1
ſays he, the Barreneſs of *
pets, ſays he, the Equality of Condition makes the Soil,
the Soilthe , .
Danger Seem lighter; and the Power of Martial Vs. conveniencies of Nature, so endure the
Luxury or the
Lour either
no Mark of Infamy along with it, but concludes Life not perpetual, and are amply recompenſed by the Inter
and Pain together. But when the Pretence of Rights mixture of better Qualities. Plató fe) ſpeaks admi-
and Laws Jerves to cover and diſguiſe wicked Coun- rably to the ſame purpoſe, We og bt never to taje s
fels
, when the Judges fit maſqu'd in the levere Gra- Violence to our Parents, unleſs they are deprivºd of their
of Cato or Caffius, but att every thing accord- Reaſon : But if we diflike their munner of Living we
ing to the Arbitrary Pleaſure of their inſolent Maſter, muſt not provoke them by unprofitable Remonftrantes
,
and the whole Affair of Life and Death is weigh'd and or cheriſh in them by Servile Flattery and a Criminal
determin'd by his Humour, nothing elſe can enſue but Compliance, the Vices to which we would not be ſubject
Capital Deſtruction and precipitate Ruin.
ourſelves. A wiſe Man will take up this Reſolution
V. But 'tis a Point of greater Difficulty to ex in regard to his country'; then only- to reprebend the
plain whether 'Subjects are obliged to endure all Miſcarriages in the State
, when his Reproof is likely
thoſe Injuries without reſiſting, or whether in to meet with good Effe&t, and not to draw down Ruin
fome Caſes they may not repel them by Force ? on himſelf : but when a Reformation cannot be wrought
Our Judgment on the Matter is this : Since witbout the Expulfion and Slaughter of many
fuch is the Condition of Human Life, that it he will never attempt to introduce a Change in the
cannot be exempt from all Inconveniences, and Government by violent means ; but will give himſelf
lince 'cis not eaſy to find a Man in the whole up to Quiet and Retirement, and pray for his own
World, who is ſo nicely exact in his Behaviour, and the Publick Happiness if). Besides, a Man
as to give a compleat and univerſal Satisfa&ion; confults his own Safery, when he chooſeth ra-
'cwould be equal Folly and Impudence to oppoſé ther to diſſemble' the Affronts of too powerful an
a Prince for every Fault : eſpecially ſince we our Oppreffor, than to draw on himſelf fome greater
felves on the other hand are not ſo very pun&u- Miſchief, by unreaſonable Reſentments and
al in the Diſcharge of our Duty towards Him; Complaints (g). Add to this, that as we are
and ſince even in private Perſons the Laws are commanded by the Holy Scriptures (2), Yo are
(a) L. 26. c. 13.
(6) V. Juftin. l. 15.C. 4.
conhder’d. For the Sovereign has never any Right to do the leaſt Injuſtice. If then we ought not to reſiſt him but in
the laſt Extremity, 'tis not for his Sake, or by Virtue of his Power, but on account of the Intereſt of the State ; which
would by that means be expos'd to Troubles and Commotions. Beſides that (as Gronovius obſerves, in his Notes upon
Grotius, Lib. I. Cap. III. Sect. 8. Num. 15) it often happens that a People upon the Expulſion of one bad Prince, fall
under the Dominion of another worſe than the former, the ſpecious Name of Liberty ſerving thoſe for a Prerence who
are Ambitious of bringing them under their Subje&tion. 'Tis a Refle&tion which Tacitus puts into a General's Mouth.
Cæterum Libertas Sy Specioſa nomina pratexuntár, nec quiſquam alienum fervitium io dominationem fibi concupivit,
ut non eadem eſta vocabula uſurparet, Hiſt. Lib. IV. Cap. LXXIII. Another Latin Hiſtorian gives us an Inſtance of it in
bertatis Sandrocrotus fuerat, sed titulum Libertatis poft victoriam' in feruitutem verterat. Jatin. Lib. XV. Cap. IV.
Num. 13. Mr. Barbeyrac's ſecond Note upon this Se&ion, p. 328.
(c) Ann. 12.6. 11.:
(d) H. 4. c. 74:
(e) Epiſt. 7. p. 1281. D. Ed. Weeb.
(f) Cicero produceth this Paſſage out
of Plato in the Ninth Epiſtle of his Firſt Book ad Familiares.
(g) See the Sentences cited to this purpoſe by
Grotius, vbi fupra. Æſchylus Prometh. Vinst.
When a felf-will'd Lord
in Evegs neyter, &fc.
Too big to be controul'd, and fiercely bent
On Cruelty and Rage, afcends the Throne ;
Strive not in vain, nor kick againft the Goad,
(2) 7 Ep. Pet. 11. 17, 18.
ny Perfons,
23

ز
10
we
Chap. VII.
549
Held Sacred in Civil States,

or Dependent a
we adviſed by found Reaſon, patiently to ſuffer Sovereign Civil Authority, neither could nor
the moroſeneſs and Severity of our Parents and would by that Aą renounce the Subjection which
Maſters (a)(1).
they before ſtood under to Almighty GOD,
Nay farther, this too is moſt certain, Thac and conſequently that they are not bound by any
when a Prince with plain Hoftile Intentions, Injunctions of the Civil Power, plainly repug-
threatens the worſt and moſt cruel of Injuries, it nant to the Divine Commands. What a Subject
is better if we can to withdraw our felves from ought to do in this caſe, if threatned with Vio-
the Stroke, and either to ſecure our felves by lence on the account of his Chriſtian (2) Profel-
Flighe and Concealment, or to remove into a fion, it is not our Buſineſs to determine (3) : in as
nocher Country and Government for Protection. much as the ſame Scriptures, in which that holy
But what if a Prince ſhould with this Hoſtile
ſhould with this Hoftile Deårine is deliver'd, may fully inform any, Per-
Fury attempt to deſtroy an innocent Subje&, fon how infinitely it cor
without leaving any Políbility of Eſcape ? Many nor ſo much as ſeemingly to aä any thing con-
as to this Cafe are not able to conceive how the trary to his Religion (b), and at how great a
fame Man can thus bear the Perſon of a Prince, Price, if Occaſion be, he ough to purchaſe his
and of an Enemy together, in reſpe&t of the poor Innocence. But that, upon the Apprehenſion of
Sufferer, or with what Face he can claim the certain Death, a Man may undertake the Per-
Privilege of being held inviolable, who thus is formance of an A&tion in it ſelf repugnant to the
bent on facrificing a guiltleſs Member of the Law of Nature, without any Sin on his pare,
State, as a miſerable Vi&im to his Luſts. But we ſhall by and by make out (4). Yet if the
they are of Opinion, that if he who owes ano- Adion enjoin'd be ſuch, as I cannot perform
ther his Prote&tion and Patronage, ſhall upon without deriving Guilt on my ſelf, or ſuch as I
no Cauſe at all, or upon an unjuſt one, affume efteem to be, in its own. Nature more bitter
the Mind of an Enemy towards him, he re chan Death, and at the ſame time no reaſon is
leaſeth the other Party from his Duty of a Client ſhown, nor ſo much as Probability pretended,
ſo for at leaſt, as that it ſhall be either from ſome Fault of mine, or from the
lawful for the latter to make uſe of Force in de- publick Good, why I ſhould be put under this
fending himſelf from the unreaſonable Cruelties Neceſſity of doing what might either have been
of the former. Which Defence may the better done by another, or ought not to be done at all;
plead for Favour, the greater the Number is of ic is manifeſt, that the whole Deſign of ſuch a
thoſe whom the Prince endeavours thus injuri- Command is, that I may be deſtroy'd, who have
ouſly to deſtroy. But ſince 'tis hardly poſſible to committed no Offence, purely to gratify the
find any Examples of Princes, who entertain a Will of the Enjoiner, and his cruel Diſpoſition
Deſign againſt the Lives of innocent Men, and towards me. By which Ad, fince he lays aſide
openly profeſs that they do it out of meer Arbi- the Prince to put on the Enemy, he is ſuppos'd at
bitrary Pleaſure ; a greater Doubt ariſeth what the ſame time to have remitted the Obligation,
Courſe can be lawfully cakeri, when a Prince which lay on the part of the Subject. But ſtill
goes about to exerciſe Cruelty under the Pre- as far as 'tis poſſible, we are to avoid this Danger
tence and Colour of Right; as ſuppoſe, in way by Flight, and to ſeek the Patronage of ſome
of Puniſhment, for the Neglect of an unjuſt third Perſon, who is not by any Ties engaged to
Command. Now here we firſt of all take it for the ſame Prince. Nay, if all means of eſcaping
granted, that ſince in conferring any Power there are cut off, we ought rather to be kill'd than to
is a Salvo made to the Right of all Superiors, kill (5): yet not ſo much out of Veneration to
therefore the Subjects, upon the eſtabliſhing a che Perſon of ſuch a Ruler, as out of regard to
ز
(a) Pliny, L 3. Ep. 14. ſpeaking of Maſters being murther'd by their Slaves, ſays, Non judicio ſed ſcelere perimuntur,
They are kill’d, not in the Method of Judgment, but of Villany.
(1) Ut Parentum Sævitiam, fic Patrie, patiendo ac ferendo, leniendam efle, Livy, l. 27. c. 34. See Epiftet. Enohirid. Cap.
XXXVII. and Juftin. Lib. XV. Cap. IIJ. Num. 10. Plato in the Dialogue, Intituled, the Criton, compares likewiſe the
Patience where withi we ought to ſuffer any Injuſtice we receive from our Country or the Commonwealth, to the manner
in which a Child ought to bear with the Moroſeneſs and Severity of his Parents, or a Slave the ill Uſage of his Maſter,
Nay, he even ſays, that the Subject ought to ſuffer with ſo much the more Reaſon, as the Obligation which we are un-
der with reſpe&t to the State, is greater than that which a Man owes to a Maſter, and to thoſe from whom he receiv'd his
Being. "Horpos refe de sol tòp latégve on üv to sixelcov, c. Tom. 1. P. 50, 51. Ed. Steph.
(2) As it cannot be prov'd, neither by the Principles of the Law of Nature, nor by the Holy Scripture that Sovereigns
are veſted with a Power to hinder any one from lerving God in a peaceable manner, according to the Dictates of his
Conſcience (ſee above, Chap. IV. S. 11. Note 2.) ; it follows from thence, that the People have as natural and as unque-
ſtionable a Right to defend their Religion by Force of Arms againſt a Sovereign, who endeavours to compel them to re-
nounce it, or to forbid them the free Exerciſe of it, as to defend their Lives, their Eſtates, and their Liberties againft
the Attempts of a Tyrant. This Right is even more allowable than any other, in as much as it regards the greateſt
of all Intereſts, and the ſtrongeſt of all Obligations, or rather that which is the Foundation and Source of all others, I
mean, the indiſpenſible Neceffity, that obliges every Man to follow the Light of his own Conſcience. 'Tis to no purpoſe
for Grotius, after having approv'd of the Conduế of the Maccabees, to maintain however that the Chriſtian Religion
leaves its Followers no other Remedy but Flight, or Patience. The Paſſages which he produces regard only private
Perſons who are not in a Capacity to relift.' But (as Mr. Bernard, Nouv. de la Rep. des Lettres Mai 1700.
P.: 557. obſerves) Jeſus Chriſt moreover gives People the Liberty of defending their Rights by the common ways of fu-
ftice
. See alſo Gronovius's long Note upon Grotius, Lib. I. Cap. IV. Sect. 7. Num.8. and Mr. Vander Muelen's Differtation
de Sanétitate ſummi Imperii civilis
, &c. p. 70. &c. Mr. Rechenberg the preſent Profeflor of Divinity at Leipfick, likewiſe
publiſh'd a Differtation de Religione armis defenſa in the Year 1689. at the ſame time that he had'a Profeſſorſhip in a-
nother place. He applies the general Propoſition to the Proteftants in particular. Mr. Barbeyrac's ſeventh Note on this
(3) See Sir George Mackenzie's Jus Regium, p. 113, &c.
(6) See Matth. X.
31, &c.
(4) B. 8. c. 1. f. 6.
(5) V. Grof. 1. 2. C. 1. f. 9. cum not, Gronov,
+
Tit
the
Sc&ion, p. 329.

550
The Supreme Power is to be
Book VII
particular Subject engageth the Prince's Care and
the Commonwealth, which on ſuch an occaſion, reft of the People are not at all releas'd from their
Troubles. But when a Ruler proceeds against a Reaſon, Becauſe, in the firſt Contraat, every
Subject in way of puniſhment for a real Crime,
altho' here the subje& is not bound to meet the Protection only for himlelf, and doch noc lup-
Miſchief by voluntarily appearing and offering poſe is a Condition of his own Obedience, that
up himſelf, yet the Reaſon why he cannot, in all and each of his Fellows ſhall be juſtly created.
this Caſe, defend himſelf by Force is, that the Nor is the Fear of being hereafter
uſed in the
Prince a&ts nothing here but what is conſiſtent ſame manner, ſufficient to break off this Obli-
with his Right; and therefore it would be highly gation in the other Subjects; Firſt, becauſe it is
injurious, whatever the Pretence might be, to uncertain ; and, Secondly, becauſe 'cis poſſible
offer him any Hurt on ſuch an account. It ought the Prince's Hatred to this perſon mighỉ be
farther to be obſerv'd, that altho’we ſhould grant founded on ſome particular Reaſons, which do
never ſo fully, that a particular Subject may, in not appear in others. But whilſt the Subject's
ſome Caſes guard his Safety by Violence againſt Obligation towards the Prince remains in Force,
che injurious Aſſaults of his Superior, and this it ſhall not be lawful for him on what Presence
without Sin ; yet it doth not hereby become ſoever, to make any violent Refiftance.
lawful for the other Subjects to throw off their VI. Now, as what hath been hitherto deli-
Allegiance, or prote& the innocent Party by verd is, in the Opinion of many Men, not at all
forcible means. For beſides, that they ought derogatory from the Sacredneſs of Princes : fo,
not to make Inquiſition into theſe Acts of the on the other hand, thoſe Perſons are not to be
Prince, which he exerciſeth as it were by Virtue endured, who affert in groſs, that a King, when
of his Judiciary Power, and that many guilty he degenerates into a Tyrant, may be deprived
Perſons to draw Odium on the Government, of his Crown, and brought to Puniſhment by
make high Precenſions to Innocence; tho' the the (1) People. For ſince the Ads of Civil Go-
Perſon ſhould happen to be really injured, the vernment are for the moſt part ſo obſcure, that
و
We may
8
$
(1) When we ſpeik of a Tyrant that may lawfully be dethron'd by the People, we do not mean by the Word People
the vile Populace or Rabble of the Country, nor the Cabal of a ſmall Number of Factious Perſons ; but the greater and
more judicious part of the Subjects of all Ranks in the Kingdom. Beſides, the Tyranny muſt be ſo notorious, and evi-
dently clear, as to leave no body any room to doubt of it. See what Mr. Buddeus ſays to this Matter, upon Tarquin the
Proud, in his Diſcourſe, Intituled, Juriſp. Hiftorica Specimen, Sect. 35, &c. Among the Sele&ta Jur. 'Nat. so Gent.
See likewiſe Mr. Le Clerc upon Judges III. 20. v. 24. Now a Prince may eaſily avoid making himfelf ſo univerſally
fufpected and odioas to his Subjects : for, as Mr. Locke ſays, in his ſecond Treatiſe of Civil Government, Chap. XVIII.
Se&t. 209. It is as impoſſible for a Governor, if he really means the Good of the People, and the Preſervation of them and their
Laws together, not to make them ſee and feel it; as it is for the Father of a Family, not to let bis Children fee be loves and
takes care of them. And therefore the general Inſurre&tion of a whole Nation does not deſerve the Name of Rebellion.
ſee what Mr. Sidney fays upon this Subje&t in his Diſcourſe concerning Government, Chap. III. Sect. XXXVI.
Neither are Subjects bound to ſtay till the Prince has entirely finiſh'd the Chains which he is preparing for them, and
has
put
it out of their power to oppoſe him. 'Tis fufficient that all the Advances which he makes are manifeſtly tending
to their Oppreſſion, that he is marching boldly on to the Ruin of the State. In ſuch a caſe, ſays Mr. Locke admirably
well ubi fupra, Se&t. 210. How can a Man any more binder himſelf from believing in his own Mind which way things are go-
ing, or from cafting about how to save himſelf
. than he could from believing the Captain of the Ship he was in, was carrying
him and the reſt of his Company to Algicrs, when he found him always ſteering that Courſe, tho Cross Winds, Leaks in his
Ship, and want of Men and Proviſions did often force him to turn his courſe another way for ſome time, which he fleadily re-
turned to again, as ſoon as the Wind, Weatherand other Circumſtances would let him ? This chiefly takes place with reſpe&t
to Kings, whoſe Power is limited by Fundamental Laws. . If it is objected that, the People being ignorant and al-
ways diſcontented, to lay the Foundation of Government in the unſteady Opinion and the uncertain Humour of the
People is to expoſe it to certain Ruin ; the ſame Author will anſwer you, that on the contrary, People are not ſo ca-
fily got out of their old Forms as ſome are opt to ſuggeſt. England, for Inſtance, notwithſtanding the many
Revolu-
tions that have been ſeen in that Kingdom has always kept to its old Legiſlative of King, Lords and Commons :
' And whatever Provocations have made the Crown to be taken from ſome of their Princes Heads, they never carried the
People fo far as to place it in another Line. But 'twill be ſaid, this Hypotheſis lays a Ferment for frequent Rebellion.
No more, ſays Mr. Locke, than any other Hypotheſis. For when the People are made miſerable, and find themſelves
expoſed to the ill Uſage of Arbitrary Power ; cry up their Governors as much as you will for Sons of Jupiter, let
*them be Sacred and Divine, deſcended or authoriz'd from Heaven ; give them out for whom or what
fame will happen. The People generally ill treated, and contrary to Right, will be ready upon any occafion to eaſe
• themſelves of a burden that fits heavy upon them. 2. Such Revolutions happen not upon every little Miſmanagement
in publiek Affairs. Great Miſtakes in the Ruling part, many wrong and inconvenient Laws, and all the flips of Hu-
man Frailty will be born by the People without Mutiny and Murmur. 3. This Power in the People of providing for
their Safety a-new by a new Legiſlative, when their Legiſlators have acted contrary to their Truft by invading their
• Property, is the beſt Fence again't Rebellion, and the probableft means to hinder it. For Rebellion being an Oppofi-
tion, not to Perſons but Authority, which is founded only in the Conſtitutions and Laws of the Government ; thote
whoever they be, who by Force break through, and by Force juſtifie their Violation of them, are truly and properly
* Rebels. For when Men by entring into Society and 'Civil Government have excluded Force, and introduced Laws
• for the Preſervation of Property, Peace, and Unity among themſelves ; thoſe who ſet up Force again in Oppoſition to
the Laws do Rebellare
, that is, do bring back again the State of War, and are properly Rebels as the Author Thews,
* In the laſt place he demonſtrates, that there are alſo greater Inconveniencies in allowing all to thoſe that
govern,
in granting ſomething to the People. But it will be ſaid, that III-affected and Factious Men may ſpread among the
· People, and make them believe that the Prince or Legiſlative a&t contrary to their Truſt, when they
only make uſe of
their due Prerogative. To this Mr. Locke anſwers, that the People however is to be judge of all that; becauſe ne
body can
better judge whether his Truſtee or Deputy acts well, and
according to the Truſt repofed in him, than he who
deputed him. He might make the like Query (fays Mr. Le Clerc from whom this Extract is taken) and ask whether
,
s the People being opprefs'd by an Authority which they ſet up but for their own Good, it is juft that thoſe who are
veſted with this Authority, and of which they are complaining, thould themſelves be Judges of the Complaints made
againſt them? The greateſt Flatterers of Kings dare not ſay, that the People are obliged to ſuffer abſolutely all their
• Humours, how irregular foever they be ; and therefore mut confeſs, that when no regard
is had to their Complaints
,
the very Foundations of Society are deſtroy'd ; the Prince and People are in a State of War with cach other, like
you pleaſe, the
than
e
the

Chap. VIII.
551
Held Sacred in Civil States.
of the preſent Conſtitu-
or few Mes
the Mulcitude cannot apprehend the Equity or the higheſt and moſt provoking Grievance ? Yet
the Neceflity of them, and often, through Pre- if Plots againſt the Prince's Government, or
judice or Paſſion, will not apply their Minds to cher Crimes are, in pretence at leaſt, laid to their
a Diſcovery of the Truth; and ſince, generally Charge, or the ordinary Courſe of Judgment
ſpeaking, it makes for the Intereſt of the Com- obſerv'd in condemning them; although per-
monwealth to let the Reaſons of the State and haps the Perſons themſelves, and ſome few o-
the Grounds of publick Counſels and Proceed. thers may be throughly ſatisfied of their Inno-
ings be known but by a very Few ; it will be a cency; yet how is is poſſible that the reſt of the
noſt difficult Task o point out exadly thoſe people ſhould have the ſame Certainty and Af-
ſeveral Aäions, on the Performance of which ſurance ? Eſpecially ſince the Preſumption of
a Prince may juftly be calld a Tyrant, and as Juſtice always lies on the Prince's fide. Well,
juſtly be oppoſed by the People, with any Vio- but perhaps, Promiſes are broken, or Privileges
lence whatſoever (a). Whence it may eaſily formerly granted retrench’d. Still, if the Prince
come to paſs, that an Odium of this Nature ſhall be Abſolute, 'tis but to alledge, ſome Offence in
be brought even on a good Prince, by ſuch as the Parcies, or ſome ſignal Advantage to the
tion: ſince Men have been now long accuſtom'd to have acted according to his Sovereign Right;
in the Uſe and Signification of Words, to make and whether theſe Precences be real or no, che
them ſtand not only for the real Nature of Subjects are not able clearly to judge.. And all
Things, but for their own Humour or Affe&i- Privileges muſt be conſtrued with this Limitation
ons. Thus much is acknowledg’d by general and Exception, Unleſs the Safety or Neceffity of the
Opinion, that neither private and perſonal Publick forbid them to bold any longer. No ſmall
Vices, nor ſmaller Neglects in the publick Admi- part of the Arguments ufually brought for the
ftration, are ſufficient to denominate a Tyrant. Oppoſite Opinion, fall of their own accord, if it
Are heavy Taxes impoſed? The Subjects who be well conſider'd, that theſe are two very diffe-
are not admitted to Council, cannot poſſibly rent things, a People have power of applying
judge whether the Neceſſity of the State requires Force to their Rulers, and of reducing them to
this Proviſion or not. Are ſevere Penalties exe- Amendment, when they do not govern accord-
cuted ? Why, if this be done upon ſome precedent ing to their Will; and there is in the People,
Offence, and according to the Laws, no Man or in particular Perſons, a Right of defending
can with Juſtice complain; tho' perhaps the their Life and Safety againſt their Prince, upon
Caſe would better have allow'd of Mercy and the Approach of extreme Danger, and when
Pardon. Are ſome great Men innocently taken the Prince is manifeſtly turn': an Enemy to-
off, on the account of private Hatred or Suſpi- wards them. For the Reaſons which prove the
cion; which, in vulgar Eſtimation, paſſech for latter of theſe Poſitions do not in like man-
two Independent States that are doing themſelves Juſtice, and acknowledge no Perſon upon Earth who in a Sovereign
manner can determine the Diſputes between them. Bibliotheque Univerſal. Tom. XIX. Pag 591. Mr. Sidney in his
Diſcourſe upon Government, Chap. III. Sect 41. ſays, ' They who create Magiftracies, and give to them ſuch Name,
Form, and Power, as they think fit, do only know whether the End for which they were created, be perform d or
not. They who give a Being to the Power which had none, can only judge whether it be employ'd to their Welfare
or turn'd to their Ruin. They do not ſet up one or a few Men that they and their Pofterity may live in Splendor and
Greatneſs ; but that Juſtice may be adminiſter'd, Virtue eſtabliſh'd, and Proviſion made for the Publick Safety. No
Wife Man will think this can be done, if thoſe who ſet themſelves to overthrow the Law are to be their own Judges.
If Caligula, Nero, Vitellius, Domitian or Heliogabalus had been ſubje&t to no other Judgment, they would have com-
pleated the Deltruction of the Empire. If the Diſputes between Durſtus, Evenus the Third, Dardannus, and other
Kings of Scotland, with the Nobility and people might have been determin’d by themſelves, they had eſcap’d the Pu-
niſhments they ſuffer'd, and ruin'd the Nation as they deſign'd. Other Methods were taken ; they periſh'd by their
Madneſs; betier Princes were brought into their places, and their Succeſſors were by their Example admoniſh'd to
avoid the ways that had prov'd fatal to them. If Edward the Second of England with Gaveſton and the Spencers, Richard
the Second with Trefilian and Vere, had been permitted to be Judges of their own Caſes, they who had murder'd the
beſt of the Nobility, would have purſu'd their Deſigns to the Deftruction of ſuch as remain'd," the enſlaving of the Na-
tion, the Subverſion of the Conſtitution, and the Establiſhment of a meer Tyranny in the place of a mix'd Monarchy.
But our Anceſtors took better Meaſures. They who had felt the ſmart of the Vices and Follies of their Princes,
knew what Remedies were moſt fit to be applied, as well as the beſt Time of applying them. They found the Ef-
feets of extréme Corruption in Government to be ſo deſperately pernicious, that Nations muſt neceſſarily periſh unleſs
it be corre&ted, and the State reduced to its firſt Principle, or alter'd. Which being the caſe, it was as eaſie for them
to judge whether the Governor who had introduced that Corruption ſhould be brought to Order, or remov'd if he
would not be reclaimd; or whether he ſhould be fuffer'd to ruin them and their Pofterity,; as it is for me to judge
whether I ſhould put away my, Servant, if I knew he intended to Poiſon or Murder me, and had a certain Facility of
accompliſhing his Deſign, or whether I ſhould continue him in my Service 'till be had perform'd it. Nay, the Matter
is ſo much the more plain on the ſide of the Nation, as the diſproportion of Merit between a whole People, and one
this let us add the following Verſes of an Ancient Greek Póet.
An Ancient Law commands us to obey
Α. Σίβειν Ντες κρατώντας αρχαϊανόμα
Thoſe who in Government do bear the Sway :
Β. Ου παντελώς δι τοις πονηesϊς επιτρέπει,
Bat wicked Magiftrates we may reſitt,
"Am artretla si de ani, ne xehtud
Nor ſuffer them to do what e'er they lift;
“Ημών και βίG- λήσει μετατρέφεις όλα.
For then the World would in Confuſion lie,
And Civil States be Scenes of Anarchy.
Philemox in Adelph. Fragm. IX. Edit. cleric.
Mr. Barbeyrac's firſt Note upon this Se&tion, p. 330, 331.
ta) Comp. Becler. ad Grot, I. 1. c. 4. S. 14.
Titi
het

552
The Supreme Power is to be
Book VII.
ner evince the former : and yet many Men con. Man. For this Civil Servitude is not ſo abhor-
found the one with the other. And thus too rent from Nature as ſome imagine ; as that a
when it is ſaid, that a People who have given Perfon who at one time to avoid a greater Evil
,
themſelves up to Slavery, have not thereby loſt finds it neceffary for him to conſent to it, may
all Right of reſcuing themſelves into Liberty and afterwards, when Occaſion favours him, throw
Security (1); the Affertion will hold true only it off again, bị che Right and Privilege which
in this Senſe, chat a People may defend them Nature allows him. And although the State of
ſelves againſt the excreme and unjuft Violence of Slavery ſhould be concrary to the Inclinations
their Prince : which Defence, if it ſucceeds pro- of a particular People, either from the begin-
ſperoully, brings Liberty along with it as a ne- ning, or upon the changing of their minds;
ceffary Attendant. In as much as the Lord, by yec 'cis by no means Lawful barely on this ac-
thus changing himſelf into an Enemy, ſeems to count, to deprive the Prince of that Right which
abſolve the Subjects from their Obligation to he hath already obtain'd: no more than is is
wards him: ſo that they are not bound to re lawful for the Seller to take away from his Chap-
turn under his Yoak, tho' he ſhould alter his cruel man what he before deliver'd to him upon Con-
Reſolutions. Excepting in this caſe, a People tract; tho' he ſhould happen to find that the Sale
who have given themſelves up for Slaves, or ra did not prove to his Advantage.
ther who have put themſelves under the Com VII. Grotius (a), in adjuſting theſe Matters
mand of an abſolute Sovereign, have no more a '
hath taken a Courſe not very different from that
Right of regaining their Liberty by Force, than which we have here follow'd. Amongſt other
I have of recovering a thing by Force, which things he well obſerves, that whether or no the
I have already upon Bargain deliver'd to another extreme Injuries of Sovereigns may be forcibly
<
(1) No Man can ſo far part with his Liberty as to give himſelf up wholly to an Arbitrary Power, to be treated Ab-
ſolutely as that Power thinks proper ; for this would be to diſpoſe of his own Life, of which he is not Maſter. Much leſs
has a whole People ſuch a Right, as every one of thoſe who compoſe it, is entirely deftitute of. (The Natural Liber.
ty of Man is to be free from any Superior Power on Earth, and not to be under the Will or Legiſlative Authority of
Man, but to have only the Law of Nature for his Rulc. The Liberty of Man, in Society, is to be under no other
Legiſlative Power, but that eſtabliſh'd by Conſent in the Commonwealth ; nor under the Dominion of any Will, or
• Reſtraint of any Law but what the Legiſlative ſhall enact, according to the Truſt put in it. Freedom then is not what
Sir Robert Filmer tells us, A Liberty for every one to do what he lifts, to live as he pleaſes, and not to be tied by any Laws:
But Freedom of Men under Government, is to have a ſtanding Rule to live by, common to every one of that Society,
and made by the Legiſlative Power ere&ted in it. A Liberty to follow my own Will in all things, where the Rule
preſcribes not ; not to be ſubject to the inconftant, uncertain, unknown, Arbitrary Will of another Man: As Freedoin
of Nature is to be under no other Reſtraint but the Law of Nature. This Freedom from Abſolute Arbitrary Power is
fo neceſſary to, and cloſely join'd with a Man's Preſervation, that he cannot part with it but by what forfeits his
• Preſervation and Life together. For a Man, not having the Power of his own Life, cannot by Compact, or his own
• Conſent, enſlave himſelf to any one, nor put himſelf under the Abfolute Arbitrary Power of another, to take away
his Life when he plcaſes. No body can give more power than he has himſelf; and he that cannot take away his own
Life, cannot give another Power over it. Indeed, having by his Fault forfeited his own Life by ſome Act that de-
ferves Death; he, to whom he has forfeited it, may (when he has him in his Power) delay to take it, and make uſe of
him to his own Service, and he does him no Injury by it. For, whenever he finds the Hardſhip of his Slavery, out-
weigh the value of his Lite, 'tis in his Power, by refitting the Will of his Maſter, to draw on himſelf the Death he
deſires. This is the perfe & Condition of Slavery, which is nothing elſe but the State of War continued between
• lawful Conqueror and 'á Captive. For, if once Compact enter between them, and make an Agreement for a limited
Power on the one ſide, and Obedience on the other; the State of War and Slavery ceaſes, as long as the like Compact
endures. For, as has been ſaid, no Man can by Agreement paſs over to another, that which he hath not in himſelf, a
Power over his own Life. I confeſs, we find among the Jews, as well as other Nations, that Men did ſell themſelves;
* but, 'tis plain, this was only to Drudgery, not to Slavery. For, it is evident, the Perſon fold was not under an Ab-
folute, Arbitrary, Deſpotical Power. For the Maſter could not have Power to kill him at any Time, whom at a cer-
tain Time he was obliged to let go free out of his Service ; and the Maſter of ſuch a Servant was fo far from having an
• Arbitrary Power over his Life, that he could not at pleaſure fo much as maim him, but the Loſs of an Eye or Tooth
fet him free. Mr. Locke of Civil Government, Book II. Chap IV. Let us add the following Reflections of Mr. Abbadie
,
· The Natural Right of our Preſervation is altogether unalienable, that is to ſay, ſuch as we can never renounce entirely
and abſolutely. It is true, that when I confederate my ſelf with other Men to forin a Society, 'tis upon this Condi-
tion, that I !hall expoſe my own particular Perſon for the Preſervation of the whole ; there would be no way
Society to ſubliit, if every one conſulted his own Safety only; and I ſhould loſe the Support that I meet with for
my own Preſervation, in my Union with others. But we cannot ſay that Soldiers, who maintain themſelves in their
• Ranks, and fight valiantly in War, do renounce the Natural Care of their Preſervation, ſo we cannot ſay that private
Perſons renounce the Right of their Preſervation, when, for the Love of their Country, they expoſe themſelves to the
Danger of “periſhing: Tis a Contradiction that we ſhould for ever alienate this Right. How have Men, who en-
joy the Privileges of Civil Society, renounced this Right of Self-preſervation, when thoſe who are cut off from So-
ciety, as Criminals condemn'd to Death, do not renounce it? So that if they make their Eſcape and are taken again,
they ſhall ſuffer the Puniſhment that their former Crime defervid, in Execution of the Sentence that was pronounced
againſt them betore ; but there will be no Indi&tment brought againſt them for their being willing to ſave themſelves
,
which is founded
upon this Principle, that as Nature always returns, fo the Rights of Nature are never loft
Man, that finds himſelf III may and ought to make choice of a skilful Phyſician, to whom he will give a Power appar
parently Arbitrary over his Budy. I put my felf into your Hands, he will say, do with me what you pleaſe, I will
not contradi&t your Preſcriptions, and when I would do ſo, I deſire that my Servants may execute your orders and not
mine, and that you may have the ſole Power in this Matter. I am certain that you would believe that ſuch a Man bas
notwithſtanding all that renounced neither the Right nor the Care of his Preſervation ; if the Power which he gives over
himſelf
, unlimited in Appearance, were fo in reality ; and if it were evident that the Phyſician would poiſon the Sick
Man, might he not oppole him without breaking his Word and his Engagements ? Is it not apparent that there are in
* but that 'tis alſo jult for him to oppoſe the Phyſician, when it is notorious
that he would poiſon the Sick Man? if it
were not juſtifiable to dethrone a King who is evidently endeavouring to ruin and undo us, it would follow that
• ſhould have loft or alienated for ever the Right of our own Preſervation. Defence de la Nation Britannique, p. 360
261. Mr. Barbeyrac's ſecond Note upon this section, p. 332, 333. See the Homily of the Church of England agaioft
Rebellion, the iccond Part,
(a) L. I. C. 4. f. 7.
for a
8
6
refifted,

.
Held Sacred in Civil States.
553
reliſted, is beſt to be underſtood by conſidering, VIII. But this Sacredneſs which we have been
as well the Nature of Sovereignty, as the pre- hitherto touching upon, doth not belong to any
fumed Deſign of thoſe who firſt incorporated Kings, but thoſe who are really and ſtrictly
themſelves in a Civil State. As for the former, fuch. It cannot therefore be claim'd by thoſe,
'tis not in the leaſt repugnant to the Nature of who though they bear the Title of Kings (1),
Sovereignty, that all the Axions of the Subje&ts are yet fubje& to the Power of the People; as
ſhould by it be directed towards the publick were the Ancient Kings of Sparta, and many
Good, and that thoſe who oppoſe its Decrees, elſewhere ; inveſted rather with the Authority
ſhould undergo the ſevereſt Puniſhment; with- to perſwade, than with Power to command (2)
out allowing it the Power co murther Men out Such a King was Mezensius in Virgil (c), againſt
of meer Humour, ſo as on no account to be re-
whom
fiſted. Nor is there any Natural Connexion be-
tween an abſolute Power of procuring a Man's furiis furrexit Etruria juſtis,
Safety, and an abſolute Power of deſtroying a Regem ad fupplicium præfenti morte repofcens.
Man at pleaſure. And 'cis impoſſible to make
out what ſuch a Power in the Sovereign, or By juſt Revenge the Tuſcans ſet on fire,
fuch an Obligation in the Subject, can con With Arms their King to Puniſhment require.
tribute to the Peace and Security of the Com-
monwealth. On which Score it is evident Thoſe Princes do likewiſe forfeit this Sacred:
how falſe that Inference is which ſome Men nefs, who have either laid down their Dignicy
make; the Supreme Authority is accountable (3), or have utterly deſerted and abandon'd the
only to God, therefore we have ſufficient Rea- Kingdom againſt whom, in caſe of grievous
ſon to conclude, that the Perſons who firſt Injuries offer'd by them to others, it is lawful to
united in a Community, deſigned to reſerve to proceed altogether in the ſame manner, as we
themſelves no Degree of Right which ſhould might againſt private Perſons. Not though, as
bold good againft the Ruling Power. As if to Semiramis, who having prevaild with her Hufa
defend ones Life againſt an injurious Aſſailant, band to reſign the Sovereignty to her for Five
were to proceed againſt himn in a judicial man- Days, made uſe of the Grant to take away the
ner (a)! Nor is their Scruple of any Moment, Life of the Giver ; this Story proves nothing elſe
who diſallow the Liberty of reſiſting Gover- but the great Wickedneſs of the Wife, and the
nors, in Caſes of Barbarous Cruelty, on this Ar- no leſs Folly of the Husband (d). Yet it ſome-
gument, Becauſe we cannot frame to our ſelves any times happens, that thoſe who have either volun-
lawful Call, that the Subjects have to take up Arms tarily laid down their Authority, or have been
againſt the chief Magiſtrate ; ſince no Mortal can pre- deprived of ic by ſome Misfortune, are ſtill per-
tend to bave any Juriſdiction over a Perſon of that mitted to enjoy that formal Veneration of the
Character. As if Defence were the Effect of Ju- People, which uſed to be paid to Princes, and
riſdi&ion! Or, as if he who fets himſelf to keep all other external Badges of Majeſty. Which
off an unjuſt Violence, which threatens his Life, Privilege, as it is to be look'd on as meer Ima-
had any more need of a particular Call, than he gery, made up of nothing but the Regal Trap-
who is about to fence againſt Hunger and Thirſt pings and Ornaments ; ſo unleſs it hath been
with Meat and Drink (6)!
confirm'd by ſome Pact and Agreement, it muſt
As to the latter Confideration propoſed by be conceiv'd to depend entirely on the Favour
Grotius, about the Deſign of Societies, he rightly and Complaiſance of others (e). Thus Labardée,
judgeth, that if thoſe Perſons who by incorpora- in his Hiftory of France (f), rightly obſerves,
ting themſelves in States, gave the firſt Rife to that whilft Sedan, and the Territories depending
Sovereign Power, had been ask'd whether they on it, was neither Feudatary to the Emperor,
intended co lay this Burthen on all their Con- nor to the King of France, nor to any other Mo-
ſciences, that they ſhould rather chooſe to die, narch of State, the Lords and Proprietors were
than in any Caſe to oppoſe by Arms the un- truly Sovereign Princes. But after that Frederic
juſt Violence of their Superiors; they ſhould Maurice, Duke of Bouillion, had refign'd this City,
certainly have anſwerd, that it was never with its Dependencies, to Lewis the Thirteenth
in their Thoughts to enjoin fuch a Hardſhip. of France, receiving in lieu of it certain Lands
For this would have been a greater Inconveni- belonging to the French Crown ; he required
ence, than that which they endeavour'd to a Security to be given him, that he and his Poftea
void by entring into a Civil Community. For rity ſhould retain the Title and Character of the
before they lay open to the Injuries of many, former Dignity : which could not be afterwards
but ſtill with the Right and Power of reſifting reckoned a true independent Honour, ſuch as
them: whereas by this means they muſt have accompanies Sovereign Power, but only a nicer
bound themſelves quietly to ſuffer any Injuries Shadow of Princely Greatneſs, having no far-
from Him whoni they had arm’d with their own ther Effect, than the obtaining ſuch a certain
Strength. And no doubt
Fighting and Conten. place among the Noble Families of France, and
tion is a leſs Evil than certain Death.
ſome other ornamental Privileges. And the
(a) Comp. Bæcl. ad. Grot. d. l.
(6) Comp. Ziegler ad Grot. d. 1.
(1) V. Grot. 1. 1. c. 4, [ 8.
(2) This is what Tacitus relates of the Ancient Kings of Germany; Mox Rex
vel Princeps, prout Decus bellorum, prout facundia eft, audiuntur, authoritate magis fuadendi, quam jubendi poteftate. De
Morib. Germanor. c. 11. Vid. etiam, c. 7.
(c) Æn.8.0.494, 495.
(3) Vid. Grot. d. l. f. 9.
(d) Diodor. Sic. I. 2. c. 18.
(4) An Inſtance of which we have in Dairo of Japan.
(f) L. 10.
p. 684.
Truth
554
The Supreme Power is to be
Book VII

is
tuted by the People ſhall go about to alienate his the Common Intereſt of the People, that the
Truth of this appears evidently from that Ad of things to which he hath no obligation, and
the Duke, in defiring Security for his Titles, which he really hates and abhors. But if he af
when he gave up his Dominions. Since thoſe terwards find Opportunity, po Man will cenſure
who truly and properly poſſeſs the Sovereign him for breaking his way through theſe unjuſt
Dignity, have no need thus to bargain for the Impofitions. But what is to be done, if a per:
Enjoynient of it.
fon, who at first indeed ſeiz'd upon the Govern-
Another way by which a King falls back (1) ment by Violence and evit Arts, would yet be
into the Condition of a private Man, is in caſe thought to obtain it by Right, and tho' he re-
his Kingdom be ſeiz’d upon as forfeited; either poſeth his Confidence in Arms, yet profeſſeth to
by Felony, committed againſt him whoſe Fief it be no Enemy, but a true and proper Prince?
; or by vertue of ſome Clauſe inſerted in the As to ſuch Cafes this ſeems in general to be the
Donation of the Crown, importing that if the moſt probable Solution, that he who a&ually
King ſhould act thus or thus, the Subjects ſhould poffeffeth the Sovereignty, by whatſoever means
be immediately releas'd from all Obligation to he acquires it, is ſo long to be acknowledgʻd by
Obedience. So likewiſe if in conferring the So- the Subje&ts for their lawful Prince, as there
vereignty it were exprefly agreed, that the Prince appears no one who can claim the Crown by a
in ſome particular Deſigns or Practices might better Right. For then it is conſonant to Rea-
be refifted; ſuch a Covenant may no doubt be ſon, that the Poffeſfor's Power ſhall hold good,
put in Execution. Laſtly, if a Prince confti- provided he aą like a Legal Governor : it being
Kingdom, or to change the manner of holding Care and Direction of the Stare ſhould rather lie
the Government, 'tis manifeft not only chat any in any one Perſon, than that on the account of
ſuch Act of his is null and void, but likewiſe that having no certain Head, it fhould be involv'd in
in caſe he endeavour to compaſs his Deſign by
Deſign by endleſs Diſputes and Diſturbances. Since there-
Force, the People may oppoſe him in the ſame fore the Subjects muſt be, in this Cafe fuppoſed
manner (a).
to have, at leaſt tacitly, conſented to the Au-
IX. It is another difficult Queſtion what may thority of their new Maſter, they ſhall be truly
lawfully be done, and what not, againft Inva- oblig'd to yield Obedience to him (b). Thus
ders and Uſurpers of Sovereignty; and this, not 'eis well known by what means the Family of the
after that long Poffefſion, or ſome ſubſequent Cæſars rais’d themſelves to the Imperial Dignity;
Pact, hath given them a proper Right to go- and yet St. Paul (2) afcribes the išssia, the pro-
vern, but ſo long as the unjuſt Cauſe of their per Power to them, as thoſe who were to be
poffeffing the Throne continues, and whilſt they obey'd for Conſcience ſake.
obey'd for Conſcience ſake. And 'twas our Bleſſed
feem to be ſupported only by Strength. On this Saviour's Command, Render unto Cæſar the things
Head we are first of all to enquire whether the that are Cæſar's (3). For at that time there was
Commands of ſuch Uſurpers whilft in Poffeflion, no particular Perſon who had a better Title to
have the Power of obliging? And here we muſt challenge the Supreme Authority; and as for the
recollect from what hath been formerly obſerv’d, Senate and People of Rome, they had receded from
that no Obligation to Obedience can be produced their Ancient Right, though more out of Fear,
in me, unler's the other Party had a lawful Au- and for want of Strength so make Oppoſition,
thority over me. Meer Violence may indeed than becauſe they approved of this Alteration in
lay on a Man ſome extrinfecal Necefficy of the Government. It was a remarkable Law of
doing this or that; but it cannot impoſe an Ob- Henry VII. of England, which enacted, that no
ligation, which is an intrinfecal Engagement Perſon who had follow'd the Party of the Prince
ſo binding to the Mind, as to make the Neglect then reigning, ſhould be ever impleaded or con-
or omiſſion of it ſinful. When therefore a Man demn'd for that Act as a Criminal, either by le-
is threatned with Violence from a ſtronger gal Proceſs, or by Act of Parliament (4). The
Hand, he is perhaps compell’d to perform thoſe Reaſons of which are diſcuſs’d by my Lord Ba-
(1) Vid. Grot, ubi fupra, Sect. 13. See our Author in the fixth Chapter of this Book, Se&. 10, II.
la) Add. Bæcler ad Grot. l. 1. c. 4. f. 10.
(6) Ariftophanes (in Ranis, A&t. 5. Sc. 4. v. 21, 22, 23.) hath a notable Remark to this Purpole: ' Men ſhould not
breed up á Lion's Whelp in their City ; but if he be once bred up, his Temper muſt be complied with.
(2) Rom. XIII. 1, s.
(3) Matt. XXII. 21.
(4) They who have more regard to the prevailing Power than to Right, and lay great weight upon
the Statute of
Henry the Seventh, which Authorizes the Aets
of King de Facto, feem not to conſider that thereby they deftror all
the pretended Right of Inheritance; that he only is King de Fa&o who is receiv'd by the People, and that this Recep-
tion could neither be of any value in its felf, nor be made valid by a Statute, unleſs the People and their Repreſen-
• tatives who make the Statute, had in themſelves the Power of receiving, authorizing, and creating whom they pleafe.
* For he is not King de Fatto who calls himſelf ſo, as Perkin or Simnel, but he who by the Confent of the Nation is
poffefs d of the Regal Power. If there were ſuch a thing in Nature as a natural Lord over every country, and that
the Right muſt go by Deſcent, it would be impoflible for any other Man to acquire it, or for the People
« confer it upon him, and to give the Authority to the A as of one who neither is nor can be a King, which
belong only to him who has the Right inherent in himſelf
, and inſeparable from him. Neither can it be
denied, that the ſame Power which gives the validity to ſuch A&s as are perform’d by one who is not a
King, that belongs to thoſe of a truc King, may alſo make him King; for the Eſſence of a King conſiſts in
the validity of his 'Acts. And 'tis equally abſurd for one to pretend to be a King, whoſe A&s as King are host
valid, as that his own can be valid if thoſe of another are ; for then the ſame indiviſible Right which
our Author
• and thoſe of his Principles affert to be inſeparable from the Perſon, would be at the fame exercis'd and enjoy'd by
two diftin&t and contrary Powers. Moreover it may be obſerv'd, that this Statute was made after frequent and
bloody Wars concerning Titles to the Crown; and whether the Cauſe were good or bad, thoſe who were overcome
were not only ſubject to be killed in the Field, but alſo to "be Profecuted as Traitors under the Colour of Law.
• He who gain'd the Victory was always
ſet up to be King by thoſe of his party, and he never fail'd to proceed againft
+
0
CATE

Chap. VIII.
Held Sacred in Civil States.
555
con in his Hiſtory of that Reign (a). After the viſion againſt the Future, and with Warineſs and
fame manner in an Hereditary Kingdom, when Caution to refle&t on his preſent Condicion; that
the Right ſeems to lie doubtfully between two he may not raſħly chruft his Life and Fortunes
or more Competitors ; whilſt the Controverſy into Danger : As he would do, ſhould he by vain
is yer in Agitation, and 'till ſuch time as it may Obſtinacy and Oppoſition, draw the Ulurper's
be determin’d, either by an amicable Accom- Rage upon his own Head, without procuring
modation, or by Arms, 'tis the ſafeſt Courſe to the leaft Advantage, either to his Country, or
obey him who hath the actual Poffeffion (b) to the Ejeđed Prince. Some are willing to de-
And much more will this Conduct be juſtifiable duce this Doctrine from the 13th Chapter of the
in Strangers, whom it doth not concern to exa- Epiſtle to the Romans, where the Apoſtle ſays we
mine the Titles by which the Sovereignty hath ought to obey, spóror dom' tây ápäiño, not only for
been obtain’d, but who barely go along with wrath; as if he ſhould have told us it was not
the Poffeflion ; eſpecially when the Poffeſſor is the part of a prudent Perſon to provoke the An-
ſupported by Great Strength and Power.
ger
of him who bears the Sword by an unneceſ-
X. But when a Perſon, driving out the law. fary Stubborneſs; and chat therefore, out of
ful Prince, ſeizeth the Government, and ſets regard to our own Safecy, we fould be ſubject
himſelf up for King, tho' he be really the Uſur- tas šsais egyriais, to the Powers which are in being,
per of another Man's Right ; what
Courſe ſhall that is, which have the preſent Poffeffion. Since
an honeſt Subject cake under this Difficulty; in then a State cannot ſublilt without fome Govern-
as much as he ſeems ſtill to owe Allegiance to his ment, and ſince he who actually wears the
rightful Sovereign during his Life? On which Crown, doth at leaſt in ſome colerable Meaſure
Point it appears reaſonable to affirm, that things maintain the publick Security ; an Honeſt Man
may often come to ſuch an Iſſue as ſhall make and a Lover of his Country ought not, when
it not only allowable, but good and neceſſary the Poſture of Affairs requires this Proceeding,
to obey the Ruler in Poſſeſſion by what means by an uſeleſs Reſiſtance, give Occaſion to farther
ſoever the Poſſeſſion was gain'd. As if the Troubles. But what ſeems hardeſt of all to be
Lawful Sovereign be reduced to ſuch Streights reſolvd is, how the Subje&ts can at the ſame time
that he can no longer exerciſe any part of the keep up two contrary Obligations, one to the
Regal Office towards his People. For then, tho' Lawful Prince now expell’a, and the other to the
the Commands of the Uſurper, being deſtitute Poffeffor, who hath conſtrain’d them to ſwear
of Legal Power, are not in themſelves obliga. Allegiance to him, and for the preſent executes
tory; yet it becomes a wiſe Man to conſult the the Regal Office. For how can a Man pay Fide-
Welfare of himſelf and his Affairs, to make Pro- lity to two together, who are bent upon mutual
his Enemies as Rebels. This introduced a horrid Series of deſtructive Miſchiefs. The Fortune of War varied often;
. and I think it may be faid, that there were few, if any, great Families in England, that were not either deſtroy d,
or at leaſt fo far fhaken, as to loſe their Chiefs, and many conſiderable Branches of them : And Experience taught,
that inſtead of gaining any Advantage to the Publick in point of Government, he for whom they fought ſeldom
prov'd better than his Enemy. They ſaw that the like might again happen, tho' the Title of the reigning King
hould be as clear as Deſcent of Blood could make it. This brought things into an uneaſie. poſture ; and 'tis not
ſtrange, that both the Nobility and Commonalty ſhould be weary of it. No Law could prevent the Dangers of Bat-
tle ; for he that had Followers, and would venture himſelf, might bring them to ſuch a Deciſion as was only in the
'Hand of God. But thinking no more could juſtly be required to the full Performance of their Duty to the King,
than to expoſe themſelves to the Hazard of Battel for him; and not being anſwerable for the Succeſs, they would not
have that Law which they endeavoured to ſupport, turned to their Deftruction by their Enemies, who might come to
be the Interpreters of it. But as they could be exempted from this Danger only by their own Laws, which could
! Authorize the A&ts of a King without a Title, and juſtifie them for acting under him, 'tis evident that the Power of
the Law was in their Hands, and that the A&s of the Perſon who enjoy'd the Crown, were of no value in them-
felves; the Law had been impertinent if it could have been done without Law, and the Intervention of the Parliament
uſeleſs, if the Kings de Facto could have given Authority to their own Acts. But if the Parliament could make that to
have the Effect of Law which was not Law, and exempe thoſe that acted according to it from the Penalties of the
Law, and give the ſame force to the Acts of one who is not King as of one who is, they cannot but have a Power of
making him to be King who is not ſo ; that is to ſay, all depends entirely upon their Authority. Beſides, he is not
King who aſſumes the Title to himſelf, or is ſet up by a corrupt Party; but he who according to the Uſages re-
quir'd in the Caſe is made King. If theſe are wanting he is neither de Fatto nor de Jure, bur Tyrannus fine. Titulo.
Nevertheleſs, this very Man, if he comes to be receiv'd by the People, and placed in the Throne, he is thereby made
King de Facto His A'êts are valid in the Law, the ſame Service is due to him as to any other : They who render it
are in the ſame manner prote&ted by the Law; that is to ſay, he is truly King. If our Author therefore do allow fuch
to be Kings, he muſt confeſs that Power to be good which makes them ſo, when they have no Right in themſelves.
If he deny it, he muſt not only deny that there is any ſuch thing as a King de Fatto, which the Statute acknow-
ledges, but that we ever had any King in England; for we never had any other than ſuch, as I have proved before:
By the ſame means he will ſo unravel all the Law, that no Man ſhall know what he has, or what he ought to do or
avoid ; and will find no Remedy for this, unleſs he allow that Laws made without Kings are as good as thoſe made
with them, which returns to my purpofe : For they who have the Power of making Laws, may by Law make a
King as well as any other Magi{trate. And indeed the Intention of this Statute could be no other than to ſecure Men's
Perſons and Poſſeſſions, and ſo far to declare the Power of giving and taking away the Crown to be in the Parlia-
ment, as to remove all Diſputes concerning Titles, and to make him to be a Legal King whom they acknowledge to
be King Sidney's Diſcourle upon Government, Chap. III. Sect. 35.
(a) 'Tis Irene's Advice in the Hiſtorian, (Nicet
. Choniat:) Nec imperatorem qui abfit querendum, nec qui adfit pelleno
dum efle ; Neither to ſeek after a Prince who hath deſerted the Crown, nor to diſturb a Prince who pofſefleth it.
16) Callius Clena, who had ſtuck to the Party of Niger againſt Severus, thus makes his Defence to the latter : I own'd
neither You nor Niger for my proper Maſter'; and tho' I appear’d on the other ſide, yet my Aim and Endeavour was not
to oppoſe You, but to vanquilh Julian. Since then my Deſign was the ſame with Yours, I am in this refpe&t certainly
Guilty of no Fault. Nor am I more worthy of Blame for not revolting afterwards to Your Party: For You would
not Your ſelf have been willing that any Friend of Yours ſhould have relinquiſh'd Your Cauſe, and gone over as a
Deſerter to Niger. Xiphilin. Epit. Dion'ad Ann. 194. Go Zonar. Tom. 2.
Deſtru-

5.56
The Supreme Power is to be, &c.
Book VII.
3
Deftruction ? And yet, on the other Hand, the future how to make the beſt of their Affairs
Covenane made with the Uſurper by the Sub- (1) (c). There appears noching therefore
je&ts, and the Faith which they have engaged to that can with more probability be affirm'd in the
him, ſeem utterly unable to take away the Rights Point before us than this, that if the Lawful
and Pretenſions of the Lawful Sovereign : as the Prince be brought into ſuch Streights, as that
Compoſition which a Countryman makes with neither he himſelf is able to afford his Subjects
Robbers, to hinder them from waſting his Eftare, due Prote&ion, nor they on the other hand able
is incapable of extinguiſhing his Landlord's Right to reſiſt the Ulurper,
the Uturper, without their imminent
and Property. Grotius's Opinion on the Cafe is Ruin it muſt be taken for granted, that he
this, that whilft the Uſurper, is in Pollefſoon, the Aets hath for a while releas'd his Subjects from their
of Sovereignty which he exerciſeth have a Power of ob- Obligation towards him, till fuch Time as Pro-
liging y not by Virtue of bis Right, (for Right be bath vidence ſhall open a way to his Reſtauration ;
norej but becauſe 'tis in the bighejë Degree probable
, ſo far as is neceſſary to ſecure them from De
that be who hath the jut Right to the Throne, had ftruction and Danger. And thus too the Fealty
rather, as things now ftand, that the commands of him promis'd to the Ulurper, ſeems ſo far only to be
who sås thus in pofleffion ſhould hold good, than that by binding, as that it ſhall be a kind of temporary
the ceafing of all Laws and Fulfice
, ibe Commonwealtb Engagement, to expire fo foon as the expellia
should be thrown into utter Confuſion (a). 12
Prince ſhall recover his Dominions; and con-
And indeed, we ought by all means to pre- fiſting not ſo much in any internal Neceflity laid
fume, that every Prince hath ſo much Humanity, upon the Conſcience, as in the Force of that
as co deſire that his Subjects ſhould be preſerv'd Terror under which they now ſtand. Grotius
by any Method whatſoever, rather than by ſtri- (d), in another Cafe allows of External Right and
ving in vain with their ill
Fortune, and unſeaſo- Property; and we fee no Reaſon why there may
nably expreſſing an Affection without Strength not be admitted ſome kind of External Obligation,
a to ſupport it, they ſhould give themſelves up for not affecting the Conſcience (e). If we put all
sa fruitleſs Sacrifice (b). When the Romans, be theſe Confiderations together, we ſhall find that
ing themſelves in Diſtreſs, were petition'd by there is ſcarce any Cafe in which a private Per-
their Allies, the Petilini for Relief, their Anſwer ſon may, by his own Authority diſturb an unjuſt
was, They confeſs’d themſelves to be no long- Poffeffor of the Sovereign Dignity : eſpecially
. er in a Condicion of ſupporting their diſtant fince Experience witneſſeth, that fuch Conſpi-
. Dependents, and therefore deſired the Petitio. racies do commonly exaſperate the uſurping
ners to return Home, and fince they had al. Powers, to greater Violence and Oppreſſion
'ready given the utmoſt Specimen of their Fi- (F) (2):
delity, to conſult amongſt themſelves for the
(«) L. 1. c. 4. f. 15. Add. 1. 2. c. 4. f. 14.
(b) Comp. 2 Sam. XV. 25, 26. 1 Kings II. 26.
(1) Vid. Livy, L. 23. c. 20.
(c) Add the Speech of King Ferdinand, when he fled froin Naples, in Guic-
ciardine, Book I. near the End.
(d) L. 3 c. 7. f. 6.
(e) See 2 Kings XI. 2 Chron. XXIII. on which Place Mr. Hobbes rightly obſerves that Athaliah was dethron'd, not
by any Right which the High Prieſt had in that Capacity, but by the Right of the Young King. Leviath. c. 44.
What
Opinion we ought to entertain of thoſe Laws which permit or reward the killing of Tyrants, iee in Becler on Grot. I.
1. c. 4. f. 17.
(f) Vid. Juftin. 1. XVI. c. 5. fub. fin.
(2) As this whole Chapter regards one of the general Duties of Subje&s, I think I cannot do better before I pro-
ceed to the following one, which treats of the Duties of a Sovereign, than to ſet down here in few Words the principal
Duties of Suhjets of what Rank and Condition ſoever. Our Author has ſaid nothing of 'em in this work : But he has
given us a conciſe and clear Idea of them in the laſt Chapter of his Abridgment de officio Hominis Ego Civis, which I ſhall
here tranſlate, and add ſomething to it here and there, which will clearly be diſtinguiſh'd by Crotchets
. The Duo
ties of Subjects, ſays he, are either general or particular. The firſt ariſe from the common Obligation
which they are all
under as ſubmitted to the fame Government, and as Members of the fame Civil State. The others reſult from the diffe-
rent Employments and particular Offices, with which each Subject is entruſted by his Sovereign. I. The General Duties
of Subje&ts reſpe&t their Behaviour either towards the Governours of the State, the whole Body of the People, or their Fel-
low Subječts. i. As to their Governours, every subje&t owes them the Reſpect
, Fidelity and Obedience which their Cha-
racter demands: So that conſequently they ought to live eaſie under, and be ſatisfied with the preſent Government,
and not to form any Cabals or Seditious Practices againft it ; to be attached to the Intereſt of their Prince, to refpe&t
and honour him more than any other; to ſpeak and think favourably and with Deference of him and all his A&tions.
[We ought even to have a Veneration for the Memory of good Princes : But for thoſe who have not been ſuch, behold
the judicious Reflections of Montagne : ' Among thoſe Laws, ſays be, which relate to the Dead, I take that to be the
boit
, by which the Actions of Princes are to be examin'd and fearch'd into after their Deceaſe. They are equal to at
leaſt, while alive, if not above the Laws: So that what Juſtice could not infli&t upon their Perſons, is but reaſonable
• ſhould be executed upon their Reputation, and the Eſtates of their Succeffors, things that we often value even above
* Life it ſelf. This is a Cuſtom of fingular Advantage to thoſe Nations where it is obſervºd, and by all good Princes as
much to be deſired, who have Reaſon to complain that the Memories of the Tyrannical and Wicked ſould be treat-
ed with the fame Honours and Reſpé& as theirs
. We owe indeed Subje&tion and Obedience to all our Kings alike,
allow'd then, that according to the Rule of Politicks we are patiently to endure unworthy Princes; to conceal their
Vices, and to affift them in their indifferent A&tions as long as their Authority ſtands in need of our Support. But
berty and common Juſtice, the publiſhing of our real Wrongs and Sufferings ; and to forbid good Subje&s the Glory
• Poſterity of ſo uſeful an Example. And thoſe, who out of regard to ſome ſecret Obligation, do contrary to their own
Juſtice at the Expence of, and to the Diſadvantage of the publick one. 'Livy with abundance of Truth ſays, that
the Language of Men educated in Courts, is always full of Vanity and oftentation, and that the Chara&ters they
give of their Princes are feldom true; every one indifferently, magnifying his own Maſter, and Atretching his Comis
of thoſe two Soldiers, who, the one being ask'd by Nero, why he did not love him, anſwer'd him plainly to his Face;
a
C

Chap. VIII.
559
Held Sacred in Civil States.
I lou'd thee whilft thou wert worthy of it, but ſince thou are become a Parricide, an Incendiary, a Waterman, a Player
and a Coachman, I hate thee as thou doft deſerve : The other, Why he should attempt to kill him, as warmly rea
ply'd, Because I could think of no other Remedy againft thy perpetual Miſchiefs
. But the Publick and Univerſal Teſti-
monies that were given of him after his Death, and will be to all Pofterity, both of him and all other wicked Princes
« like him, his Tyrannies and Abominable Deportment conſider'd, who in his right Senſes can blame? I am ſcandaliz'd,
I own, that in ſo ſacred a Government as that of the Lacedemonians, there ſhould be mixt ſo hypocritical a Ceremony
at the Interment of their Kings; where all the Confederates and Neighbours, and all ſorts and degrees of Men and
Women, as well as their Slaves, cat and flaſh'd their foreheads in Token of Sorrow, and repeated in their Cries and
Lamentations, that that King (let him be as wicked as the Devil) was the beſt that they ever had, by this means at-
tributing to his Quality the Praiſes which only belong to Merit ; and that which is properly due to the Supreme Me-
rit, tho lodgʻd in the loweſt and moſt inferior Subje&t. Eſais, Lib. I. Chap III.) 2. With Reſpect to the whole Body
of the People, 'tis the Duty of every good Subject to make it an inviolable Law to himſelf to prefer the Good of the
Publick to any other Motive or Advantage whatſoever ; chearfully to Sacrifice his Fortune, Life, and even all that he
values in the world for the Preſervatiou of the State ; and to employ all his Wit, Induftry and Addreſs to advance the
Honour, and to promote the Advantage of his own Country. (But we muſt here obſerve, that a private Intereſt is not
always oppos'd to that of the Publick. Moreover, the common Duties of Subjects anſwer in this reſpect to one another,
ſo that the Engagement of every particular Perſon does in ſome manner depend upon the performing of what the reſt are
obligd to do, as well as himſelf, for the Publick Good. For, îndeed, the Publick Good is only the Conſequence of the
united Forces and Services of many conducing to the ſame End If then, in a State, it is as it were become cuſtomary
for the Generality openly to prefer their own private Intereſt to that of the Publick ; a good Subje&t will not in that
caſe be to blame in the leaſt, in not caring to expoſe his Perſon or his Fortune, by a Zeal inporent and uſeleſs to his
Country. Titius Obfero. DCCXXVIII.) 3. And laſtly, the Duty of a Subjet towards his Fellow-Subjects is to live with
them in a Peaceable and Friendly manner; to be Good-humour'd and Complaiſant to 'em in the Affairs of Human Life,
to give Mankind no Uneaſineſs by peeviſh and obſtinate Tempers; and in ſhort, not to envy or oppoſe the Happineſs or
Advantages of any one.
II. The Particular Duties of Subjeets are annex'd to certain Poſts and Employments, the Diſcharge of which influ-
ences in ſome meaſure either the whole Government of the State, or only one part of it There is one general Maxim
which ſerves for all of 'em, and that is, that no one aſpire to any publick Employment, or even preſume to accept of it,
when he knows himſelf not duly qualified for it. [ Thoſe few wiſe and good Men who are Members of the Commons
wealth, would doubtleſs be better pleas'd to retire into themſelves and live at Eaſe ; fall of that ſweet Content, which
excellent and intelligent Perſons know how to give themſelves, in the Contemplation of the Beauties of Nature, and
the Works of Providence, than to Sacrifice all this Satisfa&tion to Buſineſs and a Publick Poft ; were it not that they
hope to do ſome good in being ſerviceable to their Country by their own Endeavours, and in preventing the Admini-
fration of Affairs from falling into ill or unskilful Hands. This may and ought to prevail with Perſons of this Cha-
ra&ter, to conſent to the trouble of being Magiſtrates : But to Çabal and make Parties, and court Employments of Truſt
with Eagerneſs and Paſſion, eſpecially fuch as are judicial, is a very baſe and ſcandalous Practice, condemn'd as ſuch
by all good Laws, even thoſe of Pagan Republicks (as the Julian Law among the Romans abundantly teſtifies) un-
becoming a Man of Honour ; and the ſhrewdeſt ſign that can be, that the Perſon is unfit for the Truſt he ſeeks ſo vehe-
mently. To buy Publick Offices is ftill more infamous and abominable, the moſt fordid, and the moſt villanous way
of Trading in the World: For it is plain, he that buys in the picce, muſt make himſelf whole by ſelling out again in
Parcels. Which was a good Reaſon for the Emperor Severus, when he was declaring againſt a Fault of this Nature, to
fay, That it was very hard to eondemn a Man for making Meney of that which he had given Money for before -Juſt
for all the World as a Man dreſſes and ſets his Perſon in Order and Form, putting on his beſt Face before he goes A-
broad, that he may, make a Figure, and appear well in Company; ſo is it fit that a Man ſhould learn to govern his
own Paſſions, and bring his Mind to good Habits, before he preſume to meddle with Publick Buſineſs, or take
upon
him the Charge of governing other People. No Man is ſo weak, to enter the Liſts with an unmanag'd Horſe, or to
hazard his Perſon with ſuch an one in any Service of Conſequence and Danger ; but trains and teaches him firſt, breeds
him to his hand, and uſes him to the Exerciſe he is deſign d før : And is there not the ſame Reaſon that this wild and
reſtleſs part of our Soul ſhould be tamed and accuſtomed to bear the Bit ? Should be perfectly inſtructed in thoſe Laws
. and Meaſures which are to be the Rules of our Actions, and upon which the good or ill Conduct of our Lives will
depend? Is it not reaſonable, I ſay, that a Man ſhould be Maſter of his own private Behaviour, and expert in making
the beſt of every Accident and Occaſion, before he venture out upon the Publick Stage ; and either give Laws to on
thers, or corre& them for the Negle&t of thoſe they have already ? And yet (as Socrates obſerv'd very truly) the inana
ner of the World is quite otherwiſe : For, tho' no body undertakes to exerciſe a Trade, to which he has not been ea
ducated, and ſerved a long Apprenticeſhip ; and how Mean and Mechanical ſoever the Calling be, ſeveral years are
beſtowed upon the Learning of it; yet in the caſe of publick Adminiſtrations, which is of all other Profeſſions the moſt
intricate and difficult, (ſo abſurd, ſo wretchedly careleſs are we) that every body is admitted, every body thinks hiin-
ſelf abundantly qualified to undertake them. Theſe Commiſſions are made Compliments and things of Courſe, without
any Confideration of Men's Abilities, or regarding at all, whether they know any thing of the Matter ; as if a Man's
Quality, or the having an Eſtate in his Country, could inform his Únderſtanding, or ſecure his Integrity, or rendet
him capable of diſcerning between Right and Wrong, and a competent Judge of his poorer, (but perhaps much
'honeſter and wiſer) Neighbours. Charon de la Sageſe, Liv. III. Chap: 17. Sect. 1, 2.) But we muſt ftill ſay ſomething
more particular. 1 Minifters of State, or Privy Counſellors, ought with the greateſt Application to ſtudy and perfe&tly
know the Affairs and Intereſts of the State in all the parts of Government and to propoſe faithfully, and in the moſt
proper manner, whatever appears to them to be advantageous to the Publick, without being influenced by either Afte
&iom, Paffion, or any finiſter Views: The publick Good ought to be the only deſign of all their Advices and Endeas
vours, and not the Advancement of their own private Fortunes, and the promoting their own Greatneſs and Power.
Nor muſt they ever by vile and nauſeous Flattery, conntenance or encourage the Criminal Inclinations of the Prince.
They ſhould never be engag'd in any, Fađion or Party whatſoever ; keep nothing, Secret that ought to be diſcoverd,
nor diſcover any thing that ought to be kept Secret, ſhould ſtill ſhew themſelves above the Power
of all Temptations;
and never negle&t the Affairs of the State for their Pleaſures, or their own private Concerns. (Now in Perſons thus to be
chofen and employ'd, ſeveral Qualifications are neceſſary : As, firſt of all, it is neceſary to chuſe ſuch are as faithful,
and fit to be truſted; that is, in one Word, Men of Virtue and good Principles. Itake it for granted (ſays Pliny) that
the better Man any one is, the more franch and true he is, and more ſafe to be depended upon 2. They muſt be Perſons
of Ability, and proper for this Office, not only in regard of their Knowledge and Learning in general, but upon the
* Account of their skill in Politicks, and that expreſs Form of Government in particular ; ſuch as have been uſed and
try'd before, and have come off with Honour and Succeſs, verſed in Buſineſs, and accuſtomed to. Difficulties : For
Hardſhips and Adverſities are the moſt uſeful and improving Leſſons, Fortune, ſays Mithridates in Saluft in the room
of many Advantages which he has torn from me, has given me the Faculty of Advice and Perfuafion. And in one word,
they muſt be wife and diſcreet, moderately quick, not too ſprightly and ſharp, for ſuch Men will be always projecta
ing And Men of Fire are more for Change than ſteady Management. Now in order to theſe Qualifications, it is ne-
ceſſary that they ſhould be Men of ripe Years, to give them Štaidneſs, Experience and Conſideration : Nay, I
may
add, to inſpire them with Caution too, for it is one of the many Unhappineſſes attending Youth, that Perſons then are
eafily impos d upon ; of which the Tenderneſs and Softnets of their Brain may perhaps be one Reaſon, as that may
difpofe them the more eaſily to receive any Impreſſion, and conſequently to Credulity and Eaſineſs of Temper. It is
for the convenience of a Prince to have notable Men of all ſorts about him; both thoſe that excel in Subtilty and Con-
Uuu
ning
560
Book VII
The Supreme Power to be

6
6
6
6
6
ning. The former indeed ought to be more numerous, and are more eſpecially requiſite, becauſe they are mote for the
Honour of their Maſter, and of more conſtant uſe ; for theſe are the managers of all regular and ordinary Proceedings.
The Men of Art are for caſes of Neceſſity and extraordinary Emergencies, to help at a pinch, and to countermine a dan
ger. A third Qualification neceſſary for Privy-Counſellors, is Openneſs and Freedom and Courage in all their Behaviour,
when conſulted with. They muſt uſe their urmoſt Care that all their Propoſals be for the Honour and Advantage of their
Prince; and, when once they have ſecured this point, that the Advice be wife and good, all Flattery and Diſguiſe ſhould be
laid aſide ; all Equivocations and Reſervations, and Craftinefs of Expreſſion deceſted and deſpiſed, by which they may ſeem
to aim at ingraciating themſelves, or to contrive that what they ſay may be acceptable to their Maſter. Theſe are thé Men
Tacitus deſcribes, who accommodate their Language as they fee occaſion, and do not fo properly Diſcourſe with their Prince, as
with his preſent inclinations and Circumſtances
. They conſider him as a great Man, as one able to make their Forcunes; they
obferve what he would do, not what is belt for him to do. Whereas, indeed, all theſe Regards ought to be utterly baniſhed
their Thoughts, they ſhould have a conſtant Eye upon the Sacredneſs of their Office, and the Importance of the Truſt repoſed
in them; and looking no further than the Reaſon, and Juſtice, and Convenience of the Thing, ſpeak the Truth and ſpare
not : For however harſh and diſtaſteful this Liberey, and Openneſs, and honeſt blune dealing may be at the preſent to thoſe
Perſons, whoſe Opinion and Inclinations ic happens to croſs; yet there will ſoon come a time when it will obtain Reſpect
and Eſteem. Oppoſition is offenſive juſt at the inſtant; but upon cooler Thoughts the very Perſons you oppoſed, will commend and admire
your p'ain.dealing. A Man ſhould likewiſe cake care to be conſiſtent with himſelf, firm to his Principles, without veering and
wheeling about perpetually, as ofc as other Peoples Humours ſhift into a freſh Quarter. But as he muſt not be changeable
and obſequious in a baſe compliance with the Paſſions and Pleaſures of others, fo neither muit he be ſtiff and peremptory
in his own Opinions. There is always a decency to be obſerved, and great difference to be made between Conſtancy and
Contradiction. For Opiniatrety and Fierceneſs confounds all manner of Deliberation ; and therefore I am far from deliring
my good Counſellor to be inflexible ; as knowing very well, that hearkening to other Mens Reaſons, and changing our own
Opinions upon chem, is ſo far from deſerving the Reproach of Raſhneſs and Inconſtancy, that it ought rather to be looked
upon as a Tefirony of Modeſty, and Ingenuity, and great Prudence. For although the wile Man always walks in the same way,
and by the ſame rule, yet he does not always go the ſame pace, nor tread in the ſame ſteps; change be does not then. So properly as accom.
date and mend himſelf; like the skilful Sailor, who plies to every Wind, and whoſe excellency lies in trimming the Sails
that way that the Gale blows freſheſt. Thus a Man muſt often go about to make the Port he deligns, when there is no co-
ming at ic by a ſtreight Courſe. And it ſhews the Dexterity and Addreſs of a Stateſman, to be able to change his Methods
when thoſe which were firſt choſen are either diſapproved, or by fome Accident rendred uſeleſs and ineffe&tual. Another
neceſſary Accompliſhment for this poſt, is the making a Conſcience of revealing any Debates he ſhall be privy to. For Sie
lence and Secrecy are exceeding neceſſary in the management of all Publick Affairs: Infomuch, that a great Author has
pronounced it impoſſible for that Man to manage any matter of Conſequence, who is sot ſo much Maſter of himſelf as to
keep his own Counſel. For how ſhould be ſupport the weight of Publick Buſineſs, to whom even Silence is a Burden ? But upon
this
occaſion the concealing what one knows is not ſufficient, I muſt likewiſe caution him againſt knowing too much. A curious
and inquiſitive Temper, which loves to be buſie and inform it ſelf of other Peoples Actions and Concerns, is no commenda-
tle Quality in any caſe; but to pry into the Affairs of Princes, and to value ones ſelf upon knowing their Secrets, is as
dangerous as it is unmannerly: And as Tacitus has well obſerv'd, nothing is more hazardous, nothing more unfit for us, than of
ficiouſly to dive into, and be bold with their retired Thoughts and Intentions. And therefore whatever a Man knows of this kind
• ſhould come freely and without his ſeeking ; nay, I make no difficulty to affirm, that it is commendable in a Man to decline
• the Opportunities of having ſuch things imparted to him, and to know as litcle of them as poſſible he can. This argues Re.
verence and Modeſty, prevents all Jealouſies, and ſuits the diſtance between a Prince and his Subjects. Thus have I given
my Reader a ſhort Account of thoſe good Conditions which ſeem neceſſary for the qualifying Men to be Politicians or Priyya
Counſellors. And by theſe he will be able to tell himſelf, what are thoſe ill Qualities which incapacitate a Man for ſuch a
* Truſt. That a Prince in making his choice ſhould be fure to reject all ſuch as are of confident, affuming, and preſumptuous
'Tempers; becauſe theſe Vices alake Men hot and arrogant in Debates, poſitive and bold in their own Senſe: And a wiſe
Man, quite contrary, will be content to allow ſecond and third Thoughts, to examine every thing over and over. It is
the Character of ſuch a one to ſuſpect himſelf, to be jealous of the conſequence, fearful in adviſing and reſolving, that ſo
he may afterwards be more vigorous and aſſured, when he comes to execution. For the mind that knoweth how to be afraid, and
• undertakes warily, will act more ſecurely
, and go upon ſurer grounds. Fools, quite contrary, are eager and aſſured, blind and bold
" in Debate; but when they come to Action, cowardly and came. Advice given with Heat and Confidence, looks fair and gay
at firſt ſight; but the Execution of it is hard and deſperate, and the Event of it full of grief and diſappointment. Next to this
preſumptuous Vanity and Heat, Paſſion is improper for ſuch Miniſters of State; all Anger and Envy, Hatred and Spight,
• Avarice and Ambition, all ſelfiſh Narrowneſs of spirit and privare Intereſt ; for theſe are all of them Corrupters of the beſt
• Senſe, the
very Bane of all found Judgment ; Integrity and faithful Diſcharge of a Publick Character cannot dwell in the
fame Breaſt with cheſe perſonal Pigues, and private Affections. Private Advantage ever did, and ever will obftract and confound
Publick Counſels, and each ſingle Man's Profit, is that which Poiſons all good Senſe, and kind Inclination to the Common Good. One
ching more remains abſolutely neceſſary to be avoided, and that is Precipitation; an irreconcileable Enemy to Prudence and
good Counſel; and fit for nothing but to put Men upon doing amils, and then being aſham'd and unfortunate upon
thac
Äccount. Charron de la Sageſſe, Liv. III. Chap. II. Se&t. 17.) 2. The Clergy as being the publick Mini ßers of Religion, ought
to diſcharge their Function with the utmoſt Gravity and Application ; ſhould teach no Doctrine, nor advance any Opinion
in Religion, which does not appear to them to be ſincerely true; ſhould be themſelves a ſhining Example by their own
Deportment, of thoſe Inſtructions which they deliver to the People ; nor ſhould ever diſhonour their Character, or loſe all the
Advantage and Efficacy of their Calling, by the Diſgrace of a ſcandalous and irregular Life. [' Since then the Clergy are, or
fhould be at leaſt, the publick Maſters of Virtue for the People, who gladly hear them, and put a mighty confidence in them
ic is of great moment to make a good choice of them, eſpecially in places that are very full of People. They are in ſome
meaſure, like the Demagogues among the Greeks, and the Tribunes among the Romans; with this Exception that they do not
meddle, or ought not to meddle with, State Affairs. Thoſe who gain the Hearts of the Populace, can often ſet 'em in a
• Flame and retain 'em juſt as they pleaſe, can raiſe in them what Pallion they have a mind to, or on the contrary perſwade
them to Moderation and Peace. If the People from ſome Accident or Opinion, take the Opportunity of making Diſtur-
• bances, 'tis not ſo much the People
whom we ought to condemn, as thoſe who fpirit them up and excite them to it
. One
$ ſhall rarely hear of any Commotions in a Town, unleſs backed by them whoſe Buſineſs it is to teach in Publick or Pri-
vately. Thoſe who take upon themſelves to diſcharge with Repucacion ſo difficult an Employment, ought chiefly to be en
dow'd with two Qualifications. The firſt, is their having a Knowledge, and being acquainted with Religion, that is to ſay,
that they have with Care and Diligence applied themſelves
to the Study of the Holy Scriptures, and medicated to upon
them, as to be able perfectly to underſtand
all the Duties of Chriſtianity, and all their Conſequences
, together with the
Grounds on which they are built
. This ought to be the Foundation of all their Studies, and the End to which all their
• Reading and all their Meditations ſhould be directed. To this purpoſe all their knowledge in Hiftory, in Morality, in Philo-
Sophy, in Police Learning, and all in general that they make their study, ought to be employed by them, nor ought they co
of the Goſpel. The ſecond Qualification necellary for them to have, is that their Behaviour" be confiftent with what they teach;
« ſo that they be a Pattern of thoſe Chriſtian Vertues which they inſtruct others in. For tho'an Angelical Perfection, as being
above the power and Abilities of Human Nature, is not to be required of them, and one ought to excuſe their Frailties
as well as thoſe in other Men ; yet it is certain that Mankind expect from them, and
with good Reaſon too, not only more
.
Knowledge and Learning, but more Vertue allo.. An Honelt Man, when we fpeak of ſuch as follow another way of Living,
is a Man who acts nothing that is ſcandalous, or puniſhable by the Laws, and who performs the external Duties of Societies,
Lo as not to deſerve to be reproach'd by the World with any thing that's bale and infamous, according to the manner of
* Livings
;
6

Chap. VIII.
561
Held Sacred in Civil States.
to
Living and the Cuſtom of the Country for Perſons of his Rank and Circumſtances. This Notion of an Honeſt Man is con-
formable to all the vicious Cuftoms, and all the Corruption of the Times and Places where thoſe who make it, happen to be
educated in, and tho' the Depravation of Manners is not every where equal, nor it may be the ſame, yet it is too true,
that there is no place whatſoever, where Men do not forgive in each other a great many Vices, and even to a degree far
beyond what the Evangelical Rule allows of.. For example, a Man may be immoderately Ambitious, or aim at Employ-
ments that he is not qualified for, and endeavour to get into them by all the Methods that are not liable to Puniſhment ;
and this purely to gratify his own Vanity, and not with a deſign to be ſerviceable to the Publick ; yet not be reputed a
• diſhoneſt Man, nor be looked upon by any body with Scorn and Indignation. A Man may, and still maintain this very
Character, be infinitely more covecous, and more addicted to bis Pleaſures than the Goſpel fuffers, or do any thing thac
does not give occaſion of Scandal in the places where he lives, either to improve his Fortune, or ro waſte his Time in
greater Variety of Voluptuouſneſs. But a great deal more is required to make ſuch a kind of Honeſt Man pafs for a Good Man,
according to the Precepts of the Goſpel, or indeed according to thoſe of Moral Philoſophy : They, whoſe Profeflion it is to in-
ſtruct others in the Principles of Religion, muſt not be ſatisfied with being Honeſt Men, in the Senſe which thoſe words are
generally taken ; but muſt be Good Men in the Goſpel Senſe ; that is, they muſt be ſubject to no habitual Sin, but eſpecially
ſuch as are upon all Accounts inconliſtent with true Piety and Devocion. Now if the Perſons who are choſen, in this A.
fair, are not of the cleareſt Characters, two Evils muſt neceſſarily ariſe from thence. The firſt is, that their bad Example will
do abundantly more Miſchief, than their good Sermons can do Good. Mankind are by Nature much more inclin'd to follow
the Bad and the Good that they ſee practis'd every Day, than to reap any Advantages by the moſt excellent Diſcourſes in
the World ; and therefore a Clergyman, who lives a regular Life, does by his Manners much better convince the People that
'cis their Duty to live well, than the greateſt Orator could do by the moſt Scudied and Rhetorical Diſcourſe ; as on the
contrary, if he leads a diſorderly one, his vicious manners will make a deeper Impreſſion upon their Minds, than all he can
be able to ſay to 'em. There is no need of producing Inſtances to prove this ; 'cis what daily Experience tells the whole
• World. And therefore adviſe People as much as you will, to do as ſuch Men fay, and not as they do ; they will always be
ſure to follow the Ill they do, and forget all the Good they ſay. Never did a Perſon of an ambitious and wrangling Tem-
per, inſpire by his Diſcourſes, a Contempt for the Grandeur of the World, or the Love of Peace. Never did a coverous
Preacher make his Hearers Liberal. Never did a voluptuous Clergyman perſuade any one to abſtain from Pleaſures, or to
uſe them with Moderacion ; at leaſt when thoſe Perſons were diſcovered to be what they really were. Parrhafiana, Tom.
II. Pag. 235, &c.') 3. The Publick Profeſſors and Maſters of Aris and Sciences, muſt not reach any thing that is falſe or perni
cious to the Minds of the People whom they are employed to inſtruct ; nor advance any Principle tho' ever ſo true, that they
do not prove by folid and convincing Reaſons, ſufficieac to enlighten the Underſtanding of their Scholars i muſt carefully
avoid broaching any Opinion that may be likely to diſturb the Government ; and ought to look upon all Human Learning
that is not uſeful to Mankind either in Private or Publick Affairs, to be vain and empty Speculations. 4. Magiſtrates, and all
other Officers of Juſtice, ſhould be eaſie of Acceſs co every Body ; protect the Common People againſt the Oppreſſions of the
more powerfulones; be as forward in doing Juſtice, and that with the ſame Impartiality to the Mean and the Poor, as to the
Great and the Rich ; not fpin out a Cauſe to an unneceſſary length; never ſuffer themſelves to be corrupted by Bribes or So
licitations; examine thoroughly into the Macter before 'em, and then determine it without Paſſion or Prejudice ; regardleſs
of every thing while they are doing their Dury. [Magiftrates have a mixe Quality, and are placed in a middle Station, be-
cween Sovereign Princes and Private Subjects. Theſe Subalterns therefore have a double Task incumbent on them, and
*muſt learn both how to command and how to obey. To obey the Princes, who truſt and employ them, to ſubmit to, and
truckle under the paramount Authority of their Superior Officers; to pay Reſpect to their Equals ; to command thoſe un-
der their Juriſdiction, to protect and defend the Poor, and thoſe who are unable to contend for their own; to ſtand in the
Gap and oppoſe the powerful Oppreſſor ; and to diſtribute Right and Juſtice to all forts and conditions of Men whatſoeves.
And, if this be the Buſineſs of a Magiſtrate, well might it grow into a Proverb, that the Office diſcovers the Man, ſince no
mean Abilities, no common Addreſs, can ſuffice for the ſuſtaining ſo many Characters at once, and to act eacli part ſo well
as to merit a general Applauſe and Approbation. As to the Sovereign, by whoſe Commiflion the Magiſtrates act, his
Commands muſt be the rule of their Behaviour. Some of his Orders they ought to execute ſpeedily; ſome again they muſt by
no means comply with ; or be in any Degree inſtrumental in the Execution of them; and in others the moſt adviſeable Courſe
will be, to ſuſpend the Obedience of them for ſome convenient Time. In all Commiſſions, which leave the Cognizance
of the Matter co the Magiſtrate, ſuch as thoſe of Oyer and Terminer ; and in all others where there is this Clauſe (so far as to
you jball appear) or any other Clauſe equivalent to this, inferred; or which, tho' they do not refer the Cogniſance to him,
yet order ſuch things, as are either manifefly juſt, or at leaſt lawful or indifferent in their own Natures, he ought readily
to obey, and without demur ; for here is no difficuley, nor any ground at all for a juſt and reaſonable Scruple. In ſuch
Commiſſions and Orders, as do not leave the Cogniſance of the Matter to him, buc only decree ſome point of executive
Obedience; as in choſe particularly, which we commonly call Mandates and Warrants ; if they be contrary to any poſitive
Law, which the Sovereign has Power to diſpenſe with, and there be clauſes of Non-Obftanté for that purpoſe, to ſave the
Party harmleſs; he is obliged to obey his Orders without more to do. Becauſe, according to the Civil Conſtication, and
*the Laws of the Land, the Sovereign has a Liberty reſerv'd to him of relaxing, or ſetting alide the Laws in ſuch particular
Caſes. And the having ſuch a Power over all Laws whatſoever, is the very thing in which abſolute and unlimited Sove-
reignty conliſts. In caſes contrary to Law; or ſuch as manifeſtly make againſt the Publick Good, (tho' there ſhould be
an indemnifying Clauſe) or where the Magiſtrate knows his Orders to be obtain'd by Surpriſes or upon falſe Suggeſtions, or
by corrupt Mechods, he ought not, in any of theſe caſes, to be hafty in the executing his Orders; but let them lie by a
while, and with all Humility remonſtrate againſt them; and, if occaſion be, repeat thote Remonſtrances a ſecond or a third
time ; but if the command be peremptory, and unalterable, and repeated as often; then he is to comply ſo far as in Honour
and good Conſcience he may, and for the reſt to excuſe himſelf as well as he can. In matters contrary to the Law of
God and Nature, he muſt lay down his Office, and be content to quit all; nay reſolve to ſuffer the worſt that can come,
rather than be inſtrumental in, or conſenting to them. I cannot ſo much as allow him to deliberate, or once to doubt in
ſuch Circumſtances what to do, for natural Juttice cannot be hid, it ſhines clearer and brighter than the Sun; and all Men
muſt ſee it, except only thoſe who wilfully ſhut their Eyes, and wink hard againſt it. All this Advice relates to things in
agitation, and intended or ordered to be done ; but, as for thoſe which the Sovereign has done already, let them be
never ſo wicked and unreaſonable, a Man had better diffemble the Matter as well as he can, and try to wipe oue
all Remembrance of it, than loſe all by provoking and expoſtulating with a Prince to no purpoſe, as Papinian
did. For it is the very extremity of Madneſs to Itrive againſt a Stream ;, where no Ground is goi, nor any thing but Ham
tred and Disfavour for our Pains. As for their Dury, when conſidered in their other Capacity, and with regard
to the private Subjects under their Government, Magiſtrates muſt always remember whoſe their Authority is, and
from whence they derive ir, That this is none of their own proper Right, bue meerly a Truſt; that they hold ic
from and under the Prince ; that he has the Fee, and is the Lord and conſtant Proprietor ; but they are Tenants and
Stewards at Will, put in to exerciſe this part of his Juriſdi&ion for ſo long a Term only, as their Commiſſion purports; or
during his pleaſure, and no longer. Now from hence it is very natural and obvious to infer ; That a Magiſtrate ought to
be eaſie of acceſs; always ready and at leiſure to hear and receive the Petitions and Complaints preferred to him : That his
Doors ſhould be open to all Comers, and he as ſeldom out of the way as poſſible ; but eſpecially not ſo wilfully, and by con
trivanca; for fie ſhould conſider himſelf, as no longer at his own diſpoſal, but a Servant of the Publick, and devoted to
the uſe and benefit of the People : And this was the Reaſon why Moles's Law commanded that the Judges ſhould keep
their Seſſions, and decide Controverſies in the Gates of their Cities; that fo Juſtice mighe offer itſelf to all that went out and
in, and none might find any Difficulty in addreſſing for, or obtaining it. "He ought to receive the
Applications of all Per-
ſons and Conditions alike; and be open and kind to all; the mean as well as the Great; and the Poor no leſs than the Rich.
UUR 2
U pont
562
Book VII,
The Supreme Power to be

6
There are
1
Upon which Account it is, that one of the Philoſophers compares a Magiſtrate to an Altar; to which all People have re-
courſe in their Affliction and extreme Neceſſity , pour out their Souls there, and depend upon Relief and Conſolation
for their Troubles from ſo doing. But, though in point of Juſtice, he ſhould be free and open, yet in Friendſhip and
Acquaintance he ought to be exceedingly reſervd, not to make himſelf cheap and common, nor to admit any one into his
Familiarities, and intimate Converſation, except fome very choice Perſons, ſuch as are known to be Men of ſound Senſe,
and ftanch Vertue ; and theſe too but privately. For, a large and
general Acquaintance de baſes the Authority of his
Character; and abates of that Firmneſs and Vigour which is neceſſary for the diſcharge of it: When Cleon was choſen
and admitted to the Government, he called all his Friends together, and ſolemnly renounced from that tiine what-
ever Friendſhip had been formerly between them, as thinking the continuing under ſuch Engagements by no means
reconcileable with the Truſt he had now taken upon him ; and Cicero obſerves accordingly, that a Man muſt put off
the Character of the Friend, and lay that quite alide, before he can do Right to the part of a Judge.
two things, wherein the Office of a Magiſtrate conſiſts ; the one is, to preſerve and keep up the Honour and Dignity,
and juft Rights of the Prince who has employ'd him, and of the Publick, whoſe Repreſentative he is, with a bea
coming State, with Gravity, Authoritative Behaviour, and a well-tempered Severity. Next, he is to act like a
true and faithful Tranſcript from the Original ; an Interpreter and Executor of his Maſter's Will ; to ſee that
this be duly declared, and diligently obſerv'd. By, this Will, I mean the Law; for this is the Authentick Will
of the Prince, and the only Declaration of it, which Subje&ts are bound to take notice of, of this the Magiſtrate
is to exact a faithful Account and punctual Obſervance ; for which Reaſon we often find him ter med
Authors,
• The Living and the ſpeaking Law. Now, tho it be the Duty of a Magiſtrate, and an excellent Qualification in
him, to temper Juſtice with Prudence; and Severity with 'Gentleneſs and Forbearance ; yet, it muſt be confefs’d
much more for the common Advantage; to have ſuch Magiſtrates as incline to the Exceſs of Sharpneſs and Rigour,
than thoſe who are diſpoſed to Mildneſs, and Eaſineſs, and Compaflion. For even God himſelf, who highly recom-
mends, and ſo ftri&tly enjoins all thoſe human and ſoft Diſpoſitions upon other Occaſions, yet poſitively forbids a Judge
to be moy'd with Pity. The ſtrict and harſh Magiſtrate is the better Reſtraint, the ſtronger Curb; he contains people
in bounds, and preſerves a due Awe and Obedience of the Laws. The mild and mercifal one expoſes the Laws to
contempt; make Magiſtracy cheap, and leſſens the Prince, who made both the Law and the Magiſtrate, in the Eyes and
* Eſteem of his people. In one word, there muſt go two Qualifications to the capacitating a Man for the diſcharging
this Office compleatly, Integrity and Courage,; the firſt cannot ſubfilt alone, but ſtands in need of the ſecond to fupa
port and back it ; The former will be ſure to keep the Magiſtrate's Hands clean from Avarice and Partiality, and Re-
ſpect of Perfons, from Bribery, and Gifts, which are the Bane, and utter Exterminators of Truth; and from any
other Violation of Juſtice; which Plato calls (which indeed it ought to be) a pure unblemiſh'd Virgin : This
• will alſo be a Guard to him againſt his Paſſions; the Averſions, or Affe&tion he may bear to the Parties concerned;
and indeed all other Reſentments, which are but ſo many. Enemies and Underminers of Right and Equity. But
then he will find great occaſion for Courage too, to ſtand his ground againſt the Menaces and imperious Sollici-
tations of great Men, the Requeſts and Importunities of Friends who fancy they have a fort of Kight to diſpoſe
• of him, and will not take a reaſonable refuſal : To harden him againſt the Prayers and Tears, the loud Cries and
' bitter Complaints of the miſerable and afflicted ; for all theſe are very moving and forcible Inducements, a great
· Violence upon Reaſon and Duty; and yet ſo committed, that there is a plaulible Appearance of both, in the very
• diverſion they labour to give us from both. And the Truth is, this Firmneſs and inflexible Conflancy, of Mind
• is the moſt maſterly Vertue, and particular Excellence of a Magiſtrate ; that he neither be terrified and fubdued
by Greatneſs and Power, nor melted by Miſeries and deplorable Circumſtances. Theſe are what very brave Men are
often tranſported by; and therefore it is the greater Praiſe to continue proof againſt them. For, though being ſoften'd
• by the latter have an Air of good Nature, and is more likely to prevail upon the better fort of Men ; yet either of the
extreams is finful, and both foreign to the Merits of the Cauſe, which is the only thing that lies upon the Judge. The
• Motives to Pity then are very dangerous Temptations; and what a Man in Authority ought as much to itop his Ears
• againſt
, as Proiniſes or Threatnings; for even that God himſelf, who is Love and Mercy in perfection, has diſcounte-
nanced' this unſeaſonable Compaſſion. And the ſame Legiſlator, who ſaid, Thou ſhalt not receive a Gift to blind thine Eyes
• therewith, neither shalt thou accept the Perſon of the Mighty, found it no leſs neceſſary for the good of Mankind, and
the equal Diſtribution of Juſtice, no leſs agreeable to his own Goodneſs, to add that other Command, Thou ſvalt not
· favour a poor Man in his Čaufe. Charron de la Sageſſe, Liv. 3. Chap. 17. Se&t. 3, &oc,'] 5. The Generals, Captains,
and other Officers.of the Army ought to exerciſe their Soldiers carefully
and at convenient times, to inure them to bear
the Hardſhips and Fatigues of War ; ſhould ftriály obſerve all the Rules of Military Diſcipline ; never expoſe, nor
hazard their Troops, but when there is an abſolute neceſſity for it; ſhould take care, as far as in them lies, that their
Soldiers have a conſtant and regular Supply of Proviſions, and not defraud them of any of their Pay and Allowance ; ne-
ver ſtrive to win their Affections to the Prejudice of the Government, but always inſpire them with Sentiments confor-
mable to the Good of their Country and the Publick Welfare. 6. Soldiers, on the other hand ought to be content with
their Pay, and not plunder, nor abuſe in any manner whatſoever, either the Citizens, or the Country-People ; ſhould
chearfully and with reſolution expoſe themſelves to the Fatigues and Hazards to which they are called for the Defence
and Honour of their Country; ſhould as much avoid the imprudent Ardour of running into unneceſſary Dangers, as the
baſe Cowardiſe of Flying when there is occaſion for their Standing,; ſhould ſhew their Valour and Intrepidity upon the
Enemy, and not upon their Comrades ; ſhould valiantly maintain their Poſts, and prefer a glorious and honourable Death
to an ignominious Flight and Life. 7. Ambaſſadors, Plenipotentiaries, Envoys, and others that bear any Publick Charafter
abroad, ought to behave themſelves with great Prudence and Circumſpection; to be Perſons of deep Penetration, carefully
to diſtinguiſh Solidities from Trifles, and Truth from Falfhood; inviolable in keeping a Secret, and proof againft any
Corruption or Temptation that might make them neglect or abandon the Intereſt of their Prince. [ A Publick Miniſter,
or a Plenipotentiary, is a Camelion, a Proteus; ſometimes, like a cunning Gameſter, he diffembles his very Humour and
• Temper, as well to avoid the Conje&ures and Penetration of others, as to prevent any Secret eſcaping thro' Pallion or
• Weakneſs; is always ready to put on that Shape his Deſigns and Occaſions require, and artificially appears what it is
• his Intereſt to be thought. Thus when he deſigns to diſſemble that his Maſter is very Formidable or very Low, he is
• Reſolute and Inflexible, to prevent any large Demands ; or Eaſie and Complaiſant, to give others occaſion to make
them, and to ſecure the ſame Liberty. Ac other times either he is profound and ſubtle, to conceal a Truth in the very
publiſhing of it; becauſe it concerns him to divulge it, and that it ſhould not be believed : Or elſe free and open,
• that whenever lie ſhall have occaſion to conceal what muſt be kept ſecret, People may not ſo much as ſuſpect him;
• but on the contrary, believe he has diſcover'd whatever he koew. In like manner he is warm and verboſe, to excite
others to talk, or to hinder their ſpeaking what he deſires not to hear, or their acquainting
him with what he would
be ignorant of; talks of indifferent Things which foften or deſtroy one another, and leaves the Mind confounded be
twixt Confidence and Diſtrnſt ; that he may make amends for one loft Opportunity by dextrouſly gaining another : 01
.
he is cool and filent to engage others to talk; hears patiently a tedious while, to obtain the ſame Favour himſelf;
• talks with fuperiority and weight when he deſigns to make ſuch Promiſes or Threats as may carry a great ſtroke with
them, and make a Itrong Impreſſion upon ſuch to whom they are direeted. Sometimes he ſpeaks firſt, the better to
diſcover the Oppoſitions and Contradi&tions, Intrigues and Cabals of Foreign Miniſters, upon the Propoſitions he has
to advance, and take his Meaſures from their Anſwers. At another Meeting he ftays till the laft, that he may be ſure
not to loſe his Labour ; to be more exa& ; to obſerve every thing that may be ſerviceable to his Maſter, or his Allies :
• To know what to ask, and what he can obtain : He knows how to be clear and expreſſive, or obſcure and ambiguous:
• can uſe equal Words and Turns, which he can render more or leſs forcible, as his Interest and Occalions require. He
C
6

Chap. VI) 4.
563
Held Sacred in Civil States,
may ſhare
• asks little, becauſe he won't grant much ; or his Requeſts are large that he may be ſure of a little : Deſires ſmall things
· which he pretends to be of no value, that they, may not hinder him of greater' ; avoids the gaining an important Point
at firft, if it is like to hinder him of ſeveral, which, cho' in themſelves of leſs value, yet united exceed the other. His
• Demands are extravagant, with deſign to be denied, that he may be furniſh'd with a juſt Excuſe for refuſing thoſe he
knows will be made : As induſtrious to aggravate the Enormity of theſe, and as warmly to urge the Reaſons why he
cannot hearken to them, as earneſtly to endeavour to enervate thoſe which they pretend for their Denial : Equally con-
cerned to aggrandize the little he offers, as to flight openly the little they are willing to grant. Feigns extraordinary
Proffers, which beger a Diftruſt, and oblige them to reje&t what indeed accepted would be uſeleſs, this ſerves to com
• lour his exorbitant Demands, and to throw the blame of the refuſal upon them: He grants more than they can ask, to
get more of them; ſhews himſelf very hard and unwilling to grant trivial things, that he may quaſh all Hopes and Ex-
pe&tations of better from him; or if'he is perſuaded to part with any thing, 'tis on ſuch Conditions that he
the Advantages of it. He directly or indirectly eſpouſes the Intereſt of an Ally, as he finds it profitable, or as it tends
to advance his Pretenfions ; talks of nothing but Peace and Alliances, the Publick Good and Tranquillity; in all
• which he means nothing but his Maſter's Intereſt; ſometimes he reconciles diſagreeing Parties, at other times' he di-
vides thoſe he found united ; terrifies the ſtrong and potent, and encourages the weak : Unites ſeveral feeble Intereſts
againſt a powerful one, to render the Ballance equal ; joins with the former, that they may deſire his Alliance and
• Prote&tion, which he fells at a dear rate : knows how to intereſt thoſe with whom he treats, and by a dextrous Ma-
nagement, by fine and fubtle Turns, makes them ſenſible of their private Advantage, the Riches and Honours they may
hope for by a little Eaſineſs which will not in the leaſt claſh with their Commiſlions, nor the Intentions of their Ma-
ters
. And that he may not be thought impregnable on this ſide, betrays fome ſmall Concern for his own Fortune :
diſcovers by this their moſt ſecret Intentions, the moſt profound Deſigns, and laft Efforts; which he turns to his own
* Advantage? If he is injur'd in any conſiderable Article, he is very loud, but if he finds he is not ſo, is yet louder,
and throws the injur'd on their Juſtification and Defence. All his Meaſures are order'd, his Steps pointed out, and his
• leaſt Advance preſcrib'd by the Court, yet he appears as Complaiſant and Free in the moſt difficult Conteſts, as if
• all his Compliances were extempore, and purely owing to his condeſcending Temper. He dares even engage to an Al-
ſembly that the Propoſals ſhall be approv'd of, and that his Maſter will not diſown him. He ſpreads fålſe Rumours
concerning thoſe things which he alone is entruſted with; he cloſely reſerves ſome particular Inftructions, theſe he
• never diſcloſes, but at luch Extremities as to negle& the uſe of them would be pernicious. All his Intrigues tend to ſo-
• lid and ſubſtantial Ends, for which he willingly ſacrifices Pun&tilio's, and imaginary Points of Honour
He has a great
deal of Phlegm, and is arm’d with Refolution and Patience; fatigues and diſcourages others, but is himſelf unwearied.
. He's forewarn'd and fortified againſt all tedious Delays and Affronts, Jealouſies and Suſpicions, Difficulties and Obfta-
cles ; fully perſuaded that Patience and an happy Conjun&ture will influence their minds, and accompliſh his deſired
Ends. Hé feigns a ſecret Intereſt to break off the Negotiation, when he paſſionately deſires its Continuance ; but on the
contrary, when he has ftri&t Orders to uſe his laſt Endeavours to break it off
, thinks the beſt way to effect it is to preſs
its Continuation. After a very great Event, he is either ſtiff or eaſie, according as it is advantageous or prejudicial;
and if by a vaſt Prudence he can foreſee any thing advantageous to the State, he follows it cloſe, temporizes and ma-
nages himſelf according to the Hopes, Fears, and Neceſſities of his Maſter : takes his Meaſures from Time, Place,
and Occafion, his own Štrength or Weakneſs, the Genius of the Nation he treats with, and the particular Temper
and Character of their Miniſters. All his Maxims, Deſigns, and moſt refind Politicks tend only to prevent being de
ceiv'd, and to deceive others. Mr. de la Bruyerc's Caracteres at Chap. du Souverain & de la Republique. This indeed
is a fine Deſcription of a Publick Miniſter, or a Plenipotentiary ; but, however, ſuch a Deſcription in which every
particular is not to be imitated. We may alſo conſult Mr. Wicquefort's Book intitled, L'Ambaſsadeur Sogo Ses Fonktions.'1
8. The Commiſſioners, or Receivers of the Revenues belonging to the State, and in general all thole who have the Ma-
nagement of the Publick Money, ought to take care not to uſe any unneceſſary Severity, nor to exact more of the Sub-
jects than what they are tax'd ai, to enrich themſelves, and burden others; ſhould apply none of the Publick Treaſure
that paſſes through their Hands to their own uſe, and ſatisfie thoſe whom they have Orders to pay out of it, without ma-
king them ſtay a long time for their Mony. But all theſe particular Duties of Subjects ceaſe with the Pablick Pofts and
Employments from whence they flow. Whereas the General Duties remain fill in force, as long as Men are Subjects,
and live under any form of Government. Mr. Barbeyrac's ſecond Note upon this Se&tion, p. 336, 337, &c.
6
CH A P.

564
Book VII.
C H A P. JX.
Of the Duty of Sovereigns.
1.
II.
III.
IV.
The Office and Duty of Sovereigns, whence | VIII. The Subje&s are to be reſtrain’d from Mutual
to be diſcover'd.
Injuries.
The Obligation that Princes have to be well | IX. An Áble and Honeſt Miniſtry is to be em-
inſtructed in it.
ploy'd in State Affairs.
The People's Safety is the Supreme Law. X. Taxes are to be equally laid, and rightly
The Subjects are to be traind up in Good
gather'd.
Manners.
XI. The Wealth of the State is to be advanced.
Fit Laws are to be enacted.
XII. Factions to be prohibited.
And put in Execution.
XIII. A Sufficient Force to be kept up for the oppor
Penalties are to be inflicted with Juſtice and
fing of Foreign Invaders.
Moderation.
V.
VI.
VII.

IT.
.
T remains that we take a View of the Duty this Duty, may eaſily be gather'd, by exami-
of Sovereigns; which ought to be explain’d ning the Nature and End of Civil Communities,
with eſpecial Care and Diligence: as well in re- and the proper Offices belonging to the Sovereign
gard, that the Ignorance or Neglect of this Power.
Duty is the Occaſion of ſo many Miſchiefs in II. Here then it is before all things neceſſary,
the World (1), as becauſe to deliver the Rules that Princes induſtriouſly apply themſelves to
and Meaſures of it, is the proper Buſineſs of this the Underſtanding of every ching, that falls un-
general Part of Civil Knowledge, it being placed der the compleat Diſcharge of their Truft ;
beyond the Bounds of Municipal Laws. Yet in fince no Man can manage with Commendation
as much as others have frequently inculcated what he hath not firſt rightly learn'd and conſi-
theſe Points, we ſhall reckon our Task diſcharg’d, derd (b). And as the (c) Art of Government is
in barely repeating the chief Heads (a). The ſo very difficult as to require the whole Man,
Precepts then which unite in the making up of tho' of the greateſt Parts and Abilities (2), they
+
(1)
' How happy is that Poft which every minute furniſhes Opportunities of doing good to thouſands! How dangerous
" is that which every moment expoles to the injuring of Millions ! (Caracteres de la Bruyere, Chap. du Souverain Logo de la
Republique, p. 337. Ed. de Bruxelles 1697) the Good which Princes do reaches even to the moſt diftant Ages
, as the Evils
that they occaſion are multiplied from Generation to Generation to lateſt Poſterity. Theſe are the Archbiſhop of
Cambray's own words in his Avantures de Telémaque (Page laſt but one of the laſt Tome) a Work from whence I ſhall
take ſeveral fine Pallages, with which the Reader, I preſume, will not be diſpleaſed to have his Memory refreſhed, tö
renew the Pleaſure which he took in the firſt reading of ſo many excellent Precepts, where the Solidity of the Thoughts,
and the Beauties of the Expreſſion, ſtrive in emulation of each other, which ſhall moſt charm thoſe who have a tafte of
fine Things. Mr. Barbeyrac's Note upon this Section, p: 338. (a) See Lord Bacon's Serm. fid. c. 19.
(b) See 1 Kings III. 15. Virg. Æn: 6. v. 852, 853. Iſocrates has a wiſe Remark on the fame Subjeet ; it is, Jays be,
that according as Princes cultivate their own Minds, ſo they muſt expect to find their Kingdom. And therefore no
Champion, at the Games, has ſo much need to exerciſe bis Body, as a Governour has to exerciſe and improve his Wit.
Ad Nicoclem. And the Admonition of the Satyriſt, as it belongs to Mankind, ſo it eſpecially affects Princes.
Diſce
Study thy ſelf, what Rank or what Degree
-quem te Deus effe
The wiſe Creator hath Ordain'd for Thee,
Jullit, & bumaná qua parte locatus es in re.
And all the Offices of that Eſtate
Perf. Satyr. III. v. 71, 72. Perform, and with thy Prudence guide thy Fate.
Mr. Dryden.
See alſo Philip de Comines, Lib. 1. p. 342, & Lib. III. p. 388.
(c) That thoſe things which appear neceſſary to be known, in order to the well-governing of a State, are not ſo very
trite and vulgar, ſo obvious to all Capacities, may be gather'd from what Mr. Hobbes has particularly deliver'd on
this Point. De Cive c. x. f. 10.
(2) . The moſt painful and difficult Employment in the World, in my Opinion (ſays Montagne) is worthily to diſ-
charge the Office of a King. I excuſe more of their Failings than Men generally do, in conſideration of the inſuppor-
table weight of their Office, which amazes me. 'Tis hard to keep meature in fó unmeaſurable a Power. Whether it
is, that it is to thoſe who are of a leſs excellent Nature, a mighty Incitement to Vertue to be fix'd in a place where
you cannot do the leaſt good that is not put upon Record; and where the leaſt Benefit accrues to ſo many Perſons ;
• and where your Capacity, like that of Preachers, is principally addreſs’d to the People, no very exact Judge, eaſily
'impoſed on, and eaſily contented. Eſais, Liv. III. Chap: 7. de l' incommodite de la Grandeur, P. 681. in Fol
. See alſo
Liv. 1. Chap. XLII. where there is in the Margin, Sceptre de Grand poids. Here are Mr, de la Bruyere's Thoughts, which
are as beautiful and as ſolid, “There are, Says be, no general or certain Kules of governing well; they depend on
• Times and Conjun&turcs, tlie Prudence and Deſigns of the Governours : So that perfe& Government is the Maſter-piece
of the Underſtanding, and perhaps it would be impoſſible to arrive at it at all, did not Subje&ts contribute one Moiety
to the Work by an Habit of Dependance and Submiſſion. If the care of a ſingle Family be ſo burdenſom, if a
· Man has enough to do to anſwer
for himſelf; what a weight, what a Load is the charge of a whole Kingdom ? Is the
Sovereign recompenced for all his anxious Cares by the Proftrations of his Courtiers, or the Pleaſures an Abſolute
• Power feems to afford ? When I think on the troubleſom, hazardous, and dangerous Paths he is forced to tread to arrive
at Publick Tranquility; when I refle&t on the extream difficult, tho neceſſary, Methods he is frequently obliged to
• uſe to conipaſs a good End ; that he is accountable to God even for the Felicity of his people, that Good and Evil are
in his hands, and that Ignorance is no Excuſe ; I can't forbear asking my ſelf, wouldAt thou reign? Would a Mag
<
meanly

Chap. IX.
1565
Of the Duty of Sovereigns.
him, to feng so well?
ought therefore as it were to forget their own trench their Pleaſures and uſeless Diverſions, ſo
Perſons, and live only for the Sake of the People, far as they intercept their main Employment :
From there conſiderations it follows, that For the fame Reaſon they ought to admit in-
Princes ought to (3) renounce all thoſe Studies to their Familiarity none but Men of Wiſdom
and Purſuits which contribute nothing to this and Experience (4); and on the contrary to
good End, much more are they obliged to re diſcountenance and chaſe away all Pactering
meanly happy in a private Condition, quit it for a Throne ? Is it not even to one, who comes to it by Hereditary
Right almoſt inſupportable to be born a Monarch?“There is a ſort of Commerce or Reciprocal Return of the
• Duties of the Sovereign to his Subje&ts, and of theirs to him. Which are moſt ſtrongly binding, or moſt difficult in
the Performance, I won't determine : 'Tis not indeed very eaſie to judge between the ſtrict Engagements of Reverence,
Aliſtance, Service, Obedience and Dependence on the one ſide ; and the indiſpenſible Obligations to Goodneſs, Juſtice
and Prote&tion on the other. To ſay the Prince is the ſupreme Diſpoſer of the Lives of the People, is to tell us only
that the Vices of Mankind have entailed on them a natural Subje&ion to Juſtice and the Laws, with the Execu-
tion of which the Prince is entruſted: To add that he is ablolute Maſter of his Subje&t's Goods, without any Reaſon
or legal Proceſs, is the Language of Flattery, the Opinion of a Favourite, who will recant it when he feels Death
upon
him. When on a fine Evening you ſee a numerous Flock of Sheep fpread over a little Hill, quietly grazing on
'the fragrant Thyme ; or in a Meadow, nibbling the ſhort and tender Graſs that has eſcap'the Mower's Scythe," the
diligent and careful Shepherd, you obſerve, is always amongſt them, ſuffers 'em not to go out of his Sight, leads 'em,
follows 'em, changes their Paſture ; if they wander, 'he fetches 'em in; if the greedy Wolf appears, he fets his Dog
on, to beat him off ; he nouriſhes and preſerves them ; the Morning finds him in the open Field in which the Sun
lett him : What Care! what Vigilance and Slavery is this! Which Condition looks to you the moſt delightful and
free, that of the Sheep or the Shepherd? Was the Flock made for the Shepherd, or the Shepherd for the Flock? The
genuine Image of this is of a good Prince and his people. There is no Occaſion (on the contrary) for Arts and Sci-
ences in the Exerciſe of Tyranny; the Policy which conſiſts only in Bloodſhed, is very ſhallow, and has nothing of
• Fineneſs in it. It prompts us to murther all whoſe Lives are Ohſtacles to our Ambition ; and this a Man, naturally
cruel, does with Eaſe.' 'Tis the moſt barbarous and deteſtable way of ſupporting and aggrandizing our ſelves.
Carattéres ou Moeurs de ce Siecle. Chap. du Souverain &o de la Republique. See like wiſe les Avantures de Telemaque,
Tom. V.
p.
18. Ed. de Bruxelles, Xenophon, as our Author has remark'd, ſaid a long Time ſince, That Man is able
more early to govern all other Creatures, than thofe of his own kind; “Ως 'Ανθρώπω πεφυκότι, πάντων των άλλων ζώων είη δέον
Ayggeómowy äexelv, Cyrop. lib. 1. init. See alſo in les Choſes memorables, Socrates's Diſpute with a Youth, named Glaucon.
Iſocrates (ad Nicoclerum) in the Beginning, calls a Kingdom the greateſt of humane Affairs, and ſuch as requires more
than ordinary Degrees of Prudence and Foreſight ; and ſays, that the Cauſe of all the Misfortunes which Kings are expoſed
to, and of the Diverſity of Opinions about their Condition is That People think that all the World is as capable of reigning,
as of diſcharging the Offices about the Temple. Tauons de this cowanieis, &c. Yet nevertheleſs, adds our Author, there
are many that think the Italian Proverb not altogether groundleſs, that there needs but a very little Brains to rule the whole
World nor this other Latin one, The World does not know what little Wiſdom it is that governs it : Upon which I have
read a 'Diſſertation of a Profeſſor at Leipfuck, named Mr. Adam Rechenberg, printed in . 1676. He might add, that if
they mean by that, that generally the Government of States is the Thing of the World in which the leaſt Ability, Care,
and Application is employed, one might admit of theſe Proverbs. But it muſt likewiſe be acknowledged, that if the
Rulers of States would diſcharge their Duty as they ought to do, they would be more ſenſible of the Weight of Go-
vernment than they are ; and that if they would inform themſelves of the Rules of ſo nice and difficult an Art, and
practiſe them exa&ly, the World would be much better governed than it is, and the People infinitely more happy.
Mr. Barbeyrac's firſt Note upon this Section, page 338, &c.
(3) 'Tis a ſort of an Affront and Mockery to extol a Man for Qualities misbecoming his Rank and Condition, tho,
otherwiſe commendable, and for Qualities alſo that ought not to be his principal Endowments: As if a Man ſhould
commend a King for being a good Painter, a good Architect, a good Markiman, or a Runner ; Commendations that do
him no Honour but when mentioned together, and in the Train of thoſe that are more properly belonging to him,
to wit, his Juſtice, and his Knowledge in governing his People, both in Peace and War. 'I was after this manner that
Agriculture was an Honour to Cyrus, and the Knowledge of Letters to Charlemagne---r-Demofthenes's Companions in the
Embaffy to Philip, extolling that Prince as being handſom, eloquent, and a ſtout Drinker, were anſwered by Demofthe-
nes, that theſe were Commendations more proper for a Woman, an Advocate, or a Spunge, thián a King.
Imperet bellante prior, jacentem
Firſt let his Empire from his Valour flow,
• Lenis in hoftem.
And then by Mercy on the Proftrate Foe.
Horace Carm. Sæcul. V. 51, 52.
'Tis not his Profeſſion to know either how to hunt; or how to dance well.
Excudent alii Spirantia mollius ara,
Let others better mold the running Braſs,
Credo equidem, vivos ducent de marmore voltus :
And ſoften into Fleſh a marble Face;
Orabunt caufas melius, cælique meatus
Plead better at the Bar ; deſcribe the Skies;
Deſcribent radio, Egs furgentia fodera dicent:
And when the Stars deſcend, and when they riſe.
"Tu regere imperio populos, Romane, memento.
Roman, 'tis thine alone with awful ſway,
(Virg. Æneed. VI. V. 330, &c.)
To rule Mankind, and make the World obey.
Dryden.
Plutarch ſays moreover, that to appear ſo excellent in theſe leſs neceſſary Qualifications, is, to produce a Witneſs an
gainſt a Man's ſelf, of his having miſpent his Time, and applying his Studies ill, which ought to have been employed
in the Acquiſition of more neceſſary and uſeful things. So that Philip, King of Macedon, having heard Alexander the
Great his Son ſinging at a Feaſt, in Emulation of the moſt skilful Múſicians there, Art thou not aſhamed, ſays he to
Sir, that so great a Misfortune ſhould ever befal you, as to underſtand thole things better than 1. A King ſhould be able
to anſwer, as Iphicrates did the Orator, who preſs'd hard upon him in his Invective, after this Manner; And pray what
art thou, that thou doft ſwagger at this Rate?' Art thou a Soldier, doft carry a Musket, art thou à Pikeman ? I am none
of all this, but I am one who knows how to command all theſe. Ellais de Montagne, Liv. I. Chap. XXXIX.
(4) · The Wiſe Mentor ſays to Idomeneus, in les Avantures de la Telemaque. Do you not ſee that Princes who are corrupted
by Flattery, take every thing to be harſh and auftere that is free and ingenuous ? They are become ſo nice, that eve-
ty thing that is not Flattery, offends and provokes them. But let us proceed a little further: Suppoſe that Philocles
is really harſh and auftere, is not his Auſterity much better than the pernicious Flattery of your Counſellors? Where
will you find a Man without Faults? And ſhould not you fear, leaf of all, the Fault of one who tells you the
Trachi
0
566
Of the Duty of Sovereigns.
Book VII.
Parafites, all criſling Genius's, and ſuch as are skill. applying as they ought the general Maxims of
ed in nothing but what is empty and inſignificant State Policy, Princes muſt be perfe&ly acquaint-
(6). But now to render themſelves capable of ed with the Conſtitution of the State (7). And
fa-
6
ry,
• Truth a little too boldly? But is not this a Fault neceſſary to the Correction of your own Faults, and to the con.
quering that Averſion to Truth which Flattery has raiſed in you? You ought to have a Man about you, that loves no.
thing but Truth, and who loves you better than you know how to love your felf; who will tell you the Truth in
ſpite of you, who will force through all your Intrenchinents; and, this neceffary Man is Philocles. Remember, that
a Prince 'is extremely happy, when but only one Man of ſuch an Elevation of Mind is born in his Reign, and who is
• certainly the moſt valuable Treaſure of his Kingdom ; and that the greateſt Puniſhment he ought to fear from the
• Gods, is to loſe ſuch a Man, if he renders himſelf unworthy of him, for want of knowing how to make uſe of him.
As for the Faults and Errors of good Men, you ought not to be ignorant of them; but however you ſhould make uſe
• of their Service. Set them right; but be not implicitly managed by their raſh and indiſcreet Zeal; give them
vourable hearing, honour their Virtue, and ſhew the Publick that you know how to diſtinguiſh it; but more eſpecially
take care that you be not like thoſe Princes who, contenting themſelves with deſpiſing corrupt Men, do notwithịtanding
employ them, truſt in them, and heap Favours upon them; and who, pretending to have Judgment to know vertu
ous Men, yet give them nothing but empty Commendations; not daring to truſt them in any Employments
, nor to ada
• mit them into their familiar Converſation, nor to beſtow any Kindneſſes upon them, Tom. III. p. 3, Esc. Iſocrates, as our
• Author obſerves, gave likewiſe this Advice to Nicocles : plass Trõ leih trávtas Tès Borouéves, ára, &c. p. 34. Ed. Par. min.
• Receive into your Friendſhip not every Body, but ſuch only as are worthy of your high Birth and Station ; nor thoſe
with whom you might paſs your Lite moft pleaſantly, but thoſe by whoſe Áfliſtance you may beſt govern the Cominona
« Wealth. Uſe your ſelf to take Delight in ſuch Company, as may both encreaſe the Stock of your Wiſdom, and raiſe the
Character of your Virtue among others. Rely upon the Fidelity, not of thoſe who praiſe every thing you ſay or
• do, but of thoſe who admoniſh you when
you commit any Fault. "Suffer wiſe and prudent Perſons to ſpeak with
• Freedom to you, that when you are in any Difficulty you may find People that will endeavour with you to clear Mar-
ters up. Diſtinguiſh artful Flatterers from ſuch as ſerve you with Affection ; that Rogues may not have a larger Share
in your Favour than Men of Honour and Honeſty: Mr. Barbeyrac's Third Note upon this Se&ion, page 339, &c.
(5) A King is not to be believ'd when he boaſts of his Conſtancy in ſtanding the Shock of an Enemy for his Glo-
if for his Good and Amendment he cannot ſtand the Liberty of a Friend's Advice, which has no other Power
than to wound his Ear a little, the reſt of its Effekts being fill in his own Hands. Now there is no Condition of Men
• whatever that has ſo great Occaſion for true and free Informations as theirs. They ſupport the publick Life, and are
to pleaſe the Opinion of ſo many Spe&tators, that, as it has been cuſtomary for Men to conceal from them whatever
might have Power to divert them from the Courſe they are taking, they find themſelves inſenſibly involv'd in the Ha-
tred and Deteſtation of their People, often upon ſuch trivial Occaſions as they might eaſily
have avoided, and without
* the leaſt Prejudice even to their Pleaſures themſelves, had they been adviſed and ſet right in Time. Their
Favourites have
commonly more regard to themſelves, than to their Maſters; and certainly 'tis their Intereſt to do ſo, foraſmuch as the
• greateſt part of the Offices of true Friendſhip, when uſed to a Sovereign, are eſteemed to be a rude and hazardous
Undertaking : And therefore there is Occaſion not only
of very great Affe&tion and Freedom, but for Courage too.---
• There is none of us all that would not be worſe than Kings, if ſo continually corrupted as they are by ſuch kind of
• Vermin. L'Eſſais de Montagne, Liv. III. Chap. XIII. p. 803; 804. There follows in that place ſome ſolid Thoughts
upon
the way that ought to be taken to inform Princes of their Faults, and to make them give Ear to Truth. See
allo Two fine Chapters of Charron, in his Treatiſe de la Sageſe, Liv. III. c. 9, 10. Mr. Barbeyrac's Fourth Note upon this
Section, p. 340. It were indeed to be wiſh'd, that Carneades's Obſervations were not too often found true, that the Sons
of Princes, and other wealthy and great Men, learn no Art well but that of Horſemanſhip, becauſe their Horſe cannot flatter
them. Add Diodor. Sic. Lib. I. cap. 71. & Lib. XII. cap. 12. Where the ſame Author reports, that Charondas, among his
other Inſtitutions, order'd an Aäion of ill Company, and ſet a very ſevere Penalty on thoſe, who, being proſecuted upon
this A&tion, ſhould be convi&ted. See Plutarch. de Diſcrim. Amic. Ego Adulator.
(6) The reſt of this Paragraph is not in the Original, but is taken from our Author's Abridgment de Offic. Hom. Ego
Civ. Lib. II. c. 11. 5. 2.
(1). In the firſt place he muſt apply himſelf to Study, and underſtand the Humour and Complexion of his people.
• For this Knowledge will be a very great Direction, and model the perſon to whoſe Government they are committed,
« Now the reigning Qualities of the People in general - are Fickleneſs and Inconſtancy ; a Spirit of Faction and
Diſcontent ; of Impertinence and Folly ; Love of Vanity and Change; Infolence and inſupportable Pride in Proſperi;
ty ; Cowardiſe and Deję&tion of Mind in Adverſity. But beſides
, theſe Characters, which are common to Perlons of
that Condition every where, a Man muſt be ſtill more particularly inftru&ted in the Temper and Complexion of that
Country, and thoſe Subjects, where himſelf is concerned. For the Diſpoſitions of Men differ extremely, and are almoſt
as various as the Towns wherein they dwell, or the Perſons that inhabit them. Some Nations are in a peculiar and di-
ftinguiſhing Manner, paſſionate or cholerick, bold and warlike, cowardly or luxurious, addicted to Extravagance, to
• Wine, to Women; laborious or ſlothful, frugal or expenſive. And of thoſe who agree in theſe Qualities, there is a
• Difference in the Meaſure ; in ſome they are more, in others leſs predominant. So neceſſary is that Rule, noſcenda
natura vulgi, Ego quibus modis temperanter habeatur. That the common People muſt be ſtudied, firſt to know what
they are, and then what is the beſt Method of dealing with them. And in this Senſe it is, that we are to underſtand
• the old Philoſophers ; when they pronounce Subje&tion and Obedience a neceſſary Preparation to the Art of Ruling;
Nemo bene imperat, nifi qui ante paruerit imperio. No Man (ſays
Seneca) ever governs well, who has not forft liv
• under Government, and known what it is to be commanded himſelf. Not that we are to infer from hence any Necef-
• fity, or indeed ſo much as a Poſſibility, that all Princes ought to be rais'd to that Dignity from an inferior Conditi-
on ; for ſeveral of them are born Princes; and a great many Governments paſs on in å Line, and come by Succeſſion
and Proximity of Blood: But the true Importance of that Maxim is, that whoever is deſirous to be a good "Governour,
muſt inform himſelf of the Humours and inclinations of his Subjects, and underftand which are the reigning Qualities
in them, as perfe&ly well as if he had been one of the ſame Rank himſelf, and had felt and been acted by them in
his own Perfon. But then it is no leſs neceffary, that the Condition of the Government ſhould be likewiſe thoroughly
underſtood, and that not only what Sovereignty and Power is in general ; but the Frame and Temper of that Governa
ment and that State in particular
, where this perſon himſelf preſides
, what
the Form and Conſtitution of it is how it
whether it deſcends by Inheritance, or whether it be conferr'd by Election; whether it were obtained by regular
• and legal Methods, or whether acquired by Force of Arms; how far his Jurifdi&tion reaches ; what Neighbours are
about him; what Strength and what Conveniencies he is provided with. For according to all theſe, and a great ma
other Circumſtances, too tedious to be ſpecified here, a different fort of Conduct will be found neceſſary. The
Sceptre muſt be ſway'd, as ſuch Confiderations ſhall declare; one and the ſame Method will not ſerve all
alike ; but the
• Rules and Adminiftration muſt be ſuited to the Temper of the Beaſt
, and as this proves
to be harder or fofter mouth'd
· Pee the Uſefulneſs of theſe Inftru&ions, when we come a little farther to treat of the
manner in which Laws ought to be
• made. (Se&. 5.) Plutarch likewiſe gives it as the firt Maxim to thoſe whoſe Buſineſs it is to govern the State, to ſtudy the



was
Diſpoſition

Chap. IX.
507
Of the Duty of Sovereigns.
the Temper of their Subjects (8); they ſhould excel in ſuch Virtues (9) as will be of Service to
alſo in a more particular manúer endeavour to them in ſupporting the weight of ſo difficult and
6
6
or
• Diſpoſition of the People, and to accuſtom themſelves to it as niuch as poſſible, or elſe, ſays he, if they ſhould endea:-
vour to introduce Changes and Alterations in it all at once, they would be engag'd in an Affair that is neither eaſie
nor ſafe, and that requires a great deal of Time, and a Power firmly eſtabliſh'd. Tgémeos zes ceis relevónoy, &c. Pra
eept. Reip. gerenda, p. 749. B. Ed. Wech. There are in the reſt of this Treatiſe many excellent Maxims for the Art of
• Governinent. Mr. Barbeyrac's Sixth Note upon this Section, p. 340.
(8)
· After the Knowledge of the State and Government, which is in the Nature of a Preface or Introduction, the
next, both in Order and Dignity, is, Virtue. And no Man can wonder that ſo honourable a Place is aſſign’d to this,
among the neceſſary Qualifications of a Governour, who at all conſiders how abſolutely and indiſpenſībly needful it is
to a Prince, and that both upon his own Account, and for the Benefit of the Publick. Firſt of all it is highly reaſon-
able, as Cyrus well obferves, that he who is above all the reſt in Honour and Authority, ſhould be ſo in Goodneſs
too; this is no more than what ſuch a great and elevated Station may juftly ſeem to require of him. Then his own Re-
putation is nearly concern'd in it; for common Fame makes it one great part of its Buſineſs to pick up and diſperſe every
thing our Governours do or ſay: The Prince ſtands expoſed to the publick View, every Eye is upon him, and he is
curiouſly watch'd. There is no ſuch thing in Nature as Privacy for Princes; they can no more be hid than the Sun in
the Firmament. They are the conſtant Subject of Diſcourſe in every Company, and ſo are ſure to have a great deal
of good, or a great deal of ill ſaid of them. And it is of exceeding great Conſequence to any Governour, both with
refpe&t to his perſonal, and the common Intereſt and ſafety, what Opinion the World have of him. Nor is it enough,
that the ſupreme Governour be virtuous in his own Temper and Converſation, but he is likewiſe obliged to take good
Care that his Subje&ts be like him in Goodneſs. And how deeply this concerns him I appeal to the univerſal Con-
* fent of all good and learned Men, who, with one Voice, declare it impoſſible for that Kingdom ore Nation, that City
leſs Society of Men to proſper; nay, lo much as to ſublift long, who have baniſhed Virtue from amongſt them.
• And thoſe nauſeous Flatterers prevaricate much too grofly, who pretend that it is for the Advantage and Security of
Princes, that their Subje&ts ſhould be abandon'd to Wickedneſs and Vice. Becauſe they fay, this emaſculates their
• Minds, and renders them more tame and ſervile in their Diſpoſitions. So Pliny in his Panegyrick (Chap. XLV.) ſays,
• Patientiores fervitutis, quos non decet effe niſi ſervos. They are more patient under Slavery, who are fit to be nothing but
Slaves. For, quite contrary, we find by unqueſtionable Experience, that the more vicious Men are, the more do they
* Ainch and grow unruly under the Yoke: The good and the gentle, the meek and ſweet temper’d Men, theſe are
much better qualified to live in Fear and Awe of Authority themſelves, than to be an Awe or give Occaſion of Jea-
loufie to their Governours. Pelimus quiſque afperrime rectorem patitur, (Saluſt. ad Cæfar. de Rep Ordinand. Orát. 1. init.)
Every Man is more ungovernable, in Proportion as he is a worſe Man. Mutiny and Diſcontent, and perpetual Uneaſis
neſs are the fure Attendants of a profligate Mind Contra, facile imperium in bonos, qui metuentes magis quam metuendi.
On the other Hand, good Men are very eaſily kept in order ; they give their Superiors little Trouble, but had rather
ſubmit with Reverence and Fear, than be'a Terror and Diſturbance to them. Now there cannot be a more powerful Mo-
tive, a more efficacious Means of bringing over the People, and forming them into Virtue, than the Example of the
Prince. For (as daily Experience ſhews) every one affects to be like him ; and the Court is the Standard of Manners,
* as well as of Faſhions. The Reaſon is, becauſe Example is what Men are ſooner mov'd with, and ſooner wrought
apon by, than Laws; for this is a Law in dumb-lhew, but has more Credit and Authority than the Voice of ihe
• Law ſpeaking in Commands. Nec tam imperio nobis opus, quam exemplo ; (Plin. Paneg. Cap XLV. num. 6.) Eos miti-
us jubetur exemplo
. We do not want Precepts ſo much as Patterns, and Example is the ſofteſt and leaſt invidious way
of commanding. Now if all Example be a mighty Inducement, that of great Perſons muſt be ſo in a degree proporti-
onable to their Quality and Station. For all the little ones fix their Eyes and Hearts here, and take their Obſervati-
ons from thoſe above them. They ſwallow all without chewing; admire and imitate at a venture ; and conclude,
that their Superiors would not be guilty of any Behaviour unbecoming their Character, and if they'do
any thing,
st muſt needs be excellent and good. And on the other hand, Governours are ſo ſenſible of the Force of this Motive
too, that they think their Subje&ts are indiſperſibly obliged to thoſe Rules which they are content to be governed by
themſelves; and that their own doing what they would have done by others, is fingly a ſufficient Inducement to bring
it into Practice and common Vogue, without the Formality of a Command to enforce it. From all which it is abuna
dantly manifeft, that Virtue is exceeding neceſſary and advantageous to a Prince, both in point of Intereſt, and in
point of Honour and Keputation. Charron de la fagele, Liv. III. Chap. 2. §. 2. Let us add to this the following Re-
• Hection of Montagne. I know not how ’tis, but the World requires of Princes more than other Men, to hide and con-
* ceal their Faults: For what is only reputed in us Indiſcretion, the People eſteem in them to be Tyranny, and a
Contempt of the Laws. And beſides their Propenſity to Vice, are apt to cenſure, that, as a heightning Pleaſure to their
Crimes, they inſult over and trample under Foot the publick Ordinances. Plato indeed, in his Gorgias, defines a Tý-
rant to be one who is at his Liberty, in a State to do whatever his own Will leads him to. And 'tis by R caſon of this
' Impunity that the Publication of their Vices does often more Miſchief than the Vice it ſelf. Every one fears to have
' his Actions diſcover'd, arid to be cenſur'd in his Pleaſures : But Princes are even to their very Geſtures, Looks, and
Thoughts, the Obſervation of the People, who think they have a Right and Title to be judges of them. Beſides
that, the Blemiſhes of the Great, naturally appear greater by reafon of the Eminence and Luſtre of the Place they
* are ſeated in ; as a little Scar, or a Wart in the Forehead, is a much greater Deformity than a conſiderable Gash any
• where elſe. And this is the Reaſon why the Poets feign the Amours of Fove to be perform'd in the Diſguiſe of ſo ma-
ny borrow'd Shapes, that among thoſe many amorous Intrigues, there is but only one, as I remember, where he
ap-
pears in his own Majeſty and Grandeur. Eſais, Liv. I. Chap. 42. p. 190. Mr. Barbeyrac's Seventh Note
upon
this Se.
ation, p. 340, 341.
(9) The Virtues proper for this purpoſe are, 1. Piety, which is the Foundation of all Virtues ; bit it muſt be a fou
lid and reaſonable Piety, free from Hypocriſie, Superſtition, and Bigottry;. 2. The Love of Fuſtice and Equity. For the
chief Deſign a Prince was made for, is to take Care that every Man has his Right. This obliges him to ſtudy, not
only that part of human Learning which qualifies thoſe famous Civilians that are fit to be Legiſlators themſelves; who
go up to that Juſtice which at firſt regulated human Society, who exactly know what Liberty Nature bas left us in Civil Go-
vernments, and what Freedom the Neceſity of States takes from private Perſons, for the Good of the Publick: But that Part
the Law too, which reſpeits the Rights, and deſcends to the Affairs of particular People. This is a part of Education which
is left to the Gentlemen of the Long Robe, and is not admitted into that of Princes, as being beneath them, tho’ they
are every Moment of their Reign to paſs Judgment upon the Fortunes, Liberties, and Lives of their Subje&ts.
* Princes are perpetually talk'd to of Valour, which is of no Uſe but to deſtroy ; and of Liberality, which is good for
nothing but Extravagance, unleſs regulated by Juſtice. 'Tis true, evety. Temper muſt be inſtructed, if I may fo ſay,
in a Vertue proper for its reſpective Occaſion the Covetous muſt be inſpir’d with Generofity, the Soft and the
Slothful muſt be inflam'd with the Deſire of Glory, and the Ambitious muſt, as much as poſſible, be reſtrain'd within
the Rules of Juſtice. But whatſoever Variety there may be in the Diſpoſition of Princes, Juſtice is always the moſt
neceſſary; for that Virtue keeps up Order in him who does it, as well as in thoſe to whom it is done. 'Tis not any
Conſtraint that limits the Power of the Prince, ſeeing that at the ſame Time that he renders it to others, he tëaches
them to return it to himſelf, and that willingly too, tho' his power neceſſarily obliges us to receive it from him.
* (St. Euremond, Tom. III. p. 74, 75.) From whence it follows, that he ought eſpecially to be a religious Obſerver of
6 his
•
X X X
568
Book VII.
Of the Duty of Sovereigns.

Deceiver,
ſtill
his Word. Ler us hear what the Oracle of Gaſcoigne ſays farther upon this Subject. Thoſe of our Time, who have con.
• fidered in the Eſtabliſhment of the Ducy of a Prince, the Good of his Affairs only, and have preferred that to the Care of his
• Faith and Conſcience, might ſay ſoinething to a Prince, whofe Affairs Fortune had put into ſuch a Pofture, that he might
• for ever eſtabliſh them by only once breaking his Word; but it will not go fo. They often buy in the ſame Market ; they
• make more than one Peace, and enter into more than one Treaty in their Lives. Gain
tempts them to the firſt Breach of
• Faith, and almoſt always preſents it ſelf, as in all other ill Acts, Sacrileges, Murders, Rebellions, Treaſon, as undertaken
• for ſome kind of Advantage : Bue this firſt Gain is attended with infinite miſchievous Confequences; throws the Prince out
of all Correſpondence and Negotiation, by ſuch an Inſtance of Infidelity: Solyman of the Ottoman Race, a Race not very folia
citous of keeping their Words or ſtanding to their Articles, when, in my Infancy, he made his Army to land at Otranto, being
inform'd that Mercurino de Gratinare and the Inhabitants of Caftro were detaind Priſoners, after they had ſurrendred the Place
• contrary to their Articles of Capiculation, order'd them
to be ſet at Liberty, ſaying, That having other great Enterprizes in Hana
• in thoſe Parts, this Perfidiousness, tho' it carried
with it a Shew of preſent Advantage, would for the future bring on him a Diſcredit and
• Diftruſt of infinite Prejudice. (Ellais Liv. III. Chap: 7; 8; 478.) To whom ought not Treachery to be hateful, when Tiberius
• refuſed it in a thing of ſo great
Importance? He had word ſent him from Germany, that if he thought fit, they would rid
• him of Ariminius by Poiſon. This Ariminius was the moſt porent Enemy the Romans had, who had ſo bafely beaten them
« under Varus, and who alone put a Stop to the Growth of their Power in thoſe Countries. Tiberius returned. Anſwer, that
the People of Rome were always uſed to revenge themſelves of their Enemies by fair and open Ways, with their Swords in their Hands,
and not clandeſtinely and by Fraud. He quitted the advantageous for the honeſt Part. You will tell me he was a
6 and did not ſpeak as he thought, I believe fo too ; and 'r's no great Miracle in Men of his Profeflion. But the Acknow?
ledgment of Virtue is of no leſs Importance for being in the Mouth of one that hates ir; lince it is Truth that forces it
from him; and if he will not inwardly receive it, he at leaſt puts it on to make himſelf outwardly fine. L.sv. III. Chap.
1. at the Beginning. See what Telemachus ſays to diſſuade his Allies from making uſe of the Treaſon of a certain Citizen of
• Venufium, who offer'd to deliver up to them one of the Gates of the Town by Night, Tom. 8. p. 41, &c. 3. Valour is like-
wife a very neceſſary Qualification in a Prince; but then it muſt be managed by Prudence. Mentor gives Telemachus
very
• excellent Advice upon this Matter. Go, ſays he, into the greateſt Dangers, as often as it is neceſſary you ſhould go. A
• Prince diſhonours himſelf more by avoiding the Dangers of a War, than by never going to it at all. The Courage of him
· who commands others ſhould never be doubtful: If it is neceſſary for a People to preſerve their General and King, it is
ftill more neceſſary for them not to ſee him in an uncertain Reputation of Valour ----- But then on the other Hand, do
not run head long into Danger, when there's no Neceflity for it ; for Valour can no longer be a Virtue, than as it is mana-
ged by Prudence; otherwiſe 'tis a fenfleſs Contempt of Life, and a brutal Ardour: Inconſiderate Valour is always unſe
cure ; he that is not Mafter of himſelf in Dangers, is rather fierce than brave. He is forced to be beſide himſelf, that he
may
be rais'd above Fear; becauſe he cannot overcome it by the natural Diſpoſition of his Heart; now in this caſe, if he does
not run away, he is at least confounded; he loſes the Liberty of his Mind, which would be neceſſary to him in making
uſe of Opportunities to defeat the Enemy or ſerve his Country. If he has all che Courage of a Soldier, he has none of the
• Prudence of a Captain ; nay, he has not even that of a private Soldier ; for a Soldier ought, during the Time of Action,
to keep ſuch a Preſence of Mind, and ſuch a Moderation as is neceſſary to obey Orders. He that rafhly expoſes himſelf
diſcompoſes the Order and Diſcipline of the Troops, fets an Example of Temerity, and often expoſes the whole Army to
very great Dangers. Thoſe who prefer their vain Ambition to the Safety of the common Cauſe, deſerve Puniſhments in
«ftead of Rewards. Take care then not to ſearch after Glory with too much eagerneſs: The moſt certain way of finding
it, is patiently to wait a favourable Opportunity : Virtue gains ſo much the more Reſpect and Efteem, as the ſhews her
felf, plain, modeft, averſe to Pride and oftentation ; and the greater the Neceſſity of expoſing your ſelf to Danger grows,
the greater your Courage and Foreſight ought to be. Tom. 8. p.43, &c. See likewile Montagnes Eſais (Liv. I. Chap. 14.
and Liv. II. Chap. XVI. that treats of Glory)., 4. A Prince ought to be very reſerved in diſcovering bis Thoughts and Deſigns. This
Virtue is apparently neceſſary to all thoſe who are concern'd in Government. It includes a wife Miftruſt and innocent
Dillimulation. See Charron de la ſageſe, Liv. III. Chap. 2. 1, 6, 7. And what our Author has ſaid above (Rook IV. Chap. 2 Sea
17) 5. A Prince muſt above all things accuſtom himſelf to moderate bis Defires: For having it in his Power to ſatisfie them, if
once he ſhould give a looſe to them, he would be tempted to proceed to the laſt Exceſs, and by ruining his Subjects,
would, in the End, ruin himſelf. To prevent theſe terrible Inconveniencies, and to form himſelf to this Moderation, no-
thing can be more proper for him than to accuſtom himſelf to Patience... 'Tis the moſt uſeful of all Virtues for thoſe who
are to command. "A Man muſt be patient, if he will become Maſter of himſelf and others. Impatience, which appears to
be the ſtrength and vigour of the Soul, is only its weakneſs. He that cannot wait and ſuffer, is like one that cannot keep a
Secret : Both of 'em want Reſolution of Mind to contain themſelves, as a Man that runs a Race in a Charior, and has not a
• Hand ſtrong enough to ſtop where he ought, his unruly Courſers - An impatient Man, by his mad ungovernable
• Delires, is thrown into an Abyſs of Misfortunes : The more powerful his Authority is, the more fatal co himſelf is his
· Impatience. He will not ſtay; he will not allow himſelf Time to meaſure any ching; he forces all things to ſatisfie his
Pleaſures; he tears off the Boughs, to gacher the Fruit before it is ripe ; he breaks down the Gates, rather than ſtay till they
are opened to him; he will be a reaping, while the prudent Husbandman is but fowing ; every thing that he does in a
hurry, is ill done, and has no longer Duration than his own fickle Inclination. Such are the fooliſlı Projects of a Man
who believes that he is at Liberty to do every thing, and who is entirely governed by his Paſſions, co the Abuſe of his
• Power. (Avant. de Telemaque, Tom. V. p. 179, 180.) The Philoſopher Arrian (de expedit. Alex. Lib. IV. cap. 7.) ſays, That it
ealie to ſee by the Example or Alexander, that whatever fine Actions a Man performs to outward Appearance, it signifies no-
thing to true Happineſs, if one does not know at the ſame time how to rule and moderate ones felf. Tátwyšnér TE QEnes
και ευδαιμονίαν ανθρώπε, ει μη σαφρόνειν εν ταύτα υπάρχει τέτω το ανθρώπω τώ τα μεγάλα, ως δοκεί, πράγματα πράξαντι.
6. Goodneſs and clemency are alſo Virtues, very proper in and very ulefui to a Prince. . Let him ſhine bright (fays sont agne)
in Humanity, Truth, Fidelity, Temperance, and eſpecially in Juſtice ; Marks that are rare, unknown, and exiled. 'Tis by
no other Means but by the fole Good-Will of the People that he can do his Buſineſs; and no other Qualities can aceract
their good will like thoſe, as being of the greateſt Advantage to them. Nihil eft tam populare quam bonitas. Nothing is
to popular as Goodneſs. (Cicer. Orat. pro Ligar. cap. XII.) Eliais Liv. III. Chap. 17. p. 477. See Charron de la ſagelſe (Liv. III.
· Chap. 2. Sect. 12.). 7. Liberality, well underſtood and well applied, is ſo much the more neceſſary for Princes, as Avarice
and Niggardlineſs are a Diſgrace to a Perſon whom it almoſt coſts nothing to be liberal. But then alſo there are no People
that ought to take more care in the regulating the Uſe of this noble virtue. As this requires abundance of Circumfpečti-
on, and füppoſes moreover very commendable Diſpoſitions in Princes, who know how to place their Favours as they ought
to do, and to confer them on deſerving Perſons ; one cannot, in my opinion, abſolutely ſay with Montagne, that Liberality
is not in its true Luſtre in the Sovereign's Hand, and that private Men have the moſt Right to it; that it is a very im
proper Subject to be preached up to young Princes ; and that it is but of little value in Compariſon of other Royal Viro
tues. However, there is nothing more folid than the Reflections which this Author makes in the ſame Piace. • To take
it exactly, ſays bc, a King (as King) has nothing properly his own; he owes his very ſelf to others. Authority is not
ven in favour of the Magiſtrate, but of the People: A Superior' is never made fo for his own Profit, but for the Profie
of the Inferior: And the Phyſician for the ſick Man, and not for himſelf. All Magiſtracy, as well as Art, has its End
• without its felf. Nulla ers in ſe verfatur - A Prince being to give, or, to ſay better, to pay and render, to ſo many
People according to what they have deſerved, ought to be a very truſty and prudent Diſpoſer of what he has to lay out
If the Liberality of the Prince be without Bounds or Diſcretion, I had much rather he were coverous ; Royal Virtue leems
to conlift molt in Juſtice, and of all the parts of Juſtice, that belt denotes a King, that accompanies his Liberality ; for
that they have particularly reſerved to themſelves, whereas all other
forts of Juſtice they remit to the Administration of
6 others. An immoderate Bounty is a very weak Means to gain them good Will; becauſe it balks more people than it en
s
6
courages.

Chap. VIII.
569
Held Sacred in Civil States.
important a charge (10), and alſo learn how private Intereſt, but what may promote the Benefit of
to regulate their outward Behaviour in a man his Subjects: and whatever he ſays or does, is ſaid or
ner ſuitable to the Grandeur and Dignity of ſo done for their Advantage, and for their Ornament and
exalted a Station.
Grace. For the Authority which Governours
III. The general Rule which Sovereigns are bear was firſt conferr'd on them with this Inten-
to proceed by, is, Salus Populi fuprema lex efto (1 ; tion, that it might
tion, that it might prove a Means of procuring
Let the Safety of the People be'the Supreme Law. Tis that Eod for which Civil Societies were Eſta-
Plaro's Deſcrip:ion of a Prince, that He mei- bliſh'd. And therefore they ought to eiteem no-
ther thinks nor commands what may advance his own thing as contributing to their own private or
courages. Qua (largitione) quò in plures uſus fis, eò minus in multos uti poffes Quid autem eft ftultius, quàm quod libenter
facias, curare ut id diutius fscere non poffis ? (Cicer, de Offic. Lib II. cap 15.) By bow much you uſe it to many, by so much leſs will
you be in a Capacity to uſe it to many more And what greater Folly can it be than to order is ſo, that what
you
do willingly,
you
cannot do long? And where it is conferred without due Reipect of Merit, it puts them out of Countenance, on
'whom it is beſtowed, and is received without a juſt Acknowledgent, and that grateful Senſe which the Bounty of a
• Prince ought to meet with. Some Tyrants have been facrificed to the Hatred of the People, by the Hands of shofe very
Men whom they have unjuſtly advanced The Subjects of a Prince, profuſe in Gifts, grow exorbitant in their De-
mands; and accuſtom themſelves nor ro Reaſon, but Example
The more a Prince exhaufts himſelf in giving, the
poorer he grows in friends. Ilow ſhould he fatisfie Delires, which ſtil encreaſe the more they are filled ? He who has his
Thoughts fix'd upon getting, never thinks of what he has already received. Coverouſneſs has nothing fo properly its
own as Ingratitude. Efais, Liv. III. Chap. 6 p. 669, doc. The reſt may be ſeen in the Original; for it would be too
much to tranſcribe it all. See alſo Mr. le Clerc's Reflections upon Happineſs and Misfortune, doc. Chap. XII. p. 262. &c.
and Charron de la ſageſſe, Liv. III. Chap. 2. Se&. 13. Here is a general Idea of Virtues which are moſt neceſſary for a Sove-
reign, beſides choſe that are common to him with private Perſons, and of which ſome are included even in thoſe we have
been mentioning. Cicero is not very wide of theſe Ideas in the following Enumeration, Fortem, juſtum, ſeverum, gravem, maga
nanimum, largum, beneficum, liberalem (dici]; he ſunt regiæ laudes. Orat. pro Rege Deiotar. Cap. IX. Mr. Barbeyrac's Eighth Nore
upon this Section, p. 341, 342.
(10) 'Tis thus that I thought the Latin, moreſque ad tanti faftigii dignitatem ought to be rendred. For beſides that the Author
plainly diſtinguiſhes Manners from Virtues, I am mightily tempted to believe, that he form'd all this little Addition upon Chars
ron's Nocions in the Chapter I have ſo ofren quoted, and to which he himſelf refers in the ſecond Edition of my Original. Here
is what Charron ſays, The next thing that corres under our Conſideration, after the Prince's Virtue, is what they call his
Manners, that is, his Behaviour and Way of Living; the Mien, the Port, the Addreſs that ſuit with the Majeſty of a Prince ;
and all thoſe profound Reſpects ſo neceſſary to be kept up. - Now cho' Nature contribute a great deal to this in the
Form, and Temper, and Perſon, yet all that Nature does is capable of Amendment and Improvement both, by the additi-
onal Helps of Induſtry and Art. Under the Head we are now upon, may be reckon'd the Air of his Face, the Corpo-
ſure of his Countenance, his Faſhion and Behaviour, his Gate, his Tone and Manner of Speech, his Cloths and Dreſſing:
The general Rule to be obſerv'd in all theſe Particulars, is ſuch a Mixture of Sweetneſs and Moderation, of Staidneſs and
Gravity, as may win upon Mens Minds, and move their Affections pleaſantly; ſuch as may keep the middle way be
tween Familiarity and Fear; engage their Love, and yet command their Honour and Reſpect. His Court and Converfati-
on are likewiſe worth taking Notice of. For the former, it is convenient that it ſhould be very publick, that the Palace
he dwells in ſhould be noble and magnificent, fit for Reſort and Correſpondence; and if that can be well contriv’d, not far
from the Middle of his Country, or at leaſt the moſt ſignificant Part of it ; that fo his Eye may command all the Quarters;
• and like the Sun in the midſt of the Firmament, pierce, enlighten, and warm all round about him with the Influence of his
Beams. For when a Prince reſides in ſome very remote Corner of his Dominions, this Diſtance emboldens thoſe in the
contrary Extremity to behave themſelves inſolently and grow tumultuous and unruly. As for his Converſation, that
'fhould be very reſerved, his Confidents and familiar Friends but few, his Progreſſes and other Appearances in publick buc
ſeldom; that the People may always be eager and glad to ſee him: For the ſhewing himſelf often, and giving too eaſie Ac-
cefs to his Perſon, will mightily leſſen the Majeſty of his Character. continuus aſpectus minus verendos magnos bomines ipfa fatica
tate facit. [Majeftati major ex longinquo veneratio. Tacit. Annal. l. 47.] quia omne ignotum pro magnifico eft
. Idem. Agricol Cap.
XXX.) The being always admitted to the Sight and Preſence of great Perſons, does mightily impair and dininith our
Reſpect, by glucring,our Curioſity. Majeſty is always moſt reverenced at a Diſtance, for Nature forms all our Ideas bigger
than the Life; and what we are not acquainted with, is always fancy'd to be very great and ſtately. Charron de la ſageſſe.
Liv. III. Chap. 2. Sect. 15. Mr. Barbeyrac's Ninth Note upon this Section, p. 342, 343.
(1) The Words our Author uſes, after ſeveral others, co expreſs this common Maxim, are taken from Ciccro; Ollis Calus
pon
puli ſuprema lex efto. De Legib. Lib. III. Cap.z. Here is what a great
Emperor ſays to this Matter. SVO TAU'Tas étonyóINTAS
Exeiv, dc. that is according to Mr. Dacier's Tranſlation ; you ought always to have theſe two Maxims in vier ; to do for the good of
Mankind all that the Condition of a Legiſator and a King requires of you : And the other, so change your Reſolution, whenever Men skilled in
Juch Matters give you better Advice. But ſtill the Change muſt be made from the Motives of Juſtice, and the publick Intereſt, and never for
your own Pleaſure, your own Advantage, or your own particular Glory, Marc. Antonin. Lib. IV. Cap. 12. You will find ſeveral ex-
cellene things upon the fame Subject, in the Cyrop. and in the 3d Book of Socrates's Choſes memorables by Xenophon; as like
wife in the Works of Plato and Ariſtotle. According to theſe wife Heathens, whoſe Ideas are very different from thoſe of ma-
ny Chriſtian Princes, who had rather follow Machiavel's Politicks, a good Prince is one who endeavours to make his Subjects happy;
o sudah povas Froscãy by day rigental (Socrat. apud Xenophon, ubi ſupra} Tyrant, on the contra y, is one who has nothing but his owon
private Intered in view, και μεν γας τυραννίς εσί μοναρχία προς το συμφέρον το τε μοναρχώντG. Αriftot. Polic Lib. III. Cap.
7. See Cicero de offic. Lib. I. Cap. 25. Plin. Panegyr. Cap. 67. and the Parrhajana, Tom. I. p. 212, &c. of ihe firſt Edicion.
Bur after all, the Maxims of good Politicks have nothing in them contrary to natural Right; and our Author has alſo
written a fine Differtation of Forty pages in O&tovo, in which he proves in a few Words that they are very agreeable to the
Precepts of the Goſpel. This Differtation is entitled, De concordis vere Politicæ cum Religione Chriſti, and is among his Acan
demical Diſſertations
. One may alſo ſee that of Mr. Buddeus, which is entituled, Concordia Religionis Chriftiane Statuſque Civilis
,
and where he has treated more exa&tly of this Matter, for it conſiſts of a Hundred and Forty, pages in Quarto. It was print-
ed at Hall
, in 1901. and is very well worth reading. But as the A&tions of Sovereigns, and ihe Body of a State, feem often
to depart from the Rules of thoſe Duties, which private perſons are obliged to obſerve towards each other; our Author had
a Deſign to compoſe a Treatiſe, to ſhew expreſly how far what is call'd a Piece of Policy, or ſomething done for a Reaſon of
may be juſtifiable ; as he informs us himſelf in his little Preſace to the ſecond Edition. It were indeed to be will's for
the Sake of the publick, thar Dearh had not prevented his executing that project, and ſeveral others. I find in Cbarren
fome Thoughts upon the fame Subje&t, which, I preſume, no one will be diſpleaſed to ſee here. ' The Juſtice, and Virtue,
and Probity of a Prince is not in all Points tied up to the fame Methods and Manner of proceeding with that of Per-
fons in a private Capacity. It has a larger Range, and freer Scope allow'd; and all this Latitude is Indulgence little
enough; no more than is abſolutely neceſſary for the weighty and hazardous Office our Governours are engaged in, and
the infinite inconceiveable Difficulties that ariſe in their Adminiſtration. This makes it reaſonable for them to be in a way
X X X 2
perſonal
State

570
The Supreme Power to be
Book VII
.
6
or as that divine Saviour, who was Truth
perſonal Good, which is not at the ſame time Drove? 'Tis a much greater Wonder, if be who bash
profitable to the Commonwealth (2). Would it the Command of a State, and both wafts the Strengeb,
not ſeem a Wonder to You, (lays Socrates to Xenophon and corrupts the Manners of his Subjects, doth not blue
(6), if he ſhould be owned for a good Herdlman, who at his Miſmanagement, and confeſs himſelf an Ill Go
leſſens the Number, or multiplies the Ill Qualities of his vernour.
by themſelves; the common and dire&t
Tra& is too narrow; they are obliged to ſhift, and dodge, and wheel about,
and whatever Cenfures, People who underſtand not the Nature of the Cafe, may paſs, as if every thing that is unuſual
and indiſcreet, were preſently wicked and unjuſt; yet thoſe, who are capable of conſidering, and competent Judges of
the Matter, muft admit it to be lawful and allowable, as well as prudent and needful for them fo to do. For Prudence
· muſt be mix'd with Juſtice ; fome Feints and Stratagems, and little Slights made uſe of, and (as they commonly ex-
preſs it) when the Lion's Skin is not big enough of it ſelf, it muſt be eked out, by tacking a Fox-skin to it! Nor
would'l be ſo miſtaken here neither, as to be thought a Juſtifier of theſe crafty Dealings at all Times, and in all
Caſes indifferently. By ne Means; this is not a ſtanding Rule of A&tion, but muſt be reſerved for ſpecial Occaſions
,
and particularly there muſt be three Conditions to warrant it. . The firſt is abſolute Neceſſity; or at leaſt, fome evi-
dent and conſiderable Advantage to the Publick And this muſt by all means be conſulted and the chief Aim.
This is a natural and indiſpenlible Obligation; For the publick Good is a Condition paramount to all others; and the
* Man who is procuring it, cannot but be doing bis Duty: Salus populi Suprema lex efto. The afety of the People
* muſt be the ſupreme Law. The ſecond Qualification which theſe Methods muſt have to recommend them, nay, in-
deed to acquit them of Blame, is, that they be uſed defenſively, only, and not offenſively ; with a Deſign to preſerve a
• Prince or a State, but not to aggrandize them, and oppreſs others. For this Reaſon they ſhould feldom or never be
• begun with, but only return d back again; and are then in proper Time and Place, when employ'd to fave the Pub-
• lick from Snares and ſubtle Deſigns, and not to conceal, but to diſcover and defeat miſchievous and wicked Pra&tices.
• For one Trick may be anſwered with another, and it is reaſonable to play the Fox with the Fox. The World is ex-
ceeding full of Malice and Cunning : And Ariftotle's Obſervation is moſt true, that the Subverſion of Kingdoms and
• States is uſually owing to Treachery and Deceit
. What then ſhould hinder? What forbid ? Nay, in fuch Exigen-
cies, what can excuſe the Contervators of the publick Safety, from preventing and diſappointing ſuch Calamities and
• villanous Intentions by countermining? Why may not the State ſave it ſelf by the ſame Methods that were practis'd
to ruin it, and retort the Artifice of Factions and wicked Male-Contents back upon their own Heads ? For a Man
' to be too fqueamiſh in theſe Caſes; to play conſtantly above board, and upon the Square ; and to deal with thoſe
• Men according to the Rules of that rigorous Equity and plain dealing, which Rcalon and Conſcience require from
us in private Affairs, is inconſiſtent with the Nature and the Meaſures; nay, with the very End of all Government;
• and the Event would often be the betraying and loſing all, and facrificing the Publick to an unreaſonable Scruple.
« The Third Qualification is, that theſe Methods be uſed moderately and diſcreetly ; as they are not fit for all Times,
nor all Occaſions; ſo neither are all Perſons fit to be truſted with them. For they are capable of great Abuſes : And
• if abuſed, will prove of ill Example and ill Conſequence, by miniftring occaſion to ill Men, to practiſe and juftifie their
• Frauds and indire&t dealings, and to give Countenance to Wickedneſs and Injuſtice, even in private Commerce and
• Tranſactions : For a Man is never at Liberty to forſake. Virtue and Honeſty, to follow Vice and Injuſtice; theſe
• things are ſo far from indifferent, that there is no Poſſibility of reconciling thoſe diftant Extremes, no Satisfaction ca-
• pable of being made for ſo ill a Choice: And therefore away with all Injuſtice and Infidelity, all treacherous and il-
• legal Proceedings, and curſed be the Principles and Politicks of thoſe Men who would poſſeſs ſovereign Cominanders
with a Belief that all things are lawful if they be but expedient for them. There is a vaſt Difference between ſuch
an arbitrary Notion of Right and Wrong, and the Rules and Limitations I have here laid down. Reaſons of State may
« ſometimes make it neceffary to temper Honeſty with Profit, and try if theſe two can be ſo mingled together as to
make a good Compoſition. But, tho' we may try to compound and foften the Matter a little, yet we muſt never act
• in Oppoſition to Juſtice : We may, nay, we muſt ſometimes wheel off a little, and fetch a 'Compaſs about it; but
we muſt never loſe Sight of it, much leſs turn our Backs upon it, and caft all Regards for fo facred a thing behind us.
. For there is a Cunning very conſiſtent with Virtue and ſtrict Honour, ſuch as Št. Bafil the great calls a great and
commendable Cunning; (magna & laudabilis aftutia) ſuch as tends to good; and may be uſed as Mothers and Phyſici-
deal by their Children and their Patients, when they tell thein fine Stories to amuſe and entertain them, and by
• Degrees cheat them into Health. In ſhort, many things may be acted ſecretly and in the Dark, which are not fit
• for publick View, and will not bear an opener Proceſs. Prudence and Stratagem may be added to Courage
and
Strength; Art and Wit may ſupply the Defects of Nature and Force, in Cafes which theſe are not ſufficient to ma-
nage
A 'Governour may, nay he ought to be, as Pindar calls it, a Lion in the Field, and a Fox at the Council-Table;
,
Serpent, but ſtill a harmleſs Dove. Liv. III. Chap. 2. 9. 2. The Author afterwards proceeds to Particulars in this
* Affair; but how nice and delicate ſo ever the Speculation of them may be, the Practice is infinitely more diffi-
& cult; and there are but few Princes who keep themſelves, on many Accounts, within the juft Bounds there menti-
See Mr. Bayle's Di&tior. Hiftor. Eo Crit. Tom. II. p. 114 Col. A. 2 Edit. Mr. Barbeyrac's firſt Note
Se&tion, p. 343, 344.
(2) The Truth of it is, that the very Intereſt of the Sovereign requires that he ſhould dire&t all his A&tions to this
ans
:
6
oned
upon
this
End.
Qui fceptra duro ſavus imperio regit,
Timet timentes: metus in auctorem redit.
Senec. in Oedip. verſ, 705, 706.
The following Words of Mr. de Cambrai will ſerve to explain and illuſtrate this Sentence. "Where the Sovereign
· Command is moſt abſolute, there Princes are leaſt powerful. They take, they ruin every thing, and are the fole
Poffeffors of the whole State ; but then the State languiſhes, the Country is unmanur'd and almoit deſert, the Towns
every Day decay and grow thin, and Trade is quite loft. The King who can neither be ſuch by himſelf, but inuft
• be ſuch with regard to his People, undoes himſelf by degrees, by inſenſibly undoing his Subjects, to whom he owes
• both his Riches and his Power; his Kingdom is drain's of Money and Men, and the Loſs of the
Latter is the great-
• eſt and moſt irreparable of all Loſſes. His arbitrary Power makes as many Slaves as he has Subjects ; they all feem to
adore him, and all tremble at the leaſt Motion of his Eye : But ſee what will be the Conſequence upon the leaft Rico
volution ; 'this monſtrous Power rais'd to too excellye a Height, cannot long endure ; it wants Supplies from the
Hearts of the People ; it has wearied out
and exafperated the ſeveral Ranks of Men in 'the State ; and forces all the
• Members of that Body to ſigh with equal Ardour for a change. At the firſt Blow the Idol is pull'd down, and tram-
pled under Foot. Contempt, Hatred, Fear, Reſentment, Jealouſie ; in a Word, all the Paſſions combine together a-
gainſt ſo injurious and deteſtable a Power. The King, who in the Days of his vain Proſperity, could find no Perſon
• that durft tell him the Truth, ſhall not find one in his Adverſity that will vouchſafe to excuſe him, or defend him a-
gainſt his Enemies. Tom. III. p. 74, 75. Mr. Barbeyrac's ſecond Note upon this Section, pag. 334. (6) Atour. L.3:


6
>

Chap. IX.
571
Of the Duty of Savereigns.
IV. In order to the internal Tranquillity of Towards che accompliſhing of ſo good an
States, it is neceſſary that the Wills and Inclina- End in States, where Chriftianity (3) is profeſs’d,
tions of the Members be ſo moderated and di- this Religion it ſelf doth in a high manner con-
re&ted, as ſhall appear conducive to the Safety tribute ; provided it be ſuch as is preſerv'd in its
of the whole Body. Hence it is the Duty of primitive Sincerity, purg'd from Human Cor-
Supreme Rulers, not only to preſcribe Laws fic rupcions, and inculcared both by the Doctrine
for the obtaining of this End, but likewiſe ſo to and Example of a Learned and Pious Clergy:
keep up the Strictneſs of publick Diſcipline, (1) In as much as that Holy Inftitution, doth not
eſpecially as to what relates to the Education only comprize all the Points conducing to Eter-
of Children, as that the Subjects may conform nal Salvacion, but likewiſe the moſt perfect
19 the Laws, (2) not ſo much out of fear of Pu- Scheme of Moral Precepts, which are admira-
niſhment, as out of Habit and Cuſtonı : In as bly ufeful in diſpoſing the Minds of Men to a
much as bare Penalties are not ſo ape to produce Compliance with Civil Life, and yet which
a Care of doing well, (this being the proper cannot To conveniently be eſtabliſh'd by
Effect of Reaſon and Inſtitution,) as a Sollici. the bare Force of Civil Laws. For this Rea-
tude to avoid Diſcovery in doing ill.
ſon, in all Chriſtian Governments, which we
(1) "Οφελω γαρ εθέν των ωφελιμωτάτων νόμων, &c. The beſt and moſt uſeful Laws, and which are approved of by
all ſuch as are Tubject to them, are of no Ufe, unleſs Subjects be trained up and educated in a Manner of living conform-
* able to Government, Ariftot. Polit. V: Cap. IX. Plato lays, that to lay the Foundation of a good Government, we
muſt firſt begin by the Education of Children, and muſt make them as virtuous as poffible : As an experienc'd Gardiner
employs his Care about the young and tender Plants
, and then goes on to others. Kai paivetas LOL Tôn writix@ jóvo-
digerings of ws. ogbãs (Harry
, Stephens corrects it éggor, but without any Neceſſity, as might be deinonſtrated, if this were
proper Place to do it) γάς εσι των νέων πρώην επιμεληθήνα, όπως έσονται όπ άασοι, ώσπες γεωργών αγαθόν των νέων φυ-
θων είκός πρώτον επιμελεθήναι, μετά και τέτο και των άλλων. Εκthyphron. p. 2. Ed. Serrani • Children belong leſs to their
Parents than to the Publick, ſays Mentor"; they are the Children of the People, they are the Hope and Strength of
the State : 'Tis too late to mend them, when they are ſpoiled; it ſignifies nothing to debar them from Employinents,
. when they have render'd themſelves unworthy of them ; it is much better to prevent the Evil than to be obliged to
puniſh it. A King who is the Father of all his people, is ſtill more particularly the Father of all the Youth,
who are the Flower of the whole Nation; and it is in the Flower that Fruits are prepared. Let nor the King then
diſdain to watch over them, and make others do the ſame alſo in their Education ; let him take Care that the Laws
of Minos be duly obſerv'd, which ordain that Children be taught to contemn Pain and Death; to place an Honour
in the Negle&t of Pleaſures and Riches; to look upon Injuſtice, Lying, and slothfulneſs to be infamous Vices; that
from their tendereſt Infancy they be inſtructed in ſinging the Praiſes of Heroes who were belov'd by the Gods, who
have done glorious things for their Country, and who ſignaliz'd their Valour in Battle; let the Charins of Muſick
feize their Souls, to make their Manners gentle and fine ; let them learn to be tender of their Friends, faithful to
their Allies, and juſt to all Men, even to their moſt inveterate Enemies ; let them learn lefs to fear Death it felf, and
all manner of Torments, rather than the Stings of Conſcience. If Children are inſtru{ted betimes in theſe noble
Maxims, and if they are inftilled into them gently, there will certainly be but few but what will be inflamed with
the Love of Glory and Virtue.
It is of the higheſt Importance alſo to eſtabliſh publick Schools, to accuſtom
Youth to robuſt Exerciſes of the Body, to hinder them from growing lazy and effeminate, which will ſpoil the beſt
Tempers in the World. There ought to be a great Variety of Games and publick Shews to animate the People, but
eſpecially to exerciſe their bodies, to make them ſprightly, ſupple, and vigorous, with Rewards and Prizes i inſpire
them with a noble Emulation. But what is chiefly to be wilh'd for, to encourage good Manners, is, that young
People ſhould marry early, and that their Parents. without any baſe or fordid Proſpect of Intereſt, ſhould leave to
them the Choice of their Wives, ſuch as are moſt agreeable to them both in Body and Mind, with whom they might
live for ever happy. Avant de Telemaque, Tom. III. at the End.
(2) Quid Leges fine moribus
Laws without Manners, are but Words and Wind.
Vana proficiunt?
Horat. Lib. III. Ode. XXIV. 35, 36.
Uponwhich ſee Mr. Dacier's Note. The Method of the ancient Athenians, which an Orator of that Country makes an En,
comium on, in a Place which our Author has quoted after that of Horace, is indeed admirable, and deſerves to be
propoſed as a Pattern to all Princes. 'Anna' ya's ** éx torstwy, &c. ' They cenſur'd thoſe as guilty of extreme Ignorance,
who imagin'd, that where there were the moſt accurate Laws, there muſt be the moſt excellent Men; when’tis evi-
dently for
very eaſie a Matter to borrow and tranſcribe the good Regulations of other States. Therefore they did
not believe, that Virtue deriy'd ſo much Advantage and Aliſtance in its Growth from good Statutes, as from Cuſtom
and Practice. That the greateſt Part of Men muff, of Neceſſity, frame their Minds according to thoſe Patterns by
which they were firſt taught and inſtructed; but that a numerous and accurate Eſtabliſhment of Laws was really
a Sign of the ill Condition of the Common-wealth : Ediets and Ordinances being then heap'd upon one another,
when Governments find themſelves obliged to endeavour the reftraining of Vice, as it were by Banks and Mounds.
* That it became wiſe Magiſtrates, not to fill the publick Places with Proclamations and Decrees, but to take care
that the Subje&ts ſhould have the Love of Juſtice and Honeſty firmly rooted in their Minds. That not the Orders
of the Senate or People, but good and generous Education, was the Thing which made a Government happy : In as-
much as Men would venture to break through the niceſt Exa&tneſs of political Conſtitutions, if they had not been bred
up under a ſtrict Obedience to them: Whereas thoſe who had been form'd to Virtue, by a regular and conſtant
Diſcipline, were the only Perſons, who, by their juft Conformity, could make good Laws obtain a good Effect.
• The principal Deſign of the Athenians, when they made theſe Refections, was not how they might puniſh Diſor-
ders, but how they might find a way of making the People to be willing not to do any thing that might deſerve
Puniſhment. This laft View ſeem'd to them worthy of themſelves and their employment : But as for the other. or
an exact Application to puniſh People, they thought it a Buſineſs proper only for an Enemy; and therefore they took
care of all the Subjects in general,' but particularly of the Youth. Ifocrat in Areopagit. p. 254, 255. Ed. Pariſ. min.
What follows in the ſame Place very well deſerves to be read. See alſo Maxim. de Tyr. Diff. 11l. p. 64. Ed. Davis. and
Famblique de Vita Pythagor. 9. 191, Esc. Mr. Barbeyrac's ſecond Note upon this Section, p: 345.
(3) We muſt not here forget the following Reflection of Montagne : The Chriſtian Religion has all the Marks of
the exactelt Juſtice and the greateſt Uſefulneſs : Bat none more manifeſt than the ſevere Injunction it lays indifferent-
upon all to yield Obedience to the Civil Magiftrate, and to maintain and defend the Laws. Of which what a
wonderful Example has the divine Wiſdom left us, who, to work and eſtabliſh the Salvation of Mankind, and to
carry on his glorious Victory over Sin and Death, would do it no other way than at the Mercy of our ordinary
Forins of Juftice, ſubmitting the Progreſs and Illue of fo high and to falutiferous an Effekt, to the Blindneſs and
Injuſtice of
our Obſervations and Cuſtoms, ſuffering the innocent Blood of ſo many of his Elect, and ſo long a
ly
are
$72
Of the Duty of Sovereigns.
Book VII.

con-
V. Of great Service and Benefit it is, in order
are acquainted wit, sed vene har en tenir el act the then that all mbelev earticularsare duly regula.
the Law of Nature is given in Charge to the ted in a Common: Wealth, ſhould be the care
Miniſters of the Church, to be by them preſs’d of the Supreme Directors.
and enforced upon the Conſcience; tho' the
Dogmatical Part belongs rather to thoſe who to the fame End, to have a Syſtem of juſt, plain,
have made this Science their peculiar Profeffion and perſpicuous Laws, for the ſettling of ſuch
(h). Of great Advantage to the fame Deſign Affairs, as the Subjects are moſt frequently
are publick Schools; if employd for the teach- cern’d in with one another, and (2) ſuitable to
ing not of uſeleſs Trifles; and the Inventions the condition and Genius of the People they
of idle Brains, the Reliques of the Kingdom of are preſcribed to. 'Tis the Advice of llocrates
Darkneſs (a) but ſolid Learning and Knowledge, (d) to a young Prince, As for Laws, ſeek those in
the Uſe of which, diffuſech it ſelf through all general which cre equitable and uſeful, and ſuch as
the Bulineſs of Life. Amongſt theſe Studies, the may render the Differences amongſt the Subjiets, as
chief is that which, upon found and rational few as poſſible, and the Accommodation of them na
Principles, explains the Right of Sovereigns, leſs eafic and expediti us. The Marks which the
and the Obligations correſpondent to it in the fame Orator hach fet (e), to diſtinguiſh good
Subje&s(b). Another thing which adds Strength Laws are, that they be Fw in Number (3),
get
and' Vigour to publick Diſcipline, is the Exam- Satisfactory and intelligible to thoſe who are to uſe
ple of thoſe who hold the Supreme Authority: them; jult and profitarble, and conſonant to each other;
The Manners of the whole State (as Iſocrates
, (c) well and rather directed towards keeping up the publick in.
obſerves) are drawn and expreſs'd from the Pattern ſtitutions, than towards preventing the
petty
of the Prince
. And therefore Spartian (1) had of private Dealing: (f). It ought to be a ſettled
Reaſon to ſay of Caracalla, when he married Rule in this point, not to enact more Laws
his Mother in-Law, He engaged in ſuch Nuptials, than conduce to the Good of the Subject and
had be underſtood himſelf to be a true Law giver, of the State. For ſince Men, in their Delibe-
be, of all Men, ought to have prohibited. To ſee rations about what they ought or ought not
Frauds
as,

pow-
<
« Loſs of ſo many years to the maturing of this ineſtimable Fruit? Eſais Liv. I. Chap. 22. towards the End.
(h) Add Grotius, de Imperio Summ. Poteft. circa Sacra, Cap. I. Num. 13.
(a) Vid. Hobbes Leviath. c. 46 & Lucret. I. VI. v. 981. (b) Vid. Hobbes Leviath. c. 30. There is a famous
Pallage, relating to the Inſtruction of Youth, in Dio Callius, (1. 52.) in Mecenas's Specch to Auguftus. Add the Diſpute
about fuppreſſing the Univerſity of Conimbra in Conneſtag. De Unione Luſitan. 1. 8 Nor is that to be diſregarded
which Gramond in his Hiſtory of France, (1. 3.) offers concerning the Number of Schools.
(c) Ad Nicoclem, p. 36.
(1) C. 10.
(2) 'Tis upon this Account, that thoſe who make Laws, and govern States, ought thoroughly to know the Dif-
polition of the People they liave to command, as we have obſery'd above 5. 2. Note 5. Legiſlators and Magiftrates,
who are not ſufficiently inſtructed in this Matter, fall unavoidably into a very grievous Inconveniency, which is this;
* Suppoſing the people to be of a Temper and complexion quite different from what they really are, they give them
• Laws which they cannot obſerve; upon which either a vaft Number of People muſt be puniſhed, without the State
reaping any Benefit from it; or elſe they muſt behold the Authority of the Law contemn'd, that is the Conſtituti-
• on upon the brink of Ruin. On the contrary, when they give a People no Laws but ſuch as are fitted to their
• Capacities, and ſuch as ſuppoſe them to be what they are, they have the Satisfaction of ſeeing them obſerv'd by eve-
ry Body, without proceeding but rarely to the Puniſhments which thoſe that violate them are made to fuffer: And
they peaceably enjoy all the Advantages that reſult from the Obſervation of thoſe Laws. The Fault I have been now
* mentioning, was notorious in the Roman Common-wealth, which could not ſubſift but upon Suppoſition that thoſe
who pofleis'd the chief Employments in the State were exempt from Ambition, Luxury, and Avarice : This was a
• ridiculous Suppoſition, and what ruin'd that Government in a very ſhort Time, afrer it was arriy'd at the laſt Period
of its Greatneſs. The Conſults and Pretors, who generally govern'd large Provinces, and who often commanded
erful Armies, were abſolute in their Governments and in their Armies, during the Time of their Power ; ſo that there
was no Appeal, either from their Judgment, at leaft in Favour of the People of the Provinces, or any way of making
" them alter their Condnet, by any Authority whatſoever---without even being aſſur'd of having Juſtice at Rome, when
« the Time of their Magiſtracy was expired But beſides, their Puniſhment was very inconſiderable, and to be fear'd
only by ſuch as had been guilty of the moſt horrible Excelles; as we may be inform’d by Cicero's Harangues againſt
• Verres
If, on the contrary, we compare the Laws of Moſes to the Genius
of the People to whom he gave them,
" we may remark, that God ſuited himſelf, if I may ſo ſpeak, to the Temper of the Fews, and that he tolerated fome
things, which he would never have fuffer’d in a more enlightened Nation, and which are at this Day likewiſe for-
bidden under Chriſtianity. For Example, our Lord tells us, that he had not allow'd of Divorce (Mat. XX, 8.)but
for the Hardneſs of their Hearts : And he has forbidden it Chriſtians, except in one Caſe only. The ſame Commendati-
on is alſo given to Solon, who, before he undertook to preferibe Laws to the Athenians, had ſtudied their Tempers,
• and managed himſelf thereupon accordingly, as far as the Good of the State would permit him : -
Being after
c wards ask'd, whether he believ'd he had given the Athenians the beft Laws that it was poſible to give them ; be reply'd,
• be had given them the best Laws that it was poſſible to make them receive. (Plutarch. p. 86. C. (in Solon) I have taken
all this from Mr. le Clerc's Reflections ſur ce que l'on appelle Bonheur & Malheur en matiere des Loteries, Chap. X. pag.
127, Esc. But it would be well to read all the reſt of that Chapter. Mr. Barbeyrac's ſecond Note upon this Section, P.
346, 347
(d) Ibid. c. 31. (c) in Panathen. p. 453.
G) A Multiplicity of Laws is a sign of an ill governd State. Corruptiſſima Republica plurime Leges, ſays Tacitus.
Annal. Lib. III. Cap. 27. The more the Roman Government was corrupted, the more Laws there were. See Strabo, Geogr.
Lib. VI.
260. Ed. Pariſ. 399. A. Ed. ult. Amft
. and the Parrhafirna. Ton. II p. 300, Egsc. As for whatever relates to
Laws and the Adminiſtration of Juſtice, we may conſult Mr. Buddeus's Philofoph. Practic. Part III. Cap. 5. §. 4
are allo a great many excellent things in a Diſſertation of Mr. Thomafius's entituled, Morum cum Jure feripto contentio,
and printed at Hall in 1701. Mr. Barbeyrac's Third Note upon this Se&tion, p. 347.
af Lycurgus (Orat. contra Leocrat.) ſays, that Lacs, by Reaſon of their Brevity, do not teach (as is done in the Sci-
ence and Study of the Law) but command Men how to at. Quintil. Declam. 264. Where's the Difference, whether
there be no Lacus, or ſuch as are ambiguous and uncertain? To this let us add what Cicero fays, "That the Uſe of Laws
having been eſtabliſhed for the Good and Advantage of States, and to make Mankind better and happier
; no Law thie
• is unjuſt or prejudicial to a State, can have the force of a Law, nor deſerve to be call’d by that jutt'and equitable
· Name. Conftat profetto ad ſalutem civium, &c. de Legib. Lib. II. cap. 5.


p.
There
to

Chap. IX.
573
Of the Duty of Sovereigns.
to do, are more frequently guided by their na- preſſions (b). Noroughc Indulgencies or
tural Reaſon, than by refleding on the publick Pardons to be allow'd without very fufficient
Conftitutions (a); wherever there are more Cauſe (c): ſince not to creat alike thoſe who,
Laws than can ealily come within the Compaſs ceteris paribus, have deſerv'd alike, is not only
of their Memory, and thoſe prohibiting ſuch unjuſt, but hath alſo a peculiar Efficacy to
things as Reaſon, of it felf, doth not prohibit, wards inflaming the Minds of the subjects (d).
here the Subjects muſt through meer Ignorance, VII. But as nothing is to be guarded with
without any ill Intention, fall into the Laws as penal Sanctions, which doth not contribute to
into fo many Snares. And by this means, the the Advantage of the State, ſo in the annexing
Government brings the People under an unner of thoſe Puniſhments, ſuch Moderation is to be
ceſſary Inconvenience; which is contrary to uſed, as that they may bear a juft Proportion to
the original Deſign of Civil States. Moreover, the ſame End ; and conſequently that they
the ordinary Form and Courſe of Juſtice ought may be no more to the Grievance of the Subject,
to be fix'd in ſuch a Manner, as that every Sub- than to the Benefit of the Publick. In general,
je& may recover his Right, by as ſhort and as if it be deſired, that Puniſhments ſhould obtain
cheap a Proceſs as can be contrived. The Per- their due Effect, they ought to be rais’d to fuch
fans have a Proverb, that Short Injuſtice is better a Degree of Severity, as that the Pain and
sban tardy and tedious fuftice.
Sharpneſs of them may outweigh the Profit or
VI. And becauſe 'tis in vain to enact Laws, Pleaſure, which might ariſe from the Tranſ.
if Governours ſuffer them to be tranſgreſs'd greſſion (e).
with Security ; it is therefore their Part care VIII. Farther, ſince Men firſt incorporated
fully to put their own Decrees in Execution, themſelves in Communities, to obtain Security
and to infiet due Puniſhments (1), according againſt the Injuries of others (2): it concerns
to the Nature and Circumstances of the Fact, every Government to forbid the mutual Injuries
and the Intention and the Malice of the Offen- of Subje&ts, ſo much the more ftri&ly and ſe
der. In which Affair, they ought ſo to proceed, verely, as their perpetual living together affords
as that the true Force of the Laws may be ex more eaſy Opportunities of Hurt and Miſchief:
ercis'd, not only upon che Subjects of moderate Neither ought the Diſtinction of Orders, or
Fortune and Condition, but upon the Wealthy Dignities to be allow'd ſuch a Force, as to en-
and Powerful; whoſe Riches and Honours courage the Great and Powerful in tyrannizing
ought on no account to give them the Privi. over thoſe of meaner (f) Condition. The way
lege of inſulting over their Inferiors with Im- to purchaſe an honeſt Popularity, is, (in Iſecrates
punity eſpecially fince Common-wealths are his Words) Neither to let the Commonalty groww extra-
never in more Danger, than from the Fury of vagant and abuſive, nor to let them ſuffer from the
the Populacy, exaſperated by unreaſonable Op- infolence of the ſuperior Order ; but to beftor Honour
(a) Hobbes De Cive, c. 13. f. 15. Leviath. c. 30. (1) · The Crimes and Diſorders that are not to be prevented, muſt
be immediately puniſh'd with severity: 'Tis an Act of Clemency to put a Stop to the Courſe of Iniquiry, by making
carly Examples of thoſe who preſume to offend. A little Blood hed in due Time prevents the ſhedding a great deal,
and makes a Prince to be dreaded without making uſe of Severity too often. Avant, de Telem. Tom. III. p. 73:, We
Tall treat of Puniſhments more at large in the Third Chapter of the following Book. See Mr. Buddeus's Philoſoph.
Pract. Part III. cap. $. 1. 5. concerning the Manner of the Diſtribution of Puniſhments. Mr. Barbeyrac's firft Note upon
this Section, p. 347.
(b) Leviath. ibid. (©) Sec the Pårrhafiana, Tom. II. p. 178, &c. (d) Pindar. Olymp. Od. 13. v. 6, Stoc,
Ευνομία βάθρών πολιών, &c.
Good Law, the Baſis of a State,
Here with her Siſters takes her Seat;
Stri&t Juftice, with unſhaken Mind;
And Peace, engaging to be kind.
Through their fair Hands the Treaſure flows,
Which Heaven on craving Men beltows;
Daughter of Themis, who preſides
In Councils, and wiſe Motions guides.
(c) Add Hobbes Leviath. c. 30. (2) What ſignifies. it to me or to any of my Fellow-Subjects, that
ſucceſsful, that the prudent Management of his Miniſters, nay, that of his own perſonal Merits, exalt him to the higheſt
Pitch of Glory; that my Country is powerful, the Terror of all the neighbouring Nations ? What ſhould I be the
better for all theſe things
, if I were forced to labour under the diſmal and melancholy Burthen of Poverty and Op-
preſſion ? If, while I was fecur'd againſt the Sallies from without of a cruel Enemy, I was expoſed within the Walls
of Cities to the Barbarity of a treacherous Affaflin? If Rapide and Violence were leſs to be feared in the darkeſt
Nights, and in the widelt Deſarts, than at mid Day in the Streets? If Safety, Cleanlineſs, and good Order had not ren-
dred living in Towns ſo delightful, and had not added to the Plenty the Means of our converſing with ſo much Eaſe
one with another? Or if being weak and defenceleſs, I were encroached upon in the Country by every neighbouring
great Man? If there was not a Proviſion made to protet me againſt his Injuſtice ? If I had not at hand ſo many Maſters,
and thoſe eminent Maſters too, to breed up my Children in thote Arts and Sciences which will one Day raiſe their
Fortunes ? If the promoting of Trade had not made good ſubſtantial Stuffs for my Clothing, and wholeſome Food
my Nouriſhment, both plentiful and cheap? If, to conclude, the Care of my Sovereign had not given me Rea-
Con to be as well contented with my Fortane, as his extraordinary Virtues muft 'needs make him with his ? Cara-
deres ou Mæurs de ce Siecle, par Mr. de la Bruyere, P. 334.
ff) Ad Nicoclem, p. 31.
ale
tor
574
Of the Duty of Sovereigns.
Book VII.
patient
(f) L. 14. p. 966.
always on Perſons of the greateſt
, Merit, and to ſee the Duty of Sovereigns ſeverely to puniſh ſuch
that the reſt are not wronged and trampled upon; Tis Judges, as the Patrons of all thoſe Villanies
a good Saying of the Hiſtorian (a), Tho
' it be which diſturb the publick Security (d), and to
enough for private Men to do no Injury themſelves; revoke their onjuft Sentences and Proceedings.
yet "tie the Duty of Princes to take care farther, that For the Pradice ſaid to be obſerved in Arragen,
others do none. It is likewiſe repugnant to the ſeems reaſonable ; to puniſh the Judges for a
End of Government, to allow Subje&s in re- falſe Sentence, and yet to put the lame Sen
venging, by their own private Force, the Inju- tence in Execution. Beſides, tho' the ordinary
ries which they think themſelves to have ſuf- Management of Affairs is entruſted in the Hands
fered.
of Miniſters, yet the ſupreme Rulers themſelves,
IX. Beſides, altho' a ſingle Ruler cannot, in ought never to diſdain the lending a
Perſon, diſcharge all the Affairs of an extended Ear to the Complaints, or Requeits of their
Realm, ſo that he muſt, of Neceffity, aſſume Subjects.
Miniſters into the Partnerſhip of his Cares; yet What Qualifications Sovereigns ought to re-
theſe, as they derive all their Authority from gard in thoſe, whole Advice they would uſe (2)
their Maſter's Commiſſion; ſo whatever they in the Diſpatch of publick Buſineſs, and what
ag, whether well or ill, muft, finally be ſet to his ſcenis the moſt convenient way of getting out
Account. And therefore Ifocrates (1) prudently their Opinion, Mr. Hobbes (e) hath ſhewn at
adviſeth ; So appoint others over the Buſineſs which large. As to the latter Point, there's a remark-
you
can't execute your Self, as conſidering, that whatever able Inſtance in Davila's Hiſtory of the Civil
they perform, will be aſcribed to you. And again, Wars of France (f), where the Pope conſults
If you happen to obtain a Magiſtracy, never uſe the Ser- the Cardinals, not in a Confiftory, but each a-
vice of a wicked Perſon in exerciſing your Office ; for part, about the Abſolution to be granted King
in whatſoever Point he offends, the Guilt will be laid Henry: Iſocrates (g) calls a Counlellor, The moſt
to your Charge (b). For which Reaſon, and be uſeful of all Treaſures or Pollejions, and the muft war-
cauſe as the Miniſters are, ſo the Buſineſs will thy of a King. Neuhof (h), in his Deſcription of
be well or ill managed (c), Governours are ob- China, reports many things very worthy of Ob-
liged to employ, in publick Truſts, Men of In- ſervation, concerning the Magiſtrates of that
tegrity and Ability ; often to inſpect their Pro- wiſe People. Nor ought we to undervalue the
ceedings, and to reward or puniſh them, accord- Dire&tions of King James the Firſt of England,
ing as they find them deſerve; to the End that in his Beaninò Aãgor (i); that a Prince ſhould
the reſt may underſtand how ftri&ly they ſtand chooſe his Counfellors chiefly by his own Judg.
engaged, to apply no leſs Fidelity and Diligence ment, not at the Pleaſure of others; and that
to the Affairs of the State, than they would to he ſhould take them indifferently out of all Or.
their own perſonal Concerns. The Chineſe, to ders of the People, in as much as he is the
avoid all Inconveniences that might ariſe from common Father of all. In the ſame Piece, the
Favour on the one hand, and from Reſentment King hath aſſign'd the Reaſons, why Men of
on the other, allow no Man to bear an Office moderate Condition ſhould be pitch'd on, for
in the place where he was born: it being moſt the Offices relating to the publick Money (k).
likely that he ſhould there meet with Perſons X Since the Subjects are obliged to the bear-
whom he particularly. loves or hates. Thus too, ing of Taxes, and the like Burthens, on no
ſince wicked Men are tempted to the Commiſ- other account, but as they are neceſſary to de-
fion of the greateſt Sins, through Hopes of Im- fray the publick Expences in War or Peace; it
punity, which they eaſily entertain, where the is the Duty of Sovereigns, in this reſpect, to
Judges lie open to Bribery and Corruption; it's draw no farther Supplies (3), than either the
(a) Xiphilin. Epit. Dion. in Galba. See alſo the Parrhafiana, Tom. II. p. 283, &c. where it is ſhewn, that
every
Man
ought to have Juſtice done him. (1) Ad Nicoclem, p. 35.
) Themift. Orat, 8. p. 117. Mentor gives Telemachus very excellent Advice and very judicious Rules relating to
this point, (Tom. 5. pag. 124, Eyc.) but as this Chapter is already clogged with Notes, it would be too much to copy
out here. 'See alſo Charron de la sageſſe, Lib III. Chap. 2. f. 16, &c. and Mr. Buddeus's Philoſoph. Praet. Part III. cap.
5.1.6. Our Author has here cited alſo that Verſe of Martial, Principis eft virtus maxima, noje juos
. Lib. VIII. Epigr.
15. But it relates to quite another thing; For thae Poct means that the great Virtue of a Prince conſiſts in the Knowledge
how to gain the Affections of his
people, as it plainly appears from the Deſign and Fancy of the Epigram: The fol-
lowing Example is more to the Purpoſe.
When Satibarzanes petitioned his Maſter Artax.
erxes for the Government of a certain Province, of which he was very incapable, together with the Sum of three Thou.
ſand Pieces of Gold ; the King granted the latter Part of his Requeſt, but denied the former : for, ſays he, to give you
fo much Money will not make me more indigent, but to give you ſuch a Government, would make me more unjuſt.
Euripides (in Khel v. 626) Every Man ought to be aſſigned that Part in which he is capable of doing moſt Service
.
Libanius (Legat. ad Fulian.) According as the Man is, whom you place in the Box, accordingly the Chariot will be
guided. (c) Add Xenophon. Cyropæd. I. 8. poft princip.
(d) Vid. Diodor. Sic. 1. 1. c. 75,76. (2) Charron, d.l.
(e) Leviath. c, 15, 30.
(g) Ad Nicoclem. (h) Deſcript, gen. Sinic. C. 1. (1) L. 2.
"(k) Add Liban. Orat.'s. De Affefforibus. (3) Too great Exa&tions do conſiderably leſſen the publick Reve;
nues, tho’ at firſt sight they ſeein to increaſe them.” The Reaſon of it is, that Trade is thereby quickly ruined, and
to that Source of the publick Revenues is entirely, or in part, dry'd up. For when there is very little to be got by
Trading, People grow tired of it, and traffick as little as poſſible. Being by Degrees, deftitute of Money, or having
no confiderable Sum by then, they can undertake no great Enterprize fo that I rade is at laſt, by Degrees, reduced
what one of the moſt ancient Greek Poets above a Thouſand Years ago fays, ſpeaking of his brother, who had bribed
the Judges, who, in thoſe Days, were called Kings, that he might have a larger Share in the paternal Eftate than Hee



meer

Chap. IX.
575
Of the Duty of Sovereigns.
meer
Neceflity, or the fignal Benefit and Inte nance to their Subje&s, (only, ſo far as Cha-
reſt of the State ſhall require (a). And then rity commands them to have a particular re
they are to ſee that theſe Impofitions be levied gard to thoſe, who, by ſome undeſerved Cala.
according to the jufteſt Proportion; and that mity, are rendred inſufficient for their own
no Immunities or Exemptions be granted to Support (f); ) yet, in as much as the Sums, ne-
certain Perſons, to che defrauding or oppreſ. ceſſary to the common Safety are collected
fing of the reſt (b)(1). Farther, that the way from the Ability of private Perſons; farther,
of gathering them, be with as little Charge as fince the Strength of a State conſiſts in the Vaa
poflible, and that much do not ſtick to the Col- lour, and the Wealth of the Subjects ; and be-
lector's Fingers : Leaſt it ſhould happen to the cauſe,
Treaſury, as it fares with Buckets in a Fire ;
they are fill'd to throw upon the Flames, but gravis eft domino que ſervit egeſtas (3);
by paſſing through ſo many Hands, and being
13
frequently ſhook from ſide to ſide, they are fcarce Poor Vaffals are a Burthen to their Lord;
half full, when they reach the Place, which re-
quires their Service. 'Twas a notable Anſwer, Therefore, ſo far as in them lies, they are to
that which Hybreas the Orator gave Mark An- take care, that the Eſtates and Poffeflions of
tony the Triumvir, when order'd by him to dou- their People be well cultivated and improved.
ble the Tribute in Aſia ; You ſhould, at the ſame Iſocrates (g) is admirable in his Advice to this
time, command us (ſays he) to have a double Sum- purpoſe; Keep a ftri&t Eye, ſays he, over the For-
mer; and a double Autumn this Year (2).. Care tunes of private Men; believe the Prodigal to ſpend
ought likewiſe to be taken, that what is col out of your Stock, and the good Husbands to encreaſe
leded, be laid out on the Occaſions of the Com. your Wealth. For all the Subſtance of the People is
mon.wealth, and not waſted in Luxury, Dona- (as it were) the Domeſtick Treaſure of a good rince.
tives (c) ſuperfluous Magnificence, or idle Va- It will contribute much towards this End, if
nities. Laſtly, Matters are to be ſo ordered, as the Subje&s be encouraged to take as plentiful
that the Expences, as near as poſſible, keep a Supplies as poflible, from the Land and from
Proportion to the Revenues; or where they fail, the Water; to improve induſtriouſly the Mare-
the Defect muſt be made up by frugal Manage- rials of their own native Growth, and never to
ment, and by retrenching unneceſſary Charges. hire other Hands, for thoſe Works which they
'Tis of pernicious Conſequence to affect more can conveniently perform themſelves : and this
Pomp and State than the ordinary Income will is done by furthering, and promoting Manual
ſupport: and he doth, in Reality, live Great e- Arts. And, in purſuance of the ſame Deſign,
nough, who gives every one their due. Nor it will be of mighty Uſe, to advance the Exer-
ought we to be moved with that Sentence of ciſe of Merchandiſe, and Navigation in Maria
Tully (d) 'Tis no great Commendation in a Princetime Countries (h). Nor is it enough tobaniſlı
to be reputed a frugal Man: Which Mr. Hobbes Idleneſs, but Men are to be brought to a frugal
(e) thus explains ; Frugality, tbo’ in poor Men a Method of living by Sumptuary Laws (4), which
Virtue, maketh a Man unapt to atchieve ſuch Actions, may forbid all unneceſſary Expences; eſpeci-
as require the Strength of many Men at once: for it ally, thoſe by which the Wealth of the Na-
weakens their Endeavours, which are to be nouriſh'd tives is tranſlated to Foreigners. 'Twas a Say.
and kept in Vigour, by Reward.
ing of Macenas, that Great Rickes are gathered,
XI. Tho' Rulers are not bound to afford Suſte rather by Spending little, than by receiving much (i),
*
fiod : We have formerly, ſays he, divided our Inberitance ; but you took from me what did not belong to you, by preſenting
many Gifts to the Kings, who are greedy of 'em, and pretend that they determin’d the Cauſe. Blind Wretches, who know not
that one half is much better than the whole !
Νήπιοι δ' ίσασιν έσω πλέον ήμισυ παντός.
(Oper. Ego Dier. verſ. 40. upon which ſee le Clerc.)
He means, that it were better for Kings to be ſatisfied with one half of what they exa&t from the People, than to
extort from them all that they had, and by that Means render them incapable of contributing any more to the fup-
plying of their Wants. Parrhaſrana, Tom. I. p. 281, 282. See what follows; and in Tom. II. p. 29 , &c. As alſo
Charron de la ſageſſe, Liv. III. Chap. 2. f. 20. Mr. Barbeyrac's firſt Note upon this section. p. 349.
(2) Vid. Phil. De Comines, l, 5:18. circa fin. Grotius on Luke III, 13. 'Tis the Duty of Princes to adjuſt the publick
Burthens, according to the publick Necellities; fo as that they may lawfully provide for their own Support, in a way
agreeable to their Quality, but not to make the Luxury and the Luft of themſelves, and their Court-Slaves, the Men-
ſure of what they demand, which are indeed without meaſure.
(b) Add. Tho. Mori Utop l. 1. (1) V. Hobbes De Cive, c. 13. 1.0. (2) Plutarch, in Marc. Antonin, p. 926. B. See
upon
this whole Matter, the Philoſoph. Praet. of Mr. Buddeus, Part III, cap, 5. fe&t. 1; (c) Drepan Panegyr. c. 27. It
is the laff Defence and Refuge of wicked Princes, to take away from ſome, what they may beftoru on otbers. Add Montagne's
3.6. 6. p. 175. Add Machiavel Prin. c. 16... Plin. Panegr
. c.4.(d) Orat. pro Rege Deiotaro, c. 9. (e) Leviath. c.
11. (f) The Incas of old in Peru, amongſt all their Titles, delighted chiefly to be ftyld Lovers of the Poor, as de la Vo-
ga informs us ; (Comment. Reg. 1. 2. C. 14.) who likewiſe reports, 14.0.7:) that the Lands of Widows, in that King-
dom, had more Privileges than thoſe of their Inca himſelf." (3) Lucan. Pharſal. L. 1. v. 152. (g) Ad Nicoclem, p. 33.
(h) See an Inſtance of this, in the Diligence of Sefoftris by which he rendred Egypt capable of Trade, and convenient
for the Communication of Goods and Produ&ts. Diodor. Sic. 1. 1. c. 57. See alſo upon this whole Matter, the Parrbaſiana,
Tom. I. 264, &c. Tom. II. p. 291, &c. And les Avant. de Telemaque, Tom. I, p. 85, &c. Tom. III, p. 50, &c. And Mr.
Buddeus's Philofoph. Praet Part III. cap. 5. feét
. 8. Where he alſo treats of what relates to Money. Add the Pules laid
down by Mr. Hobbes, (Leviath. c. 30.) to be obſerved in Relation to the Companies of Merchants. (4) See the next
Book, c. 5. f. 3. (i) 'In Dion. Caf. i. 52.
Yet;
alſo
ED.I.
Yyy

576
Of the Duty of Sovereigns.
Book VII,
againſt
Add Ber-
(b) Herodot. (Uran.) init. Add Evagrius (H. E. I. 4. C. 13,) concerning
Yet, in this Reſpect, the Example of Sovereigns whole Body of the State ; it is, for this Reaſon,
hath more Efficacy, than the Force and Authori, incumbent on Sovereigns, to prevent all Fa:
ty of any Laws (a). But if a Country abound &ions amongſt
&ions amongſt the People (2), from which
with Men and Money, it is there convenient 'tis but an eaſie Slip into Sedition, and Civil
to tolerate ſome unneceſſary Consumptions, and War; a Condition ſo much worſe than a Wars
ſuch as may ſeem to border upon Luxury ; that carried on, with univerſal Conſent,
the common People may, hence be furniſh’d Foreigners; as War.is, in general, leſs amicable
with Opportunities of maintaining themſelves, than Peace (b). As likewiſe to take care, that
and that the vaſt Stock of Mony may not lie the Subjects do not bandy and aſſociate them-
dead and uſeleſs. Provided, that no Encou. felves by particular Covenants and Engage
.
ragement be given to Extravagance and Ex menes (C); and that neither the whole People,
cels, and that thoſe Commodities be not idly nor any Part of them, place a greater Depen-
waſted at Home, which might be exported with dence, or rely more for Defence and Succour
Advantage to Foreign Parts.
on any other Perſon, within or without the
XII. Farther, ſince the internal Health, and Realm, under any pretence whatſoever, whe-
the firm and robuſt Habit of a Common-
Common- ther Sacred or Civil, than on their lawful
wealth depends on the Unity of the Subjects Prince. And that, on the contrary, there be
(1), the more exactly which Unity is obſerved, no Perſon to whom Seneca's Deſcription may
the more effectually the Force and Authority be applied,
of Government diffuſeth it ſelf through the
(a) Tacitus Ann. L. 3. c. 55. Vefpafian was the principal Author of theſe ftri&t and grave Faſhions ; himſelf uſing the
ancient Habit, and the ancient Diet: hence there aroſe in Men a Deſire of expreſſing, by ſuch Obſervances, their Du-
ty to their Prince, accompanied with a Love of Emulation, ſtronger than any Fear of Law or Puniſhment
nier's Deſcription of the Empire of the Mogul, near the End ; where he ſpeaks of the Cauſes contributing to the
great
Conſumption of Gold in that Kingdom.
(1) • No Body doubts that Union will make a Nation flouriſh, and that Diſſention is very dangerous to it; but there
'muſt be Care taken to have a juſt Notion of the Meaning of thoſe words. An Union ſerviceable to a Monarchical or
Ariſtocratical Government, is what deſigns the univerſal Good of thoſe who live under it. If in a Monarchical State,
where the Power of the Sovereign is limited by the Laws, the principal Subjects of the State ſhould willingly, or by
· Force, conſent to ſubmit all the Laws to the Prince's Pleaſure, ſuch an Union would not be advantageous to him in
any Reſpect. It would change a Society of free People into a company of miſerable Slaves. The ready Compliance
of the Chineſe, to obey their King blindly, does but ſtrengthen his Tyranny, and add to their Miſery. For thoſe
who depend on the Will of one Man, addicted to a Thouſand Paſſions, whoſe Fancies are above the Reſtraint of Law,
can be certain of nothing; ſuch a Man has ſome Favourites, who have other Favourites of their own, and ſuffer them .
« felves to be bribed ; and ſuch a Form of Government is only a Subordination of Tyrants, every one of them endea-
vouring to get ſomething by the Subje&tion of the People. But it is afferted, that the general Obedience of the Chie
neſe, is of Service to preſerve the Peace of their Country, and that they enjoy by it all the Advantages that the
• ftriéteſt Union can procure. They mean, all Advantages that can be poſteſs’d in Slavery. But ſure there is not a
Freeman but had rather ſee more frequent Commotions, than ſuffer an eternal Slavery. Moreover, 'tis falſe to affirm,
that there are no inteſtine Wars under ſuch a Form of Government. The moſt enſlaved People will, in Time, grow
weary of an exorbitant Tyranny, and upon the firſt Opportunity fhew, that the Deſire of Liberty is not quite fti-
fled in their Souls. This has happen'd often among the Chineſe and Turks. As there are few People concern'd in
ſupporting Arbitrary Power in a particular Family, or a particular Perſon, and the generality having Reaſon to complain
• of it, ſo few will be againſt a Change in the Government, and others believe that if they get nothing, they will loſe
no great matter by it. The ſame ought to be ſaid of an Ariſtocratical Government. The Union of thoſe who govern
' ſuch a State, would be uſeleſs, if it did not procure the Obſervation of the Laws, and the univerſal Good of the Com-
'mor--wealth. This we may underſtand from the Hiſtory of the Thirty Tyrants of Athens, and the Decemviri of Rome.
• The Union of thoſe Men ſerv'd only to cruſh the People, and make them miſerable ; becauſe their principal Deſign
was to gratifie their Paſſions, without having the leaſt Reſpect to the publick Good. Union may alſo be conſider'd with
• Regard to the People, who, when the State is ſo fixed as that they may peaceably enjoy the Fruits of their Labours by
obeying the Laws of their Country, (which are not to be chang'd or tranſgreſs'd by any Member of the Society at
• his Pleaſure) ought to eſteem themſelves happy, and to obey unanimouſly the Commands of the ſupreme Power.
Now to keep the Populace in ſo firm an Union, it is requiſite that not only they may be the better for it, but alſo
that they ſhould be fenſible of their own Happineſs. Without that, there will be always ſome turbulent Men, who,
having waſted all their Subſtance in Debaucheries and Idleneſs, would endeavour to recover it by ſome new Commoti-
on. Such Men will eaſily induce People, who tancy they live unhappily, to take up Arms againft their Prince at the
• firſt Opportunity. On the other hand, when the People are of Opinion that they cannot mend their Condition by
• a Turn of Affairs, and that they ſhould venture loſing a great deal' by it, 'tis a very difficult Matter to ſeduce them
The Agreement and Union both of Governours and People ought to tend to the publick Good; from whence
it follows, that whatſoever has not ſuch a Deſign, is injurious to it, and ought rather to be term’d a Conſpiracy than
an Union ; ſince the Name of a Virtue cannot with Reaſon be attributed to a thing which injures and ruins a Socie.
ty. What has been ſaid of the Civil, may alſo be ſaid of the Eccleſiaſtical Society, which can only flouriſh by, the
great Number of its Members, and by Learning, (which is in that Society what 'Riches are in the other) and by
• Ünion. Not to mention here the Number and Learning of ſuch a Society; I ſhall only take notice, that the Union
• of thoſe who govern’d it, ought not to be a tyrannical Combination, which deſtroys it. Such is, for inſtance, the Unie
on of the Inquiſitors in Spain and Italy, who perfe&tly agree among themſelves : but to do what? To hinder both
• Lay-Men, as they term 'em, and Eccleſiaſticks, (who might diſcover the Errors that were introduced into Religia
on, through Ignorance, or the Abuſes crept into the Diſcipline out of Ambition or any other Paſſion) from propo-
• fing a Reformation, be there never ſo much Occaſion for one ; and of courſe, to keep every Body in extreme Ignot
rance, or a ſinful Diſfimulation and Hypocriſie. It would be more for the Advantage of the Church, that there were
• many' Conteſts
, rather than a perpetual Tyranny, that quite overthrows the very End of its Eftabliſhment, which
to be taught the Principles of the Chriſtian Religion, and convinced of the Certainty of it, by very fubftantial
• Reaſons. Parrhafiana, Tom. I. p. 289, &c.
(2) See Hobbes De Cive, c. 13. [ 12.
Perf. 1. 1. 6. 24. d Bacon's Serm. fid. c. 15.89 49.
(C) Vide Diodor. Sic. l. 1.6. 21.
Stas
C
<
<
was,

Chap. X.
577
Of the Duty of Sovereigns.
Enemy, as fortified Places, Arms, and Men, be
Stat ingens arbor, atque umbrâ gravi provided becimes: for, to uſe the old Proverb in
Sylvas minores urget (a).
Plautus (b): Tis a lamentable Work to begin digging
a Well, when we are almoſt dead with Thirſ. But
He {tands a mighty Tree,
to be the Aggreſſor in a War, how juſt ſoever
The Underwood oppreffing with his Shade (1). the Occaſion of it may be, is what ought not
to be pra&isd (3), unleſs a very fair Oppor-
XIII. Laſtly, ſince the Condition, under tunity offer it felf
, and when the State of the
which differene Nations and Kingdoms itand, in Common-wealth may, with Convenience, bear
regard to each other, is but a deceitful kind of fuch an Undertaking. To the ſame End, the
Peace, and ſuch as cannot be relied on with Counſels and Motions of the Neighbouring
any Security; it is a part of the Office of ſupreme Governments are nicely to be dived into and
Governours to take care, that as well the Cou- obſerv’d; (in which Refpe&, the Perpetual Re-
rage of the Subje&s, as their Skill in Arms, be ſidence now fix'd in moſt Courts, are of very
kept up and improved (); and that all things, great Uſe;) and Friendſhips and Alliances prus,
neceſſary to be employ'd againſt an invading dently to be contracted (©).
ز
6
(a) In Oedip. v. 54?, 543.
(1) Vid. Bacon's Serm. fid. c. 35.
(3) see the 'Avantures de Telemaque, Tom. IV. p. 5, &c. and Charron de la ſageſe, Liv. III. Chap. 3. fe&t. 18, Efc.
(3) Ah! with what Deliberation ought Princes to conſider every thing before they begin a War
. "The Motives of it
ought to be juſt ; nor is that ſufficient, they ought to be neceſſary : The Blood of á People muſt not be ſhed, unleſs
for their own Preſervation in Caſes of Extremity., (Avantures de Telemaque, Tom. IV. P: 91.) The Evils of a War ex-
hauſt a Nation, and always puts it in danger of being deſtroyed, even while it is moſt victorious : With what Ad-
vantage foever they may undertake a War, they are never certain of concluding it without being expoſed to the moſt
tragical Reverſes of Fortune ; whatever Superiority you have in the Fight, the leaſt Miſtake, a ſudden Terror, a meer
Nothing ſnatches the Victory out of your Hands, and carries it to the Enemy: Nay, tho you ſhould hold Victory
chain d as it were in your Camp, you ruin your ſelf in ruining your Enemy; you depopulate your Country, let
the Ground be almoſt uncultivated, put a Stop to Trade ; and which is worſe, you weaken your Laws, and ſutier the
Corruption of Manners. The Youth no longer apply themſelves to Learning; the preſling Neceſſity of your Affairs
makes you tolerate pernicious Liberties in your Army; Juſtice, Order, every thing ſuffers by this Diſorder. A King
(who ſheds the Blood of ſo many Men, and occaſions ſo many Miſchiefs, only to gain a little Giory, or to extend the
Bounds of his Kingdom, does not deſerve the Glory he is in Purſuit of, but rather deſerves to be depriv'd of what
" he pofleffes, for, deliring to uſurp what does not belong to him, p: 4, 5. of the ſame Tom.
(c) In Mortellar, Act. II. Sc. 1, v. 32, 33. (c) Vid. Marſelaer Legate. I, 2. c. 11. Add Hobbes De Cive, c. 13.
f. 7, 8. and Bacon's Serm. fid. n, 29.
OF
1

Chap. I.
I
I
LAW of NATURE
N A TION S.
I come now to confider deed, upon the Obfervation of which, the com-
OF THE
ban
A N D
BOOK VIII.
CHAP: I.
Of the Power to direct the A&tions of the Subje£t.
of the Na-
AVING explain'd what upon them. For the Evils that attend fuch
dure of Civil
related to the Nature of Crimes are only ſuch as are uſually called Na-
Sovereign Power in general; tural Puniſhments. (2) Thoſe Laws of Nature in-
the moſt material Difficulties thar ariſe upon the mon Quiet of Mankind entirely depends, have in
particular Parts of it. And ſince I at firſt ſuppo- all Commonwealths the force of Civil Laws. But
led, that the Power to direct the A&ions of the there are others that have no fuch force allow'd
Subject, was that from which all Civil Laws them, either in expreſs Terms, or in any Practice
were derived; to what I have already ſaid of Laws of Civil Courts ; as well becauſe the Controverſies
in general (1), I ſhall now add what more par- about the Violation of them would be very per-
ticularly relates to Laws Civil, and the Com- plex'd and intricate, as to prevent the Multiplica-
mands of the Sovereign Power. A Law therefore tion of licigious Suits ; and alſo that the Good
is callid Civil either with reſpect to its Authority and Virtuous might not be deprived of the moſt
or to its original. In the former Senſe, all Laws valuable part of their Character, the doing well
may be call'å Civil, which are the Rules for the out of Reverence to their Creator, without re-
Adminiſtration of Juſtice, in Civil Courts, from gard to the Fears of Human Penalties ; for this
whatever Original they ariſe (a). The Laws of they muſt neceſſarily loſe, when there is no Di.
God and Nature, it muſt be own'd, are of univer. ftin&tion made whether a Man doth well out of
fal Obligation, and they that break them muft ex. Love to Virtue, or out of Fear of Puniſhment:
pect to be puniſh'd by Divine Juſtice. But it is And indeed, as Seneca faith, how cheap a thing
the Civil Piwer that gives them the force of Laws is it to be good only as far as the Law obligech
in Civil Courts. And the ſame Power muft deter us, when the Rule of our Duty is of ſo much
mine, what Crimes are to be puniſhed by the wider Extent? For how many things do Piety,
Civil Juſtice, and what ſhall be left to the Divine; Humanity, Juſtice, and Fidelity require of us,
as alſo, upon what natural Obligations an Aktion which yet are without the Reach of the Law
may commence in the Civil Court; and what will (6) (3) Civil Laws with reſpect to their Origi,
noc bear an Action, but muſt be left to the Com- nal, are ſuch as flow entirely from the Will of
mon Ingenuity and Probity of Mankind. Herice the Supream Civil Power, and reſpect only ſuch
under Civil Governments nó Man is call'd to ac- things as are left indifferent by the Laws of God
count, or can properly ſpeaking be puniſhed, for and Nature, and which particularly conduce to
the Violation of thoſe Laws of Nature which the Benefit and Advantage of the Common-
have not the Authority of Civil Laws ftamp'd wealth. And theſe demand the fame Obedience
Laws in ge-
neral
(1) B. 1. chap. 6. (a) Vid. Grot. de Imper. ſummar. Poteft. circa ſacra. c. 3. n. 3, 4, 11. & c. 4. n. 1.
(2) Sce above in B. 2. chap: 3. 0. 21.
(6) Sen. de Ira, 1. 2. c. 27. (3) Quod non vetat Lex, boc vetat fieri Pudor.
Senes. Throad. v. 332. Grot L. 3. 6. 10. G. 1. See likewiſe what has been ſaid above in B. 3. C. 4. 5. 6.
* A
fron
2
Of the power to dire&t
Book VIII.
LE
Civil Law
may contra.
dict the Na.
tural.
C
6 God. The Argument he uſes to prove it, is
from the Subject as other Laws do ; ſince it muſt II. But notwithſtanding, Holbes
evidently be more for the good of Society, that de Cive c. 14. 9. 10. will maintain Wbetber a
in indifferent things the Determination of che, this ſtrange ſort of Opinion, " That
Government ſhould take place, and the Subje&ts it is impoflible any Civil Law ſhould
ſhould look upon that to be good which is thought be made repugnant to that of Na-
to by cheir Governors, than that there ſhould be
ture, except it be to the Diſhonour
endteſs Difputes between them about it, which
do not uſually end but in War and Bloodſhed, cer this: Men, faith he, (d) when they enter into
tain and undeniable Evils. “The Publick Good, Civil Societies, oblige themſelves by Compact, to
Taith Cicero, ought to be the End of all Laws, and obey bis Coinmands who hath the Sovereign
a is the beſt Comment upon, and Interpretation * Power, that is, to obey the Civil Laws; and
of them; and we do not define the preferation is compacte febreye
, are obliged by the Law of
themſelves, but for the common Intereſt and ſelf, and conſequently the Obligation to obey
Advantage (1). And hencorghe Conftitutions of the Civil Laws, was antecedent to the Promul
particular Commonwealths made for the Publick gation of the Laws themſelves; ; by the force
Good, are elld boy ſome ppendages to die Laws of the fame Law of Nature, which commands
of Nature (b). But it muſt be obſerv'd, that tho' not to violate our Compacts, we are obliged alſo
all theſe Laws put together are commonly callid to obey every Civil Law. For where we are
the Civil Law, yer, that there are ſeveral Parti obliged to Obedience before we know what will
culars contain in the Bodies and Codes of the be commanded, there we are obliged to obey
Laws. For beſides thoſe Commands which the so But the Truth is, it muſt be preſum'd, that
vereign Power lays upon the Subject for the parti. when Men enter into Civil Societies, they have
cular Ucility of the Commonwealth, there already a competent Knowledge of the Law of
are many other things inſerted, which ſhould be Nature ; and that one of the chief Ends of ere&ing
reduc'd properly to the Law of Nature. What be- Civil Governments was, that the Laws of Nature,
Law
may be reduc'd to thefe
certain Forms preſcribed, and certain Methods to And in ſhort, that there is nothing in the Laws of
be obſerv'd in Civil Affairs, either in transferring Nature which is any way repugnant to the Nature
Rights
, or elſe in laying Obligations upon Perfons, and End of Civil Society, but on the contrary that
which ſhall be look'd upon to be valid in the Civil they are entirely neceſſary to aſſiſt and promote
Court : And Secondly, To the ſeveral Ways how it. And therefore when Men formºd themſelves
a Man is to proſecute his Rights in the ſame Court's
. into Civil Societies, and oblig'd one another by
So that, if we give the Law of Nature all that be- Compact to obey the Civil Laws, we muſt ſup.
longs to it, and take away from the Civilians what poſe that they took it for granted, that nothing
éhey have hitherto engrofs'd and promiſcuouſly would be eſtabliſhed by the Civil Law, which was
created of; we ſhall bring the Civil Law to a much contrary to the Natural; and that the particular Ad-
narrower Compaſs; not to ſay at preſent, that vantages of the Commonwealth could not be con-
whenever the Civil Law is deficient, we muſt have trary to the common End of all Government It
recourfe to the Law of Nature ; and that cherefore is poſſible indeed that a Civil Law might be made
in all Commonwealths the Natural Laws ſupply in Oppoſition to the Natural; but no Man in his
the Defects of the Civil. For which reafon Hob- Wits would ever attempt to make fuch a Law,
bes calls the Law of Nature the unwritten Civil unleſs he refolv'd to ruin and overturn the whole
Law (c). 172
Commonwealth. And therefore Stratocles was




nimba

500
(a) Cic. de Invent. 1. 2. c. 38. (6) Philo Fudeus de Foſepko. P: 531. B. Ed. Paris.
(1) Beſides, as there are a great many things which the Law of Nature preſcribes only in a general and indefinite
ner; ſo, the Time, Manner, Place, Application to ſuch or ſuch Perſons, and the like Circumſtances, are leftIto the
Diſcretion and Prudence of every private Man. The Civil Laws generally regulate all that matter, for the Order and
Tranquillity of the State ; ſometimes they propoſe Rewards to thoſe who by the Natural Bent of their own Inclinations
would willingly perform fuch Actions, to which they are not determinately bound, in ſuch and ſuch a particular Caſe.
They alſo explain what ever may happen to be Obſcure or Doubtful, either in the Maxims of the Law of Nature, or
their Application ; and private Men are bound to ſubmiť to the Deciſions that are made by publick Authority, even
tho they ſhould not find 'em upon Examination to be very juft. In ſhort, they limit in ſeveral Reſpects, the Uſe of thoſe
it. Moreover, every private Man is obligd to comply with all theſe Regulations, as far as they contain nothing that is
manifeſtly contrary to the Divine Laws, whether Natural, or Reveald; and that not only through Fear of the Puniſh-
ments which are annexed to the Violation of 'em, but even upon a Principle of Conſcience ; and alſo by Virtue of a Max-
im of the Law of Nature, which commands us to obey our lawful Sovereign in every thing we can do, without commit-
** De Cive c. 14.$. 14. Vid. Quintil. Decl. 232. Astio inferipti Maleficii ; upon which Lacu Quintilian)
old Romans ſeem'd to have made it with the greateſt Wiſdóm poſſible : For fince, faith the Declaimer, they knew that no
Prudence or Forelight could be cautious enongh to prevent all the ſeveral Ways of Miſchief that bad Men deviſe; they
anade this Law for an univerſal Security, that what Crimes eſcap'd the others might fall under the reach of this,
(d) Ibid. Seet...
ting a'Crime.
Tays, That the
2
very

Chap. I.
3
Ihe Aktions of the subje&t.
tery,
the Civil Law.
C
,
verz juftly, taken for a Madman when he publiſh'd the Law relating to Adulterý, any. Familiarity
his Law at Athens, that whatever (a) King De- of the Bed with a Woman actually, married to a-
metrius commanded, ſhould be Law to Gods and nother is forbidden; it is evident, that thoſe Affi-
Men And Pary/atis was guilty of deteſtable Flat- itances alſo were contrary to the Law of Nature.
when ſhe perſwaded Artaxerxes to marry his But if it be reply'd, that the Definitions of parti-
own Daughter and deſpiſe the Greek Laws; adding, cular Ads in the Scriptures were intended for,
ibat Heaven bad made him the Perſian Law, and the and only belong’d to the Jewiſh Commonwealth,
proper Judge of Good and Evil. (b).
and ſo are of politive Inſtitution; yet thus much
III. The ſame Author argues however muſt be allowed, that the Civil Law
Whether the Deſini- further in defence of his Opi- ought to have ſo cautious a Regard to the Defini-
tion of Crimes is left nion, de Cive c. 6.9. 16.c. 14. tions of Acts forbidden by the Law of Nature, as
Determination of n $. 9. 10. That tho' Theft, not to defeat the Intention and End of it, the
v Murther, Adultery, and all Preſervation of a Peaceable Society and Honoura-
kinds of Injuries, are forbid- ble Correspondence among Men. And therefore if
i den by the Law of Nature; yet that what is to any Definition of the Civil Law be oppoſite to this
be calia Theft in a Subject, what Murther, what: End, it muſt be granted, that it is alſo contrary
Adultery, and what an Injury, is not to be dea to the Law of Nature. For Example ; If the ci-
termind by the Law of Nature, but by the vil Law ſhould define Adultery to me, by telling
Civil Law. For barely the taking away what me that it is when a Man invades another's Bed a-
another Man is in Poſſeſſion of, is not Theft, gainſt bis Wife's Conſent ; or of Theft, that it is,
but only to take away that which of right when a Man takes away Something from another by
belongs to another. But what of right be- Night; or of Murther, that it is when a Man
opens
longs to me and what to another, is a Que- ly aſſaults another and kills him: It is manifeft, that
ſtion of the Civil Law. And in the fame the Publick Quiet and Security of the Common-
manner, barely to Kill a Man is not Murther, wealth could not long ſublift under ſuch Methods
but to Kill him the Civil Law forbids. And ſo of Government. For we are not to imagine, that
allo, no At of Generation is Adultery, buc that the Univerſality of ſuch Definitions would ſufficient-
which the Civil Lawdeclares ſuch; and laſtly, ly ſecure the Publick Peace; that is, that tho?
Breach of Promiſe is indeed an Injury where the particular Perſons might perhaps ſometimes be
Promiſe it ſelf is lawful; but where there is no ſenſible of Inconveniences from them, yet that
Right to make an Agreement, there no Right is at other times they might not find Advantages
transferr’d, and conſequently no Injury follows; proportionable, and that the Equality of Right
but what we may make Agreements about, and which ſuch Laws would ſettle among the Subjects,
what we may not, depends upon the Civil Law. would take off all occaſion of Complaint: For
To which I anſwer, that all that believe the tho' perhaps a Man might defire that ſome parti-
Scriptures, as to ſeveral ſorts of Crimes, are fuffi- cular things mighe be lawful only for himſelf; yet
ciently aſſured, both from the Laws of the Jews if others would
have as large Immunities granted
which were of Divine Inſtitution, and from 0 them in Oppoſition to him, he would ſoon be
ther Parts of the Holy Books, how God the Au. willing to throw up his Privilege. And ſhould
thor of the Law of Nature would have them de- the Civil Laws make any ſuch Eſtabliſhments, it
find; So that tho' the Civil Government ſhould muſt be impoſſible that the Peace and Order,
de facto, make ſome particular Acts not Criminal, which Nature intended, ſhould be preſerv'd. And
yet they would nevertheleſs be contrary to the if the Equality of fuch Laws alone were Reaſon
Law of God. Eſpecially ſince there can be no enough to introduce them, why muſt we any
įufficient Reaſon given, why God in his Laws longer be confin’d by any Laws at all, ſince by
ſhould give ſuch Definitions of ſuch Actions, un. taking them wholly away, (2) we ſhould make
leſs they ought equally to be obſerv’d in all Na- the greateſt Equality; which it is impoſſible any
tions. The Spartans allow'd the Frigid and Im- Man in his Wits ſhould think of doing? In ſome
potent to ſupply their Deficiency in the Conju- Accounts of the Tartars (c) we are told, that they
gal Duties, by the Affiſtance of the Young and are utter Strangers to all Juſtice; and that when
Vigorous (í): And this was done at Sparta, with any of them wants any thing, he may take it
out any bad Imputation on the Husband, the without fear of Puniſhment whereever he finds it:
Wife, or the Gallant, when they had no Hopes (3) And when the Party robb’d, complains to the
of Children otherwiſe : Becauſe the Civil Laws Magiſtrate of the Injury done him, the Other
of that Stare did not comprehend that Method doth not deny the Fac ; but pleads only that he
of anſwering the Husband's Part at his own Re- wanted what he took; and then 'tis uſual for the
queft, under the Name of Adultery. And yet, Magiſtrate to give Sentence, That the Party who
fince it is evident from the Laws of God, that by complains, may if he pleaſes, right himſelf in

(a) Plut. Demetrius. p. goo, 901.
(6) Plut. Artaxerxes. p. 1022. B.
(1) See above in B. 6. c. 1. V. 15. It was ſometimes common among the Romans to lend their Wives to Perſons comely and
well-born. See Plutarch in Numa. p. 76. D. Er in Catone, p. 771. A.
(2) 'Tis neceſſary to obſerve here, that tho' ſome Nations, that were not much enlighten'd, have permitted and autho.
rit d in ſome Meaſure, Things manifeſtly contrary to the Law of Nature, it was not through Ignorance of this Oppoſi-
tion; much leſs ſtill out of a Conceit that the Sovereign had a Power to determine the Nature of Crimes according to his
own Fancy : But moſt commonly on account of ſome Circumſtances which made 'em judge it proper to let ſome Crimes
go unpuniſh’d, to prevent greater Inconveniences
. Mr. Barbeyrac's ift Note upon this seation, pag: 353. Tom. 11.
(c) Sigiſmund. Bato Herberſtein de Rebus Mofcov.
(3) This Permiſſion takes place likewiſe in Cholchis ; See Busbequius's 3d Ep. p. 135,
the

A 2
2
4
Of the Power to dire&t
Book VIII.

the ſame manner upon others. There are Others way another's Life without making War upon
indeed (a) who give a more favourable Account; him, or in his own defence. Nor is it difficult to
telling us only that the Tartars are very free in underſtand barely by the Law of Nature, without
communicating what they have to Strangers; but any, Alliſtance from the Civil, that Adultery is the
that they will expect a Return of the ſame kind, Violation of Conjugal Faith: But that the Civil Laws
or elſe will take it by force. A Tartar's Definition may fuperadd certain Obligations to the Matrimo-
therefore of Theft would be, When ſomething is nial Contraet
, for want of which, the Marriage
taken away without the Conſent of the Proprie- may be look'd upon to be deprived of cera
cor, which the other had need of ; a Definition e tain Effeéts, was never deny'd.
vidently imperfe&, and which manifeftlý ſubverts' may be neceſſary to diſtinguiſh between what is
the Law of Nature relating to Theft
. 'Tis certain, commanded by the Civil Law; and what is only
none but the worſt of Men could wiſh for ſuch a permitted, (1) and not forbidden by the Sanction
Law, fince it might often happen, that a Man of any Penalty to be inflicted by Civil Juſtice
. For
might have the lll Fortune to be robb’d of That á Probibition of the Law of Nature, and a Permiſſion
which of all things he was moſt unwilling to loſe, of the Civil aboue the ſame thing, are not oppo-
and which he either might never find another ſed to one another; for a Permisſion of the Civil
Man poſſeſs’d of, or elſe to ſecured, that he muſt Law doth not make any Act not to be contrary
deſpair of being ever able to take it from him. to the Law of Nature, that really is ſo, or excuſe
But beſides, the Suppofition Mr. Hobbs goes upon the Man that is guilty of it from Sin againſt God:
is falſe; that what belongs of Right to me, and But it only declares, that the Civil Power hath
what to another Man, is a Queſtion of the Civil laid no reſtraint upon the Perſon that will com
Law; and that out of Civil Government there is mit ſuch Aas; that if a Man doth commit them,
no Propriety: For tho' Men that live under it have he is not to be puniſhed on that account; and that
a more ſecure Enjoyment of their Proprieties, than Human Juſtice alloweth ſuch Aas to have the ſame
they that live out of it ; ſince the firſt are defen- Effe&ts with other Ads, that are agreeable to the
ded in their Rights and Fortunes by the united Law of Nature. And therefore the Laws of Tar-
Strength of a Number of Men, beſides the Alli- tary do not, ('tis preſum'd,) command Men to
ſtance of the Magiſtrate ; and the latter can ſup- ſteal, nor I ſuppoſe, forbid the Proprietors to de-
port themſelves only by their own ſingle Power; fend their own: Only the Perſon that robs is not
yer notwithſtanding, there can be no Grounds of liable to be puniſh’d, nor obliged to make Retti-
Proof to aſſert that there was no Propriety before tution; ſo that according to the common Juſtice
the Inſtitution of Civil Government. For all so- of that Nation, Robbery and Stealing are look'd
vereign Princes and Commonwealths are now upon to be lawful ways of Acquiſition. And the
actually in a State of Nature, and their Proprieties fame may be ſaid for the Children at Lacedæmon
are not determin’d by any common Law or Judge, for we need not tranſlate that Sentence of Plutarch
but ſolely by Compact, and the natural means of (b) XSTTHV veyóuiso moj maidos, the Children were com-
Acquiſition; and yet I believe no Body ever ima.
I believe no Body ever ima. manded by the Law to ſteal; ſince the senſe of it
gin d chat Princes might ravage, or ſteal from one may as well be. That they were permitted by the Law.
another, without incurring the Guilt of Rapine or Xenophon indeed (c) ſays, That it was ſo far from
Theft. So that admitting, that a Man cannot make being thought ſcandalous for the Children to ſteal at
any Compact that will be valid about what is for- Sparta, that they were under a neceſſity of doing it:
bidden by the Civil Law, yet certainly it cannot But this was ſpoken only in a way of Railery,
be denied, but that they who live in a Liberty of and to mortify Chirofophus the Lacedæmonian. Nei-
Nature, may make certain Compacts, which it ther was that Practice ſo inexcuſably bad as ſome
will be an Injury to violate. And therefore it is believ'd it, or to deſerve ſo ſevere an Invective as
falſe to ſay we muſt be obliged entirely to the Ci- Socrates gave it (d). For the Truth of the matter
vil Law, to know what an Injury is. Beſides, was, that the Liberty the Boys were allowed in
neither will it, I think, be denied, that a Man is was only that of robbing Orchards, and ſtealing
guilty of Homicide, cho' he be only under the Go. Vi&uals; and then too if they were taken, they
vernment of the Law of Nature, when he takes a- pay'd ſeverely enough for it (é). We are told coo
OM

(a) Haytho de Tartaris. c. 48.
(1) “ There are certain Evils in a Common-wealth, that are ſuffer'd to remain in it, becauſe they hinder, or prevent,
greater ones. There are other Evils, which are only ſo by their Eſtabliſhment; and which being in their Original, an
85 Åbuſe, or ill Cuſtom, proves leſs pernicious in their Conſequences, than a Law or Cuſtom which is more juft and reaſo,
“nable. There is a fort of Evils that might be corrected by a Change or Innovation, which is a very dangerous Evil
,
" There are others, which are hidden and funk like Ordure in a Common-Sewer, I mean buried beneath Shame, Secrecy,
" and Obfcurity, ſo that one cannot ſtir or rake into 'em, without their caſting forth Poifon and Infamy. The wiſeft fome-
“ times doubt whether 'tis better
to underſtand thefe Evils, than to be ignorant of 'em. Sometimes a great Evil is tole;
rated in a State, but it is ſuch as prevents a Million of little Evils, or înconveniencies, which were all inevitable and
* irrecoverable. There are Evils under which every private Man Groans, and which however become a publick Good:
* tho' the publick is nothing but a Combination of private Men. There are alſo perfonal Evils
, which concur
towards
" the Good and Advantage of each Family. There are ſome which afflict, ruin, and diſhonour Families ; but they
“ tend to the Good and Conſervation of the Machine of State and Government. La Bruyere, Cara&teres ou Moeurs
de ce
faecle, Chap. du Souverain & de la Republique pag. 316, 317. See alſo a Fragment of Philemon's
, related by Athenaus
is ſometimes oblig'd to tolerate Curteſans. See allo the differtation of Velthugſen, entituled, Diſquiſitio de tolerando male
Lib xiii. pag. 39; and a paſſage of St. Auguftins, cited by
Mr. Le Clerc, pag. 293. which ſhows the
Reaſon why a State
in Republica.
(6) Plut. Apophth. Lacon. p. 175. F.
(c) Xenop. Trei ayolas. I. 4
(d) Ifocr. Panathen.
ce) Vid. Plut. Lycurgus
. Xenophon de Repúb. Lacedæ:non Busbequius gives a much worfe Account of the Liberties
allow'd among the Mengrelians, Ep. 3. p. m. 155. Vid. Lib. II. 6.5.1. 1. D. de Aleator.
of

2
Chap. I.
5
The A&tions of the Subje&t.,
of Dionyſius the Tyrant, That tho' he puniſhed o State of Nature, to decide Diſputes about matters
ther Crimes very ſeverely, yet he would often of Fact, by intervention of Witnelles, as Mr. Hobbes
pardon them that itole Cloaths, in hopes that by admits himſelf, de Cive c. 3. 9:23. we may hence
this Mechod be might reftrain the Syracufians from find the uſe and neceſſity of the ninth Command-
the Riot and Drunkenneſs they were given to. ment. In general, the Precepts of the Decalogue, it
Neither do I think, that the Laws of Sparta be. is evident, may be reduced to the Law of Nature;
fore-mention'd, laid any Command either on the but when they are conſider'd as written in two
Husband, or Gallant ; that matter ſeems to have Tables, and promulg'd to che Iſraelites by Moſes,
been no more, than that if they two agreed, the they may properly enough be called Civil Laws,
Law did not interpoſe ; but look'd upon the or rather the general Heads of the Fewiſh Civil Law,
Children ſo begotten to be Legitimate, and ad. which are afterwards divided into particular Laws,
mitted them Heirs to the Eftate of the Family. So with penal Sanctions added to them (a). Upon
alſo, where Duelling is permitted, the Blood which which Account, Grotius faith (b), the Decalogue
is thed in them may be excuſed from the Puniſh- does not in expreſs Words comprehend every
ment of Murcher at the Bar of Civil Juſtice, bnt Crime, not even all thoſe which are puniſhable
will not be ſo acquitted hereafter at the Divine by the Civil Law, but only ſuch in every kind as
Tribunal. That the Civil Power may with Juſtice are moſt Heinous and Malignant. For there is
permit things of ſuch a nature, and that not by no mention made of Wounding, but only of Mur-
bare Silence and Connivance only, but by ex ther ; nor of any other ſort of Gain made by ano-
prels mention made in the Publick Laws, is what ther's loſs, but that of Theft ; nor of any other Fal-
I dare not affirm ; by ſuch a Method, the Civil fity, but Falſe Witneſs.
Power would ſeem almoſt to invite the Subjects V. It may be proper in the next
to tranſgreſs the Laws of Nature : Poſſibly it may place to conſider, that the ſame
Whether
be excuſable to diſſemble things, where the Author in his Book de Cive, c. 12. thing Juſt ante-
Times or the Humour and Diſpoſitions of the d. 1. among thoſe feditious Doct. cedently to the
People will not endure a Reformation by direct rines he ſuppoſes to be the internal Civil Laws.
Remedies. And ſo there was good Reaſon why the Diſeaſes, and Cauſes of the Dif-
Roman Law (1) callid that, Actio rerum amotarum, folution of a Commonwealth, ſets down this for
when there was indeed a real Theft committed. the Firft, . That every private Man is Judge of
IV. Our Author alſo, de Cive • Good and Evil. For faith he, the Meaſure of
The Precepts of
C. 14 S. 9. "Affirms, that the Good and Evil, Juſt, and Unjuft, is the Civil
the Decalogue
" Precepts of the Decalogue are • Law; and whatever the Legiſlator commands
Laws.
merely Civil, and not Natural muſt be look'd upon as Juſt and Good, whatever
Laws, and that they are to be - he forbids as Unjuft and Evil ? and therefore
explain'd after this manner. Tuu Mall not deny it is a very ill Maxim, that we are to obey our
your Parents the Honour the Civil Law alloweth them. Sovereign only when his Commands are juſt.
You fhall not kill any Man, the Law forbids you to There was nothing Juſt or Unjuſt before Ci.
kill. You ſhall avoid every unclean Act which the ' vil Government ; their Nature relates to the
Laris forbids. You ſhall not take away what belongs ' Commands of the Sovereign: and every A&i-
to another Man againſt bis Conſent. You ſhall not on is in its own Nature indifferent; that it be-
fruſtrate the end of Law and Judgment, by bearing cometh Juft or Unjuft, is owing to the Will of the
falſe Witneſs. But it will here be eaſily obſerv'd, Sovereign. And therefore lawful Princes make
that he depends upon an utterly falſe Hypotheſis, thoſe things juſt, which they command, by
and ſuppoſech what will never be allowed, that commanding them, and thoſe things which
there's no Propriety, no Marriage, and that every they forbid, unjuſt, by forbidding them. But
thing is lawful for every Man before the Inſtitution ' while private Men affume to themſelves the
of Civil Governments. It is certain, the Precepts Cognizance of Good and Evil, they affect to
he ſpeaks of, are obligatory, and bind even thoſe be like the Sovereign, which it is impoſſible
Perfons to one another, who do not live under ſhould be conſiſtent with the Quiet and Peace
any common Government, but only in a State of ' of any Common-wealth. In Anſwer to him,
Natural Law. For certainly Men could, and It may be readily allow'd, that Sovereign Princes
a&ually did divide things between one another by have indeed Power by annexing or taking away
Compact even in ſuch a State: and therefore the Penal Sanction, to give or take from the Law's
would have finn'd as much againſt the Eighth of Nature, the Force of Civil Laws in Human
Commandment, if they had either openly or fe- Courts of Juſtice; as alſo to make many things
cretly_robb’d one another, as they do that rob which do not belong to the Law of Nature, Fujt,
their Fellow Subjects in Civil Governments. It by commanding, and Unjuſt, by forbidding them.
may alſo be perhaps denied, that a Mant, in a Bud to ſay that before Civil Governments were e-
State of Nature, is guilty of Adultery, when he rected, there was nothing Juſt or Unjuft, either
violates his Neighbours Bed : But the anſwer defin'd by Nature, or obliging Mens Conſciences, is
may be ſeen, Gen. 20. C. V. 3: 26. C. V. 10. And as falſe, as to affert, that Truth it ſelf hath only
fürcher, ſince Arbitrators muſt be often made in a a precarious Arbitrary Dependance upon the

whether Civil
5
OV

(1) Țwas when an Husband or a Wife, upon their ſeparation, had kept back ſomething that ought to be reſtor'd to the
Party it belong'd to, after the Divorce ; but becauſe of the ſtriet Union that was between 'em, by their Marriage, they
foftend the Notion of Theft, which he is guilty of in reality, that does not teftore whatever he is not the lawful por
feſſor of, and only barely call'd it, the detaining anothers Goods. Vid. digeft
. Lib. 25. Tit. 2. de Astione rerum amotarum.
and Mr. Noodt, in his Julius Paulus.
(a) Vid. Philon. Judæum, de Decalogo,
(6) Grot. ad Math. 5.27,
Plea.
6
Of the Porder to dire&t
Book VIII

ود
Cold
Pleaſure of Men, and is not founded in the Na. fary Food, as make ſuch Things as theſe, Fuji
ture of things; or that Sovereign Princes may faſh. and Good. And therefore Polybius was equally in
ion and diſpoſe the nature of things as they pleaſe, the wrong, when he feems to derive the Origi-
or that the ſame Truth may be different from it nal of Jultice and Injuſtice from Civil Government
ſelf. And indeed the ching it, felf fufficiently (a). In another Senſe indeed, what Mr. Hobbs
confutes Hobbs. For is it at all probable, that ſaith, may be ſafely enough admitted, that is
thoſe Maſters of Families, who at firſt united, and ſuppoſing that by Good and Evil, we undertand
formd chemſelves into Common-wealths, ſhould, no more than the advantage, or diſadvantage of the
all the time they liv'd ſeperately behave them- Coinmon-wealth. For then it will really appear
ſelves only like ſo many wild Beaſts;
break all man to be a ſeditious Doctrine, That every private Perſon
ner of Compacts they ever made; rob one ano is Judge of Good and Evil, meaning by it, of whaç
ther of Life
and Fortune at pleaſure, upon every is for the Advantage or Diſadvantage of the Com-
pretence of a Right, and that all their Aations mon-wealth: That is, that every Private Man is
were to be thought purelv indifferent? Upon the a competent Judge whether thoſe are proper
ſame grounds, Sovereign Princes now, who are Means, which the Prince commands ſhall be made
till with Reſpect to one another in a State of uſe of in promoting the publick good; and that in
Nature, ſhould not be thought Guilty of Inju- Conſequence, every Man's Obligation to Obedi-
Nice, when they break their Compacts, and in ence may depend upon that Judgment. For it
They are not ſubject to Civil Laws. But on the his Souldiers,) ſhould be ignorant of some things as well
contrary, it is not to be conceiv'd, that Civil as know others. For if every one ſhculd have the Liber-
Governments could ever have been eſtabliſh d, or ty to diſpute what he was commanded, Obedience and
after their Eſtabliſhment, preſery’d; if there had Authority would ſoon ſink together (b). It was Cato's
not been ſomething Juſt or Unjuft antecedent to Saying, that the Tenant ought not to think bimſelf wiſer
their Exiſtence. For 'tis certain, Compacts muſt than his Landlord; and of Plato, thac no Man fhould
have been made uſe of at the firſt forming of pretend to be wiſer than the Laws (1).
Common-wealths. But how could Men perſwade VI. Our next Confideration ſhall
themſelves, that ſuch Compacts could be of any be, whether a Subject may be guiltyful Command
Force, except they knew before, that it was Juſt of Sin, in executing the Commands of a Superior
to obſerve them, and Unjuſt to do otherwiſe. of his Prince ; ſuppoling he pretends, may at any
And if it be no Juſtice to ſtand to Compacts ante. that he barely undertook the Perforé time be obey'd
cedently to the Definition of the Civil Laws, there mance of the A&tion, and left the
can be no reaſon why Subje&ts may not, when Deſign, Contrivance, and the Neceſſity of Account, en-
they pleaſe, renounce their Obedience, diſſolve tirely upon him who gave the Command? For
Civil Government, and ſo utterly aboliſh all the there is a Difference between the Laws and the
Diſtinction between Juſt and Unjuft. For it is Commands of Princes: The Laws are General Pre-
extravagant to imagine, that ſuch Numbers of cepts, which affect every Subject; the Commands
Men, as a Common-wealth conſiſts of, will al. are only occaſionally impoſed. upon particular
ways be kept in Subjection, by no other Reſtraints; Perſons; but have the ſame effect the Laws have
but Fear and Power. Nor therefore can I be in obliging thoſe they are directed to. In this
lieve there was ever any Prince heard of ſo far Caſe it is the known Opinion, that a Man may
depriv'd of Reaſon, as to have commanded what ſometimes fin by obeying the commands of the
the General Laws of Nature forbad, or forbid Civil Sovereign, and therefore that the Subje&t may
what They commanded; for Inſtance, that it and ought to examine luch Commands, by his own
ſhould be unlawful to perform Truſt or Promiſe, Conſcience rightly inform'd (1). For certainly
or to give any Man his due ; that it ſhould be a it ought to be ſuppoſed that Good Men promiſe
Crime to live with any Reſpect to Reafon or 7uſtice, Obedience, upon certain conditions only; that,
ibat
ezery Man might bave full Liberty to do all the ſince they are ſure to give an Account of their A.
Miſchief he could, and the like. But now, why ctions, at the Divine Tribunal, and ſince all the
might not ſuch Laws have been made, if there Governments of this world are under an infinite-
had been nothing Juſt or Unjuſt, antecedent to ly great overruling Power; they are always ready
the Dererminations of the Civil Laws ? 'Tis cer to obey the Commands of their Sovereign, except
tain the Command of the Civil Power, may as when they contradi& or interfere with the Law of
well make Poiſon it ſelf włoſome, and neceſ. Nature, or the manifeſt Laws of God. For wich-
ر
Whether a Sin
without Sin.
them
(a) Polyb. 1. 6. where he is tranſcrib'd with very little Judgment, by Machiavel Diſc. in Liv. 1. 1. c. 2. Vid. R. Cumber-
land, de Leg. Nat. 1. 5. c. 5.
(6) Tam nefcire quedam milites, quam ſcire oportet, Tacit. Hif. L. 1. c. 83. H. L. 2.c. 39. It is one part of the Chara-
Eter of a good Souldier , that he had rather put his Generals Commands in Execution, than make any Debates upon
Cato de Repub. c. 5. And so far Terentius was in the right. Tacit. Ann. 6. c.8. We are not to examine whom you prefer,
or npon what account Heaven hath given you the ſupream Diſpoſal of things, and it is our Glory to obey.
(c) Plat. Polit. p. 555. D. Ed. Wech. Arift. Rhetor. 1. 1. c. 15. To endeavour to be wiſer than the Laws, is what the
belt Laws take care to forbid That is to be underſtood in Reference to the written and perpetual Laws, eſtabliſh'd by
the conſent of the People, whereas in this place the matter in Queſtion is, chiefly concerning particular Orders given
by a Prince, according to the preſent Circumſtances, and poſture of Affairs.
(1) An ancient Greek Poet in one of his Tragedies, makes Antigone who had buried her Brother Palynices, contrary to
the Prohibition of Creon King of Thebes, anſwer that Prince, when he demanded of her, how ſhe durft act contrary to
his Laws. “I could not think, that the Edi&s of a Mortal Man, as you are, could be of ſuch Force, as to oblige me
once to violate the fix d unwritten Laws of Heaven. For they are not of 'Yeſterday, or to Day, but fublift Perpetu-
" ally, and for ever; and no one knows from whence they came. I ought not then, for Fear of
" them, expoſe my ſelf to the Puniſhment of the Gods. Sophocles Antigone. v 453. Egoc. Ed. H Stepb.

86
any Man, by violating
out
Chap. 1.
7
.
The Actions of the Subje&t.

are
ditious a .
; himn who was the in the Exe-
but Diſpute, ſhould a Prince give out any Com- the Commands of Superiors are always attended
mand concrary to the Civil Laws, he may be o with the Preſumption of being juſt, and are often
bey'd without Sin. But on the other Hand, built upon Realons, of which private Perſons
And therefore
Doctrine. That Subjects guilty of what the ſame Author ſays a little after in the
Sin, when they obey thoſe Commands of their fame Book, may deſerve to be conſider'd, “That
Sovereign, which they think unjuft. And it that is my own Sin, which when I comimit, I
may indeed bena Wewe bubre dans les
conseilly think my, own; but that which think is amo-
ces of Private Subjects, to believe, that upon a out deriving any Guilt upon my ſelf. For if I
ny Scruple or Doubt, concerning the Equity of am commanded to commit that which muſt be
what is Commanded, Obedience may lawfully be the Sin of him that commanded it, ſo he be my
refuſed. For ſhould this Doctrine be admiteed, it ' lawful Governor, I do not ſin if I obey him.
muſt often neceſſarily happen, that a Man muſt So an Ambaſſador is ſuppoſed to speak the Sentiments of
obeyech,
he muft a& contrary to his compacience this mater
, and whatever bears an, ill Senſe in them,
not to be imputed to him that ſpeaks, but to him that
and contrary to his Allegiance, if he doth not. For gave him his inſtructions. Since Juch Miniſters are un-
I think it is on all Hands allowed, that in Caſes der a Neceſſity of Conforming to the Directions of ther's
where the Conſcience is doubtful, the beſt reſo- that ſend them (a). I will not deny but a Man may
lution a Man can come to, is to take that Side engage barely (1) for the Execution of an Action
where there will be leaſt danger of Sin. But now commanded by his Prince, the Guilt of which
the danger of Sin is in a much nearer View, when ſhall be imputed ſolely to him who commanded it,
upon an uncertain Doubt, a Man quits his Alle and not to Inſtrument
giance which he hath exprefly ſworn to keep; ſince cution of it. But then it will be neceſſary for him
6
(a) Procop. Hift. Goth. 1. 1. p. 175. Ed. Auguft. Vindel. Senec. Tro. v. 868, 869. The Guilt of a Crime forc'd
upon
Man, recoils back upon the Authors of it. Vid. Lib. 3. t. 2. 1. D. de his qui infam. not. Quique fuo nomine non juſſu
ejus, Egoc. M. Senec. I. 4. Contro. 27. That Woman is not immodeft that hath been corrupted in her Chaſtity by, a Ty-
rant, neither is he guilty of Sacrilegę, that takes the Offerings of the Gods, and brings them to the Tyrant; or that ſets
* up his
Statue among the Images of the Deities.
(1) This Diſtination does not remove the Difficulty. For in what manner ſoever the Subject a&ts, whether in his own
Name, or in that of his Prince, his will always conſents in ſome fort, to the Unjuft and Criminal A&ion, which he
executes by the Order of his Sovereign. So that we muſt either always impute theſe ſort of Actions partly to him, or
elfe never any of 'em. And it would ſignifie nothing to ſay, that in the Caſe our Author is ſpeaking of, the Action is
of the Number of thoſe that are call’d Mixt; or to alledge in their defence, the Laws and Privileges of Néceſſity. Vid.
Remark. Book 1. Chap. 5. Sect. 9. Note 3, and Book 11. Chap. 6. Sect. 2. note 5. The fureft way then is to maintain, in
general, and without any Reſtriction; that the ſeverelt Menaces in the World, ſhould never induce us to A&, even by
the Order, and in the Name of a Superior, the leaſt thing that manifeftly appears to us to be Unjuft, or Criminal; and
that tho' we may be very excuſable before the Human Tribunal, for having been conquer'd by ſo ſevere a Tryal, we
ſhall not be entirely fo, before the Divine One. There is but one ſingle Caſe, where we may conſcientiouſly obey the Orders
of a Prince, which plainly appear to be Unjuft ; and that is, when the Perſon concern'd in the unlawful Aētion which
the Prince commands us to do, difpenfes himſelf with our expoſing our felves in his Favour, to the grievous Conſequen-
ces of a Refuſal : provided the Buſineſs in hand is a Thing, as to which 'tis in his power to conſent to the Miſchief that
the Sovereign commands to be done him, or the Violation of any Right, which it is lawful for him to renounce. For
if any one ſhould give me leave, for example, to kill him, I could not however innocently make my ſelf the Miniſter
of my Princes Anger ; becauſe no Man is Maſter of his own Life. Yet, nevertheleſs, our Author, pretends (in his Apo-
logy Sect. 20.) that if we do not admit of the Opinion which he here maintains, we ſhall neceſſarily be forc'd to ac-
knowledge, that all Soldiers, Executioners, and other inferiour Officers of a Court, ought to underſtand Politicks, and
'the Civil Law; and that they may excuſe themſelves from their Duty of Obedience, upon pretence that they are not ſuf-
ficiently convinced of the Juſtice of what they are commanded : which would reduce the Authority of a Prince to nothing,
and tender 'him incapable of exerciſing the functions of Government. But that only proves, that Subjects may not,
nor ought not, always to examine all the Orders of their Sovereign, to know if they are Juft or not. If that were to be
done, I muſt own, there would ſcarce be one Soldier in the World, that innocently follow'd his Trade. How few are
there that know the true Reaſons of the Prince, for whom they fight? And fuppoſe they did know, how few are capa-
*ble of judging of 'em? Thus generally ſpeaking, the greateſt Part of thoſe whom the Sovereign lifts in his Dominions,
may not excuſe themſelves on account of their Doubts of the Juſtice of the War, whither they are order'd to march
becauſe that demands an Examination much above their Capacity ; whereas they have no need of any great Knowledge
or Penetration, to be clearly convinc'd of the Obligation they lic under, of obeying their Prince. But if a Command-
er that is skill'd in Politicks, and throughly acquainted with the Affairs and Intereſt
of the State, plainly perceives that
his Prince is engag‘d in an unjuſt, or an unneceſſary War; ought he not to Sacrifice every thing, nay even his own Life,
rather than ſerve in ſuch a War as that? There is not always an occaſion of any great Penetration, or the Admittance
into the Cabinet-Council, to diſcover the Injuſtice of the Wars that ambitious Princes 'undertake. The Manifeſto's they
publiſh themſelves,
compar'd a little attentively
with thoſe of their
Enemies, are often ſufficient to thew to any one that
has but a moderate Thare of good Senſe and Honeſty, the Weakneſs of their Reaſons, and the Iniquity of their Cauſe. In
ſuch a Caſe as that, we are not only exempted from our Duty of Obedience, but we ought alſo to forbear, and refuſe
doing it upon any Terms whatſoever. The ſame thing muſt be ſaid, of a Parliament whom a Prince commands to regiſter
an Edit which is manifeſtly Unjult ; of a Miniſter of State whom a Prince will oblige to diſpatch or put in execution
an Order full of Iniquity or Tyranny ; of an Ambaſſador to whom his Maſter gives Inſtructions, attended with an
apparent Injuſtice ; of an Officer, whom his King commands to kill a Man in ſecret, whoſe Innocence is as clear as the
Day, &c. And they are not only Perſons of a diſtinguiſh'd Condition, or of Parts and Underſtanding above the com-
mon Level of Mankind, that may and ought to excuſe themſelves from obeying, by the above-mention' Reaſon; but
Sometimes, tho’ very rarely, the moft Simple and ignorant find themſelves alfo under an indiſpenſable Obligation to
deny their Sovereign the Miniſtry of their Arms, at the Hazard even of their own Lives. Such was the Cafe of the Sol-
diets that were ſent by King Thaziah to apprehend Elijah, and who were puniſhed for
it by the Fire which came down
from Heaven upon them, at the Prayer of that Prophet, and conſum d'them all. Kings 11. 9. 98. A Tip-Staff, or
Serjeant at Arms indeed is not, generally ſpeaking, bound to enquire, whether the Magiftrate that orders him to take
the Body of ſuch an one into Cuſtody, has any juſt reaſon or no, for commanding him to execute that Order; that is nor
his Buſineſs, and he ought to have a favourable Opinion of thoſe that adminiſter Juſtice, as long as there are no evident
Proofs of the Contrary. But fuppofing they had in reality ſuch Proofs, 1 maintain they ought not, in that Cafe to obey.
8
Book VIII.
Of the Power to direct

to take with him chele Cautions. Firſt, that ' in it. (Miniſterium etiam Crimen elle.)For the
he be commanded barely to execute the Action, Perſons he pleaded againſt
, had not been barely
that is, only to apply the Strength of his Body the inftruments of another Man's Crime, but had
to the Performance of the Axion, and nei- charg'a Innocent Perſons with Falſe Crimes, that
ther give Occaſion to it or furniſh Pretext, or the Proconſul might take occaſion to ſeize on their
make uſe of any Excuſe for it, but undertake it Fortunes and Eitates; And their informing againſt,
as an Adion that belong'd wholly to another Per- and wrongfully accuſing them, was entirely their
fon, and which he will not take upon himſelf
. own Ad; the Impeachments they made, were all
Secondlı, That he ſhould ſhow his unwillingneſs in their own Names, and not in the Proconſul's
,
to be employ'd, in ſuch a Service, and deſire nor were they pretended to have been made ac his
earneſtly to be excuſed from it (a). And Laſtly, Command; neither were they forced to be Dela-
That upon declining the Action, he be threacn'd tors, by any immediate fear of Death, if they had
with preſent Danger of Life, or ſome other great refuſed to be ſo. They pleaded indeed, that they
Evil, which he is not obliged either in Juſtice or were Provincial Subje&ts, and therefore were obli-
Charity, to ſuffer for another Man, and which ged by Fear to be abſolutely at the Command of
the Perſon that commands him hath Power to in the Proconful. But what look'd moſt probable was,
flict ic; and eſpecially if he ſees that tho' he re that the Expectation of the Gain they hoped to
fuſeth his Affiftance in the Action, it will be ex- make, was their greateſt Encouragement; tho
ecuted by other Hands. It is undoubtedly true in- perhaps it might be true too, that the Preconful
deed, that no Corrmands of Men,contrary to the Law had given them reaſon to be afraid, if they refu-
of God,can have any binding Force, that is,lay any ſed to obey him; yet it is not likely he ſhould
intrinlick Neceflicy of Obedience on the Conſci- threaten them with Death, and that there was
ence and chat therefore it can be noCrime to refuſe no other poſlible Method left for them to eſcape
to obey them. But there is a wide Difference, be- it (b). And in this Caſe, the Deſires, or Intreaties
cween being bound in Conſcience to do a thing, of Superiors muſt not be ſuppoſed to have the ſame
and being able to do a thing without Sin, to avoid Force in them as Neceſſity or their commands (c),
ſome very great Evil. For there are ſeveral things though in others it may ſometimes be true, that
which we are under no manner of Intrinſick Obli- the Intreaties of Tyrants are mixt with a ſort of Neceſſity.
gation to do; which yet upon preſling Neceſſity Neither is the Example of Doeg, 1 Sam. 22. v. 18,
We may lawfully undertake. And in this caſe the any Objection againſt what has been ſaid. For
Queſtion is, noc whether We are bound to do ſuch it was exprefly added, that a Man ought to defire
à thing, but whether we can do ſuch a thing with earneſtly to be excuſed, as Paul's Guards very ho.
out any Guilt of our own, when we ſee we muſt nourably did: (And thus the Midwives were com-
otherwiſe loſe our Lives to no purpoſe. Neither mended for defeating the barbarous Command of
is any thing I have here faid, in the leaſt weak- Pharaoh, tho' it were with an Untruth, Exod. 1.)
end by what Pliny faith, Ep.9. 1. 3: Where he But Doeg on the contrary, ſhow'd himſelf ready
• tells his Friend of a very ill Cauſe he had been and willing to put the King's Command in Execu-
engaged againſt, that he had prov'd before che tion upon the Prieſts, tho' we do not find that any
Senate, that it was Criminal even to have affifted Threats were added to it, when he had himſelf
ز

And this Suppoſition contains nothing that is impo lible. It may happen, for example, (and every one will eaſily
conceive it) than an Officer of Juſtice, may fully know the Innocence of a perſon fallly accus'd, of either Murther, or
Robbery, who is infallibly ruin'd, if ever he ſhould once be taken. In the late Perſecutions in France, could not they
plainly ſee, that were fent against thoſe poor Creatures whoſe only viſible Crime was Serving God according to the
Dictates of their conſcience, the Tyrannical Injuſtice, and barbarous Cruelty of the Orders they receiv'd, and ought
they not to have ſeen it? If in thoſe caſes, they can reconcile their Intereſt with their Conſcience, by pretending to ſearch
after thufe unfortunate Creatures, whom they will not find, and at the ſame time, contriving under hand, the Means
for 'em to make their Eſcape ; Well and Good. But I cannot perſuade my ſelf, that Men can punctually execute fuch
Orders, without making themſelves Accomplices of the Iniquity of him that gives 'em. The ſame muſt be ſaid of Execu-
tioners. Upon which conſult Grotius Lib. ii. cap. xxvi. Sect. 4. Num.9. as alfo Mr. Sidney's diſcourſe upon Government,
Chap. III. Sect. xx. and the Apology of Socrates by Xenophon. In which there are ſeveral fine Paſſages which ſhew that
we ought never to obey dur Superiors to the Prejudice of our Duty ; but very far from it, and unleſs we are in an entire In-
capacity to reſiſt'em, we ought to exert ourſelves to the utmoſt of our Power, and endea your to hinder thoſe that would oppreſs
the Innocent, from doing them any Miſchief. Sauls Guard's refuſed to put to the Sword a great Number of Prieſts
,
whom that Prince facrificed to his Anger againſt David, 1 Sam. XXII. 19. &c. but as Mr. Le Clerc has obſerv'd, they
would have been ſtill more commendable, if they had interceded with the King in behalf of thoſe innocent Perſons, by
repreſenting to him in the beſt manner they could, that he had commanded a Thing that was forbidden by the Laws,
both Divine and Human; and if, after all their Prayers and Repreſentations had prov'd ineffe&tual, they had ſeiz'd upon
the King as a Mad-Man, and ſecur'd him till the Prieſts had made their eſcape. Since the firſt Edition of this Note, one
Mr. Adam Rechenberg, a Profeffor at Leipfick, has publiſh'd a Differtation, Entituled, de Miniſterio, quid crimen eft
, Dif;
quifitio politica. In which the fame Opinion that is here advanced, iš maintain’d, and confirm'a by ſeveral Examples and
Authorities. There is alſo a Diſſertation, de injußlo Pontii Pilati judicio, written by Mr. Thomaſius, againſt a Civilian
nainid Stellerus, who was willing to juſtifie Pilate, in a Treatiſe call'd Pilatus defenfus, upon this Principle, among the
of the Sentence of the Jews. This Diſſertation of Stellerus was Printed in 1674. but it was ſoon fuppreſs’d by publick
reft, that the Governour of Fudea, in condemning IESUS CHRIST to Death, had only a&ted as a bare Executar
Authority; M. Barbeyrac's 4th Note upon this Se&ion, pag. 360, 361. Tom. 11.
(a) We have a remarkable Inftance of this Nature in Olearius's Travels into Perf
. 1. 5.c. 32,
b) Vid. Tacit. Ann. L. 13. c. 43. Where Sullius pleads that he had done nothing out of
all was entirely out of Obedience to his Prince. Afterwards he pretended the Commands of Meſalina, and wav'd his
any Deſign of his own, but that
Defence. For why was there no body elſe made choice of that would tell his voice to oblige that cruel and impudent
Woman? But it is neceſſary the Inſtruments of Oppreſſion and Tyranny ſhould be puniſhid . For when they have re-
ceiv'd the Rewards of their Wickedneſs
, they ſhift the Crime over upon fome body elſe: And therefore Jul. Græcinus
very well deſeru'd Commendation, who was commanded to accuſe M. Silanus, and was kill'd for refuſing. Tasit. Agricola ,
and Seneca gives him a very greaf Encomium. De Benef. 1. 2. 21.
6) Plato Epift. 7.
..
before,

Chap. I.
9
The A&tions of the Subje&t.
ز
that he had brought ſome falſe Accuſations againſt bition of ſuch Auxiliary Villains which provoked
before, fallly accuſed them, inſinuating that they rian ſays, That Nero endeavcird only to diſguiſe his
had entred into a Secret Conſpiracy with David, own natural Cruelty, under the Formality of Jet Acco-
againſt the King: For it is evident from 52 Pfal. fations (d), But ſtill it was the Avarice and Am-
them. But notwithſtanding, it muſt be confeſs’d, and encouraged him. Others engaged in the ſame
that there are ſome Actions, the bare execution Practices, excuſed themſelves by ſaying, that in
of which, a Man would rather die than under thoſe Times they were under a neceflitv to do what
take: Such as to Murther Parents, or Children ; they did to ſecure their own Honoisr and themſelves: A
to commit Inceſt with a Mother, or a Daughter, kind of Defence which means no more than that
or to lie with a Beaft. A ſmall Stock of Courage they choſe rather to expoſe others to Danger, than ba-
would make a Man prefer Death, to the guilt of Zard themſelves. Neither did Curtius iont ansis (e), as
being an Inſtrument in ſuch Actions. And I can the ſame Hiſtorian fays, allow it to be a tolerable
not but think it was a noble Spirit of Conſtancy Excuſe, becauſe he thought the Perſons that uſed
and Bravery in thoſe Romans, • Who when fing- it not to be Criminal in the Occaſion of it; but
led out by Hannibal, to fight with one another, in a Rhetorical way he choſe to paſs by some things,
Brothers with Brothers, Fathers with their that he might preſs others with more Vehemence.
Children, and Kinſmen with their near Rela And the Senate acted with great Juſtice, when
tions, choſe rather to die under Torture, than " after Nero's Death, they decreed his Inſtruments
to be itain'd with Blood which Nature had lo near " the Informers ſhould be puniſh'd as a Race of
ly ally'd.” (a) Neither can I think it at all law- Miſcreants who lived upon private Ruin (f)."
ful, that to ſave my own Life, I may aſlift to take The Emperor 1 itus with the ſame Juſtice com-
away another Man's ; for that would be to make manded all ſuch Perſons to be publickly whipt
another's Life the Price of my own: And there and beat in the Forum, then dragg’d through the
are many things which we cannot do for Price, Amphitheatre, made Slaves and Sold; and ſome
which upon other Confiderations we may (b). of them to be tranſported to uninhabited Iſlands
VII. But in general, that a Man and after him Trajan ſent away Numbers of them
No Sin lawfully may not at the Command of a Su- in a few ſhatter'd Veſſels, that they might be left
Command of a
perior undertake an Action, as his to the Mercy of the Sea, and be ſhipwrack'd
Superior. own, which is repugnant to the where ever the Waves threw them (8). "Neither
Diætates of a good Conſcience, is could the ſecret Command of Tiberius excuſe Pilo
what no Man that hath any senſe of Religion can from the Guilt of Germanicus's Death, if he was
deny. The Judges therefore Joſephus Ipeaks of really the Cauſe of it: And if he had confefs'd
(c). (To conſider ſomeExamples under this Head) ſuch a Command in the Senate, tho' that muſt
refus’d to condemn the Innocent Zacharias, tho have been enough to have put even Tiberius to the
they were ſenſible what danger threaten'd thein bluſh, and deprivd him of all his Shifts, to excuſe
from the Fury of the Zealots. And on the other himfelf from commanding ſo barbarous an Adi-
hand the Judges niention’d, 1 Kings, ch. 21. weré on ; yet the Senate had ftill Power very juftly to
certainly guilty of a very great Sin; becauſe condemn him as the Criminal, becauſe he did not
they pafs'd Sentence not by Order from the King, pretend any Publick Authority for it, but volun-
but as the pure Reſult of Judiciary Proceſs upon tarily undertook an Action which Tiberius had not
the Evidence of the Crime ; nor can the Witneſſes the leaſt Pretence of Juſtice to command, only
be excuſed from an equal ſhare of guilt. Nor that he might engage the Emperor to him, by
were the Detectors Perſons whoſe Buſineſs it was ſuch an Act of Villany (b). Neither do I think
to charge falſe Accuſations upon the Great and that foab was abſolutely free from the Guilt of
Rich, that ill Princes might have a Pretence to Uriah's Murther, 2 Sam. c. 11. 14, 15, 16. tho’
ruin them in Circumſtances leſs criminal. Mar- Chap. 12. 9. David only is mention d as the Prin-
cellus Eprius was once a Perſon very well known cipal in it. And it was very brave in Papinian to
by that Character, but more particularly infa- refuſe to defend the Murther of Geta, with that
mous, for the Impeachment of Thraſeas : tho' Tacitus noble Saying, That it was eaſier to commit Parricide,
tells us he pleaded in his Excuſe for that, that his than to excuſe it. Others tell the Story, that he
Accuſation charged no more upon Thraſeas, than refuſed to ſpeak an Oration for the 1 mperor, in
what the Judgment of the whole Senate confirm’d;a which he would have had him inveigh againſt his
which was only to ſpread the Crime wider, not Brother; and thathe excuſed himſelf by ſaying,
to clear himſelf. 'Tis true indeed, as the Hiſto- That to accuſe a murther’d innocent Perſon would be

commited at the
w
any thing, tho
(a) Vid. Diod. Siculum l. 25. in excerpt. Piereſcianis. Vid. Laonic Chalcondyl, 1. 1. where Amurath Emperor of the Turks,
commanded that the Parents of all thoſe who had been in the Inſurrection with Sauzes, ſhould kill their Sons with
their own Hands. There were two Fathers that would not obey ſo cruel a Command, and were therefore cat to pieces
at the ſame time with their Sons. For Amurath uſed to ſay, That the Sons.would not have join'd with Sauzes, without
the Advice of their parents.
(6) Abr. Rogerius, in his Account of the Bramins, faith, That the Bramins believe that the Wife
may
do
never ſo bad, which the Husband commands her, without Sir; for the Sin, they ſay, cannot be imputed to her, but is
to be charg'd upon the Husband, whom ſhe is oblig'd to obey.
(c) Foſepbus de Bello Judaic. 1. 4. c. 19. The Author here takes an occaſion of praiſing the Intrepidity of the Seventy
Judges mentioned by Foſephus, who choſe rather to expoſe their own Lives, than unjuftly give Sentence of Death againſt
Zacharias the Son of Baruc, one of the moſt conſiderable Jews at that Time, whom the Zealots would fain have de-
ftroy'd upon any Terms. But this Example does not well ſuit with this place ; for thoſe Zealots were nothing but a fet
of Fa&tious and wicked Perſons, that had no Authority over the Seventy Judges, whom they had chọfen out from among
the People, to try and deſtroy Zacharias with ſome colour of Juſtice, ſuppoſing that they would have ſeconded their fu
rious intentions againſt him.
(d) Tacit. Hift. 4. c. S.
(e) Tacit. Hift. 4. c. 42,
(f) Tacit. Hift. 1. 4. C. 42.
1 (5) Suetonius, Titus c. 8. Plin. Pan. 34. 35.
(b) Tacit. An. 1. 3. c. 16.
* B
ſecunda
2
10
Of the Power to direct, &c.
Book VIII:
&
Second Parricide. Bar Spartianus in his Life of Cara- admitted to the Counſels and Debates, and hach
calla, (1) denies this Account, becauſe he fays,
Right to give his voice in them, if he is not obliged
Papinian could not, as being Præfe&t, make any by the Determination of the Majority, without
fuch Oration (thoʻ ir doch not appear why it his own Conſent, He cannot with Juſtice, to
might not have been extraordinarily commanded much as undertake any thing he doubts of only
him) and only adds, that it was certain he was and much leſs any thing manifeſtly Unjuft. Which
put to Death, for being a Favourer of Geta.
will hold true too, if it be left to his Choice,
However this be, that Man is certainly in the whether he will take Arms or not : But if he
right, who refuſes to proſtitute Wit and Parts to ſhould be commanded ſimply to Obey, in this
defend Wickedneſs, tho' the Defence be publiſh'd Caſe it muſt be conſider'd that all Nations, acted
afterwards in another's Name. For the Invention by any Senſe of Juſtice or Honour, before they
of Specious Arguments ſet off with the Art and engage in a War, always ſuppoſe, that the Cauſe
Dexterity of an Eloquent Speaker, can never be of it is Juft ; and where They do not, it is to no
ſuppoſed to be barely the Execution of another purpoſe to talk of Conſcience. But the point it
Man's Action. In this particular Caſe, the diſpute, turns chiefly upon this, Whether in re-
Thing would have appear'd otherwiſe indeed, if gard of certain particular Circumſtances, it be
Caracalla had only commanded fome Perſon to convenient for the Government to begin a War
,
have recited ſuch an Oration in the Senate, as a notwithſtanding the truth of ſuch a Pretence. In
Piece of his own, or ſome other Man's Com- this caſe, the Perſon particularly intrufted with
poſure, under a Capital Penalty, if he refus d it the Government of the Common-wealth, en-
(a). But ſtill it muſt be remember'd, that where tirely acquainted with its Strength, muſt be pre-
the Actions of Princes do not plainly appear to be ſumed to fee better what will be for the Advan-
Unjuft, Subjects ought to be very Cautious, and tage of the Publick, than any private Man can.
eſpecially Publick Miniſters, how they give them And if a Man, admitting the Juſtice of the
an ill Character ; becauſe it is their Duty, always Cauſe, ſhould yet doubt whether it might not be
to preſume for the Juſtice of their Maſter (6). better to neglect, or forgive, the Injury done che
VIII. Upon the ſame grounds Commonwealth, than revenge it with a War;
Whether a Sub- we may determine, whether a Sub- it muſt be told him, that this is by no means a
ject maylawful. jeết may lawfully bear Arms in an ſufficient Reafon, for a Subject to refuſe to obey
an Unjuje war
, Unjuft War, at the Command of his his Sovereign, and provoke him to uſe Severity
at the Command Prince
. Grotius, L. 2. Cap. 16. S. 3, upon him ; that he ſuppoſeth his Sovereign hath
of his Prince ? 4. is of Opinion, that when it ma. not obſerved a certain Vertue, which hath only
nifeſtly appears that the War is Une the Force of an Imperfect Obligation. And therefore
juſt, it is not lawful for a Subject to maintain ſo the ſafeſt Method a Subject can take, is ſimply to
bad a Cauſe : and that when the Caſe is doubtful, obey (3), and leave his Sovereign to anſwer for
he ought to take the ſafeſt fide, which is to fit the Fuftice of the War before GOD (c). But yet
ſtill, and not engage himſelf at all in the War. it muſt be obſerv'd, that what hath been ſaid
But I think, a Man ought to be very cautious, affects only Subjects who take Arms at the Com-
how he reſolves in ſuch a manner, about Things mand of their Sovereign. For They that volun.
of fuch Conſequence as theſe.. When according tarily put themſelves into the Service of a Foreign
to this Opinion, the Power of the Civil Sovereign, Prince, ought by all means to be ſure of the fu.
and the Obedience of the Subject, in a Caſe of ſtice of the Cauſe they engage in. And therefore
ſo great Importance, are made to depend upon the ſenſible part of the World will always juſtly
every particular Man's Judgment; and when condemn Thote that ſet their Lives out to hire ,
eſpecially, it would be eaſy for a Man to pretend without any manner of Confideration of the Cauſe
fcruple of Conſcience, only to diſguiſe his Fears they fight for (d).
and Cowardiſe (2). 'Tis true, where a Man is


(1) Chap. 8.
(a) There are ſeveral Paſſages in Plato's Defence of Socrates, which might be applied this way ; And to this we may refer
the Account Dio Caffius gives of Salluft. 1. 43. who he ſays was made Prefe&t of Numidia by Caſar, upon Pretence of his
taking the Adminiſtration of that Province, but in reality, only that he might ſqueeze all that he could from it. But
after he was come home, he was acous’d of Extortion and Corruption, and of ſeveral Oppreſſions in the Province; and
ſo was look'd upon to be more particularly infamous, becauſe having wrote an Hiſtory, where he very frequently, and
very ſeverely reflects upon ſuch as made their Fortunes by publick Rapine in their Governments, he himſelf had not
made his Aétions agreeable to his
Writings, and therefore tho? he was acquitted by Cafar, yet he ſufficiently publiſh'd
his Crimes, by the lively Character he had drawn of them, in his own Writings.
(6) See the Soleciſm in Politicks, Aligrius Chancellor of France was guilty of. Gramond. Hift. of France, 1. 16.
(2) See our Author's Diſſertation De Obligatione erga Patriam. f. 19.
(3) Vid. What has been ſaid concerning Soldiers in Note 4. Se&t. 6. Yet Mr. Buddeus however pretends, that upon
a bare
Doubting of the Juſtneſs of the Cauſe, the Subje&ts are not bound to obey their Prince when he commands 'em to fervo
in the Wars; yet after all, he does not deſtroy the Reaſons that our Author makes uſe of to eſtabliſh the contrary Opinion,
(c) Hector in Homer faith very well, Iliad. 12 v. 243.
' Ες οιωνός άeις αμύνεσθαι περί πάτρης.
In Tacitus Hift. L. 3. c. 25. it is call'd a publick Crime, when a Son had kill'd his Father in the Fight. Vid. L. 9. c. 4.
1. 2. f. 1. D. de noxal. att. L. 9. t. 2. 1. 37. D. Ad L. Aquiliam. (d) Gunther. Ligurinum, 1. 7.
Ære dato conducta cohors, ego bellica Miles,
Lured to the Field by Pay, and hopes of Spoil,
Dona ſequens, pretioq; ſuum mutare favorem
In fervile Arms the Mercenaries toil;
Suetus, Ego accepto pariter cum munere bello, is Svo Inconftant, Falfe, and Faithleſs to their Truſt;
Hunc habuifle, dator pretii quem jufferit, hoftem. Lao The Cauſe that is moſt Gainful ſeems moft Juft:
He that firſt Hires, Commands them to the Wars,
And thoſe he calls his Enemies are theirs.
C H A P.
Chap. II.
Of the Power of the Sovereign, &c.
bero
IT
The Sove-
reign may
Subjects in
War.
The reaſon of which was, ſaith he, becauſe
CHAP II.
of the Power of the Sovereign, over the Lives of the Subject, in Defence of the
Common-wealth.
H O'the End Men propoſed to ſometimes eaſily induced to make Allowance for
themſelves, by entring into thoſe Paſſions, that have generally a violene In-
Civil Societies, was, to provide; not fluence upon us, yet a Court Martial hardly will
Livesof his only for the Security of their Eſtates; ever afford them any Favour. And hence Military
but more eſpecially of their Lives Judicature makes it Capital to deſert the Poſt a Man
yer it was found neceſſary to the Pre. is commanded to, tho' perhaps to avoid preſent
ſervation of Civil Government, that Death (c). (Though ſome have thought the
the Sovereign ſhould have ſome Power over the Shame of ſome ignominious Puniſhment mighe
Lives of his Subjects ; and that for theſe two be a better Expedient to prevent Cowardile.)
Ends. Firſt, To guard the Common-wealth from And therefore to refuſe to Lift into the Military
Evils and Dangers; and Secondly, To ſuppreſs Service, hath in ſome Nations been feverely pu-
Diſobedience to the Laws. By the Firſt, The niſhed (d). There was a Law at Sparta, which
Sovereign hath Power to hazard the Lives of his made it Death for any Man to refuſe to hazard himſelf
Subjects in Defence of the Common-wealth, and for his Country ; ſo that as the Orator ſpeaks upon
to allert the Rights that belong to it; ſince in War it, The Occaſion of their Fear was made their
Men always propoſe to take away one another's Puniſhment; and there being two ſuch Extrea
Lives. And ſince the Art of War it ſelf is not to mities in View, there would be hardly any Man
be learn'd without Experience, it was Plato's Opi. who would not fooner venture the loſs of Life
nion (1), that the Lives of the Subjects might be among Enemies, than ſuffer it to be taken
expoſed to ſome Danger for the Attainment only away by the Laws in his own Country (e)."
of the Military Accompliſhments, (tho' I confeſs 1 Tis true there are few Nations in which there are
am not of his mind) and accordingly he propoſes not Numbers of Subjects by their Years and
that the Weapons uſed in all Military Exerciſes, Strength of Body fit to bear Arms, who have
ſhould differ little from the real and dangerous nevertheleſs Immunities from that Service granted
ones, ſuch as might ſtrike fome Apprehenſions of them, either out of Reſpea to their
way
of Life,
Fear into the Perſons that uſed them ; and he or upon ſome particular Indulgence of the State;
afterwards adds a Law,That if any Man happened to be but it muſt be underſtood that all ſuch Privileges
kill'd in thoſe Exerciſes, that the Perſon who kill'd him are to continue no longer in force, than while
ſhould be acquitted by the Law, and be look'd upon as in. there are other Subjects enough, or elſe Allies, or
nocent. For, ſaith he, the Legiſlator ought to conſider, hired Forces in readineſs to defend the Common-
that tho' perhaps he may loſe fome few of bis Subjects by wealth : In Caſes of the laſt Extremity, They
this Method, yet that the reſt will ſuffer nothing by it'; muſt be ſuperſeded; and they that enjoy them
but that if there were no Apprehenſions of Danger in muſt Arm, as well as others, in the common De-
theſe. Exerciſes, there will be no way to diſtinguiſh be- fence. For certainly it is more reaſonable that
tween the Brave, and the Coward ; and the want of ſuch Privileges ſhould be laid, aſide for a time,
Such a Diſtinction would certainly be of worſe Conſe- than that by an unſeaſonable Superſtition for
quence to the Common-wealth, than the other Evil. them, the whole Commonwealth ſhould be
And ſuch Military Exerciſes we are told are now ruin'd. And therefore at Rome, all Exceptions
in uſe in Japan (a). Demofthenes mentions an from Military Service, allowed to the Old, and the
Athenian Law, (b), by which if a Man killd another Prieſts, always ceaſed upon Expectation of a Gal-
accidentally in any Exerciſe, he was not to be baniſhed: lick Invaſion (f). It ſhould too be obſerv’d, as
was a wife and good Inftitution made by Solon or
Law doch not conſider the Event, but the In- Piſiſtratus, (which is mentioned by Plutarch in the
tention of the Perſon, which was only to over Life of Solon (2),) That ſuch as were diſabled in the
come his Adverſary, not to kill him: But Wars ſhould be allowed Penſions out of the Publick Trea-
if his Adverſary was too weak to bear the ſure. And indeed if the State of the Conmon.
Fatigue a Victor muſt expect, the Law thinks wealth will permit, there is all the Reaſon in the
him the Cauſe of the Misfortune which befalls World that They ſhould have ſome Confideration
him. And indeed there is very good Reaſon made them who are üpon hard Duty, while others
that even the Exerciſe in Military Duties, ſhould be fit at eaſe, and are not only forced to neglect the
under a ſevere Diſcipline, ſince in War the Fate of Concerns of their Families, but to undertake a
things may frequently turn upon a very ſmall larger ſhare of Service for the Publick than other
Neglect. And therefore tho' Civil Courts are subjects (g).

6
(1) De Leg. 1. 8. p. 907. A. B. Ed. Wech. (a) Vid. Bern. Varen. Deſcr. Japon. c. 19. (6) Orat. adv. Ariſtocrar.
(c) Vid. Liv. I. 5. c. 6. Fuftuariune moratur, qui figna reliquit aut preſidio decedit. He deſerves the Baftinado that flies
from his Colours, or deſerts the Poft he was commanded to. Mich. Montaigne's Eſſays, l. 3. c. 12.8. 775. Juftin. 1. 32.
c.3. in fin. Ferdinandus Pinto, c. 10. (d) Lycurgus Orat. contra Leocrat. (c) Vid. Leg. Longobardorum, i. Tit. 13.
S.I. (f) Appianus de Bello Civili, 1. 2. p. 523. Ed. H. Steph. Vid. L, 10. t. 48. 1. ult. C. de quibus muneribus Nem. lic. Je
excuſare. Andræas Maurocenus Hift
. Venet. 1 4. P. 147. (2) Pag 96. C
(8) Vid. Diodorum Siculum, 1. 1. c. 73. where he gives an Account of the Egyptian Laws relating to the Souldiery.
il. And
* B 2
1 2
Of the Power of the Sovereign, d: 10
Book VIII
iny?
No Man to
make himſelf
Arms,
thing contrary to Duty is therefore immediately faith, or tho other parts of my Body, as Seneca
, . And
II. And here it may be enquired, termine the Controverſy: But I think it would
Whether lawful whether, if a Man detain'd Priſoner be the ſafeſt and wiſeft way, not to let à
to refuſe bear by an Enemy, to obtain his Free Captive Prince have his Liberty, before the
ing Arms upon dom, promiſeth that he will never Conditions of it are actually performed.
with an Ene- for the future bear Arms againſt him, III. From what hath been ſaid it
his own Country can afterwards follows, That tho' the Neceſſities
oblige him, contrary to his Promiſe, of the Common-wealth, do not at
unfit to beer
to draw his Sword againſt the ſame Enemy? Some, preſent require Military Service
I know, fuppoſe; that ſuch a Compact in it felf, is from the Subject, yet tháč it is a
void, becauſe it is contrary to the Duty every Sub- Crime which ought to be ſeverely puniſhed, for
ject owes the Common-wealth : But, I ſhould not a Man to make himſelf or others unfit for that
think it fo fufficient an Anſwerfay ;
(6), are my own, yet my
Doid and Null; as to deny that it is contrary to
Publick. Inſtances of this ſort of Cowardice are
the Duty a Subject owes the Common-wealth, to frequent to be found even among that Martial
procure himſelf Liberty, by promiſing that which People, the Romans themſelves. Suetonius tells us
is already in the Enemies Power. For except the reaſon why Tiberius reforin'd the Houſes of Cor-
the Enemy give the Captive his Liberty, he can rection in Italy, was, becauſe the Keepers of them were
never bear Arms againſt him. And therefore the ſuſpected, not only to have often taken up Travellers, but
Common-wealth Jofeth nothing by ſuch a Coma to bave conceald Persons that fled to ſuch Holes for fear
pact; for unleſs the Captive recover his Freedom, of being impreſt Souldiers (c). And this might per-
he muſt be conſidered as loft already. And there haps be the reaſon why the Emperour Hadrian af.
fore when the Common-wealth receives him a terwards ſuppreſs'd all thoſe Houſes (d). C. Vetrie-
gain from his Captivity, it is ſuppos’d to receive nus was known to have cut off the Fingers of his
him upon ſuch Terms as leave him Power to keep left Hand, that he might be excuſed from ſerving
his promiſe with his Enemy, eſpecially if he in the Italiek War: and his Goods were confiſca-
gain’d his Liberty by his own Intereſt only, with- ted for it by the Senate, and himſelf condemned
out any Publick Aſliſtance from the Common to perpetual Impriſonment. And Auguſtus expo-
wealth. But cannot the Tranſcendental Power of fed a Roman Knight, with all his Eftate to Sale,
the Sovereign refcind ſuch an Obligation, when for cutting off his two young Sons Thumbs, that
the.common
Safety requires it ; as ſuppoſe the Com- they might not be forced into the Wars (€). And
mon wealth be in eminent Danger, except he in therefore Ammianus Marcellinus, ſpeaking of the
particular take Arms? In this Cafe, I think, that Diſpoſitions and Manners of the Gauls, ſaith,
fince it is next to a Contradiction for me to be a That
none of them ever cut off their Thumbs, to make
Subject, and yet to be under an Obligation which themſelves uncapable of Military Duties, as the Italians
muſt make me unferviceable to the Commons had done. And accordingly there were feveral
wealth in the greateſt publick Extremities; no Laws 'made among the Romans, to reſtrain fuch
leſs abſurd is it for me to imagine it poſſible, thar practices. Trajan made a Law, That the Perfon
I thould be obliged by a ſimple Compact, not to re- who diſabled bis Son, when any. Levy
lift the unjuſt Violences of a Perfon, that attempts War, so that he could not be fit for Military
the Ruin of my ſelf and all that belongs to me: jould be baniſhed. (f). And there is another of Con-
therefore the Force of ſuch a Compaćt extends to ſtantine's, extant to this purpoſe. That the Sons of
the Offenſive only, and not the Defenſive Wars; Veteran Souldiers fic for the Service of the War (Jome of
eſpecially if the hazard of the Common-Safety of which have refuſed to lift themſelves out of Storb and
the Whole State be like to endanger mine too. For Lazineſs, and others have been ſo cowardly as to main
to what purpoſe did my Enemy grant me my Li-themſelves, only to avoid the neceffity of that Duty) if
berry, if he intended to tie me up ſo that I could they are thought uncapable to fèrve in the Army, fall
have no power left me to make any oppoſition be forced to attend the moſt" ſervil offices about the
againſt him, if he ſhould ever after, deſign any Court (g). He that thinks to excuſe himſelf from bex-
thing againſt my Life and Fortunes. And there- ring Arms, by cutting off bis orvn Fingers, shall
nores;
fore ſuch a Compact is no Objection againſt my ta- cape what he defigned to avoid by it, but fball with
kiog Arms at my Sovereign's Command in Defence that Mark of be forced to
of the Common-wealch. It is a Queſtion fome of the Service, ſince he refuſed the Honour of it.
thing like this, Whether a Captive that hath his further, Thoſe Provincial Subje£ts that by ſuch Pra&ti-
Freedom given him by his Enemy upon a certain ces are forced to make their Levies weaker, ſhall be al.
Condition, upon Non-performance of it, (a) be lowed so much favour as to bring two Maim'd Perſons
obliged to return to his Captivity And it is af- for one whole. But the ſevereff Law is that in D.
firmed of Private Perſons : But Buſſiere's Hift. Franc. "ubi fupra, l. s. de Re Mil. If there be any Perſon that
!. 16. ſpeaking of King Francis, doubts whether to avoid being Impreſt for the War, bath, as he thinks
it may be fo of Sovereign Princes. I ſhall not de- focured bis Body from danger, by cutting off his Fingers ,

Service,
21
was
(a) Vid. Grotius Lib. III. cap. xxi. Sect. 6. and Mr. Buddeus in his Specimen Juriſpr. Hiftor. Se&t. 6.
among his Sele.
Ex Juris Nature. But when the Effect of the Condition fails, without any Fault of the Perſon ; as if
, for Example, a
Priſoner of War, that is to be exchang’d for one that has been releas’d, ſhould happen to die, before the Exchange
made. In that Cafe (lays Grotius) he that is at Liberty, ought not to return to Prifon, but only pay the Price of what
he cannot effect, that is, give for his Ranſom as much as would have been given for the Perſon's that is dead.
(b) Seneca, l. 1. Controv. 7 (c) Suetonius, Tiber. c. 8. (d) Spartianus, c. 18. Vide Not. Salmas. in loc. Valer. Max.l.
6.c.3. (e) Suetonius, Auguft. c. 24. Am. Marcellinus, l. 15. fub fin. (f) L. 49. t. 16. 1. 4. C. 12. D. de Re Militari.
V. Theod. de fil. militar, apparitor. & veteran. 1, 1. Et de Tironibus, 1. 4. 10.
be

Chap. II.
13
Over the Lives of the Subject, &c.

a ; the
be ſhall be condemn'l to be burnt, and the Maſter that General's Judgment and Conduæ in it (d). And
derlo not hinder bim, Shall incur a Severe Penalty. But beſides, ſince tis by the Protection of the Com-
it is probable that this Puniſhment was to be in- mon-wealth that we enjoy our Lives for a long
Hicted only on Slaves, but the Laws before men- ſpace of time, which, if we had been expoſed to a
tion'd comprehended the Freemen. For it is very State of Nature, we ſhould ſoon have been de-
well known, that the Romans would not at firit prived of; we muſt not think it a ſevere piece of
permit their slaves to bear Arms, but in caſes of Duty to part with them in defence of the Com-
the greateſt Extremity. Tho' it is manifeft That mon-wealth, eſpecially ſince we are ſo many
this was not obſerv'd in the latter End of the Em- other ways indebted to it. And therefore it is
pire as appears from l. 16. C. Theodof
. Tit. cod. not at all unjuſt
, that upon an extraordinary
where there is this Law of the Emperors, Arcadius Command of the Commonwealth, and in its
and Honorius : Againſt the Irruptions of the Enemy we greateſt Extremities, we ſhould hazard that Life in
command
, that not only the Perſons, but their Abilities its Defence, which it doth in effect beſtow upon
ſhall be regarded ; and tho' we believe, that Freemen us every day; and eſpecially, fince in a State of
may be moved with a more generous Concern for their Nature every Man muit be forced to defend
Country, yet by the Authority of this Edict, We com. himſelf with his own ſingle Strength, unleſs he
mand the Slaves alſo to lift themſelves with all speed will chooſe to die, or be enllaved. But now in
for the War, and if they are found fit for the Service, Commonwealths it is much better to hazard our
they ſhall be rewarded with their Liberty, &c. For ſelves with a Number, not only becauſe the
that Law in the Eleventh Book under the ſame hopes of Victory are greater, but becauſe, tho
Title
, which is alſo extant in the Twelfth Book of a Man be kill'd in the fight, yet by the protection
the 'Codes of Juſtinian, Tit. 49. ib. 2. ſpeaks of of the Commonwealth his Goods and Fortunes will
Slaves that were alieni juris
, belong'd to other Men, be preſerv'd for his Relations ; which in a State of
that the Perſon that offered to ſend them to the Wars, Nature there could be no hopes of. But however,
ſhould be forced to pay a Libra of Gold into the Treaſury. it ought to be oblerv'd, that the Deſign of ſuch
But the Eighth Law in the Theodofian Code under Commands is not, or at leaſt ought not to be, to
the fame Title,doch not fimply forbid the levying of take away the Lives of the Souldiers directly : I
Slaves for Souldiers,but onlycommands that no Slaves fay, ought not to be ; for we have an Inſtance in
ſhould be taken into the choice Companies. And + Vege- David, that Generals are ſometimes guilty of ſuch
tius complains that either by the Favour or Connivance Crimes, 2 Sam. XI. 15. and he is therefore calld
of the Officers; the new lifted Men all paſid the Muſter, a Murtberer, Ch. XII. v. 9. And it is not un-
and that ſuch as were not fit for their Maſter's Service, common to expoſe ſuch as are leſs beloved where
were taken to ſerve the Publick. But ſome will have they muſt inevitably be cut off by the Enemy (e),
it, that the Italians and French derive their word as Micipfa fent Jugurtha to Numantia, that either
Poltrones from this cutting off the Thumbs : But I his own Valour or the Enemies might be fatal to
am inclin'd to think Menage is more in the right him. But the Deſign of ſuch ſevere Commands,
(a), in deriving it from
the Italian word Poltro
, ought to be either to avert ſome great Evil, or to
which fignifies one that always lyes at home up- procure ſome great Good to the Common-wealth,
on his Couch.
and then the Souldiers may juſtly be engaged in
IV.A Man therefore that is obliged ſuch hard Parts of Duty: tho it may happen, that
The Obligati- to attend the War, is bound to defend they may fall in the Enterprize. For the Condi-
on of a Soul-
the Poft his Commander appoints him tions of a deciſive Combat are either, kill your Ene-
dier what.
to, tho' perhaps he foreſees he muſt my, or die with bim : For this is better than to
in all probability loſe his Life in it. And tho’in fall alone. And therefore I think thoſe com.
the general, all Burdens ought to be laid propor- manders at Sea may juſtly be quicted from the
cionably on the subjects, 1o that they may alliſt Guilc of Self-Murther, that upon the expreſs
one another in the bearing them; or where that Order of their Superișrs, or at leaſt upon a Pre-
cannot be, or there is no neceſſity of it, that they ſumption of it, from the State of the Engagement,
may relieve one another by Turns, or elſe excuſe blowy themſelves up with their ship, rather than be
themſelves by an Equivalent another way, or made a Prize to the Enemies. For let us ſuppoſe
elle appoint every one his ſhare by Lot, yet the the Number of Ships equal on both ſides ; when
Nature of War will not permit, that thoſe dange- one of ours is taken, the Enemy hath an Advan-
rous Poſts ſhould always be appointed by Lot. tage of two Ships more than We: if ours only be
And therefore it muſt be left to the Commander coloſt, othen they have but one more ; but if both
chooſe the Perſons he thinks fitteft, or if there be fink together, the Strength on both lides will ſtill
any Number fir, which of them he pleaſeth. be equal. And 'tis ſcarce poſſible if our Ship be
Unleſs there be any that will Voluntarily under blown up, but it muſt ruine one or more of the
take the danger, as Calpurnius Flaccus did (b), and Enemies with it. For the greateſt Danger of
before him Decius Mus (c). And no Manof Bravery being taken, is when the Ships are Grappling,
or Spirit will ever complain that he is cominand ſide by ſide ; and generally the Enemy muit ſuffer
ed upon ſuch Duty, but will rather commend his more than we by ſuch an AEt ; For’tis evident,
(1) Vegetius de Re Militari, 1. 1. c. 7. (a) In Origin. Ling. Franc. (6) Flor. 1. 2. c. 2. (9) Liv. 1. 7. c. 34. (d) Sene-
ca de Provid. c.4.
Why are the Braveſt Men in the Army commanded upon the moſt difficult Enterprizes? It is the
with them, &c. (e) Vide Q. Curtium, 1. 7. c. 2. Polyb. l. 1. c. 9. Diod. Siculum, 1. 14. c. 83. Et 1. 19. c. 48. Juftinum,
d. 12. C. 5. RS, Zonar. T. 2. in Maurit. Salluft
. B. Jugurtk.
515
they
I
14
Of the Power of the Sovereign,
Book VIII.

Whether the
Common
innocent
they muſt have much the Advantage of us, when Siege was rais'd, he is accuſed of Murther (c). I
they force us to fly to ſo deſperate an Expedient. ſhall not here either accuſe, or defend the Fa-
But to blow up only to avoid being ſunk, is I think ther: he might poſſibly make a better Defence for
a very ill Choice; becauſe a Man may have ſome himſelf than Virginius did in Livy, L. 3.c. 5o. how-
Hopes of eſcaping by Swimming (a). It was an ever, I think it is paſt diſpute, that the Common.
old Law among the Chineſe, That the General ſhould wealth is not obliged to protect ſuch a Perſon to
forfeit his head, that had the Misfortune to ſucceed ill in its own Ruine: For ſo the Common-wealth mult
the Fight, tho'not through his own Fault, by which be deſtroy'd, and the innocent Perſon be far from
they deſign'd to oblige their Commanders, when- being ſecured by it. Neither can any Man deſire
ever they engaged an Enemy, to think of nothing that the whole Common-wealth fould perish
but Victory, or Death (1).
with him, and upon his Account. The only Re.
V. But what if the Life of a Subject fuge ſuch an unhappy Perſon can take, muſt be
be demanded without the Hazard ofa either to provide for himſelf if he can, by flight;
wealth may Fight ; for Inſtance, to appeaſe a pow- or elſe by attempting ſome bold and dangerous
give up an
erful Neighbour, and in conſequence Enterprize. When all fails, he muſt ſubmit to un-
Subje&t.
to divert ſome imminent Evil, or per- avoidable Misfortune, in which it may be poſli-
haps prevent the Ruine of the Com- ble at leaſt for him to preſerve his Mind innocent
mon wealth : In ſuch a Cafe,it muſt be conſider'd, (d); ſince it is utterly unlawful for a Man to de-
what Reaſons ſuch a Neighbour may have to de- ftroy himſelf to avoid the moſt injurious Uſage.
mand the Subje&t to be yielded up to him. If it And the Commonwealth, (after it hath defended
be for any Crime he hath been guilty of, tho' per- ſuch an unfortunate Perſon to the utmoſt of its
haps there may be ſome eaſy way, or other, for Power, and endeavour'd as far as poſſible to affiſt
him to eſcape, yet he ought to be particularly his Eſcape ſome way or other ; and all proves to
cautious how he expoſes the Common-wealth to no purpoſe, and imminenc Ruine cannot be well
Danger upon this account. And therefore though otherwiſe avoided) may at the laſt forſake him;
we may ſuppoſe, that a Man under ſuch cir- that is, not hinder his Enemy from taking him :
cumftances is not obliged to deliver himſelf up to For it is a cheap Peace that can be bought with
his Enemy ; yet he is bound to diſpoſe of himſelf the loſs but of one Subject. But that the Com-
ſo as to bring no Inconveniencies upon them that mon-wealth ſhould deliver him up to his Enemý,
give him Reception. And I make no doubt but his or force him to ſurrender himſelf, is, I think, nei-
own Country and Commonwealth may for that ther lawful or neceſſary. We have an Example
reaſon ejeet him againſt his Conſent : For perhaps of this Nature in Megacles of Mellana, Marſelaer
it may be thought lefs Cruelty, to do ſo, than to Legat. l. 1. C. 33. and of ſomething greater in the
furrender him up. But it may be ſuppoſed that Story of Sperthias and Bulis, who voluntarily fur-
the Lives of certain Subjects may be demanded for render'd themſelves up to Xerxes to ſatisfy him for
fome publick Crime of which thoſe particular Per- the Injury the Lacedemonians did him in killing his
fons are wholly Innocent. Such a kind of Cala- Ambaſſadors (e). But however the Common.
mity is related to have befallen the State of Athens wealth ought to ſet a greater Value upon the Lives
for the Death of Androgeos: In Revenge of which of the Subjects, than to ſquander them away pro-
Minos, after he had ſubdued the Athenians, de. fuſely upon the Fear of uncertain Danger, or up.
manded of them by way of Tribute, Seven young on proſpect of unneceffary Good; neither is any
Men, and as many young Women, to be devour'd Subject obliged to ſacrifice himſelf upon ſuch Oc-
by the Minotaur (6). And in a Cafe like this, cations. And therefore the two Brothers, the
I do not ſee how any Subject can refuſe to take Pbilani, did more for their Country than could
the Chance which fails to his Lot, (which is the have been defired of them (f). And Caiapbas
faireſt way of Deciſion between Equals) unleſs made a very ill Application of what was other-
there be a Theſeus found who will voluntarily un- wiſe a good Saying, Fobn XI. so. implying that
dertake to conquer the Monſter. But the Difficul. it was lawful to take away an innocent Perſon's
ty will be greater, if we ſuppoſe the Life of an in- Life, that the Romans might not be jealous of any
nocent Perſon to be demanded, or ſuppose some other Revolt among the Jews, and ſo take an Occaſion
Evil threatned him as great as Death, without any to bring a War upon them; eſpecially ſince it
pretence of publick Guilt, or private Crime. We would have been eaſy to have prevented fuch
have an Inſtance of ſuch a Cale in Libanius, Tit
. Suſpicions by Meaſures much gentler than that of
1. Decl. 27. where a Tyrant demands a certain the Death of an innocent Man. And I do not
beautiful young Man of a Neighbouring City, threat- ſee how the Adion of Darius was excuſable, when
ning War if he was denied. The City chooſeth he threw away ſo many thouſand Lives only to
to hazard a War rather than deliver him up. But gain Zophirus Credit among the Babylonians (g). U
when it was cloſely beſieged by the Tyrant, the VI. It is alſo often neceſſary, that for the Ra.
Father of the young Man kills his Son and throws tification of publick Compatts, ſome of the Subjects
him over the Wall; and afterwards when the be given for Hoſtages (2.) And the Civil. Power

(a) Lucan, 1
3. v. 706, 707
Non perdere letum
Whoſe greateſt Care
Maxima cura fuit.--
Was not to be depriv'd of Death.
(1) See our Author's Abridgm. De Offic. Hom. Ego Civ. 1. 2. c. 13. f. 2. (6) Vid. Virg. Æn. VI. 20. Hygin. Fab. 41:
Ovid Met. VIII. 170. Plut. Theſeus, (c) Vid. Bæcler in Grot. L. 1. C. 1. 5. 6. p. m. 95
(d) Vid. L. 3. c. 1. 1. 1. f. 6. D.
de Poſtulando.
(e) Herodot. Polymn. Grot. 1. 2. c. 25. f. 3. (f) Vid. Salluft. de Bello Jugurth. Pomp. Mela. 1. 1. c. 7.
(8) Herodot, Thalia, in fin.
(2) Śce hereafter in C. 8. f. 6. and Grot. I. 3. c. 20, 1, 52, &c.
may
Chap. II.
15
Over the Lives of the subject, &c.
may force them to undertake this Duty, when there in it ſelf is no Crime: . And the Hoſtages will not-
are none that offer themſelves voluntarily. And withſtanding be a ſufficient Caution, tho’ by the
if any over-powerful Enemy demand certain par- Law of Nature they cannot properly be puniſhed
ticular Subjects for Hoſtages, they cannot, I for another's Default: For it is enough that they
think, upon any pretence refufe. But where are in ſuch a State as leaves them at any time ex-
there is any Number of Perſons proper to be gi. poſed to the Liberties of War, and that their Seim
ten for Hoſtages, and it is indifferent to the Party curity depends ſolely upon the pleaſure of an
we make the Agreement with, or our ſelves, injured and angry Enemy. But however, the
which of them be given; to take away all Occaſion Truth is, the common-wealth dire&ly engagechi
of Complaint, or Suſpicion of Partiality, the only the corporal Liberty, and not the lives of its
proper Method will be to determine the Matter Hostages; becauſe ie firmly reſolves, (or at leaſt
by Lot. And if the Hoſt ages are to be detain'd ought to do ſo,) to obſerve its Faith; and there-
for any long time, it will be reaſonable to refore morally ſuppoſeth no ſuch Caſe by which it
lieve the firſt, by ſending new in their places. As ſhall give the other Power over the Life of the
alſo to take Care, that the extraordinary Service Hoſtage.
Hoſtage. And without diſpute, the Common-
the Hoftages undertake, more than other Subjects, wealth offers great Injury to the Hoſtages, either
ſhall be compenſated to them ſome other way. And by unjuſtly breaking Compacts, and expoſing them
here it may be enquired, Whether the Lives or to the Mercy of the Enemy; or by giving them
only the Liberties of Hoſtages are engaged? And, I up, only with a Deſign to betray him into Security,
think, it ſufficiently appears, by giving up the and ſo make the greater Advantages upon him.
Hoſtages, that thus much is a&ually done and in- But on the other hand, let us ſuppoſe the Party
tended : “ We deliver theſe Perſons into your that receives the Hoſtages may take Advantage
hands as a part of the Common-wealth we par- from thence, either to employ them in ſome
ticularly value, and if we break the Articles of ſecret Treachery againſt us, or to provoke us with
• Compact, we leave it entirely to your Mercy open Injuries, threarning Death to them, if we
to do with them what you think fit. Thus the reſiſt him : In ſuch a Caſe, it muſt be though
City of Liege gave Hoft ages to Charles Duke of reaſonable, that if the Injuries are ſo great, as to
Burgundy, upon Condition, that if they did any make it more ſupportable, to hazard the Lives of
thing contrary to the Agreement, he might freely give innocent Hoſtages, rather than the Commonwealth
bimſelf Satisfa&tion upon the Hoftages; tho' the Duke ſhould ſuffer them, we may very juſtly neglect
afterwards diſmiſsd them (a). And therefore the Confideration of their Danger, and make all
fince the breach of Compacts of this Nature is a juſt the Strength we can to reſiſt the Enemy. And
Reaſon for levying War againſt the Party which is the Common-wealth, in ſuch a Caſe, doth no
Guilty of it; it is manifeft, that after ſuch greater Injury to the Hoftage, than it doth when
Breach of Compact, and after the War is begun, in War; it appoints particular Subjects to certain
that the Hoſt ages themſelves may be look'd upon to Pofts, in a brave Defence of which, They muſt
be Enemies, in the ſame nianner, as all the Sub- either Dye or be made Priſoners. And the Hoſtages
jeas of that Common.wealth, comprehending ought paciently to ſubmit to ſuch fatal, unavoida-
ſuch as were no way acceſſory to the Occaſion of ble Misfortunes, and not be diſſacisfied with their
the War. And 'tis certain that Hoſtages have often Country, ſince it could not be fuppoſed to foreſee
fuffer'd in the ſame manner as profeſed Enemies. fo unexpected a Caſe (b). Neither ought we upon
Tho' on the other hand there have been many this Account to ſet the leſs Value upon a Civil
ochers, who have thought it barbarous and inhu- State, ſince ſuch extraordinary Cafes ſeldom hap-
man, to revenge the Injuries others have done, pen in it: when in a State of Nature, it is impor-
with the Deaths of innocent and unbappy Perſons (1). ſible but ſuch Inconveniences muſt be very fre-
And it is certainly falſe to ſay, that the Hoftages quent. And this Reafoning muſt determine the
are given with Intention that they ſhould ſuffer Caſe that happend to the People of Utica; ſome
Puniſhment for the Compacts violated by the Com- of the Subjects of which City, Agathocles intercepc-
mon-wealth. For I cannot ſee how the End ed and tied them in certain Engines which he
Men ought to propoſe to themſelves from pu- placed in the Front of the Battle, thac ſo their
niſing, can poſlibly be obtain'd by the Puniſh- Fellow-Subjects might be under a Neceffity of
ment of an innocent Hoſtage
, who did not properly killing them, whenever they accempted to beae
conſent to the Violation of the Compa&ts, but only him back (c).
did not refuſe to ſuffer Evil in another's ſtead, which

(a) Phil. de Comines, 1. 2. (1) V. Grot 1. 3. c. 11. f. 18.
(6) V. Ammian Marcellinum, 1. 28. c 6. (c) V. Diod. Sicul. I. 20.C.55 Gunther: Ligurinum, 1, 10. Grof. 1. 3. 6. 20.fo
$20 Bc. Bæcler. in Grot. l. 1. c. 1. p. m. 102.
C H A P.
2
tos
28
16
Of the Power of the Sovereign,
Book VIII.
Men to the Com-
mon-wealth.
b. different
CHAP. III.
Of the Power of the Sovereign, over the Lives and Fortunes of the Subject, in Cris
minal Caſes
.
E Civil Sovereign hath ter the ſame manner the Head of
ITH
The Power of Life
a Body Politick
alſo a Power over the may have a Poover to inflict Puniſhments on the par.
and Death, whether
and how transferd Bodies, and lives, as well as ticular Members, though the Members had no fuch
from particular Fortunes of the Subjects
, in crimi, power before themſelves. And this will be eaſy to
nal Caſes
, which is uſually calld account for, ſince every particular Man obligeth
in More, The Power of Life and himſelf not only not to defend the perſon that is
Death, (a Power manifeſtly different from that to be punijhed, but if need be, to alliſt the Sovereign
which God hath over his Creatures, Pſal. 9o. 3. or as far as he is able, againſt him (c) (1). And
that of Men over Beaſts.) And the firſt Diſpute from hence the Reaſon is evident, why it does
that riſeth upon ,
this Subject, is, How ſuch a Pow- not follow, (as ſome ſuppoſe) that whatever the
er could by Compact, from particular Men, be Sovereign takes away from the Subjects by way of
transfer'd to the Common wealth? For fince Pu- Punijhment, is done by their Confent, becauſe they
niſhment is an Evil inflicted againſt the conſent of at firſt conſented to allow of, and confirm every
the Party puniſhed, and that which a Man inflicts Adion of the Sovereign : becauſe, ſince that para
upon himſelf
, cannot be ſaid to befall him againſt ticular Caſe which gives the Sovereign a power over
his Confent; it will be fome Difficulty to account, the Life of the Subject, is leſt entirely in the
how a Man can have a Power to puniſh himſelf, power of the Subje&t himſelf, ſo as he may for ever
and conſequently be in a Capacity to transfer ſuch prevent it if he pleaſes ; therefore ſuch a Cale is
a Power to another. For the Severities of the Mo never confider'd by particular Men as ever like to
naſtick Life, and the Pains Men infli&t upon them- happen. Hobbes indeed in the Beginning of his
ſelves by Ecclefiaftical Diſcipline, are either no Pu- Leviathan, c. 28. aſſerts, That the Right the Com-
nishments properly ſpeaking, but are rather ap- mon-wealth has to puniſh, is not grounded on
plied by way of Phyfick to ſuppreſs the Force of any Conceflion, or Gift of the Subjects
, but that
Luft, or elſe are wholly involuntary and impoſed the Foundation of that Right is built upon thac
by the Prieſts upon the Precenſions of the Dizine other, which before the Inſtitution of Common-
Authority of their Office. And therefore it makes wealths, every Man had to every thing, and to
no Alteration in the Nature of the Puniſhment, do whatever he thought neceſſary to his own
that the Stripes are inflitted with their own hands, Preſervation. And therefore that that Righe was
becauſe the Fear of a greater Evil threatned to not given, but left to the Common-wealth;
the Diſobedient, forces them to execute that which yet, ſince it has power ſufficient, it may
Rigour upon themſelves: as we ſee Malefa&tors go make uſe of, as it pleafés, to the Security of the
to the place of Execution, who would be drag'd Subject. To which it may be anſwer’d, l'hat the
thither if they refuſed. So it is the Cuſtom in Right of Puniſhing is different from the Right of
ſome Nations for the Condemnd Criminals, to self-preſervation : and by the Exerciſe of it upon
diſpatch themſelves (a). And therefore as to the Subjects, we can never underſtand what a State of
matter in Diſpute, it will be eaſie to conceive, Nature allowed where there is Subjition. But I
that as in Natural Bodies, the Mixture and Tempe- muſt farther add, That the Punishments I here
rament of ſeveral Simples forms a Compound, in ſpeak of, are ſuch only as Human Legiſlators are
which we often perceive ſuch Qualities as cannot bitrarily preſcribe againſt Offenders, and as are
be found in any of the Ingredients that compoſe the diſtinguilh'd from thoſe Evils which are the natu-
Mixture: So Bodies Politick which are compounded of ral Conſequences of Sin.
a number of Men, may have a Right reſulting II. But in treating of the Right OnsM
from ſuch a Compoſition, which no one of the par- of puniſhing the Subjects, I will pre- In a Liberty of
ticulars was formally poſſeſs’d of; which Right, miſe that I intend to confine my Nature no bus
derived from the Union, is lodged in the Govero ſelf to that Right only which one
Thus it was never pre. Man exerciſes over another, with- ment,
tended, that every particular Man hath a power out Regard to the Methods and
to make Laws for himſelf, and yet when every Proceedings of Divine Juſtice, which it muſt be al-
commences a Power to preſcribe Laws to all. Af- from human Judicature (d). To begin therefore



man Puniſh.
813
op a bib
,
a
him
(a) Diod. Siculus, 1. 3. c. 5. ſpeaking of the Ethiopians ſays, One of the Officers is ſent to the Criminal to carry
the Signal of Death, upon the sight of which he goes home and kills himſelf. (6) L. 41. t. 3. 1. 46. D. de acquir. rer.
domin. The Author here cites a Law
of the Diges, which does not concern the Rights that belong to whole Societies in
general
, tho’ the particular Members of which they are compos’d are not inveſted with 'em; but which only ſhews that we
may make over to another, a Right that we have not
our felves; as for Example, a Creditor that ſells his Debtors Pledge,
makes the Purchaſer Maſter of the Pledge, tho” he himſelf had no property in it. Non eft novum, ut qui Dominium non ha-
bet, alio Dominium præbeat; Nam Ego Creditor, pignus vendendo, caufam dominii præftat, quam ipſe non habuit.
(c) Conf. Hobbes de Cive, c. 2. f. 18. (1) See above in B, 3:7; 1. 5.
* And this, Plutarch ſeems in ſome meaſure to be ſenſible of
, 1. de'Sera Num. vindiet.p 449. F. A Man can hardly
conceive any thing of God with better Aſurance, than that He is one that exa&ly knows the proper time for the Cure of
Vice, that Puniſhment is the uſual Remedy he applics to every sin, which he does not always diſtribute in the ſame
Proportion to all, or at the ſame time,
as

what.
Nature of TO
Chap. III. Over the Lives and Fortunes of the subje&t, &c. 17
as high as we can; It muſt be obſerved, that, in and Incidents of War, cannot properly be calld
general, in almoſt every Sin, but eſpecially in ſuch Puniſhments ; (as will ſufficiently appear from what
as bear Relation to another Perſon there are two follows,) it is manifeſt, that Human Puwiſhments in
things conſiderable ; Firſt, the Defe&t or Devia a ſtrict Senſe, or ſuch as are derived from Human
tion from the Law : Secondly, the Harm or Da- Authority, cannot affeat them that live in a Liberty
mage another Perſon fuftains, either directly or in- of Nature, though it cannot be denied, but that
directly by it. And ſo far we may be certain, they too are ſubject to thoſe Evils which flow by a
That every Man is obliged by the Law of Nuture, Natural Connexion from Sin.
to make Satisfa&tion for the Harm or Damage ano III.But in Common-wealths if a Man
ther ſuffers on his Account ; and in caſe it pro- fuffer Harm or Damage, it is not only
But only in &
ceeded from malicious Deſign, to give Caution for recovered with greater Eaſe, than in wealth."
his good Behaviour for the future. But there is a á State of Nature, by a War that muſt
Difference indeed between ſuch Caution, when it be ſupported by his own ſingle Strength; but
The Law of Nature ſeems to oblige the Firſt, to Injuries or Harm that be offer'd the Subject, by
give no other Caution, than that after they have awarding Puniſhments to be inflicted by publick
expreſs'd a Concern for what they have done, and vo. Juſtice on all Offenders againſt the Law. For
luntarily offer'd to compenſate the Damage, they ſince the Wills and Inclinations of Men are ſo
ſhould either by ſimple. Aſjeveration, or at fartheit eaſily Byaſs’d either to Good or Ill, it was cer-
by Oath, oblige themſelves to forbear the like In- tainly the moſt effectual Expedient that could
juries for the future. For a voluntary Repentance have been pitch'd upon, to direct or reſtrain
is a ſufficient Evidence of an Alteration of Mind, them, to ſet in View, the dread of ſome preſent
and that their Reſolution to abſtain from Violence Evil.
for the future is fincere (1). And therefore if the IV. Puniſhment therefore, in gene-
Puniſhment
injured Party refuſes to accept of ſuch an Accom- ral, may be thus defined; It is an
modation, and is either ſo Diffident, or ſo Perverſe Evil of Suffering, infli&ted for an Evil
as to endeavour to force upon them Articles of of Doing, Or, It is ſome unealy Evil inflicted by Au-
larger Extent ; ſince the Orhers are not obliged by thority, in a compulfive Way, upon View of antecedent
the Law of Nature to comply ſo far ; the Blame of Tranſgreſſion (2). For though 'tis common to en-
Breach of Peace muſt lie on his ſide, and the others join ſeveral ſorts of Labour in lieu of Puniſhment ;
may juſtly reſiſt him. And in ſuch Circumſtances as ſuppoſe a Man be condemn’d to the Mines, to
the fuffice of the War muſt be determined for the Gallies, to the Work houſe, to raiſe a Fortificaa
them that offer’d the Injury, and the Injuſtice will tion, to cleanſe the Common-Sewers, or the like ;
be on his fide that receiv'd it. But when a Man yet theſe are to be look'd upon only, as they are
will give no Satisfa&tion, unleſs he be forced to it, Hardſhips, or ſervile laborious Employments, and
fince from thence he ſufficiently diſcovers the Ob- cauſe an Uneaſineſs in the Perſon who is forced to
ftinacy of his Temper ; and when no Terms of Com, ſubmit to them; and therefore may be reduced
pofition will be accepted, unleſs the Party injured to Sufferings. It is ſaid therefore, That Puniſh-
has Strength enough to overpower the injurious; ment is inflicted upon view of antecedent Tranſgreſión;
it muſt be left to the Pleaſure of the Conqueror, to And hence it follows, that none of thole Incona
inſiſt upon what Propoſitions he thinks moſt likely veniences a Man ſuffers by an infectious Diſtemper
to ſecure his future Quiet. And when the Diffe- (3), by an infirm or maim'd Body (4), or by any
rence is grown to that height, the Conqueror may Uncleanness (5), can properly be calla Puniſh-
take the Liberty, not only to diſarm his Enemy, ments. Many of this Nature are mention d in the
to demoliſh and take Pofféffion of fortified Places, Jewiſh Law; As when the Lepers are commanded
to condemn him to perpetual Impriſonment, and to be ſeparated from the reſt of the People ; and when
the like; but may alſo put him to Death, upon ſuch as were maimd or blemifid in any Limb,
ſufficient Aſſurance, that if ever he recovers Li- were to be excluded the Prieſthood, and the like
berty, he will renew his Outrages, and there can (6); Which are no more Puniſhments, than it is
be no other effectual way found to prevent it. for a Stranger, or a Perſon of mean Quality to
But then, as this Caution is demanded rather in a be made uncapable of certain Offices in the Com-
way of War, than Puniſhment properly ſo call’d; mon-wealth, or than it is for a Man to be in
(though 'tis uſual with ſome to call all manner of pain at the ſetting a broken Leg Tho' ſometime
Evils, whether ſuch as are the natural Conſequents ſuch Misfortunes are improperly call’d Puniſhments,
of Sin, or thoſe that are inflicted in a Liberty of by the Reſemblance they bear to the real. As we
Nature for Injuries committed, by the Name of fav in common Diſcourſe
Perfons extreamly
Puniſhments, in a more looſe Senſe of the Word) ſo infirm, or miſerably deform'd, that their Life is Pu-
it cannot properly be ſaid that a Man is obliged niſhment to them. And hence it alſo follows, that
† to give to it. Becauſe it ſuppoſes and im- Impriſonment, the Deſign of which is only the
plies a ſort of Blemiſh and Stain upon the Mind, ſafe Cuſtody of the Party accuſed, is not properly
and a Sin againſt the Law of Nature, in the Perſon Puniſhment, becauſe no Man can be ſuppos’d to
'tis excorted from, viz, his refuſing to give a vo be juftly puniſhed, before he be judicially heard.
luntary Satisfaction, and a violent Defence of his And therefore whatſoever Hurt a Man ſuffers by
Fault. Nay, ſince the Evils that are the Effects, Bonds or Reſtraint, before his Cauſe be heard, and
(1) See above in B.2 c. 5. 13 towards the End. † The Author here follows a falſe Idea of the Nature of the Obligation.
See the 8th Note on the 4th Section. (2) V. Grot, L. 2. c. 20. f. 1.
(3) See Levit. Ch. 13. (4) See Deuter, XXIII. 1. (5) Sce Levit. Ch. 15. (6) See Levit. XXI, 17, &c.
* C
he
18
Book VI.
9.
'em both, with for
"the
Of the Power of the Sovereign, ,
he be declar'd Guilty, more thanis (a) neceſſary ſame Calmneſs and Proportion the Civil Court ob-
to ſecure his Perſon, is againft the Law of Nature
, ferves in infiding Puniſhments
. But 'tis evident,
and ought to have Satisfaction, or at leaſt ſome there are other Diſtinctions between the Evils of
Allowance (1) made for it in the ſubſequent Puniflon War, and Puniſhments; ſince as Tacitus oblerves
,
ment. I add, Inflikted by (2) Authority, to diſtinguiſh in time of Peace the Cauſe and Merits of the Perſon are
Puniſhment from thoſe Evils a Man ſuffers, either always regarded, when in War the Sword makes no Dif.
by War, particular Quarrels and Self-defence, or ference between the Criminal and the Innocent. Neither
by private Malice. And therefore, there is no does the Civil Court look upon thoſe Evi's to be
real Diſgrace in loſing an Ear, ſuffering the Puniſhments that are only the Natural Conſequerts of
Blows of a Cudgel, or the
like, but only in the Sin, as when a Man
loſes his health by committing
'Tis Selden's Opinion indeed (b), any unlawful set, or by alfaulting another, is
That the Slaughter and Spoils committed in War are a beat himſelf; for theſe are Evils not inflicted by
firt of Puniſhments ; which may be true enough in the Authority of the civil Sovereign. And therefore
this Šenſe, that a juſt War, begun upon juſt Pro- if a Man by ill Courſes happens to weaken his
vocations, and the Calamities the injurious Party Conſtitution, impair his Eſtate, or loſe the good
ſuffers by it, may be look'd upon as Natural Pu. Opinion of his Friends, from whom otherwiſe
niſhments, and that a Conſcientious Warrier ſhould he might poflibly have expected Favours ; this
endeavour to reduce the Outrages of War to the does not make him the leſs liable to Puxiliment
.
(a) Solent præfides in carcere continendos damnare, aut ut in vinculis contineantur. Sed id eos facere non oportet : Nam
hujuſmodi pænæ funt interdi&tæ : carcer enim ad continendos homines, non ad puniendos haberi debet. D. 1. 48. t. 19. De Pænis
,
1. 8. f.
(b) De F. N. Ego G. Sec. Heb. 1.4. c. 11.
(1) By a Refcript of the Emperors Honorius and Theodofius, it is ordained, that thoſe who were condemn’d to Banish-
ment, ſhould be releas’d and diſcharg'd from the Puniſhment, provided it was found upon Examination, that during
their Impriſonment the Term of their Baniſhment was expir’d. Omres, quos damnationis conditio diverſos exiliis deftinatos
,
metas temporis præftituti in carceris impleville cuftodia deprehenderit
, folutos pæna vinculiſque laxatos, cuftodia liberari precipi-
mus, nec formidare miſerias ullas exilii. Sit fatis immenforum cruciatuum ſemel luiſe supplicia, ne bi qui diu privati ſunt
auré communis hauftu, Ego lucis afpe&u, intra breve Spatium catenarum ponderibus pregravati, etiam exilii pænam fuffine-
re iterum compellantur. Cod. Lib. 9. Tit. 47. de pæniş. Leg. xxiii.
(2) The Author here leaves Grotius, and in my opinion, without any Neceſſity; tho' he is very much follow'd in that
reſpect, by thoſe Authors that have lately written Treatiſes of the Law of Nature, and even by Mr. Titius, who alſo
extols abundance of things in his Obſervations on his Abridgement de Oficio Hom. & Civ. However I will contradi&
to do but to follow the Opinion of Mr. Lock. The Laws of Nature, (ſays that great Philoſopher, in his ſecond Treatiſe
of Civil Government. Chap. II. Seet 7. &c.) as well as other Laws that are impos'd on Men here below, would
be entirely uſeleſs, if in the State of Nature, no body had the power to put 'em in Execution, and puniſh thoſe
who break 'em, whether with reſpect to private Perfons, or in reference to Mankind in general, whoſe Preſervation is
the end of thoſe Laws which are common to all Men. Perhaps they will ſay, That in the State of Nature, there are
fome Evils annex'd to ill A&tions by a neceſſary Conſequence, and which our Author calls upon that Account, natural
Puniſhments; (ſee above Book ii. Chap. iii. Se&t. 21.) without ſpeaking of the Puniſhments which God exerciſes be-
ſides at his own Pleaſure, by virtue of his being our Sovereign Legiſlator, and Author of the Law of Nature.
Mr. Lock has not thought fit to obviate this Obje&tion : But if it had been propos'd to him, he would have anſwer'd in
all appearance, that neither of theſe two ſorts of Puniſhments are ſufficient to reſtrain human Malice, or procure the
Peace and Tranquillity of Mankind'; as it appears by the Complaints that have been made in all Ages, of the Proſperity
of the Wicked, and the unfortunate Condition of the Good.“ Moreover, (ſays Mr. Bernard, in his Nouvel. de la Rep.
de Lettres Juin. 1706. pag. 648.) neither thoſe who ſuffer the Puniſhments here in Diſpute, nor thoſe who are Eye-
ci witneſſes of 'em, do regard 'em as Puniſhments infli&ted for ſuch or ſuch Crimes. How many Diſtempers and Illnetles
“ are there occaſion d by Debauchery, which no body imputes to the true Cauſe that produced 'em ? This is ſtill more
“ true in the Puniſhments that God inflicts, and whoſe Crimes are not the phyſical Cauſe. Thus he cauſes an Adulterer,
an Uſurer, or a Murderer, to periſh by a Shipwrack, or break their Limbs by a Fall; but yet it is very feldom, that
“ either the Perſon to whom theſe Accidents happen, or thoſe who fee 'em happen, ever gueſs the true moral Cauſe of
“ 'ein. Now that the Puniſhment inflicted for a Crime, may work ſome Effe&, both upon him who ſuffers it, and upon
them that are Witneſſes of it; both muſt throughly be perſuaded, that the Puniſhment was inflicted for ſuch and
“ ſuch a Crime ". One cannot then forbear acknowledging, that in the State of Nature, it is requiſite to have ſome
Body here below, to puniſh Crimes ; and if fo (continues Mr. Lock) then every one is inveſted with that Power with
reſpect to any other, ſince all Men are by Nature equal. However, this Power is not abſolute and arbitrary : We mult
our ſelves to be ſo far tranſported with Paſſion, as to puniſh a Crime with too much Severity. All that is to
be done on this Occaſion, ought only to tend towards the Reparation of the Injury, and preventing them for the future,
from doing the like. When any one violates the Laws of Nature, he in ſo doing demonſtrates to the World, that he
tramples under Foot the Maxims of Reafon and Equity, which are the Rules God has preſcribid to human A áions, as
a common Security to Men ; and thus he becomes dangerous to Mankind. As then every one has a Right to take care of
every thing that relates to the Preſervation of human Society, he may, by following the Light of quiet Reafon, in-
fi&t on ſuch a Perſon, what Puniſhment he thinks moſt likely to produce Repentance in him, and hinder him from fal-
ling again into the fame Crime, or to deter others by his Example. When a Man kills another on purpoſe, he ought to
be deſtroy'd himſelf, like Lions, Tygers, and other wild Beaſts, with whom o Society or Security is to be had. Who
ever ſhall meet me, will kill me, is the voice of Nature, which the Remorſe of Conſcience forced from Cain, after he
had ſlain his Brother Abel. Gen. Chap. iv. v. 14. By the fame Reaſon, we may puniſh, out of any Cevil Community, the
leaſt Infringement of the Law of Nature,
as well as in a State, if it be neceſſary to the End for which infli&ting of Pu-
Puniſhment; and thefe Laws are however, as intelligible and plain to every one that
conſults the Light of Nature, as
the poſitive Laws which often have no other Foundation than the capricious or vicious Pafſions of the Legiflators of the
Earth. If any one thinks it ſtrange, that we give to every individual Perſon, in the Independency of
the State of Na-
ture, a Right of puniſhing thoſe who are guilty ; let 'em tell us, by what Right, Sovereigns puniſh, even with Death,
any Stranger that, has committed a Crime in their Dominions: For the Laws have no Force in relation to Foreigners:
and Sovereigns, or Magiftrates of Civil Communities, have no more power over thoſe who are not Members of 'em,
than each perſon has in reference to another in the State of Nature. However, the Pra&tice we are here ſpeaking of, is
very common, and univerſally allow'd of. Yet, I fancy our Author would not have failed to have anſwer'd this laft
Reaſon of Mr. Lock's, that every Foreigner, that enters’into a State, either by way of Travelling through, or to make
ſome ſtay in it, tacitly ſubmits to the Laws of the Country, and becomes in fome meaſure a subject to the Prince, as
long as he reſides in his Dominions. (See above in Book 7. Chap. II. Sett: 20.) But it may be anſwer'd, that this tacit



And

Chap. III. Over the lives and Fortunes of the Subje&t, &c.
19
6
And laſtly, it was neceſſary to ſubjoin, that the
to go as they pleaſe”. But after all, ſuch a
Penalty was to be infli&ted in a way of Compulfion, or Choice does not always make the Puniſhment in-
by Force : Becauſe otherwiſe it would be impoffi. voluntary, but only perhaps mitigates the Degree,
ble to attain the End deſign'd by puniſhing; which or alters the Manner of it; ſtill the Puniſlsment,
is to deter Men from Offending by the Severity of whatever it be, that at laſt determines the Choice,
the Puniſhment. And therefore ſome have not is certainly involuntary and the Effect of Force (b).
thought it proper to allow the Criminals the And therefore it may be further inferr'd, that it is
Choice of their own Puniſhment ; Becauſe, as the an improper Expreſſion to ſay, a Man is öbliged to be
Declaimer ſays (a), ' It might ſeem to give Coun- puniſhed, or that ſuch a one owes a Puniſhment ;
tenance to Vice; and becauſe it would take off becauſe, Puniſhment ſignifies Harm inflicted againſt
thoſe Fears that are generally the ſtrongeſt a Man's Conſent, and implies an A verſion of the
• Guard upon Men's Innocence, to allow Delin. Will to it. But now it is always ſuppoſed, that
quents to ſuffer what way they pleasid. For, what we are properly obliged to, we oughé to be
• as he reaſons,) a Man allowed the Liberty be ready and willing to perform. And therefore the
fore-hand to compoſe himſelf to an obftinate Reaſon is plain, why, for inſtance, in working
reſolute Temper of Mind, may defie all our upon a Fortification, a Servant at the Command of
" Racks and Tortures. 'Tis a Miftake to meaſure his Maſter, without any particular Wages, and a
"the Severity of the Puniſhment by the Terrour on- Malefa&tor condemn’d to that Labour, may be
ly of the Name of it, for there can be no Po employd in the ſame Service, and the Work be a
niſhment but that which a Man ſuffers Unwilling- Puniſhment to one, and not to the other ; becauſe
ly and with Regret. And there can be no Pain the Servant undertakes it upon the Obligations he
• but that which our own Impatience gives us. is under to his Maſter, and is therefore ſuppoſed
' 'Tis our Fears only that make Cruelty it ſelf look to do it voluntarily; but it is impoſed upon the
terrible. How can we call that a Puniſhment other as a Task, which he cannot ſubmit to, but
( which Men will meet half way, and which with Unwillingneſs and Reluctance (c). And when
they are ready to demand? Condemned Crimi we are told that in fome Countries, (as particular-
nals ſhould be drag'd to Execution, and not left ly in Japan) the Condemnd Criminals are their
6
ز
Submiſſion does not ſeem to extend to the giving the Sovereign a Power of puniſhing a Foreigner with Death, eſpecially
for certain Crimes committed in ſecret, or which are not hurtful to the State, but by the ill Example they give the Sub-
jeệts; as Sodomy, Beſtiality, Egoc. would be. All that could be done with reſpect to a Foreigner, would be to oblige
him to make Reparation for the Injury he had done to any of the Natural Born Subjects of the State, and then force
him to depart from thence. If then Sovereigns put a Foreigner to Death, in form of Puniſhment; it muſt certainly be
by virtue of a Right, that every one naturally has, of puniſhing the Violation of the Law of Nature. 'Tis thus that I
anſwer'd before-hand the Reaſon alledgʻd by Mr. Hertius in his Diſſertation, de Socialitate, primo Juris Naturalis Prin-
cipio. Se&t. iii. xxv. which I had not ſeen before the firſt Edition of this work. All that the fame Author ſays there
farther, is nothing to the Point, ſince he will not prove that in the State of Nature, the Intereſt of Human Society, and
the Laws of Sociability do not require the Puniſhment of the Wicked, tho' the injúr'd Perſon, would not, or could not,
either by himſelf, or the Affiftance of Friends, do 'em any Miſchief : certainly we ought to concern our felves for the
general Good of Mankind, without any Exception; and to prevent as much as poſſible, the Evils to which they might
be expoſed : And if ſo, 'tis alſo our Duty, to reſtrain, or diſcourage the Malice of thoſe, who either by themſelves, or
by their ill Example, or through hopes of Impunity, will probably be the Occaſion of doing an Injury to ſomebody, in
defiance of the Laws both of Nature and Human Society. 'Tis true, that in the State of Nature, theſe forts of Puniſh-
ments are not inflicted by Authority; and 'tis the ſource of their Illufion, who will not bear to have the Right of pu-
niſhing out of Civil States mention d in their hearing., Yet, however, the Reality and Foundation of this Truth, is no
leſs certain for all that. But to return to Mr. Lock. He obſerves farther, that beſides the Right which is common to all
Men in the State of Nature, to puniſh the Violation of the Laws of Nature, he that is directly injur'd, or he that ie-
ceives fome immediate damage by a Crime, has an entire and particular Right to demand Reparation for the Injury that
has been done him. And if any other Perſon finds his Complaints and Pretenſions to be well grounded, he may join
with him, and affiſt him to make the Offender give him Satisfaction. (It is alſo much more Honourable and Ġenerous, as
Grotius very well obſerves upon this Subject, Lib. II. Chap. xx. Seet. 40. Num. 7.) to purſue the Reparation of Injuries
done to another, rather than to demand Satisfaction for thoſe done to ourſelves, which is more to be fear'd on Accou
laft, that an Exceſs of Reſentment jould make us exceed the Bounds of a juft Revenge, or at leaſt fret our Spirits too much.)
of theſe two forts of Rights, the Firſt, I mean that of puniſhing the Violation of the Laws, is entirely conferr'd upon
the Magiſtrate, to whom, every one upon his entrance into any State, immediately ſubmits, ſo that whenever the Good
of the Common-wealth allows it, he may, barely upon his own Authority, ſhew Mercy to the Guilty : But he has not
the fame Right or Power to demand Satisfaction for an Injury, or Reparation of a Damage done. The Magiſtrate can-
not excuſe the Offender; and the injur'd Perſon ftill keeps his Right, ſo that they do him wrong, if they hinder him
from the Reparation that is due to him. Mr. Lock afterwards makes an Obje&tion himſelf againſt the Power which he
gives to every particular Perſon, in the State of Nature, of putting the Laws of Nature in Execution, and puniſhing
thoſe that infringe 'em ; which is, that Men being by this Means become Judges in their own Cauſe, and being beſides
full of Paſſions, eſpecially the Spirit of Revenge, they would generally exceed the bounds of Equity; from whence a
Thouſand Evils and Diſorders follow. I own, (anſwers be) that the Civil Government is a proper Remedy for theſe
Inconveniences, which, without diſpute are very grievous. But if the State of Nature is to be diſannulled upon that ac-
count, we ought to think the ſame thing of a Government, where one Perſon alone, having a ſupreme and abſolute Au-
thority, is Judge in his own Cauſe, and executes what he plcaſes, without being liable to be call'd to an account, or op-
pos’d by any one. If we muſt always ſubmit to what ever he commands, by what Principle foever he does it, whether
he acts reaſonably or no; we ſhall find our felves in that reſpect, in a worſe State, than that of Nature, in which we are
not bound to ſubmit to every one, after that manner. Mr. Barbeyrac's III Note on this Section, pag. 372, 373, 374
Tom. II.
(a) Quint. Decl. 11. p. 156, 157. Edit. Lug. Bat. (6) Senec. L: 4. Controv. 24. p. 234. Ed. Gronov. Impriſonment
was no Puniſhment to me, I came thither of my own Accord. Arrian. Epid. L. I.c. 12. Where-ever a Man is detain'd
againſt his Will, that place is his Priſon. Add. Charron de la Sageſſe, L. 1. c. 6. f. 8. Ego c. 39. f. 9.
(c) Idus fuftium infamiam non importat, fed caufa propter quam id pati meruit, fi ea fuit, quá infamiam damnato ir-
rogat. In cæteris quoque generibus ponarum eadem forma ſatuta eft. L: 3. t. 2. 1. 22. D. de his qui Infam. not.
of the
* C 2
OW

Of the Power of the Sovereign,
Book VIII
C
20
own Executioners, we are not to look upon that as that the Penalty the Law appoints may be put in
a voluntary Adion, any more than that with us Execution upon him, after he has made Sat isfa&tion
they uſually go to the place of Execution ; or chan for the Damage or Harm-he has done ; ſo for the
that in Spain, the Executioner ſuffers his Priſoner to fame Reaſon he may lawfully endeavour to eſcape
be unbound, and only commands him to follow from it, either by denying the Matter, concealing
him; or when (as it was the old Cuſtom in himſelf, or flying, without the Violation of any 06
Lithuania) the Malefactors are forced to erect their ligation whatever (c).
own Gibbets, and hang themſelves. For theſe can Becler indeed in his Preface before Grotius writes
never be ſuppos'd to be properly the Aets of the very obſcurely upon this Subject, p. 9.' The
Criminals themſelves, but to be only Compliances
· Merits of Human Puniſhments, lays he, be-
they ſubmit to, in hopes of avoiding greater Evils long to the Law of Nature, both as it is a law,
that might be the Effects of the Refuſal. Thus " and as it is Natural. If it be a Law, it produces
it was very particular when Gracchus in Livy (a), an Obligation ; but there can be no Obligation,
is ſaid to have made ſome of his souldiers, who ' neither can it be conceiv'd how there ſhould be
had not behaved themſelves with the fame Bravery ' without ſome Peisalty attending the Violation of
as the reſt of his Army, take an Oath, That they the Law'. 'Tis beyond Diſpute, that ſuch as
would not eat or drink in any Poſture but ſtanding, as tranſgreſs the Law of Nature muſt expect to be
long as they ſhould be in the Service. For as they could puniſhed, becauſe Puniſhments are unavoidably an-
not refule the Oath, ſo they thought they ought nex'd to every Law; and it is not in the leaſt re.
Father to bear the Diſgrace than be perjured. But pugnant to Nature (1), that a Man that does Evil
,
further, neither can a Man properly be ſaid to be ſhould ſuffer Evil
. But it would be falſe Reaſon-
puniſhed, who is bound for another, and is after- ing to infer, that becauſe the Law produces an
wards forced to pay the Bond. For the other Obligation, therefore every Man that breaks it, is
Man's Miſdemeanour is only the bare Occaſion of obliged voluntarily to deliver himſelf up to be puniſhed
his fuſtaining that Damage, but the Obligation by the Civil Sword. Hobbes in his Book de Cive
, c.
which he voluntarily took upon himſelf, is the 14. $. 7. ſays very well, That the Second Part of
proper and immediate Cauſe of it. Moreover the Law, which is call’d the Penal, is Mandatory,
from what has been ſaid it follows ; That, as à and ſpeaks only to the publick Miniſters. There is
Man is not oblig'd to inform againſt himſelf (b), no particular Clauſe in the Law, which commands

1
(a) L. 24. C. 6.
(6) All that our Author ſays here and a little farther, upon the Subje&t of Obligation, cannot be admitted but in
this Senfe, that Men are not oblig'd to go before a Magiſtrate and inform againſt themſelves: For that is not neceſſary
to the End for which the Eſtabliſhment of Puniſhments was deſign’d. But he is in the wrong to deny, that there is
abſolutely any Obligation, in reference to the Puniſhment, in the Perſon committing a Crime puniſhable by the Law.
It is certain, that the Sovereign has a Power to puniſh Criminals; and one cannot conceive a Right annexed to a Perfon,
without ſuppoſing at the ſame time, an Obligation in him, towards whom he may lawfully exerciſe that Right. Our
Author diſtinguiſhes, in another place, Book iii. chap. v. Se&. 1. between what one has a Right to demand of another,
and what one has a Right to do, with Reſpect to bim ; the Firſt, according to his opinion, always impoſes a true Obliga-
tion on him, from whom we may demand to have ſomething given us, or ſomething done in' our Favour, but the other
does not always ſuppoſe an Obligation anſwerable to it. For my Part, I do not ſce, by virtue of what, the firft Right
does not take away, the Obligation, as well as the laft; if I can lawfully do a Thing, in Reference to a Perfon, mea
thinks, he is bound to ſuffer it, or not to reſiſt me, when I make uſe of my Power; otherwiſe it would be uſeleſs and
of no Efect. Mr. Titius (obſerv. DCXLI.) ſeems to make the Obligation of a Criminal, with reſpect to Puniſhment,
conſiſt only in our not doing him any wrong in puniſhing him, and in his not complaining of our_ Uſage. But we
muſt
go farther, in my opinion, - 'Tis already granted, that when the Queſtion is concerning a bare Pecuniary Puniſh-
ment, to which we have lawfully been condemn'd, we ought to pay it, without expe&ting to be compelled by the Ma-
giftrate, to do it: we are oblig'd to it, not only by the Maxims of Prudence, becauſe it would be to no purpoſe to refuſe
doing what we may be forced to, but ſtill more by the Rules of Juſtice, which require us to make Satisfaction for the
Damage, and to obey a lawful Magiſtrate. The greateſt difficulty in this point then regards Corporal Puniſhments, and
eſpecially thoſe that tend to taking away Life. Now I muſt here own, that the Publick Good, and the Power of him
who holds the mighty Sword of Juſtice in his Hand, do not require, thar a Criminal, ſhould go merrily to ſuffer the
Puniſhment that is inflicted on him; or that he ſhould not endeavour to make his Eſcape, provided he can do it, with-
out doing any miſchief to any Body. But at the ſame time, it is juſt without diſpute, that when the Criminal has been
taken, and condemnd upon a thorough Hearing of the Cauſe, in Form of Law, if he finds no way to eſcape, either by
breaking open the Priſon, or ſome other Stratagem, he ſhould ſuffer the Puniſhment without murmuring, and having Rea
unlawful
means, to get away, or oppoſing the Magiſtrate in the lawful Exerciſe of his Power, Neither
ought he to refift, or defend himſelf, againſt thofe who endeavour to hinder him from making his Eſcape, as he would
have a Right to do againſt an unjuſt Aggreſſor, or Magiſtrates of Juſtice, whom ſuppoſing their being convinced of his
Innocence, he finds manifeſtly endeavouring to deſtroy him, and cannot avoid being anjuſtly condemn'd, if once he
falls into the Hands of Judges that are exafperated and prejudiced againft him. The Reaſon our Author alledges for
acquitting Criminals of all obligations in relation to Puniſhment, has nothing in it bint what is folid; and if it were
allow'd of, it would as well prove, that a Criminal is no more oblig'd to pay a Fine, or make Satisfa&tion for damage
done, becauſe the generality of Mankind have much ado to perſuade themtelves to it, and violent Means muſt be uſed
to force 'em to do it ; we ſhould conclude from thence, againſt what our Author himſelf maintains, that a Soldier is not
oblig'd to go to, or defend a Poft, where according to all Appearance, there is but little hopes of eſcaping with Life.
See the former chap: 0 4. & B. iii. c. vii. (v. Moreover, tho' 1 yet ſee no reaſon, why I ſhould here change my Opinion ;
I will inform the Publick, that ſince the firft Edition of this work, I have feen two Treatiſes written by Mr. Thomaſius; in
one of which, he refutes the Opinion I have here eſtabliſh'd, and in the other maintains it himſelf. See his Inftit
. fu.
riſp. div. Lib. iij. Chap. vii. and his Fundamenta Jur. Nat. Ego Gent. See alſo what the ſame Civilian has ſaid in his
Notes upon Huber. de Jure civitatis. Lib. ii. Sect
. vi. cap. i Sec. xx. &c. where they had undertaken to refute our Au-
(c) Quintil. Declam. 314 All Confeffion is of fuch a Nature, that a Mon would be thought Mad that were guilty of
it. ld. Declam. 328. Neither is there any Man ſo Deſperate, or that hath fo little Love for himſelf, that doth not com
mit his Crimes with a deſign to deny thein.
(1) V. Grot. 1. 2. c. 20, f. 1.
courſe to any
che
2

Chap. III. Over the Lives and Fortunes of the Jubječt, &c .
C
the Criminal to go voluntarily to the place of Ex a Right to give a true or falſe Anſwer, or if he
ecution ; but there is a particular Injunction to the pleale, not to anſwer at all (c)'. 'Tis an odd
Magiſtrate, to take care that Malefa&tors be ex Story to the Purpoſe we have in Ctefias's Account
ecuted. And therefore the Deliquent is not in fault, of the Indies; he ſays, " That there is a Spring in
if he be not put to death, but the Blame lies whol. India, the Water 'of which, as ſoon as drawn,
ly upon the Magiſtrate, who neglects a Matter of turns into a Curd like that of Cheeſe, and that if
ſuch Concernand inportance to the Common-wealth. a very little Quantity of this be infuſed in Water
Socrates when Crito perſwaded him to make his and to drank, there will follow a Diſtraction up-
Eſcape out of Priſon, told him (a), that That on it, which, the ſame day, will certainly
would be to break the Laws of his Country, which
every 'make a Man diſcover every thing he hath been
good Subject was bound to obey; that every Man ought ' concern'd in. He adds, the King takes the Ad-
to yield to the Sentence the Government paſſes upon him; vantage of this Water, when he would make a
and not return the Injury upon the State, or pretend to full Diſcovery, whether the Party accuſed is
Shew it has been unjuſt. But theſe are only noble really guilty of the Crimes he is charged with,
Sayings, which perhaps in ſome particular Circum or no; and if a Man diſcovers himſelf to be
ſtances, a Perſon truly brave and innocent, might guilty of what he is indicted, he is forced to be
reſolve to practiſe, but which can be of no Force ' his own Executioner ; but if his own Confeſſion
(as I can ſee) againſt any thing here afferted.
proves nothing againſt him, he is immediately
And therefore we may further conclude, That as acquitted'. But it ſhould be carefully obſerv'd,
no Man is bound to accuſe himſelf in the Civil that generally in all Laws the Diſpoſitive part, or
Court, or to make any voluntary Confeffion of his that which contains the matter of the Law, and
Crime, ſo it is unjuſt in Criminal Caſes to put the the Comminatory, or that which comprehends the
Priſoner to declare his Innocence upon Oath: Tho' Penal San&tion, are expreſs’d by two diftin&t forms
chis Cuſtom was uſual at Athens (b), and the of words; As thus, You ſhall not do this; and, He
thing might look very dreadful, when the Party that does ſó, ſhall ſuffer the Penalty. In ſome Law
was obliged at the ſolemn Sacrifice of a Boar, a the latter part ſeems to be no more than the Con-
Bull and a Ram, to imprecate, as the Form ran, dition of the foregoing Prohibition, thus, You ſhall
Deſtruction to himſelf, bis Race, and Family. And not do ſo and Jo, except you pay ſo much by way of
hence Hobbes infers de Cive, c. 2. D. 19. . That Mulet. And in Laws of this nature, that which
the Anſwers which are forced from a Man in looks like a Penal Sanktion, is in reality no more
Torture, are no Evidence to the Fact ; but only than a Tax ; ſince it is left to the Difcretion of
Helps to find out the Truth. So that a Man has Subjects, whether they will pay the Money the
(a) Plato in Criton. p. 37, &c. Ed. Wech.
(6) Demofthen. contra Ariſtocat.
(c) Vid. L. 48. t. 18. 1. 1. ſ. 23. D. de Quæftionib. Charron. de la Sageſſe, L. I. c. 4. 37. f. 6. “ This Invention of the
" Ráck is a dangerous Invention;
and ſeems rather a Tryal of Patience than Truth. And he that can bear, and he that
cannot bear it, conceals the Truth. For why ſhall Pain make me rather confefs what is, than force me to fay
“ what is not? And on the contrary, if he, that has not committed the Fact of which he is accus'd, is patient enough to
“ ſuffer theſe Torments, why will he not be ſo that has, when ſo great a Reward as Life is propoſed to him? I believe,
" that the Foundation of this Invention was owing to the Conſideration of the Effort of Conſcience. For to the Guil.
ty, it ſeems to aid the Torture, to make him confeſs his Crimes, and to enfeeble him; and on the other Hand, to
fortify the Innocent againſt it. To ſpeak the Truth, 'tis a Method full of Uncertainty, and Danger: For what
" would not one do, what would not one fay, to avoid ſuch intolerable Pains ? Etiam innocentes cogit mentiri dolor. Publ.
Syr. ver. 191. From whence it happens, that he, whom the Judge has put to the Rack, that he may not put him to
• Death innocently, dies both Innocent, and Rack'd. Thouſands and Thouſands have loaded themfelves with falſe Ac-
* cufations; among whom I place Philotas, conſidering the Çircumſtances of Alexander's Perſecution against him,
" and the manner of his Torture. But however, ſay they, 'tis the leaſt Evil that Human weakneſs could invent ; very
" inhuman however, and in my Opinion, very uſeleſs. Several Nations, leſs Barbarous in that Reſpect, than the
“ Greeks or Romans that callid 'em ſo, hold it horrible and cruel to torment and tear a Man in picces, for a Crime of
which you are ſtill in doubt; what can it be but the Effect of your Ignorance? Are you not unjuſt, who rather than
not kill him without a Cauſe, do worſe to him than killing it felf? Let it be fo, fee how often he had rather die
« without a Cauſe, than to undergo this Scrutiny, which is more painful than the Puniſhment ; and often by its Seve.
rity, antedates both the Puniſhment and Execution of it. Montaigne's Eſſays, Book ii. chap. v. (Grotius in one of
his Letters (Let. DCXCVIII. Printed at Amſterdam in 1686.) ſays, that there are infinite Examples of People that have
been
put to Death unjuſtly, upon a Confeſſion extorted from 'em by the Rack; and therefore he does not at all wonder
that there have been ſeveral grave and pious Perſons of Opinion, that Chriftians ought not to make uſe of Torments, to
force Men to a Confeſſion of Crimes, ſince it is certain, that there is no ſuch thing in the Law of Moſes ; that in Eng-
land People live in as great Security as in any other Nation, tho' the Rack is not uſed there, and that during the time
that Rome preſerv'd her Liberties, no Citizens could be put to the Torture. It may not be improper to add here the
Reflection of Mr. Le Clerc, on this Subject; in his Abridgement of a Book, where 'tis maintain'd, that the inevitable
Neceſſity of uſing the Rack, for the Preſervation of the State, has made it Lawful, as War, and other violent Remedies,
are imploy'd againſt the Enemies of the publick Tranquillity. “ This Reafon, fags be, may prevail when they are per-
“ fuaded that there are ſeveral Perſons, that are Accomplices in a Crime, and when it is neceſſary to diſcover 'em, in or-
“ der to defend our felves from 'em ; but certainly, where they uſe the Rack, only becauſe the Formality of the Law re-
quires a Confeſſion from a Criminal before he is puniſh'd, there it is an uſeleſs Cruelty : Since if there are ſufficient Proofs,
they need ſearch for no more, and ſince a Criminal, who knows that he is in no leſs danger of being put to Death, tho
" he does not confeſs, than if he does, ſuffers not himſelf to be put to the Torture to confefs the Truth, when he finds
" that the Judges are convinced of his Crime. On the Contrary, when the Fact is doubtful, and he knows that by refo-
" lutely ſuffering the Torture without confeſſing, they will do nothing to him, how great foever their Preſumptions
againſt him may be ; the deſire of avoiding the Puniſhment he deſerves, makes him often reſolve to ſuffer that ſevere
Tryal, to ſee if he can bear it, and thus ft renders him more obftinate and harden'd. There are ſeveral inſtances of
Jews, that have eluded the Spaniſh Inquiſition, by maintaining in the midſt of their Torments, that they were Chrift-
ians in reality. Bibliot. Univers. Tom. XVIII. pag. 484. See the Example of Iſaac Orobio mention'd in the VII. Tom of
the ſame Jonínal, pag. 289. Soc. and the Dist. Hiftor. & Critique of Mr. Bayle, Tom. ii. pag. 1399.2 Edit. as alſo a cu-
rious Differtation written by Mr. Thomafius, de Tortura ex foris Chriftianorum profcribenda. Printed at Hall in 1705, Mr.
Barbeyrac's roth Note, on this Se&. pag. 377. Tom 2.
Law
22
Of the Power of the Sovereign,
VIII.
Brok

meni
Law demands, or forbear ſuch a particular Act. tween more than One. For in Partnerſhip, the
And this is generally the method obferv'd in Sump- Dividends of the Profit are ſhared among every one
tuary Laws; the deſign of which is commonly al-, of the Members, according to their different fro-
ternative, either to induce the Subject to a frugal portions; and yet in this Contract, the Dividend
way of Life, or to enrich the Publick Treaſury. of the Profit becomes due a quite different way
For to allow of any price for Privilege, or exemption from that of Rewards and Puniſhments. For I think
from the Law of Nature is abſolutely, unlawful. it is manifeft, that Puniſhments are not conſequent
But the common Deſign of other Laws is only to upon force of Compact, and that no Man, when
diſpoſe Men to Obedience by the fear of Puniſh- he ſubmits himſelf to Government, makes any par.
And therefore that perſon knew nothing ticular Agreement to be puniſhed for the Crimes he
of the true nature of Puniſhment, who when he may commit (3). And therefore the Impoſition of
had ask'd the Magiſtrate what was the Fine for Tuniſhments does not any way agree with the De
Striking a blow on the Face, threw down the Mo- fcription of Diffributive Juſtice which I gave before.
ney, and ſtruck the Magiftrate himſelf
. For the But further ; It is only by Conſequence, and pure.
Laws were made to redreſs Injuries
, not to al- ly. Accidental, that greater Criminals are puniſhed
low of Diſpenſations to commit them upon the with greater Rigour, and leſs, with proportionable
Payment of a sum of Money. And therefore it Severity, not that it was primarily and in itſelf in-
is evident, that thoſe Laws only, where the pro- tended. For thereis no neceſſity that in awa
varding
bibition is alternative or conditional, excuſe a Man Puniſhment to any particular Crime, the Magiſtrate
from the Offence who has paid his Mulet, or is in a ſhould make a Compariſon between that Ofence
readineſs to pay it; which he is likewiſe obliged and ſome other, and ſo proportion the meaſure of
to do upon Demand ; But not in other Laws, the Punijhment for both, according to their diffe-
where the Interdiet laid is abſolnie. But it muſt be rent degrees of Malignity: But every Crime has,
confeſs d, that there ought to be no ſuch Laws as as it were, a ſeparate Puniſhment allotted to it with
the purely penal, or ſuch as propoſe no other End, more or leſs Severity, as the Publick Benefit requires
but to make Advantage by the Fine. Some indeed it ; tho' it uſually happens, that the Punishment is
callid ſuch a Law purely Penal, which barely annexes either increas’d, or alleviated according to the
a Penalty to a plain Command, and neither exprefly different
degrees of the Tranſgreſſion.
commands or forbids any thing: and this is given Some Perſons that reduce Puniſhment under Coma
for an Inſtance, A Perſon elected Mayor of a Town, mutative Juſtice, conſider it, as if Puniſhment were
refuſing the Office, ſhall be fined an hundred pounds to the ſomething aflignd to the Deliquent in the ſame
Publick. But in my Opinion, This and all other manner as is uſual in Contracts. A Miſtake they
Statutes of the like nature, imply ſome fuch Prea were led into
were led into upon a common Expreſſion, Thar
cept as this: No Man, when he is lawfully Elected, Puniſhment is the due of every Offender; which is
ſhall refuſe to aſſiſt the Common-wealtb; To that, That manifeftly an improper way of ſpeaking. For a
before, ſeems to be a penal Clauſe annex’d to This (a). Man that has any thing due to him has a Right
V. But further ; Since we look up over the Debtor to oblige him to the Payment of
Puniſhing to on a Judge to be juſt, when he inflicts it. But I think there will be no Body ſo abſurd
whate species Puniſhments agreeably to the demerit of as to ſay, that the Delinquent has a right to challenge
of re-
the Offender;
and ſince Juſtice is ſaid his Puniſhment of the magiſtrate. And therefore
to be adminiftred, whenever the Pe- the meaning of that Saying is only this, That the
nalties are duly allotted; it has from hence been Magiſtrate may juſtly puniſh a Criminal as the Law
diſputed among Philoſophers, what Branch of Ju- directs. Grotius, l. 2. C. 20. 9. 2. ſays, " That the
ſtice the Impoſition of Puniſhments belongs to ; Diſtribution of Puniſhments does originally and
whether to the Commutative or Diſtributive; or as principally belong to Expletive Juſtice for this
Grotius (1) changes the Terms, to the Expletive reaſon; becauſe no Body can puniſh another
or Attributive. They that refer the Infliction of lawfully, unleſs he has a Right to do it ; which
Puniſhments to Diſtributive Juſtice, give us theſe Right ariſeth from the others Crime'. But he was
Reaſons for it, that in the Diſtribution of Puniſh- impos’d upon by the doubtful meaning of the
ments as well as Goods, there is a proportionable word Right. For there is a very wide difference
regard had to the greater or leſs deſert of the between a Right to do a thing, and a Right to receive
Perſons. And ſince, according to their Opinion, Something from another. The Meaning of the
Diſtributive Juſtice is concern'd in all thoſe Things former Right is this, I have a Power to exerciſe this
which the whole applies to the Parts, or the Com- particular set, and no Body ought to hinder me
mon-wealth to particular Subjects; it is evident that in it: the ſenſe of the Latter is this, I have a
the Common-wealth inflids the Puniſhments on Right to receive ſomething from another, and he at
particular Subjects. But it may be replied, That the ſame time is under an Obligation to let me have
it is a Miſtake to ſuppoſe that Diſtributive Juſtice it. Now when the Diſcourſe relates to Expletive
takes place, as often as there is an Equality to be Juſtice, the word Right is not to be taken in the
made between more than Two Terms (2), or when former Signification, but in the latter. And this
ever any thing is to be divided proportionably be- Right is fix'd in him that receives the Thing, and
ducible.
(a) Vide Sanderſon de Obligat. Conſcient. Præleet, 7. f. 13. feqq.
(1) See above in B. I. c. 7. f. 11.
(2) See Grot. B. 2. c. 20. f, 2 (3) This is true : But, fince upon a Sovereign, the Right of Life and Death, of,
the Right of the Sword is conferr'd : His Subjects are obliged not to relift him, tho he makes uſe of it upon their own
Perſons.
2
2 not

Chap. III. Over the Lives and Fortunes of the Subject, &c.
23
not in bim that beſtows it : As for inſtance ; When cauſe the Legiſlator has the ſame Right to challenge
I pay my Servant his Wages, I am engaged in an the Penalty of the Delinquent, as a Creditor has to
Ad of Expletive Juſtice ; not becauſe I have a demand the Money lent to the Debtor'; and becauſe
Right to pay him his Wages, but becauſe he has the Body and Goods of the Offender are no leſs liable
a Right to demand it of me. Thus, I may ſafely to the Magiſtrate on a criminal Account, than the
ſay I have a right to command my Servant to take Goods of the Debtor are to the creditor in Caſes of
off my Shoes; but certainly ’rwould be ftrangely Debt. In the Elements of the Roman Law, (1)
impertinent to infer from thence, that therefore obligations are divided into ſuch as ariſe from Cono
to command him that Service was an Act of Juſtice. Sent, and ſuch as are the reſult of Tranſgreſſion ; buc
And it is an Argument much of the fame nature, it ſhould be obſerv'd, that from Tranſgreſſion there
to ſay, that becauſe Puniſhment cannot lawfully ariſes an obligation, only to make Satisfaction for
be inflicted but by a Perſon that has autbority to do the barm that is done, but not to ſuffer the Pu.
it
, therefore puniſhing is a branch of Expletive Ju- niſhment : And that Obligation it ſelf is not pro-
ſtice
. Another Argument produced by Grotius, is perly founded upon a Man's conſent to the Penalty;
this,
That in Crimes and Penalties there is ſome- but upon that neceſſity of Reſtitution, which upon a
thing that much reſembles the nature of Com. Settlement of Property, evidently flows from the
tracts; For as the Seller of any Commodity, is Law of Nature. Thus Ariſtotle diſtinguiſhes Con-
ſuppoſed to have obliged himſelf to every thing tracts into the Voluntary, and the Involuntary (2).
natural to the ſale, tho' he mention nothing But his meaning may be thus explain'd; That as
particularly; ſo every Delinquent ſeems volunta- in Contracts of Duty there is a Return made of Equal
• rily to oblige himſelf to be puniſhed; for every for Equal, ſo in Criminal Caſes, the Satisfa&tion
• Man's Reafon tells him, that it is abſolutely ought to be an Equivalent to the Damage. But the
neceſſary that every great Crime ſhould be reaſon why he calls the Obligation to make Satis-
puniſhable; and therefore a Man that chooſes to faction, an Involuntary Contract, is, becauſe, for
tranſgreſs, directly and deliberately, may by con- Example, in caſes of Debt, it depends upon the
. fequence be ſaid to conſent to be puniſhed : And Creditor's pleaſure whether the Debtor ſhall receive
therefore in Scripture we find that Sin is frequent. the Money or no: But, for Example, the Obliga.
* ly call'd by the name of a Debt, which we are tion a Thief is under, to reſtore me what has
as much obliged to diſcharge, as They that are robb'd me of, or the value of it, bears no man-
| under Bond to their Creditors (a). To which I ner of relation to any conſent of mine, but he
anſwer, That thus much is certain, that if a Man brings it upon himſelf much againſt my Will.
knows the Penalty the Law appoints for ſuch à For 'tis certain, I had rather he ſould have left
particular Crime, and yet is wilfully guilty of it, me in quiet Poſeſion of what was my own, than
he can have no reaſon to complain of unjuſt have given me the trouble of bringing an Action
Uſage, or to think himfelf hardly dealt with, of Theft againſt him, eſpecially where there is no
when he is brought to Punishment. But it can- hope of recovering more than barely the principal
not from hence be inferr'd, that a Man gives a by it. But it may be further conſidered, that ge-
dire&t and immediate Conſent to his own Punijhment ; nerally every Right has an Obligation that anſwers
or rather, that he has obliged himfelf by his own it in another Perſon. And therefore upon Com-
Conſent to ſuffer it ; ſince no Man is ever guilty miſſion of the Criminal A&tion, the Party that is
of a Crime, but he has fome hopes, either by con- injured has a right to demand Reparation for his Loſs,
cealing himſelf, or ſome way or other to ſecure or the harm he has ſuffered; and the Injurious is un-
himſelf from Juſtice (b). Vaſquius indeed (c) at der Obligations to make him Satisfa&tion; and This
tempts to prove that Criminals are obliged by is the matter which Expletive Fufticé relates to.
their own conſent to ſuffer Puniſhment, becauſe the But as the Criminal Action is a Deviation from the
Penal Laws, as well as others, are made by the Law; the Governours of the Common wealth have
conſent of the Subje&t; or at furtheft, becauſe the power to puniſh as they think neceſſary; but the
Legiſlative Power is derived originally from the Con- Delinquent is under no Obligation to offer himſelf
Sent and Agreement of the People. But I think there voluntarily to be puniſhed. For which reaſon the
is little or no force in the Argument
: For as I infliction of Puniſhments cannot fall under Expletive
have proved elſewhere, Laws are not Compacts or fuffice
. So that, it may be ſaid upon the whole,
Agreements. And I think there is no Abſurdity in that Puniſhment does not belong to either Species of
the thing, that I ſhould give my Conſent to the Juſtice, but makes a particular Branch it felf
. Un
Eftabliſhment of a Power, which may perhaps after- leſs it may be thought more proper to ſay, that
wards exerciſe certain Aets upon me, whether I both the impoſition of Puniſhments and the Diſtribu-
will my ſelf, or no. Only, I can pretend no tion of Rewards, which have not been determined
reaſon of Complaint, if I do afterwards feel its before hand by particular Compia Et, are parts of
Severity, becauſe I conſented to ſuch a Power. Prudence neceffarily belonging to the Government
But Sin is compared to a Debt, not becauſe a Man of others, and therefore ſhould be rank'd under
is oblig'd to conſent to his own Puniſhment, but be- Fußice in General.
dor
TOMA VINO
2TON
(a) V. L. 49. t. 14 1. 34. D de Fure Fiſci. L. 9. t. 8 1. ult. C. ad L. Fuliam Majeftatis
. In Tacitus, Ann. 12. c. 53.
The Woman that married another Man's Slave without the Knowledge of his Matter, is ſaid to have conſented to her
own Slavery. (6) Thucydides, 1. 3. c. 45. Edit. Oxon. init. There are ſeveral Crimes which the Common-wealth hath
forbid under pain of Capital Puniſhment, and yet Men have Hopes ſtrong enough to perſwade them to venture and run
that Rifque ; and there is no Man that will undertake an hazardous Enterprize, when he deſpairs of the Succeſs of his
Plot. And we never heard that one State revolted from another, which did not imagine it ſelf tronger and better pre-
par'd for War. (c) Várg. Controv. Illuftr. l. 1. c. 28. n. 12, 13.
(1) Inftitut. L. 3. t, 14. De Obligat. f. 2. (2) See above in B.1.c.7. f. 12,
VI. It
24
Of the Power of the Sovereign, Book VIII.
VI. It will therefore, I think, as he pleaſes. Now then, every Evil which is
That one Man be allowed by every Man that pre- inflicted upon antecedent Tranfgrefſion, cannot pro-
should puniſh tends to Reaſon, that tho' by Na- perly be callid Puniſhment, but that which was
another, not
ture all Men are upon the level, and threatned before, and is inflicted after the Crime is
unjuft.
Puniſhment it ſelf ſeems to be a ſe- known. And therefore the Evils of War, and all
vere and rigid ſort of Diſcipline, while Men en-
Acts of Hoftility, muſt not be calld Puniſhments,
deavour only to aflid
and ruin one another; and tho'tis true that we procure Caution againſt future
tho'che wiſe Creator of the World hath fo diſpo- Injuries by them; for in a State of War, every Man
ſed the Nature of Man, and the Events of provides Caution for himſelf by his own force, and
Things, that ill Actions are generally purſued in what manner he pleaſes; but the Caution an
by ill Conſequences, which in a manner revenge injured Perſon receives from Puniſhments
, muſt be
themſelves upon the Cauſes of them :, yet that procured by the Power, and according to the De-
poſitive Human puniſhment after all hath nothing termination of the Superiour ; In War the injured
in it repugnant to natural Equity; but that on the Party only, is direčtly concern'd to puniſh, and
contrary, it is abſolutely neceffary to the Com- Suppreſs his Enemy; but in Civil Government, the
mon Quiet and Security of Mankind. For as it whole Common-wealth is as much concern'd as the
was requiſite to the Publick Peace of the World, to Party that is injured, to puniſh a Criminal. Again,
put an end to the Equality of Nature, by erecting 'cis left to the Diſcretion of the Injured only
Civil Governments ; To in the general Looſneſs and whether he will revenge himſelf upon his Enemy,
Corruption of Manners, and Natural Averſion to with a War, or not; But 'tis left entirely to the
Vertue, the force of Government would ſoon be dif, Superiour, whether Puniſhment ſhall be put in Execu-
ſolve if bad Men were not confin'd, and tion, or not ; nay he has Power to inflict it, tho'
frighten d into obedience, by the Dread of ſome the injured Party deſire the contrary. And laſtly,
preſent Evil. And fince every Man is before, the quantity of the Puniſhment is generally determi-
hand told publickly what he ought to do, and ned, before the Fact is committed; but in War the
what forbear doing, and what Puniſhments will Caution muſt be feccled according to the Circum-
be inflicted on ſuch as act otherwiſe, no Man can ſtances of my own, or my Enemies Condition. But
blame any body but himſelf, if by a wilful Tranſ beſides, tho’ Nature has not determined, whether I,
greſſion of the Laws, he falls under the Severity of or any other particular private Man ought to
the Punishment.
have the right of infli&ting Puniſhments, any more
VII As to the Perſons the right of than it has deſign'd us to be Princes; yet I think it
The Power of puniſhing is to be lodg;d in, and exerci- is ſufficiently clear from Reaſon, that Puniſhment,
where lodgʻd. Sed upon, 'tis Grotius's Opinion, i b. 2. as it is the Execution of a Judiciary Sentence, ought
c. 20. § 3. That Nature has not to be derived from ſome Superiour, or from a Per-
given any Determination upon it. So far in- ſon who has Authority over the Criminal Neither
deed, ſays he, we may diſcover from Nature is there any reaſon why we ſhould be ſo nice in the
that 'tis moſt convenient, ſome Superiour ſhould Explication of the word Superiour : For 'tis abſo-
be impower'd with it; tho that is not abſolutely lutely falſe that every Sin leaves ſuch a Blot upon a
neceifary neither ; unleſs we take the word su- Man's Honour and Character, that he muſt preſent-
periour in ſuch a ſenſe as will imply, that a Man ly be thought no better than a Beaſt. Neither is
· which is guilty of a Criminal Action, Thall be it good Reaſoning to infer, that becauſe ſuch a
thought to have made himſelf inferiour to all the Man is guilty of ſuch a Crime, therefore I have
reſt of Mankind by that very A&t. The Con- power to puniſh him. For if I ſuffer by the Criminal
< ſequence of which is, that no Man ought to be Action, in a Liberty of Nature, I may demand Satis-
puniſh'd by one equally guilty with himſelf (a). faction of him for the Injury, and Caution for the
Bút I conteſs I cannot be perſwaded but that the future in a way of War; if the A&tion does not
power of puniſhing is a Part of Sovereignty, and con- affe&t me, but ſome other Perſon whom I am
ſequently that no body can properly be ſaid to in. not particularly obliged to defend ; I can have no
fitt Puniſhment upon a Man, unleſs he has (6). more pretence to engage my ſelf in his Cauſe,
Authority over him. For cho' upon a view of the than I have to preſcribe Laws to thoſe that owe
ill Diſpoſicions of Men, and how eaſily they are me no Subje&tion. Ex. II. 14. It was a ſaying of
inclind to injure and moleft one another, we find Democrii us, that it was molt agreeable to Nature
, that
it abſolutely neceſſary to the Preſervation of So- the most deſerving Perſon ſhould govern; which is per-
ciety in the World, that Puniſhments ſhould be in haps true enough in this ſenſe, that where the
flicted; and tho' every Man ought to direct his Government is to be conferr’d upon a ſingle Perſon
Actions to the ſupport of Society, as the general good elected by a Plurality of Voices, and no one Man
of all Mankind; yet it does not follow that every bas any particular claim of Right to it more than
Man is obliged to undertake every A&tion that tends another, it would be the moſt rational way of
to advance that End; Since that would be to no proceeding, to make choice of a Perſon of the
purpoſe, without a concurrence of certain other greateſt Merits, and that ſeemed to be beſt ac-
particular Requiſites. Thus, It is neceſſary Men quainted with the Arts of Government. But ſuch
ſhould be under fome ſort of Government or other; a Perſon can pretend to no Authority over others,
tho' no Body imagines, that it is left at random except they voluntarily ſubmit to him. As for
for any Man to aſſume a Right or Power over others what Grotius ſays, that a Criminal ought not to be

C
C
trian மான்
(a) See John, Ch. VIII. v. 7. Rom. II 22. (b) See what has been ſaid in Note 2. pag. 18. Se&t. 4. All the Reaſons our
Author here alledges, prove nothing, unleſs we allow of his Definition of the word Puniſhment.
puniſhed
Chap. III. Over the Lives and Fortunes of the Subjet, &c. 25

6
puniſhed by a Perſon as guilty as himſelf ; This does The ſame Author alſo excludes thoſe Evils from
not properly concern them that have publick Au- being Puniſhments, which are the Natural Corſe-
thority to puniſh, but only atfects ſuch people as quences of Evil A&tions ;. As when a Man in af-
love to cenſure and impeach others, barely upon ſaulting another, is himſelf ſlain or wounded, or
their own private Authority, and out of a pretended when he happens to fall fick upon the Commiſ-
hatred to Vice, without Warrant from any Obli 'fion of ſome unlawful Act; tho'this indeed will
gations they are under by the Duties of their look like a Puniſhment from God. Again, he
Office and place. Tho' without Diſpute it is very ſays, that when the Harm inflicted is less than the
unbecoming, and muft neceffarily leffen the Reſ; Benefit that naturally f
Benefit that naturally follows the Crime committed, it
pect that is due to the Magiſtrate and the Laws, is rather the Price or Redemption, than the Puniſh
when the Perſon that adminiſters. Juſtice, is ment of a Crime. And among his Axts of Hoſti-
guilty of the ſame Vices he punihes in others, for lity, he mentions the Exceſs of Puniſhment ; or
å Man that punihes that in others, which he al- when a greater Puniſhment is inflięted than the
lows himſelf to be guilty of, does not ſeem to be Law allows of ; and when Hurt is inflicted for a
out of love with the Crime, but to envy others the Fact done before any Law forbad it; and when
Enjoyment of it (a.) Yet I don't think it had been any Evil is inflicted on the Sovereign ; and
unlawful for Nero himſelf, after he had kill'd his when Harm is inflicted upon a declared Enemy.
Mother, to have put others to death that had been But what he adds to this afterwards ; That One
guilty of the like Crime (b). And in this, Hobbes who has been a Subject, and declares himſelf an
is of the fame Opinion, Leviath. Chap. 28. That Enemy, is not to ſuffer as a Subject but an Enemy,
Puniſhment is derived from the Superiour as ſuch. and therefore that ſuch as are guiley of Treaſon,
The Definition indeed, which He gives of Puniſh may be made to ſuffer whatſoever the Repreſex-
ment is hardly ſo full as it ought to be, containing tative of the Common-wealth will, or as Enemies,
only thoſe Puniſhments that are inflicted by the I cannot agree with him ; becauſe whatever Pus
Civil Power, and making mention but of one End niſhment is inflicted upon Treaſon, is inflicted upon
only. Puniſhment, ſays he, is an Evil infli&ted by the Force of Authority, and proceeds from the
publick Authority on him that has done or omitted that Supream Power, tho' the Traitor himſelf may rebel
which is judgʻd by the fame Authority to be a Trans- and deny his Authority, and ſometimes put the
greffion of the Law, to the end that the Will of Man Common-wealth to a Neceſſity of Suppreſſing
may thereby be the better diſpoſed to Obedience. But him by Arms, before he can be proceeded againſt
he rightly infers from thence, That neither private as a Criminal; as when a Man is in purſuit of his
Revenges, nor Injuries of private Men, nor Painsin. Slave who is run away, he does it by a Right of
fli&ted by publick Authority without precedent publick Property, and not of War. I may further add,
Condemnation ; Nor Evil infli&ted by uſurped Power, That the Evils an Enemy fuffers, are none of
nor Harms inflicted on the Subject without Regard to them thought to be Infamous, whereas the Infamy
future Good, are properly Puniſhments, but rather Acts of it, is a particular addition to the Puniſhment of
of Hoftility. But it muſt be obſervd, That ſuch Traitors. 5803
falſe Puniſhments as theſe do not immediately place VIII. The next Thing that
us in a State of War, or give us Licence to make falls under Conſideration, is, the Human Puniſhment
uſe of the Liberties of an Enemy, or that a Man End (1) of Puniſhment, which ought to have some
who has ſuffered ſuch Evils is left to his Freedom every Man ought to propoſe End,
to return Hoftilities upon thoſe that inflicted them to himſelf in inflicting it, after
(a) Vide Plin. L. 8. Epiſt. 22. Plato, Minoe. He is a wicked Man that does one thing himſelf, and commands another.
Add Gratian, Cauf, 3. Queſt. 7. c. 3, 4. ſeqq.
(6) But yet not for Domitian to punilh Women convicted of Adultery, when he Himſelf had Debauch'd them. Zonaras,
Tom. 3. To this we may refer that which Medea faith in Seneca's Trag. v. 500, 8900.
He did the Crime, that hath th' Advantage of it,
He's Innocent to You, who only was
Your Inſtrument.
And certainly all voluntary Informers and Cenſurers of others, ought to take care how they fall under the reach of what
Juvenal faith, Sat. 2. v. 23, Soc.
Loripedem re&tus derideat, Æthiopem albus.
Let him cry Blackmoor-Devil, whoſe Skin is White,
Quis tulerit Gracchos de ſeditione querentes? And Bandy-legs, who treads himſelf Upright;
Quis cælum terris non miſceat, &go mare cælo, Let him reprove that's Innocent. In vain
Si Fur diſpliceat Verri, aut homicida Miloni,
The Gracchi of Sedition muſt complain.
99
Clodius accuſet meechos, Catilina Cethegum,
'Twould make you
ſwear the Planets from their Spheres,
In tabulam Sylla fi dicant diſcipuli tres.
Should Verres peach Thieves, Milo Murtherers,
Clodius tax Bawds, Cethegus Catiline,
And again the ſame Satyr, v. 38,
Or Sylla's Pupils Sylla's Rules decline.
Felicia tempora , quæ
Te
Bleft times
Moribus opponunt ; habeat jam Roma pudorem. That made Thee Cenſor of the Age's Crimes !
Tertius é coelo cecidit Cato.
Rome now muſt need reform, and Vice be ſtopt, in
Since a Third Cato from the Clouds is dropt.
Mr. Tate.
Seneca, Controv. I. 2. contr. 14. There is nothing more Deſpicable than a Man that chaſtizes Vice, and yet imitates it.
Cic
. Tuſc. Quæft. 1. 3.c. 39. It is the particular Character of Folly, that it diſcovers another's Faults, and forgets its own.
Plaut. Trucul, Aft. I, Scen. 2.9.58. He that accuſeth Another of a diſhoneſt Action, ought to be cautious Himſelf.
Ovid. Faft. I. 6. 0. 647.
9010
Sic agitur Cenfura, Ego fic exempla parantur,
Unenvied he a brave Example ſtands,
Cum Judex, alios quod monet, ipse facit.
Who by his Deeds confirms what he commands.
(1) See Grot. B. 2. 6. 20. Vid, Bacon. Serm, fid, c. 4.
* D
Satisfaction



1
26
Of the Power of the Sovereign,
Book VIII.
<
o
C
Satisfaction made for the Damage, or when the And therefore Auguſtus ſtruck out the Names of
Nature of the Caſe will not admit of Satisfa&tion. Such Criminals, that by their Meanneſs could als
And here my firſt Aſſertion is, That tho' it does ford their Enemies no other Satisfaction, than
not appear to be unjuſt in it ſelf, that the Man that of Revenge (f). 'And therefore when the
that did Evilſhould ſuffer Evil (a), yet that Puniſh Magiſtrate puniſhes a Criminal with Death or lg-
ment oughe never to be infliated without a proſpect nominy, it is not becauſe he takes any Delight in
of making ſome advantage from it. And there their Puniſlament, but becauſe he intends fuch
fore Hobbes makes this one of his Laws of Nature, Examples for publick Inſtruction, and that the
de Civ. c. 3. f. 11. That in Revenges or Puniſhments, • Common-wealth may make ſome Advantage
Men ought not to look at the Greatneſs of the Evil pafts by their Death, that did it no Benefit in their
but the Greatneſs of the Good to follow ; whereby, we Lives (g)". But I am not ſo far of Hebbes's
are forbidden to inflict Puniſhment with any other design, Opinion, as to call it an set of Hoſtility, when
than for the Correction of the Offender, or the Admoni ever the Government puniſhes without conſidering
tion of others. And 'tis Plato's Judgment (b), • That the true End of Puniſhment ; ſo the Puniſhment in
a Man that acts with Prudence, will never puniſh Other Reſpects be inflicted according to the Laws
barely for the paſt Offence; for it is impoſſible of the Common-wealth (b).
for him to undo what is done already ; but he IX. But the true and genuine End The firft End of
• will always regard what is to come, either to of Puniſhment is Precaution againſt In- Punjament the
of
prevent the ſame Offender from being guilty a juries; which is obtained, either by the Offender
ſecond time, or elſe to frighten others from the Amendment of the offender, or
tranfgrelling by his Example (c)". It is indeed ab- by deterring others by his Example from offending
folutely neceſſary, that fome regard ſhould be had for the future; or by ivflicting ſuch Puniſhment on
to the Crime committed, becauſe without that, the Party peccant, as ſhall deprive him of a Car
'tis evident, there can be no Puniſhment ; but then pacity of tranſgreſſing any more; which Grotius, in
the End of Puniſhment ought alſo to be conſidered, other words, in the Second Book, Ch. 20. Sea.
that a Man may not fuffer Evil, for what is too 6. expreſſes thus, Puniſhment either reſpects the Per-
late for him to remedy; for tho' he be a Criminal, fons Good that offended, or bis, whoſe intereft it was be
yer he is of the ſame Flesh and Blood with other ſhould not have offended; or indifferently, the Good of
Men. And Hobbes proves this Law by theſe two every one (i). The firſt ſort of Puniſhment, is that
Reaſons; firſt, • Becauſe a Man is obliged by which deſigns the Amendment of the Offender, or
the Law of Nature upon Caution for the future, to correct his bad Inclinations by a contrary Me
to pardon them chat repenting deſire it : And thod of Cure. For ſince every Action, and ef-
fecondly, Becauſe Revenge, as it reſpects only pecially one which is deliberate and repeated, is apt
the Paft, without regard to the Example and to biaſs our deſires, to give us a bankering after it,
Profit to come, is only a Triumph and Glorying and to grow into what we call an babit ; it will
' in the Hurt of another, tending to no End, and be neceſſary to deprive Vice, as ſoon as we can,
is therefore vain, and contrary to Reaſon. It of all that looks tempting in it (k). . And there-
might perhaps be a Saying proper enough for an fore, as Socrates ſaid, of all Delinquents, he is cer-
Attila (d); That he knew nothing Sweeter than tainly the moſt unfortunate, who never ſuffered
Revenge, and thought no Satisfa&tion in nature greater : for his Crimes, and he's ſure to be leſs unhappy,
But a Judge when he is forced to puniſh, ought by when-ever he does; ſince then he ſatisfies the
no means to take pleaſure in the Sufferings of the • Juſtice of God and Man; for he that ſuffers dif-
Criminal (e).
chargech the guilt of his Conſcience (7). Cor-
rection, as Seneca ſays, well deſign’d, and uſed
Qui fruitur pænå ferus eft, legumque videtur
with Judgment, is ſometimes abſolutely necel-
Vindiétam præftare ſibi; diis proximus ille eft, ' ſary; there being no ſuch hurt in it as is com-
Quem ratio, non ira movet : qui fa&ta rependens monly imagin'd; for under an appearing Evil
, it
Confilio punire poteft.---
carries with it a very ſucceſsful Remedy. For a
• vicious Diſpoſition is reform’d by Pain and Un-
'Tis cruel Pleaſure to enjoy the Pain
eaſineſs infli&ted on the Body; "after the ſame
Our Sentence dooms the Guilty to ſuſtain ; manner, as it is uſual to bring crooked Timber
Juſtice forgets her firſt and great intent,
to Straitneſs, by plying it over Fire, or by open-
When to Revenge ſhe turns the Puniſhment. ' ing its parts for uſe, by the Wedge and Sawe.
But 'tis a Godlike happineſs of Mind,
Though we need not go ſo far, as to agree to
Freely to judge, with Parlion unconfin'd; what the ſame Author faith in another place;
To reaſon calmly, and as things appear
• That when either by our Selves, or by Friends,
In their true light, be gentle or fevere.
we have injured another Perſon, it is our duty

(a) Pindar. Nem. Od. 4. v. 52•
epizorra ni mabay Eoons,
He that doth Ill, 'tis juſt ſhould Suffer.
Euripid. Hecub. v, 1250, &c. When you have had the guilty Confidence
To do à Crime, learn to ſubmit and bear
The Puniſhment.
(6) Plato Protag. p. 226. A. B. Edit. Wech. (c) Seneca de Trâ, 1. 1. c. 16. ſpeaks to the fame Senſe. (d) Fernandus de
Call.c 12. It never looks well for a Prince to be guilty of Revenge, purely to ſatisfy his own Reſentments.
Rebus
Geticis, c. 39 ) Claud. de Conf. Mallii, v. 223. &c. Valer. Max. 1, 2.4 2.1.3 Vulcat
. Gallicanus
in Avid.
(f) Suetonius Aug: c. 32. (g) Senec. de Trâ, 1. 1... 6. (b) Leviath. c. 28. Add. L. 18. t. 7. in fin. 1. 7. D. de feruis
exportandis. (i) Conf, Senec, de Clem. l. 1. c. 22.' (k) Plato, Gorgias, 325, &c. (1) Seneca de Irâ, 1. 1. c. 5,
rimme-

I
Chap. III27
.
Over the lives and Fortunes of the subje&t, &c.
6
Man to
any
* to corrent
026 Government,
low'd Parents the uſe of this Right over their their Children at Difcretion, for thoſe petty Mil-
as neceffarith,
111 immediately to apply our ſelves to the Magiſtrate And the trutb of this appears from the common
to be puniſh d, as we would to a Phyſician ; left return that is made to any Man, who undertakes
che injurious Diltemper (hould ſo far infeat us, to reprove a Perſon he has no acquaintance with, (as
as to ſeccle in an incurable Diſeaſe: For a Man Terence (d)) repreſents it) Have you so little Buſineſs
that is of ſo good a Diſpoſition, as to be in a of your own, as to intrude into another's, and meddle
Readineſs to deliver himſelf up to Juſtice to puniſh with what
with what doth not concern you? And therefore
his own Faults, has no need of making the Magi- Chremes, in that Author, when he juſtifies his re-
Pirate his Phyſician, but may be ſafely truſted with primanding Meredemus; appeals to the Right of a
his own Cure (a).
9 Neighbour, which he ſaid, he thought might
ni X. As to the Perſon who is to in- claim the next title to Friendſhip (e). But beſides,
Whether Law- flict this fort of Diſcipline, Grotius "tis a very neceſſary part of Prudence, to know
ful for any
thinks (b). That 'tis naturally how to apply our Reproof; for an unſeaſonable
free, for any Man to exerciſe that miſtake of this Nature, may be of very ill conſe-
Sofort of Punijhment which deſigneth quence to a Man's ſelf, and barden the Perſon he
only the Reformation of the Offender ; provided he intended to reform in the vicious courſe he was
'be Maſter of a good Judgment, and not guilty in before. Parents (f ) indeed have a right to
of the same Faults, or others of the like Nature, correct their Children, upon a double Account;
* himſelf." (For they are certainly the moſt unpar- both becauſe the Methods of Education, which
donable Criminals, who have the Impudence to Impeach Nature obliges them to beſtow upon their Children,
others of Crimes they are guilty of themſelves,; and if a would be to no purpoſe, if they had not the Li-
Man would reform others, he muſt firſt mend himſelf berty, as they ſee occaſion, to uſe them with a
(c).) But that as to other forts of Puniſhments little Sharpneſs and Severity , and becauſe, out of
a
Beating, and the like; Nature hath made no Di Sovereignty over them. And though, in many
• ftinction between the Persons that may, and Common-wealths, this Power is reduced to a very
thoſe that may not, inflict them upon others. little Compaſs, yet they have ſo much almoſt every
Except it be, chat Reaſon hath particularly al- where left them, as giveth them leave to correct
Children, upon the force of Natural Relation. behaviours, which are the Effects rather of the
And therefore generally the Civil Laws, to levity and imprudence of Youth, than of any inve-
prevent Confuſion and Diſturbances, have juſtly terate ſettled ill Habits of the Mind; and which
reftraind the common Affinity of Mankind, on- diſturb more domeſtick Quiet, than the publick
ly to che nearer Branches of Blood. But there Peace. And 'tis as
does not ſeem to be much Satisfa&ion in This: Parents ſtead, have the care of educating young
For, as I ſaid before, no Puniſhment, whatever People committed to them, as Tutors, Governours,
the end of it be, can be infli&ted, but by the Aue and Maſters; † ſhould be allowed the ſame Power;
thority of the Sovereign: And therefore all Reproof becauſe they can never diſcharge their Duties as
by Words looks rather like Counſel and Advice, they ſhould, without the moderate ufe of gentle
than Puniſhment ; which when vebemently delivered Diſcipline (8). But this ſort of Punishment Grotius
and preſſed in barſh Language, ſeems to be ſays, ought never to proceed. So far as Death; ſince
founded rather upon the particular Laws of 'tis very abſurd to hope to reform á Man, by
Friendſhip (1), than upon any common Right. throwing him into a Condition, in which 'cis im-

an
C

Criminal in us,
; or to allow
(a) Apuleius de Dogm. Plat. p. 615. Edit, in Ulum Delph. There is more Diſquiet and [neaſineſs in the Impunity a:
Delinquent enjoys, than there is in the moſt ſevere Puniſhment. Plato de LL. 1. 9. in the Beginning. No Puniſhment
appointed by Law is intended for an Evil, but only to effect one of theſe two Things, Either to make the Offender
þetter, or at leaſt not ſo bad as he was. Ariftot, Eth. ad Nicom. I. 2. c. 2. p. 20. Ed. Pariſ. Puniſhment is a fort of Phy,
fick, and Phyſick commonly works by contraries. Alcinon de Doctrin. Plato c. 32. 'Tis as neceſſary for an Offender to
be puniſh'd, as it is for a ſick Man to apply himſelf to the Phyſician : For Correction is a ſort of Remedy for a vicious
Mind. Tacitus, Ann. III. c. 54. A debauching, a crazy and violent Temper,' matt be cooled and kept under by Re-
fraints as ſtrong as the force of its Lafts. Plato in Critias, in the Beginning. The proper Puniſhment for one that
tranſgreſſeth out of Negligence, is that which makes him cautious.
(6) L. 2. c. 20. f. 7. (c) Iſocrat. de Permutatione, p. 539. Edit. Parif. Lactantius Div. Inft. 1. 4. 6. 23., When Criſpus
in Tacitus, Hiſt. 1. 2. c. 10. towards the End, Condemnd Fauftus, tho' he himſelf had been Employ'd and Rewarded for
bringing in Accuſations of the ſame kind before, "tis Said, That the Puniſhment of the Crime did not grieve Fauftus fő
much, as it did that ſuch a one ſhould inflict it. Arnobius adv. Gentes, L.1. It is a great Injuſtice in you, to make thất
which
you
do
your
felves
your
felves in the Practice of thoſe things, which you ftri&tly
forbid to others.
(1) Vid. Terent. Heautontimor, A&. 1. Sc. 1, v. 4, &c. (d) Ibid. A&t. 1. Sc. I. v. 23, &c.
Q. Curtius, 1. 3. c. 12. n. 16. ſpeaking of Hepheftion, No one could take that Liberty to reprove the King which
he did, which yet he was ſo tender of uſing that the King ſeem'd rather to allow him in it, than he to aflumo it. Cic.
Of. 1. 1. c. 17. Advice, Perſwalion, Exhortation, Conſolation, and ſometimes Reproof, are particularly uſed in Friend
Thip
. Hom. Hiad. L. 11. v. 792. 'Aga. Ini dü maggioasis Czev stales. And to this we may refer that of Mufoniu's Rufus in
Tacitus, Hiſt. 1. 3. c.81. (f) V.L. 47. t. 10. 1. 7. f. 3. D. de Injuriis. Libanius Declam. 20.
+ See Mr. Noodt's Treatiſe ad Legem Aquiliam.
(5) Seneca de Irâ, l. 2. c. 27. The Corrections of Parents and Maſters muſt be look'd upon to be of the fame Nature
with Cutting and Abſtinence, and other ſevere Methods of Cure, which do us good when they hurt us What Power
other Relations have over others, in this caſe may be ſeen. L. 9. t. 5. C. de Emendatione propinquoram. Plato de LL. 1.
7p: 893. A. decrees, that in his Common-wealth, Since young People are as'intractable as the wildeſt of Beaſts, thoſe
Children that were Free ſhould be ſubje&t only to the Correction of thoſe that had the charge of their Education. But
that any Freeman ſhould have the Liberty to chaſtiſe any Slave, whether Bay, Maſter, or Tutor, if he took him in
any Fault. Xenoph. de Repub. Lacedæmon. Lycurgus made a Lavo, That no Man ſhould command his own, or another
Man's Children, to do any thing but what was Juft. And that if a Child ſhould be beaten by another, and complain
of it to his Father, it ſhould be thought Mean and Irreputable, if the Father did not Correct him again. But what
*D
poſſible
28
Of the Power of the Sovereign,
Book VIII.

Crimes of a deeper Itain, mult not be allowed the is, they made Satisfaction by Baniſhment, and did not
poſſible for him to expreſsi lany Amendment 3 from bim, ſecuring him in fome diſtant place, and
though 'tis the Opinion of lôme, that when a the like: or elſe
. Thirdly, by obliging him to learn,
Man is grown incorrigibly vicibus, 'tis juft and at his own Peril, not to incur further Guilt of
reaſonable to deprive him of Life ; eſpecially Offend any more ; which falls in with the Amend.
lince fuch fort of Perſons are generally very bad ment, 1 before treated of. But now there can be
Neighbours to others. So Seneca fays,
Seneca fays, That no
effe&ual way to ſecure the
Party injured from
* Death is the beft Remedy for an incorrigible Suffering the like from other Hands, but by fuch
Difpofition, and that 'tis the fafeſt way for a puniſhment, as fhall be publick, conſpicuous
, and
* him to leave the World, who is never like to be make the Criminal an Example. And for this reas
" Maffer of himſelf in it (a)! And Plato lays, fon Malefactors are ſeldom executed in Priſon, but
that a Wicked Man had better not live, ſince he in places of common refort, and with fuch frighe-
o is under of Neceſſity of living in. Sulpiridy fül Solemnity, aš may ftrike Tertour into the Múlta
Aſper, in Tacitus, gave this Reaſon for his entude. And this is any End fo natural to Puniliment,
gaging in the Conſpiracy againit Nero, that it was that when in heat of Paffion and Revenge, a Man
iřipojible for him to ſtop his Crmelties otherwiſe; orås thinks he hadh had fufficient Satisfaction from the
Suetonius telleth the Story in his Life of Nerd, Perfon that had abufed Bim, 'tis uſual to add, as
fontic of the Conſpirators charged all the guilt of the yeu like this, provoke me another time. But however
,
Plot upon Nero, bimſelf; as if they could not have the Sovereign only has jaft power to infia this
better exprefst the reſpect they but for him, than by Puniſhment: Though Legiſlators in ſeveral Common
killing him, after be bad diſhonourd'himſelf by Such va wealths, in compliance with the fierce and obftinate
riety of Wickednefs (b). Yet Charity ſhould perſuade tempers of their People, have made ſeveral All
us not to be too eaſily prevail'd upon to give any lowantes and Indulgences to that ill-natur'd Paffion
Man over for deſperate. But this fort of puriflia which urges Men to profecute their own Refent-
ment may alſo promote the good of others. For "tisments and do themſelves Juſtice. The Revenger of
certaifilý fufficient Caution to others, when a Man Blood in the Divine Law, leémeth to have been ext-
reforms upon the fenfe of the ſeverity of his punifla abliſh'a by ftch an allowance (c): except we rå-
ment; and when an incótrigible Perſon ſuffers ther think this to have been fome remainder of the
Death
, greater Security cannot be given that he State of Nature
. And ſome think they diſcover a
will never create freſh Difturbances. And that Caſtom like this in Homer, in that Paſſage which
none but ſueh incorrigible Perſons ſhould ſuffer relates to Theoclimenus. Indeed, I thitik the Law
Death, may perhaps be well enough admitted, in Euripides mentions, can hardly be explain'd in any
Crimes of a lower rank, and leſs malignity. But other senſe (d), quydias coisy év)a montarci de jon) that
ſame Privilege. For ſince no Man is to be decla- kill one another; implying that the old Cuſtom of
red incorrigible till he had been frequently guilty private Revenge was abrogated, to prevent the dan
of the fame Fault, it would be but little for the ger of its going too far; which in Puniſhments in-
advantage of the Commonwealth, to defer the Xicted by the Magiftrates, there is no fear of. It
puniſhment of a Criminal, till he had frequently re- appears indeed from Homer
, that it was uſual to
peared perhaps the worſt of Villanies.
buy off the Baniſhment, by paying a pecunigry Muldt,
1 XI. Anothet End of Purifhment, to the next of Kin to the Party kird (e). Anda
The ſecond End is his good, whoſe Intereſt it was the this day in Moroccbj 'tis permitted the Kindred of
Čaution for the Criminal ſhould not have offended, or the murtber'd Perfon, either to compoſe all diffe-
Injured. who ſuffer’d by the others Offence; rence by an Agreement with the Muriherer, or to
that he may not for the future be diſpatch him without formal proceſs, if Publick Ju-
in danger of the like injury from him or any one fiice hath not apprehended him before; becauſe it is
elle (1). And this is to be obtained theſe three there taken for a ſettled Rule, that Revenge is no
ways. Firſt, by the Death of the Criminal: or Sin. And Tacitus in his Account of the Germans, C.
Secondly, if he be allowed Life
, by depriving him 28. tells us, "That the Father, or the next of Kin,
of Power to hurt ; as by keeping him in cuftody, are under a neceſſity of engaging in the quarrel ;
taking his Arms, and other Inftruments of Miſchief but the difficulty of an Accommodation, (Taith he)
6

Xenophon fays, 1. 5. mei dyabéo. (That, if I ſtrike any Man for his own good, I own I deſerve to be puniſh'd, but
then it muſt be ſo as Parents are punilh d by their Children, or Mafters by their Scholars : For thus Phyſicians are ala
low'd to Cut and Burn their Patients, when it is in order to their Cure) was only to excuſe that Severity, and Morolemeſi
of Humour that was obſerv'd in him. But what may be Lawful enough for a General or a Commander to do, is not there
fore Lawful for every one elſe.
(a) Seneca de Irã, 1. 1. C. 16. in the Beginning. You are now grown incurably Wicked, and are perpetually adding
one Crime to anothers you no longer give your ſelf the Trouble to bring Excuſes, (which ill Men are ſeldom without)
for your Vices, but think the Sin it felf, reaſon enough for you to fin on. You have fach a Thirſt after
Wickedneſs
,
and have indulged, and pleaſed your ſelf in it ſo long, that it is impoſſible you should quit it, till you take leave of
your ſelf. You will one time or other endeavour to lay violent. Hands upon your ſelf. Well, we will be your Friends
,
and remove that Madneſs from you, which fo diſorders you; and fince you are fo deeply engaged in your own and
other Men's Puniſhments
, will ſhew you all the good thát is now left for you, and that is, Death. Senec de Benef. l. 7.
C. 20. Plato in Gorgia, p. 349. B. Tacitus, Ann. XV, c. 53.
dos da Lagoitin din
(5) Steeton. Nero, c. 36. lamblicus in Protrépt: c.2. As it is ſafer to apply Cauftičks to, a Swelling," than leave it to it
felf; fo 'tis better for a wicked Man to die than live, Rofar. Penfoc. c. 1. When a Man is never innocent but in his
Sleep, 'tis better he ſhould dic than live, as Plato will have it, de LL. 1. 9. p. 928. D. !!
(11) Sec Grot. B. 20. c. 2. f. 8. (a) Numb. XXXV. Deut. XIX. Vide Selden. de J. N. & G. Seca Hebr. 1. 4. c. Zo
upon Exod. XXI. 12. Add. Rochefort Deſcr. Antill. p. 2. c. 19. Homer. Odyflo. v. 276.
(d) Euripid. Oreſtes; v: 512. (e) Honier. Iliad. 9. v, 628. Vid. Apoll. Rhod, Argonaut. 1. 1.4.90.

Grotius
is
other
ment.
to
,
Chap. III. Over the lives and Fortunes of the Subječt, &c 29
is not great, for 'tis uſual to expiate a Murder, XIH. As to thoſe Exceptions which
How far Pri-
" by a Preſent of a certain number of Sheep, and Grotius (8) adds to this Propoſition, vate Men are
Cattle, and then all of the Family will be That the Infliktion of all Exemplary Pu- allowed to in-
fully ſatisfied (a).
niſhments ought to be lodged in the Go- frie Puniſh-
XII. The third End of Puniſhment vernment of every State, it muſt be ob-
The Third, the is the good of all indifferently, the Se- ſerved, that whatever is inflicted in certain Places
general Seca- verity
verity of the Puniſhment being fuffi- and on certain Perſons which are not ſubječt to a-
rity. Od
cient Caution for every Man's Securi- ny determinate Court of Judicature, as for example
(b). The deſign of which fort of Puniſhment is, upon Pirates, muſt be reduced under the Right of
either to prevent Malefa&tors that have done Inju- War, which is utterly different from the power of
ries to fome, from doing the like to others; an ef. puniſhing. For Pirates and Freebooters are common
fect be obtain'd, either by putting them to death, Enemies, and every Man may draw his Sword
by confining or diſabling them in fuch manner, as againſt them. Tis good Advice indeed which
Thall deprive them of the power of doing harm (c), Grotius gives afterwards (1), That it would be
or by the rigour of the Puniſhment, overcoming the moſt proper method for Merchants and Sean
their Inclinations to tranſgrefs: or elſe to better o men, before they begin their Voyage, to procure
thers, thae might be encouraged by the impunity of Commisſions for themfelves from publick Authority
Delinquents, from hurting and diſquiering their to take all Pirates, where-ever it be their fortune
Neighbours. And this may be effe&ted by Publick to come up with them, that fo, when they are
Executions, or as they are uſually callid, Publick obliged to it, they may engage them, not as by
Examples, at the ſight of which others are to take their own, bur upon the publick Authority. The
warning (d). And the more Publick the Puniſh- Law mentioned in Deuteronomy, chap. 13: v. 9.
ment is, the greater effect it is like to have in re doth not give every private Man right to kill the
forming others. The Lacedemonians had a Cuftom Perſon that would' fead him into Idolatry; buc
contrary to the rest of the World,
in puniſhing only to bring him forth to Tuftice, that upon cog-
their Criminals in the Night (e); thinking perhaps nizance of the matter, the People ſhould fione him.
that the darkneſs added lomeching to the Terrour of Bat yet, admitting that every private Man had
the Puniſhment (f ). And under this End of Puniſh- pouver given him to puniſh one convicted of ſuch a
ment, we may compriſe all thofe Advantages which Crime, the eſtabliſhment of fuch a Power by å
reſult from the Support and Preſervation of the previous Law, makes the private perſon an Inffru-
Authority of the Civil Government, among all chement of the Government ; and what Axions he un.
impudent and violent Invaſions upon the Laws, derrakes on this
on this account, muſt be look'd upon as
which 'To frequently diffurb and weaken it. For commanded by pablick Authority (b). The Adion
tis the Intereſt of the whole Common-wealth, to of Phineas (2) tho" favour'd by God's particular
be concern'd for the preſervation of the Supream approbation, is not an Argument to be infifted on ;
Authority; and as long as that continues entire, For fuch a Zeal allowa to any Man'indifferently
the moft.profligate Criminals may be kept under at other times would foon confound and diftra&t
reſtraint. But befides theſe Ends of Puniſhment I all Civil Order, and give Colour and Protection
have here mentiond, I fee no neceflity of allow- to every one's Raſhneſs and Paffion (1). The
ing thoſe other Selden mentions de '7. N. & G. l. r. power of Life and Death, which in fome Common-
c.4. as the Satisfactory, Purgatorial, or Expiatory, or wealths, Mafters of Families have over their Chil-
either that the deviation from the Law may in dren and Servants, tho”it do's not originally flow
fome meaſure be made up, and the inequality of from the Common-wealth, yet under civil Go-
the Action be corrected. The Arguments the pro- vernment, we may imagine it to be a branch of
duces from Scripture, ſeems to relate 'only to Dia publick Authority, which the Sovereign permits
vine Juſtice, or the particular Sanctity of the Jew-Heads of Families to exerciſe over thofe under
iſh Nation.
their Charge. And there is no reaſon to the contra-
() Vid. Dionys. Halicarnal. 1. 1. p. 68. Edit. Lips. Leaving Numitor to inflict the Puniſhments as he pleas'd, becauſe
he thought it reaſonable, that the Party that was injured ſhould have the Right to puniſh,
(6) Plato de LL. II. P 977. B. Criminals are puniſh’d, not becauſe they have offended, for what is done can never
be undone ; but that for the future the Criminals themſelves, and ſuch as ſee their Crimes prinih'd, may take Warn-
ing, and be put out of Love to Vice. Tullus in Livy, l. 1.c 28. Let others at their Peril, attempt the like afterwards,
when I have made him an Example to all Mankind. And let the World learn, by your Puniſhment, to think thoſe
things Sacred which you have violated. Liv. l. 1. c. 33. Ancus built a Priſon in the middle of the City, juſt by the Forum,
P
no purpoſe to expect any Benefit from any thing, if Malefactors were not perpetually terrified by the Fears and Expea
Stations of Puniſhments.
() Gunth. Ligurinum, I. 1. v. 527, &c.
Nec melius ftulta, furor atque fuperbia, plebis What happier Art could he have us'd t'afſwage
Puniri poterat, quam tanti ut caufa tumoris,
A haughty Town, and a bald Faction's Rage ;
Eriperentur opes, ut, quos opulentia dudum
Than to deprive them of that Wealth, from whence
Fecerat elatos, in ſe revocaret egeftas.
The fatal Ills unhappily commence ?
Seditions are by Wealth and Eaſe maintain'd,
But ſoon by Want and Poverty reclaim'd.
Speaking of the Citizens of Utrecht, who bad been Fined a great Sum of Money by Frederick, for an Inſurrection there.
(d) Vide L. 9. t 27.11.. C ad L. Jul. repetund. L. 9. t 20. 1. 7. C. ad L. Fabiam de Plagiar. Quintil Declam. 274.
When Criminals are executed, the moſt publick Places are choſen, where there will be the greateſt Number of Spetta-
tors, and ſo the moſt, for the Fear of Puniſhment to work upon 'cm. Senec. de Irâ, 1.3, c. 19. The more publick the
Puniſhments are, the greater Effect will they have upon the Reformation of others,
(e) Herodot. Melpom. p. 107. Edit. H. Steph. (f) Comp. Val. Max. l. 2. c. 9. f.
(8) L. 2. c. 20. f.
9.
(1) Ubi fupra, f. 14 (1) Sec Grotiks upon the Place. (2) Numb. XXV. (i) Ý, Selden. de J. N. & G. &c. 1. 4. c. 4.
ry,

3
30
Of the Power of the Sovereign,
Book VIII

mers and their
ry, why there may not be a Magiſtrate in every by his own. Conſcience, ſo he was no inducid to
Common-wealth, who in certain Caſes inay be als that action by any private grudge or reſentment, buc
lowd power to puniflo Criminals extraordinarily, barely by a belief, that by ſuch an action he ſhould
without any judicial bearing, provided care be ta do good to his Country; and eſpecially, if the
ken he ſhall not abuſe an Authority of ſo large ex reaſon why the Law permitted, or commanded
tent. Thus, when the Government ſets a certain any Man to be the Exccutioner of the Penalty was,
price upon the Head of a Traitor, the perſon that thac the Commonwealth was in imminent Danger
kills him, is ſuppoſed to do it by publick Authority, from ſuch treaſonable Attempts. But the Caſe is
for altho' ſuch a Declaraiion has not always the different
, as to the Blood which is spilt upon an
force of a Command, yet when the Traitor is kill'd Indulgence, the Law ſometimes alloweth to a juſt
upon a view of that encouragement, the action may Concern and over violent Paſſion; which only
be defended as undertaken by publick allowance takes off the Civil Puniſhment, but doth not excuſe
and authority (a). Grotius in his Comment upon the guilt of the ad. of this nature are the Laws
.
pinion which obtain'd among the Jews, that if Wives, when they ſurprize them in the Aet : for
any Man attempted to betray an Iſraelite, or his Human Laws pardon only the violence of a Dita
Eſtate to the Gentiles, or put any publick Affront content conceiv'd upon the moſt ſevere Injuries
.
upon the whole Body of their Nation, that it would Though poſſibly it might be a more convenient
be no fin for a few to kill him, his eſtate being way, to leave ſuch Injuries to be puniſht by the
left his heirs. But the liberty which the Jews at Magiſtrate, ſo the Common-wealth might be in no
that time took in the execution of their Revenge, danger by the delay of the revenge(d),
does not ſeem to be agreeable to the nature of XIV. But notwithſtanding,
the Civil Government. There is a Law mention'd from the Ends of Puniſhment, and What Offences is
in Andocides Orat. 1. Thatif any Perſon attempted the State of Human Nature, 'tis ma-
is needleſs forhu-
• the Subverſion of the Democracy at Athens, or if nifeft, there may be ſome Actions
man Juſtice to
any Perſon, upon the diffolution of the Popu. in themſelves evil
, which yet it
Lar form of Government, ſhould create any Magi- wou'd be needleſs, and to no purpoſe for Humans
Strate, he ſhould be pronounced an Enemy to the Juſtice to puniſh. Such as are, firft, Aets meerly
State ; and no body that kill'a him ſhould be pu- internal, as ſinful Thoughts, evil Inclinations and
niſhable ; and then follows the Oath which all Deſires; though it may afterwards happen, they
the Athenian Tribes engag'd in, to kill the Per: may (as ſuppoſe by a ſubſequent Confeſſion,) be
ſon that ſhould do ſo. And Valerius inſtituted a diſcover'd (e). For fince no Man is injur'd by
Law at Rome, That no Magiſtrate ſhould ever be ſuch an internal Motion, no Man can be concerna
created, from whom there ſhould lie no appeal; for the Puniſhment of it (f). 'Tis true indeed, as
6 and that it ſhould be lawful to kill any Perſon Philo ſaith, That while we entertain, tho' it be only,
that ſhould make ſuch a Magiſtrate. And that our Imagination, with bad Thoughts, we are guilty of
it ſhould not be capital for any Man that did kill thoſe Thoughts: but this holds true with Relation
i him (b). And the Panchæi are ſaid to have only to Divine Juſtice. Though Grotius in his
looke upon it as unlawful for their Prieſts to paſs Comment upon the sth of St. Matibew, v. 28. Thews
the borders of their conſecrated Country; and, if from ſeveral Teftimonies of Heathen Writers, that
any Man found them without thoſe Limits, he ſuch Thoughts, from bare Reaſon only, may be
was allow'd to kill them (c). Here therefore proved to be real Sins (8). But 'tis a quite dif-
we may obſerve, Thật in theſe, and all other ferent thing, when the internal Aɛts are conſidered
Laws of the like Nature, upon ſuch evidence of in Conjunction with the external ; for the influence
the fact, as admits of no ſcruple and diſpute, the theſe have upon the Quantity and Quality of our
general Edict has the force of a poſitive Sentence of Actions, is very conſiderable. And therefore ma-
Condemnation; and the Death of the Perſon chat ny Crimes are puniſh’d, which have yet been ſtopt
follows upon it, ſeems to be authorized by the in the attempt, and fail'd of final Succeſs (h). But
command of the Magiſtrate (1); and if a private beſides, it would be too rigorous to make every
Man, upon the influence and inftigation of ſuch a Peccadillo ſubject to the Severity of Human Puniſh,
Law, (ſuppoſing the Reaſons of it be juſt,) ments, ſince in the preſent ſtate of human Na-
ſhould kill the Party, he will not only be indemni- ture, the greateſt Caution and Intention imaginable,
fied in the Civil Court, but may be fairly acquitted is not ſufficient to guard us from a Multitude of
puniſh. 13:00
(a) Add. C. L. 3. t. 27: Quando liceat unicuique, fine judice ſe vindicare, vel publicam devotionem. L. 1.
(6) Liv. I. 3. c. 55. (c) Diodorus Siculus, 1. 1. c. 46. (1) Vide Grot. L. 2. c. 20. f. 17. (d). Vide Gratian Can. quiềun.
que, &c. Cauf. 33. Qu. 8. Senec
. Controv. l. 1. Controv. 4. 1. 4. Controv. 24. Xenoph. de Éducat. Cyri. 1 3. p. 41. Edit
.
H steph. Valer. Max. I. 6. c. 1. f. 13. Bæcler ad Grot. l. 2. c. 1, 1. 14. Ant. Matthæus de Criminib. ad L. 48. D. t. 5. Grot.
in flor. (parf. ad Jus Juftinian. ad L. 48. t. 5. D. I. 22, f. 4. ad L. Iul. de Adult. (e) Ad Grotius Imper. de Summas,
Poteft. circa ſacra, c. 3. 1. 1. f) Cogitationis poenam nemo patitur. Vide L. 48. t. 19.1. 18. de Pænis. Philo Lib. quod
det. pot. inſid. The origines Juris Civilis by Mr. Gravina, Lib. III. p. 584. & feqq. and the Obſervationes Jur. Civil. by
Mr. Bynckerſhoek, Lib. 3. Chap. To.
(8) Add. Bodinus de Repub. 1. 4, c. 7, "p. m. 734. Ammianus Marcellinus gives us a very ſtrange Inſtance of Ca;
lamny, l. 15, c. 2. The Story he tells is of one Mercurius, whoſe Practice it was, when any Man happen'd to tell
his Friend his Drcams, (and Dreams in Nature we know uſe to be odd and extravagant) to paint them in the worſt
Colours his Malice can give them, and then repreſent them to the fufpicious Emperor ? upon which the Dreamer was
Indięted, as guilty of as great and high a Mifdemeanour, as if he had atually committed ſome unpardonable Fact
.
So that when
this came to be publickly known, People were ſo far from telling their Dreams before ftrange Company
that they would hardly own that they had been. Alleep. And fome Learned Men were concern’d, that it was
not their
Fortune to be born among the Atlantai, where they ſay, no Body dreams,
(b) Vide Grot. in Flor. Sparſ. ad Lib. 48. t. 8.1. 14. D. ad L. Cornel. de Sicariis.
Slips

Chap. III. Over the Lives and Fortunes of the Subject, &c. 31
ty
Whether law.
Slips and Infirmities. And therefore. Themiftius (a) orders of the Mind, which are the Effects of the
when he had divided Men's failings into three common Corruption of Mankind, ſhould be exemp-
forts, viz. Misfortunes, Miſtakes, and Criminal 4- ted from Puniſhment ; ſince they are ſo general, that
Ffiors, very juitly adds, that a Prince ought to pin 'tis impoſſible but all Civil Government ſhould be
the firſt
, corre& the ſecond, and puniſh the third diffold, if ſuch Sins ſhould fall under the Severi-
(6). 'Tis ſaid of Alphonſus King of Arragon, in of human Penalty, before they diſcover them
That having carefully read over the whole Bo- ſelves by an open Enormity ; ſuch as are Avarice,
dy of the Portugueſe Laws, he highly commen- Ambition, Inbumanity, Ingratitude, Hypocriſe, Envy,
ded the Wiſdom, and the Order, and Adminiſtra- Detraction, Pride, Anger, Diſcord, and the like: all
* tion that was obſerved in the Common-wealth ; which Vices, it was our Saviour's great Deſign,
but was as much diſpleas'd to find ſo many Par. by the Holineſs of his Doctrine, to extirpate and
ricular Laws calculated for the moſt Trivial and fuppreſs. For ʼtis certainly true, as Seneca ſays,
Minute Caſes; and to expoſe the fcrupulous ex ' That it every Man was to be puniſh'd that was
actneſs of them, he ask'd the Portugueſe in way of a wicked and depraved Diſpoſition, none
of raillery, How a Man was to be puniſhed that could be excuſed from Puniſhment (f).
ſet his foot to ground (6). Grotius in his 2d Book,
XV. But neither is it always ne.
C. 20.$ 19. ſpeaking to this Subject, ſeems not to ceſſary that ſuch Miſdemeanours
, as
ful at any time
have ſaid what is exactly proper or true : Our lips may properly be puniſhed by the Cj-
to pardon.
and failings, faith he, can bardly be calls fins ; be- vil Court, ſhould therefore always
cauſé, if we conſider them in the general, they are not be puniſhed by it (1); but there may be fome.
committed with that liberty, which in particular they times room left for pardon. The Stoicks indeed,
Seems to be : for I can't think it is a Conſequence, as Stobaus (8) repreſents them, were violent a-
that if it be morally impoſſible, but a Man muſt gainſt this Opinion: For a wiſé Man, they ſaid,
fall into ſome fins ; therefore ſuch fins of daily in- ought never to pardon any Body; becauſe the
formity, or incurſion, as they are call’d, ceaſe to Perſon that pardons muſt ſuppoſe that it was not
have the nature of fin. He adds in the ſame Chap- the Offender's Fault that he tranſgreft; though 'tis
ter, that thoſe fins do not deſerve puniſhment, certain, that every Man's own natural Depravity
which neither dire&tly, nor indirectly, bear any re- is the cauſe of his Tranſgreſſion; and therefore’ris
lation to Human Society, or other Perſons for ftill crue, that Offenders ought not to be pardoned.
that there can be no reaſon, why we ſhould not what they meant by this Argument ſeems to be
leave ſuch Sins to be puniſhed by GOD Almighty, this, either 'cis a Man's own fault that he offends,
who has the higheſt Wiſdom to know them, the or it is not; if it be not his fault, there is no
greateſt Juſtice to examine them, and the moſt ab- Offence committed, ſince every Man tranſgreſſes
folute power to puniſh them: and that therefore 'tis from his own natural Depravity, and therefore
without any proſpea of Advantage, and conſe- in this caſe there is no need of pardon ; and if it
quently to no purpoſe for Men to inſtitute ſuch pu. be a Man's own fault, then he can't be admitted
niſhments
. Tho' I think, it may be very well to Pardon, becaule Pardon is not to be allow'd tu
made a queſtion, whether there be any ſuch fins any wilful Tranſgreſſors. Which Reaſon manifeft-
as thoſe he ſpeaks of, if we except thoughts before ly begs the thing in diſpute. They add, That a
they are produced into a&tion. Beſides, the Civil good Man is not to be compaſſionate or merciful; for
Laws deny to ſome Acts the power of producing an a compaſionate merciful Man deprecates and endea-
A&tion, or exempt them from buman Penalties ; ei. vours to alleviate the Puniſhment a Criminal de-
ther for publick Peace and Quiet, or upon other ſerves, but every Man ought to have Retribution
reaſonable accounts ; ſometimes it may be ſuppo- made him, according to his deſerts
. But now, the
ſed that a certain Adion would look better, if it Nature of defert or merit is different with reſpect to
could not ſeem to have been undertaken upon good, and with reſpect to evil
. The good which
fear of human Puniſhment, ſometimes the matter is due to a Man cannot in Juſtice be denied him;
may be too frivolous to give the Judges the trou, but the Nature of evil is ſuch, (it not intending
ble of hearing it; or perhaps be too perplext and the Benefit of the Perſon that muſt ſuffer it) that
intricate to be determin'd; or when the evil is it is no Injury to deny it him. They argue fur-
grown inveterate and ſo rooted in the Temper of ther, that a Man cannot be inclinable to mercy,
the People, that it is not likely to be ſuppreſs’d without thinking that the Puniſhments which the
without a Convulſion, which might prove Fatal to Law appoints for Delinquents are too ſevere; or
the Common-wealth (d); or elſe to prevent an that the Legiſlator has preſcrib'd penalties without
unreaſonable Increaſe of Suits at Law (e). In due regard to fa£t. But this is ſtill but weak
fine, It is abſolutely Neceſſary, that all thoſe Dif- Reaſoning. For 'cis no Contradiction, that the



() Orat. IX. ad Valentin. Jun. Add. Sanderſon. de Furam. Oblig. Prale&. 3, ſ. 18. (b) Hier. Oforius, l. X.
(c) Fulianus in Ceſaribus de Probo. 'Tis very difficult for a Man to govern an Horſe, or any other Beaſt, and much more
Men, without indulging them in ſome things they have an Inclination to ; as Phyſicians uſually allow their Patients in
little Irregularities, that they may be the ftri&ter in the Obfervation of the great and chief Preſcriptions. The
great
Lord Shaftsbury, in an imperfet Piece of Mr. Locks, ſays,, “That in every perſon, there are two Men, the
one Wiſe, and the other a Fool ; and you muſt allow 'em the Liberty of following their Genius, each in his turn.
you pretend to have the wiſe, the grave, and the ſerious one, always fit at the Helm, the Fool will
grow
fo
uncalie and troubleſom, that he will diſorder the Wiſe one, and render him incapable of doing any thing : You
mult then let the Fool alſo in his turn, have the Freedom to follow his Whims, to play, and divert himſelf accor-
ding
to his own Fancy, if you will have your Affairs go on ſmoothly and eaſily.
(d) To this purpoſe is Tiberius's Epiſtle about Luxury. Tacitus, Ann. III. 53. (e) Add. Seneca de Clementia L. I.
(f) De Ira, l. 2, c. 31, in fin, (1) Vid. Grof, ubi fupra, f. 21.
(8) Stob. Serm, XLIV.
Puniflor
« But if
32
Of the Power of the Sovereign,
Book VIII.
as to
Puniſhments preſcrib'd by the Law may be juſt, and Tranſgreſſion, or Pardon of Tranſgreſſion. And a
yet may ſometimes be mitigated; for the Law de-
for the Law de- Penal Law, is not only a Law, which defines the
termines only in general, what Puniſhments are to particular ſort of Puniſhment; but that Law alſo is
be infli&ted on ſuch and ſuch Crimes, without con a Penal Law, which leaves the Determination of the
fideration of the particular Circumſtances which Quality and Quantity of the Puniſhment, to the
may ſometimes happen, in certain Perſons, in certain Diſcretion of the Judge
. Here therefore it muſt
States and Conditions of the Common-wealth. be obſerv'd, that in Common-wealths which have
But particular Men are pardoned for certain Rea. no written Laws, the Laws of Nature ſerve inſtead
fons which do not take place either in all of Civil Laws, and Juſtice is adminiſtred according
Offenders, or at all times. Seneca (a), in his to them; and Perſons tranſgreſſing them are puniſh'd
Book de Clementia, ſays, That Pardon is a Re at the pleaſure of the Judge : but even, where
miſſion of the Puniſhment which is due, (pænæ debitæ) the Civil Laws are written, yet ſince it is impofli-
but that a wiſe Man always doth what he ought to ble they ſhould be ſo expreſs and particular, a
do. But here the Miſtake lies in the word due compriſe all that Variety and Compats of A&tion,
(debitæ,) For if it be meant, that puniſhment is due in which Men's Impieties may be diſcover'd; it is
to Offenders ; that is, that an Offender may be pu- neceſſary that Reaſon, and the Law of Nature
wiſhed without injury or juſt occafion of complaint; ſhould ſupply the Defects of the Civil Law: and
in this ſenſe it will not follow, that if a Man doth where the expreſs penal San&tion is not ſufficient, it
not puniſh an Offender, he doth what he ought not muſt be left to the Diſcretion of the Judge to de-
to do: for a Man may very juftly and lawfully do termine the Penalty (b). And thus we may under-
many things, which he is not always neceſſarily ftand how Punishment came to take place antece-
obliged to do. Beſides, as it is a miſtake to fay, that dently to the Penal Laws (c). But although, in
Puniſhment is due to an offender, meaning by it, ſuch Commonwealths, the Magiſtracy hath Pow-
that there is an inherent Right in the Delinquent er to inflict Puniſhment on Malefadors, yet this
which the Puniſhment is to ſatisfy, (for I think no is no Reaſon why every Malefactor ſhould be
Man ever complain'd that his Puniſhment was puniſh'd ; but that muſt depend upon the Con-
remitted ; except it may be ſaid, that a Man nexion there is between thoſe Ends for which
may wiſh that ſuch Correction, as might have re- Puniſhments were at firſt inſtituted, and the Puniſh-
claim'd him when he was young, was negle&ed, ment it ſelf
. And therefore, if in a particular
when he finds that his childiſh Leviries and Faules, Caſe, thoſe Ends, upon a moral Eſtimation, do
are grown up into bold and manly Vices.) So'tis not appear to be neceſſary: As ſuppoſe, firſt, 'Tis
improper to ſay, that a Delinquent ought to-ſuffer thought moſt adviſable, that ſuch a particular
Puniſhment, (pænam dare) meaning by it, that he is Crime ſhould not be divulg'd; or, Secondly, If there
under an Obligation to ſuffer it: the reaſon of be other oppoſite Ends of no leſs Utility and Ne-
which I have explained before. But if by the cefſity, as luppoſe, the same, or a greater Good
Word due (debita,) it be underſtood, that a wiſe might be obtain'd, by omitting the Puniſhment ;
Man is obliged to inflict the Puniſhment ; I anſwer, or, laftly, If the Ends propoſed by puniſhing, may
firſt, That no Man can be under any ſuch Obliga- be more conveniently obtain’d ſome other way;
tion, unleſs the executive Power of the Laws be I can ſee no direct Obligation that lies upon the
either publickly or privately committed to his Care. Civil Court to inflict Puniſhment (d). To inſtance
And, jecondly, That the Obligation which lies upon in the firſt Caſe, we muſt imagine fome Sin,
the Governours, doth not relate to the Delinquent, which is not yet grown into common Acquain-
but to the whole Common-wealth or Society, tance, and in conſequence, the publick Impeach-
whoſe ſafety they are bound to provide for, and ment and Proſecution of which will appear
eſpecially this way, by puniſhing the Inſolence of neither neceſſary nor ſafe : for many Men's Obe-
Offenders; which if they neglect to do, there is no dience depends more upon their Simplicity and
Injury done the Criminals
, but they have violated Ignorance of Vice, than any real Love they en-
the obligations which they owe to the Common- tertain for Virtue ; and the puniſhing ſuch a Crime,
wealth. But 'tis evident, that the Peace and fo new and ſtrange, would not frighten ſo much,
Safety of the Common-wealth is ſo far from being as follicite and provoke their perverſe Curioſity,
ſubverted, that it is ſometimes ſecured and efta- to make an Experiment upon it too, and to love
bliſh'd by granting Perdon, in proper times and what is forbidden them. For this reaſon, itis
places.
ſaid, Solon inſtituted no Law againſt Parricide,
XVI. Grotius, l. 2. C. 20. Sect. 21, that he might not ſeem by forbidding it, to have
How far this is 22. ſays, That there is room for put People in mind of it (e). And Busbequius
lawful antece-
Pardon even antecedently to the Penal tells us, " That the Turks feldom make Inquiries
Law ; but this ought to be dexte • after ſecret Criminals, for fear they ſhould only
rouſly explain'd; otherwiſe it will ' find Occaſion for Scandal; but that every open
appear to be but a very vulgar Thought, that Breach of Law they ſeverely puniſh (f): An
where there is no Law, there is no Punishment, no Inſtance to the ſecond Cafe, may be conceiv'd in a

dently to the Pe-
nal Law.

(a) Senec. de Clementia, 1. 2, c. 7. in fin. Vid. Ciceron. Orat. pro Muræna, C. 29;
(6) Lycurgus contra Leocratem. It was not through any Overlight in the Legiflators
, that the Puniſhments for ſuch
(c) And from hence that Pallage in Cicero may be explain’d, 1. 1. in Verrem.c. 42. No Law takes Cognizance of the
Time paft, except it be in a thing in its own Nature criminal and wicked, to that if there were no Law in force, it
ought nevertheleſs to be abſolutely avoided. (d) V. Gratian. Cauf. 23. Quæft. 3. c. 18, 24.
C) Apuleius Metamorph. L.10.0.319. Edit. in ufum Delph. "Tis the ſame thing almoſt not to be, and not to be known.
Add. Senec. de Clement. 1. 1. c. 23. Busbeq. Ep. 3. (f) Which is almoſt the ſame with the Counſel Mæcenas gave Augus-
ftus concerning the Impoſition of Puniſhments. Dio Caſius, 1. 52.

Criminal
Chap. III. Over the Lives and Fortunes of the subject, &c. 33

C
Criminal who pleads his own, or his Parent's, or jurious Party confeſs, that it was a raſh and in-
his Anceſtor's Merits to balance his preſent Tranſ- conſiderate Action; ſo in all ſuch Caſes he will
greſſion; for it may ſometimes be equally, or per- be more inclined to pardon than puniſh (2). For
haps more beneficial to the Common-wealth, to fince all ſorts of Puniſhment, and eſpecially the
reward a brave A&tion of a particular Nature, than more fevere, ſeem to have ſomething in them,
to puniſh a bad one : and the Expectation of future which conſider'd in its ſelf, is, though not re-
Benefits, as well as the Memory of paſt, may be pugnant to Juſtice, yet contrary to that Love and
thoughe fufficient to expiate the (1) Crime., For Affection, which ſhould be the Reſult of the com-
though what is once ill done can never be remedied, yet mon Affinity of Mankind; upon this account
it may be atoned for by the brave Actions of the Same Reaſon will eaſily permit the Puniſhment ſhould
Perfons afterwards, and so be honourably forgotten (a). be ſometimes fuperſeded. And ſo we find Plu-
An Inſtance in the third Cafe, may be taken from tarch reaſoning (f), Why, ſays he, were the
a Man who is won by.es
by good Advice to reform, Rods and Ax always carried tied and bound up
makes a verbal Satisfaction to the Perſon injur'd; before the Roman Magiſtrates ? unleſs either to
and giveth Security that there ſhall be no further ' fignify to us, that their Anger ought not to be
occaſion of Puniſhments tº theſe Ends, and that . left looſe and unconfin'd; or elſe that the flow
his Fault ſhall not be of any miſchievous Influence. unbinding the Inſtruments of Execution, might
And then Seneca himſelf ſays (6), "That a wiſe give them occaſion to demur and delay Sena
Man will be very ready to pardon a guilty Per tence; and, as it hach ſometimes happend, to
ſon, when his Sorrow for his Fault giveth him reverſe the Puniſhment, after it hath been pro-
promiſing hopes of Amendment; and when he nounced (g). For ſome Vices are curable,
perceives he acted not by Principle, but only others are paſt Remedy ; the Rods are to cor-
• out of Raſhneſs and Folly ; nor will the Impu- ' re& thoſe that may be reform’d, and the Ax
nity ſo given, either be dangerous to the Perfon cut off what there is no hopes of amending”.
that receives, or to him that gives it. From all For ſometimes a greater and juſter Charity forces
which, by the way, it appears how far a Crime Juſtice to inflict the Puniſhment, that the pardoning
may be releaſed by Compoſition and Agreement one Man might not incommode many others :
with the Accuſer or injured Party ; namely, that For 'tis but cruel Compaſſion to ſpare one Male-
they may ſafely remit and forgive it, ſo far as factor to the Wrong and Hazard of a number of
their private Concerns are engaged in it, but that innocent Perſons (). King James in his Donum
no particular Compoſition with them can ſuperſede Regium, l. 2. gives us this Catalogue of Crimes
or prejudice the Right of the Commonwealth. that ought never to be pardoned ; Namely, Sora
And therefore ſuch Agreements between private cery, Robbery, Inceſt, Sodomy, Witchcraft, falſifying
Men, may take away the ſecond End of Puniſh the Coin, Oppreſſion or publick Violence. In there
ment, but not the third (c). But to this caſe we Caſes I have mentioned, therefore, the Stoieks
may reduce thoſe Misbehaviours which we com- ſay, A wiſe Man would ſpare and not pardon (i).
monly call Follies of Youth, which any Man of But 'tis a ridiculous Nicety to refuſe to call that
candid Temper is willing to pardon; ſince, when a pardoning with the reſt of the World, which
the Warmth of that Age is over, Men uſually they themſelves will have to be ſparing; and 'tis
admit of cooler and more fober Thoughts (d). certainly beneath Men of Senſe to diſpute about
And ſo alſo, when a Man has been injured (e), Words, when the Senſe of the thing is agreed
as he thinks the Injury, much the leſs, if the in- upon.
on nom

(1) The Words which our Author here makes uſe of, ſhew that he had in view a Paſſage of Seneca's, quoted by
Grotius, Set. 22. Numb. 1. But as that great Man has manifeſtly cited it without Book (for he does not fo much as mena
tion the Treatiſe where it is) ſo he entirely changes and perverts the Thought of the Stoick Philoſopher, in writing Inju-
riam inſtead of Injuria: And it is ſurprizing, that this over-ſight was not taken notice of by Gronovius, who, before his
writing a Comment on Grotius de Jure Belli & Pacis, had publiſh'd an Edition of Seneca. The Philoſopher handles
this Queſtion, whether we are oblig'd to fhew any Acknowledgement of gratitude to a Perſon, who, after he has been
ſerviceable to us, does us an Injury? And he concludes, that the Injury effaces the former Service or Benefit Quo modo
fi quis ſcriptis noftris alios fupernè imprimat verſus, priores litteras non tollit, fed abfcondit ; fic beneficium SUPERVENIENS
INJURIA adparere non patitur. De Benefic. Lib. iv. Cap. vi. in fine. Grotius on the contrary, makes him ſay, That the
Benefits etface the Injury. But this laſt Maxim will be better illuſtrated
, by the following Paſſage in Cicero, to which
Gronovius refers in his Notes, and which that great Orator made uſe of in an Oration in favour of Julius Cæfar; Si jam
violentior aliqua in re C. Cæfar fuiſſet, fi eum magnitudo contentionis, ftudium Glorie, præftans Animus, excellens nobilitas,
aliquo impuliſſet--- maximis rebus, quas poftea gellit, obliterandum. Orat. in Vatin. Cap. vi. To which may be added, that
Law of the Digeſts, that allows Pardon to a Deſerter, who ſince his Deſertion has diſcover'd a conſiderable Gang of
Robbers, or ſeveral other Deferters. L. xlix. Tit. xvi. de re militari Leg. v. Se&. 8. Mr Barbeyrac's 4th Note on this Section
(a) Procop. Hift. Vandal. l. 2. c. 16. (6) Seneca de Ira, 1. 1. c. 16. p. 20 Edit. Gronov.
(c) Tacitus, Ann. III. c. 70. There was Reaſon why he ought to be flow in pardoning the Indignities offer'd to
himſelf, that he might be cautious how he forgave thoſe that, injured the Publick.
(d) Juvenal, Sat. VIII. v. 166, Esc.
Quædam cum prima refecantur crimina barba.
Some Faults of courſe with Childhood end.
Vid. Ariſtot. Rhet. 1. 2. c. 3. init. (e) Vid. Arrian. de Expedit. Alexand. magn. 1. 7. (2) V. Grot. 1. 2. c. 20. f. 22.
(S) Plut. Quæſt. Rom. 82. (8) Juvenal, Sat. VI. v 220. Nulla unquam de morte hominis cunctatio longa eft.
(1) Julian. in fin. Miſopog. p. 371. Ed Spanhem. 'Tis an Encouragement to the Growth of Wickedneſs, to ſhow any
Favour to Thieves and Villains. Appianus Alexand. Mithrid. Bello, p. 250. Ed. H. Steph. There is nothing more Une
grateful than a pardon'd Criminal. And therefore none ought to be pardon'd' but ſuch as repent of their Wickedneſs.
(i) Gunth. Ligurinum, 1. 1. v. 478, Egoc.
Plus fepe nocet ſapientia Regis,
Exceſs of Mildneſs in indulgent Kings,
uam rigor : ille nocet paucis, hic incitat omnes
More Danger, than the ſtricteſt Rigour brings.
Dum ſe ferre laos Sperant impune reatus,
Some few perhaps may by Injuſtice die,
But who can any pleaſing Sin deny,
Secure of Pardon and Impunity?
* E
XVII. But
*
34
Of the Power of the Sovereign,
Book VIII.

terlit.
C
ed; and becauſe the Magiſtrate himſelf would « membrance, what good things he hath formerly
fo he has Power to ſuſpend its Effect, with regard Requeſt of Men in favour. alleviated the Puniſh.
XVII. But after the Eſtabliſhment Mitigation of the Penalty adherent to it. And
flori får af- of the Penal Law, the Difficulty feems therefore, I am of Opinion, 'cwould be much
to be grearer, how the Delinquent can more proper, to allow of no other but the external
be excuſed from Puniſhment (2). For Cauſes of relaxing Puniſhment ; ſuch as the former
there ſeems to be more room left for Pardon, where Deſerts the Criminal himſelf, the Merits of his
the Penalty is árbitrary, than where 'tis exprefly Family
, or Relations, or ſome other commendable
determin'd by a Law; and that, not fo much, Action or Thing; or laſtly, the Hopes that the
becauſe 'tis expected that the Legiflator ſhould act Delinquent may make Amends for his Fault, by
conformably to his own Laws; as becauſe the many good A&ions afterward. And therefore
,
Authority of the Laws will be loft, if the due Tully faith (c), That a Man that petitions for
Execution of them is without good reaſon' neglect Pardon, ſhould
Thould firſt of all put the Judges in re-
feem to invite others to tranſgreſs when the hopes done, and ſhow how they over balance the Guild
of Pardon which he gives the Criminal is equal, or of his preſent Crime; and that in ſhort, he has
greater than the fear of Puniſhment (3) (). been the Cauſe of more Good, than Evil: And
Therefore, though the Force of human Laws de then, ſaith he, in the next place, he ſhould
pends upon the Will of Man, not only as to their recount the good Actions of his Family, what-
Original, but alſo as to their Continuance; yet ever he thinks proper to be inſiſted on, and
they ought not, but upon very urgent and weighty then he is to prove that he did not commit the
Reaſons, to be alter'd or repeald. For this woulà Fact either out of Malice or Cruelty, but out
be a Breach of the Rules of Prudence, in the • of Raſhneſs, or from ſome other Perſon's Inſti-
Art of Government. But I don't know whether it gation, or upon any
gation, or upon any other creditable or ho.
be not à more dangerous Miſtake, without very nourable Cauſe which engag'd him in it ; and
good Reaſon, to ſuſpend the Execution of a Law after all make what Promiſes, and give what
ſtill in force, for the fake of certain Perfons; " Aſſurance he is able, that the senſe of his
than utterly to abrogate it : fince generally, none Crime, and the Lenity of the Judges in pardon-
of the common Grievances of Men, ſeem more ing him, ſhall have ſuch an Influence upon him
inſupportable than this, That Perſons of equal for the future, as ſhall entirely reſtrain him
Merit, are not uſed with equal Juſtice. But not • from ever attempting the like again. And thus
withftanding, as the Sovereign may, when he ſees it hath been uſual to pardon fome Criminals, upon
good Reaſon for it, repeal an intire poſitive Law: the Deſert and Merit of their Anceſtors, or at the
'Tis related of the
to certain Perfons, and certain Crimes, the Law Emperor Hadrian, that he alleviated the Punish-
in other refpe&ts being ſtill in force. The Sazes ment of Criminals, according to the number of
reign I ſay ; for fubordinateJudges are not to make Children they had (d). And ſome have been ac-
or alter Laws, but only to pafs Sentence, accord quitted, becauſe they happen'd to be the laſt of
ing to thofe already made (b). Grotius, in the Noble and Illuſtrious Families. Phryne an Athenian
Chapter before mention’d, Seft. 25, 26. diftin Courtiſan, when ſhe was tried for her Life, was
guiſhes the Reaſons of Pardon given after the Penal brought off by the Art of Lyfias the Orator (1),
Law, into Intrinſick and Extrinfick. The Intrinfick who took off her upper Garment, and expos'd
Reaſon, according to him is, when the Puniſh- her naked Breaſt to the Court. And M. Antony the
ment would not be unjuſt, as being before lawfully Roman Orator, brought off M. Aquilius, when he
enacted and promulg'd, but however has the was plainly convicted of Bribery, by the like Art.
Appearance of too much Severity, when let in For bringing him in Publick View into the Court,
Compariſon with the Fact; though I confeſs, I at the Clote of his Defence, he open'd his Bo-
ſhould ink, that if the Penalty the Law enforces ſom and ſhew'd the People the honourable
be in general too fevere, it would be a wifer Wounds he had received there (e). Polydore Virgil
Method to correct the Law it felf, than to pardon relates it, as a Cuſtom which obtain'd formerly
fome few, and leave others expos’d to the Rigour in England, that no Criminals, except ſuch as were
of the Puniſhment. But undoubtedly Judges are convicted of Treaſon, fuffer'd Death, but were
obliged, upon all Rules of Equiry, if not entirely condemned only to perpetual Impriſonment, if they
to remit, at leaſt to mitigate the Punishment, when could but Read (f). And theſe Reaſons will apa
they find in certain particular Facts, a Concur- pear more Satisfactory, if upon Examination of
rence of Circumſtances, that alleviate the Crime, the Fat, it ſeems to be particularly exempted
as to the Quantity and Quality the Law fuppoſes
. from the Reason of the Law. The General Reason
In which caſes, the fact it feff hath the intrinfick indeed, for the Obſervation of every Law, is the
Grounds, though not of Pardon, yet of fome Authority and Will of the Sovereign Legiſlator ;
·
C
i
If he be
par-
Wounds who hath been a publick Enemy. A Man oughtwo think it an Injury to Mankind
to let go a Serpent. To this
Sadus Roſar. Perf. c; 8. 'Tis brave and generous to forgive. But there is no Reaſon we ſhould find a Cure for his
relates' what Lepidus ſaid in Tacitus, Ann. 2. when he was againſt dealing ſeverely with the fooliſh Poet
don'd, the Common-wealth will be in no Danger by it ; and if he be puniſh’d, his Example will have no Effet, (2)
Vid. Grot. ubi fupra, f. 14. (3) See above in B. 1. c. 6. T.17. (a) Arnob. I. 7. The Number of Criminals certainly en-
ercaſeth, according to the Hopes they have of buying off their Crimes ; and Men are leſs fcrupulous of offending, when
they ſee the Favour of a Pardon is eaſily purchas’d.
() Lyfias II. Orat. 13 c. 3. in Alcibiad Themiffins, Orat. 9. de Humanitate Theodofii
. There is a great difference be-
tween the Power and the Duty of a Prince, and á JudgeThe latter is to be directed by the Laws, The former may
amend and alter them, alleviate and foften their Rigour’and Severity, as being himſelf a living Law. L. 49 t. 9.1.17
f. 1. qui, Ego a quibus Manumil. & L. 49 t. 8. 1. 1. f. 2. D. qua fentent. fone Appellat reſcind.
2. c 35. (d) Vid. Xiphilin. Epit. Dion. Vid. Liv. L. 8. c. 35 (1) The Orator was Hyperides and not Lafias, K. Atben.
b. 13. (e) Herodot, Tha!), p. 112. Ed. H. Steph. (f) Polyd. Virg, Hift. Argl 1, 26
(c) Cis. de Invent. 1.
which
Chap. III. Over the Lives and Fortunes of the subject, &c.
35

which, when there appears no other Reaſon, is ftances of the like Nature. Neither is what has
Reaſon ſufficient; but the Particular, is either ſome been ſaid of this point, in the leaſt refuted, by all
Benefit likely to accrue to the Common-wealth, that tedious Diſpute of Matthæus, de Criminibus ad
or ſome Inconvenience which may be avoided, L. 48. Tit. 19. C. Ş.D. To what has been already
by the Obſervation of the Law: as for Example, ſaid it muft be added, That as the Meaſures of Pun
let us imagine ſome place where ſumptuary Laws niſhment in Human Judicature muſt be taken by the
are in force; che general Reaſon of theſe Laivs, is Advantages of the Common-wealth; ſo the ſame
the Will of the Legiſlator; the particular, that the Rule may make it neceſſary to admit Criminals
Eftates of the private Subjects may not be waſted to Pardon upon Account of their Numbers. For
or ſquandered away by extravagant and unnece- though in general 'cis no Excuſe to plead, that
ſfary Charges; and in this Inſtance, though the there were others guilty of the ſame Crimes (6) (1);
general Reaſon of the Law may be enough to ſup- yet every wiſe Government ought to take care that
port the Authority of it; yer when the particular Juſtice, which is intended for the Preſervation of
Reason of it ceaſes, the Puniſhment may juftly be Human Society, ſhould not prove the Ruin and
remitted with greater Eaſe, and leſs Diſcredit to Deſtruction of it.
the Authority of the Law: As for Example, in
this Cale, if we ſuppoſe the Offender in ſuch plen Cautius ingentes morbos, & proxima Cordi
tiful Circumſtances, as to be out of Danger of Ulcera, Peonia tractat ſolertia cura,
being reduced to Poverty by the Vanity and La Parcendoque ſecat ; ferro ne longius a&to,
viſhneſs of his Expences. Rigid Governments in Irrevocandus eat ſečtis vitalibus error.
deed, will hardly bear Neglect in the Execution
of their Laws or Commands, only becauſe the par- The skilful Surgeon all his Care applies,
ticular Reaſon of them is ceas’d. As 'tis ſaid, Cam. When nigh the Heart the burning Ulcer lies
byſes was very well pleas’d that Crafus was ſaved And probes the throbbing Wound with cautious Art,
bue yet put the Perſons to Death, that ſpared Nor wide
th' Inciſion makes, but ſpares th Unſound,
him, for their Remiſsneſs in Executing his Com- For fear the Vitals ſuffer by the Wound (d) (e).
mands. Again, it may be a reaſonable Plea for
Pardon, either when a Man is intangled in a Crime And therefore 'tis a very good Character of a
through Ignorance, though perhaps not ſuch an Prince Ovid gives us, L. 1. de Ponto (2), that He
Ignorance as wholly diſchargech the Fault, but ſuch reforms more Vices by threatning. Puniſhment, than by
as might proceed from Remiſsneſs or Negligence; or Puniſhment it ſelf.. Beſides, 'tis frequently neceſ-
or
Diſorder of Mind, which could not be eaſily pre- elle ſuffer them to grow out of uſe. So Tacitus
vented or overcome. Under the firſt of theſe, we faith, Ann.l.3. (3), Thatit was propos’d to reform
may place the Misfortune of Charondas, in Diod. the Law called Papia Poppen, becauſe the Num.
Siculus, who came through Inadvertency with a ber of Perſons obnoxious encreas'd, and every
Sword on into a Publick Aſſembly, contrary to Family lay at Mercy, ready to be ruin'd upon
a Law he himſelf had made ; and therefore I the Suggeſtion of the Informers; and becauſe,
think he had no Reaſon, upon that Account, to as he faith afterwards, the Informers had advan-
lay violent hands upon himſelf (a). There is a ced themſelves ſo far, that they had prevaila
nother Story in the ſame Author, of Diocles the not only in the City, but alſo over all Italy, and
Syracufian (b), who inſtituted a Law, by which it over every Citizen they could find any where
was made Death for any Man to be ſeen Arm’d elſe; ſo that many were already ruin'd, and
in the Forum, without any Allowances to be made almoſt every one was under the ſame Appre-
for Inadvertency or any other Circumſtances; and henſions. And thus Tiberius, in his Letter to
yer he, upon the News that the Enemy had made the Senate (f) tells them, That he thought it a
an Incurſion into his Territories, Arm'd himſelf, and more
more proper Method to paſs by the Head-ſtrong O-
hearing that there was a Sedition rais'd in the ver-grown Vices, than by attempting to corteet them,
Forum, went thither with his Sword on; but to diſcover only what Crimes they had not Strength -
being told of it by a private Perſon, kill'd him- nough to maſter; That it would be beſt to reformi
ſelf with it. But indeed there was no Pity due to them firft in themſelves, and then to be, content to
him, becauſe in his Law, he had cut off all Ex- wait till Shame had corrected them in the Nobility,
ceptions of inadvertency, or any other Circum- Neceſſity in the Poor, and the Rich ſhould grow weary
C
forc.
(4) V. Diodor. Sicul. I. 12. c. 19.
(6) L. 13. 33.
(c) Vid. Iſocrat. laudat, Bufrid. circa fin. p. 391.
(1) Qua fit au&toritas ejus, qui ſe alterius fa&to, 'non fuo defendat? Cicer. Orat. in Vatin. C. 6. p. 243. Ed. Græv.
(d) Claudianus de Bello Getico. v. 120, &c. (e) Lucanus Pharſal. 1. 2. v. 141,
Dumq; nimis jam putrida membra recidit, While he, the found, freed from th' infe&ted part,
indt Excefit medicina modum, nimiumq; fecuta eft With Diligence ſevere, and barbarous Art, 1989
Qua morbi duxere, manus: periere nocentes,
The weaken'd Body ſank beneath the Smart.
Sed cum jam foli poffent ſuperese nocentes.
The Guilty only were of Life depriv’d,
But when the Guilty only had ſurviv'd.
Tot fimul infefto juvenes fuccumbere leto,
In Plagues and Famines, and relentfeſs Seas,
Sæpe fames, pelagiq; furor, ſubitæq; ruina,
By Earthquakes, and by common Enemics,
Aut cæli terræq; lues, aut bellica clades
Rome oft her nobleft Lives in numbers ſpent;
Nunquam Pæna fuit. Ib, v. 198.
But ne'er before gave up to Puniſhment.
Senec. de Ira, l. 2. c. 10. There is is a Néceſſity of Pardon when the whole Army deſerts. (2) Epift. 2. 5. 127.
Malta metu posna, pæna qui pauca, coercet. (3) C. 25. 28. (f) Tacit. Ann. 1. 3. c. 54.
* E 2
30
Brok VII.
Of the Power of the Sovereign,

ſervation. Mary to the common Safety Sever to and Conveniences of Life; and that either directly
I'from uniting into Bodies, rived at. And here we may obſerve, that
of them. For Men were not made for Puniſhments mon-wealth. Afterwards follow thoſe Criminal
buc Puniſhment for Men. And therefore, if they Actions, that affect only particular Men; and
who have the right to inflict Puniſhment are under under this Renk, the Civil Court ſets thoſe fore-
Apprehenfions of imminent Danger upon the in- moft, that ſtrike at Life, the Foundation of all
fliction of it, they can be no more oblig'd to puniſh, our temporal Happiness; and next ſuch as concern
than a Man is to lay violent Hands upon him- the Members, not Vital, but without which Life it
ſelf. In a Ship, if a Pilot ſhould commit a Crime, ſelf would be an uneaſie Burden; And which
when no Body but he underſtands the Manage. are to be valued according to the dignity of their
ment of the Veſſel, 'tis plain that the Man that uſe (2). The next Claſs of Criminal & Etions are
would do Juſtice upon him muſt unavoidably thoſe, that diſorder the quiet and honour of private
Thipwrack himſelf
, arid all the reſt of the Paſſen. Families; the Foundation of which is Matrimony:
gers
. And ſo alſo the Magiſtrate may lawfully (though Philo the Jew, in his Book de Decalogo &
wink at ſome Crimes, the Puniſhment of which de Special. Leg. places the Command againſt Adultery,
would be of dangerous Conſequence to the Com- before that againſt Murther) And in the next
mon-wealth: And especially, when the Perſons place, we may rank thoſe that rob us of, or deny
neceſſary Pre us thoſe , which make Necelaries
Tho'
make any direa Agreement, for the Permiſſion of or indire&tly, by, depriving us of them out of wic-
Vice, much leſs make publick Gain by it (a). In ked deſign. And in the last place, we may reckon
Italy, Pardons are ſometimes publickly promis’a to ſuch as deprive us of our Reputation, or Civil Cha-
any of the Banditti, that ſhall bring with him the racter and Efteem. In the particulars of theſe
Head of another of the fame Gang. (Tho' Harry Crimes, ſuch are of the firſt Rank, which have
Stephens (6) ſeems to have diſapproved that Cuft- reach'd to the greateſt height of a conſummate
om, and ſays, that the reaſon of it might appear perpetration. The Inferiour are thoſe that termi-
agreeable enough in an Ariſtotle or a Plato, buc could nate in ſome Acts, and are not arrived at their
never become a Cbriſtian.) Upon ſuch a Promiſe full growth. And in theſe, the Degrees of Ma-
that the Villains might have a Jealouſy of one a. lignity differ according to the pitch they have ar-
,
and from doing ſo much miſchief as otherwiſe to rally, a Deſign, and Inclination to tranfgreſs
, in a-
the Comunon-wealth. (Sir Thomas Moor was of a ny particular Act, muſt not be conſider'd under
contrary Opinion in his Utop. 1. 2.)
the ſame Degree of Enormity, with the Fact it felf,
XVIII. I fhall in the next place a&ually finiſhed; becauſe Evil preſents it ſelf to
The limelig
Quality of enquire into the Method of the Mind,
under more odious
s and dilagreeable
eſtimated from
mi Penalties, or what Meafure of Puniſh- Colours, when we come to cloſe with the Commi.
the Object of it. ment it is reaſonable allot to par- fion of it, and conſequently a Man muſt have
ticular Crimes. , And here, beſides greater Obſtinacy, and Reſolution, to overcome it,
what I have before (1) ſaid concerning the quan- chan when ic lies, as it were, at a Diſtance, and
tity of A&tions; 'tis obvious to obſerve, that in Civil he hath but newly entertaind the thoughts of the
Courts the meaſures of Criminal Adions are taken Attempt. When therefore we fay the Will is the
chiefly, Firt, from the Obje&t they are concernd ſame with the Deed, we muſt underſtand, that this
in; and Secondly, as their Malignity doth more or is meant only of ſuch an act of the Will which is
Jeſs harm to the Common-wealth ; And Thirdly, united with the utmoſt Endeavour, ſo that no
from the Intention and Malice of the Delinquent, new Operation of the Will intervene between this
which may be diſcovered by variety of Circum- and the Event of the Crime, though the ſucceſs of
ſtances. The greater therefore and more noble the Aktion fail; As ſuppoſe a Man takes aim at an-
the Obje& injured is, the greater and more Crimi- other to ſhoot him, tho' he ſhould miſs his Mark
-wal is the Fa# eſteem'd. As therefore, as of all (3). And therefore Sir Tho. Moor, Eucop. b. 2.
Objects, God Almighty is the Greateſt and moſt faith, That there is no leſs Danger in having
- Excellent, fo
fo any Action which tends to his attempted any ones Chaſtity than in having
Diſhonour, is of all others the moft wicked and actually violated it. For in every Criminal
dereftable. And as the Obedience and Reverence Action, a ſettled and determinate endeavour,
due to him, which conſiſts chiefly in the A&tions of
to the Deed. For 'is not reaſonable,
our Minds, ought to influence and govern our that that Man ſhould have
allowance made
whole Lives; ſo (as he himſelf has diſcover'd his him for what was wanting to the completion of
Pleaſure), thoſe Aktions by which we expreſs our ' his Action; ſince 'twas far enough from his in-
external Reverence to Him may be ſuperſeded, tent, that any ſuch defect ſhould
happen. But
when they come in Competition with thoſe the generality of ſuch kind of Evils are rated
which deſign any extraordinary_benefit to Man- higher or lower according to the Diſparity of the
kind, or to avert any great Evil from them, Subjects they happen to
light upon, as to their
where there is danger in the delay. Luke XIV, State and Condition, Happineſs or Infelicity, Age
,
v. s. The nations next in remove from theſe, are Time, or Neceffity, or any particular Pallion, or after
ſuch as affect the whole Body of Mankind; And Etion, that might byaſs to ſome particular good, or
then ſuch as diſturb the Publick order of the Com- give an Averſion to Tome Species of Evil. Neicher
(a) See 2 Pet. II. 15. One might here put the Queſtion, whether Magiftrates may hire and command private Perfons,
to turn Informers, as was practis'd by the ancient Romans, at leaft in reference to ſome certain ſorts of Crimes. Con-
ſult Huber
. de Jure civil. Lib. iii. Sc&t. ii. cap. iv. Sect. 27. and Mr. Hertius's Differtation, de Parede occifi vindice, cap. iv.
Sect. 3 in the third Tome of the Collection, publiſh'd in 1700.
(6) Apolog, pro Herodot. C. 18.
(1) B. I. c. 8. (2) Sec Grot, B, 2. 6. 20. f. 30. (3) Sce hereafter in Section 27. towards the End.
to
5
C
any
โรวน
.
muit
2

Chap. III.
Over the lives and Fortunes of the subje&t, &c. 37
S
6
gave the Im
any
And therefore Bawds thar Svernable Luft (d). Principles, and falle Reaſon, than
Anger gives occaſion? That the Crimes which of which, the Offender hopes to reſiſt the Pub.
muſt we only barely conſider, what are the direct a Man that yields to the Paſſion of Anger, ſeems
and immediate Conſequences of any A&ion, but to break with the Laws of Reaſon, with ſome
alſo what elſe may probably enſue ; as in Fire, Regret and ſecret Reluctance of Mind ; but one
and Inundations, the Miferies and Deaths of a ' that fins in complaiſance to his Luſts, gives him-
number of unfortunate People, are always to 'ſelf up with Pleaſure, and therefore is more in-
be conſider'd (a): And therefore the Chineſe make temperate, as well as more ſoft and effeminate
ir death, for any Man to be the occaſion of the in his compliance. And as another obſerves
breaking out of Fire, tho’it were only by his neg- (f!, Anger has a much ſtronger, and a more
iect.
violent influence upon us than Love ; for that
XIX. The intenſeneſs or remiſneſs gives us time to deliberate and conſider with
And from the
of the Will and Inclination, are to cur felves; byt Anger raiſes ſuch Storms in
Paſſion that
be meaſured principally by the Men's Breaſts as hurry them beſides themſelves,
pulſe.
Cauſes and Motives which engage ' and is never quiet till it is ſatisfied. The Bials
Men in Sin (1). There is hardly of the other paſſions inclines Men either to ſome
Man wicked, without cauſe or deſign (2); real or imaginary Good : The things that are really
for if a Man be in love with Vice, purely for its good, can have no natural tendency in them to
own Sake, and fin only out of Vanity and Af- teinpt us into Sin; ſuch are all kind of Vertues
fe&ation, or has no other reaſon to give for his Vices, and the Actions which flow from them. Other
than that they are unaccountable and incredible (b), he things may indeed be good in themſelves, but may
muft certainly be arriv'd at the higheſt pitch'tis be allo Inducements to Sin, according to the Dif-
poſſible for human Impiety and Impudence to poſition of the Man's Mind, who is in Poffeffion
reach. And therefore, we never find any Malefactor of them. Of this kind, ſome are pleasing and
ſo confident, but he will either deny the Fact
, or pretend delightful; others inftrumental only in the procure-
Some plauſible reaſon for excuſe, and extenuate it from ment of Delights
, which are ſuch as we call uſeful.
ſome pretence of Nature (c). 'Tis certain, the Now every Crime committed in purfuit of any of
greateſt part of the World are perfwaded into theſe things, is (cæteris paribus) look'd upon to
Sin by their Paſſions
. Some of theſe preſs us with be more excuſable, the more that good which was
a ſort of Violence, to eſcape preſent or immi- in view, appears to be agreeable to Nature or
nent Evil. And 'tis reaſonable theſe ſhould be the more unealy Men are without it (g). The
allowed to excuſe or extenuate the Crime. And imaginary good Things are ſuch as Men owe the
therefore ſuch Crimes as are the Effects of the Credit and Value of, either to their Folly, their
Fear of Death, Impriſonment, or any great Diſcon. Vanity, or their Vices: Among theſe, we may
tent, Pain or Paſſion, or of extream Poverty, are al rank Vain Glory, or an Opinion
ways look'd upon to be excufable. The wiſe He mon Worth, neither bottom'd
m'd upon Vertue, nor
brew pronounces, That the Thief whoſe mean
mixture of real Profit joyn’d to it ; as
Circumſtances tempt him to Steal, is a more ex- alſo Revenge, as it propoſes to it felf, nothing
cuſable Criminal than the Adulterer
. So Theft in elſe but the harm of the injurious Perſon. And
caſe of Hunger, is a leſs Crime, than the ſame, the leſs of Nature there is in Theſe, and the eaſier
when it is the effect of unmeaſurable Avarice; it is for a Man to be
and Perjury upon fear of Death is more excuſable criminal are thoſe Aktions judgd that flow from the
than only upon the view of Gain, or to betray a purſuit of them (b). It is alſo certain, that all
Truft
. And thus, as the Author ad Herennium Crimes which are the reſult of clear and diſtinct
ſpeaks, B. 2. (3). • 'Tis a greater Crime to Knowledge, are greater than thoſe which ariſe
debauch a Woman of Quality, than commit from Errour and Miſtake : and thac thofe Errours
Sacrilege ; becauſe 'tis poflible Extremity may are more dangerous and criminal which a Man runs
force a Man upon the one, but the other can into, through an obftinate purſuit of his own
, , thoſe which
and ſupplying the Lufts of others, deſerve more well obſervd by Hebbes, Leviath. G. 27. That
fevere Puniſhment, than any Man that purſues on the ſame Fact committed upon a preſumption
Pleaſure. It is the Opinion of the of Power, Friends, or Riches, by the aflittance
Emperor ,
toare more
lick Miniſters of Juſtice, is a greater Crime
than thoſe that ariſe from Luft. For, faith he, than when it proceeds from hopes of not being
2of more
than coin-
with any
the effet
of
ly his own
C
2. c. 19.
som bare od 5
20
(a) Vid. Grot. d. 1. (1) Vid. Grot. d. 1. f. 29 (2) V. Senec. de Benef. L. 4. c. 17. V. Auctor. ad Herennium, L.
(6) Calpurn. Flaccus, Declam. 2. Princip. (c) Cicer. de LL. l. 1. c. 14. (3) Chap. 30. towards the
* End. See hereafter, Sect. 21. towards the End. (d) Add. Val. Max. 1. 8. c. 1. in fin. (e) L. 2. c. 10.
(f) Libanius, Declam. 23. (8) Tis upon this Account, that there are ſome Crimes which appear little in themſelves,
and which indeed are ſo, as they relate to a thing of ſmall Value ; which nevertheleſs are more heinous, to conſider 'em
in reference to the Diſpoſition of him that committed 'em, than if they concern'd a thing of a conſiderable Price. Thus
an ancient Orator in his Accuſation againſt a Man, ftrenuouſly infifted, upon his Baſeneſs of having defrauded of Three
Farthings, certain poor Workmen employ'd in building a Chappel, over whom he was appointed as their Pay-Maſter.
Ariftotle obſerves (Lib. I. Chap. xiv. p: 244. Edit. viftor) upon this Occaſion, that it is quite the contrary, in good
that is to ſay, that à Man for example, that returns a large sum of Money that has been depolited in his
Hands, is more commendable, than if the Charge was leſs conſiderable : Becauſe that demonftrates a larger Stock of
Honeſty, as the Profpe&t of a ſmall Gain, that is capable of inducing a Perſon to commit a Crime, diſcovers in him a
larger ſhare of Malice, than if he had been tempted to it by the Allarement of a greater Gain. (B) Grot. d. I. f. 29,

Adions ;
diſcovered,
38
Of the Power of the Sovereign,
Book VIII.

૮
C
Intention.
Parricide. Among the Celtæ, according to Nic Damafcenus, de Moribus Gentium, a Man that kill'd a Foreigner was
diſcovered, or eſcaping by Flight; for the and propagate Vice: not only as they are
one is an open Concempc of the Law, the other wicked themſelves, but as they do more harm
not (a). And therefore Ariſtotle faith (b), ſuch by their Example than by their Sin (1). Thus
as deny and perſift in their Crimes are puniſh'd Tacitus (1) faith of Capito, That he was the more
with more Severity ; but ſuch as think them remarkably ſcandalous, becauſe being ſo great a
ſelves juſtly dealt with, deſerve to be us'd with Maſter in the Knowledge of Human and Divine
'Gentleneſs and Lenity: and the reaſon is Laws, he had forfeited his publick Chara&ter,
plain, becauſe 'tis impudence to deny what is and diſgraced his own private Skill. And Tully
plainly prov'd; and impudence is Contempt faith in another place (g), As it would be unpar.
and wilful Oppoſition”. And upon this View (Jays donable in a Man that profeſt himſelf a Gram-
Seneca (c)) a wife Man will ſome times pardon a marian, to ſpeak improperly, or in one that
great Crime eaſier than a leſs, if he finds that that was profeft to have Skill in Singing, to ſhow none
the Effect rather of Weakneſs and Infirmity, than Ran-
in the Practice of it; becauſe theſe are Faults
cour and Malice ; and that this is the product of a cloſe in the Arts they pretend to : So a Philoſopher
deſigning, inveterate Craft. Neither will be puniſh the that is guilty of Misbehaviour in the Conduct
Jame Crime after the ſame manner, in different Offen- of Liſe, is the moſt inexcuſable; becauſe he is
ders, when what the one committed through Indiſcretion deficient in thoſe Duties he affects to be thought
and Negligence, the other did induſtriouſly and delibe- r a Maſter of; and commits Miſtakes in the Arc
rateby.
of Life which he profeſſeth (b). In Peru, un-
XX. Another Argument of the der the Empire of the Inca's, a Magiſtrate found
And from the great force and violence of the In- guilty of any Crinie, was puniſhed with greater
Force of the In- clination and Intention, is, when be- Soverity than any private Offender; For This rea-
fides the common Reaſons that ought ſon added, that He was exprelly preferr’d to the
to be ſufficient to reſtrain a Man Adminiſtration of Juſtice, and plac'd in an Office
from Sin, there happen to be other particular Rea- of Truſt, upon the Preſumption that he was a
Sons, founded either in the Perſon of the Delinquent, Man of more than common Probity and Good-
or in the Perſon of him who was injured in the nefs (i). Upon this account the Injuries of a
Fact, or in any other Circumſtances. Thus as Friend, affe&t us more than thoſe of an Enemy (k).
Juvenal faith (d),
And on the other ſide, a Benefit conferr'd by an
Enemy, is more pleaſing and more valued, than
Omne animi vitium tanto cowfpe&tius in ſe
the Kindneſs of a Friend : Notwithſtanding what
Crimen babet, quanto major qui peccat babetur. Terence faith,' That when a Man ftands in need
' of a good Turn, he is glad to receive it at any
More publick Scandal Vice attends, Hand; but 'tis double Pleaſure to receive it
As he is Great and Noble, who offends. ' from one he has reaſon to expect it from (1).
For the ſame Reaſon, an Affront from a Man of
And thus the same fort of Sin, committed by a mean Circumſtances is more inſupportable
Church-man, is look'd upon to be a greater fault than from an Equal or Superiour (m): or from a
than by any one elſe, becauſe 'tis expected he Man's own Children or Servants, than from ano-
ſhould be a Pattern of a pious and unblameable ther's
. There are alſo ſome particular Crimes
,
Life to others: For a Man that neglects himſelf, which are branded with particular Infamy, as con-
what be perſwades others to do, confutes his own Coun- fiſting in the violation of ſuch Asts of Dury, which
sel by bis Practice; for the force of his Example by Men are obliged to pay to certain particular
wbich be disſwades
, is much ſtronger than all the Ar. Perſons, (2) and are therefore judgʻd to be more
guments by which he would convince (e). Tully highly wicked; ſuch as Diſobedience to Parents, (3)
faith, The Guilt there is in the Vices of a Inhumanity and Rudeneſs to Relations, Ingratitude to
* Prince, is not ſo much to be conſider'd (tho' Benefactors; which are look'd upon to be more
• that too may be great enough) as the Conſe- heinous, than if they terminated in any other
quences that attend them, that there will be al- Perſons (n). In fine, 'tis a material Aggravation,
ways great numbers ready to imitate them; to conſider the time, and place, when, and where
and therefore Princes of bad Morals deſerve the Fact was committed. And thus the ſame Crime
very ill of the Common-wealth; not only as committed in a publick place, before Witneſſes, iş
they are vicious themſelves, but as they ſpread greater, than when a Man endeavours to conceal
(a) Add. Ariftot. Rhet. I. 1. c. 12. & 14. (i) Rhet. 1. 2. c. 3.
(6) Senec. de Irâ, I. 1. c. 16.
(c) Sat. VIII. v. 140, 141. Dio Chryfoft. Orat. 1. de Regno, p. 9. C. Any Vice in a Prince is more heinous, and more
in View. And to this senſe we may apply that of Pliny, Nat. Hift. I. 5.c. 1. Men are never more credulous and eaſy of
Belief, than when any Falſity is promoted under the Authority of a great Man.
(e) Libanius, Declam. 29. (f) Cicer. de LL. 1. 3. c. 14. Senec. Mercul Fur. V. 745, 746. The Crimes of Princes
are of deeper Stains. (1) Annal. III. 70. (8) Tufc. Quaft. 1. 2, ¢ 4.
(b), Quintil. Declam. 3. p. 38. 'Tis the Mis-
fortune of Superiors to be thought to command Others, what they do themſelves : and Evil is always moſt Pernicious
when the Author of it is Great and Powerful. (i) Garcilafl. de la Vega Com, Reg. 1 2 c. 14.
(k) Petron. One that offers Violence to a Stranger is a Villain, but a man that injures his friend is little leſs than a
(1) Terent. Adelph. A&t. 2. Sc. 3. v 1, 2. (m) Vid L. 47. t. 10. 1. 17.1. 3. D. de Injur.
(2) D. ubi fupra, 1 7. I. 8. (3) Vid. Grot. L 2. C. 20 ſ. 30 & 2 Sam. c. XVI. v. 11.
Paſage in Lyfias, Speaking to the Athenians, Orat. 4 contra. Andocid. c 6. Ye ought to ſhew your felves more levere to
your own Subječts, when they prophane the Rites of your Religion, than to Foreigners ; Becauſe the Crime, as thoſe
commit it, ſeems to come from Abroad ; in your own People 'tis Native and Inteſtine.
s
ment.
(n) To this purpoſe is that
2
it;

Chap. III. Over the Lives and Fortunes of the Subject
39
, &c.
it; both becauſe, what is aeted with the advan- guiſh between Juſt and Unjujt, Lawful and Un-
tage of Secreſit, at leaſt gives lefs Scandal ; and lawful, and know very little of the meaſures of
becauſe, 'vis a ſtrong Prelumption, that, that them, or how to weigh and conſider them (g).
that Man is a bold and hardend Offender, that has In Perſons, where Cholert is the prevailing humour
the impudence to out-face the World, and to fin, in the Body, Anger-is the governing Pallion; 16-
as it were, in defiance 60 all the good and thers of more and warmer Blood, are eaſily in-
ſober part of Mankind (a)! Thus it is à clined to Luft: Age turns our Deſires one way,
greater fin, to be guilty of unchaft Actions in a and Youth another (toyd 19 Again, the nigher any
Churcb, than in a Taverns to frike in the Court, Evil ſeems to threaten the ſtronger is the fear it
than in a private Houſe and co be guiley of In- caufes, and the more difficult it is to reſiſt it. A
temperance on an ordinary day, cæteris paribus, is freſh Reſentment ſtrikes us with more Violence,
more excufable, chan on days fet afide for Devo than that which hath been coola by interval of
tion (b). Thus Cicero ſeverely aggravares Antony's time. And tho Grief and Diſcontent will not al-
Crime, for coming into the Court fo diſorder'd ways be filenc'd at firſt by Reaſon, yet they have
with Wine, as to be forc'd to vomit while he fate not the fanie excuſe when they have had time to
on the Bench (C). Thus the Declaimer faith (d), be compoſed and quieted. In general, It is more
That tho' Rudeneſs in any other place may Criminal to go ſedately and calmly to commit
perhaps be excuſable, yet in the Temple, fin, than in a diſorder and diſturbance of Paſſion
where we ſet a guard upon our words, where (i). And therefore Ariſtotle ſays, Thac
every
we compoſe our Souls, and confine even our Man muſt think him leſs excuſable, who enga-
choughts, to offer an injury, or affront there, ges in a bad Action upon weak Temptations,
with the ſame boldneſs as in an unfrequented, " than One, that is guilty of the ſame, upon the
private place, is unſufferable (e). A Laſtly, The violent perſwafions of strong Paffions. And thac
Methods and the Inſtruments uſed in the commiffi. when a Man ftrikes in cold Blood, he is more
on of the Fast, ſeem to be acceſſory to the aggra ! Criminal chan if he were angry; for how far
vation or extenuation of the Crime; becauſe 'tis uw would ſuch a one proceed, (faith he) if he
fual to infer from them, the force or weakneſs of were heated into a Paffion? It was Pittacus's
the intention. And therefore 'tis a greater Crime Law indeed (k), That ſuch as abus d others in their
to rob a Man of his Goods, by forcing his Houfe, Wine, ſhould pay double the Jum they ſhould do, if they
by digging through his Walls, or artificially pick- had been ſober : For ſince People in that condi-
ing his Locks, than by going in boldly at an o. tion, (faith Ariſtotle,)
tion, (faith Ariſtotle,) are generally inclined to
be more abuſive than others, the Law doth not
orts To XXI. Another Thing which ag ſo much regard the Pardon which ought rather
And from the gravates or extenuates the Crime, is to be allow'd to Men in the diſorders of Drink,
Obftinacy and the power or ability the Perſon was as the publick Good (1). But Crimes that ariſe
the Criminal Maſter of, to forbear the Faet (1). from Paſſions, are look'd upon to be leſs odious
For ſome Men have clearer and when they are the effe&s of a Pafion alarm'd and
more lively Apprehenſions of the Reaſons why rouz’d in us at the appearance of Evil; and ſuch
they ſhould decline ill' Asts than others
. And as ariſe from an appetite or eager purſuit after
ſome have ſtronger Propenſities than other to fome pleaſures, eſpecially the more needleſs ones, to be
particular ſorts of fins, which may be accounted more criminal. For Pleaſure doth not affect us fo
for, either by the particular mixture and conſtitu- fenfibly, and may be eaſier delay'd, or ſatisfied
tion of the Body; or elfe by the Age, Sex, Educa- more innocently fome other way without guilt.
tion, or other Circumſtances. (f): For 'cis eaſie to And (Ariſtotle faith) therefore, That 'tis a grea-
obſerve, that young People, Women, and Men of ter uneaſineſs to bear Pain of any ſort, than to
groffer natural Parts, or that have had no advan deny Pleafure: For, (faith he in another place)
tages of Education, do not fo accurately diftin-Pain diſtracts and weakens Nature in the Per-
pen Door.
ae
(a) Vide Ariftot. Probl. ſ. 29. q. 14. Vide D. De ubi fupra, 1. 7. f. S.
(6) Ibid. 1. 9. f. 1. D. de Injuriis, &c. (c) Cicer. Orat Philip. 2. c. 25. (d) Quintil
. Declam. 352. If any Injury be
done to the Magiſtrate, it is an Act of Hoftility againſt this State ; if to an Ambaſſador, Satisfaction muſt be demanded by
War, and the Laws of Nations. The ſame Sum of Money taken from a private Man, is Theft; from the Altar, or
Temple, Sacrilege. And ſo one that violates another's Chaſtity, ſhall
, pay, to the Party
, demanating barely, Satisfa-
&ion for Virginity, Ten Thouſand Seſterces; but one that hath been publickly Guilty of the ſame Crime, and raviſh'd
a Candidate to the Prieſthood, muſt not be allow'd the fame Terms. uintil. Decl. 264. Add. Inftit. Orat.'1 6.c. 1.
(e) Demofthen. adv. Midiant. I was abuſed by my Enemy, in cold Blood, in the Morning, out of Malice, not upon
ny heat of Wine, publickly, before Strangers, as well as Citizens, and that in the Temple, whither I was obliged to go
by the Duty of my Office.
(1) Vid. Grot. 1. 2. c. 20. f. 31. (f) Vid. L. 48. t. 13 1. 6. D. ad L. Juliam peculatus, Egoc in Princip
(8) Procop. Hiſt. Vandal. I. 2. c. 14. As it is very unuſual, fo it would be the more commendable, for the Son to lay
ahide that falleneſs and Violence of Temper' which run through the Family, and to take up a contrary Coolneſs and Pro-
bity
(b) Gramond. Hiſt. Gall l. 13. Young People ſeldom trouble themſelves to be Wiſe, becauſe they look upon it to be
their Privilege to do what they pleaſe. Libanius, Decl. 21. P. 531. O D Ed. Parif. It borders very much
to negle&t the Obligation of Duty, and to be ignorant of what is Juſt and Honourable. lbid. In all Nations the Age is
made the Excuſe for young People.
(1) Cic. Off. 1. 1. c. 8. Thoſe Faults which are the effe&ts of any ſudden Commotion, are more excuſable than ſuch as
are premeditated and deſigned. Philo Jud. de Specialibus Legib. p. 791. B. Edit. Parif fays, That it is an imperfect
Crime which is not the effe&t of much Deliberation, Plato de LL, 1:9. P.931. C. Ed. Wech. They that kill a Man u.
propenſe Malice, are to be puniſh'd more feverely, than ſuch as are guilty of Man-flaughter only, out of a ſudden
(k) Ariftot. Polit. l. 2. c. 12. (1) This Law is alſo mention'd by Plutarch in Conviv. 7. Sapient. p. 155. F.
upon Youth,
pon
Rafhinels,
2
fon
40
Of the Power of the Sovereign, Book VIII.
<fon that ſuffers its but pleaſure hath a different it any Obje&tion, that a good Habit gives an eaſi-
effect, and offers it ſelf fairer to our choice, and neſs to good a&tions ; or that on the contrary, an
therefore ought to be thought more criminal ill Habit inakes it difficult to forbear doing ill. For
' and opprobrious (a). Laſtly, Another motive to thar labour it muſt coft a Man to attain the good
alleviate the Penalty, is when a Man's Friends and Habit at firſt, is a ſufficient reaſon why the value
Relations perſwade him to tranſgreſs the Laws(b). of it ought not to be leſſen'd, tho' the exerciſe of
XXII. 'Tis alſo uſually conſide- it be Eaſy and Pleaſant. And on the other fide,
And laſtly from red, whether the Malefactor were the averfion to Sin ought to be therefore the
Habitm and i himſelf the Firſt of the Kind, or greater, becauſe by a frequency in doing ill, a Man
model were ſeduced by the Examples of .o. hall contra&t ſuch a Familiarity with Vice, as he
thers; whether this be the firſt time he is found will hardly ever be able to renounce, and by re-
guilty, or whether be an old Offender. For in e« peated Tranſgreſſions will be abandon’d to Inpu-
very common wealth, the firſt Man that has the dence, and forget the ſenſe of Shame. For the
boldneſs to commit a Crime, which is like to be common Infirmities of Human Nature, will excuſe
of ill Example, and which he does in a manner in- ſome Errors and Slips in the condu& of Life ; but
form others in, is more highly Criminal than ano to be often guilty of the ſame Miſcarriages, is a
ther that has been encouraged by frequent Prece- degree of Madneſs not to be born with (g). The
dents in the like Crime before (c). Again, the Faults a Man is guilty of at fixteen, will not appear the
fame Fact, if it hath been conſtantly puniſhed in ſame, tho’all other Circumſtances be ſuppoſed to continue,
other Men, is a greater Crime, than if there when he is forty, for by that time, beſides that, bis Has
have been frequent Inſtances of Impurity: becauſe bit appears inveterate and inexcuſable
, the maturity of
the firſt is greater Contempt of the Government and his Judgment muſt cut off all pretences of excuſe and plea
Laws, than the latter
. But the more or lefs fre- for pardon. And all theſe things are, with good rea-
quent Repetition of the ſame A&tion, doth not Ton, to be conſidered in levying Puniſhment. For
make it in it ſelf better or worſe, any farther than a Crime of no extraordinary Malignity, upon the
as it diſcovers it to proceed from inveterate Cuſtom firſt Commiſſion, may be more eally pardon'd; or
or Habit (d). And ſince regard is principally had at leaſt puniſh'd with leſs Rigour, than one which
to the frequency of the Repetition, in the making has been the common Practice of the Delinquent
an eftimate of Moral Actions, (ſince from thence 'tis (2). Sometimes alſo, future Reformation is made
uſual to meaſure the force of a Man's Reſolution; the Condition of Pardon for paſt Offences: And in de-
and therefore it is commonly ſaid, that ill Habits feet of that, the Puniſhment of the paſt, is join'd
are worſe than ill Aets :) it ſufficiently appears with that of the repeated Crime; and former Mij:
why a good A&tion which a Man has frequently re demeanours are again brought under the reach of
peated, is look'd upon to be better than one he has Juſtice (b). From whence it appears, in what
but newly begun, or very ſeldom pra&tiſed: and Senſe that common Aphoritm is allow'd to be
on the other hand, why a bad action often reitera- True, That the Eſtimation of a Crime is never en-
ted is judg’d a greater Crime, than one the ſame creas'd by any after A&. (3).' And here it might
Perſon has but once or twice been found guilty be alſo be enquired, how far that Cuſtom of
of (1). To this purpoſe was the Emperour Ju- the Perſians, which Herodotus ſpeaks of, was agree-
lian's Law againſt Lyars (e); If any of my Servants able to Natural Equity, when in Criminal Caſes,
be found guilty of a Lye, the firſt time, I pardon it; if the whole Courſe of the Delinquent's Life was ex-
be preſume a ſecond time, I bear with him; if it be pro- amin’d, together with his particular Offence ; and
ved upon him a third, he has not abſolutely incurr'd my if upon the whole it appeared, that there was an
Diſpleaſure; but if he venture the fourth time, I forbid overballance of good Actions, the Crime was par-
him my Preſence. But the Peruvians under the Go- don'd. But upon a ſtrict View, it muſt appear
vernment of the Ynca's, took particular care to pu. that all that ſignified nothing to the intrinfick eftia
niſh the firſt Eſays of their Criminals, becauſe by mation of the Crime: And therefore 'tis probable,
this Method they thought they might prevent the this Method was not us'd in Crimes of an
return of the ſame Crime another time. For un. Quality, and where there were manifeſt Proofs of
leſs the Weeds are rooted up when they firſt ap- the propenle Malice of the Criminal, but as Grotius
pear, it muſt be expected that they will plenti. d.l. thinks, was, or at leaſt ought to have been,
fully encreaſe. And where Juſtice moves ſo flow confin'd to ſuch caſes only, where the Delinquent
as not to reach the Offender, till he has repeated his being not otherwiſe notoriouſly vicious was un:
Crime, private Subjects are apt to grow impatient, warily betray'd, by ſome Satisfaction or other,
and to take the liberty to redreſs themſelves, to he conceiv'd, he ſhould find in the Commiſſion of
the prejudice of the publick Peace (f). Neither is the Fact, or elſe, where the Proof of the Fact lay

higher


16.
(a) Arift. Nicom. I. 7. c. 8. The Intemperance of Anger is leſs Criminal than that of Luft. Id. Magn. Moral
. 1. 2. c. 6.
A violent inclination for Pleaſure is much more faulty than any exceſs of Anger. For Anger is a very reftlefs uneori
Paſſion, and every one that is under the power of it, finds himſelf diſcompoſed." But the Incontinence that ariſeth from
the concupiſcible Appetites is attended with Pleaſure, and therefore is leſs excuſable, becauſe it ſeems to be the effect of
Wantonneſs and Effeminacy. There is a Paffage like this, in Marcus Antoninus, l., 2. T. 10. Ad. Ariftot Probl. 1. 29; ;
(6) Vid. L. 47.t. 16. I. 2. D. de receptator. Ad. Grotius, d. 1. f. 29.
ſtop where they begin, but if allow'd never fo little Liberty, will ſoon make way for themſelves to break out further
Vid. Gell. 1. 10. c. 19. Polyb. excerpt. legat. 93 c. 5.
(d) Vid. L. 48. t. 19. 1. 28. 1. 3. D. de pænis. Ant. Matthæus de
crimin. tit. de furtis. S. 9. feqq. & L. 48. D. tit. 18.6.4. 8. 27. 28. (1) Vid. Grot. L. 2. c. 20. f. 30.
Legat. ad Julian. (f) Garcilaſs de la Vega, Com. R. 1. 2. c. 10. (8) Sir Tho. Browne's Relig. Medici, 1.4,
(2) V. Grot. d. l.
(1) See i Kings I. 52. II. 23.
(3) Nunquam creſcit ex poft fatto, prateriti delitti aftimatio,
L. 50. t. 17. De diverſ reg. Juris, 1. 138. f, 1.

(e) Libanius
Intricate
Chap. III. Over the Lives and Fortunes of the subje&t, &c.
41

or
how kind,
Intricate and Perplext, a view of the Criminal's vereign, which is principally to be directed, by
Life might be neceſſary to give the matter ſo much the advantages and publick Good of every Com-
Light, as to diſcover whether it were probable, mon-wealth. Upon this view Anyſis King of Egypt,
he was guilty or not: fince a Man muſt make puniſh'd no Criminal with Death in all his Reign;
ſeveral Steps before he can come to the higheſt but according to the Degrees of every Man's Of-
pitch of Guilt (1). Yet Herodotus (a), gives us fence, condemn'd him to bring a quantity of
an Example of Sandoces a Perſian Judge, whom Earth, or Rubbiſh to the City he belongd to.
Darius commanded to be crucified for taking And by this method the Ground the Cities ſtood
Bribes, and giving wrong Judgment; but when upon was rais'd higher, and the Cities ſecur'd
he called to mind that the Services and good Of- againſt the Inconveniences of the Flood upon
fices he had done him, were more than his Crimes, the riſing of the Nile (e). But indeed there is no
order'd him to be taken down, and admitted him Neceſſity, that there ſhould be always the ſame
again to favour. And Cicero, in his Defence of Proportion obſerv'd between the Penalties, as there
Sulla, reaſons the ſame way, In all Matters of is diſtance between the objects injured by the of;
* Importance and Concern, (faith be) we are fender
. Every particular Crime may be ſentenced
not to meaſure a Man's Intentions, Thoughts, to a particular Puniſhment, as it happens to be moſt
or Adions, by the Fa& it ſelf; but by the Cir, agreeable to the Circumſtances of the State; with-
• cumſtances of his Life ; and the reaſon (ſaith out any Regard, whether another Crime, which
be) is, becauſe according to the Opinion we in it felf may ſeem greater or leſs than this
, be pu-
receive of a Man's Morals
, we generally Con- niſh'd with more or leſs Severity. Plato propoſes a
jeđure, how far he may be guilty, and how far Law of this Nature (f ), 'That if any Man robb’d the
noc (b). And for this reaſon, it was uſual in • Publick, whether of more or leſs, his Puniſhment ſhould
the old Roman Judgments, for the Accuſer to be the ſame. For (ſaitb be) a Man that takes
gin with a Cenſure upon the Life and Behaviour of away a thing of leſs value, though he doth it
the Criminal; and on the other ſide, the Patroni ' with leſs force than another that robs the State
either made excuſes for him themſelves • of ſomething greater, yet he is guilty of the
brought in the Laudatores, Perſons that ſhould ſame ill Principles and Intentions. Anda Man
give Teſtimony of his good Behaviour. "And there that takes away ſomething of confiderable worth,
was good reaſon for the Practice; for conſider "which he never depoſited, can but be Unjuſt
and Criminal. The Law
The Law therefore doth not
Judge ought to be very cautious, he takes inflia greater or leſs Penalties upon the Offen-
away the Life of any subject, who upon the whole, ders, from the Compariſon it makes between
may rather be thought a gaod, than a bad Man. the Degrees of their Theft, but becauſe ic fup-
But it is to be obferved, that an Inquiry into the poſes, that one is more capable of being Re-
Criminals Morals, and paſt Life, where the fact forn'd, than the other. 'Tis certain, a Judge
is intricate and obfcure, may make the Preſump- ought ſo far to obſerve Equality in the Diſtribution
tions great on both fides ; and therefore, that if of Puniſhments, as to take care that ſuch as are
any Man has clearly acquitted himſelf of the Crime equally guilty ſhould be equally puniſh'd ; and that
he was indi&ed of, he may lawfully plead, that he a Fault which was ſeverely corrected in one Man,
was not oblig'd to make a Defence for his Morals
, or vin- ſhould not without very good reaſon be excuſed in
dicate his former Behaviour, but only to acquit himſelf be another : ſince it muſt be expected that
ſuch Par-
fore the Court, of the Crimes his Accuſers directly charged țiality would be a certain cauſe to raiſe Diſtur-
him with (c). But yet when a Man chat has always bances in the Common-wealth; and becauſe a
been a regular and dutiful Subje&t changes his whole Puniſhment can have no effea when it is not in-
courſe of Life; there is good reaſon the Laws ficted upon any view of publick Good, but barely
ſhould deal ſeverely with him, upon a double Ac- in Gratification to private Paſſion. But ſtill an
count; both becauſe he hath been guilty of a Equality of Puniſhment muſt be ſuppos’d only
Crime, and becauſe he has made ſo ill a Choice, where the Criminals are guilty of the ſame Fact in
as to change a good courſe of Life for å bad one (d). Specie, and not of different. Fortis common for
XXIII. Now although from Human Fuſtice to puniſh ſmall Faults with greater
What to be regarded what has been ſaid, it fufficient. Rigour, or to take the contrary Method, as the
in determining the
Quantity of the
ly appears, that one Crime is Exigencies of the State, or the Will of the Legiſlator
Puniſhment.
greater than another; and that determines. And the Criminal has no Realon to
Human Juſtice ought not to complain of the Partiality, ſince he knew before.
puniſh every Crime with equal Severity; yet not-
hand what he was to expect (g). For inſtance,
withſtanding, it muſt be confefs’d, that both the though Theft in it ſelf be a much leſs Crime than
preciſe Quantity and Quality of Human Puniſhments, Murder, yet the Thief has not juſt reaſon to com-
depend upon the Determination of the Civil So- plain, ſhould he be condemn'd to ſuffer the ſame
a
C
(1) Nemo repente fuit turpiffimus. Juyer. Sat 2. v. 83. (a) Polymnia, c. 13. (6) Orat. pro Cluentio, c. 25.
(c) Author. ad Herennium. 1. 2. c. 3. (d) Polyb l. 7. in Excerpt: Peirefiian. But when he took a quite contrary
svay of Life, and grew every day worſe and worfe ; twas fit every body ſhould change their Opinions of him.
(e) Herodot
. Euterp. p. 90 Ed. H. Steph. Diodor Sic. l. 1, c. 65 Tho' Attifanes King of Egypt, when he built Rhi.
nocolura, took care that all thoſe ſort of People, the Scum and Filth of the Nation, ſhould be carried into a Place by
themſelves, that they might not infect others, Diodor. Sic. l. 1. c. 60. (f) Plato de LL. 1. 12. init. p. 982 C. Ed.
Wecb.
($) Calpurnius Flaccus, Declam. 5. When the Conſequences are threatn'd before-hand, the Fault lies no where but
in the Sufferer,
* F
Puniſh-
4.2
Of the Power of the govereign,
Book VINI

ز
Š
2 Code
(. cf.
(b) L 2. c. S. Vin
Puniſhinent with the Murderer, tho' his Crime a Small Offence (h); The Inclination and Intent
was not equal in Degree. The reaſon why Crimes
r of the Offender may ſometimes be of greater
of different Degrees are equally puniſh'd with force with the Judge than the Crime itſelf. For
Death is, becauſe Death is the greateſt and laſt ('tis natural enough to argue from the fact to
Evil Men infict (a); unleſs it be that ſometimes the deſign of the Criminal, and to conſider ra-
the way to it is ſhort and eaſy, and at other times ther of what Nature che Offence is, than how
made terrible, and grievous, by delay and torture great (i). In Caſes of Treaſon and Conſpiracy a-
(b); or that ſometimes diſhonour is done to the gainſt the State, bare Conſciouſneſs, or Privity with-
dead Body, and infamy fix'd upon the Memory out any Alent, and Silence only, and the Conceal
of the Perſon (C), which is ſometimes inflicted a ment of it deſerves Puniſhment (k). However
conſiderable time after the Delinquent's Death; and in the Diſtribution of Puniſhment, there ought
may again be recall'd, and taken off (d). Beſides, always to be as much Gentleneſs and Lenity
the wil of the Legiſlator is often conſider'd in de uſed, as is poſſible. And therefore the Severity
termining the Penalty, though not in ſo abſolute a of Draco's Laws, might juſtly appear inſupporta-
Degree, as to exclude the Intereſt and Advantage ble; and deſerve Solon's Corre&tions (1). Yet
of the Publick, yet to ſuch a Degree, that the the Courſe of Juſtice in Peru, was altogether as
particular Puniſhment ſeems in a manner entirely Rigorous; for there almoſt every Crime was pu-
Severity that can be us’d upon Criminals who it was a Breach of the Commands of the Inca,
have contracted the llighteſt Acquaintance with whom they look'd upon and reverenced as a God
them (e). So Philo ſays, “That a Man who ar- (m. But there is good Reaſon for enhanſing the
tempts only to kill another treacherouſly, is ſeverity of the Puniſhment, when juft Reſentment
,
not the leſs guilty of Murder tho' he fails of and Care for the Common Good, makes it neceffa-
• Succeſs : And the written Law in this Caſe com- ry to ſecure the Publick Quier by puniſhing Ma-
mands, That if a Man come preſumptuouſly upon his lefaktors
. For Inſtance, luppoſe the Criminal
Neighbour to flay him with guile, thou ſhalt take him threaten Danger to the State, if he be not pu-
from mine Altar that he may die (f). The Athe- niſh'd in time. H. Stephens gives us a Story (n), of
nian Judges indeed, were too ſevere, when they a Man that having begg’d for a Pardon of the
condemn'd a Boy for pricking out a Bird's Eyes, King of France for the ſeventh Murther he was guil-
upon Suſpicion, that it was a ſign of a barbarous ty of, and finding he could not obtain it, boldly
Temper, and that he might prove a very ill Mem- told the King, that he would own only the
ber of the Common wealth, if he were ſuffer'd firſt Murder to be his own proper A&tion; and that
to grow up to years of Maturity (g). But it is the Imputation of all the reſt muſt lie upon the
not the a&tual Commisſion of a wicked A&t that makes King himſelf ; for that he ſhould never have com-
the Criminal : 'Tis enough that a Man has arm’d bim- mitted the other, if the King had not given him
ſelf and diſcovers his inclinations to Rob and Murder: Encouragement, by pardoning the firſt. Sometimes
For the Wickedneſs doth not always begin, but is exercis alſo it is neceſſary to make Examples of ſome
fed and improv'd only by the practice. For as Pater- Malefactors to frighten others; eſpecially where
culus reflects upon Caius Cato's being condemnd for the general Perſwalives and Inducements to Wicked-
(a) Lycurg. Orat. contra Leocrast. The greateſt and the laſt of Puniſhments is Death. (6) Ovid. Her. Epiſt. 1. 10.
Morsque minus pæna, quam mora mortis habet. Death hath leſs Pain it felf, than the Delay.
Tho' some think a quick Diſpatch an eafier Puniſhment than a Miſerable Life. Vid. Cafaris Orat. in Salluft. Conjur. Catilin,
and Tiberius's Anſwer in Suetonius, c. 61. To one that defir’d his Puniſhment might be ſhort, was, I am not yet reconciled
Seneca Hercules Fur. v.512. Death to the Miſerable is Eaſe.
Senec. Æg. Agamem. v. 989. He's yet unskill'd in the Arts of Tyranny,
That puniſhes with Death.
El. Ibid. v. 996. Why is there any thing beyond the Grave ?
Æg. Ibid. Yes Life when one deſires to die.
2. Euripid Hippol. Coron. Ta's 78 åpns pộis ardei dusugar. v. 147.
Th' Unfortunate deſire a ſpeedy End,
Nay, Charron de la Sageſse, 1. 1. c. 39. (VI.) f. 10. ranks it among the ridiculous Notions of the Vulgar, to think to be re-
veng'd of an Enemy by killing him. For this, ſaith be, is only to take from him the ſenſe of Misfortune, and to ſecure
him from all further Harms; unleſs a Man thinks it neceſſary to his own Security, to leave no body alive that is like to
be his Enemy, or to make him uneaſy. In Philoftratus l. 1. Apollonius condemn’d the Eunuch, that lay with the King's
Concubine, to live, by way
(c) Ælianus N. Hift. 1. 4. c. 7. (d) Vid. Socrat. Hift.
.
ad Grot d. 1. /. 39. Valerius Maximus 1. 6. c. 1. 8. 8. Vide L: 49 t. 11. l. 1. /. 2. D. de extraordin. Crimin. D. ad L. Cornel.
de ficariis. Vide L. 48. t. 8. 1. 3. f. 1, 2, 3. Philo Judeus de confufione linguarum, p. 343. C.
(f) Vide Philon, de ſpecialibus legibus, p. 791. Tacitus Hift. l. 2. c.79. Qui deliberant diſciverunt, to demur is to de-
fert. And to tbis we may refer that of Plutareh, Cæſar. Penalties are not always inflicted for the Fa&, but ſometimes for
the Intention and Delign. Quintil. Declam. 362. The Law lays the Puniſhment upon the Will
. Lyfias Orat. in Simo-
nem, c. 12. It is certain that thoſe we receiv'd our Laws from, did not intend that a man who in a Quarrel had done
harm to another, ſhould therefore be baniſhed : But that ſuch as violently affaulted and injured a Man
with a deſign to
take away his Life, tho they fail'd in the Attempt, ſhould yet ſuffer that ſevere Puniſhment, becauſe they ſuppoſed it
juft
, that he ſhould ſuffer as really guilty of the Fat, that deliberately endeavour'd to put it in Execution ; for tho it hap-
Hift. 1. 14.. 27. (g) Quintil. Inftit. Orat. 1. 5. c. 9. Senec
. de Benef. 1. 5. c. 14.
(i) Ad. L. 9. t..8. 1. 5. princ. C. ad L. Jul. Majeſt. Grotius in Flor. ſparſ. in Jus Fuftinian.
ample of Thuanius, in Benj. Priolus Hift. Gall. L. 1. c. 6. and of David Berchinus, in Buchanan. Rerum Scotic. 1. 8. Ad.
Diodorus Si:ulus, 1. 11. c. 54.
(?) Vid. Plutarch, Solon. (m) Garcilall de la Vega, Com, Reg. L. 2. C. 12, 13.
() Apolog. pro Herod. c. 17.
to you.

.
(k) We have an Ex-
nels
Chap. III.
43
.
.
nos o
mm.
G
6
S
ment ought to be inflicted on the true Crimes,
Over the Lives and Fortunes of the Subječt, &cneſs are ſtrong (1); ſuch as are Eaſineſs and Uſe, without doubt muſt appear the leſs, when the
which nothing but a ſevere Diſcipline can reform. Man was carried away with the Violence of the
The Jewish Law lays a greater Penalty on the Stream, rather than the Force of his own Inclina-
Perſon that ſteals out of the Field, than one that tions ; But when Laws are to be made, a prevai-
robs an Houſe, becauſe the firſt is done with ling Cuſtom is an undeniable Argument, that there
greater eafe; compare Exod. XII. v. 1. with the is greater need of ſevere Sanétions to ſuppreſs it;
gth and oth ver. (a). And thus the Scythians becauſe Laws muſt be ſuppoſed to regard the Ad.
thought no Crime ſo heinous as Theft, becauſe vantages that may accrue by the Puniſhment in ge-
having neither Houſes nor Folds to keep their neral. However, when a Vice has rais'd it ſelf to
Cattle in, no Man's Property could be ſecure, if ſuch an Head, and Offenders are grown ſo nume-
Robbery had any Indulgence. And in ſome Na- rous, that if all of them were to fall under the
tions, Theft is look'd upon to be a greater Crime reach of Juſtice, the Commonwealth muſt be
in a Domeſtick, than in a Stranger (b): It was much diſpeopled, if not entirely ruin’d by rigorous
Death at Athens, for a Man to ſteal from the Baths, Executions of Law, the Law muft yield to the
from the Schools of Exerciſe, or the Market, or Neceflities of the State, and rather be neglected,
any fuch publick Place; but one that robb’d a or laid aſide, than occafion the Deſolation of the
was a Cuſtom among the Perſians, that oblig'd may very well puniſh Offenders when they are few, and
o them to be ſtrict in concealing any Secret that may eaſily be reclaim'd by Puniſhment, but to attempt
• concern’d their Kings; and adds, that neither upon Multitudes is to no purpoſé (2). Laſtly,
Hope, nor Fear, could extort any Expreſfion where the Neceſſities of the State are preſſing for
from them that might give Light to diſcover it; the purpoſe, if upon an Invaſion and War, there
• the Ancient Conſtitutions of that Empire, oblig- ſhould be no other Perſon fit for the Command
ing them to ſuch Silence, upon pain of Death; and Charge of a General, there can be no Reaſon
and that therefore no Intemperance was puniſh'd why a Criminal of experienc'd Courage and Con-
ſo ſeverely among them, as that of the Tongue, duct might not be releas'd even from Capital Puniſh-
it being thought that no Man could be capable ment, when it appears that the State cannot be
of any great Attainments, who could think it ſafe without his Aliſtance; and therefore there
a pain to be filent, when it was plain there is was Reaſon in what Fabricius ſaid, when he gave
nothing in Nature eaſier'. Further alſo, Cuſtom, his Vote for Cornelius Rufinus a good General, but a
or when a Vice is grown popular, or in Faſhion, very coverous Man, to be conſul; that he had
(for as to that babitual Cuſtom or Familiarity, rather be robb'd than fold (3). And ſo Funius the
particular Men contracted by repeated Sins, I have Dictator after the Defeat at Canne, publiſh'd an
fpoken already) though it be ſome Extenuation of Edict, That if any Man, whether he was a Priſoner
a Crime, yet doth certainly deſerve very ſevere for a Capital Crime, or for Debt, would lift bimſelf
,
Puniſhment (d).
med soul
for the publick Service, under his Command, be would
Veteri poft obruta morbo
grant him a Pardon, and diſcharge bis Debts (b).
-5. XXIV. From all which I think it
Corpora, Peonias nequicquam admoveris herbas
Non leviore manu, ferro ſanantur eigni, (e).
is evident, that there is no vindi&tive' The meaſure
Ne noceat fruſtra mox eruptura Cicatrix, &c. Fuffice in the Civil Court which de- of Puniſha
termines whatin
A crazy Body long inur'd to Pain,
Degrees of Puniſhments,what.
From healing Med'cines ſeeks Relief in vain :
When at the Bone the fretting Ulcer ſmarts,
by any Decifion of Nature.
It fears the Lance, but mocks the gentler Arts.
of all buman Puniſhment muſt be taken from the
With Cauſticks and Inciſions, force your way,
The Treacherous Wound will elſe your Skill betray.
Utility of the Common-wealth; and according as
the Ends of Puniſhment ſeem moſt eaſy to be ate
Skinn'd o'er without, it ſeems to heal inclin'd,
But ftill the Sore lurks feſtering deep behind, 2d tain'd, the Puniſhment may either be enhanſed or
But ſearching Fires, the ſecret Faults diſcloſe, alleviated, according to the Diſcretion of the
Purſue the watry Humour as it flows; in's
Government. Yet ſtill fo as that the Method of
From fickly Veins prevent the freſh Supplies,
And ſtop the Springs whence firſt Corruption riſe. biskvi Puniſhment may admit of great Latitude. And
If obftinate the Sore, and ftill unſound, but therefore, as it would be too ſevere to inflict a
A Limb cut off muft for the whole compound.
tain’d by gentler Methods (4); ſo the Puniſhment
And therefore Grotius judiciouſly obſerves (f) that is much too eaſy, when it has not Sharpneſs
in publick Trials
, it is ſome Excuſe for an Offender enough to produce the Ends deſign'd by it
, and
to plead that his Fault is common; becauſe in all conſequently to reſtrain the Infolence of the Sub-
Trials the point in Diſpute is, what Share of Guilt ject
, or ſettle
the internal Security of the Com-
that particular Perſon has contracted ; and this monwealth ; or in ſhort, when it is a Puniſhment
(1) V. Grot. d. 1. f. 34, 35. (a) L. 47. c. 17. 1. 2. D. de Effra&tor. Juftinus, L. 2. c. 2: de Scythis.
6) Thoºthe Roman Law ſeems to have the contrary Method, L. 48. t. 19.1. 11. S; 1. D. de pænis. Vide Ant. Mat-
thæum de Crim. tit. de Furtis, c. 3. f. 2, 3. Ad. Arift. Probl. 5. 29. Quaft. 14... (c) Vide L. 47. t. 17.1. 1. D. de Furibus
Balnear. Ant. Matthæum de Crimin. ad h. t. t. 14. de Abigeis. Add what Philo Fud, urges, to aggravate the Crime of
Sorcery, de Special, legibus, P- 791, 792. Ed. Paris. Q. Curtius, l. 4.c.6. S.
(d) Leg. 16. . ult. D. de Pænis, ubi fupra, (e) Claudianus in Eutropium, 1. 12. V.II, Esc.
,
f) In the above-mention'd place, f. 35. (8) See Tiberius's Epiftle concerning Luxury, Tacitus Ann, 5. c. 54. in
the Beginning. (2) Plutarch. in Solon. P. 90. Ed. Wech.
(3) V. A. Gellium, 1. 4. c. 8. (h) Livy. 1. 23. C. 14. Add Grot. upon i Kings II, 6.
(4) See Mæntaign's Eſſays, B. 1. c. 11, p. 309. Ed. Pariſ.
the

ata
6.
* F2
44
On of the Power of the Sovereignzi pro Brok VIII,
و
pro-
the Sufferer to
*3. c. 6. of the Pecuniary Mula** • 37. f. 1. D. de minor. L.
Theodorici Res 206, Ecc, Plin. Nat. Hift. 1. 2. C 63 - Strangling is an odd fort of Death, by ſtopping the Breath which
the Delinquents themſelves deſpiſe (a): If the between the Crime and the Penalty, which the
Legiſlator go too far on the one hand, he is liable Circumſtances of the Perſon are neceffary to find out.
to the Infamy of being Cruel ; (b).and if he in- But if on the account of ſuch Qualities, which
to the other ſide, he makes all Puniſhment infigni- neither aggravate the Crime, nor augment the
ficant ; and gives abſolute Liberty to Vice. For Jenſe of the Puniſhment, Crimes equal in Demèrit
lince the Natural End of all Puniſhment is to diſpoſe are unequally puñiſh’d; 'tis a ſhameful Partiality
Men to obey the Law, and in conſequence,to reſtrain and reſpect of Perforis ; of which Grotius doth not
them from B&tions contrary to it; and ſince Men, always acquit the Romani Laws. And ſome
whenever they allow themſelves to confider, al- duce this for an Inſtance (3), a Mam that kills his
ways weigh the Conveniences and Inconveniences Wife, when he has taken her in Adultery, if he be
which ariſe from the ſame thing; it is evident, a Perſon of inferiour Rank, is fentenc'd to per-
that if the Harm, or Pain inflicted, be leſs than petual Baniſhment ; but if he be in any Dignity or
the Benefit or Satisfaction that naturallyfollows from Office, he is only to fuffer the Relegatio for ſome
the Crime committed, the Puniſhment will be but ſhort time; For a mean Perſon may be as much con-
a very ſlender Inducement to perſwade any Mancern’d and affiliated at the Diſgrace he ſuffers by
to reſiſt the Temptation of Diſobedience (c). the Falfeness of his Wife, as a Man of Honour, and
XXV. I am to add further, that may leave his Country with equal Grief and Regret
In Puniſhment ſince the fame Puniſhment doth not (g). And Laſtly, it may alſo be obſerv'd, that
the Perſon of affect all Perſons alike (2), and in ſome Nations, certain Sorts of Puniſhment are
be regarded.
conſequently will not raiſe the attended with particular Infamy, thus Euripides,
ſame Diſpoſitions in all, to Obedience,
High on the Gallows ignominious Pains,
it is eaſy to diſcover, that both the general penal The very Slaves regret and think diſhonourable, it
Sanction, and the Application of it to particular But by the Sword to fall looks generous and brave.
Parties, ought to be inade with a ſuitable Regard (b) And Telemachus in Homer (i) would not dif-
to the Perſon of the Delinquent, and in that, to all patch his Maids, Ka Japó Sardzo, that is, would
thoſe Qualities of Age, Sex, Dignity, Fortune, not kill them by the Sword, but bangs them.
Strength, and the like; which may either en The Puniſhment of ſtrangling on the other hand,
creaſe, or mitigate the ſenſe of Puniſhment (d). is look'd upon to be Honourable by the Ottoman Fa:
For the fame Mulet, for inſtance, will preſs hard mily, who think it infamous that noble Blood
upon a poor Man, which will be no Burden at all ſhould be ſpilt upon the Ground. And the Fews
to a rich; An ignominious Puniſhment will fit eaſy thought it a more ignominious Death to be beheaded,
upon a Wretch mean and deſpicable, when to a than to be ſtrangled or ſtoned (k). On the contra
Perſon of Honour and Quality, nothing will be ry, fome Puniſhments have had the Forcune to be
more inſupportable and affi&ing ; And Men, and accounted Honour able. And upon fuch a Notion as
full grown People have more Strength to bear this, we are told that the Athenians were angry,
Puniſhment than Women and Children (e). And that ſo mean and contemptible a Wretch as Hyper-
the Moors therefore puniſh Women guilty of Un- bolus, ſhould be banilh'd by Oſtraciſm (1); Becauſe
chaſtity, with greater Severity than Men; becauſe it was uſually thought an Honour to Juffer that Puniſh-
they ſuppoſe that generally the Arts and Encice- ment; and they could readily yield Ten Tears Baniſhment
ments of the Women, firſt give them Encourage to have been really a Puniſhment, when Thucydides
ment. But yet it doth not from hence follow and Ariſtides, and ſuch great Men Suffer'd it; but
that Puniſhment ought to be inflicted in Geometri-, they thought it was too great a Credit to Hyperbolus,
cal, (or as Bodinus (f) affe&tedly calls it, an Har- and would only; encourage him to boaſt, that he had
monious). Proportion ; all that is really intended Suffer'd the Same Puniſhment wbich was inflicted upon
here is no more than to make a ſimple Equation the moſt gallant Men of Athens (m).
(a). V. Gellium, I. 20. c. 1. de Veratii Petulantia.]
(6) V. Hobbes de Cive, c. 3. f. 11. (c) Vid. Hobbes de Cive, c. 13. f. 16. Leviathan. c. 27
princip: juffi edecori : m. 2002 Cumberland. de Legibus Nat. c. 5. f. 39. (2) Vid. Grot. ubi fupra, f. 33.
t. 19. 1. 4. f. 1. & 1. 12., f. 1. D. de Incendio, ruina , &c. Ego t. 10. 1. ult. D. de Injuriis,
&c. so t. 11. 1.6. D. de extraord. Crim. St. 12. 1. ult. D. de sepulchro violato, So't
. 14.1
. 1. f. 3. D. de termino moto. L. 48.
1. 8. 1. 3. f. 5. ad L. Cornel. de Sicariis. In moſt of theſe Laws which are here cited by the Author, there is an unjuſt ref-
peet of Perſons, which he himſelf blames a little farther, as we ſhall find, if we take the pains to examine 'em. See the
Orbis Romanus of the late Mr. Spanheim, of the Diverſity of Puniſhments, among the Romans ; according to the difference
Perſons, Mr. Note 1. on this section. () 48. t. 5. 1. 38. . 24. 39. . 4 D. ad L. Jul. .
ad L Jul. L. 1.
t. 17.1D.
. . .
ferd, call'd by them Bifreſtia.'s Of). De Repub. 1. 6. c. ult. (3) V.D. L. 48. t. 8. 1. 1. f.5. 74 (8) Vid. Edi&tum
Add. . c.
. , f
connostaid do bola Oy
endeavours to find a Paffage. Add. 1!' 48. t. 19. 1. 28. f. 2 D. de Penis. To this alſo may we
that of Dio
Chryfoftom. Orat, ad Alexandrinos. The one isthe Death of a Malefactor, the other of an unfortunate Slave. In
(1) Odyl. L. 22. V. 465, Sc. (k) Seld. 7. N. & G. 1. 7. c. 6. Thus Philo Jud. in Flaccum, is very angry that the
Jewiſh Magiſtrates and Senators at Alexandrina should be ſcourg'd in the ſame manner, and with the ſame Inſtrument, as
the meaneſt Egyptian Slaves were. To this we
we may refer that of Senecade Conſtantia Sapient. c. There are ſome
Slaves that had rather be ſcourg'd than beat. And it was I preſume a very ignominious. Puniſhment which is mention'd
Additament. I. Leg. Burgund: Tit. 10, sa (1) Vid. Plutarch. Alcibiades, p. 197. Bb Where there are theſe Verſes quoted
out of Plato the Comick Poet.
Worthy to ſuffer what he did, and more,
more, di
But not in ſuch an honourable way;
The Abject Wretch the Sentence did diſgrace.
Vid. Plut. Nicias, p. 530. E. Where he ſpeaks of the fame Matter.
(m) Thus it was ſome ſort of Comfort, nec magni dextra cadis..
Virg. Æneid. 1. 10. v. 830, Eps de la Cerda in loc.
XXVI. Neither

MINOY
Author. de
1.6.D. L. this section.
5.1 3.02:44
4:
t.
an
с
.
Chap. III. Over the lives and Fortunes of the Subječi, &c. 45

niſhment.
XXVI. Neither can I ſee any ſęd Perſons, had by Blows or Kicks, or any other
The Jewiſh Law Neceſſity that every common- way Killid one of their own Nation, ſo that no
whether an uni.
wealth ſhould take its Meaſure and One of them ſeparately did any thing which might
verfal adequate
meaſure of Pu Standard for the Puniſhment of be the immediate Occaſion of his Death, all of
Crimes, from the penal Sanctions of them were acquitted from ſuffering that Penalty
the Jewiſh Law. Becauſe that part which was otherwiſe due by Courſe of Law; be-
of the Law was the poſitive and Civil Law of the cauſe neither of them ſingly was guilty of the
Fews, and was accommodated to the Genius of that Murther (c). However this be, I would not be
People and Commonwealth. From which, fince thought to perſwade the World to an unwarran-
the Conſtitutions and Tempers of other Nations and table Eaſineſs in diſpenſing with the Puniſhment
Commonwealths are very different, there is good of this Crime. Neither would I undertake to de-
Reaſon why the Peualties too ſhou'd be different. fend that Expreſſion in one of the Conſtitutions of
Whether this indeed will hold true with Reſpect the Kings of Poland, relating to the Puniſhment
to the Capital Puniſhment of Murther, as well as to of, † Murther in the Nobility, Nos divini. Juris rigo-
other Crimes, may bear ſome Diſpute. Becauſe, rem moderantes, We mitigating the Rigour of the
the Law which determines that Puniſhment ſeems Divine Law (d). And here I ſhould take ſome
to have been promulg’d to all Mankind, as well Notice of the Diſpute, which ſome ſcrupulous
as to the Iſraelites. And the Reaſon of the Perſons have rais'd againſt the lawfulneſs of puniſha
Puniſhment is evident. Becauſe, a Man who is ing Theft with Death. But upon this I refer you
barbarous to that Degree, as to take away any to the Opinion of Grotius, L. 2. C. 1. f. 14. (2).
Man's Life maliciouſly, can never give ſufficient Yet Selden ſays, De 7. N. & G. L. 7. 6. 6. That
Caution to others, without loſing his own (a)among the Jews the Puniſhment of a Gentile;
However, I think it ſhould not be thought a found guilty of Theft, was Death ; but that the
Breach of thaç Command God gives, Gen. IX. 6. natural Fews were uſed with more Gentleneſs (e).
(1), if a Murtherer ſhould be releaſed from capital And Herod's Laws are condemn’d as too ſevere by
Puniſhment, upon ſome extraordinary Exigence Foſephus, That ſuch Perſons as were guilty of
of the Common-weaith. For ſince the Determinar Burglary, or of breaking up, or digging into Houſes,
tion of all Puniſhment is of poſitive Inſtitution, and and ſuch as robbed in the Night, ſhould be ſold out
all pofitive Laws may be accominodated to the of the Land to Strangers. By a Law of Solon's at
Neceſſities of the State; that Law may alſo reaſo, Athens it was decreed, That the Penalty for ſimple
nably be ſuppos’d to admit of the fame Exception, Theft, if what was ſtolen was recover'd, ſhould be
Some indeed are of Opinion, that that Pallage is to pay double ; or if it was not recover'd, ten times .
rather a Divine Commination than a Law, and that the Value of it. But it was added, That if any
God only declares by it, that he will execute Ven. Perſon had ſurreptitiouſly taken away qut of the Licæum
geance upon Murtherers, either by Men, or by or Academy, or the publick Schools, either Cloths, or
ſome other severe Method, if they happen to eſ, Cups, or any thing of the leaf Value, or any Veſſels out
cape the Inquiſition, and Rigour of human Juſticc. of Schools of Exerciſe, the publick Walks, or Portico's,
See A&ts XXVIII. 4. Neither doth Grotius's Inter: worth more than ten Drachms, be ſhould be puniſh'd
pretation of it, L. 1.6.2.1.5, exclude the Exception with Death (f). What Puniſhment the Roman Law
which is grounded upon the State of the Com inflicted is very well known. Juſtinian does not
mon-wealth (b). But Selden, L. 4. C. 1. exprefly allow that a Man who was guilty of no more
affirms, that the Jewiſh Rabbins did not under than fimple Theft, ſhould ſuffer even ſo much as
ſtand that place to be a Law of ſuch Force, as Mutilation of Members (g); Though otherwiſe
that it ſhould always oblige the Magiſtrate neceſa- it cannot be thought ablurd that every Criminal
rily to puniſh Murther with Death ; but that it was ſhould be puniſh'd in the Part which offended, lo
an expreſs Indication of God's Hatred to that Crime, Alexander Severus puniſh'd a Notary who exhibited
from the Severity of the Penalty he annexed to it; a falſe Libel of a Cauſe before the Council, by
which it might be lawful for
Man, according to paſſing Sentence upon him, that the Nerves of
the Poſture of Affairs, and Variety of Circum- his Fingers ſhould be cut, ſo that he might never
ſtances in the publick Government of the State, ei- uſe them to write more (b). So Seleucus paſs'd a
ther to limit or inflict. And for this Reaſon, the Decree, That an Adulterer ſhould be condemn'd
Fews (as their Law directs in other Caſes) did not to loſe his Eye, becauſe the Eye makes the firſt
inflia Death upon any of their own Nation that Breach upon the Chaſtity, and ſo much forbid-
kill'd a Profelyie of the Gates, or any other-Gentile. den Paffion may be expreſs’d in Looks as may ea-
Nay, if any Number of Jews, or other Circumci__fily kindle the moſt unlawful Lufts. And ſo alſo
(1) To this Purpoſe is that of Antipbon. Orat. 15. All Courts of Juſtice that fit upon Murder, are always in the open
Air, that the Judges may not be forced to come into the ſame place with the Malefa&tors; and that the Proſecutor may
not be under the ſame Roof with the Murderer. Add. Libanius, Progymn. loc. com..contra Homicidam
(1) See Grot, on that place, and on Matt. V. 40. (b) Add. Grot, in Flor. Sparf. ad Jus Juſtin, ad L Corn. de Sicar.
(c) See more in the ſame place.
† See the Abſtract of the Latin Letters of Tollius in the Nouvelles de la Republ. des Lettres Avril 1700. pag. 371, 372.
and Mr. Thomafius's Differtation, de Jure, aggrutiandi principis Evangelici in caufis Homicidio. Chap. iii. Seat. 9. Printed at
Hall in 1707. alſo another of his de ftatuum Imperii poteftate Legiſlatoria, &c. Sect. 43. (d) Add. Philo Judæus de
legibus ſpecial.ro (2) Grotius Lib. II. cap. 1. Se&. 14. ſays, that the Laws have no- Right to puniſh with Death all
forts of Crimes, but only thoſe that are fo heinous as to make the Offender deſerve to be cut off from the Common-wealth. But
Gronovius judiciouſly remarks thereupon, that the ſmalleſt Faults in themſelves
, may become Capital Crimes, when they
relate to Things, from which it is eaſy to abſtain, and which there has been good Reaſons to forbid on pain of Deathi
.
For in that Cåle, he that violates the Law, ought to complain of no body but himſelf.c'Tis upon that account, that the
Severity of Military Diſcipline is grounded; and we ſee that God forbid Adam and Eve, on pain of Death, to eat of the
Fruit of a certain Tree, which, in it telf, was a very indifferent thing, Mr. Barbeyrac's Second Note upon this section.
(e) Joſephus Archæol. Jud. I. 16. c. 1. (f) Add. Ariſtot. Problem. f. 29. c, 14. (g) Juſtinian,
Novell. 134. c. uh. () Lampridius, Alexander, c. 28.
pag. 406.
2
the
40
Of the Power of the Sovereign, Book VIII.

the Law of God commands, That the Woman's be further ſeverely puniſhd. As to that Command
Hands ſhould be cut off, who in any Strife, between in Ex. XXI. 23. and Levit. XXIV. 20. the Jewiſh
her Husband and another Man, drawing near to deli- Doctors are generally of Opinion, that it does
ver her Husband out of the Hand of him that fmiterh him, not oblige to a rigid Retaliation, but that ſuch
putterh forth her Hand and taketh him by the Secrets, Crimes may be redeem'd by a pecuniary Mulet.
Deut. XXV. 11. (a). However Anton. Matthæus, Bodinus de Repub. L. 6. C. ult. denies that this Law
De Criminibus, Tit. de Furtis, C. 2. puts a hand was ever in force. For example, that it was
fome Interpretation upon Juſtinian's Inſtitution (1) never underſtood that when one Man broke another's
by urging for it, That lince 'tis generally either Leg, bis ſhould be broken too ; and be adds, that that
Idleneſs, or Poverty that forces People to ſteal, the Form, An Eye for an Eye, and a Tooth for a Tooth, is
Emperour was not willing Thieves ſhould be pu- no Argument to the contrary, becauſe That was
niſh'd by loſing the uſe of their Limbs, that they only a proverbial Expreſlion, and implied no more,
might not be depriv'd of the Inſtruments neceſſary than that the Penalty ought to be proportion's to the
for them to reform their bad courſe of Life ; and Offence; that what deſerv'd only a Reproof ought
when they ought rather to be forced upon ſome not to be puniſh'd with Deatb; and that ſuch Öf-
laborious Imployment. In Germany, the Law, fences as deſerved Death, ought not to be cor-
that all Thieves ſhould be hang’d, was made by re&ted with a Reprimand ; and that This may
Frederick the Second (b). And it was afterwards eaſily be inferr'd from hence, that thoſe Divine
confirm’d by Charles V. but it look'd more ſevere in Laws do not puniſh Theft with Theft, Adultery with
him than in Frederick, becauſe he took no Care Adultery, nor Wound with Wound. But 7 beft with
of the Value of the Coin which was then finking. double or four times the value of the thing ſtoln;
Upon the whole, though I am of Opinion, that Adultery with Death; and a Wound with a pecuniary
Pris poſſible for judges to be too free in infiaing Mulat
. The ſame Divine Law hath alſo reſpect of
capital Puniſhments
, and that ſometimes it might Perſons ; For inſtance, if a Man curſes a private
turn more to the Advantage of the State, if ſuch Perſon, the Law preſcribes no ſevere Puniſhment
Criminals as are bere ſpoken of, were rather con to be inflicted on him: buc if a private Man curſes
demnd to ſome uſeful Labour and Service (c); the Ruler, or a Son his Father, the Puniſhment is
And ſo we are cold Sabaco King of Egypt
, forced Capital. On the other Hand, Conſtantius L'Em-
all Malefactors that were condemna in capital pereur Babakama.c. 8. I. I. contends for the Literal
Puniſhments, to publick Labours; and that the ſenſe of Thoſe Words. I ſhall not undercake to
Country was ſoon ſenſible of the Benefit it receiv'd determine the Diſpute between 'em; But after
from ſuch an Application of them (d). Yet I all, 'tis confeſsid however, that it was left to
make no doubt but that Theft may lawfully be the Power of the Judge to tranſmute the Corporal
puniſh'd with Death. And from what has been Puniſhment of Retaliation into a pecuniary, accord-
faid, it will be eaſy to anſwer all the objections ing to the nature of the Circumſtances, from
urgʻd to che contrary, eſpecially thoſe from Ant. that Paſſage of the Law, Ex. 21. 29, 30, where a
Matthæus.
greater Puniſhment is admitted to be chang’d for a
XXVII. Neither laſtly, is it ne- iefs
. ' And Joſephus ſays in his Antiquities, L. 4.
of Retalia- ceſſary that a Man ſhould ſuffer in * C. 8. that he that puts out another Man's Eyes,
the ſame manner in which he offended, was to ſuffer the like and loſe the ſame himſelf,
er that a Criminal ſhould always be puniſhed by which he deprived the other of; unleſs the Per-
(2) Retaliation. This Opinion is commonly al " ſon that loft his Eye, was content to take a Sum
crib'd to the Pythagoreans, who defined Puniſhment of Money in lieu of that Penalty; the Law al-
[by 'Ayrimerov Jos orj a ſuffering the like. And the Judg- lowing the Sufferer to ſet the Rate upon his
ment of Rhadamanthus is brought to confirm this own Misfortune. But on the other hand, they
Method. Juſtice is duly then adminiſtred (e); where that endeavour to prove Retaliation, urge that
the Offender Juffers as he fins. But Ariſtotle
, Nicom. Paffage in Deuteronom. XIX. 19. (f).' But it may
1. 5. c. 8. proves the Abfurdity of the 'Arnresor Jos, be anſwer’d, that the Laws there mention'd, can
or Retaliation by this Inftance: If a Magiſtrate not with any appearance of reaſon be thought to
(ſays he) Strikes another Perſon, he is not to be belong to this Subject : "fince the Puniſhment for
#tricken again, but if another Perfon ſtrikes a Ma- Evil-ſpeaking, and Curfing, exceeds all the Meaſures
giſtrate, he is not only to be ſtricken again, but to of Retalidtion ; the bare Endeavour having the full
aboada
tion,
todo
(a) Thus Vulcatius Gallicanus in Avidius Caffius, c.4. relates, That he had cut the Nerves of the Deſerter's Legs. Add
Cujacius's Obſerv. L. 7. c. 13. (1) Inftitut. 1. 4. t. I. De obligat. quæ ex delitto naſcuntur, f.gossis (6) Feudor. l. 2. t. 27. f.
8. de Pace tenenda. (c) Vid. Herodot. Euterpe, p. 90. Ed. H. Steph. Diodor. Siculun, 1.1. c 65. (d) Sir Thomas
More, Utop. 1.1. (2) See Mr. Barbeyrac's Firſt Note upon this Section, and Grof. B. 2. c. 20. ſ. 32.
(e) Ovid.
de Arte Amandi, 1. 1. v. 655, 656.
Neque enim lex aquior ulla eft,
Th' Inventers, as 'tis juft,
Quam necis artifices arte perire fua.
Shauld feel thoſe Pains themſelves diſcover'd firſt.
starts with lo sono
Quintil. Decl. 11. p. 154. The Juſtice of Revenge is ſhorteſt when the Crime is the meaſure of the Puniſhment. And
if the Nature of Revenge be conſider'd, a Man is beſt reveng'd, when his Injuries are punilh'd in the ſame way they
were committed. Senec. l. 5. Contr. Præfat. p. 276. What a Ñan deſigns for sa Puniſhment to another, is often by a very
juſt Method of puniſhing chang'd into his own. Polyb. l. 12. in Excerpt. Peireſc. Since he hath carried himſelf with lo
much Bitterneſs and Moroſeneſs to others, 'tis juſt others ſhould uſe him with the ſame Unkindneſs.
(f) Conf
. L. 9. t. 2. l. ult. C. de Accufat. Ego Infcrip. L. 9. t. 46. I. ult. C. de Calumn. L.9. t. 12. 1. 7. C. ad L. Jul. de
Vi Publica. Joſephus Archæol. Jud. l. 4. c.8: No Ifraelite ſhall have by him any mortal (Poiſon: And if any ſuch be
found in his Poffefſion, he ſhall die, and ſuffer what he was to hive done whom the Poiſon was prepar'd for. Diod. Siculus,
1, 1. 6. 77. repeats an Egyptian Law of the ſame Nature,
Evil


@
The One may imagine a Caſe where the Crime com-
Chap. III. Over the Lives and Fortunes of the subject, &c. 47
Evil ſet in view. However, in other reſpects the Counterfeiting the Coin, Impoſing of falſe Births or A-
Penalty of that is not unjuſt. For there is no difference dulterous Children, Procuring Abortion, Kidnapping,
between an Evil-Speaker, and one that does ill, but only Crimen Ambitus, Inceſt, Sacriledge, Removing the
in the Opportünity (a). Thus by the Law of God, Landmark, Defacing Sepulchres, Cozenage and Collia
Man that brought an evil Report upon a Virgin, fion, Prevarication, and the like. And by the way,
was lookt upon to be equally guilty, with one It ſhould be mention'd as an Inſtance of the Wil-
that forced her Honour. Deuteron. XXII. 19. 29. dom and Piecy of the Emperour Theodoſius, that he
(b). For there can be nothing more Injurious and Ma- took off the ſhameful Puniſhment of Women taken
licious than Detraction ; it maketh us think well of in Adultery then uſual at Rome, by which they
Falhood, and forces Innocence it ſelf to look guilty (c). were to be condemnd to the publick Stews, and
And the State of Human Affairs muſt be reduced to a were there to be proſtituted to all that came, a
very deſperate Condition indeed, if every Man's malice Bell ringing all the time they ſuffer'd that Infa.
bas power to make us Criminal: For Innocence can never mous Puniſhment. For though an Ignominy of
be happy enough, to eſcape the pernicious Diligence of a this Nature, might pollibly produce the fame
Slanderous Tongue (d) In one of the Laws of the Effects as the moſt ſevere Puniſhment ; yet fince
Twelve Tables it is Inſtituted, that the Man that this Puniſhment could not be put in Executioni
breaks another's Limbs, unleſs he can make bis Peace, without Sin, it feem'd rather to encreaſe than take
and Compound with him, shall ſuffer the like. Upon away the Guilt of the Faet it puniſh'd (g). But
which Law I refer you to the Diſpute between admitting that thoſe Laws which ſeem to eſta.
Favorinus and Sex. Cæcilius in Gellius, (1) L. 20.C. bliſh Retaliation, apply it only to Injuries and
1. But it is plain, that Rataliation was grown Hurts that affe& the Body; and admitting that
Inſtitute, De Injuriis (e). Diodorus Siculus, L. 12. c. mitted may be well enough turn'd into the Pu-
17. gives us an Account of a Law made by Cha- niſhment of it ; and that neither the Perſons, the
yondas to this effect: If any Man puts out another's Place, the Time, Quality, or Cauſe, inhanſe or
Eye, let bis Eye alſo be put out. ' It happen'd, that aggravate the Crime: Yet even upon ſuch Sup-
a Perſon blind in one Eye was ſet upon, and poſitions, ſimple Retaliation will not be a proper
• loſt his other, and conſequently was entirely Puniſhment. For Inſtance, a common Man ftrikes
depriv'd of Sight: Now in this Caſe, tho' the another a Box of the Ear, in ſome private Place;
Criminal was to be depriv'd of one Eye, yet now if the Perſon that ſuffer'd the Stroke is to
his Puniſhment was juſtly thought leſs than he return the other the Like, 'tis to be fear’d, he will
defervd; becauſe, tho' he might ſeem to be hardly be exact enough to obſerve a juft Proportion
ſufficiently puniſh'd by the Letter of the Law, (b). And if the Execution be referr'd to a third
yer his Lóſs was not confiderably ſo great as Perſon, how ſhall he know with what force the
the others. And therefore it would look more firſt Blow was given ? Beſides, in many Crimes
• like Juſtice, where the Penalty was to be laid Retaliation might be too ſevere, if there ſhould be
equal to the Injury, that the Perſon, who en no Diſtinction made, whether the Fa&t were com-
tirely
depriv'd the Man of Sight that had loft mitted maliciouſly, or not ; Or if no difference of
one Eye before, ſhould loſe both his. The Perſons be obſerv’d. For Example (1), a Man
blind Man grown therefore impatient at his deſigning to ſtrike another a ſlight Blow in the
Misfortune, and the Partiality of the Cafe, Face with his Diamond perhaps, or ſome Stone he
took the Courage to repreſent his Caſe to the wears on his Finger, unhappily, againſt his Inten-
People, bewaild the unhappy Condition of his tion, ſtrikes out his Eye. It would be very fevere,
Life, and beg'd them to alter the Law; at laſt if ſuch a Perſon ſhould, upon that Misfortune,
putting the Rope about his Neck, (as the Cuſtom be condemn'd to loſe his Eye too. So if a Gentle
was there upon ſuch occaſions) his Entreaties man kick a common Porter or Labourer, it would be
had the deſir'd Effect, the Law was abrogated; too ſevere to ſentence that the Kick ſhould be re-
a new one better conſider'd was prefer'd, and turned again upon him, becauſe 'tis a Diſhonour to
. He eſcap'd the Death he was ready to have ſuf- a Perſon of Quality to receive a Kick, and none to
fer'd (f). But however this be, 'tis certain, one of mean Condition. Again, on the other hand,
That fo rude a Notion of Retaliation can never be a in many Crimes, the Puniſhment of Retaliation
juſt Meaſure of Puniſhment. For in the firſt place, ſeems too eaſy. And this may happen particu-
there are a great many Crimes, which it cannot larly from a Diſparity between the Perſons who did,
poſſibly be apply'd to. As I believe, Retaliation was and who ſuffer'd the Injury; or elſe from a Diſpa.
never thought a proper Puniſhment for Adultery, Ra- rity of Place, Time, and other Circumſtances. But
viſhment, Beſtiality, 'Treaſon againſt the State, Revi- in the general, the Arguments which Grotius pro.
ling, Detraction, Sorcery, Forgery of Wills or Deeds, duces in the Chapter before cited $ 32. entirely
6
(a) Quintil. Decl. 331. 'Tis a ſort of Murther to attempt any Man's Life, that ought not to be killid. And Pliny in his
Panegyr. c 35. n. 3. ſpeaking to the Delators tells them, that they were to expe& Puniſhments equal to the Rewards
they had had before, that their Hopes ſhould be no greater than their Fears, and that they ſhould be as much afraid
Themſelves, as they were fear'd before by others.
(b) Iſocrates de Permutatione, p. 540, 541. Detra&tion makes Judges Perjure themſelves; extinguiſhes the Light of
Truth, involves all that hearken to it in a Mift of Lies, and then eaſily finds a way to deprive Men of their Lives.
(6) Quintil
. Declam. 11. Defamation can have no effect, but by the Injuftice of the Judge. (d) Conſtitut. Sicul.
(1) Noct. Attic.
(e) Inſtitut. L. 4. t. 4.
(f) Demofthenes mentions the Same Law, adv. Ti-
mocratem. Ariftot. R het 1. 1. c.7. The Puniſhment is not the ſame when a Man puts out his Eye that has but one, and
one of his that hath two. Add. Pet. Gregor. Tholofanus Syntagm. l. 31. c. 10. (g) Socrates Hift. Eccl. 1. 5. c. 18.
* (b) Add. Lex Wifigothorum, 1. 6. t. 4. c. 3. (1) V. Ariftot. Ethic. ad Nicom. 1. 5. c. 8.
confute
therla
L. 2. c. 14.
1. 7.
2
48
Book VUT
Of the Power of the Sovereign,

C
C
C
C
l
of the Innocent and the Criminal ſhould be equal. ferd mould be barns; and That the Lolles. They ſuf
confute that wild extravagant Notion of Retalia- which was made by Thomas Randolf, Regent of
tion; Where He alſo with very good Reaſon denies, Scotland, (d) to Suppreſs the Robberies which
that when a Man hath deliberately, and without were then frequent ; And That was
That all
nuch alleviating Circumſtances, done hurt to ' Husbandmen ſhould leave their Plows, and other In-
another Perſon, He ought to ſuffer juſt as much ſtruments of Tillage, in the open Fields : And that
Harm as he has done, and no more. For 'cis a Con at Night they ſhould not ſo much as lock or ſecure
tradiction to Equity, that the Fears and Dangers
to them by the Juſticiaries of the
Kingdom, who were to be reimburſt by the King,
And there would be but ſlender Proviſion made
for common Security, if Malefa&tors ſhould be under and the King was to ſatisfy himſelf by the Goods and
no greater Fears from publick Juſtice and the Chattels of the Robbers that were apprehended. But
I aws, than good Men are from their Intolence and now as to Crimes contracted by Corporations or pub-
Wickedneſs; eſpecially ſince the Hopes of Con- lick Bodies, It muſt be obſerved, that though the
cealment, of eſcaping by Flight, or by ſome way Decrees, to which the Major Part conſents are ge-
or other evading Juſtice, are in a manner additio- nerally look'd upon to be Decrees of the whole Bo-
nah Advantages to every Villain. And beſides
, dy, ſo that the leſſer Number diſſenting, ſhall be
the moſt Sacred Laws themſelves do ſometimes or- oblig'd notwithſtanding to ſee them executed ©
dain the fame Puniſhments for imperfe&t and finiſh'd (3). Yet if there be any Enquiry made about
Crimes, Deut. XIX, 19. Exod. XXII. 9: (a) It the Guilt of ſuch an Act, Thoſe Perſons only are
was a remarkable Law which Strabo mentions, L. to be ſuppoſed liable who a&tually gave their Con-
15. among the Indians, He that deprives mer of the fent. And Thoſe are innocent, who denied their
uſe of a Limb ſhall not only ſuffer the like bat Agreement to it, from the Beginning, and con-
jhall bave his hand cut off alſo. But if any Perſon de- ftantly perfifted to diffent from it (f) alexander
prives an Artificer or Mechanick of the Use of an the Great took Thebes, He commanded that all
Hand, or an Eye, He shall be put to Death. And by the Thebans ſhould be ſold for Slaves excepting on-
Solon's Law, the Perſon that put out one of ly ſuch of them, as were againſt paſſing the
another Man's Eyes, was to loſe both his own (b). Decree to break Alliance with the Macedonian &).
And ſo alſo a Man that went arm’d with a Defign Nay, it is not uncommon to excufe. Thoſe at,
to kill any Perſon fell
under the reach of the Law. leaft, (as to the higheſt degrees of Guilt) who
de Sicariis, L. 48. t. 8. 1. 1. D. ad L. Corneliam. diſſented at first, but afterwards fell in with the
Now thcugh the Conſequence of this be, that Prevailing Number, and then purſu'd the Exe
the Puniſhment of a mature finiſh'd Crime, ſhould be cution of the Criminal Decree as far as they had
proportionable to the degrees of its Conſummation, Power, So the Greeks were ſaid to have ſpared
yet ſince buman Juſtice can inflict no Puniſhment Antenor and Æneas, (4) who had perſwaded the
greater than Death, and it is impoffible that ſhould Trojans to reſtore Helena, though the Latter of
be repeated, there muſt neceffarily be a ſtop made them perform'd many brave Actions in Defence
there; though according to the degrees of the of his Country. It is alſo to be further obſerv'd,
Crime, the Puniſhment of Death may be made more that the Puniſhment of a Corporation or Body Pos
painful by Torture, or appear more grievous from litick, as ſuch, is different from the Puniſhment of
the Circumſtances of Ignominy, and Diſgrace, particular Perſons and Subjects. The Puniſhment
which either attend or follow afrer it.
of a particular Subject, is ſometimes Death. And
XXVIII. I proceed in the next that which anſwers it in the Body Politick is Dilo-
A Corporation place, to conſider thoſe Puniſhments lution (b): And when a Corporation or Community
or Community, which are infided by human Juſtice, is thus diffolv'd, all w/ufructuary Advantages are
for other Men's Crimes
. And here, ſaid to be at an end with it, in the ſame mannes
without Diſpute, (1) They that do really partake as in Caſes of Death (i). Sometimes particular
of the Guilt of the Offence, ought to ſhare alſo in Perlons, are by way of Puniſhment, made Slaves,
the Puniſhment in proportion to the Influence they And the Body Politick ſuffers the like, in caſe Ic
may be ſuppoſed to have in the Faet ; Since they were once immediately Jubject to the Civil Sove,
ſuffer not for another Man's Fault but their own. reign only, but is afterwards ſubjected to ſome
But now how, and by what Method of acting a other ſubordinate Body, or perhaps to a Particular
Man may be ſaid to partake of another's Crime, I Subječt. And laſtly, as Particular Perſons may be
have ſhewed before (2) (c). But it muſt be obſerv'd, puniſh'd by way of Mulet levied upon their
that there is This difference between Satisfaction Eſtates: So the Body Politick when it commits any
for Damage, and Puniſhment, that 'tis more uſual Publick Crime, is puniſh’d by Deprivation of the
for human Juſtice to condemn an Offender to make Publick Goods belonging to It, ſuch as Forts, Naval
Reftitution, than beyond, and beſides that, to ſuf- Stores, Ships of War, Arms, Treaſure, publick Lands
fer Puniſhment alfo: Becauſe Imprudence or Levity Privileges, and the like. So when the People of
of Offence may be ſufficient Motives to fuperſede Antioch, upon the Impoſition of a new Tax, pull'd
Punifliment, though perhaps riot to excuſe Repa- down the Emperour Theodofius's Statues in all the
ration for Damages. It was a remarkable Law Publick Places, He puniß'd them by forbidding


(a) V. Edi&tum Regis Theodorici, C. 13 Ego 50. (6) Diogenes Laert. Solon. (1) V. Grot. L. 2. c. 21. f. 1,
(2) See above in B. 1. c. 5. f. 14. and in B. 3. c. 1. f. 4, 5.
(c) Vid. Jacob: Godofredum difc. in C. L. 2. t. $;
ad L. Juliam. Majeft. 1. 5. c. 9, & 10.
.
6. Ep. 13. Particular Men at the firti Propoſition of any Matter
may lawfully diffent; but when the Decree is pats'd, the
(e) Vid. Polyb. I. 5. c. 49. in fin. Pliv. I.
which the Majority agreed to, muſt oblige all, (3) Upon this, See above in B. 7. c. 2. f. 15.
XXIII. 51.
(g) Plut. Alexander. p. 670, D. (4) V. T. Liv. l. 1. c, I.
(b) Add. Conftitut. Sicul. 1. 1. tit.47.
(i) Modeftinus in L. 7. t. 6. 1. 21. D. quibus mod. Uſufract. amit.
(f) See Luke
them
due to
Chap. III. Over the lives and Fortunes of the subject, &c. 49
then the Uſe of the Theatre and the Baths, and ſucceed one another. But when the Queſtion is
by taking from them the Title of Metropolis, which of Human Puniſhment, It ought in Truth to be de-
their City enjoy'd before (a). And ſo Marcus the nied. For it is more neceſſary, even in particular
Emperour took away from the ſame People all the Men, to puniſh freſh, and therefore more Scanda-
Publick Shows, and other Ornaments of their City; lous Crimes, than old forgotten Faults. And there-
(though he afterwards reſtor’d them again) (b). fore, there was very good reaſon for that Preſcrip-
So Severus demoliſh'd the greateſt part of Byzan- tion of Crimes which the Roman Laws allow'd ().
tium, ruin'd the Theatres and Baths, and all the Beſides, it is to be obſerved, that ſome things
Ornaments of the City, reduc'd it almoſt to a Vil. may be immediately and naturally predicated of a
lage
, and made it ſubject to the Perinthians (c). Community as ſuch ; For Example, The having a
And thus the Emperour Conſtantias by way of Pu common Stock, common Conſtitutions, Rights and Pri-
niſhment to the ſame city, becauſe they had kill'd vileges, which the particular Members cannot call
his General Hermogenes, took away from them the their own. And again, that there are other
Dole of Corn which he had uſually before diſtribu- things which agree to the Body, only as derived
red among them (d). But however in Crimes from the particular Members, or which firſt of
where there are Numbers of Complices ’tis reaſona- all inhere in the Members, and afterwards in-
ble, the Chief Promoters and Abettors, ſhould fluence and denominate the whole Body. Thus it is u-
be puniſh'd with greateſt Severity (e). And in ſual to call a Society Learned, Noble, Wife, Honoura-
ſhort, In Eſtimating the Crimes and Penalties of ble, or Contemptible, as the Majority of its Members
Corporations and Bodies Politick, it ſhould be confi- is Learned, Noble, Wife, Honourable, or Contemptible,
der'd as Quintilian very well obſerves (1), “That tho' perhaps ſome of the Members may be Unlearned,
generally whatever a Community undertakes, Baſe, or Imprudent. And in this latter Senſe it is,
· muſt be aſcribed to the power of the Counſellors that ſuch Bodies may be ſaid to have incurr’d Pas-
that direct it; And that all Popular Diſturbances niſhment. For the Demerit adheres to the particu-
and Inſurrections are of greater or leſs Violencelar Members, as they are ſuppos’d to be perſons
' according as the People
are exaſperated. Juſt who have the uſe of their Underſtanding, and
as all Motion in our Bodies derives it ſelf from are capable of acting with Reaſon and Choice.
our Minds, and our ſeveral Parts are as it were But a Community, as ſuch, and as it is conceiv'd to
· dead and uſeleſs till pue in Action by the Soul. be diſtinct from the particular Members, has no
'Tis the eaſieſt thing in Nature to raiſe any Faculties by which it is capable of exerciſing
* Kind of Paſſion in a Multitude. For there was ſuch Actions as primarily and immediately con-
never any Aſſembly, where every Man could tract Demcrit ; and which may therefore be fup-
perfe&ly govern himſelf by his own Thought, pos’d to be diſtinct from thoſe of the particular
Senſe and Reaſon. Nor was there ever a Muls Members. And therefore it follows, that if the
titude that had the Foreſight and Prudence par- Members, by whom the Body contracted the Dea
ticular Men have. Whether it be that all Men merit, are dead and gone from the Society, and
are leſs affe&ted with publick Concerns; Or the Guilt has not been continued by any A& of
that every Man is leſs ſollicitous, where he doth their Succellors, that the Demerit it ſelf expires
not think himſelf in particular anſwerable for with them; and conſequently that which made
the Succeſs. For the Preſumption and Depen the Body liable to Puniſhment ; ſince the one cannot
i dence Men have upon others, make them neg. be juftly inflicted without the other. Plutarch (i)
ligent and remiſs themſelves. And ſo Cicero indeed, in this caſe, appeals to the Methods of Di-
ſays, that among the Romans, if any Number of vine Juſtice, which ſometimes, as we read, Viſits
Soldiers had offended againſt the Laws Military, the Sins of the Fathers, upon the Children. But as the
ſome few of them were puniſh'd as their Lot hap. Proceedings of divine Juſtice are not always to be
pened, That ſo the Terrour might reach all, though made a Pattern to human; ſo neither doth it fol-
but few fell under the Puniſhment (f). And this is low that if it be Equity, to allow Pofterity the Pof
implied in the Anſwer of Germanicus's Ar- ſeſſion of thoſe Rewards and Honours which were
my to him in Tacitus, That he ſhould puniſh acquired by the Deſerts of Anceſtors; it is therefore
the Guilty, but pardon such as bad been Miſgui- Equity, that they ſhould alſo ſuffer the Puniſhments
to their Anceſtors Offences. For it is the Na-
XXIX. And here it may be ture of a Benefic, that it may freely be beſtow'd,
The Crimes of queſtion'd, Whether a Crime com at the Pleaſure of the Donor, even upon a Perſoiz
Corporations mitted by a Community or Corporation whòlly undeſerving ; but the Nature of Puniſhment
Courſe of Time.
will always leave it under Execu- is quite different. The Romans (as Juſtin tells us)
tion of the Puniſhment, for Inſtance, made uſe of the Pretence of an old forgotten
If a
a Community has been publickly Guilty of ſome Kindneſs, to undertake the Defence of the Acar-
criminal Act, perhaps two or three hundred Years nanians againſt the Etolians (k), declaring that the
paſt (2)? It may perhaps have ſome Show of Reaſon why they alliſted them was, becauſe the
Reaſon for the Affirmative to ſay, That as long Acarnanians did not join with the other Cities of
as the Community laſts, it continues the fame (3), Greece, to ſend Forces againſt Troy, from which
though the particular Members in it change, and City the Romans would be thought to have derived

1
ago
C
ded (g
CON
wear out in
(a) Libanius Orat. 13.
(6) Vulcatius Gallicanus in Avid. Caffius c. 9.07 ) H
(c) Herodianus, 1. 3. c. 19.
(d) Socrates Eccleſ. Hift 1. 2.c. 13:
(c) Vid. Liv. 1. 28. c. 26. ab. init. (1) Quintil
. Declam. 11. p. 156 Éd Lug. Bat,
(1) Cic. pro Cluentio, c. 46. Tacitus, Ann. L, 1. C. 44. init. (8) Add. Polyb. 1. 11. c. 27. in fin. So excerpt. Legat.
1.28. c. 4. Bodinus de Rep. 1. 3. c. 7. p. m. 527. & Seqq. Ant. Matthæus de Crimin. ad L 48. D. t. 18. c. 4. 1. 30. Conft. Sicul.
L. I tit. ult.
(2) V. Grot. 1. 2.6. 21. f. 8. (3) Plutarch de ſera numinis vindiéta, p. 559 A. (b) Vid. Ant. Mat-
thæum de Crim. ad L. 48. t. 19. c. 4. t. 20.6.4 f, 14. (i) Plut. de ſera Num. Vind, d. 1. (k) Juftinus, L. 28.c. 1. in fin.
* G
themſelves :
50
Of the Power of the Sovereign,
Book VIII.

not an buman
Puniſhment.
truly an unjuſt and barbarous Law, (as Buchanan in a Convenient Place, and be without trouble
themſelves : Though it was clear this was nothing Criminals, were to be forfeited to the Crown, excluding
elſe but Pretence, and was only a Colour to excuſe their Wives and Children from any part of them (d).
themſelves for interpoſing in things it did XXXII. Again, Laſtly, It ought
not belong to them to be concern'd in (a). to be obſerv'd, that ſometimes the Difference be-
XXX. But however it is ftill Evil a Man may ſuffer, or the Loſs tween the Occa-
Every fatal Evil true, That human Juffice ought of any good he may fuftain, may cauſe of Evil.
not to force a Man to bear part of be occafion'd by another Man's of
the Puniſhment of another's Crime, fence, or becauſe another Man has not perform’d
when he was not Acceffory to the Commiſſion of it. his Obligation ; but ſtill that this Man's Offence, or
The Reaſon is, becauſe all Merit and Demerit are Deficiency in Performance of the Obligation, is not
entirely perſonal
, and founded in the Will of each the proper and immediate Cauſe why the other fuf.
Man; which certainly is, or nothing is, at his fers Evil ; Nor can any third perſon pretend any
Command, and which can't contract any Guilt, direct Right from ſuch an Offence to inflict Evil
but by ſome internal Motion of its own (1). But upon him (3), Thus it is common for Fidejullors
,
becauſe it often happens, that ſome Men's Offences Bond/men, to ſuffer Loſs, when the Debtor they
are the Occaſions of Evil to others ; that we may engage for, breaks his Promiſe. But the imme.
not be apt from hence to make a wrong Inference; diate Obligation that binds the Fidejuſſor or Bondl-
It is neceſſary to obſerve, in the firſt place, that man to diſcharge the other's Debt, is his own Pro-
not every thing that brings Uneaſineſs, Incon- miſe. For as a Man that engagés himſe f to be
venience, or Loſs upon a Man, is properly Pu- bound for a Buyer, is not properly obliged from the
niſhment (2). A Man when his Eftate is confiſcated thing bought, but from the Promiſe he made: So a
upon ſome criminal Account, and he is reduced to Man bound for a Criminal, is not properly obliged
Want and Poverty, may properly be ſaid to have by the other's Crime, but by his own Engagement.
Suffer'd Puniſhment. But how many Men are there, From whence it follows, that when
the Fidejuſſor
that come into the World without any other For- or Bondſman is to ſuffer Evil, it muſt not be mea-
tune or Eſtate than their own Perſons ? How many ſur’d by the other's Crime, but by the Power he had
are there that by Fire, Shipwrack, Incurſions and to promiſe. And therefore when the Delinquent
Depredations of Enemies, are ſtripp'd of all, and eſcapes, and it is neceſſary his Surety ſhould make
whoſe Poverty cannot be calld buman Puniſhment, Satisfaction to Juſtice, 'tis not to be conſider'd
but fatal Misfortune ? And I may ſay, that there. what Evil might have juſtly been inflicted
fore the Evils
, for example, which Subjects fome- on the Delinquent, but what Degrees of Evil
times feel from the Miſcarriages and bad Govern. the other could oblige himſelf by his own
ment of their Princes, ſhould be thought alſo to be ſole Conſent to ſuffer for him. And hence it may
of the ſame Nature with thoſe other Inconve alſo be inferr'd, how far Bondſmen or Fidejusſors
niencies and Aflictions, which attend human Life; may be admitted in capital Cafes : And that may
ſuch as ill Conftitution of Body, Infirmities of be only thus far; either that the Bondſman may
Age, unwholeſome Air, Barrenneſs
, and the like. promiſe the Magiſtrate, (whoſe Dury it is to pro-
XXXI. And Secondly, it muſt be ſecute the Offender) that he will ſatisfy for the
Difference be-
further obſerved, that there is great Damage he has done; or elſe that he will take
difference between the Damage care to bring him to Tryal
, upon Condition that
which a Man ſuffers directly by ano the Criminal may be admitted to Bail, if he be al.
ly and by ther's hand, and that which falls ready apprehended, may be free from the Incon.
Conſequence.
upon him only by Conſequence. A veniencies of a Priſon, and may not be obligd to
Man ſuffers the firſt, when he is depriv'd of that appear at his Tryal in Irons; or if not apprehend-
which he has already all proper Right to. The ed, that nothing be iſſued out againſt him in his
other happens when that Condition is intercepted, Abſence, and before he has had a judicial Hearing.
without which he could not enjoy ſuch a Right But no Man can oblige himſelf to ſuffer Death for
(b). Thus when the Eſtate the Parents were pof- a Criminal (4); ſince no Man hath ſo much Power
feſsid of is forfeited, the Children alſo feel the over his own Life. Neither can the nature of
Loſs of it. But however, That is not a Puniſhment Human Juſtice allow fuch Puniſhments to be in-
properly, with reſpect to the Children, becauſe flicted. For the end of Puniſhment is to reſtrain
they cannot come to the Inheritance of their Men from Tranfgreffions, and diſpoſe them to Obedience
.
Father's Eſtate, unleſs their Fathers preſerve it But in This Cale, neither has the Fidejuſſor him-
for them till they die. And therefore the Confiſ- ſelf offended, neither by his a&t of Engagement
cation or Forfeiture only intercepts the Condition, doth he derive the guilt of the other's Crime
without which the Children can have no Right upon himſelf. For it can be no Crime in Him to
to their Father's Eſtate (c). But however, it was deſire that the Criminal ſhould have a fair Hearing
calls it,) which was made by Mogaldus King of and diſquiet, before Judgment paſſes upon him:
Scotland, That all the Goods and Chartels of condemnd Nor is it any to promiſe He will pay the Pecuniary
tween Dam-
mage ſuf.
fered dire&t-
(a) But the Expreſſions Mahomet the II. uſed to Pope Pius the II. were more ridiculous than this ; That he was fur-
prized to find Italy joined in a Confederacy againft him, fince the Trojans were his Anceſtors as well as theirs, and fince
it ought to be their
common Concern to revenge Hector's Death upon the Greeks, whom the Italians had now made an
Alliance with againſt him, Micb. Montaigne's Efays, 1. 2.c. 26. p. 556. (1) This Reaſon is taken from the Begin-
ning of the XXXIII. Section.
(2) V. Grot. L. 2. C. 21. (6) We have an Inſtance of this in L. 39. t. 2. 1. 24 f. ult. 1. 26. D. de Damno Infefto,
EL. 35. t. 2. 1. 63. D. ad L. Falcidiam.
(c) Vid. L. 48. t. 22. 1. 3. D. de Interd: it. Ego Relegat. &c.
Rerum Scotic. I. 4: (3) Vid. Grot. d. l. l. in. (4) See above in B. 5. 6. 10. ſ. 12.
(d) Buchanan.
Mulet

Chap. III. Over the Lives and Fortunes of the Subject, &c. 50
No Man to be
another's
.
, and be adviſed to take were
Mulet impoſed on the Criminal, in what manner Regard for) muſt for their Fault live without any
the Magiſtrate ſhall think fit to ſet it, when the publick Character, or Mark of Honour and Eſteem in
Criminal is fled from Juſtice. Beſides the End of the Common-wealth. But this is, in reality no
Human Puniſhment cannot be obtain’d by puniſhing Puniſhment to the Children ; becauſe the Governa
the Surety; for if He be puniſh’d, he muſt be pu- ment may beſtow Honours where it pleaſes, and
niſh’d, not becauſe He himſelf is guilty of any therefore may by its own Right and Authority;
Criminal aktion ; but becauſe He is ſo imprudent as exclude ſuch Perſons as have not in the leaſt ofm
to expoſe himſelf to Danger, upon the preſump- fended, from all Titles and Dignities it has power to
tion of another Man's Honeſty. And then all confer, as often as it is thought agreeable to the
the Effeet of ſuch a l'uniſhment will be This, that Rules of Government, and the publick Good.
other Men will be more cautious for the future XXXIII. From theſe Diſtinctions
how they engage themſelves ; Not that They will it appears, that no Man can be
be more careful to avoid the Crime the Offender juftly puniſh'd by any civil Court for punith'd for
was guilty of. And therefore ſuch a Puniſhment another Man's Offence, when he is
would ſeem to have no Regard to the Faet of the free from Guilt of it. And the Crime,
Principal Criminal, but only to the unwary Cre- Reaſon is, becauſe that Aptitude
dulity of the Surety
. And therefore the Magi- which diſpoſes a Man for Puniſhment proceeds
frate chat puniſhes a Bondſman, or Fidejuſſor, from Demerit, and Demerit in the laft Reſort is
underſtands neither the Nature of Puniſhment
, nor founded in the Will, which is certainly, or no-
his own Duty in infli&ing it; except it appear that thing is, at a Man's own Command, and which
He deſign’d only to abule him, and elude the force cannot contract any Guilt, but by ſome internal
And again, ſince no Man has Motion of its own.
Motion of its own. 'Tis a Miſtake in Grotius,
ſuch Right over his own Members as to take Liberty in the Chapter before cited, Se&t. 12. to think that
to deprive himſelf at pleaſure of any of them; it there may be an Inſtance given to the contrary,
is évident that no Man can oblige himſelf to fufe Extrinſical to the Perſon of the Delinquent, in the
fer the Puniſhment of Mutilation for another Per- Person of one he hath a violent Affection for.
ſon. But 'tis a different Caſe, when Jaylors, the And I thing it is nothing to the Purpoſe to ſay
Keepers of Malefa&tors, are puniſh'd with Death, as Plutarch does (c); That the Maſter by cor-
who either by Neglect or Colluſion, gave them recting ſome of his Scholars, puts all the reſt
Opportunity to make their Eſcape; for they ſuffer in mind of their Duty, and a General by
for their own criminal Default, not for their Pri- by making a Decimation, puniſhes the whole
foners (a). Nay further, Though it muſt be al Army'. For both the Youth that is corrected, and
low'd that the free Heads, and Maſters of Families, every tenth Souldier that Soffers, is really criminal
had the Liberty of ſetting up what ſort of Govern- himſelf
. And hence therefore it follows allo,
ment or Law they pleaſed; yet it does not ſeem that innocent Children are not to be puniſhid for the
to be a proper Method to baniſh the Fidejuſſors; as Crimes their Parents were guilty of id) (1). And
well becauſe Banishment can hardly be called a therefore fome Interpreters explain Joſhua, C. 7. v.
Puniſhment ; as becauſe it is not the Intereſt of the 24. thus, That Achan's Children were brought
Commonwealth to drive away ſuch Subje&ts. (b), out only, that they might hear the Inſtructions
There are ſeveral other Caſes, where a Man may Joſhua gave them, and the reſt of the People;
ſuffer Inconvenience by another's Offence. For
warning how they
ſtance, If a Friend be ſo kind to me as to let me found guilty of the like Crimes themſelves
live in his Houſe Rent-free, and it happens that that they were to be ſtond with their Father. But
my Friend, the Proprietor, bé found guilty of ſome if this Comment upon the Text will not be al-
Crime for which his Houſe is forfeited : "Tis plain lowd, See what Grotius faith, de 7. B. & P. 1. 2."
that I muſt be ſenſible of Inconvenience in ſuch a C. 21. V 14. in princip. (e send
Caſe, becauſe I muſt be forced to provide my ſelf
din ele sobivajon
of a new Habitation, when perhaps he would Ne perge queri, caſuſque priorum
have allowed me to have lived there longer upon Annumerare tibi. Nec culpa nepotibus obſtat.
the ſame Terms. But the Puniſhment doth not Tu modo difimilis, rebus mereare frecundis
properly affect me. For the Publick, that is ſeiz'd
Excuſare tuos.
in the Propriety of the Houſe, may when it pleaſes,
by its own Right, dený me the Uſe of it, at that Lament no more, nor to ýour ſelf miſplace,
Rate I had it before. So alſo Children of Traytors The Crimes or Fortunes of a former Race.
and Rebels
, are often denied Civil Honours in the Our Parent's Guilt but to themſelves excends,
State. And this indeed aggravates the Puniſhment Taints not the Blood, nor to the Sons deſcends,
in the Parents; fince their Children, (whom they By your own worth, you bloc out the Diſgrace,
are ſuppoſed to have the greateſt Affe&ion and And raise the faded Luſtre of your Race (f).
6
i
not
for neque
alego 15.40.UA
(a) See i Kings XX. 39. Seqq. Acts XII. 19. (b) Garcilaſa de la Vega Comm. Reg. 1. 6 c. relates, That the
Provinces which bordered on the Imperial City Cozco, were oblig'd, by way of Tribute, to furniſh the Court of the Inca
with Officers and Servants. And that upon any Crime or Negle&t they were guilty of, the Provinces that preſented
them were to be reſponſible. (c) De fera ſuminis Vindi:. p. 561. A. Ed. Wech.
(d) Vid. L. 9. t. 47. 1. 22. C. de Pænis
. L. 48. t. 19. 1. 26. D. de Danis. ui (1) Vid. Grot. ubi fupra, f. 13, Lyoc.
(e) Ovid. Metam. L. 4. v. 669, 670. th
Illic immeritam, maternæ pendere lingua, srl There partial fové did for her Mother's Crimesh...!
Andromedam Panas, injuftus juſſerat Ammon The fair Andromeda in Chains confine, 9 10 11
(f) Statius Thebaid. L. I. towards the End,
G2
And
52
Of the Power of the Sovereign,
Book VIII.
pre-
{
fended (g:
War upon them ; but in War
And therefore that Law of the Perſians, by ceſs, begin with the Execution (f). But yet con-
which, when any fingle Perſon was found guilty fcientious princes ought to conſider what Tiberina
3: C.
Family and all his Relations were to fuffer And indeed, neither in War ought the Sword to
with hin, was juſtly cenſured by Ammianus Maru be ſo mercileſs, as not to ſpare ſuch as Age and
cellinus , as inſupportable , and barbaroully Innocence plead for. And ſince ſuch as are born
Rigorous, beyond Example (a). 'Tis certain in the Commonwealth are subjects, there is no
indeed, that by Puniſhments of ſuch Cruelty, Prin- Reaſon why they ſhould be treated as Enemies
,
ces intended above all things to provide for their unleſs their own Aits make them ſuch. And
own Safety (b). For though a Man may have therefore, there can be other way of puniſing an
Bravery enough to deſpiſe his own Life (as Hellas- Innocent Son for the Treaſons and Rebellions of his
nicus in Juſtin, is ſaid to have done when he was Father, than by intercepting thoſe Goods from him
Old and Childlefs, and was therefore the more
which would otherwiſe have deſcended from his
animated in his Conſpiracy againſt the Tyrant A- Father to him. In Peru under the Government of
ribotimus, becauſe he had nothing to fear, nei. the Inca's, if a Curaca were put to Death for any
ther his Age, nor Family ;) yet he will not be Miſdemeanour, his Son was not therefore denied
perhaps without Fear, when he knows that his to ſucceed in his Father's Place and Office, but
Friends and Relations may be ruin'd with him, and was fhew'd his Father's Crime and Puniſhment, that
upon his account. And again, it might ſeem to he might take Warning from thence how he of
.
be a further Security to cut off the Sons, to
But to be denied thoſe Honours
vent them from revenging their Father's Death. which a Man can lay no Claim to, is not pro-
For ſays Ariſtotle, It is but Foliy to kill the Father perly Puniſhment. But neither do the ocher Reas
when the Sons are ſpared (c). Beſides, it is not eafy Jons that are given, excuſe the Injuſtice of this
to be believ'd, that a Man will have the Boldneſs fort of Puniſhment. As for Inſtance, when the
to undertake an Enterpriſe of ſo much Danger, Greeks (as Dionyf. Halicarnaſſaus tells us) cut off
without communicating his Deſign to his Rela- any Tyrant, they always either killd or baniflo'd his
tions. For which Reaſon Arrian fays (1), Alexan- Children, upon an Opinion, that it was a Con
der put Parmenio to Death. And perhaps it may be tradi&tion to Nature, to ſuppoſe good Children could
true as Caffus in Tacitus ſaid (d), "That tho' there be born of bad Parents, or bad Children of good (b).
is a Mixture of Injuſtice in every exemplary Pi-, Neither can this fort of Punishment be juſtified by
niſhment, yet the Evil particular Men fuffer by any Arguments from Divine Tbreatnings, fince the
it, is fufficiently recompens'd by the Benefit it Diſpute relates only to human Juſtice (i). And
brings to the Publick. Thus in the Ninth Book therefore it was a wife and good Conftitution of the
of the Codes, t. 8. ad L. Juliam Majeft. the Sons of Egyptians, that no Woman with Child ſhould ſuffer
Traytors were to ſuffer the fame Puniſhment as Death,' till ſhe was deliver’d, which is alſo now
their Fathers, when it was to be feard they might obſerved in other Nations (k). And here is may
be influenced by their Father's Example (e). Thus be obſerv'd, That it is an Abuſe of the Legiſlative
the Children of the Maratocupeni, (Robbers in Sy- Power, when the Legiſlator takes Advantage of the
ria, who had that Name given them from the Crimes of particular Offenders, tº enađRigorous
place they inhabited,) were all cut off with their Laws againſt a whole Sex or Order ; though per-
Parents, for fear they ſhould grow to imitate them. haps afterwards, in Tra&t of time, the Puniſhment
Hobbes in his Leviath. c. 28. gives this Reaſon for it felf may grow into Credit, and the Death infli-
the Juſtice of this fort of Puniſhment, Becauſe đed by it be thought Honourable. At it happen'd
ſuch as are Guilty of Treaſon againſt the State, by that Law among the Indians; by which the
are profeſs’d Enemies to it, and therefore it is Wife was to be burnt with her deceas'd Husband,
lawful by the original Right of Nature to make The Occaſion of which Law was, That the Wo-
the Sword judgethmen when they were tired, or out of Love with
not, nor doth the Victor make Diſtinction be- their Husbands, made no Scruple to poiſon them
tween nocent and innocent, nor has other Ref- to make way for the Embraces of others (?). And
pect of Mercy, than as it conducech to the hence alſo it appears, that the Heir is not affe&-
Good of his own People. And beſides, in pub- ed by any Puniſhment inflicted upon the Body, or
lick Judgments and Trials in caſe of Treaſon, there Reputation of the Delinquent (m). But a pecuniary
' is this thing particular, That the Sovereign may mul&t will reach him, tho’in Equity it ought not
fit Judge in his own Cauſe; and ſometimes, to exceed the Value of the Inberitance which deſ.
laying aſide the Formalities and Intricacies of Pro- cends to him (n).

6
<
5
31
OTR de bas
1. 28.
(h) And it
(a) Vid. Herodot. I. 3. P. 235. Edit. H. Steph. de Intapherne. Fuftin 1. 10. c. 2. The Macedonians had a Law much of
the ſame Nature. Vid. Curtium, L. 6. c. 11 1. 8. c. 6.
3oocul 919
(b) Juftin. 1. 26. c. 1. 1. 21. C. 4. towards the End. A. Cæfellius in Val. Maximus, 1. 6. c. 2. ſpeaks to the ſame ſenſe,
(c) Rbet. 1. 2. c. 21. (i) B. 3. (d) Ann. XIV. c. 44. (e) Vid. Ant. Matth. de Crim. 1. 48. t. 2. f. 10. Am. Marcell
.
( ) Add. Grot. Comment. upon Joſhua I. 18. (g) Garcilaſ de la Vega Comm. Reg. 1. 2. c. 13.
was very well
faid by Marcus in Vulcat. Gallicanus in Avidius
Caffius, c. 12. And therefore ye ought to pardon Caffius's
Children, his Son-in-law and Wife. But did I lay
pardon? ſince they are Guilty of no Crime. (i) God, being the Sove-
reign Arbitrator, and abſolute Maſter of Men's Lives; may, when he pleaſes, take away the Life of whomſoever he
thinks fit in his Wifdom ; and in the Cafe now in Diſpute, he deſtroys the Children, to puniſh the Fathers, by the a
Ai&ting ſight of beholding their Execution. But beſides, the Children themſelves, being guilty before God, on account
of their own Sins ; he does 'em no wrong in taking away their lives, which he only ſpar'd, purely as the Effe& of his
own Clemency: Grot. l. 2. c. 21. f. 14. (k Diod. Sicul. L. 1. c. 77. Ælian. V. Hift 2. 5.c.18. cum Schefferi Notis, L. 48.
t. 19. 1. D. de Penis. L. 1. t. 5. 1. 5. 17.1. 18. D. de ftatu hom. Plut. de fera Numin. Vindiar. p. 552. D. Add. Quintil. Declam.
271 What Severity of Puniſhment
on the other hand is uſed in Fapan, we are inform‘d by Bern
. Varenius Deſcr. Faponie, c:
18. Ferdin. Pinto Itin. c. 55. Varenius de Relig. Japon. c 11. p. 129. (2) Vid Cic. Iufc. Quaft. I. 5. c. 27. Strabo, Lid;
dr. Rogerius de Braminib. p. 1. C. 19, & 20.2 (m) L 48. t: 19 120 D.de Pænis. (* VidL47t1.11D de privatis Deliais.
af
С НА Р.
Chap. IV.
53
Of the Power of the Sovereign, &c.
tu
CHA P. IV.
of the Power of the Sovereign, in determining the Value of Subjects.

TH
may
THOUGH there may be dif- ſuffer himſelf to be treated like a ſociable Creature.
Efteem defin'd
cover'd certain Foundations for But when a Man plainly ſhows himſelf unfit for
and divided.
the Preference of one Man to ano- Society, by diſregarding and confounding the Law
ther, even in a Liberty of Nature, out of Civil Go- of Nature, and the good Offices he owes to other
vernment ; yet ſince thoſe Foundations cannot give Men upon the Force of it; he may deſervedly
any Man a Right, unleſs.enforced by Compact, or be look'd upon to be a Man of no Worth or Values
the Definitions of the Civil Power, I think this a · III. Now this ſort of Eſteem may
proper place to explain the Nature of thoſe Diſtin- be conſider'd three ways. Firſt, as Which
&tions, which are made between Men, according Intire. Secondly, as Impaired. Thirdly, be either En.
to the Eſteem they are differently rated by. Now as utterly Lojt. It continues intire, tire.
Efteem is the Value which is ſet upon Perſons in till a Man by ſome A&t of deliberate
Common Life, according to which they may be wilful Malice, out of wicked Deſign, violates
equall'd, or compar'd with others, and be rated ej. the Law of Nature to the Prejudice of another
ther big ber or lower than thoſe they are compared Perſon. For the Frailties of human Nature ex.
with. For there is a near Affinity between the cuſę Sins of Infirmity, and a Man does not by
two moſt noble Branches of moral Quantity, Eſteem, them forfeit the Reputation of being an honeſt
and Price. The firſt is conſider'd in Perlons, the Man, as long as he continues to have a firm Sin-
Second in Things; becauſe as the one is the Rate of cerity of Mind, and endeavours to do nothing but
Persons in Common Life, ſo the other is of Things. what is juſt and vertuous. And every Man is ſup.
And as the chief Reaſon why a Price was ſet up- poſed to delerve this Eſteem till his own Evil Adi-
on things was, That when they were to be ex ons deprive him of it. And therefore it may be
changed or removed from one Perſon to another, ſaid, That all Men naturally have an equal ſhare
they might be the better compared with one ano of this species of Eſteem, and before they have
ther : ſo the End intended by Eſteem is, That we been Guilty of any criminal Action, muſt be ſup-
may be able to form a Compariſon between Men, posºd to be equally good and vertuous (a). And this
by ſetting as it were a Value upon them; and in is the Ground for that common Saying, (b) Every
conſequence eſtabliſh a becoming Order and Di. Man ſhould be fupposd a good Man, till the contrary
Jiance between them, whenever they ſhould hap. is proved. And this will hold True, notwith-
pen to be united ; it evidently appearing that no ſtanding thoſe ill Diſpoſitions Hobbes chargeth up-
thing was more abſolutely inconſiſtent with the on human Nature (c). If he be in the Right,
Convenience of Life, than an univerſal Equality. indeed every Man muſt be ſuppoſed an ill Man,
Now Efteem may be divided into ſimple and inten- till the contrary be proved, or rather till he is de
five. I fall conſider both parts of the Divifion, prived of all Power to do Hurt. But it muſt be
with the different Relations they may bear to fuch faid, that the Principle he at firſt lays down, That
Perſons as live in a Liberty of Nature (1), and ſuch all Men have Power and Will to burt or deſtroy one
as are Members of the fame Commonwealtb. non another, is far from being univerſally True, as I
II. Simple Esteem, with regard to have prov'd already (3). But yet becauſe Men
Simple Efteem ſuch as live in a Liberty of Nature, may wiſh and endeavour one another's Hurt and
ſeems chiefly to conſiſt in this ; When Ruin, therefore it may be ſaid that every Man may
a Man's Behaviour and Character naturally be look'd upon to be a good Man; but
prove him to be one that acts upon Principles of that it is not impoſſible he may happen to be
Conſcience, one ready to comply with the Laws of otherwiſe, and that Men may be kind and friend-
Human Society, and prepared, as far as he has Pow. ly to one another, but that it is not ſafe abſolute-
er, to obſerve the Law of Nature towards other ly to rely upon, or truſt them.
Men (2). For as we ſay of a thing which is of IV. The ſame Species of Eſteem is
Ufe in Common Life, that it is of Value; and, leffend or impair'd by criminal mali- Or, Impair’d.
on the contrary, fay of a thing there is no Uſe of, cious Aktions, eſpecially by thoſe of
that it is worth nothing; ſo it may be ſaid, that more than ordinary Guilt
, and which were in-
That Perſon is a Man of ſome Valuc, that will tended contrary to the Law of Nature, unjuſtly
Natural:
310
(1) Such are Sovereigns, and Citizens of different States, with reſpe&t to one another. (2) This femple Efteem anſwers
to a perfe& Obligation in another, by Virtue of which, every Man is indiſpenſably bound to look upon all thoſe to be
Perſons of Honour and Honeſty, who have done nothing to render 'em unworthy of that good Opinion ; and not ftair
their Reputation in the leaft. Whereas, in the State of Nature, the Foundations of Efteem of Diflinction produce by
themſelves but a very imperfe& Obligation, as the Author ſhews a little further. We may alſo fee, upon the Matter in De-
bate, a Differtation, written by Mr. Thomaſius, entituled, De Exiftimatione, Fama, & infamia, printed in 1709. in which,
he endeavours to fet our Author right in ſome certain Particulars. Mr. Barbeyrac's ift. Note upon this Se&tion. (a) Plin.
5. Ep. 3 The Inequality of the Orders among Men ſhould make no Difference in the Exa&tneſs of their Behaviour.
San&itas morum non diftat ordinibus. (b) See Mr. Bayle's Nouvelles Lettres, occaſion’d by F. Maimbourg's Critique de
L'Hiftorie du Calviniſme. Tom: 11. p. 435. and Mr. Thomafius's Diſſertation de Præfumptione Bonitatis, printed at Hull,
1700. (c) De Cive, c. 1. (3) B. 2. c. 2. 1. 7, 8.
L
is
54
-3 Of the Power of the Sovereign, Book VIII
Hiſtory, tells Calliopius, That he ſhould diſtribute his Charity, not among thole that made a Trade of begging, only for
whom Diodo. Com
to diſquier other Men; The Effect of which fo attended with Injury to other Men, I do not
A&tions is, that it will not be thought Safe to give ſee why the Perſons that profeſs the Practice of
Credit for the future to ſuch a Deceiver, or to en- it, ſhould be treated as publick Enemies to all the
gage in Buſineſs or important Affairs with him, World. But where the Profeſſion of a Vice is ac-
without Solid Caution. But though a Man's Efteem companied with Harm and Injury to other Men;
may be impaired, and his Reputation ſmk upon ſuch and where the Perſons profelfing it, treat no Man
ill Adions, yet it is not abſolutely Lojt. For though who is not of their own Society with better U-
I may juftly ſuſpect, that a Man will uſe me in fage than they would Beaſts, declaring Hoſtility
,
the ſame manner he hath uſed others'; yet. I not againſt any certain Enemies, but againft
cannot be always ſo abſolutely certain of this, Mankind in general, 'tis manifeft they utterly for-
but that ſomecimes it may fall out contrary to my feit all that Ěſteem Men uſually meaſure one ano.
Expectations. For perhaps there might have ther by. And ſuch are, All Pirates (2), Highway
been ſome Particular Reaſons which moved him Men, Robbers, Ruffians, Pick-pockets, and the like.
to injure other Men, which he may not have a. And the Difference will not be material, nor
gainſt me; and a Man may ſometimes be under will their Characters be much better'd, Whether
the Power of violent Paffions, which at other ſuch Perſons act always up to the Height of Wic-
times he is free from. However, the Blot which kedneſs and Villany or not? Whether a Robber
a bad Adion leaves upon a Man's Reputation, may will ſatisfy himſelf barely with committing Spoil
be taken off by a voluntary Tender of Réparation and Robbery, and forbear Bloodſhed, and be conten-
for Damages, or of ſome Équivalent ; and by gi- ted only to have taken away my Money or my
ving Evidences of Sorrow and Repentance. For Goods. For as 'tis no Juſtice, ſo it can deſerve
all theſe voluntary, unforced Motions, may be no Commendation, not to be an accompliſh'd fi-
Conviction enough, that his Intentions are really niſh'd Villain. And without diſpute, whole Bodies
alter’d, and that he ſincerely repents. istiot cada and Clans of Pirates and Robbers ought to be rank'd
mails over V. But a State and Way of Life under this Denomination, as long as they continue
Or utterly loft., which direály tends to the Harm their Courſe of Life, notwithſtanding they may
CITIEM of other Men without Diſtinction, ſeem to have ſome Reſemblance of Juſtice among
and to make Advantages by manifeſt Injuſtice, ut- them (f). Neither will whole States and Common
terly deſtroys all this Effeem. Now there aren in wealths deſerve better Rank, when they are not
moft Common-wealths People that, by a particular content to acquieſce in the Enjoyment of their
away and manner of Life, own and profeſs the Exer- own Rights at home (g), but invade and
ravage
ciſe of certain Vices; ſuch as are, All Whores, the reſt of the World, without Regard to Faith
- Bawds, Strollers, and ſturdy Beggars; all thoſe Plato or Compacts to the contrary. But where States or
baniſheth his Conmon-wealth (a). And they Common wealths are ſo Partial, as to be Juft in the
are (as Iſocrates (1) faith) a Diſgrace to That they Obſervation of Compa&ts with fome particular Al.
live in (6),sut blod iw pri bnA
lies, but to all other their Neighbours, or at leaſt
But now, How little Share of Eſteem all theſe to certain Nations, fhow little Regard in the Ob-
are to have, muſt be determined by the Govern- ſervation of the Law of Nature, and ſcruple not,
ment that tolerates
, Ithem (c), when the Publick without juft Provocation, to break it; Their
thinks fit to give them indulgence (d); they can- Credit, it is evident, muft very much ink, but
not certainly at leaſt be denied the common it would be too ſevere to deny them every De-
Rights of Men. So the Pimp, expoftulates in Te gree of Eſteem. Now, the Effects that attend
rence
, Though I am a: Pimp, the common Bane of Youth, Men under ſuch a Loſs of Eſteem, are generally
& perjur'd Wretch, and publick Nuſance, yet I never ſuch as theſe; That unleſs they leave off their
did you any Wrong (e). 'Tis certain indeed, Chat unjuft and bloody way of Life, it will be neceſſary
a Way of Life maintain’d by the Profeflion of any for other Men to ſhow them no more Mercy,
ſort of Vice, muft very much tend to ruin all Na- than they do to Beaſts of Prey. That when they
tural Eſteem: But unleſs the particular Vice be al are apprehended, they will be uſed with more
Syringa yor bit oldilomi 104 a ti esda to zu anavi nogus 288 suda onu da Cidl vong
(a) Plato de LL. l. 11.
(1) In Areopagitico.vi.(6) Atticus Biſhop of Conftantinople, in Socrates's Ecclefiaft
,
{heir Bellies, and ſpent their whole Life-time in nothing elſe'; but among ſuch whoſe Modefty would
not luffer them to
ask it."Socrat. l. 7. c. 25. (c) Thus neither were Beggars tolerated in Peru, under the Government of the
Inca. But they that were diſabled, ſo that they could not maintain themſelves, were kept by the Publick. Vid. Garci.
laf. de la Veg. Com, Roy. 1. 5.c 9. & 1. 5. c. 11. (d) But formerly in Egypt, there were profeſſed Thieves allow'd of,
Such as would be imploy'd in the Trade of Thieving, enter'd
their Names with the Grand Maſter of the Order, and were obliged by "Article, to bring all the things they ſtole to
• him, ; and they that loft any thing were to apply themſelves by Letter to him, in which they were to lignify the
Par-
* ticulars they loft, together with the time and place, when and where they were loft, and ſo every thing being calily
diſcovered, the Perſon robb’d was to pay a fourth part of the Value of the things, and take them again. For lince it
* would have been impoſſible to prevent all manner of Thieving, the Legiflator found out this Expedient, that what was
loft might be recovered, by paying only a ſmall Price for Redemption But, no Queſtion, it would have been a better
Method, and leſs inconvenient for the subjects, to have made ſevere Laves againſt ſuch fort of People, and to have taken
$ care they ſhould be ftri&ly put in Execution awo odto A od bitrilocotinami
(e) Ter. Adelph. A&. 2. Sc. 1. v. 34. 35. Vid. Conftitut. Sicul. L. 1. t. 20 (2) See above in B. 2. c. 2. f. 10:10
f) Thus in Heliodoras's Ethiopicks, L. 5. c. 15. There is mention'd a Law that was among the Pirates, by which he
that firft boarded the Enemies Ship, and expos'd himſelf to the greateft Danger in the Fight, was to have his' Choice of
the Booty. And in the fame place we are told, That the Robbers obſerve come fort of Conſcience among one another, and
thew Kindneſs and Humanity to thoſe they are acquainted with.
(s) Our Author here ſeems to point at the People of Barbary, who never pillage the Mahometans, nor commit. Pyra..
sies upon any but the Chriftians. See the Parrhafiana Tom. I. pag. 204. iht. Edit.
Severity


Chap. VI.
55
in determinining the Value of subje&s, &c.
Severity than any other ſort of Enemies, though o not been declar'd a Corrupt Member, according to
thers might have threaten'd equal Danger: That the Laws and Cuſtoms of the State, but is ſuppoſed
They will not be look'd upon to deſerve the com to be a Good Subject, and is look'd upon and Va-
mon Offices of Humanity ; And that all merciful U. lued for ſuch. And this Eſteem may be loft under
fage will be denied them, leaft it may ſeem to Civil Government, either Firſt, When it is denied
encourage them in their Villanies. Moreover, to Certain States or Conditions ; or, Secondly, When
as there can be no Streſs laid upon their Faith, taken away upon a Criminal Account. The Firſt
Thould they offer it, ſince the Habit of Outrage may happen Two ways ; Either iſt, when the
they live in, muſt have cancell'd all Good Opinion State hath Naturally in it Self nothing bad or wic-
of them; ſo I doubt noe it may very well be ked belonging to it. Or 2dly, when it really de-
maintain’d, That Neither are they capable of re. ferves, or at leaſt is thought to deferve, ſuch an
ceiving Obligations of Faith from other Men, as Imputation. Thus a State of Slavery, tho it im-
long as they continue in their ill Courſe of Life, plies in its own Nature nothing Bad or Criminal
(which muſt always be preſuppos’d): For I either to belong to it, Yet in many Commonwealths de-
make a Voluntary Agreement with ſuch a Perſon, prives Men of all ſimple Eſteem ; and Slaves are
or he compels me by Unjuft Force. I cannot do neither look'd upon to be Civil Perſons, Rated or
the Firſt, without deriving upon my ſelf ſome Number'd in Civil Alellments, or Conſidered, or
Share of his Guilt, by creating ſuch a Man as a Valued as Subjects. It is well known how deſpica-
Friend that profeſſes himſelf a common Enemy to all ble their Condition was among the Romans" (b);
the World, except his own Accomplices. Noc And the Eſteem the Jews allow'd their Gentile
to ſay further, That it may be often an Injury to Slaves was not greater (c). So alſo in ſome Com-
other Men to keep Faith with Robbers, For In- mon-wealths, 'Tis a Diſhonour to be baſe Born, tho'
fance, in the Caſe of leaving fome Depoſitum in the Blemiſh of the Birth is certainly only the Pa-
truſt with Them (a). But if a Robber ſhould rents Fault (d). And thus in India, there is a
have done me ſome Good Office, which it was no a certain Race of Men calld Peneaës, which are
Diſcredit to me to receive from ſuch Hands, ic look'd upon to be infamous (e). A State under the
can be but reaſonable that I ſhould give him the Latter Confideration takes away or leffens Civil Eft-
Reward I promis'd (1): But then he is not the eem, Either becauſe the Perfons that live under it,
Perſon he was ſuppos'd to be, a commox Enemy to are employ'd in things which cannot be performid
all Mankind beſides his own Companions. On without the Guilt of ſome Vice or Sin; Or elſe
the other Hand, if he Compels me by Unjuft Force are obliged by it to undertake ſuch Mean Offices
to engage my Faith to Him, it appears from what and Duties, which none but Perſons of baſe and
has been laid before (2), that Compacts extorted abje& Spirits would ſtoop to be employ'd in.
by Fear are Invalid. But after all, Such Perfons What Value is to be ſet upon thofe of the firſt Sort
may recover their Loft Eſteem, by giving over muſt be known from the Laws, or Cuſtoms and
Their infamous Courſe of Life, and by taking upon Manners of every common-wealth (f), Thoſe of
them ſome other Creditable Profeſſion. And ſo the ſecond Sort are common Hangmen and Executio-
may Whole (3)Bodies of Thieves and Robbers by ſuch ners,, Bailiffs, Goldfinders, and the like; Perſons
a Change, as well as particular Men. And from thac in moſt common-wealths are denied the Society
that time they are to be dealt with as Men of Re of all People of Faſhion or Reputation. And in
pute and Honeſty
. But they.ought firſt of all, ei- fome States the Laws themſelves have expre-
ther to make Reparation, or obtain their Pardons fly ſo determined. In Rome, Cicero fays (8),
for the Injuries they have done.
'The Executioner was forbid by the Laws
VÍ. Simple Eſteem, with regard to of the Cenſors, not only to be ſeen in the
Simple Eftçem ſuch as live under Civil Government, is, 'Forum, but to ſee the Light, or breath the Air
Civil leſen'd,
That ſort of Eſteem by which a Man of that Place, or to have any Habitation in the
or loft, either
from a certain
is look'd upon to be at the loweſt, City; As if his Preſence would ſtrike Infection
A Common, but A Sound, Member of and Pollution upon the publick Aſſemblies. In
the State. Or when a Man hath other States, It is thought ſcandalous to mix in
State.
(a) Vid. L. 16. t 3 1. 31. I. 1. D. Depofiti, &c. (1) See above in B. 3 c. 6. f. 11. towards the End.
(2) See the ſame Book and Chapt. f. 10. Esc.
(3) See Grotius Lib. iii. Cap. iii. Seet. 3. and Specimen Juriſprudentia Hiftorie by Mr. Buddeus, among his Seletta 7 N. &
Gent. Se&. 2, 3, 4, 5. where this Principle is applied to the old Romans, whoſe Common-wealth was founded by a
Troop of Robbers, and other Rogues of all ſorts. (6) Vid. L. 18. t. 5. 1. 6. D. ad L. Juliam de Adulter.
(c) Joſeph. Archäol. Jud. l. 4. c. 8. Neither are Slaves permitted to be Witnefſes, becauſe of the Bafeneſs of their.
Minds ; ſince it may, juſtly be believed, that their Teſtimonies are corrupted, either by the hopes of Gain, or elſe out of
Fear. Add Selden. de 7.'n. Sy G. Sec. Heb. I. 5. c. 3. Lex Wiſigoth. I. 2. tit. 4.c 9
(d) Vid. L. 6. t. 57. 1. 5. C. ad S. Ctum Orficianum & Stobaum, Serm. 75., Unleſs perhaps we allow there is ſomething in
that which is ſaid in Procopius Hift. Arcan. That the Infamy of a Woman's Vices not only ſpreads it ſelf to her Huse
band, but defcends in a greater degree to the Children, and they are condemn'd to bear a perpetual Mark of Diſgrace, as
if Nature had ftain'd them with the Diſhonours of their Mother.
(e) Vid. Abr. Rogerium de Bramin, Part 1. c. 2.
f) To this purpoſe is that which is related by Valerius Maximus, I. 7. c. 7. of Q. Metellus the Prætor Urbanus, whe
would not allow tecilius the Bawd, the Poffefſion of Inventius's Goods, tho' they were left to him by Will; becauſe he
would neither ſeem to approve Inventius's Action, in throwing away, his Fortune into ſuch a Sink of Lewdneſs, nor allow
Vecilius the Rights of a true Citizen, ſince he had renounced every honourable way of Life. And thus in the fame Author,
when Genucius, a Prieſt of Cybele, had obtain'd a Decree of Cn. Oreftes, the Prætor, that Navianus's Goods ſhould be re-
ktor'd to him, the Conful, Amilius Lepidus, revers'd the Prætor's Decree, that the Court of Juſtice might not, under the
Pretence of his Suing for his Rights, be polluted by the obſcene Preſence and contaminated Voice of Genucius. And to
this belongs alſo that, in L. 11. t. 5.1. 1. D. de Aleator. Where the Prætor faith, He would give no Judgment, if any
Perfon ſhould Beat or do any Damage to him, at whoſe Houſe he ſhould hear they play'd ať Dice, or if any Stolc or
Cheated him of any thing, 'at that time. (g) Pro Rabirio, c. 5.
Company
56
Book VIII.
Of the Power of the Sovereign,
minal Ac-
count,
ſeem- us, that the
Company with ſuch Perſons, only upon the Utopians of the ſame Opinion (f). Selden tells
ing natural to ſuppoſe, that Perſons employ'd in Men either to be Witneſſes, or to have
any Hand
cruel and Naviſh Offices
, would have generally Hu- in Judicial Matters; becauſe of the ill Repute they
mours and Diſpoſitions ſuitable to their Employ; bore among them; And thoſe were Gameſters
,
ments ; And that none but Men of Mean and Ufurers, Perſons that made Gain by the Produce of the
Servile Tempers could voluntarily ſubmit to them. Seventh Year, or Year of Remiſſion; and ſuch as taught
Among the Romans, the Souldiers indeed were Pidgeons to fly. And he adds, They gave this
often made uſe of in publick Executions in the City Reaſon for it; becauſe none of theſe forts of
as well as in the Camp, without Infamy, or Dimi. People apply'd themſelves to any way of Life
nution of their Eſteem (a). For there is much which tended to promote publick Good, or bring
difference between doing an Execution at the par- any Advantage or Convenience to human Life (g).
ticular Command of a Superiour, and between VII. Thus the loſs of ſimple civil
Or upon a Crio
doing it by Profefion. So alſo among the Jews, Eſteem may be owing purely to a
Criminals were ſtoned by all the People. And State of Life. But a Man may alſo
Montaigne tells us (b), that Witoldus, Duke of entirely be depriv'd of it upon a cri-
Lithuania, introduced a Cuſtom in that Country, minal Account ; when for ſome particular fort of
that Condemnd Criminals ſhould put themſelves to Crime he hath committed, (for every Offence will
Deach with their own Hands, It appearing un not deprive a Man of civil Eftecm) (b) the Laws
seaſonable to Him, that Innocent Perſons ſhould of the Commonwealth fix a Mark of Infamy upon
be employ’d to commit Murther; Tho' this was him: Which is uſually done, either by taking
but a filly Reaſon, For the Executioner cannot be away his natural Life at the ſame time, and by
ſaid to commit Murther by inflicting the Puniſh- condemning his Memory, or by ejecting him out of
ment the Law awards. But others give this bet- the Commonwealth with Shame and Diſgrace; or
ter Reaſon for the Law, that none might be forced perhaps by allowing him to continue in the Coma
upon the Office of an Executioner, to cauſe and to monwealth, but not as a found, but diſorder’d, in-
ſee the Agonies of the Criminals, to which the feeted Member ; or, in other words, by permitting
innate Tenderneſs and Compaſſion of briman Na- him to inhabit in the Dominions of the State,
ture muſt give every Man an Averfion.
and to enjoy the common Protection of the Laws,
The Roman Laws fet a Mark of Infamy upon all but by excluding him out of all Publick Offices and
Perſons that acted upon the Stage for Hire (c), or Employments, and all Honourable Societies, by mak-
fuffer'd themſelves to be Hired to fight with Beaſt's ing him uncapable to make any Will, and by dil.
(d). But the Reaſon why Infamy was annexed to abling him to do any Legal Axt which ſuppoſes
ſuch Adions, was not that any Immorality was untainted Reputation. But nou' what are the
ſuppoſed in them. (For ſuch Actions inay, 'tis Crimes which contract all this Infamy muſt be
pollible, be Innocent enough;) But the Gain known from the Laws of every particular Com-
made by them was That which made them look monwealth (i). And here it may be obferv'd,
diſhonourable and baſe to the natural Gravity of That according to the Civilians, the Infamy which
the Romans. (For 'tis often the Hire only which is contracted by any bad Action may be either the
makes the Service Mean and Baſe). By the fame Effect of an immediate (1) Impoſition of the
Laws, it was look'd upon to be Infamous, for a Law it ſelf; or of fome antecedent Examination
Man to permit his Daughter to marry while ſhe and Sentence of ſome Judge (2); or elſe of the
was a Widow, within the time of Mourning; Or Cenſure of Men of Character and Eſteem, Which is
to marry any Perſon in ſuch circumſtances him commonly call’d Infamy of the Fact (k). (1) Buc
ſelf; or to ſuffer any Perſon under his Charge to I am rather inclin'd to think, This Infamy of the
marry or to be married within that Time; becauſe Fa& is not fo much the immediate Effect of the
it ſeem to betray much Levity and Unſet Opinions of Men of Character, As a Puniſhment
tledneſs of Mind, to argue weak Inconftancy of which the Law alſo inflicts upon that View, that
Faith, and wild deſultory Luſt. Among the an- Good Men always condemn ſuch Aktions, and look
cient Inhabitants of the Canary Iſlands it was upon them to be baſe and wicked. For tho' it may
thought very great ignominy and Diſgrace to be be thought a Diſcredit, to fall under Cenſure of
Butcher (e): And Sir Thomas More makes his Perſons of approu'd Lives, and Reputation, yet un-



a

(a) Vid. Petr. Fabr. Semeſtr. 1. 2. c. 6. (6) Eſſays, 1. 3. c. I.
(c) Vid. L. 3. t. 2. 1. 1. D. de bis qui Infam. not. (d) Vid. L. 3. t. 1. 1. 1. f. 6. D. de Populando.
(e) Aloifius Cadamuftus Navigat. c. 8. (f) Utop. 1. 2. (8) Selden de J. N. & G. Sec. Heb. l. 4. C. 5.
(b) Vid. L. I. t. 54. 1. i C. de modo Mul&tarum. (Vid. L. 50. t. 13. 1. 5 1 1, 2, 3. D. de extraordin. Cognit. Tho
'
in this place I obſerve, that in ſome of the Examples, there is hardly any Diftinétion made between the ſimple and interſive Efteem.
And here we may obſerve a Law of the Egyptians, by which Souldiers that deſerted, or did not obey the Orders of their
Commanders, were not puniſh'd with Death, but only Infamy and Shame. And if they could by their Courage after-
wards wipe off the Ignominy, they were reſtor’d to their former Dignity. And thus the Legiſlator, by making ignomi.
ny a greater Puniſhment than Death, taught them tº think Infamy the greateſt Eyil, and at the ſame time ſeems to have
confidered, that ſuch as were puniſhed with Death, muft for ever be made incapable of doing any further Good in
common Life, but that ſuch as were only deprived of their Honour, would be always endeavouring to do ſomething
that might recover it, Diodor. Siculus. 1: 1. c. 18. (2) Vid. D. d.l.
(1) Vid. L 3. t. 1. 1 1. f, 8 De poftulando.
(k) Infamia Fasti.
Vid. L. 2. t. 12.1 13. C. ex quibus Cauf. infam irrog. Add. L 37 t. 15. 1. 2. D de obſeq. Parent. præftand. 1 20. &
D L. 3. t. 2. 1. 20. de bsi qui notant. infam. Vid. L 9.1., 1.25. C. ad L. Ful de Adult. And to this you may refe rthat
which Rochefort Deſcript'Antillar. Part. 2. c 8 relates of the Apalachite. They haye no other Puniſhment, faith, hey
for Thieves, beſides the Refe&tions that are made upon them in all Company upon that account ; and this is generally
taken ſo hard by them, that to avoid it, they will fly away into the moſt uninhabited Defarts.
f
1 2 madw
leſs
Chap. IV.
57
In determining the Value of Subjects.

leſs the Law joins with, and confirms that Cen- vindicate and affert his Rights and Liberty; and ir
lure, no Man can ſuffer ſo far in his Civil Eſteem ſeems natural in ſuch Cales, for every Man to be
by the Judgment only of private Men, as to be of the Opinion of Neoptolemus in the Poet (e).
excluded from any Rights and Advantages which
the Civil Laws allow to an unblemiſh'd Reputation. Τεθγαίνω μάλλον ή απτόλεμG- καλεοίμίω.
And therefore it is evident, That a Man doth not I'd ſooner die, than be a Coward thought.
immediately forfeit Eſteem, when he is accuſed
of, and charged with, any Crime of infamous There are certain Injuries, which if a Man
Nature and Quality. For as Julian rightlý an, chooſes generouſly rather to deſpiſe than to re-
ſwer'd Delphidius the Orator, (1) when he cry'd venge, he will not bring his Courage in que-
out, who would be guilty, if it were ſufficient to deny Ition. Nor can I ſee any thing in ſuch Con-
the Fact? Who would be Innocent, if it were
duct that can rob him of his Natural or Civil Eſteem.
enough only to accuſe (a)? But it is then a
And therefore, Hobbes ſays, “If a Man receive
Crime produceth Infamy when the Perſon is con-
• Words of Diſgrace, or ſome little Injuries
demn'd for it, or confeffeth it. And that he is
from another, for which there is no Puniſhment
alſo ſuppoſed to do, when he agrees with the
aſſigned by Law, and is afraid he ſhall fall
Proſecutor to let his Action drop: Becauſe all ſuch
into Contempt, and be obnoxious to the like
Agreement naturally ſuppoſes Confeſſion (b); except * Injuries from others, and to avoid this, pro-
perhaps it may be made appear, that he chooſes
tects himfelf by the Terrour of his private Re-
to come to Compoſition with the Proſecutor, venge; this is a Crime, and ſuch a Fear will not
not out of any Conſciouſneſs of Guilt, but for
excuſe it ; becauſe the Commonwealth would
other juſt Reaſons, as to eſcape the Vexation
have the publick Words, that is, the Laws, be
and Trouble of Tryal, the Severity or Partiality of more force with the Subjects, than the
of the Judge, or upon ſome particular Diſlike he
Words of any private Man, which they that
bears to his Perſon. To which our Author might made the Laws therefore aſſign'd no Puniſh-
have added, That not only the little ſhare of Ho
ment for, becauſe they thought it not worthy
neſty, and the Paſſions of the Judges, but alſo a Man that had the Uſe of Reaſon to take any
their Prejudices, and Careleſnefs, often loſe the
notice of them (f). And much leſs is it any
beft Cauſes (c). But tho' a Man's Reputation is Diſhonour for a Man, in a Commonwealth, where
ſuppos’d to be clear’d, when he is acquitted from the Laws exprelly forbid private Revenge, to prefer
the Crime which was charg'd upon him; yet to Obedience to the Laws rather than expoſe him-
make his Innocence appear the more unqueſtio- ſelf at once to the Danger of the Fight, and the
nable, and to puniſh Calumny and falſe Accuſa- Severity of Civil Juſtice, upon a vain pretence of
tion : 'tis uſual in many States and Common Honour' (g). Neither is it always I preſume a ſign
wealths to force the Accuſers to beg Pardon, con of Cowardice, for a Man to refuſe to put his Life
fels themſelves guilty of Falfhood,o make their and Fortunes to the Venture upon every little
Submiſſions, and pay Reſpea and Honour to the inſignificant Quarrel, when there may be often
Party accuſed, and the like (d).
leſs dangerous, and more innocent and lawful
VIII. From what has been ſaid, Occaſions offer'd to ſhow his Courage (b). Thus
No diſhonour
it may
to refuſe to en-
alſo be inferr’d, That it is no when Pyrrhus in Plutarch call d Antigonus Villain,
real Infamy or Diſhonour, when a Man and challeng’d him to meet him upon the Plain,
Duel; when hath ſuffer'd an Abuſe either by and fight him for the Kingdom, Antigonus anſwer'd,
the Laws for- Words or Actions, not to Revenge ele euri segtugíay 8x Tiwy panov xeição civai,
it with his own Sword; as the Cu that his way of making War conſiſted as much in know-
ftom is in ſome Countries, eſpecially among Per- ing proper Times and Opportunities, as in Strength;
Sons of Rank, and Men of Military Profeſſion; but and that if Pyrthus were weary of his Life, be might
to puniſh it by the Magiſtrate, or paſs it by in eaſily find ways enough to go out of it; and ſo Auguſtus
Silence, ſuppoſing ſuch Patience doth not imply anſwer'd Antony's Challenge,
Confeſſion of any bad or baſe Aktion. It ſeems to That he might eaſily find a way to die (i). And in ſuch
argue indeed much Cowardice and Littlenets of Caſes, no Prudent, Conſiderate Man, hath any
Spirit, tamely to ſubmit to every Man's Inſults reaſon to be diſturb’d at the Opinions or Cenſures
and Injuries, without endeavouring bravely to of the Vulgar ; ſince the Eſteem of every Subject




gage in a


bid it.
in the ſame Author,
(1) V. Ammian. Marcellin, L. 18. (a) And to this we apply that of Plautus in Trinum, A&t. 1. Sc. -2. v. 44, 45. Not
to commit a Crime is in a Man's own Breaſt, the Suſpicion whether he does or not, is in anothers.
(6) Vid. L. 3. t. 2. 1. 5 D. de his qui infam, notant Quoniam intelligitur confiteri crimen, qui paciſcitur.
(C) Thus in Iſocrates adv. Callimach. in the Beginning. Some perſwaded the Defendent tó compound the Matter wit hthe
Plaintiff, Becauſe in Tryals there are ſeveral things which fall out otherwiſe, than are expected, and in palling the Vote,
there is more of Chance than Equity. And therefore it is a much better and ſafer way to be at ſome ſmall Expence, to
get clear of a Crime, than to refuſe to pay any Money, and run ſo great a Hazard,
(d) It is evident from Joſephus de Bello Fudaico, 1. 4.6; 39 That the Ignoming of having been in Chains, was ſup-
poſed to be taken away, if the Chains were not unlock’d, but fil'd aſunder ; and this, he faith, was the way, 'when any
one had been put in Chains innocently, among
the Romans.
(e) Q. Calaber, 1.9. (f) Leviath. c. 27. Vid. Leg. Sulicam. tit. 32.
(8) - Injuftum rigido jus dicitur enſe.
Ovid. Trift. L. 5. El. 7.
'Tis cruel Juſtice which the Sword inflicts.
(1) Vid. Caf. Com. de Bell. Gallic. 1. 5. c. 44. Vid. Busbeq. Epift. 3. de Velibego.
(i) Plut, in Pyrrh. p.404. A. & in Anton. p. 950. E. Alexander de Rhodes Itiner. 1. 2. c. 6. relates of the Souldiers in
the Kingdom of Tonquin, That tho they are very, valiant againſt an Enemy, and ſet but little Value open their Lives
yet among one another they never draw their Swords, but are as loving as Brothers: And that when they once faw a
Frenchman and a Portugueſe fight a Duel, they were amazed at it, and faid they never ſaw ſuch Barbarity before,

2
58
Book VII:
Of the Power of the Sovereign,
is to itand and fall by the Judgment of his Sove- Beſides, 'tis next to a Contradiction, that a Map
reign, and the Luws of the State; ſince 'ris fuffi- ſhould be declared Infamous at the Pleaſure only of
cient Proof of Bravery and Reſolution to obey the the Government, that is, That a Man ſhould be
Laws, in Defiance to all the little Cavil and Ca- charg'd with a Suſpicion of being guilty of fome
lumny of the vain and idle part of Mankind. And Diſhonourable
, or Criminal Aaion, not becauſe he
hence it will be no Difficulty to anſwer what is really guilty, but becauſe 'tis the Pleaſure of
Hobbes fays in his Leviathan, c. 20.' That it is the Government by ſuch means to uſe an innocent
hardly poſſible, but private Duels ſhould be Perſon as if he were criminal. And I think it is
thought honourable, becauſe they are the Effe&s alſo beyond Diſpute, that there lies no Obligati-
* of Courage, which is Power'. For why ſhould on upon any Subje&, to ſacrifice his own ſimple
it not be rather look'd upon to be a sign of Great- Eſteem and Character, to the Civil Government, or
neſs and Bravery of Spirit, to know how to govern to contract any real Infamy, for the Advantage of
the Heats and Paflions of our Minds, and to give the Publick. For neither hath the Government
them no other Liberty but what the Laws allow? Power to command any baſe, or ill Action, which
Tho' I think the ſame Author ſays very well after- will be the Cauſe of real Infamy ; neither ought a
wards, c. 30.
* That all Laws that forbid Duels, Subject to obey, if it ſhould.
• ſhould ordain Honour for them that refuſe, and X. Whether indeed, it may not
• Ignominy for them that make the Challenge ; be required of a Subject of Good Nor to be fan
and thus thoſe that refus’d to fight would have an Chara&ter, to take upon himſelf crific'd for it.
honourable Excufe. The Remedy the Sicilian the Infamy of his Prince, or his
Conſtitutions proposºd againſt this Cuſtom was, by Country; or as it were, make himſelf Criminal for
inflicting ſevere Penalties upon them that offer'd their Faults, is not ſo clear. But here (tho I
any affront (a).
think it hardly poſſible for a Man to counterfeit
An Account, by the way, of the Antiquity of himſelf a Criminal, without being in ſome mea-
Duels, and whence they at firſt began, we may ſure, really ſo) I conceive, there ought to be a
ſee in Diodorus Siculus (b). The Gauls (faith Diſtinction made between a Prince's Domeſtick or
• he) in the height of their Entertainments upon private Faults, and thoſe that are publick, or which
the leaft Quarrel that aroſe, would break off have an Influence upon the whole Commonwealth.
their Mirth, take their Swords, and without Now that a Man ſhould take the firſt fort upon
expreſſing any value for their Lives, go out himſelf, and make himſelf Criminal for his Prince,
and fight. And this they did upon a Belief, can neither be Lawfully, and Juſtly deſired by the
" that they ſhould enjoy another Life, in a new one, nor ſafely be complied with by the other :
Body; and therefore eaſily deſpiſe the Care of Whether with deſign to put ſome plauſible Colour
this; as Lucan expreſſeth it :
upon the A&tion of the Prince, or whether to take
the Blemiſh that would otherwiſe be fix'd upon his
Inde ruendi
natural Eſteem, upon himſelf. For no body can
In ferrum mens prona viris, animæque capaces
take away the Civil Esteem of the Sovereign, be-
Mortis, & ignavum eft redituræ parcere vitæ (c).
cauſe he is placed above the reach of any Civil
Hence they ſo bravely dare
Judicature. Thus it cannot be thought that any
Defie the Sword, and all the dread of War, Good Man can approve the Action of Anicetus,
Scarce ſatisfied with death; and think it mean, with Oktavia, only that Nero might have Pretence
when he declared, he had been guilty of Adultery
To ſpare a Life that muſt return again (d).
to diffolve his Marriage with her (e). But yet 'cis
IX. But Further, it is alſo evident, not uncommon, that when publick Miniſters by
Simple Efteem that the Government cannot deprive ſecret order from their Maſters, enter into Treaties
not dependent
any Man of his natural, ſimple Eſteem with foreign States, or oppoſe and form Deſigns
Gure of the Go arbitrarily
, at pleaſure, but only up againſt them, which if known to be the Reſult
on ſome antecedent Crime he hath of Publick Counſel or Inſtructions, would bring
been guilty of, which is attended Danger or Inconvenience upon the State,
with Infamy, either by its own intrinſick Turpitude, avoid the ill Conſequences which mighe follow,
or by expreſs Sanction of Law. For fince ſuch a by laying the fault upon the Miniſters,
as if they
Power can no way be ſuppoſed to promote Civil had acted only by their own private Judgment
,
Sociery, or the intereſt of the Commonwealth, ic And in ſuch a Caſe, I think no good Subject would
is not to be ſuppoſed it was ever conferr'd upon refuſe to divert the Évil from the Commonwealth,
the Sovereign Governours in it. But as the Civil by favouring the Excuſe, and yielding that what
Sovereign may unjuſtly eje&t a Subject out of the he did, was beyond his Inſtructions and without
Commonwealth, ſo he may unjuſtly alfo take Command ; provided his Puniſhment be no greater
away his Civil Effeem, ſo far at leaſt, as to deprive than fome ſmall pretended Diſgrace (f). For
him of all chofe Rights and Advantages which at to ſuffer Death upon that Account, or to be given
tend an untainted Eſteem in the Cominon-wealth. into the Hands of the Injured Party, would be a
But his intrinſical natural Effeem can no more be Severity not to be born or excufed. But the pre-
taken away from a Man,than his Vertue and Integrity. tended Puniſhment, whatever it be, may be eaſily


the Plea-
.
vernment.
to

(a) Conſt. Sicul. I. 3. tit. 33. f. 4. (6) L. 5. c. 28. (c) Lucan, 1. 1. v. 460, &C.
(d) Vid. Appian. Celtic. Where he gives the fame Keaſon for the Boldneſs and Bravery of the Germans,
le) Vid. Tacit. Ann. XIV. 62. Euripides. Helena, v. 106, 107 Nor for my Brother can I bear that Stain. In which
Cafe however, the Matter in Diſpute is not about Subje&ts with refpe&t to their Prince. Add the Story of Anton. Perez
in Thuanus, 1. 104. (f) Add. Marſelaer. Legat. L' 1. c. 33. p. p. m. 200,
either

மா
Chap. VI.
in determining the Value of Subjects.
59
either remitted or compenſated otherwiſe. For • ſtance of others (f ). On the other hand, the
'tis unqueſtionable, that he that hath Power to further Ignominy Spreads, the lighter it ſeems, and
,
But notwithſtanding, if Infamy be in- Eſteem alſo may be conſider’d, either with regard
flided for any impious or flagitious Adion, Reftitu- to ſuch Perſons as live in a Liberty of Nature; or
tion of a Man's Faine will only produce the exter- ſuch as are Members of the same Commonwealth. But
nal civil Effects of an unblemiſh'd Reputation ; but I ſhall now proceed only to examine the Founda-
will not in the leaſt wipe out the Blot which lies tions of this Intenſeneſs or Eminence, as they fall
upon his natural Eſteem.
under theſe two Conſiderations. Firſt, As they
XI. Intenſive Eſteem, is that produce barely an Aptitude or Diſpoſition in Men
Intenſive Efeem. Species of Reputation by which to receive Honours from others; and Secondly,
Perſons otherwiſe equal in the as they give them a proper Right to demand Honour
ſimple Repute, are prefer'd to one another, accord as their Due.
ing as one poſſeſſes a larger ſhare than another of XII. The Foundations of intenſive
thoſe Things, whatever they be, which are apt to Eſteem in general are all thoſe things
The Foundati-
raiſe in other Men Reverence and Refpe&t. Now which diſcover, or are ſuppoſed
ons of it.
Honour, which anſwers the Intenſeneſs of Esteem, is to imply extraordinary Excellence or Perfe&ion
the Signification of our Opinion of another Man's Ex- of any kind (g). The Effects of which are con-
cellences. And therefore the Honour is not really ſonant to the Laws of Nature, and the ends of Civil
in him that receives, but in him that gives it (6). Government. For 'tis unuſual to ſee Perſons of dif-
For tho' a Man may ſee what Value he pleaſes up- ſolute Morals and eminent for nothing but their
on himſelf as the Seller does upon his commodities: Vices, celebrated and admired by the Multitude. So
Yet as in theſe, it is the Buyer at laſt that deter- in particular, are Men of unuſual Strength and
mines the Price; ſo the Value of Men is no higher Abilities at eating and drinking (b); of ex-
or greater than as others are pleas'd to ſet it (c). travagant, inſatiable Luft; of mad, raſh, ungo-
For as Hobbes ſays, let a Man (as moft Men do) rate vernable Humours; dextrous, ingenious, crafty,
bimſelf at the higheſt he can ; yet the true Value of him artful Villains; and in ſhort
, all Miſcreants
is no more than he is eft eem'd at by otbers (d). But whatever, that are arriv'd at ſome ſignal Profi-
yet every Man is affected more or leſs with the ciency, and ſeem to be Leaders in their ſeveral
Honour others pay him, as it anſwers to that Value Vices. But who, the more they are accompliſh'd
which he puts upon himſelf (1). But the Eſteem in their different vile Practices, will appear on-
it ſelf, or that which gives Men the Title of Deſert ly the more inſupportably Wicked to all the good
to Honour, is often figuratively expreſſed by that and ſober part of Mankind (i). It may pollibly
Word. And ſo certain Publick Stations, and Places require much ſtrength of Body, and readineſs of
of Dignity attended with Honour, are peculiarly Parts to be compleatly Vicious; But 'tis alſo cer-
callid Honours. 'Tis rightly obſerv'd by the
Au- tain, that Vice will govern with greater Power
tbor before-mention’d (e), "That it is impoſſible and Violence, where there is more Vigour and
any Society ſhould be either great, or of any ſtronger Appetites to entertain and ſupport it. From
long continuance, that at firſt united only upon all which it is eaſie to infer, that Commendation and
' ſuch a Bottom as a Common defire of Glory, or upon Glory muſt be rated only by the Valuation of the
mutual Obligations to aſliſt one another in their. Perſons we receive it from. And therefore, that
purſuits after Honour ; becauſe Glory and the the greateſt commendation is that which comes from
Honour that is built upon it, conſiſt in Compariſon Perſons that deſerve it themſelves; and conſe-
and Preference, and ſo what belongs to every quently, that a Wiſe Man will ſet no value upon their
body, belongs to no body; and becauſe the Praiſe, (as M. Antoninus faith,) who cannot ſo much
Rate that is commonly ſet upon a Man, is taken as appear pleaſing to themſelves (k). But in particular,
" from what he is able to do without the Affi- the Foundations of this Eſteem are ſuch as theſe;
C
Task;
4.
a
am
(a) See Cornel. Nepos. Alcibiad. c. 6. f. 5. Libanius, Orat. 7. To diffolve, and undo things that are already done, is
what we reckon among things impoflible ; but to take off Ignominy from them that are in Diſgrace, is not ſo difficult a
and you are the only Phyſician that can cure this Diſeaſe : Speaking to Julian the Emperor. See Juſtin, B. 5. €.
(b) Ariftot. Nicom. I. 1. c. 3. We ought to think the Honour is rather in thoſe that honour, than them that are
honour'd. (c) Vid. John VIII. v. 54. (d) Leviath, c. 10,
(1) See above in B. 7. c. 1. f. 2. towards the End. (e) Hobbes de Cive, c. Laf. 2.
(f) Seneca Epift. 27. de Calvifio sabino. (8) Cic. de Nat. Deor. l. 1. c. 17. Every thing that excels, may juſtly command
# Honour is a Privilege, that derives its principal Eſſence, and even Virtue, from the Rarity of it ; cui
malus eſt
, nemo, quis bonus esſe poteft. (Martial. Lib. 12. Epig. lxxxi.) we never take notice of a Man, by way of Re-
"commendation, that he is induſtrious and careful in maintaining his Family, becauſe 'tis a common Action, not with-
ſtanding it is very juſt and commendable: nor of a great Tree in a Foreſt, where they are all of the fame bigneſs. I
of Opinion, that a Citizen of Sparta ought not to have boaſted of his Courage, ſince it was the popular Vertue of
“ their Nation; and as little of their Fidelity or Contempt of Riches. There is no occaſion of recompenſing a Vertue,
“ how great foever it is, that is once become cuſtomary; and I know not, whether we fhould ever call that great, which
" is common. Since then, that theſe Rewards of Honour, have no other Worth or Value in ’em, than what ariſes from
" the ſmall number of thoſe that enjoy 'em ; a liberal
Diſtribution of 'em, is the way to make 'em contemptible, and
bring 'em to nothing. Montaigne's Eſſays, Book II. Chap. vii. towards the Beginning. (b) Such as Juvenal deſcribes,
Sat. IV.0 139, 140.
Nulli major fuit ufusedendi
In Arts of Eating, none more early train'd ;
Tempeſtate mea.
None, in my Time, had equal Skillattain'd. Mr.Dryden.
Ariftoph. Acharnenſ, A&. 1. Sc. 2, v. 35, 36. The barbarous People value Men only, as they can eat and drink moſt.
(i) Philo Judaus de Migrat. Abrahami. p. 413 A. Ed. Pariſ. To excel many Things that are bad, is only a more
famous Infamy. Arrian. Epi&et. l. 3. c. 14. If you tell me you can kick with a great deal of Strength; I anſwer, You
value your ſelf upon that which belongs to an Aſs. (k) M. Ant. I. 3. 1.4.
* H 2
Pera
60
Of the Power of the sovereign,
Book VIII.
Perſpicacity of Mind, Parts and Abilities capable of Nature large Souls in little Room confines (e).
much Improvement and Variety of Knowledge,
eſpecially when great Capacities are anſwered by And that (f),
great Attainments. A Judgment turn'd for Buſi-
neſs, eaſily diſcerning the true State of things,
'Hvogén te
A megx10 tea€95, uizio meister der
and difficulty impoſed upon (a). Steadineſs of
*Avées, vi um oi xuon in us Zn2.
Reſolution, unſhaken and unmov'd at External
Accidents, above fear, and beyond the force of 'Tis fond to hope Succeſs from Strength or Might,
Temptation. Eloquence, or the Power of expref Except with Force, Pradence and Art unite.
ſing the Thought with much Auency of Words,
But beſides theſe Foundations of Intenſive Efteemi,
Strength, Beauty, Comelineſs, and good Proportion of there are alſo others to be mention'd, ſuch as
Body; as there may be fuppos’d to be either In. the Goods of Fortune (as they are callid) which
ftruments, or Promiſes and Signs of certain Gra- feem either to ſuppoſe Induſtry, Wit, and Pru-
ces and Perfe&ions in the Mind (b)
. Hence it dence neceſſary to obtain them, or to promiſe
has been vulgarly thought, that extraordinary Power, or to fupply Matter to do great things
.
Tallneſs of Body, implies a Mind and Perſon Great But that which advances Reputation moſt, and is
and Noble. And the Gods and Heroes were there the Foundation of the higheſt and moſt Intenſe
fore repreſented upon the Stage in the Buskin, that Eſteem, is Good Succeſs, and Fortune in great and
the Actors might appear of an unuſual Size. And Important Aäions. This firſt of all ſeeming to ſup.
'tis obfervable, that there are many Men that with poſe Intrinſick Worth and Excellence, and then to
to be Taller than they are; but that there are very demonſtrate the Advantages that ariſe from it
,
few that would be content to loſe an Inch of their and the Lawful Ends it may and has been applied
Stature. But how ridiculous ſoever this Opinion to (8). And as the Fame of ſuch Archievements
ſeems to be, it prevaild ſo far, that upon the force gains Belief in the World, it is properly call'a
of it, the Ethiopians, (as Herodotus faith (c)) choſe
Renown.
A Reputation of particular Prudence and
their Kings by a certain Meaſure. A Method of E. Conduct in Difficulties relating to Common Life
lection, which would no doubt have been much and Practice, or to Speculative Abſtrakted Truths,
approved by the Indian, mention'd in Montaign,
is what is uſually call'd Authority : which others
who happening to be at Roan while the Court was
more fully call an Opinion of greater Knowledge, join'd
there, in the Reign of Charles IX. faid, that he with Probity and Sincerity. And hence thoſe De-
thought it very ſtrange ſo many Tall Men with grees of Eſteem which Age is thought to confer, are
long Beards, and ſo bravely arm’d, as they were founded upon nothing more than the common
that ſtood about the King's Perſon, (meaning the Perſwafion, that Experience and long Obſervation
Swiſs.Guards) ſhould be content to obey a Beardleſs upon Buſinefs and Things, generally produce
Boy, and that he wonder'd they did not choofe Caution and Prudence (b); tho it is not to be de.
One of them King (d). But it is often feen (as nied, that there are Inſtances where Grey Hairs
the Poet Says) Thai,
are not ſigns of Wiſdom (i). But now on the o.
ther hand, Women generally deſire rather the
Natura breves animis ingentibus artus populo Complements of Youth and Beauty, than the Rel-
peçt and Honours paid to Age. And therefore
Finxerit.
Lais, when ſhe grew Old, dedicated her Look-

(a) Vid. Ecclefiaft. IX. 15. i Kings III 28. (b) Vid. Virg. Æneid. 1. 5. v. 344. Ifocrat. in Encom. Helene. Tho'
he is there a little too much an Orator. Lord Bacon's Eſſays, c. 41, 42. (c) Thalia. Vid. Themift. Orat. 14.
(d) Montaign's Eflays, l. 1. c. 30. Add. 1 Sam. X. 23, 24. and here alſo we may apply to this ſenſe, that of Oppiax.
Cyneget. 1. 3. c. 68.
Μείοσι μη μείζων τελέσει, μεγάλοισι δε μείων.
The Great excels the Lefs, the Leſs the Great
(e) Claudian, de Bello Getico, v. 584.bas gullf) Q. Calaber, l. 5. (8) Ariftot. Rhet. I. 1. c. 3. 'Tis juſt to
honour thoſe that do Good, but not ſuch as barely have it in their Power. Pind. Olym. Od. 6. v. 123, 124. Texpecéget
geñc évesov, The Work diſcovers what the Author is.
(b) Vid. D. L. 50. t. 6. 1. 5. init. de fure Immunitatis. Q. Calaber, l. 5.
Αίει δ' εν βελήσει κρων πολυϊδεις αμείνων,
Youth is leſs fit than Age for wife Debates ;
“OATiew Ag góc, kì tảA ĐỜe bit.
On ſacred Wrinkles ſage Experience waits.
Diod. Sicul. I. 19. c. 34. It ſeems more natural, to pay greater
Reverence and Relped to Aged, than to young People
.
Oppian. Halieut. l. 1. v. 683. gwegs 98 trainuos du sex Tisnoy, Age makes Men venerably Great.
(i) Such as we apply that of Ovid Mecám. l. 9. 0.436, 437.
Qui propter amara ſenetta,
Who tyr'd with Age and Years oppreſſive Weight,
Pondera deſpicitur, nec quo prius ordine regnat. i 599 Sink to Contempt, and loſe their former State,
And as Lucan, 1. 1. v. 135. exprefſeth it :
Stat magni nominis umbra. Dred20d Retains the Shadow of a glorious Name.
And therefore Horace faith very well, Ep. 1. 1. Ep. 1.0.8, 9.
Solve ſeneſcentem mature fanus equum, ne
Wiſely in time the generous Horſe releaſe, and
Peccat ad extremum ridendus, & ilia ducat.
Er'e batter'd and decay'd, he loſe the Race.
Antiphanes. Life
is like Wine, when it runs low, it it will turn fowr. Add. Charron de la Ságeffe, l. I. c. 35, ( 5: Stra-
bo, l. 15.p. 488. The Indians allow no Pre-eminence to the Aged, unleſs their Prudence delerve'it. Philo de Abrahamo,
For many that
have continued a long courſe of Years in ill Pra&tices, can only be call’a long liy'd Boys. And it is foment
times true, as Varro faith, de re Rufica, 1. 2. c. 2. That is a better 'Age which is attended with Hopes than that which
is followed by Death. Quint. Inft. Orat. 1. 2. c. 1. p. 104. We onght not to yalue any one according to his Age, but achte
ding to the Improvements he hath made: "Ifocrat. in Archidan, init. It is not our Years, but our Parts and Induſtry that
makes us wifer than others
. Philoftrat, in Vit." Apollon, Thuan. 1.6.c. 8. P. 287.D. Youth doth not hinder a Man from
ſeeing things clearer than even old Age it felf.

ing Glafi

Chap. IV.
in derermining the Value of Subjects. 61
C
Rour.
ing-Glaſs co Venus, Adding as it is in the Epigram (a): nother honours, to employ in Counſels or A-
ctions of Difficulty. And further, Civil Digni-
mi nin pelle console
ty according to him, is that Value which is fec on
Our šsiaw ein beraieG, ó Sudrede.
a Man by the Common-wealth, which is under-
ftood by Offices of Command, Judicature,
The Face I once could boaft no Glaſs can ſhow; publick Employment, or by Names or Titles,
And that I now have lefe I would not know, Sintroduced for diftin&tion of ſuch value. And
o
he rightly obferves, that the Commonwealth
The Roman Law ſeems to allow more Worth and
may make whatſoever it pleaſes to ſtand for
greater Dignity to Men than Women (6). Tho' in
Signs of Honour, tho it be otherwiſe in
general, there are ſome Foundations of Eſteem com its own nature indifferent ; as for inſtance, it
mon to both Sexes. And there are others which was a ſign of Honour among the Perſians, to
are particular to the Women, ſuch as the ſeveral • be conducted through the Streets in the King's
Accomplishments of Vertues and Duties peculiar to Garments, upon one of the King's Horſes (A.
their Sex. And there are others again, which are (as it is alſo to wear certain Marks or Badges).
borrowed and derived to them, when they are faid Thus the Chineſe falute with the Head and Hand;
to ſhine with the Rays of their Husbands (c); or when the Japoneſe by putting off their Slippers, the
they Value themielves upon the Number or Worth Chineſe always riſe to any Perſon they deſign
of their Children (d).
to Honour. They of Japan pay their Honours
XIII. From all which it readily ſitting on the Pavement, and think it Rudeneſs,
Whether Power appears what Judgment may be and ill Breeding to ſtand when they perform their
the fole Foun-
made upon what Hobbes ſays in the ceremonies (g). However all this be, that Notion.
dation of Ho- X. Chap. of his Leviathan, where of his, thae Honour confifts folely in the Opinion of
he reduces all the Foundations of Ho. Power, is by no means to be admitted; neither
nour or Intenſive Esteem, to power, which he calls what he infers from thence, 'That it doth not
a Polleffion of preſent Means, to obtain ſome apparent • alter the Caſe of Honours, whether an Action
future Good. And this he divides into Natural and (fo it be great and difficult, and conſequently a
Inſtrumental. Natural Power (he ſays) confifts ſign of much Power) be juſt or unjuſt
. And
in the Eminence of the Faculties of Body or that therefore the ancient Heathens did not think
Mind, as extraordinary Strength, Beauty, Pru. they diſhonoured, but greatly honoured their
dence, Arts, Eloquence, Liberality, Nobility, Gods, when they introduced them in their
e and the like. Inſtrumental Powers are thoſe, Poems, committing Rapes, Adulteries, Thefts,
' which being acquired by theſe or by Fortune, and other great, but unjuſt or unclean Aas.
are the Means and Inſtrument of acquiring For tho'it might be granted, that the Foundations
more, as Riches, Reputation, Friends, and of Honours may ſo far, be properly enough re-
good Lack; and in ſhort, any Quality what- duced to Power, namely, as they are naturally apt
ver, or the Reputation of any ſuch Quality, as to produce ſome Effect or other in human Life;
makes a Man be lov’d, or fear'd of many. And ſince what is of that dull, unactive Nature, as
then be defines Worth, or Dignity; That it is the will produce no Effect either Good or Bad, ſeems
Value or price
of a Man, or as much as would to be capable of having no Value one way or
• be given for the uſe of his Power. And the other ſet upon it: Yet chat Power alone, without
manifeſtation of that Value we ſet on one ano. Relation to, or Conjunction with Goodneſs, ſhould
ther is that, be ſaith, which is cali'd Honouring be the proper and natural Foundation of real Honour,
and Diſhonouring. Thus to value at an high is what is contrary to Reaſon, and Hobbes himſelf :
* Rate, is to Honour a Man; at a low Rate, is to For in his Book de Cive, c. 15. 8. 9. he gives this
Diſhonour him. Afterwards he recounts the natu- Definition of Honour ; that it is an Opinion of the
ral Tokens, or ways of Honour, as to pray to Power of another in Conjunction with Goodneſs. And
another for Aid, to Obey, to give great Gifts thence he infers, that there are three Affections neces-
(e), to be fedulous in promoting anothers ſarily conſequent upon Honour , Love, that bears rela-
Good, to give way or place to another in any tion to Goodneſs; and Hope and Fear, that bave regard
Commodity; to fhew any ſign of love or fear, to Power ; and thus that only is true Honour, which
to praiſe, magnify, or call happy, to ſpeak to is attended with all theſe three Affe&tions together,
another with Conſideration, to appear before Fear alone, excited by a Power determined to
* him with Decency and Humility, to believe, to Evil, can never be look'd upon to be a sign of
truſt, to relie on another, to hearken, to coun Honour. For Fear hath always a mixture of Hatred
ſel or diſcourſe of what kind ſoever, to agree in it; and where a Man bates, he naturally wiſh-
with in Opinion, to imitate, to honour thoſe a eth Harm, and Ruine, and not Honour (b). Thus
<
6
S
(a) Antholog. l. 6. Quintil. Declam. 306 p. 462. There is nothing to be loved in an old Woman, but the Memory of
what ſhe was. Add. Ld. Bacon's Eſſays, c 40. (6) L. 1. t. 9. 1. 1. D. de Senatoribus, Add. Jac. Godofred de præceden-
tia, part. I. C 5 S 35. (6) Vide 1. 8. D. de Senatoribus, ubi ſupra.
(d) Vide Ovid. Metam. 1 6. fab. 4. v. 127. Ego
feqq. Valer. Max. 1.4.C 4 S. 1. Plut, in C. Gracch. Vide Buchanan. Rerum Scotic l. 12. init. Orat. Kennedi
(é) And upon this Foundation I ſuppoſe, (tho the Reſpect intended was oddly expreſs’d) the Prince of Z amaga in to
frica, as Leo Africanus, 1. 1. relates it, kill'd a great Number of Camels and Oſtriches, to entertain his Gueſts; which fort of
Proviſion they deſired him to ſpare, he told them, that he ſhould not deal civilly by them, if he treated Gueſts he
thoughe fo Noble, and that he had never ſeen before, with only the leffer fort of Animals.
(f) Efther. VI.'8. (g) Bern. Varen. Fapon. Deſcript. p. 21. Add. Neuhof. in Gen. Deſcript. China, c. 4. Vid.
Rochefort. Deſcript. Antill. part 2. c. 19. where allo he tells us of ſome unuſual ſigns of Honour.
(6) Silius Italicus, lib. 1. v. 149.
Et metui demens credebat honorem,
And vainly thought it Honour to be fear'd.
by
62
Book VIII,
Of the Power of the Sovereign,
by the Chriſtian Religion we are aſſured of the of ſome Diſcourteſy or Incivility : For among Perfons
great Power of the Devil
, but that it is utterly that live in a Liberty of Nature, where all are
averſe to all Goodneſs, and always bent upon all equal
, it doth not appear how any Man can pre-
Evil; but certainly no Man in his Senſes can ſup- tend Right to demand Honour from another;
poſe that he deſerves Honour upon that Account. ſince from that Love every Man naturally bears to
And therefore, be himſelf, when
he tempted our himſelf, it is very ealy for him to imagine that
Saviour, did not ſhow him his Force and Power, there are Qualities or Endowments in himself, equal
but his Gifts, the Glories and Kingdoms of the or perhaps ſuperiour to thoſe which others value
World, Matt. IV. 8, 9. Nor can any Man of themſelves upon. For inſtance, One Man thinks
Senſe think it a good reaſon, which the People Age deſerves Reverence and Eſteem ; another, that
of ſome barbarous Countries in the Indies give for Youth and Vigour have a much better Title to it (d).
their worſhipping the Devil, that he should do them The Hopes and Expectations of ſome, raiſe them
no Harm. And therefore alſo methinks, I have no to as great a pitch of Vanity, as the real Succeſs
Patience to ſee Hebbes mentioning Flattery among of others. Some value themſelves upon Strengils
the reſt of his natural Signs of Honour. For Flat- of Body; others think Wit and Prudence, the En-
tery in every kind of it implies and ſuppoſes ſome dowments of the Mind, much nobler Qualities
Deficiency, or Blemiſh, both in the Perſon that gives, (e): This Man meaſures his Worth by the Large
and in him that receives it ; and is an Aět and nefs of his Fortune, another by an Eaſineſs and
Species of Scorn and Derifin, without the leaſt Freedom of Mind, which he thinks equal to all
mixture of Love or Sincerity in it (a). But as to the Wealth and Opulence in the World. Some
the Fables of the Poets, there are ſome Men indeed preſume upon their Learning; others will ſuppoſe
that think, that they imply no more than that the that there is nothing true and real in Human Know-
Gods are above
all the Confinement of Laws. And ledge, more than Reſolution, Fidelity, and sincerity;
others rather ſuppoſe (b), that all was Myſtery in the Ti Bélavov sej TTisòr xj Trods, as Plato ſtates it (f).
them, and that many ſecret Truths were conceal'd under Some inlift upon the Honours they have attain'd,
the Diſguiſe of tboſe Vices and Abſurdities. But what- others ſatisfy themſelves that Honeur is not always
ever they make of them, it will never by me be paid where it is deſerv'd, or deſerv'd where it is
conceivable, that Rapes and Adulteries could be an paid (g). And others ſee little Value upon Great-
Honour to the Gods, any more than they would nefs of Birth, and deſpiſe it when it is not attend-
be to any ordinarv Mortal here on Earth (c) ed with an anſwerable Greatneſs of Forcune (b).
XIV. But after all, theſe Foundati- And certainly the wiſer part of Mankind will al-
An Aptitude ons of intenſive Eſteem, produce only ways think it as falſe a Method, to value (1) Men
only for Ho.
an imperfect Right to demand Honour by their Riches, Dignities or Honours, or by things
fult of thoſe and Reſpect from others, fo that if a external to them, as it would be to take the worth
Man deny it where it is really deſeru'd, of Horſes from the fine Furniture which may be-
he cannot be ſaid to have done an long to them. But beſides, fince Honour is then
Injury, but only to have been guilty properly paid, when a Manacknowledges ſuperiour

nour the Re-
Founda-
tions.
(a) And therefore Lucan, 1. 5. v. 385, 386. calls it,
--Voces per quas jam tempore tanto
Mentimur dominis.
The Words with which we have long time abus'd
Our Princes
Vid Plutarch. de adulator. & amici diſcrimine. Peſcennius Niger in Spartianus, c. 11. when one was preparing to addreſs
him with a Panegyrıck upon his being made Emperour, fop'd him by ſaying, Thet he ought to write an Oration in Praiſe of
Marius, or Hannibal, or any onc of the famous ancient Generals, and recommend their braye Actions to the Imitation of
the preſent Age, For to commend Perſons that are living, added be, is only to deride and expoſe them, and eſpecially
Emperours
, fince 'tis evident, what you may hope, or what fear from them, ſince they have the Power of the Laws, can
do as they pleaſe, and take away your Lives, or ſend
you
into Baniſhment.
(6) Salluſtius Philoſoph, de diis & mundo, c. 3:
c) Pindar Says very well, Olymp. Od 1. ész M ardei pescev torxès aupe surub. awy rena. Men onght to ſpeak with Re-
verence of the Gods. "Ifocrates in laudat. Bufirid. p. 395. calls thoſe Fables Blaſphemies, by which faith he) they boldly
fix ſuch things upon the Gods, as no Body would dare fpeak of his Enemy. For they do not only charge them with
Thefts, Adulteries, and Slavery to Men ; but accuſe them further, of devouring their children, depriving Fathers of
their Genitals
, Copulation with Mothers, and a Thouſand other wicked Aktions: The Authors of which Stories were
not indeed puniſh'd as they deſerv’d, but yet neither did they altogether eſcape ; for ſome of them were Stroalers,
Vagabonds, and Beggars, others were ſtricken Blind, and others were driven out of their own Country, and forced to
make War continually upon their Relations and Friends; and Orpheus the chief Inventor of theſe Fables, was torn to
pieces. Seneca de brevitat. Vitæ, c. 16: To make the Gods Authors of Vice, what is it but to encourage and inflame
our own Luſts
, and to bring the Example of the Deities for our Liberty and Excuſe ? Fulgentius Mitholog. 1. 1. p. 55. c.
If the Gods were guilty of Theft, Juſtice would have nothing to do with Criminals or Crimes, ſince they would be
countenanc'd by Heaven.no
(d) Pind. Olymp. Od. 4. towards the End.
And Youth ſometimes with hoary Hairs
Before the Noon of Life is crown'd.
(e) Sophocl. Ajax, Flagell. p. 69 Ed. H. Steph.
The ſtrongeſt have not ſtill the beſt Succeſs,
gerBut Prudence never is unfortunate.
(f) Plato. Ep. IX. () Cic. Ep. ad Fam. I. 3 Epiſt. 13. (6) Euripid. Phæniff. v. 445. & Electra, v. 37, 38.
Λαμπροί εις ένα . Χρημάτων σε πένητες.
Mapa
Noble in Birth, but miſerably Poor,
(1) I have borrow'd Charron's own Words Treatiſe of Wiſdom, Book I. Chap: V. Sect. 9. Numb.s, from whence tis
viſible that our Author has taken the Thought : But Charron himſelf has done nothing, as ’tis uſually
, his way,
abridged this fine Paffage,
from Montaigne. “ 'Tis ſtrange, that nothing except our ſclves, is valued or eſteem'd bur
“ for its own innate Qualities. We praiſe a Horſe for his being ſtrong and well manag’d, and not for his Furniture.
“ A Grey-hound for his Swiftneſs, not for his coller ; a Hawk for his Wings
, not for his T'effels and Bells. Why then do
we not, in the ſame manner, eſteem a Man for what is his own ? He has indeed a numerous Retinue, a fine Palace, a

104. bo
but
* *
Excellencies

Chap. IV.
In determining the Value of Subječts. 63
C
of a
Éxcellencies in another, and pays ſome voluntary them that lived in Defarts, not to know who
Submillions to him upon that Score; and ſince no ' he was, and whence he came. And Arioviftus
Man can be forced to pay this by ourward Violence, in Cæſar's Commentaries, tells Cæfar,That if he
that Method being more likely to confirm him " had been to defire any thing for himſelf, he
rather in an obftinate Refuſal of them ; it is would have attended him in Perſon, and that
evident, that it is a Miſtake to allow theſe Funda. he could not but expect that Cofar ſhould ſhow
tions the force of any ſuch perfe&t Right which might him the ſame Reſpect (a). From all which,
be aſſerted by Violence and Arms. For the Reſpect it ſeems to be evident, that tho' it be agreeable
a Man pays to another upon Compulſion and Com. to natural Reaſon, that Honours ſhould be paid to
mand, is no Sign of any internal Reverence he has Perſons of Superiour Excellencies ; or further, that
for him, but only that he is afraid of Puniſhment. tho' it might be alſo allow'd, that it is no leſs a
And further, ſinoe external Signs of Honour, unleſs Command of the Law of Nature to honour Perſons of
they proceed from Submiſſion of Mind, are to be Wortb; yet ſtill that this Duty muſt be one of
calla Shoiv and Mockery rather than Honour, it thoſe, which a Man hath no Right to demand from
would be Folly to threaten Violence when they others, but which muſt be lefi entirely to their
are denied; eſpecially if the Perſon from whom Good Nature and Civility. But when a Man pre-
they are expected declares, That it is not out of tends Right to demand Honour, or any Sign of it
Contempt that he omits to pay the Formalities of from another, 'cis neceſſary he ſhould either have
his Reſpect, but only becauſe he would enjoy his power and Authority over him, or produce fome
Liberty, and not be forced to do that which ought Compact for his Right, or prove it by ſome Law
to be left to his own Pleaſure and Courteſie And made or approved by their common Lord and Ma-
therefore the Scythian Ambaſſadors cold Alexander the fter. Mandeſlo in his Travels (b) relates, that in a
Great,
grcat Reputation, and a plentiful Eſtate ; but all this is about him, not in him : You do not buy, a Pig, in a Poke ;
" it you buy a Horſe, you take off the Saddle, and view him naked and uncover'd; or, if he is cover'd, as they former-
“ ly ſerv'd Horſes that were ſhewn to Princes to buy, 'tis only upon the Parts which are leaft neceſſary, that you may
not amuſe your ſelf, with the ſmoothneſs of his Coat, or the largeneſs of his Crupper ; but have time enough to ob-
“ ferve chiefly his Legs, his Eyes and Feet, which are the moſt uſeful Members. (See Horace Lib. 1. Satyr. II. v. 86. &
feqq.) Why then in your Effeem of a Man, do you value him cover'd and wrapped up as he is ? He ſhews us no Parts,
" but what are bý no Means his own; and conceals from us, thoſe by which only we can truly form a Judgment of
"his Merit. 'Tis the value of the Sword, not the Scabbard, that you ſeek after : and perhaps you will not give a
Farthing for it, if you ſee it unſheath'd. You muſt judge of a Man by himſelf, and not by his Dreſs. And as one of
the Ancients ſays, very pleaſantly ; (Seneca Epift. Ixxvi. p. 221. Ed Gronovi.) Do you know why you take him to be a
« tall Man? you reckon the height of his Shoes. But the Baſis does not belong to the Statue : Meaſure him without his
“ Stilts. Let him lay aſide his Riches and Honours, and ſhew himſelf in his shirt. Is his Body found, vigorous, and
“ fit to diſcharge its Functions ? What Soul has he? Is it noble, large, and happily furniſh'd with all the Endowments
“ belonging to it? Is it rich in Accompliſhments of its own, or anothers? Does there only want an Opportunity to ſhew,
« whether it can bravely ſtand the fight of a drawn Sword; whether it cares not which way Life iſſues out, through
“ the Mouth or the Breaſt ; whether it is fedate, quiet, and contented. 'Tis this that muſt ſhew, and by this you malt
“ judge of the vaſt difference between us. Efſays 5. Book, Chap, xlii, towards the Beginning: Juvenal has admirably
“ well expreſs’d this Paſſage, which is quoted by Montaigne, and applied to the Nobility ; in the following Lines.
Dic mihi Teucrorum proles, Animalia Muta
Great Son of Troy, who ever prais'd a Beaſt
Quis generoſa putet, niſi fortia ? nempe volucrem
For being of a Race above the reſt ?
Sic laudamus equum, facili cui plurima palma
But rather meant his Courage, and his Force.
Fervet, eos exultat rauco victoria circo.
To give an Inſtance---we commend a Horſe
Nobilis hic quocunque venit de gramine, cujus
(Without regard of Pafture, or of Breed)
Clara fuga ante alios, Es primus in æquore pulvis.
For his undaunted Mettle and his ſpeed ;
* Sed venale pecus Corithe, pofteritas Ego
Who wins moſt Plate with greateſt Eaſe, and firſt
SHirpini, ſi rara jugo victoria ſedet :
Prints with his Hoofs his Conqueſt on the Duft.
Nil tibi majorum reſpectus, gratia nulla
But if fleet Dragon's Progeny at laſt
Umbrarum, dominos pretiis mutare jubentur
Proves jaded, and in frequent Matches caſt,
Exiguis, tritoque trahunt epirhedia collo,
No Favour for the Stallion we retain
Segnipedes, dignique molam verſare nepotes.
And no Refpect for the degenerate Strain ;
Ergo ut miremur te, non tua, primum aliquid da,
The worthleſs Brute is from New-Market brought
Quod poflim titulis incidere, præter honores
And at an under Rate in Smithfield bought,
uos illis damus ego dedimus, quibus omnia debes.
To turn a Mill, or drag a loaded Life
Beneath two Panniers, and a Baker's Wife.
therefore
you,
not yours
yours admire,
Firſt, Sir, fome Honour of your own acquire ;
Add to that Stock which juſtly we beſtow
On thoſe bleft Shades, to whom you all things owe.
Horace, to ſhew the Folly of thoſe who only value and eſteem Men for external things, appeals to the Judgment of
Children’at Play, in whom Nature is not yet corrupted, by Example and Cuſtom.
Si quadringentis ſex feptem millia defunt,
If you have not ten thouſand Pounds in ftore,
Eft animus tibi, ſunt mores do lingua, fidefque ;
But want a thouſand or a little more,
Plebs eris. At pueri ludentes, Rex eris, aiunt
Tho'
you have Virtue, Conſtancy and Skilt,
Si re&tè facies. Horace Epift. Lib.I. v. 57, Egoc.
In Arts, thou ſhalt be thought a Common ftill.
And yet our Boys another Tale will tell
And ſay, you ſhall be King if you do well.
Mr Creech.
(a) Caf. de B. G. 1. 1. c. 34. And Vologeſes, King of the Parthians, anſwer’d Nero, when he ſent for him almoſt in the
ſame manner. It is eaſier for you to paſs ſo great a Sca, than me ; when you are in Afia, we mall caſily agree when to
meet. Xiphilinus Epit. Dionis.
(6) Mandello Itin. part. 2.
That we may
Mr. Stepney.
2
Inguee
64
Of the Power of the Sovereign,
Book VIII

to Others.
on which Prece-
is preten-
tugueſe and the King of Cochin, it was a long time it, and that the Right of it belong’d to the Roman
before the Diſputes on each ſide could be brought Senate (d). And 10 alſo a Prince, that has made
to a Conclufion, becauſe the Indian Nobles infifted, an Unequal League with another, doth by that ve.
that the Portugueſe ſhould give them the Way, as ry Act acknowledge a Superiority of Worth and Dig-
the Common People of their own Country were ob- nity in the Oéber ; ſince he obliges himſelf to pay
liged to do. But that the Portugueſe refuſing ſuch more Reſpect than will be given. And it is, I
diſhonourable Terms, it was agreed at length, think, alſo further clear, that where a Prince hath
that the Debate ſhould be decided by ſingle Combat, obtain'd againſt another a Right of Superiority of
in which the Victory happening to the Portugueſe, Dignity or Precedence, either for his own perſon, or
the Indian Nobility were obliged to give the Way as Head of ſuch a State or Common-wealth, whether
to the Portugueſe, and to ſtand ſtill till they were by Compact or Cuſtom, and ſuch a ſort of sufferance,
paſſed by.
as no other probable Account can be given of,
XV. But however, between Private than that he was allowed to be the Greater Prince;
What Perſons Men, certainly the Nobleft Conteſt tkat Right may be infifted on and maintained, as
have a Right (1) for Honour and Eminence, would long as that Prince lives, who is, as it were, the
of Precedence
be to diſpute who ſhould expreſs Character or Mark of the Dignity, and under whom
the greateſt readineſs to pay Honour that Right was at firſt obtain's (e).
to others, or molt Modeſty in declining it them XVI. But where no ſuch Right Arguments up-
ſelves. And it is ridiculous enough for Men to has been already fix'd, there varie-
grow warm and angry in a Contention about ty of Arguments are uſed to proveded to. ** 03
outward Honour ; eſpecially when there is little or Superiority of Eminence and Dignity.
no Profit or Advantage to be made by it, and The Antiquity of Kingdoms, Families and Govern-
when it may end perhaps like the Diſpute mentio- ments, the Extent, Riches, and Power of Dominions,
ned in the Epigram (b), who only ſhall go through the the Quality of that Power which the Prince holds
Dirt firſt
. I was a Good Determination enough over his Subjeéts, and the Magnificence of his Title
which a certain Prince made, when two of the are the Common and General Topicks. That An-
meaneſt of his Servants had quarreld which tiquity adds a ſort of Reverence and Veneration to
ſhould take Place at Church, that the greateſt States and Families, is an Opinion commonly re:
Fool ſhould ſit firſt. For as to what Quintilian ſays, ceiv'd. And they that endeavour to ſupport
that a poor Man's Honour is his beſt Eſtate (c), it muſt themſelves upon the Strength of it, uſually urge
be underſtood only of fimple Eſteem. But between they enjoy'd their Dignity in full Luſtre long ago,
Princes and Nations, the Diſputes about Eminence when other Kingdoms were ſubject to the baſelt
of Worth and Dignity, and the Precedence which de- Slavery ; or, it may be, when the Family which
pends upon it, have generally and in all Ages now wears the Crown, and triumphs fo Inſolent-
been managed with greater ſhow of Reaſon, and ly in its new Honour, lay undiſtinguiſh'd among
ſtronger Pretences
. The Argumene uſually ur the Common Herd of the People. That 'tis un-
ged in theſe Controverſies will perhaps deſerve pardonable Arrogance to diſpute Precedence with
cloler Conſideration. Thus much therefore is Princes whoſe Predeceſſors might, if they had
beyond diſpute, that where a Prince depends upon pleaſed, have made the Anceſtors of Others their
Another of Superiour Power, the greater is the moſt Slaves. That it is a ſort of a Natural and Uni-
Honourable, and has a perfect Right to Precedence; verſal Law, that Things of Later ſhould be Inferiour
tho' perhaps the ſame Title may be Common to
to Things of Earlier Original. And from hence
both of them. Thus there are Inſtances of grea. they uſually paſs to a pompous Repreſentation of
ter Kings that have others call’d Kings under them, the ſeveral great Actions in War and Peace, which
tho’in Reality they are no more than Magiſtrates have been Atchiev'd in that Kingdom, by the Prin.
and Governours of Provinces. Some Princes do Ho ces of the Blood Royal. Few of which fort thoſe
mage to others for their Kingdoms, as Feudal, and Upſtart Nations and Families can preſume to chal-
there are others that hold theirs by other Titles. lenge. Moreover, Power adds Terror to Reverence,
So in Tacitus's Life of Agricola, 'tis ſaid to be an ană makes it not only Impudence (2), but Raſh-
old receiv'd Art of Rome, to make and maintain Kings neſs and Folly to contend for Honour with thoſe
to be their Inſtruments of Slavery. And thus Adherbal, in whoſe Power it is to do us Good or Harm as
in Saluft, ſays, that when his Father Micipfa died, they pleaſe. And without diſpute, 'tis a certain
he commanded him to think nothing in the King- Way to demand and to obtain Honour, to tell the
dom of Numidia his own, but the Adminiſtration of World with Sword in Hand, that if they will not,
(1) In which, however we ought not to go too far. I love, ſays Montaigne, to obſerve the Rules of Civility, but
not ſo fervilely as to make my Life uneaſie by 'em. There are ſome tireſom Formalities in 'em, which provided we
“omit, through diſcretion, and not want of Judgment, we are not the leſs Genteel. I have often known Men uncivil
,
“ by too much Civility, and troubleſom by too much Kindneſs. This induftrious and genteel way of puſhing ones
“ felf forward in the World, is in ſhort, a very uſeful Science. It is, as it were, the Beauty, and Grace, which makes up
“ Inftru&ion, by the Example of others, and gives us an opportunity of producing our own, if there is any thing
" that is inftru&tive and communicable. Montaigne's Efſays, Book I. Chap. 13.
. ire , , . .
Becauſe you were placed in
a little leſs honourable Seat, you prefently break into a Paſſion, and are angry with the maſter of the Feaft ; him thie
and him that was put above you, How ridiculous' is it? What difference is there, what part of the Table
you fit at? Can a Seat makes a Man more or leſs Honourable ? (6) Declam. 252.
(c) Salluft. Jugurth, Bello.
French and Spanij, Ambaſſadors in Andr. Maurocerus Hift. Venet. 1. 8. p. 301, Memoirs touchant les Ambaſſadeurs
,
(d) Vid. Jac. Godofred. de Præcedentia, par. 1.c. 1. Add the Diſpute between the
by Mr Wicquefort. (2) The greateſt part of this Chapter is Word for Word, taken out of our Author's Differtation
de Exiſtimatione, which is amongit his Academical Differtations.

invited
you,
THAT

Chap. IV.
In determining the Value of Subjects. 65
quity exa-
min'd,
THAT Shall give it. Further, 'cis look'd upon to continuein one particular Family for a long Courſe
be an higher Degree of Eminence to be free from all of Time, may be allow'd to be ſometimes an Ars
other Reſtraints of Subje&tion, but thoſe which are gument that the Pofterity ſucceeded and imitated
due to GOD, the Supreme Governour of the World, the Vertues of their anceſtors ; but it muſt alſo be
than to be confin'd by Human Laws, and to live allow'd, that great Wealth and Riches only are
under Ties of Compact. And laſtly, ſince the Title is ſufficient Guards, and not eaſily to be over-pow ,
commonly uſed to expreſs the Thing, the Magnificence erd. Much alſo in the long Poſſeſſion of a
and Greatneſs of it ; that may be luppoſed alſo to Throne muſt be aſcribed to the Diſpoſition and
imply an Argument againſt Inferiority of Dignity (a). Temper of the People, averſe to Change : And
XVII. There with Arguments of much in the Succeſſion of Good Princes to the Blef-
That of Anti-
a like Nature may perhaps be ſpe-fing of Heaven alone. But ſtill. Princes and States
ciouſly urged : But after all, it muſt of larger Origine, ambitious to be thought great,
be confeſs'd, they can produce no may eaſily anſwer, that they cannot look upon
more than an imperfect Right, unleſs confirm'd by any thing as their own, which was not got by
Compact expreſs or Tacit, according to receiv'd their own Induſtry or Power (1). That it is a
Cuftom. And it will be no Difficulty to deſtroy very eaſy thing to take Poffeſlion of large Eſtates
the Force of theſe and all ſuch Arguments, byor Dominions, purchas’d by the Succeſs of An-
anſwering, That Antiquity alone can have no real ceſtors; but to raiſe a great Fortune, or an Em-
Honour in it, fince it only implies Tract of Conti- pire, requires Bravery and Vertue. That others
nuance, which may be urged for the moſt inconſi- owe their Greatneſs to the Chance of being well
derable things as well as the moſt valuable. That born, they to their own Worth and Excellencies.
all Kingdoms are by their own Nature Free and In- That others can produce nothing for themſelves,
dependent. And that it is not material to enquire but old forgotten Monuments of their Fathers great
how long they have been ſo. That it may indeed Actions; theirs is no borrow'd Luftre, but the freſh
be allow'd, that when a Kingdom hath long con. Acquiſitions of their own Vertue and Valour.
tinued in a flouriſhing Condition, the Strength Laſtly, That no Degree of Honour is beyond that
of its Conftitution and the Wiſdom of its Government of being a Sovereign Prince, and that this ſets the
ought not to be queſtion'd; and that it need not lateſt Families upon the Level with thoſe of the
be denied, that the Favour of Heaven and the moſt ancient Date (b).
Bravery of Subjects, was ſufficient to defend them XVIII. As for Power indeed,
againſt Foreign Arms. But then, that common. that may often force the weaker That of Power,
of its Quality,
wealths of later Growth may poſſibly be ſettled as to pay the Signs of Honour to the
and of Titles.
wiſely, and govern'd as happily, as thoſe that have greater, becauſe it is Madneſs not
food much longer ; nay, perhaps be eſtabliſh'd to yield to them that have power to do us harm
with greater Wiſdom, and enjoy greater Hap- when they pleaſe. As Favorinus in Spartianus (c).
pineſs, ſince the Wiſe and Good Inſtitutions of ana pleaſantly told his Friends (who were angry
cient States and Commonwealths generally coſt them with him for giving up a Word to the Emperour,
dear, and they of later Date have the Advantage Hadrian, that was uſed in Good Authors) certainly
of ſeeing and uſing what others diſcovered before he ought to be allow'd more learned than every Man
them. That the Favours of Heaven are not in Hu- that has thirty Legions at his Command (d): But if a
man Diſpoſal, or certain to be long enjoyd. But Prince hath Strength enough to defend his own
yer that it is not impoflible to provide ſo far, Dominions, he cannot be obliged to yield Prece-
that the State may not fall to ruine of it ſelf, for dence to any others, however ſuperiour in Riches,
want of Good and Wholeſome Laws. In fine, chat ſince he has no reaſon to be afraid of them, or to
all things ought to be valued according to their ask Relief or Proteâion from them. For where
preſent State ; what is paſs’d we have no more to Liberty is equal, a Diſproportion in Wealth can
do with, and what is to come doth not yet concern make no Difference. And therefore if one
us. That diftinet States and Commonwealths never Prince's Territories be fix hundred Miles in Extent,
unite into Syſtems, or form General Aſſemblies, and another's but one hundred, yet the Difference
where it may be neceſſary to oblige them of lateſt in the Kingdoms, makes none between the Sove-
ſtanding to be content to be placed loweft. All reigns; for their Power is of the fame Nature in
are allow'd to enjoy diſtinctly their ſeparate Free. the greater and in the leſs; and the one may an-
dom. That the Government of any State ſhould ſwer the Ends of Government as well as the other.
(a) Vid. Andr. Maurocen. Hiſt. Venet. l. 12.p: 484. Where he talks of the Emulation that happened between the Princes
of Italy upon Pius Quintus's prefenting Coſmus with the Title of Great Duke of Tuſcany. Vid. Paul. Hiſt. Concil. Trident
1. 5. p. m. 402.
(1) Nam genus, ego proavos, Ego quæ non fecimus ipſi,
Vix ea noftra voco
Ovid. Metam. L. 13: v. 149, 141.
(6) Ovid. De Faft. L. 5. v. 26.
Quoque die partu eft edita, magna fuit.
The Day that
gave
her Birth firſt made her Great.
And to this we may apply that of Arnobius, 1. 2. Is this a new thing which we are engaged in ? In time it will be
old; is that old in which you are concern'd ? In the times when it firſt began, that alſo was new.
(c) Hadrianus in Spartian. c. 15.
(d) Juvenal. Sat. 5. v. 130, 131.
-Plurima funt, que
No Freedom will from him be born,
Non audent bomines pertuså dicere laná.
Whoſe Cloaths are thread-bare, and whoſe Cloaks are torn.
Mr. Bowles,
I
Nos
66
Of the Power of the Sovereign,
Book VIII

1
non
AT
any
Love in it, but Power to do Harm can certainly niſter cannot be inveſted with the ſame Dignity as
XIX. Further: Abſolute, Unlimi- meet in the ſame place with Sovereign Princes, but
Not to ſay further, that Power alone, as it implies rily obliged to give Precedence to an Amballadower
Ability to do Harm, doth nor include any Excel from a Crown'd Head. But becauſe Vicarious
lence in it, which is naturally proper to command and Derivd Honour cannot be ſuppoſed to appear
fincere Reſpect : For all Refpeči háth a mixture of with the ſame Advantage as Original; and a Mi-
produce nothing but Hatred (a).
a Prince; and ſince free Common-wealths can never
NOMER . , ,
That of Power, ted Power may perhaps force from by their Ambaſſadours and Deputies ; 'cis evident,
and of Titles. Subject's greater Degrees of Reſpect
, that the Ambaſſadours of free srates ought to yield
or not without a mixture of Fear : But Precedence to all Crown'd Heads, and Sovereign Prina
with Sovereign Princes it can have no ſuch Effect, ces.
1,93 m 970AM
fince they muſt look upon another Prince's Abſolute XXI. And this Equality between
Power, as it relates to them, to be no more than the Perſons inveſted with Sovereign How Sucb Prin-
Liberty of Nature, which in it ſelf gives no Man Power, need not be any Obje&tion ces might meet,
Pre-eminence to another, not Subject to him. And againft Interviews, or Conferences to
ſince every Prince is to be valued, not by his own be made either in their own Perfons, ces.
Rights only, but by the State and Condition alſo or by their Miniſters, or againſt 10 9010
of the Common-wealth he Governs; it will not be their Uniting into an Eſtabliſhid Council. For if a
difficult to imagine that a Limited Monarch may Prince make a Viſit to another in a Foreign country,
from that enjoy Advantages which will make him the Laws of Civility give the Stranger the Precedence,
Greater and more conſiderable, than a Prince entire- except he comes in the Quality of a temporary
ly Abfolute. Laſtly, Titles and Words of all ſorts, Subje&. For tho' every Prince be Supreme in his
take their Value as Money doth from USę (). And own Dominions, yet Princes in the ſame manner as
fince the Higheſt Dignity of Princes is the Sovereign Ambaſſadors, by a ſort of Fiction, ſeem ſtill to con-
Power, it is ſufficient if that be expreſs'd in its na tinue as Perſons free, and within any Prince's Ter-
tural ſimple Senſe or according to common Uſe. Forritories, to whom and by whoſe Conſent they
the Pump or Modeſty of Words, neither can add to make a Vifit, without laying aſide or diſguifing
nür leffen the Thing (b). So the Turkiſh Monarch their Quality. For 'tis certainly Unadviſable and
is uſually called Emperour, the Perſian no more than Dangerous, for a Prince to venture Incognito into a
King; yet this Diſtindion in it ſelf gives no Pre- Foreign Country, without having firſt procured
ference one to the other. For an affected Multi- Leave. 'Tis certain Gramondus (d) confidently
plicity of Titles added to the proper Style, ſeems to pronounces, that it is no violation of any publick
have a ſort of Barbariſm in it; and may perhaps Law, to ſeize and detain diſguiſed Princes. But f
ſtrike fome Awe upon Inferiour and Ignorant confeſs I do not ſee for what reaſon; unleſs it be,
Subjects, but can make no impreſſion upon Fo- that to come in Diſguiſe without giving Notice,
reign States and Princes. For how was the Ro- may ſeem to imply lone Suſpicions of, and Diſresa
man Emperour, for example, concern'd, Whether pext to the Prince of the Country. If two or more
Sapores King of Perſia call’d himſelf, Brother of the Princes are to meet in a third Place, it would not
Sun and Moon, as Ammian Marcellinus relates) or be difficult to diſpoſe things fo, that no Preference
of Saturn and Venus (c)?
be given to either of them. For the Rooms they
XX. From all which it is ſuffi- are to meet in, might be ſo contriv'd, as to leave
One Sovereign ciently clear, that there is no per- it abſolutely uncertain, which is the firft and moſt
Prince not obli- feet obligation, which pre-fuppoſes bonourable Place in it. And upon this View,
ged to yield the
Proper Right in another, by which round Tables have been ſometimes uſed upon fach
a Prince really poſſeſſed of Sovereign occaſions (e). The Princes may alſo declare be-
Power, is bound to yield Precedence fore-hand, that the Congreſs ſhall be made without
to any other King or Prince as more Honourable, regard to Precedence, and that they intend to fit
however Superiour in the Particulars before menti- Promiſcuouſly, or as they pleaſe or happen to place
on'd; neither is one Free State or Common-wealth, themſelves. So Philoſtratus relates of the Brach-
obliged to yield more, tho' perhaps another is mans of India (f). That they appointed no parti-
more Ancient or more powerful. Nor indeed cular Place for their Prince, (as the Greeks and
is a State Govern'd by the populace, inferiour Romans would think it neceſſary to do) every
in Dignity to a State Govern'd by a Prince, one ſits where he pleaſes. But this will ſtill be
tho’in a Democracy, there is no particular Perſon to much eaſier to be done, if Princes will pleaſe to
be compar’d with a King. And hence an Ambaſ- meet Incognito, and without their uſual Pomp and
Sadour from a free Common-wealth, is not neceſſa. Retinue. Nor could they by any other Me-
Precedence to
another.
1
(a ) Add. Jacob. Godofred. d. tit. de præcedent. part 1. c. 3.
11) See Grot. B. 1. c. 3. f. 10. And Algernoon Sidney's diſcourſe upon Government. Chap. iii. Se&t. 32.
(6) Add. Geor, Bates Elench. motuum nuperorum in Anglia, part
2. p. m. 246, &c. & Author. Cardinaliſmi, part 1. 1.
3: p. m. 375.
(c) Ammian Marcellin. 1. 17. c. 5. Add. Ibid. 1. 23. c. 6. (d) Hift. Gall. I. 13.
(e) Auſonius in ludo ſeptem Sapientum, v. 78, 79, 80.
Re&e olim ineptum Delphicus lufit Deus,
One to Apollo once this Queſtion brought,
Quærentem, quiſnam primus Sapientum foret : Which he the firſt of all the Sages thought?
Ut in orbe tereti nomina eorum infcriberet,
Write in a Ring their Names, the God reply'd,
Ne primus eßet, ne velimus quifpiam.
Andequal Dignity to each divide.
(f) De Vita Apollon, Thyan. L. 3. c. 8, p. 134. C. D. Lucian. Epift. Sat ad divit. p. 628. 'tis eaſieſt and moft agreeable in
Entertainments, that all Mould be Equal." Add. Athendus Dipnofoph. 1. 1. c. 4i
chod

Chap. IV.
Place in,
ſaid, 'tis racquefort's Mem. touchant les Ambas:
l
In determining the Value of subjects. 67
thod more fully declare, that they would not raiſe but unwilling to admit the Determination of the
Difficulties or Diſputes about the points of Dignity. Lot, or that a conſtant Succeſſion in Turn ſhould
Or if this Method be not thought the beſt, it may preſcribe their Places; there is another Method left
be determind by Lot ; and that two ways, either reſembling the Chance of Lots, and which can
with Condition that every Prince ſhall for the future be no way prejudicial to the Digwity of any Mem-
remain contented with what place Chance deter- ber; and that is, that every Member ſhould take
İhall ſucceed in a certain Order ſettled by Lot. But and Order in which he was admitted into It. And
Diſputes may be much more eafily ended, if the this Method is to be Particularly obſerv'd with rea
Congreſs be form’d only by Ambaſladours ; eſpeci. gard to all Members that are admitted into the
ally fince there is one way more of preventing Society, after it is Eſtabliſh’d. For they chat ac
Difficulties among them, namely, if the ſeveral firſt Conſtitute the Society had becter perhaps take
Princes their Maſters ſend them with Characters of Place by Lot, or by common Conſent and Agree-
different Value. For ſince different Degrees of Dig- ment. And becauſe it is generally received in Col-
nity ariſe purely by Arbitrary Impoſition, they may leges, and other Societies, that every Member is to
eaſily be varied ſeveral Ways (a). But here it is to be placed according to the Order of Admiſſion, Gro-
be obſerv'd, that the Value of ſuch Characters muſt tius gives it for an Univerſal Rule
, that the Natural
be determined by the Common Conſent of Sovereign Order between Fellows of ſuch Societies is to be placed
Princes (b). For if one ſingle Prince ſhould by his according as they were received into them (f). But it
own Authority alone, create a New Character, to muſt be obſerv'd, that in ſuch Societies Priority or
beſtow upon his Miniſters, whenever the Ambala- Poſteriority of Place doth not in the leaſt imply
dour makes his Demand for any ſuch particular Ho- greater or leſs Degrees of Dignity, but is only the
nour from others, they may juſtly except againſt Order of Equals in Honour. And therefore there is
his Maſter's Power to oblige them to pay it. But no difference between the Firſt and Laſt in that
after all, it muſt be confeſs’d, that ſuch an Even- Reſpect. For it is a different Caſe, when the Pre-
neſs of Temper as Ageſilaus expreſs'd, when he ference is given for Superiour Eminence of Worth in
was placed in an obſcure place in the Theatre, is of the Perſon preferid; as Auſonius tells the Emperour
ten much the happieſt, in preventing Diſputes : Gratian, 'Tis no Diſhonour to be Second, but of
For as he ſaid, I ſhould not be thought that the place two Honourable Perſons he that hath the Prece-
adds Honour to the Man, but the Man to the Place (c). dence is the moſt Honourable (g). But it is alſo
It was a good Method which Abbas, King of Perſia, obſerv'd by Grotius in the Place before mention'd,
took to prevent differences at a publick Entertain that in Allemblies of Chriſtian Kings and People, met
ment ; them that were inclin'd to the Perſian Perſwa- to repreſent the Body of the Univerſal Church, it
fion he placed on his Right Hand; thoſe of the Tur- was the Cuſtom, that they that embraced Chrift-
kifh he ſeated on his Left, becauſe the Perſians ianity, ſhould in all Religious Aſemblies have the
thought the Right Hand the moſt Honourable, and Precedence to others. And upon this bottom Some
the Turks the Left (d). And it was an Artful Stra- have taken the Liberty to challenge Precedence,
tagem enough, which Alphonſus XI. uſed to ſilence and claim Superiority of Dignity as their Right, in alí
an old Diſpute for Precedence, between the two Towns other Aſſemblies of what Nature ſoever. But what-
of Burgos and Toledo ; when he came to ask their O. ever Good Reaſons there might be to introduce
pinions in Council
, before any mention of their Dil Obſervations of ſuch an Order in thoſe ſacred
pute began; they of Toledo I know, faith be, are ready Conventions ; yet that the ſame ſhould be obſer-
to comply with my Commands; let them of Burgos ved in all other Aſemblies, and that the Antiquity
ſpeak; which immediately ſilenced Both; Both e- of the Chriſtian Profeſſion alone ſhould produce ſuch
qually thinking themſelves preferred to each other; Pre-eminence of Dignity, is what I can ſee no Rea-
thoſe of Toledo, becauſe the King ſpoke in their ſon for. Eſpecially fince it is one of the Com-
Name Firſt; and they of Burgos, becauſe they mands of the Religion, In Honour to prefer one another
were Commanded to ſpeak for themſelves Firſt (e). (b). Beſides, in Councils the Clergy generally were
XXII. But if a laſting Society is the Parties Principally concern'd; the Lay Perfons
Of Order be.
to be erected between a Number of appear’d only as Aliftants (i), and were to ſub-
tween Equals.
Equals; and every Particular Mem- mit to the Decrees made by them. But however
ber be deſirous that the Equality ſhould continue, this be, it cannot be Reaſon, that becauſe a Per-
(a) See Mr. Wicquefort, des Memoirs touchant les Ambaſſadeurs. Add. Jac. Godofred. de precedentia, part 3. P. Paul:
Hil. Con. Trid. The Diſpute between the French and Spaniſh Ambaſſadours at Trent and Rome, about Precedence, ? 8.
(c) Plut. Apoph Lacan. p. 208. Damonides in a like Care
you
have found out a way to
even this place honourable.
(d) Pet. de Valle, Itin. part. 2. Ep. 5. (e) Hieron. Oforius de Rebus geftis Eman. 1. 1. Add Gramond.
Hift. Gall. I 3. init. (f) Grot, 1. 2.4. 5. L. 21, Add. Becler, in locum, add. L. 59.6. 3. 4. 1. D. de Albo ſcribendo. L 12.
1.3 1.1. C. de Conſul. &c. tit. 44. d. 1. C. de Tiron. 1. 3.C 1.5 d. 1. de Prapos. Sacri Cubiculi. 1. 1. C. t 4 d i de Præf Prator.
2.C.L. 10.6. 5. 2. 1. 10. de Profeffo Jac. Godofred. part. 2. C: 3.1. 17, 18. de precedentia. (8) Aulon Panegyr. ad
Grot. in fin (5) Rom. XII, 10. Phil. II. 3. (So that, ſays our Author, in his diſſertation (de Exiſtie
matione. Se&t. 37-) Kings and Princes were only look'd upon in Councils, as it were Subje&ts of Ecclefiafticks --'Tis perhaps
" through the Remains of this pernicious Cuſtom, that in certain places, the Clergy in their publick Prayers for the
whole State of Mankind, never fail to mention themſelves firſt; and in ſpeaking of the three Eſtates, or Orders of the
“Kingdom, always name the Clergy firſt, then the Nobility; and laſtly the Commonalty. However Perſons of good Senſe
do not think it very decent nor reaſonable, that a Minifter, for example, in the Prayers he inakes on New-Years-Day,
does not pray to God for the Proſperity of the Prince, till after he has wiſh'd a Thouſand Bleſſings to himſelf, and the
reſt of his Brethren, as if the Welfare both of the Church and State, depended more on the Felicity of the Clergy than
that of the Prince So much the more, as this Prince is not one of thoſe Enemies, or Perfecutors of the Church, to
whom nevertheleſs the Apoſtle St Paul commands us, to render honour, as well as to others, as a fort of Tribute. (Romans
XIII. 7) by Virtue of an indiſpenſable Obligations ; but a Foſter Father, and a Protector of the Church, Syc.
* I 2
ſon
C. 2, 3
1
c. 24 in

68
Of the Power of the Sovereign,
Book VIII.
are few State,
wan
the
himfelf profeſsid Rival to all the beſt Mafters in the Wonde neceflary; and beſides, that no ſuch
in Homer, where the Greeks wiſh'd the Lot might Generality of Men never conſider how they
Te would
fon in a certain Aſſembly, for a certain Reſpect, which him of more Proweſs and Bravery than himſelf
his Honour in general
, (tho 'tis true, as Domitian ſaid, The Honour of being
yields the Precedence to another; he is therefore a good commander, is as great as that of being a good
obliged to yield it every where, and when there Prince (b). But among Subječts of the same com
is no regard had to thoſe Reſpeéts
. And thus there monwealth, it is left entirely to the Sovereign to pre-
or Common-wealths, in which there ſcribe the Meaſures and Limitations of intenſive
are not particular Perſons that are Members of Effeem; and to grant to ſome Perſons perfe&t Right
feveral different Societies, and who therefore may of Precedence to others. And whatever Station he
in one be obliged to give Place to a certain Perſon; thinks fit to aſſign to any Man, that he may law.
when out of that, or in another, they are known fully maintain againft any of his Fellow subjects
,
to be his Superiours.
and that he ought to be fatisfied with (c). For
XXIII. But however it is as the old Centurion in Livy faid (d), Subjects ſhould
The Power of ap- evident, that there is that force think every Poft honourable in Service
. And tho per-
pointing the Ora
der of the Subjects
in Sovereign Power, which will haps ſometimes undeſerving Perſons may be pre-
lodgid in the So-
always give the Perſon inveſted fera to Men of Worth and Merit ; yet if a Man
vereign.
with it, abſolute right to the Pre- fhould upon that account be uneafie and diſfatif-
ference to all Perſons Subje& to fied with his own State, or give them diſturbance
it. For without Diſpute, Authority is Superieur to in theirs, he will deſerve to be puniſh'd for Con-
Obedience; and it muſt be allowed to be greater, tempt of the Sovereign Authority. For, as Terentius
to controul and command the Wills of others, ſaid in Tacitus (e), It is not the Subjects Buf-
than to ſubmit and complý one's ſelf. Nor can
hefs to enquire who their prince prefers or for
a Man have Power to deny Reverence and Regard what Reaſons, Heaven hath placed the fupream
to that Perfon to whom he owes his Protection, diſpoſal of things in his Hands, and it is their
and who has Power by Puniſhments to compel honour to obey (f ). But it might ſeen a good
me to obey him. So that Government doth of it way to filence the Complaints of ambitious Sub-
ſelf naturally introduce Inequality among Men. jects, if Princes, when they prefer Perſons to
Tho'it is not unnatural to think, that beſides that Places of Honour, would always have regard to
Veneration which is due to the place and Office of thofe Foundations of Eſteem which were before
the Sovereign, 'good Subjects often ſuppoſe them mentioned; and more eſpecially to the particular
felves obliged to pay other particular Marks of Services they have done to the Publick ; which to
Effeem, to the particular Vertues and Excellencies reward with eminent Degrees of Eſteem, rather
eminent in their Prince (a). But it is alſo further than with Money or Reward of like Nature, is
manifeſt, that the greater and more abſolute the generally the Politick Art of Princes (g). Bur
Prince's Power is the greater will the Honour bé, to much the rather, becauſe, except the Dignity
his Subjects pay him. Nay, long Poffeflion of and Pre-eminence of great Men among Subjects
real strength, doth yet wonderfully
or at leaſt are capable to give among their infe-
Dignity of the Prince. But notwithſtanding, Sæb- riours, it will be but Inſignificant, and without
ješis may ſometimes excel their Princes in thoſe Reality. But becauſe, if Princes were obliged
Foundations of Esteem
which produce only an im- always to place their
subjects according to their
perfe&t Right. And therefore it was a moft extra- intrinfick Worth and Merit, the trouble would be
vagant Vanity
in Hadrian the Emperour, to make infinite to make Reviews of them ſo often as it
Arts they were famous . And it was ridiculous
in Alexander the Great, when reading that Place greateſt part of them, fince 'tis certain, that the
happen to ajax, or Diomedes, or Agamemnon, he they have left below them, but howi
I
the Perſon that ſhould have named bim laft. For it is the moſt proper and eaſieft Method to beſtow
no diſcredit to a General, to have Souldiers under Honours upon the Subjects, at leaſt upon them of
no
a
Ć
10.
(f). To
(a) Neſtor in Homer Iliad. l. I u 2-71, Esco
Ah Ceaſe Noble Youth, to Peace your Mind compel,
Μήτε συ Πηλείδ' ήθελ' έριζεψακι βοστλέ 1οείλεται.
Au? Cilwamu Exodouvines buzoss tijeña de la .
Nor let your Rage againſt the King rebel;
No Prince like him
in God-like Honour reign'd,
Σκηπχ βασιλάς ώτε Ζάς κύσG- έδωκεν.
from his envicá Stainedhiel
Tho' Achilles rather ſubmitted to the Condu&t, than the Power or Command of Agamemnon.
(6) Tacitus Agricola, č. 39 (c) Vid. L I t14 1. 3. De Offic. Prætoris
.
(d):1. 42. c. 34
(e) Ann VI. c. 8.
this we may apply that of Lucian, Judic. Vocal. Tis fit and proper that'every Let.
ter “hould continue in that order in which it was at firſt placed ; and to go out of that, is to break all that is juft
squitable. And he that first maile theſe Laws for
you, fettled this Order, by which every Letter was for ever to con
cinne in its own Place and Dignity
. Plin. l. 9 Epift. 5. 'If the Diftin&tions between Degrees and Digaities were mix'd,
diſorder'd, and confounded with
one another, nothing would be more unequal, than Equality it ſelf.
(8) Vid Xenoph. Cyropæd. 1. 8. p. 130 Ed
. H. Stepħ
. where he Ipcaks of the order in which Cyrus placed his Friends
an Entertainment. Twas a fine Invention, ſays Montaigne, and receiv'd by moſt Governments in the World, to
eſtabliſh certain vain and worthleſs Marks, to reward Virtue with ; fuch as Crowns of Laurel, Oak, and Myrtle; the
Form of certain Robes; the Privilege of riding in a Coach through the city, or going by Night with Torchesi
· Arms; and the like : the uſe of which has been differently receiv'd, according to the Opinion of the People, and
· Aill remains. As for our Part, we have, as likewiſe ſeveral of our Neighbours, the Order?'of Knight-hood, which

10 S12 S101
* *
the

Chap. VI.
69
in determining the Value of subje&ts.
6
ferent Com-
and Power, mighe tempt the Magiſtrate to take have leſs Pretenſions to thoſe Foundations than them-
avoidable, that one Office will be look l be no if the Diſpute be determined by ſome third Frince
all, and every Per- which
nour, you put Riches and other Commanable and likely. For iftovane of enhancing the worth of it,
the beſt Rank, according to the Offices they bear firft. It is but rarely ſeen, that the Perſon gives
in the Commonwealth (a). And then again, it Luſtre and Honour to the Office
. So it happen'd
will be eaſy to prevent Complaints, if none but once at Thebes, to the Office of Tax-gatherer, after
Men of Merit, and Perſons well qualified are put Epaminondas had born it (f). But as to the intrin-
into thoſe Offices (b); and if the offices them- fick value of all Marks of Honour and Dignity, that
felves are diſpoſed in a natural and proper Order. depends upon the Vertues and Qualifications of the Per-
And in general, the moſt juſt and perfe&t Order of fons that wear them (g). And this was what Ar-
Offices ſeems to be when the Honours annex'd to tiſthenes meant, when he deſired the Athenians to
Offices are greater or leſs proportionably accord- make a Decree, that Alles fhould be Horſes
. For
ing to the Nature, Weight, and Publick Impor tho', as they told him, Nothing could be more
tance of the Affairs and Buſineſs which belong to contrary to common Senſe and Reaſon, yet, as
the Management of them and according as it be anfwer'd, to prefer Perſons to Places of Truſt,
diſcharge them (6). In Homer Dignity of Office is way qualified for them, but only by that pub-
prefer'd to that of Blood, even of natural Bravery lick Axt and Declaration, which puts
them into
and Courage. For thus Neftor tells Achilles :
them, is almoſt as abſurd (h). But if the Sub.
jects come to an Agreement among themſelves,
Eou repleeg's ear, Stade de te zeivalo untus,
about their Order of Place, or if Cuftom hath in-
κ 'Αλλ' όγε φέρεός βιν, επί πλεόνεσίν ανάσg (d).
troduced any particular Order, either Method
may be ſuppoſed to have the force of Law, unleſs
We own you Brave, your Race divine adore,
the Government except againſt, or forbid it (i).
Him greater think, becauſe his Power is more.
XXVI. But if Compariſon is to be
louboet
made between eminent Men of dif- Subje&s of dif-
But it ſometimes alſo happens, that ſome offices "ferent Commonwealths, it is clear,
monwealths,
in the Commonwealths have larger ſhares of Honour that the Foundations of intenſive how compar d.
annexed to them, than of Authority and Power ; Eſteem, even where fuch Perſons to
and ſometimes the quite contrary ; perhaps, for are concern’d, can produce nothing more than
fear, - leaft Honour actended with much Wealth, an Aptitude to receive Honour from others
, who
Arms againſt the Commonwealtb"(e). But in every ſelves
. And that whether the Perſon of greater
Rank of offices, Men ſhould be thought more or Eminence come into a Foreign Commonwealth, as a
leſs Honourable, according to the Dignity of the Traveller or
or Stranger, or meet others in a ibird
Employment they have in it. Now tho it is
un-
It muſt be excepted only, if the Prince
upon as oblige his Subjects to give place to the Stranger ; or
will
Reaſon that all and every particular Perſon, en they meet, or if it be
be decided by
truſted in the more hondurable Office, ſhould there or Cuftom. And therefore the Dignity of an Office,
fore challenge Precedence't
hich a Man bears in his own Commonwealth,
ſon in the leſs Honourable ; but only that the bigh him no Right to prefer himſelf to the Subjects
eft Perſon in the inferiour Office, ough to give of a Foreign State that may perhaps bear Offices,
Place to the firſt in the Superiour, but may fill which he in his
have - Preference to all that are Subordinate to the upon. For a Right which is of force againſt Fel-
were eſtabliſh'd purely
for this End. 'Tis certainly a very good and profitable custom, to find out a
guith the Merit of Men of rare and excellent Parts, and to content and fatisfie em by Payments, that are not burthena
fom to the Publick, and coſt the Prince nothing. And it has been always known by Experience and we our felves
have formerly fees fomething of it, that, Men af Quality were more jealous of fach Rewards, than of thoſe where there
that
mixture, inſtead .of
debales and leffens it. The Order of St. Michael, which has been ſo long in Efteem among us, never had any greater
"Advantage, than that of having no Communication with any other Advantage than Honour. That was the Realon,
' that formerly, there was no Employment or Eſtate whatſoever, to which the Nobility aſpir’d with ſo much Ardour and
Affection, as they did to this Order; nor any Quality that bore mote Reſpect and Grandeur : Vertde embracing, and
more willingly defiring a Reward purely its own, rather glorious than profitable. For indeed, other Rewards, are
not given on lo aoble an Account, ſince we uſe 'em upon every occaſion: With Money we recompenſe the. Fidelity
of a Servant, the Diligence of a Courier, a Dancing-Maſter, a Tumbler, a Flatterer, &c. and the moſt vile Offices they
do us'; nay, even Flattery, Pimping, Treaſon, and all ſorts of Vice, are pay'd with Money Tis no wonder then,
• that Vertue receives, and deſires lefs williągły this fort of common Payment, than that which is proper and peculiar
* to it
, and is all generous and noble. Montaigne's Ellay, Liv. II. Chap. VII. ios 10
(a) Add. Ld. Bacon's Eſſays, c. 53.
9t99709 so ga orli
Claudian ſaith in Eutropium, h. 2. 0.322. tiisdozens to snoorts svingeboh
tidu Honour it ſelf grows méan,
grows méan, o si M V
Vilis bonos?
When lachra Conſul rules, il of soci oro svoll
() Ovid. Metam. l. 13. v. 366, 368.
auw slide
Ratem qui temperat anteit,
'Tis more to rule the Helm
Remigis Officium.
Than ply the Qar. anon(d) Hom. d. I. Iliad. 280, 281,
(e) Vid. Bodin. de repub. I. 3. c. 6. p. m sor. (f) Vid. Plut. in precept. gerend. reip. p. 811. HAH
(g) Salluft. Jugurth. (b) Diog. Laertius, l. 6.
(i) Vid. L. 12. 7. 8. I. 2. C. ut dignitatum Ordo ſervetur. And it is a remarkable place in Suetonius Vefpaf.c.9. That it
might be known, that the two Orders were not diſtinguiſh'd fo mých by the Liberties they might uſe one another
with, as by their Dignity ; upon a Quarrel that happen'd between a Roman Senator and a Knight, he thus pronounced,
That ill Language ought not to be given firſt to a Senator, but that it was lawful enough to return it, when he began it
40,
as
Place ;
ont a way to diſtins
;
1
himſelf.
loww

70
Of the Power of the Sovereign, Book VIII.
tions. And even the
cular Commonwealth
Arts, Functions and Employments, as to celebrated does to common Men. And conjugal Honour is,
mean
low Subjects, is not therefore of force againſt all (apud Juos nobiles) among their own People noble;
other perſons ; for the ſame reaſon that the Laws of the Meaning of which is, that foreign Notility was
Foreign Nations oblige none but their own Subjects not allow'd the ſame Value at Rome that it had in its
(a). Nor is it any material Obje&ion, that per- own Commonwealth. What Cicero ſays in another
haps the Foreigner in his own Country may have a
Place feems more inſolent (c). If (lays he) we
greater Title than the Perſon he diſputes againſt: make a Compariſon between the Men, the meaneſt Citi-
For every State and Commonwealth may fet what zen of Rome is equal to the greateſt Man in Gallia.
Value they pleale (within themſelves) upon Titles The Honours that were given them that won the
and other Marks of Honour, whether given by Prize at the Olympick Games in ancient Greece, are
themfelves or others. Belides, the Value of Offices, well known. But it would have been ridiculous
by the Greatneſs of which the Meaſures of Honour for them to have expected the ſame in other
are generally taken, is different in different Na- Places, where Strength and Activity of Body
.
Arts are not every where equally eſteem'd; as it XXV. Laſtly, Since almoſt in
is well known, that in fome Countries the Arts every Nation fome Degree of Nobility of Birth
not from Nature.
of Peace are moſt valued, in others thoſe of War. Dignity is ſuppos’d to adhere to
Beſides, it is particularly obſervable, that the Birth; it will not be improper in this place to en-
Words by which the different Degrees of Honour quire particularly what is implied in Nobility of
are expreſs’d, do not only denote different Dig- Blood, and what value ought to be ſet upon it when
nities in diſtinct Commonwealths, but have allo confider'd in it ſelf (d).
ſometimes greater value fer upon them and fome And here it will undoubtedly be allow'd, That
times leſs, even in the fame Commonwealths, Nobility of Birth doth not of it ſelf beſtow better
according to the Alterations of time, which raiſes Conſtitution of Body, (though perhaps Goodneſs
or leffens, we know, the price of every thing elſe. and Elegance of Diet may ſometimes ſeem to con-
For the external Signs of Eſteem have their deter. tribute to it ;) neither does it produce more ex-
,
more vigorous Underſtanding ; but all theſe En.
tenſive Efteem, taken as they are in their own Na. dowments may as well attend the meanest as the
ture, and in the Eftimation of wiſe Men, can moft noble Extraction. Nature does not take any
never loſe their Value. And therefore the World other Method in giving birth to noble, than the
is every juſt Vertue,
as to pay them or may be kept as ſacred among common People, as
Honour and Reſpect. But by the Poſſeſſion of theſe Perſons of higheſt Quality. Nor would it be an
only, a Man hath no Right to demand any par- eaſy Task to prove, that noble Families are leſs cor-
sways before-mentioned. But, becauſe Marks of could be always ſuppos’d to be transfuſed inco the
Honour are always prefumed to be given as Re- Children, yet it would be extream difficult for
wards of eminent Vertues ; therefore the civiliz'd many noble Perſons to prove, that their Blood deſ-
part of the World abroad, generally pay almoſt cended to them pure from the firſt Riſe of their
the fame Degrees of Reſpe&t to the Honours of foreign Family, without Spuricus or foreign Mixtures (f).
Nations, that are allowed them at Home (1). But And it'is ſo far from being always true, thac
Atill they would be thought to do fo, niore out of
Civility and Complaiſance, than from any per Fortes creantur fortibus et bonis (2),
fe&t Obligation. But there alſo are ſome States that
allow but little value to foreign Honours. Cicero The brave do from the brave and good deſcend.
ſpeaking (b) of ſome particular Foreigners, who
were of noble Families, does not call them abſolutely. And that on the contrary, we ſee nothing more
noble, but fays they were (Domi) at home, or common than Inſtances of the Degeneracy of the
Oh A 90 YA CONTO
(a) Add Memoires de Wicquefort touchant les Ambaſſadeurs, p. 519.
ou
(1) V. Ciceron. Orat in Verr. 1. 3. c. 23. p. 44. Ed. Græv. (6) Pro M. Fonteio, c. 8. in fin. (c) Pro L. Flacco, c. 13.
insfin. (d) And this Value, I believe, is ſcarce any where higher, than among the Indians, according to the Ac-
count we have of it in Oforius, De rebus geftis Emanuel 1. 2. Who tells us, that if any of the Inferiour People chance to
touch a Nobleman, they think it à Stain upon their Nobility, and a Difgrace to their family, and revenge it as an Injury
of the higheſt Nature, by the Death of thoſe unfortunate Perſons, that happen'd upon them. And therefore, he ſays,
all below
the Rank of Nobility, when they take a journey any whither, are forced to call out and make a Noile; and by
that, the Nobles, having Notice of their coming, command them to break the way, and ſo the meaner People eſcapé
Death, aud Quality Danger of a perpetual Blemiſh themſelves : And as the greateſt Crimes
do not deprive the one of their Nobility, ſo neither can the greateft excufe Obſcurity of Birth in the others, but
every Man muſt of Neceſſity ſubmit to the Condition and State his Father left him in. And theſe Nobles,
told, were allow'd the Privilege to lie with
other Men's Wives when and where they pleas'd ; and if any of them hap:
pen’d to be with another Man's Wife (a Sign of which was a Tørget hung up at the Door) the
go
into his own Houſe.
Mon Olsi o910 m 2
(e). Phil. Baldaus deſcript. Ora Malabar & Coromandel. 6. 26. Ego de Idolat. Indor. Part II. c. 16. Mandello Itiner. L. 2.
c. 10. Add. Abrah. Rogerius de Braminibus, ic. 1; 2. Diodor. Siculus, . 1. c. 74
In Euripides Hippolyt. Coron v. 409, 410. 'tis faid of Adulteries,
This Evil firft from noble Families,
With wide Infection tainted the whole sex. moon; 19
gros
(f) Vid. Dio. Chryſoſtom. Orat. 15. init. p. m. 236. Grotium. I. 2. c. 7. . 8. (2) Horat. L 4. Od. 4. V. 29.

3.
Children
2.

Chap. IV.
71
In determining the Value of Subje&ts.
however it the
Children of the greateſt Men. Our Parents (as Greater than all the Heroes of your Line, on
" Marius (a) faith in Salluft) may leave us all To your own ſingle Merits, you confine
that it is poſſible for them to leave, their Eſtates Your Praiſe ; and to Pofterity will leave
and Pictures, and an happy Memory of them A greater Name than all your Race could give.
felves; but their Vertue they never did nor can
6 leave ;
for that alone is what can neither be
XXVI. But however, it hath ob- But from the
• given nor received. But further, 'tis poſſible tain'd in many States and Common- tuftitution of
that common Perſons may be as well educated as wealths, that Perſons of Merit, who
wealths.
the noble ; and ’ris not unuſual to ſee the Advan, have been placed by the Government in
tages the great and rich have of cultivating and Stations to which particular Privileges, and peculiac
improving their minds, ſcandalouſly miſ-pent in Degrees of Eſteem are allowed,might have the advana
Sloth and Luxury, to ſupply and ſupport
the moſt tage of deriving the ſame down to their Children
extravagant Vices. It may well be preſum’d, as by Birth, and in the nature of an Inheritance (g). For
Plato Tays (b), That N»bility of Birth, if attended 'tis certain, that Nature has made no real Diſtin-
with good Education, may produce eminent Vertues. But aion between the Birth of the Noble and the Ple-
it is alſo evident in fact, what Degeneracy
, noble beian. The Difference between them is grounded
Families ſometimes fink into, and how much the entirely on the Impoſition and Indu'gence of the
Glory of Anceſtors is obſcured by the Blemiſhes of Commonwealth, which allows, that ſuch a par-
Poſterity (c). And 'tis certain, that many that ticular State, to which certain Rights and Degrees
have been obſcurely born, have rais’d themſelves to of Effeem are annexed, ſhall deſcend to the Porte-
the higheſt Honours, purely upon the ſtock of their rity of the Perſon it was firſt confer'd upon (b),
own Vertues. Iſocrates (d) took it for a Topick barely by Birth, without any new Grant. And if
to commend Nobility, that it did not, like other this Impoſition be taken away, all the Diſtinction
Gifts of Fortune, foon decay, or remove into other of Birth ceaſes. And therefore when a Prince
hands, but continued always with the Perſon it removes a Commoner into the Nobility, he cannot
once belonged to ; and therefore was the beſt In- be ſuppoſed to make any Alteration in his Nature
heritance Men could leave to their Children. But or Extraction, or to infuſe new Vigour into his
certainly, except a Man can ſupport his Nobility Mind, but only to place him in a State oppoſite
by his own Merits, or except he enjoys by it ſome to the Commonalty, and to give him Liberty to in-
particular Privileges in the Commonwealth, it can cail that, and the Rights conſequent upon it, up-
be but a very worthleſs inconſiderable thing. And on his children. Which was properly enough
therefore, there is no Necefficy in the nature of ſignified by Amaſis King of Egypt, when to ſhow
the thing, that the Son ſhould ſucceed either to that the Obſcurity of his birth, was no Reaſon
the Places, or Degrees of Eſteem his Father enjoy'd why he ſhould be denied his due Honour as he was
only by his Birth. Eſpecially, ſince in the laft King, he melted a Baſon of Gold into an image,
Reſort, Mankind are deriv'd from the ſame Original and ſet it up to be worſhipped (i). On the other
For as Marius in Salluſt ſays (e), Every Man hand, if any Man be degraded from his Nobility,
partakes of the ſame common Nature, and the either by way of Puniſhment for ſome Fault, or
• Brave only have the beſt Title to Nobility: becauſe he refuſe to conform to the Laws of the
And therefore a Man's own Vertues, not thoſe of Nobility : It is not to be ſuppoſed, that his Nature
his Anceffors, ought to recommend him; accord- or Temper of Mind is therefore altered, or that the
ing to the Character Tibullus gives of Meſſala (f). Blood he derived from his Anceſtors is changed;
neither can it be denied, that he continues to be
Nam Quanquam antique Gentis ſuperant tibi laudes,
of noble Extra&tion ; but he is only deprived of a
Non tua Majorum contenta eft gloria fama,
certain State, and of the Privileges that belong'd
Nec quæris quid quaque Index ſub imagine dicat,
to it in the Commonwealth. And then he is in all
Sed generis priſcos contendis vincere honores,
reſpects no better than a commoner. And in the
Quam tibi Majores, majus decus ipſe futuris.
fame manner it muſt be ſaid, thar neither Legiti-
For You, tho' grac'd by long deſcending Fame, mation nor Reſtitution (1) in Blood make any real
Deſpiſe the dull hereditary Name.
Change in Nature, but only introduce certain mo-
Nor from the Dead will borrow ſleeping Praiſe, ral Effects (k). Machiavel'in his Hiſtory of Flo-
Or rob their Monuments your own to raiſe, rence tells us (l), that after the Tyranny of the
(a) B Jugurth.
(6) Alcibiad. I. p. 440, 441. Ed. Wech. (c) Ariftot. Rhetor. 1. 2. c. 15. Nobility conſiſts in Greatneſs of Extra&ion
Generoſity in not departing from Nature, which all that are Noble cannot pretend to ; for many of them are Perſons of
no worth or value. Add. Stobæus Serm. 84, 85. (d) Encom. Helenæ. (e) B. Jugurth.
(f) Tibull. L. 4. El. 1. v. 28, &c. (8) Lesbona&tes Orat. hortat. The Children of ſuch as have behav’d them-
ſelves with Bravery, in Dangers that threatend the Common-wealth, are look'd upon to be noble. · The Great ought
not to love the firſt Ages of the World, it affords them a melancholy Proſpect to look into 'em, and ſee that we were all
deſcended from one Brother and Siſter. La Bruyère's Manners or Characters of the Age. p 308.
(b) Add. Huartus fcrut. Ing c. 16. p m. 488, &c. (i) Herodot. Euterp p 99. Ed. H. Steph.
(1) v. C. 1 6. t. 8 De jure aureorum annulorum, &o de natalibus reftituendis. (k) 'And in this Senſe we may under-
Aand that of Euripides. Phæniſ. v. 821, 8C.
& γαρ ό μη καλδη, έσ' έφυ καλόν, δο.
For what is once diſhonourable and foul,
Is never otherwiſe, the baſe born Son,
Still on his Mother's black Reproach reflets,
And on his Father's Obloquy and Shame.
(1) Lib. 3,
Duke
72
Of the Power of the Sovereign,
Book VIII.

the Roman
OSOS
Duke of Athen, was expired, the Sovereign Pirth, but are obliged to ſupport themſelves by
Power being lodg’d in the People of Florence, and their own Induſtry and Vertue.
the Nebility excluded by Law from any Share XXVIII. Further co illuſtrare
of the Government, a certain Gentleman call?d what has been ſaid, it may not be The Nature of
Benchi, of the noble Family of the Boundelmonti, for improper to enquire, what particu-
Nobility in the
his Gallantry and good Services in the Wars a far Inſtitutions relating to Nobi ity, earlieſt times.
gainſt the Piſans, was prefer'd to be one of the were obſerv'd amongſt the Romans
People; that is, was made a plebeian. And the Now Romulus therefore, that he might digeſt his
fame Hiſtorian, in another place, ſays (*), That rude diſorder'd Mulcitude, into the proper Form of
the ſame Privilege was granted ſeveral others of the a Civil Body or People, mađe Choice of an hundred
Nobility. And, among the Romanı, Clodius left the Perſons out of the Mals (2) to be his Council; and
Senatorian Order, and was adopted into the Plebeian, theſe he call’d Patres, either to expreſs the Nature
that he might be capable to be made Tribuve of the of their Station, or their Age; the reſt of the Peo.
Commons (1).
ple were ſtill no more than Commons. The
Defa
XXVII. But however it muſt cendents of the firſt were call’d Patricians, by an
Uſually is, and be allowed, that generally all Go- eaſy and plain Denomination, implying, thap
ought to be foun-
ded upon Merit.
vernments, when they beſtow
any hey were of the Family of the Patres ; or as others
ſuch publick Honour as that of Nobility ſuppoſe, That they only could ſhow their Fathers, the
on their Subjects, have regard to Perſons known reſt being only a Company of Fugitives that could
by ſome diſtinguiſhing Excellencies, or extraordid not tell who their Fathers were, nor prove that
nary Merits. And as ſuch Perfons juſtly deſerve they were free Parents
, and therefore were no
a larger Share of Eſteem than others, fo'sis to be better than Filii Terre (a). And this Suppoſition
ſuppoſed that their Vertues are thought more Va they attempt to prove, Becauſe whenever the
luable, when the Rewards of them are allowed to Patricians were to be aſſembled by their Kings,
be derived to thoſe, for whom Nature gives all the Præcones or Criers, call'd every Man by his
Men the ſtrongeft Affection. Eſpecially fince own, and by his Father's Name ; But that the
'tis Natural to believe, ſuch Favours may provoke Plebeians were ſummon'd to the Aſſembly by a
the Emulation of other Subjects, and make them Trumpet or Ox-horn, the publick Servants going
ambitious to gain the like Rewards. Beſides, it is through the City and calling them by that Sound
but natural to expect, that the Children influenced only. Dionyſius Halicarnaſſeus indeed, according
by the Example of their Parents, may be proud to to his uſual Turn, gives a ſofter Interpretation to
rival the Vertues of their Families, and maintain this Cuſtom (b), telling us that the Præcones, call'd
their Title by their Honours, by the ſame Methods the Parricians by Name, by way of Honour ; and
which at firſt gain’d them. Nor is it leſs eaſy to that the Commons were ſummond by the Horns on-
ſuppoſe, that Parents may think their Honour en. ly for Expedition. But 'tis clear that Decius in
gaged to take Care, that the State ſhould not Livy ſeems to contradict him (c). For was it
have Reaſon to complain, that their Children were never heard, ſays he, in what manner theſe Pa.
grown degenerate. Now, when it was allowed tricians were at firſt conſtituted, that they did
therefore, that Nobility ſhould be annexed to the not drop down out of the Clouds, but were
Birth, and run in the Blood, it was to be expected only ſuch Perſons as could (Patrem ciere) name
that perſons would not ſubmit to mix with Fa their Fathers, that is, were no more than Free-
milies of mean Extraction ; leaſt by marrying be. born? I my ſelf can now call a Conſul my Father,
neath themſelves, they might ſeem to debaſe their and my Son, his Grandfather (d). From all
Quality, and cut off thoſe Rights which they would which it appears, that it was Title enough to the
derive to their children. It might ſeem alſo Pru- primitive Nobility of Rome, to be born in lawful
dential, rather to admit the Daughters of Equals Wedlock and of free Parents ; 'For indeed in all
than Inferiours to ſhare in their Dignity; and it new erected Commonwealths, Nobility muſt ne-
might be thought of Moment, that the rich Trades ceſſarily be late, and rais’d by Vercue (e). And
man's Daughter might not be capable of being hence the Patricians urged, that they were the
prefer'd before the poorer of the Nobility. And that only Perſons that were of any Family, or that
Pofterity might not diſpute their Defcent, it would were related by Gentility to one another. And
feem neceſſary to keep an exact account of their therefore Cicero in his Topicks gives this Definition
Families and Pedigrees. When, on the other hand, of the Gentiles or Perſons of Extraction and Qua-
it would be needleſs for Perſons of meaner Rank to licy. They are Perſons that have all the ſame
take the ſame Care to regiſter their Anceſtors, ſince Names, are deſcended from free Parents, none of
they enjoy no ſpecial Privileges upon the Score of their anceſtors were ever Slaves, nor were they
C
6
C
C
C
WO
(*) L. 5. (1) Vid. Livii Epitom. 1. 103. (2) V. T. Liv. 1. 1. c. 8. (a) V. Plutarch. Romulus, p. 24,
D. Et Quaft
. Rom. p. 278. C. D. (6) Rom. Antiq. I. 2. (c) Liv. l. 10. c. 8. in fin.
(d) Juvenal. Sat. 8 v.292, Soc.
Boaſt then
your blood, and your long Lincage ftretch
Et tamen ut longe repetas longeque revolvas
As high as Pome, and its great Founders reach;
Nomen, ab infami gentem deducis Aſylo.
You'li find in theſe Hereditary Tails,
Majorum primus quifquis fuit ille tuorum, among Your Anceſtors the Scum of broken Jails;
Aut Paftor fuit, aut aliud quod dimere nole.
And Romulus, your Honour's ancient Source,
Was a poor Shepherd's Boy, or ſomething worſe.
Mr. Stepney.
(e) Liv. I. 1. C. 34.

themſelves

Chap. IV.
in derermining the Value of Subje&ts.
-73
Europe.
Noble upon his own, or ? Man was allowed to be them, which might
themſelves ever depriv'd of Liberty (a). Though as he was able to produce their Statues or Images,
in Courſe of time, 'cis certain the Plebeians allo or to raiſe himſelf to places of Honour by his own
form'd and aſſerted their Gentes or Families; (b). Vertue (FV) (1). But though many of the Roman
And hence the modern Languages, derived from the Offices were no leſs Neceſſary and Serviceable in
Latin, call Noblemen and Perſons of Quality (Gen- times of War than Peace, as that of Dianter, after
tlemen) Gențiles Homines : But afterwards when of the Horſe, Conful, Prætor ; yet finĉe Peace is as it
Plebeians were allowed to make Inter-marriages were the ordinary State of a Commonwealth, War
with the Nobility, and ſo all the Diſhonour and the extraordinary; and ſince thoſe offices alſo ſeem,
Baleness of their Original, if there were ever any as well by their Nature as Appellation, to bear a
fuch, might ſeem to have been worn out; Then nearer Relation to Peace than War; it muſt be al-
the Patricians found out another Difference to di- lowed that Roman Nobility had rather a Civil Ori-
flinguiſh themſelves from the Commons, by inſti- ginal than a Military. And indeed, it would have
tuting certain Religious Rites particular to each . been a Method altogether Impolitick, to have
Family, and affuming a peculiar ſort of Sanctimony fined Nobility to ſimple Martial Courage, as ſeparated
to themſelves. And upon this account they in and diſtinguiſh'd from the Office and Conduct of a
fiſted, that all the offices in the Commonwealth ought Leader; (ſo as hereby to have conſtituted a par-
to be given entirely to them, becauſe they only ticular Order enjoying large Rights and Immunities,)
had the proper Auſpicia, or Omens of Succefs. But in ſuch a Commonwealth, where War was the
this ridiculous Prerence was ſoon, as it deſerv'd, common Profeſioni, as I may call it, of every Sub-
expoſed and neglected by the Plebeians. Though ject. The Roman Nobility therefore, did not con-
ſome of them too, to ſhow that the Patricians had ftitute any peculiar Rank of Perſons in the Com-
no juſt Grounds to aſſume luch a Prerogative. ſet monwealch; Nor did it afford any other Advan-
up their private Sacra and Family Rites (c). Which tage more conſiderable than this, that the Images
afterwards growing Burtbenfome upon their Heirs, of famous Anceſtors uſually made the way to Honour
were taken off by Goemption, as Cicero informs us more open and eaſie.
(d). 1 1900
110 XXX. From all which it is evi-
Oldes loimiin XXIX. But afterwards, when dent, that the Nature and Genius of what the Natúre
Offices forn in the Senatorian Dignity, and Great modern Nobility in moſt of the King of the Modern
Meature of it Offices of the Commonwealth, which doms of Európe is much different. Mobility in the
greateſt Part of
Afterwards. bu had bee
had been engroſs'd all by the Patri. For with us the Nobility conſtitutes
cians, were left open and free for a particular Ordır, diftinguiſh'd from basov
the Plebeians eſpecially; the Nobility of Rome was the reſt of the Subjects in Dignity, and by extraor-
not meaſur'd ſo much by Date of Families, or Pa- dinary Rights and Privileges
. Beſides that, the
trician Deſcent, as by Number of Images. And from Prince frequently confers the Honour of Nobility
that time the noble Families of Rome were diſtine without giving any publick Employment
guilh'd into Patrician and Plebeien (e). The E- and that too, not ſo often in Conſideration of ci-
queſtrian Order was not properly Noble by Inſtitution vil, as of Military Accompliſhments and Vertues. One
of the Commonwealth. Tacitus ſays, indeed, in Argument of whịch, among others, is, That
his Life of Agricola, That Agricola's Grandfarbers on Noble Families diſtinguiſh themſelves from one ano.
both ſides had been Procurators or Solicitors to the ther, as well as from Commoners, by Devices im-
Emperour, which is the Equeſtrian Nobility: But the preſs’d upon Shields with an Helmet placed above;
right Senſe of that Place is, that as they who were and which are therefore callid Arms. Of the An-
Senatorian Families, meaſured their Nobility by the tiquity of which, Diodorus Siculus may be thought
Great Offices
s they had born, uſually call'd Ma to give an account (g), when he tells us, "That
giftratus
is Curules; ſo the Procuratorſhip to Cæfar was the Arms of the Gauls, were ſhields aboue the
look'd upon by the Knights
to have been a fort of Height of a Man, flouriſhed and embofs'd-with
Nobility, eſpecially becauſe, beſides that of Prefect every ones proper Device, as he pleas'd to have
of the Pretorian Cohorts, or the Emperor's Life- it. Some (he adds) held before them Images of
Guards, there was no higher Office which belong’d Beaſts in Braſs, artfully contriy'd to ſerve both
to that Order, as ſuch. So that in the latter Ages, for Defence and Ornament. On their Heads
the Nobility of Rome did not conſtitute any particu- 'they wore Helmets of Braſs,
they wore Helmets of Braſs, beautified as they
Jar Order, ſeparated from the rest of the People by thought with fome Mark upon the Creſt of
, but every
his Anceſtors Merits, either. Their uſual Ornament was the Horns, or the
alles langout Lasio
Shovni
(a) Boetius in Topicis. The Gentiles are ſuch as bear all the ſame Name, as the Brutus's, the Scipio's ; but if they are
Slaves they are not Gentiles. And though perhaps the Children and Deſcendents of Freed Men may have the ſame Name,
ſuch (b. 1. c. 40, .
yet they are not therefore in the Number of the Gentiles, becauſe Gentility muft be derived down from a long Race of
(d) Cic. pro Murana, c. 12. Add. Godof. in Cic. Epift. Fam. L. 7. Ep. 29. (e) Lio. 1. 10. c. 7. The Plebeians can
Lumber their Triumphs; and it doth not now repent them of their Nobility, 1.6.c. 37. towards the End. From that time
the Commons will enjoy every thing the Patricians value themſelves upon, Authority and Honour, Glory of War, Deſa
cent, Nobility. (f) To this Purpofe is that of Claudian, De Conj. Prob. & Olyb. Paneg. v. 13, &oco
Quemcunque requires
Through all the Line, cach Worthy you can name,
Hac de ftirpe virum, certum eft de Conſule nafci. His noble Birth doth from a Conſul cliam,
Per faſces numerantur avi, ſemperq; renata 799 Th’Imperial Faſces each Defcendent gracë,
Nobilitate vigent.
And add repeated Honours to the Race.
(1) V. Juvenal. Sat, S. v. 8. 19. (5) L. 5. c. 30.
* K
Head
with it,
6
20110 1125 toglo vicini
74
Of the Power of the Sovereign,
Book VIII.
'C
enjoy
Head of ſome Bird or Beaſt form'd upon them, exacted from thoſe of inferiour Rank, purely be-
or fix'd to them (t). For what Reaſons this cauſe they were obliged to attend the Wars, and
Part of the World ſeems to pay, ſo much Honour aſſiſt the Scate in Military Service. The Original of
only to the Vertues Military, when the Chineſe, which feudal Right ſeems to be hinted in Lampridius's
on the other hand, prefer the Men of Learning to Life of Alexander Severus, c. 58. Where he tells
thoſe of the Sword, will not be difficult to reſolve.us, “That the Lands which the Emperour took
For it may be conlider'd, that tho' the Advantages • from the Enemy were given to the Officers and
which the Commonwealth receives from Men of Ci. · Soldiers that liv'd upon the Borders, to
vil Life and Profeſſion, are no way inferior to thoſe them for ever, provided they would oblige their
it gains by Perſons Military: (For certainly, to
• Heirs to enter into Military Service, and never
form good Laws; To adminiſter Juſtice impartial to live a private Life; the Emperor fuppoſing,
ly; To increaſe the Riches of the State by Im that they would be the better Soldiers when
provement of Trade and Commerce; To be able, they were alſo to defend their own Eſtates.
by the Force of Eloquence, to compofe popular And hence it is unuſual for the Nobility to turn to
Diſcontents, and to incline the Minds of the Trade or Merchandize, noe becauſe ſuch Profesſions
People what way ſoever the Poſture of Affairs are really Mean or Diſhonourable (b); but becaufe
requires ; To diſcover the Counſels and Deſigns they would divert them from their Military way
of Foreign Enemies, and to prevent or fruſtrate of Life, and force them upon the Diſhonour of en-
them; are Excellences of the Higheſt Nature, and joying Fiefs and Privileges gratis, without any Re-
that deſerve the greateſt Honours ;) yet Civil Per- turns of Service. And therefore where ever the
fons have not always that Eſteem and Value paid Nobility are allowed, without Diſparagement to
them which is their due, and eſpecially among their Honour, to apply themſelves to Trade and
People of ſcanty Knowledge and Obſervation, both Merchandize, it may fafely be inferr'd, that they
becauſe the natural and acquired Perfections had no Military Original. The Egyptians, Scythians,
which are neceſſary to the Attainment of Civil Perſians, Lydians, and almoft all the old barbaroms
Accompliſhments, lié generally out of common Nations, according to Herodotus's Account of them
View, and are not well underſtood by vulgar (c), look'd upon all Perſons, that apply'd them-
Apprehenſions; and becaufe they ſeem to diſco felves to Trades and Handicraft Employment, to be
ver themſelves in a ſedate filent way, without the meaneſt and loweſt ſort of Subjects; And their
Noiſe, or Violence, or Danger. But now the Children they always thought mean and baſe. They
Vertues and Qualities Military are perfe&ly of a- only were allow'd to be of Quality, that were a-
nother Nature. And therefore, though Courage bove all Mechanical Employments; and eſpecially,
and Reſolution are no leſs neceſſary in Civil Admi- - that made War their Buſineſs and Profeſſion (d). And
wiftration and Condu&t than Military; Yer People of at Rome there was a Law preferr'd by Q. Claudius
Martial Temper and Spirit, that had rather pur- Tribune of the Commons; That no Senator, or
chaſe a Subliftence with their blood, than by Senator's Father, ſhould have any Ship of greater
their Sweat and Induſtry, think noching more Glo
. Burthen than would contain the Quantity of
rious and Noble, than to be prepar'd againft all the three hundred Amphore. Such a ship being
Terrors of War, than to face and defie Death and ſuppos'd to be large enough to carry their Corn
Danger, and to hazard, what is of all things moſt out of the Field ; and all Trade look'd upon to be
Valuable, Life it felf; that other Men may live beneath Perſons of that Dignity (e).
in greater Eaſe and Security (a). For theſe Reaſons XXXI. But notwithſtanding, there Nobility of
in many Kingdoms of Europe, the Nobility hold are and have been fome States and Blood little
their Eſtates by a feudal Right, and have Immunities Commonwealths, where the Honours al regarded in
fome Places.
from ſeveral Duties ſettled upon them which are lowed to Birth (f), have been and

(+) Add. Hobbes Leviathan, c. 10. in fin.
(a) Vid. Arift. Probl. f. 27. 9. s. “ The Nobility expofe
their lives for the Preſervation of the State, and their Sovereigns Glory: The Magiftrate caſes the Prince of part of
the Care in judging the People; on both ſides ſublime Functions, and of great Advantage : and Men are ſcarce capable
" of performing greater things, Yet I know not the Reaſon, why the Sword and the Gown, are always quarrelling
" with each other; and have almoft exhauſted their whole Stock of Invectives on both ſides. La Bruyeres Manners or
Characters of the Age. pag. 395. Edit. Bruß. 1697. (6) Conf. Bodinus de Repub. 1. 3. c. 8. p. m. 546. Some in-
deed fetch the Reaſon of this from Ecclefiafticus XXXVIII 25, &c. and becauſe as Cicero láith, Ofic. 1. 1.6. 42. They
inake no Profit unleſs they reſolve not to ſpare for Lies, (c) L. 2. p. 98. Ed. H. Steph.
(d) Add. L. 4. t. 63. 1. 3. de Commerc. Eo Mercator. & L. 12. t. 1. 1. 6. C. de dignitatibus. Ariſtot. Polit. 1. 3. c. 3. Cic.
Ofic. 1. d. 1. The Gains that all Mercenaries make, who fell their Labour and not their Art, are baſe and ſordid;
and the Wages they receive is the fame thing as an Earneſt of their Slavery. (e) Liv. I. 21 C 63. and Juvenal calls
ehe Merchant, Vilis facci mercator olentis, Sat. 14,. 269, a ſordid Wretch that trades for naſty Wares.
() Juvenal in the following Verſes, admirably well expoſes the falſe Notions of the Roman Nobility, and the ridicu.
lous Pride of the Gentry, that have no perſonal Merit of their own, but owe every thing to their Anceſtorse
1950 H0 Long Galleries of Anceſtors, and all
Toga licet veteres exornent undique cera 2. Thoſe Follies that adorn a Country-Hall,
Atria, Nobilitas. Sola eft atque unica virtur. jChallenge no Worder or Efteem from me :
Paulus, vel Coſſus, vel Druſus, moribus.efto.
Vertue alone is true Nobility.
do po prost bos yrirlo
Live therefore well: To Men and Gods appear
Such as good Paulus, Coffus, Drufus, were.
Prima mihi debes animi bona. Sanétus haberi
Convince the World that you're devout and true,
Juftitiæque tenax, fa&tis, di&tiſque mereris ?
Be juſt in all you fay, and all you do,
Agnoſco proceremo
What ever be your Birth, you're ſure to be
A Peer of the firſt Magnitude to me.-
Tum licet a Pico numeres genus, altaque fi teis Then trace your Birth from Picus, if you pleaſe ;
Nomina dele&tant, omnem Titanida pugnam
If he's too modern, and your Pride aſpire
Inter Majores, ipſumque Promethea poras.
To ſeek the Author of your Being highes,
are

Chap. IV.
75
In determining the Value of subje&ts.
6
,
(b) The Wallage like this in
are very inconſiderable ; every Man being left to ſhould much rather be rais’d and eſtabliſh'd upon
raiſe and ſupport his Nobility by his Merits to the Vertue (e). It was a ſevere, but a very proper An.
State.
So the Egyptians, we are told in their ſwer which Antigonus gave to the Son of a brave
* Funeral Orations, never uſed to make mention, old Officer, ambitious of Honours he had not deſer-
as the Greeks did, of the Family of the Party De ved, 'Tis your own Vertue, and not the Blood you derive
cealed; becauſe they thought every Man equal- from your Father, that muſt recommend you to me (f).
ly Noble : But his Education they were always For as Plata ſaith (8), “Every Man, has had a
« ſure to ſpeak of, and Manner of Life, his Piecy numerous Race of Anceſtors before him, ſome of
and Devotion, his Juſtice, Continence, and which were perhaps rich Men, and ſome poor,
what other Vertues he was known to have pra ſome may have been Princes and ſome Slaves,
• Aiſed (a). So the Turks never ſet a higher Value é fome barbarous and ſome civiliz'd (b). And it is
upon themſelves, than what may ſeem due to
not unlikely, as another ſuſpects (i), chat the Poets
their own Merit,: To the Ottoman Family only deriv'd their Heroes from the Gods, only to cover
they allow Nobility of Blood (b). Neither do the ſome Misfortunes or Defects in Birth or Quality,
Chineſe expreſs any Honour for Antiquity of Deſcent, which might perhaps have been found out, upon
the pooreſt and meanet Perſon in the Empire is capa. a ftri& enquiry into their Deſcent. For ’tis certain,
ble by his Learning only of preferring himſelf to if we were to unravel any Man's Nobility, we ſhould at
the higheſt Places of Honour (c): And in their laſt come to something Mean and Little (k): And
Marriages, neither the Emperour himſelf, nor any therefore Lycurgus prov'd by the fam'd Example of
of his children, make Choice of their wives with the two Dogs, that it is not Nature but Education
regard to Extraction, but only to the Beauty and that forms Men to Vertue (1). And 'tis eaſy for a
Agreeableneſs of the Woman (d). Such Cuſtoms Man of the lateſt Quality to give them of Ancient
perhaps, may be contrary to thoſe which are re- but corrupt and degenerate Nobility, the ſame An-
ceiva in this part of the World, but notwithſtaå. fwer that Iphicrates did to Hermodius, one of the
ding the Wifer part of Mankind ever have, and old Race of the Harmodii, when he obje&ed to him
always muſt allow it to be true, That Nobility the Meanneſs of his Birth, I am the firft of my Family,
ought not to depend only upon the Blood, but and you are the laſt of Tours (m). Nor are they wan-
Chuſe
any
Titan who the Gods withſtood
To be the Founder of your ancient Blood,
Prometheus, and that Race before the Flood.
De quocumque voles proavum tibi ſumito libro.
On
any
other
Quod ſo precipitem rapit Ambitio, atque Libido, From Heralds, or in Poets, to your mind.
Si frangis virgas Sociorum in ſanguine, fi te
But ſhould you prove Ambitious, Luftful, Vain,
Dele&tant hebetes lalo Li&tore ſecures :
Or could you ſee with Pleaſure and Diſdain,
Incipit iftorum contra te ftare parentum
Rods broke on our Aſſociates bleeding Backs,
Nobilitas, claram facem præferre pudendis.
Your Father's Glory will your
And Heads-Men lab'ring till they blunt the Ax :
And to a clearer Light expoſe your Shame.
uc
Mr. Stepney.
(a) Diod. Sicul. I. 1. c. 92. Tullus Hoftilius in Dionys. Halicarn. 1. 3. p. 148. Ed. Lips. ſays, I cannot think that hu.
man Nobility can conſiſt in any thing but Vertue. (6) Auger. Bushequius, Ep. 1. And what he faith of the Janiza-
ries in the ſame place. (c) Martin. Præf. Hift. Sin. (d) Neuhof. in legat. p. 280. (e) Senec. Hercul. Fur.
verf. 339, 340. Qui genus ja&tat fuum, aliena laudat. Boetius de Confolat. Philofoph. L. 3. Metr. 8.
Quid genus & proavos ftrepitis ?
Fondly,our high Deſcent we boaſt :
Si primordia veftra,
If whence at firſt our Breath we drew,
Autoreinque Deum ſpeites,
The common Springs of Life we view;
Nullus degener extat ;
The airy Notion ſoon is loſt.
Ni vitiis pejora fouens,
Th' Almighty made us equal all,
Proprium deſerat ortum.
But he that flaviſhly complies
To do the Drudgery of Vice,
Diſowns his high Original.
Horace, Sat. 6. 1. 1. v. 7. 8. to Mæcenas.
Referre neges quali fit quiſque parente
You own 'tis nothing whence a Man began
Natus dum ingenuus.
When every A&ion proves the Gentleman.
Claudian, 1 2. v. 133. de Laudib. Stilicon.
From every Land the Braveſt you ſelect,
Lectos ex omnibus oris WT 7.1 And with their Vertues pleas'd, their Blood negleét.
Evebis; ego meritum, nunquam cunabula queris Nor for Deſcent enquire, our Noble Lines;
Et qualis, non unde fatus.
Careleſs of Birth, where Worth ſuperiour ſhines.
Add. Seneca de Beneficiis, l. 3. c.:28. Ego Epift. 44. and thus Canulejus in Livy, l. 4. c. 3. The Growth of the Roman Ema
was owing to this, That no Family was thought mean or contemptible which was eminent for its Vertues. Herodian,
1. 5. c. I. The Gifts of Fortune are frequently beltow'd upon ſuch as do not deſerve them ; but the Vertues of the Mind
are every Mans own proper Glory. And greatneſs of Birth, Riches, and the like, though we think them happy that
enjoy them, yet can add no real Praiſe to a Man, becauſe they are derived from others
. (f) Plutarch. de vitios. Pus
dore, p. 534. & in Apophth p. 187. B. (8. C. Wech
have been any Race of Men, in which there have not been almoſt innumerable Inſtances of ſome of the Progeny that have
been Slayes, of others of them that have been Tyrants and Princes, Captives and Criminals, Tradeſmen and Mechanicks ;
and in ſhort, fome of all States, Profe lions, and Conditions, that have been in the World, and that have, in their Turns
gone through all the Buſineſs and Employments, all the Fortunes and Calamities of human Life.
(i) Dio. Chrysol.
ibid. (k) M.Seneca, L. 1. Controv. 6. (1) Plut. Apoph. Lacon. p. 225. (m) Plut. Apoph. Add Philo
Sudæus de Nobilitate. Stobæus, Serm. 84, 85, 86, 87., Tho. Browne de Religione Med. Part II. c. 1. When I ſpeak of the
Vulgar, I do not underſtand the Common People only, and the loweſt Dregs of the Rabble. For even among thoſe of
she higher Ranks, there is a fort of vulgar inferiour Multitude, you may ſafely ſay, made entirely of the ſame Materials
with the meaneſt of the Populace. For my part, I make no Scruple of ranking them with the Mechanicks, however their
Fortunes may conceal the Defeets of their Underſtanding, and their Riches ſeem to excuſe their want of Senfe.
ting
* K 2
76
Of the Power of the Sovereign, &c. Book VIII

C
C
; ,
ting thoſe that argue, Thac it is unjuſt to exempt have the ſame Power that he has to appoint or re-
any Man, or to grant him Immunity from any par move his officers and Magiſtrates. Fabius the Cun.
ticulat Duty and Burden in the Commonwealth, to Etator very well expreſs’d, not only the Greatnets
to Preferments and Offices barely himſelf obliged to pay to the Power of the com
upon the Score of Birtb, which, 'tis certain, can monwealth, by that Calmneſs of Temper which
of it ſelf confer no extraordinary Vertues, and he Mhow'd when the Maſter of the Horſe was made
which it is in no Man's Power to procure for him- equal with him while he continued Dictator (d).
ſelf (a); ſince others may be as well, perhaps Solon us’d to ſay, ' That Courtiers and the Favourites
better, acquainted with the Arts neceſſary in • of Princes were like Counters uſed in caſting up
the Adminiſtration and Management of thoſe Offices Sums; for as Counters ſometimes ſignifie a great-
than he is, and particularly if he be a Perfon er Number, and ſometimes a leſs: So theſe
given to the Enjoyments of Eaſe and Plea . Creatures are abſolutely at the Mercy of their
ſure (b). In ſhort, that it may ſeem to be a Princes, whoſe Pleaſure makes them great and
very great Misfortune in a Commonwealth, when noble or mean and deſpicable (e). But upon the
the Civil Sovereign is fo tied up and confin'd ſecond Suppoſition, when the subject enjoys his
to a particular Order of Men, in diſpoſing Places Dignity and the Marks and Badges of Honour in the
of publick Truſt, that he cannot have the Aſiſtance Nature of Property, the Government cannot in Ju-
of his other Subjects, though in Buſineſs they are ftice take them from him, unleſs by way of Pu.
very well qualified for ; and eſpecially, if he has niſhment. And in this caſe, as Ariſtotle in Alian
not Power to ele&t any Perſon of worth into ſuch faid (f), There is a wide difference between not ob-
an Order. For when it becomes neceſſary for taining Honour, and between being turn'd out of it af-
Princes to ſupport and favour the Nobility only, ter a Man bas obtain'd it : For it is no great Pain to
that by their Aſliſtance they may more eaſily re a Man not to gain what he purſues; but to be diſpoflefsed
ftrain and keep in Awe the reſt of their Subjects, of what he has gain’d muſt be a ſenſible Affliction. But
'cis certain that their power grows feeble, and notwithſtanding, the Immunities and Privileges
that the Reins of Government are ready to drop annex'd to Honour may either be laid under suf-
out of their hands ; ſince they are forced to enter penſion, or be entirely taken away upon ſome
into a kind of Faction with part of their Subjects, preſſing Emergency in the Commonwealth; Al-
to diſtruſt the Force of open Authority, and take lowance being made for them, as it beſt may in
Refuge in the artful Deſigns of ſecret Policy. I ſome other Method. For ſince the Extremities
ſhall add only what my Ld. Bacon ſays in his Ad- and Neceſſities of the State muſt always be ſuppoſed
vancement of Learning (c), That a Kingdom that to be Exceptions to all ſuch Privileges ; it would
would be great, muſt not encreaſe its Nobility to be the moſt extravagant Abſurdity imaginable
, to
too great a Number.
make them ſacred and inviolable beyond the neceſ-
XXXII. It may be proper now, Sary Defence and Preſervation of the Commonwealth.
How far Civil in the laſt Place to enquire, whether From what hath been ſaid, it may alſo be dif-
Civil Dignity and Marks of Honour cover'd, how far any Commonwealth may with
pend upon the
depend upon the Sovereign Power as Juſtice enac, That Children of Traytors ſhall be ex-
wealth. to their Durations alſo and Continu- cluded from all Honours in the Commonwealth ? So it
ance, as well as in their Original? was decreed by the State of Athens in the Caſe of
And here it muſt be enquired, whether the Marks Antipho, as appears in his Life (1): And at Rome,
of Honour, and the Privileges and Rights annex’d to Sylla made a Law, That the Children of all Perſons
it, are confin'd to any particular Office and Employ- Profcribed ſhould not appear Candidates
s for any
ment in the Commonwealth which the Sovereign has Honour. And the anſwer to it in ſhort is, that the
the diſpoſal of; or, whether they are ſettled upon State may juſly enough deny them all publick
the Subject in the Nature of Property ? Upon the Dignities and Employments, but can not rightly de.
firſt Suppoſition, it is evident, the Sovereign muſt prive them of ſimple Esteem,
Common-
(a) Euripides Ele&tra, v. 551. Πολλοί γας όντες δ' ωείς ίσί κανοί.
The Noble often are Degenerate.
(6) Such as thoſe Ariſtophanes mentions, Ran. A&. 3. Sc. 1. v 2. That were good for nothing but to Eat and Drink ; or
thoſe Juvenal ſpeaks of, Sat. XI. v. II.
Quibus in ſolo vivendi caufa palato eft.
Such whoſe ſole Bliſs is Eating, who can give.
But that one brutal Reaſon why they live,
Mr. Congreve.
(O) L. 8. c. 3. n. 3. Vid. Eſſays, c. 14. by the ſame Author.
EM
(d) Vid. Liv. I. 22. c. 15. 26. (e) Vid. Polyb. 1. 5. c. 26. (f) Var, Hift. I. 14. C. 1,
(1) Vid. Plutarch in Ejus Vit, ix. Orat. 10.6. I.
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Chap. V.
77
Of the Power of the Sovereign,
abour
IT
o
What Power the Prince
to remit any part of his
CA A P. V.
of the Power of the Sovereign, both over the Publick Patrimony, and the Eſtates of
Private Subjects.
o underſtand diſtinctly Princes hath been done different ways. Pharao
what Power the Sove was to have the fifth part of the Increaſe of all the
bath over the Goods of reign has over the Eſtate and Land of Egypt to himſelf; the other four were to
the Commonwealth,
where the Kingdom is
Fortunes of the Subject, it continue to Husbandmen, only the Lands that
bis Patrimony.
will be neceffary to obſerve, belong'd to the Prieſts were not fold, and they had
that this power is derived a third part of the Land by the Donation of lſis
either from the Nature of Sovereignty in it felf; or (b). Strabo ſays, That in India the Land was the
elſe from the particular manner of the Acquiſition Prince's, and Husbandmen were hired to cultivate
of it. For it is manifeft, that there is a great diffe. it for the fourth part of the Produce (c). And
rence between a Prince (1), that has rais'd his this is the Cuſtom now in the Dominions of the
own Kingdom, collected, as it were, his own Great Mogul; where the Emperour is alſo Heir to
Subje&s, and who was at firſt the Univerſal, Ab all his Miniſters and Servants, and to all
ſolute Proprietor of every thing in the Common- Merchants. In the Kingdom of Congo (2) no
wealch; and another freely call'd to Govern- Subject has any Property which he can tranſmit
ment, and inveſted with Sovereign Power, by to his Heirs, but all falls to the Prince; and he
Perlons already in Poffeffion of their diſtinct adminiſters and diſpoſes the Goods to what Uſes
Proprieties. The firſt, it is clear, hath not only he thinks fit. In ſuch Countries therefore, all the
all chat Power over the Bona Reipub. the Goods Right private Subjects have to their Goods and
contain’d in the Commonwealth, which flows Eſtates, depends originally upon the Favour of
from the Nature of Sovereign Power ir ſelf, but the Prince, who hach an abſolute power to diſ-
alſo the ſame which every Maſter of a Family has poſe of all they have, ſo far as the compa&ts and
to his Fſtaté, except he is pleas’d voluntarily Irrevocable Grants he hath made will permit. Buc
therefore keeps his Propriety entire, the Subjects thoſe Countries
, and particularly of the Empire of
can have no better Right to what they poſſeſs, the Great Mogul (d), that That Abſolute Propriety
than the Roman Slaves had to what they got by of the Prince has been the Reaſon why that and
their own labour ; that is, a precarious Poſſeſſion other Kingdoms of the Eaft, otherwiſe very hap. .
revocable at Pleaſure, whenever the Prince thinks py in the Advantages Nature has given them,
fit. But however, as long as the Subjects are in ſhould lie wild, deſolace and barbarous, and
Poſſeſſion of fuch Goods or Eſtates, they may juft- either be always poor and decaying, or at leaſt
ly ſupply themſelves with Suſtenance and other never arrive at the Splendor and Greatneſs of the
Neceſſaries from them by way of Wages for the European Nations, where the Princes are generally
trouble of improving and preſerving them. And more tender of invading the Properties of their
therefore what Hobbes fally applies to all manner Subjects, and where Subjects have the Liberty to
of subje&s (a) holds true only with regard to defend their own, even againſt their Princes (e).
theſe, viz." That the Propriety, which a Subject
II. But there are, on the other The Subjeets clo
** hach to his Goods conſiſts in a Right to exclude hand, Commonwealths, where the not edery where
in all other Subjects the uſe of them, but not to Original Right the Subje&ts have to move the Pro-
exclude the Sovereign; as in a Family, the Pa- their Properties does no way depend priety of their
ther grants ſome of his Sons a Propriety to cer upon the Favour or Indulgence of the Eſtates to the
errain Goods, diſtinct from the Proprieties of other Civil Government. And this ſeems
B. wealth.
Sons of the fame Family, but not from that of to have happen'd theſe two ways;
the Father himſelf; ſo that every Son in the either firſt, when a People under the Conduct of a
Family enjoys a Propriety barely to ſo much, and Prince they ſet over themſelves remove in Search of
for ſo long as the Father pleaſeth. But if the new Seats: Or Secondly, when a Number of Mafters
Prince I am ſpeaking of recedes from any part of of Families already poſſeſsid of their feveral Proper -
his Right, the Subjects will have juſt as much ties freely erect themſelves into a Commonwealih, or
Right to their Goods, as the Conceſſions of their voluntarily join themſelves to ſome Commonwealth
Prince make over to them. And this, by different already eſtabliſhed, and ſubmit themſelves and
.
Commons
(1) See above, in B. 7. c. 6. f. 16. (a) De Cive, c. 6. f. 15, @ac. 12. f.
7 (6) Gen. XLVII. v. 23, 24, 26. Vid.
Diod. Sicul. l. 1. c. 21. 72. Et Grot. Com. in Gen. XLVII, 26. (c) Strabo, 1. 15. p 484 Ed. Genev. Caſaub. Diod. Sicul.
1. 2. c. 40. Vid. Garcilafs de la Vega, Com. Roy. 1. 5.c. 5. (2) Vid. Eduard Dopex.
(d) Bernier de Nuperis Motibus in Imp. Magn. Mog:
(e) Garcilaſf. de la Vega, Com Roy. 1. 5. c. 2. relates, That it was the Command of the Inca's, That none of their Sub-
je&ts ſhould be obliged to plow the Emperour's Lands, before they had taken care of their own í becauſe it was not likely
any Man would be fo Diligent as he ought, in his Prince's Buſineſs, that had not before well ſettled his own. The Poor,
the ſame Hiftorian ſays, were always look'd upon to be an uſeleſs Multitude among them, both in War and Peace.
their
78
of the Power of the Sovereign,
Book VIII.
make Laws to direct
C
6
6
that lives ſecure in Society with Xenoph. Memorab. 1. 2. p.42529) Vid. Genef. IV. 4. XIII. 5, &c.
therefore it was a Miſtake in the Emperour Frederick to think that is reg. XVI, 24
their Fortunes to Civil Government. In the former the others can call the whole Strength of the
Caſe, the Method uſually obſerv'd is this, the Common-wealth to aſſiſt them, either againſt the
whole Body of the People under the Conduct of Encroachments of Foreigners or the Injuries of
their Leader, poſſeſs themſelves of ſome new their Fellow Subjects (d).
Country, which perhaps in its large extent is bound III, In Common-wealths
ed by Limits which Nature her ſelf, or the Arbi- therefore where the Properties The Sovereign may
trary Conftitutions of the World have given it ; of the Subjects do not originally
but which is afterwards canton'd into Parts, and depend upon the Government, use of their Goode
the in the
diſtributed to particular Perſons either by Lot or the Civil Sovereign hath no fur- and Eſtates.
at the Diſcretion of the Commander, or poſſibly ther power over them than what
(tho' very ſeldom), by every Man's own Choice immediately flows from the nature of the Supream
(a). Now in this caſe, tho' every particular Power in it ſelf, unleſs the Subjects freely conlenc
Man's Property ſeems rather to be grounded upon to enlarge it. Every thing lays Seneca (e), by a
the Leader's Appointment than his own Seiſure ; Civil right may be ſaid to belong to the Prince,
yet it does not follow, that therefore all he has is
while
yet the particular parts of that wide Pof-
owing purely to the Favour of his Commander. feffion are divided among different Proprietors,
For every Man that voluntarily went in the Ex ' and Every Thing belongs to a diſtinct Owner,
pedition has certainly an abſolute Right to ſhare in . And therefore when we preſent our Prince
the Acquiſitions of it, and to be conſider'd in the with our Houſes, our Slaves or our Money, we
Diviſion of the Land (b). But much leſs do the do not think we give him back his own. The
Properties of the private Subject own any original Prince hath indeed a power over all we have,
Dependency upon the Favour and Indulgence of the
• but the Propriety is in
in the private Subject. 'Tis
Civil Sovereign, where (as was ſuppoſed in the common to ſay, that ſuch and ſuch Territories
ſecond Cafe) a Number of Maſters of Families belong to the Athenians or Campanians.; But the
poſſeſſed of their Liberties and diſtinct Properties, People of thoſe Countries diſtinguiſh and divide
freely ſubmit to Civil Government. For í také them further between one another by Private
it to be clear, notwithſtanding all that Hobbes has Boundaries; The whole Extent of a Country
ſaid to the contrary (1), that perſons that live may be under Such or Such a Common-wealth,
without Civil Government in a Liberty of Nature but there are diſtinct Proprietors, who have their
may nevertheleſs enjoy their ſeveral Properties ſeparate Portions of it. And therefore We may
(2). For admitting that Nature gave every Man a give away our Eſtates to the Publick, tho' in
Right to every thing, yet this is no Argument ſome ſenſe they may be ſaid to have belong'd
why every Man might not by Intervention of com to it before ; becauſe the Title we have to them
pact have his Separate Property divided to him. is of a very different Nature, from that which
And tho'a Compact of two or more about things the Publick can be ſaid to have. For the Prince
left in a Community of Nature, does not in the poſſeſſes all by his Sovereign Command and Author
leaſt prejudice other Men, but leaves them to rity, the Private Subjects by their Propriety (f).
their full Primitive Right; Yer if all Men conſent And therefore the Emperour Adrian, when the
by common Compact, either Expreſs or Tacit, to People petition’d him to give a Slave Liberty that
make a Diviſion of things, without Diſpute this had pleas’d them in the Chariot-race, reprimanded
muſt introduce a true and real Propriety. And them for it, and told them, that it neither became
therefore Hobbes's (3). Aſſertion is falſe, that him to free another Man's Servant, nor them to offer
every Father of a Family that is under no Sub- ſuch an injury to his Maſter (8) And the Emperour
jedion either to another Father, or to any come Claudius made an Edic, to ſuppreſs a commou
mon Mafter has a common Right to every thing practice of begging other Men's Eſtates of the
(c). Tho' it muſt indeed be allowed, that they Emperour ; It being an Opinion current at that
that live under Civil Government have their Pro- time that it was in his power to give them away;
perties better ſecured and defended than they that And he reſtor'd an Eſtate he had obtain'd that
live in a Liberty of Nature; for Theſe muſt ſupport way himſelf, when he was a private Subject (b).
themſelves by their own ſingle Force alone, while But now this Power we are here ſpeaking of may,
(a ) See Cornel. Nepos in Miltiades, c. 2.
(6) Vid. Genef XIV. 14, 21, 22, 23, 24. Vid. Supr. 1. 4. c. 6. f. 3, 4 (1) Ubi Supra.
(2) See above, in B. 3. c. 4. 1. 2, 3. (3) De Cive, c 6.1. 15.
di Vid
. Genef
. xxxiv.com hd. ,
a moderate Fortune, than he that leads a lonely melancholy Life, full of Fears and
Dangers in the Enjoyment of the Riches of a whole Commonwealth. And in this Senſe we may admit of what Cicero
faith, Orat. pro Cecinna, c. 25. that if ivę take away, Civil Right and Government, there,
tween onc Man's Property and another's ; and in his 2d Book of offices, c. 21. more clearly, Their Chief Reafon why
Commonwealths were inſtituted, was that every Man might enjoy what was his own. For tho' Men were by Nature
directed to Society, yet they found it neceſſary to ere&t Cities for the Security of their Properties.
(e) Senec. de Beneficiis, 1. 7. c. 4, 5. (f. GrotComin . ,
(8) Zonaras, Tom. 2. (b) And
a
Quicquid habet locuples, quicquid cuftodit avarus,
All that the Rich and Covetous receive,
Jure quidem noftrum, populo concedimus ufum.
Is mine by Right, to them the Ufe I give;
Rege figuratam Regis patet effe monetam ;
The Royal Stamp, who claims the Coin, declares,
Cæfaris Ego domino fub Cafare fulget imago.
And Cæjar's Money, Cafar's Image bears.
Gurth. Ligurinus, 73.0, 480,&c.
I

а a
2
Chap. V.
79
Over the Eſtates of the subjects.

ܪ
I think, be properly enough reduc'd to three carrying the Publick Money abroad into Foreign
Heads; Firſt, to the Right of making Laws to Countries ; whither the Humour or Vanity of Lux-
direa ſuch a Proportion in the Uſe and Conſump- ury and Waft generally runs (b). Beſides another
tion of certain Goods and Commodities, as the inconvenience to be prevented by ſuch
Laws is
Seace of the Common-wealth requires. Secondly, this, that they that ſquander away their Fortunes
to the Right of levying Taxes
. Thirdly, to the extravagantly, make themſelves incapable of ſerv-
Exerciſe of the Tranſcendent al Propriety (a). To the ing the Publick. For a Man, for Inſtance, that
firit Head we may reduce all Sumptuary Laws (1), ſpends but two Parts in Five of what he hath
or ſuch as preſcribe bounds to Extravagant un- Yearly coming in, and pays two more in Taxa
neceſſary. Expences, which would in courſe of es to the State, feels no Inconvenience by it, and
time be the ruin of private Families, and in con lays upto encreaſe his Stock one Fifth Part more;
fequence weaken the Common-wealth it ſelf, by whereas one that ſpends every Year all he receives,
10
be obſervd, that in theſe two laft Verſes, there is an Allufion to what our Saviour fand to the Dilo
ciples of the Phariſees and Herodians, after he had ask'd 'em whole Image and Infcription, the piece of Money
they brought him as Tribute bore? They anſwerd Ceſar's ; upon which he reply'd ; render unto Cefar the Things that
are Caſarºs, and unto God the Things that are Gods. Matt. 22. . 19, &c. But this does not prove, that by Right all the
Subje&'s Goods belong to their Sovereign, as ſeveral of the Reformd in France, have improperly maintain'd, who were in
an Error, with regard to the Rights and Authority of the Prince. (Nouvel. de la Republ. des Lettres, Auril. 1703. P: 415.)
Our Saviour only means, that ſince the Jesus made uſe of the Emperour's Coin, it was a sign of his being Maſter of their
Country, and of their tacit acknowledging him for their lawful Sovereign; ſo that they ought to obey him in every thing
that was not contrary to the divine Laws. See the Interpreters on this Pallage. (a) Dominium Eminens.
(1)
• The other almoſt incurable Evil in a State ( ſays the Sage Mentor to his Pupil Telemachus,) is Luxury. As too great
• Authority poiſons Kings, ſo does Luxury a whole Nation. 'Tis pretended that Luxury ſerves to maintain the Poor at
the Expence of the Rich, as if the Poor could not get their Livelihood, by encreaſing the Fruits of the Earth, with-
• out effeminating the Rich by the Niceties of Voluptuouſneſs. When once a Nation is accuſtom'd to look upon Super-
Auities to be Neceſſaries of Life, they willevery Day be inventing new ones. They can no longer diſpenſe with the want
of things, which were utterly unknown thirty Years ago. This Luxury is calťd a nice Taite, and the Perfection of
· Arts ; this Politeneſs of a Nation, this Vice that draws fo many after it, is commended as a Vertue, and ſpreads its
Infe&tion to very Dregs of the People. The King's Relations imitate his Magnificence and Grandeur, the
• Nobility that of his Relations, and thc Gentry or middle ſort of people equal the Nobility, for who is he that
docs himſelf Juſtice ? The common People will paſs for Gentry, every Body lives beyond what he has ; ſome out of
• Pride and oftentation to ſhew their Riches, and others out of an ill Shame, and to conceal their Poverty. Thoſe eveni
who are fo wife as to condemn this great Diſorder, are not wife enough to dare being the firſt in ſetting a contrary Ex-
ample. Thus a whole Nation is ruind; and all Orders and Diſtinctions confounded. The deſire of getting Riches to
& fupport a vain and extravagant way of living, corrupts the pureft Minds. Their only Buſineſs is to be rich; to accom-
• plith which, they borrow, they cheat, and uſc a thouſand other mean and unworthy Artifices
. Avantures de Telemaque,
• tom. 5. p. 120, 121. Hiſtory informs us, (to borrow Mr. Le Clerk's Words, in the Parrhafiana Tom. II. p. 275, (c)
that Julius Caefar had never attempted to deſtroy the Liberties of his Country, had he been ablc to have pay'd the Debts
which he had contracted by his exceſſive Prodigality; or had known how to have ſupported his expenſive way of living.
* (See Suetonius Cap. 30.) abundance of people ſided either with him or Pompey, only becauſe they wanted to ſupply their
• Luxury, and were in hopes of getting by the Civil Wars, enough to ſupport and
maintain their former Pride and Great-
nels. Scc Salluft. ad Cæfarem, de Republ. Ordinanda, and the other Authors of that time) one may ſay the ſame thing
of all ſorts of Crimes, which every Hour, as it were knock at the Door of indigent and proud Perſons, and which
fel-
dom are deny'd Entrance, when they come attended with a large Sum of Money, To prevent theſe Evils and Diſorders,
there is nothing ſo uſeful as good Sumptuary Laws, that refrain Luxury; and a rigorous putting them in Execution.
By which----you deprive Money, which is the moft pernicious thing in the World, of it's Uſe and Luftre----Id ita eveniet,
Bi pecunia, qua maxima omnium, pernicies eft, ufum atque decus demferis. (Sallut. Orat. 1. de Republ. Ordin.) By that
allo we procure ſtill another Advantage to the State, which is of no ſmall Conſequence ; and that is, that people mar-
ry on much cafier Terms, when a moderate Expence is ſufficient for the Maintenance of a Family, than when they
• cannot handſomly avoid a greater, which however, there are abundance of honeſt People, that are not able to be at.
• Auguftus alſo, being deſirous to reform the Manners of the Romans, among other Laws that he either made or renew'd,
• eftabliſh'd at the ſame time, both the Sumptuary Law, and that de maritandis ordinibus which oblig'd the Romans
to marry. (See Sueton. Cap. 34.) If he could not oblige the Romans to obſerve the ſecond, it is very likely, it was
• becauſe the firft was not fevere enough (Sec Tacit. Ann. Lib. 2 Cap. 37.) we muſt obſerve farther, that abundance of
• People who decline Marriage upon the aforeſaid Reaſons make no Scruple to commit all manner of Debauchery,
• which tends to the utter Ruin both of private Families, and the Commonwealth too ; and which ought to be pre-
vented by Sumptuary Laws. See what Mr. Le Clerk adds concerning the Republicks of Venice and Geneva. To make
theſe sumptuary Laws more effe&ual, Princes and Magiſtrates themſelves, ſhould, as the Author of Telemachus obſerves,
. By the example of their own Moderation, put thoſe out of Countenance that love Extravagance, and encourage the Prudent,
who would eaſily ſubmit to follow the Pattern of an honeft Frugality. To this we may add, the fine Paſſage of Mona
taigne's, on the ſame Subject
. The manner, ſays he, in wbich our Laws endeavour to regulate the vain and fooliſh
Extravagance in our Clothes and Eating, ſeems to be contrary to the Intention of it. The true way would be, to
raiſe in Mankind a Contempt of Gold and Silks, as things yain and uſeleſs; and we enhance their Honour and Value
• which is a ridiculous Method of putting People out of Conceit with 'em. For ſuppoſe, that none but Princes were al-
• low'd to eat Turbot, and to wear Velvet, and gold Lace; and the People prohibited the uſe of 'em; what would it
• be but to bring thoſe things into Credit, and make every body deſirous of having them ? Let Princes boldly part with
thele Marks of Grandeur, they have enough of others; ſuch Exceſſes are more excuſable in another Perſon than å
Prince------'Tis ftrange how caſily and ſuddenly, Cuſtom aſſumes an Authority in theſe indifferent Matters. They
had ſcarce worn black Cloth a Year at Court for Mourning for Henry II. but Silks were already grown ſo very con
temptible in every Body's Opinion, that whoever appear'd dreſs’d in 'em, was immediately teken for fome Citizen or
Tradeſman. At laſt none but Phyſicians and Surgeons wore 'em ; and tho' every Body went dreſs'd pretty near alike,
yet there were beſides apparent Diftin&tions enough of Mens Qualifications.-----Let Kings begin to leave off theſe Exo
pences, and it will be done in a Month, without either Edi&t or Ordinance : We ſhall all follow after.
• thould expreſs the contrary ; that all except Whores and Watermen, were prohibited to wear Scarlet, and Gold and
Silver. By ſuch an Invention, Zaleucus reform'd the corrupted Manners of the Locrians, Eſlay; 1. 1. Chap. XLIII.
• Mr. Barbeyrac's firſt Note upon this Se&ion. p. 443, &c.
(6) V. Plin. Nat. Hift. t. 6. 6. 23. The Arabians are certainly the richeſt People in the World, for they are the Mers
chants that exhauſt the Wealth of the Roman and Parthian Empires, They are continually importing among us the Pro.
duce of their Seas or Woods, and never buy any thing of us in return. N. H. I. 6 c. 28. Every Year conſtantly the Indies
drain us of little leſs than 500000 Sefterces, beſides that, the Commodities we have from thence fell here for an hundred
times double the advantage they do there Vid, 1,!2.c. 18 N. H.
از
The Law
2
if

80
Of the Power of the Sovereign,
Book VIII
au
2.0
Moreover Laws a
ſuch as was that
nature
Year, to make
S
tation bring together more than terlage Invi. to keep an Horſe and an Elephant, the Prince only
alſo may be reduced Laws
be particularly enforced upon it appear to the Governo obliged every
Impoſſible any Mun should govern Concert common fo belong thoſe Laws, by which Subjects are for-
freſh Fuel ftill ſupplies the fame.v' ,999/
if he pays never ſo little to the Publick, muſt Grants and Legacies, That lay Reſtraints upon the
either jeſien his Eftate, or retrench his Expences. Power of making Wils, or that put a itop to Exces
Of this Sort were thoſe sumptuary Laws in the Ro in dedicating things to pioses uſes (2) As alſo Law
man Commonwealth which P. Manutius recounts That forbia Certain subjects to poífefs Certain kinds
out of Macrobiks (a). And thae Law of Plato's (b), of Goods; As in India no private Subject is allowed
which he not
*
, that Privilege (m).
6 and thoſe Relations, Nor that Perſons of the gainſt Idle (1) and Lazy People ; as
beft Quality ſhould ſpend above a Mina or ten among the Nabathai, by which every Man was Pub
Crowns on ſuch occaſions (c). To this Head lickly puniſh d that waſted his Eftate
againſt Ca
(a)againſt Perſons that suffered their
(6). And Team
Law, ae Corintb, þy which no Man, was allowed to made by Amaſis King of Egypt, by which every
which deſerves to
be liv'd in,
Perſons concern d in the publick Affairs and Pla- what Trade or Profeſſion be was of, making it Dearh
ces: Since it is very well obſervd (f). That 'tus for any Man to refuſe to obey (P). To this Head al-
well in the
for- bid the Acquiſition a
, to encreaſe
bear miſpending the publick Treaſure, that hath uſed to their Eftates Certain Particular ways; So Pliny ſays,
live above bis private Fortune ; for a Man tbat bath there was a Decree of the Roman Senate, to forbid
, ,
Head we may rank all Laws that determine the ter abundance or variety (9). To this Head belongs
Rates and Quality of Polleſſions and Eſtates; Such alſo the famous Venetian Law, by which no' Subject
was the Licinian at Rome,
That no Man should bave of that State can either by Will or Sale, or any other
a Poſſeſſion of more than five Hundred Acres of Land, Way, upon any account leave, Sell, or alienate the Per-
"nor above One Hundred Head of large Cartle, or five petuity of any immoveable Goods to the Church, for Per-
Hundred of the Leß (b). As alſo the Law, which Sons Ecclefiaftical, without leave from the Senare (-),
Ariſtotle ſays was generally obſerv'd in popular Go. And laſtly, the Laws that forbid
the Export ation of
vernments, That no Max ſhould ſell his first Inheri- Money, and command, that all Trade with Foreign-
tance. And Oxylus's Law, that money ſhould not beers ſhall be managed by Barter only, and Exchange
lent upon Mortgage of Land (i). As alſo that De- of Commodities.
sobiew dito
cree of the Roman Senate (k). That all Candidates IV. But Secondly, a further Right
for Offices in the Common wealth, ſhould be obliged to
which belongs to the Sovereign is, poſe Taxes up-
And alſo im-
turn, a third part of their Flates into Lands in italy
; that he can take away part of the
And we may further reduce under this Head all Goods of the Subject by way of Tax.lt
Laws that determine the Quantity and Meaſures of For Taxes moderately impoſed, and faithfully laid
'b 12 moh
paiton ai sama
(a) Manut. de LL. Roman. Macrob. Saturnal. I. 3: (6) Plato de LL. 1. 6. 870. D. E. Ed. Francof.
(c) Vid. Ælian. Var. Hift? 3.6. 34 Garcilaſs de la Vega, Com. Roy. 1. 5. c. 11. avgust
1 (d) Vid L. 11. t: 5. D. E C. L 3. t. 33. de Aleatoribus. Gratian. c. 7, 8, 9. Diſtinåt. 80. Onoxa swolls
yo(e) Heraclides de Politiis
, 7. (f) Polyb. 1. 10. Excerp. Peireſc, (8) Lucian in Antholog. T. 2. p.834. ?
(b) Vid. P. Manutium de LL. Rom. Numb. XXXVI. 7. 9. Ariſtot. Polit. l. 2. c. 5. 7. 8. 6 C.4, 5. helbord som
5'() Vid. LL. Burgund. tit. 84 1. 1. (k) Plin.l. 6. Epift. 19. (U) Exod. XXXVI. 6. (m) Strabo, 1. 15.0 484.
(1) Idleneſs, or want of honeſt and uſeful Employment, is the source of an infinite number of Diſorders. "The Spirit
of Mankind being of ſo buſy and active a Nature as it is, cannot remain in a State free from A&tion; and (if it is not
employ'd in ſomething that is good, it inevitably applies it ſelf to what is ill. For tho' there are ſome things of an
indifferent Nature, they become ill, when they wholly engroſs the Mind to themſelves; if it is true however, that
there are idle Perſons in the World, that buſy themſelves more about indifferent things, than ill ones ---One cannot
commend thoſe who ſpend their whole time, in things neither uſeful to Man, nor pleaſing to God ; if it is true, as
there is no doubt of it, that men were born to do good. But----we ſee by Experience, that thoſe who apply them
ſelves to no honett Calling, generally run into Debauchery, or Gaming--It were then to be wiſh'd, that there were
Laws againſt Idleneſs, to prevent its ill Conſequences, and that no Perfon was ſuffer'd to live, without having ſome
honeſt Buſineſs to follow, either of the Mind or Body.----Thoſe that aim at Employments, either Political, Eecle:
fiaftical, or Military, onght not to be ſuffer'd to ſpend in Idleneſs their youthful time, which is moſt proper for the
ftudy of Morality, Politicks, Religion, and the Art of Reaſoning, and if they pleaſe, Mathematicks, and Hiſtory:
"There are ſtill other Perſons, that betake themſelves to nothing, but only eating and drinking quietly the Eſtates that
their Relations left 'em ; and care not for learning of any thing, being well enough fatisfied with themſelves, Sif they
do not conſume their main Stock All the Vertue of thoſe Men, confifts in regulating their Expenees, ſo as not to live
beyond their Income. But if theit
Efates are conſiderable, it infallibly happens, that they make an ill uife of em, and
plunge themſelves into a thouſand Debaucheries, which make 'em grow uſeleſs both to others, and themfelves ---We
muſt compel 'em to follow the Advice which Ovid, who had but too well known the ill Effects of Ileneſs,
in his Remedio Amoris, verf. 135.
1:03 bol v ni sIdisqnis:
Dabeba
rretroacusie odont nemhozT
Ergo ubi vifus eris noftre medicabilis arti,
When you ſeem fit my healing Art to fry 320110297
Fac monitis fugias otia prima meis. ib. 70; From Idleneſs, at firſt, be ſure you fly: 10:23
Hac ut ames faciunt, hæc ut fecêre tuentur, non 'Tis that, that in your Borom rais d the Flame,
Est And
Otia fi tollas, periêre Cupidinis arcus
Be kill employ'd, and Cupid's Darts and Bow, Mº
Contemptaque jacent, Ego fine luce faces.
Together with his Torch, will uſeleſs grow.
.V (0)
Parrhafiana Tom. II. p. 279, &c. See the Law of the Egyptians mention d above, Book III. Chap. III. Se&. 2. & Herodot,
in Euterp.
ons 2008 7 10 28 219 to ube
(n) Strabo, 1. 16 p. 539. (0) Vid. Gellium, 1.4 c. 12. (D) Herodot. Euterpe (9) Plin. Nat. Hint. I. 3:6, 20? nich
(~) Maurocenus, 'Hift, Ven 1. 17.
sorci wob asraia,
gives
oiko
our
Chap. V.
8
Over the Eſtates of the subje&ts.
What to be oba
Cuſtoms.
it ſhould
out in the fervice of the Publick,are only the Wages V. However, a Wiſe Prince will
which
every Man pays the Common-wealth for ſo far comply with the querulous Hu.
the defence and ſecurity of himſelf and Fortunes; mour of his people, as to take care feru’d in the
and to maintain the Expences unavoidably neceſſa- that his Taxes be collected with as
Impoſition of
ry to that End. And therefore when Nero propos'd little diſturbance and as much gen.
to give orders to lay aſide all sorts of Taxes, ſuppo- tleneſs as poſſible. Now the generality of People
fing that That would certainly be the nobleſt Grant be think it harder to be obliged to part with what
could ever poſſibly make to the World; the Senate put a they look upon to be their Property, than to be de.
ftop to his beat, by ſhowing him that the Empire muſt be nied the appropriation of ſome few particular
diſ.lv'd and ruin'd, if he cut off the Revenues from it things (f). Tis generally true, that Men have
that ſupported it (a). Which if a Man will be at the bardly, any ſenſe of publick Calamitiés, (as Hannibal
trouble fairly to conſider, he will be forced to con- told the Carthaginians) but when they affect them
fefs, that the Complaints of the People, (who are in their private Fortunes ; and there is no Lsſ they feel
apt to think the Burthen of the Taxes the great so much, as that which touches any part of their Eſtates
,
occaſion and cauſe of all their Miſeries), are ge. And therefore Some have thought it the beſt way
nerally very unjuſt as well very impudent (b). But to provide for that inconvenience once for all,
their Complaints are moſt groundleſs and intole. and ſet aſide a Portion of their Eftate, purely for the
rable, That wear whole Eſtates upon their Backs (as uſe and ſervice of the publick" (8). Some again
Plautus ſays, ( 1) and yet when they are to be Tax'd, are of Opinion, that the Generality of the People
pretend they are not able to pay, tho' at the ſame time are burthen'd leſs by Taxes rais'd by Cuſtom or
they find enough to allow their Vanity, which lays a Exciſe, chan when levy'd in a way of Subſidy and
much more unreaſonable Tax upon them, than the State. Tribute. In laying Impoſitions or cuſtoms upon Fo-
Allies defired bim to ſettle some ſtated Proportion for whether the Commodities are for neceſſary uſe, or
their Contributions, told them, that War could not be only for Luxury. If they are of the latter kind,
carried on by fix'd allowances, for that tbere is no de- the Cuſtom may very juſtly be laid heavier, to
termining before-band, what ſupplies of Money will be prevent and ſuppreſs Extravagance and Riot ; and
neceſaryº (c). It being impoſſible for them that engage becauſe the Rich, or they that enjoy large Privileges
in a War to know what will be the certain Event of it otherwiſe, and contribute little to the Publick, are
(d): For it very ſeldom happens, that as Čato generally the only Buyers. It ſhould alſo be con-
faid, a Wür will maintain it ſelf. And indeed in fidered farther, whether the fame Commodities
general, The publick Expences cannot be confin'd might not be produced at home, or wrought to
within any particular Bounds, becauſe of the fame perfection, by the induſtry and applica-
that Variety of Caſualties and Accidents tion of our own people. And if it appears they
which happen, and which do not depend up. may, the Impofts ought to be rais’d higher upon
on our ſelves but our Neighbours, which will al- them, eſpecially upon Commodities that ſerve only
ways demand ſupplies of Money to be defeated or to ſupply Luxury and Vanity, and make us pay
avoided (e).
Tribute to other Nations, put for our Land, ina

every
(a) Tacit. Ann. 13. c. 50, Vid Hift. 4. Tac. c. 74, where Cerealis tells the Treviri, All the Harm we have done
by our right of Conqueſt, hath been only to defend and ſecure your Peace; for it is impoſſible to ſupport Peace in the
World without War, to maintain a War without Money, or to have Money without a ſupply from Taxes. Ifaus, Orat.
6 He thought that he ought to be very thrifty in his own Expences, and reſerve all that was left for the uſe of the
Publick, that there might be enough to defray the Charges of the State. Themiftius, Orat. 14. The Laws forbid
Man that is return'd into the Exchequer, to take any place of publick Truft
, before he hath diſcharged that Debt.
(b) Vid. Hobbes de Cive, c. 1.2. 1. 9. Plaut. Ciſtell. A&t. 2. Sec. 2. (1) In Epidicus, A&. 2. Scen. 2. V 42, &c.
(c) Plut Apophth. p. 219. & in Cralus. (d) Procop. de Bello Perfic. L. 2. c. 26.
e) It will not be impertinent to the Diſcourſe, or difficult to apply to any Preparations for War, whar is mention's
by Nicetas Choniates, 1. 1. • The Emperour Manuel Comnenus was over-perſwaded by his Treaſurer Johannes Puzenus
to apply the Money that was uſually raiſed to maintain a Navy to his own uſe, and bring it into the Exchequer. The
| Realons he gave to induce him to it were, that the State had not always occaſion for a Fleet, and that the Charges to
keep it were conſtant, and ran generally very high; and that therefore it would be a better way to call the Money into
the Exchequer, and whenever the poſture of Affairs made a Fleet neceſſary, the Emperour's Coffers would be full enough to
defray the Expences of it The Propoſition took, and Puzenus was applauded for an extraordinary Man, and look'd to
have more than common Sagacity and Skill in the management of Publick Affairs. But in Reality, the greateſt Enemy
-
ways,
one hand by miſrepreſenting the Greatneſs of the Expence, And on the other by falſely Stating the eaſineſs of the Charge
And upon this Counſelrafhly given, and obftinately adhered to, the Provinces that lay upon
the sea were continually afterwards infeſted with Pyracies. And therefore the Hiftorian infers, that the Calamities that
followed might as juftly be charg'd upon the Author of that Advice, as a Fire is as much upon the Perſon that does not
put it out when he can, as him that at firſt Kindled it. Vid. Niceph. Gregoras, 1. 6. who gives an account of fome In-
ſtances, in the publick Affairs like this, in the Time of Andronicus Paleologus.
(f) Vid. Lio. 1. 5.0, 23.1.30 & 44. Plut. Camillus. Where the People took it very ill, that they were forced to give
back a Tenth part of the Booty that had been ſhared among them.
blu Homer. Iliad. 1. V, 125. 226.
'Αλλα τα με πολίων ξεπρόθ μυο τα δίδασαι,
W’have ſhar'd the Spoils of the vi&torious Field,
Λαϊς δ' εκ επίoικε παλίλλογα πώ έπαψείρειν.
And none will to a new Diviſion yield.
Claudian de Laudib. Stilicon, L. 1. v. 379, 380,09
-Gravioreni amiſa dolorem
The lofs of our Enjoyments grieves us more
Quam necdum quæfita, movent,
Than not to have enjoy’d.
Vid L. 24. t. 1.1.5 D de Donat. inter Virum & Uxor
(6) Vid. Diodor. Sicul.l. 1. c. 72. Paulum Warnefridum de Geſt. Longobardorum, 1. 3. 6. 16.
*L
Reed,
21
bas
82
Of the Power of the Sovereign,
Book VIII.
1
C
deed, or Posſeſſions, but what is much worſe, for our Folly fits uneaſy upon the People, either from the Dir.
(a). As to the Exportation of Commodities of our own content that followeth upon the Injury, or from
growth, it ſhould be conſider'd whether it be the Envy that others ſhould be excuſed." And indeed,
intereſt of the Common-wealth, that they ſhould fince All the Subjects pay the Common-wealth,
not be exported; or whether it be neceſſary to in Reality, is nothing elſe but the price of Peace
fend them to a Foreign Market, that the Subjects "tis but reaſonable, that ſuch as have an equal
have a way to continue Trade or encreaſe their Share in the Peace, ſhould pay equally for it, by
Wealth. The Firſt naturally raiſes the Cuſtoms alliſting the Common-wealth, either with their
upon the Commodities, the Second lowers them. Money or their Perſons; ſo that all Immunities and
But beſides it may be further conſider’d, whether Privileges granted in Common-wealths to particus
our Commodities are abſolutely neceſſary in other lar Men, or Orders of Men, are no further Reaſon
Countries
, and whether they are to be had from nable, than as they who enjoy them ballance them,
any other place. For all know the Induſtry and by the extraordinary Merit of the Service they do
Diligence of the Merchant, and what difficulties (g). But to diſcover in what this Equality con-
and dangers he will venture himſelf in, upon the fifts, it muſt carefully be obſervd, that the En-
hopes of advantage ; and that if the Impofitions up- quiry is not after Equality in Money, but in Charge
on their Commodities be too high in one place, the and Burthen; or in other words, it is not necefla.
Market will ſoon be carried to another; or elſe ry to this Equality I ſpeak of, that every Man
that they that buy, will content themſelves to be ſhould pay an equal Sum of Money, but that the
without the Commodities: as Gallianus once ſaid, Share every Man is to pay, ſhould not lie hea-
what can't we live without this Egyptian Linnen, and vier upon one than another, which may eaſily e-
can't the Common-wealth be ſafe without theſe Robes of nough be effected by making the Proportions equal
,
Honour? And in my opinion, Hefiod's Rule may be between the Burthen of the Tax and the Benefit of
very well apply'd to Cuſtoms, mécv špsou molds (1), Peace. For though all equally enjoy Peace, yec
The Half is more than the Whole. For a good Har- they do not all make the ſame Advantages by it
.
bour is worth but very little when it hach loft its Some get much more than others; and again
Trade. And ſuch a Conſtitution too as Nero made, ſome ſpend much more than others. And from
might poſſibly deſerve Conſideration, That Velels hence Hobbes makes an Enquiry; Whether the
of Trade ſhould not be taken into the valuation of E Subjects ought to contribute to the publick, in
States, and that the Merchants ſhould not be obli Proportion to what they get, or what they ſpend,
ged to pay Taxes for them (b). The Government
or whether a Man ſhould be taxed according to
ſhould alſo provide againſt the Frauds, which . what he hath coming in, or according to what
Colle&tors of Cuſtoms uſually have, to promote their he conſumes? Where first I think I
own private Gains, and take care to hinder their that ſince every Man is ſecured in his pr.per-
Importunity and Impertinence, and the trouble they py, by the Care the Common-wealth takes of him,
give Subjects and Traders, which are born with he may juftly be taxed in Proportion to his Income,
more impatience and regret, than the Cuſtoms as Servius Tullius ſaid, in Defence of the Inſtitution
themſelves. Thus Dio, Caffius B. 42. faith, that of the Cenſus (b). It is very Juſt I think, and very
Cæſar deliver'd Afia from the Exactions and Oppreſſions much for the Publick Good, that ſuch as have large
of the Publicans, and reduced all their Cuſtoms into a Fortunes-should pay largely, and ſuch as have leß in a
form of Tribute (c). So Tacitus (d ) commends an due Proportion. And thus all Subſidies levied upon
Edict of Nero's, by which he Commanded, that the extraordinary Exigencies in the Common-wealth,
Laws relating to the Taxes, that had been out of uſe till ought to be laid according to the Value of Eftates
.
then, ſhould be entirely laid aſide; and that no fuit for And then, Secondly, Since every Man's Life is
any Tax that had been dropă, ſhould be reviv'd after defended by the Sword of the Comnion-wealth,
the Year was expir’d; and that the Magiſtrate ſhould and Life is equally dear to Poor and Rich, they aré
have a Power extraordinarily to paß Judgment againſt both equally obliged to attend the Service of the
the Publicans. Neither indeed ſhould the Exche- Wars, and to pay an equal moderate Tax upon that
quer
it ſelf be always allow'd too much Favour, account, ſuch as a Poll-tax, in which the Rich pays
becauſe that ſeldom loſeth a Cauſe, but under a no more than the Poor. But becauſe it is owing in
good Prince, and becauſe there are never wanting like manner to the publick Care of the Common-
thoſe that have impudence enough to a list all its pre- wealth, that the Subjects have the Advantages
tenſions (e).
and Opportunities of raiſing Eſtates by their own
97. VI. But in levying Taxes, and in- Induſtry; the great Difficulty in this caſe is,
deed any fort of Impoſition upon the how the Tax upon this account ought to be laid ?
Subjects, particular Care ſhould be taken not to And perhaps the moſt Convenient way may be,
give any juſt Occaſion of Complaint, which will to Tax Men according to what they conſume,
be unavoidable where the Taxes are laid unequal- rather than what they get ; eſpecially, lince Men
ly. For as Hobbes very well obſerves, A Burthen generally ſpend in Proportion to what they have
which the whole Body of Subje&ts may poſibly think ea- coming in. For if the Tax be laid according to
ſie and gentle, will if any conſiderable Number releaſe or what people have coming in ; and it ſhould hap,
excuſe themſelves, lie beavy and inſupportable upon the pen that ſome who have equal incomes, ſhould
Te ft (f. For generally, it is not the Tax it felf
, yet have very unequal Pollejions, (which is as
ſo much as the Diſproportion and Inequality of it, that common as it is for one Man to be Frugal, and

may fay,

And other Taxes.
108 esteiro
(a) Dio Chryfoft. Orat. 79 p. 664. D. (1) V. Hefiod. Oper. & Dier. v. 40. ubi vid Cleric. (6) Tacit. Ann. 13. C. 51.
c) Vid. L. 39. t. 4. 1. 12. Princip. D. de Publicanis. (d) Tacit. Ann. 13. d. 1. (e) Plin. Panegyr. c. 36.
($) Hobbes de Cive, c. 13. f. 9. (5) Vid. Diod. Sicul. 1. 4. c. 73. de Machaon. & Podalir. Ifocr. in laudat. Buſio
rid. de Priv. Sacerd. Egyptior. p. 389, 390. (b) Dionyf. Halicarn. 1. 4. p. 215. Edit Lipf.
2
lay
Chap. IV.
Over the Eſtates of the Subjects.

lay up what he can, and for another to ſpend from paying Taxes, or elſe perhaps to free them-
what he gets in Waſte and Luxury) The Con- felves from thoſe Inſects (c).
ſequence will be, that they that equally enjoy VII. (d) Sovereign or Tranſcen-
the Benefit of the Common Peace
, muſt yet bear an dental Propriety (which is the third of the Savercign
unequal Share of the Burthens of the Common. Head) is what ſome pretend to om Tranſcendental
Propriety
wealth. For Inſtance, Here are two Perſons be afraid of, more upon account
which get equally an bundred Pounds a Year, and of the Name, than Thing (1). The Sovereign
one of them ſpends conſtantly Forty of it, and Power, they ſay, was erected for the common
the other perhaps Fourſcore : Since both of them Security, and that alone will give a Prince a ſuf-
equally enjoy the benefit of Peace, it ſeems Rea- ficient Right and Title, to make uſe of the Goods
ſonable that both ſhould pay equally for it. But and Fortunes of his Subjects, whenever Neceffity
then in this there will be theſe two inconveniencies. requires; becauſe he muſt be ſuppoſed to have a
Firſt, That it will be very difficult for the Go- Right to every thing, without which the publick
vernment to diſcover what each Subject gets every Good cannot be obtain's. But the Tranſcendental
Year by his Induſtry; beſides that, there cannot Propriety is too Arrogant and Ambitious a Name;
be a Review made ſo often, of what every Man and which ill Princes may ſometimes abuſe to the
is Worth. And Secondly, Thar if the Tax be Damage and Ruin of their Subjects. But as it is
levied at the Years end, when both have made trifling to diſpute about Words, ſo I think there
up their Accounts of what they have received, and can be no Abſurdity or Danger in giving a par.
how much expended, and the Tax be laid upon ticular Name, to a particular Branch of the Som
each of them in Proportion, to what they have vereign Power, as it exeres it ſelf in a certain way,
remaining
g of the latt Years Income; 'tis manifeft, upon certain things. What the force of this pro-
that one muſt pay double as much as the other, priery is, I ſhall now endeavour to explain (2).
though both equally enjoy'd the common Peace. It will be confefs'd agreeable to natural Equity,
And what is worſe, the one ſuffers for his Parfs- That when Contributions are to be made for the
miny, and the other is eas’d by his Extravagance. Preſervation of ſome particular thing, by Per-
And therefore it muſt be the belt Method to lay fons that enjoy it in common, every Man ſhould
the Tax upon the things which are to be conſumed, pay his Quota, and one ſhould not be forc'd to
and then every Subject will inſenſibly pay his bear more of the Burthen than another. And the
Share to the Públick, in Proportion to his private fame holds to be Equity alſo in Commonwealths;
Conſumption, not indeed for what he now actually but becauſe the State of a Commonwealth may
is, but for what, by the Protection of the Com- often be ſuch, that either ſome preſſing Neceſſity
monwealth, he was formerly poſſeſs’d of; and will not give leave, that every particular Subject's
ſo that which is paid to the Publick, will be look'd Quota ſhould be collected; or elſe, that the Pub-
upon to be part of the Price of the things that are lick may be forced to want the Uſe of ſome-
conſumed (a). But what hath been ſaid before, in thing in the Poſſeſſion of ſome private Subject;
other Reſpects, of the Cuſtoms, may alſo be ap. it muſt be allow'd thar the Sovereign Power may
plied to Taxes and all other publick Impoſitions (b). ſeize upon it, to anſwer the Neceffities of the
What ways of raiſing Money Neceſſity may ſome- State. But then, all above the Proportion that
times force a Government to take, may be ſeen was due from the Proprietors, is to be refunded to
at large in Ariſtotle's Oeconomicks, l. 2.c. 1. I them by the reſt of the Subjects. For Example,
cannot by the way forbear mentioning a very When a Town is to be fortified, the Fields and
odd ſort of a Tribute, which the Inca's of Peru Gardens of private Subjects muſt be laid open,
the pooreſt of their Subje&s, which and perhaps their Houſes be pulld down, to give
was to bring every Year to the Governours of room for the Works and Ditches. In Sieges, Houſes
their Provinces, a certain number of Gnat's and Trees that belong to private Perſons are
Horns; the Deſign of which might poſſibly be, taken down, that the Enemy may not be ſheltred
cither that no Body ſhould think himſelf exempe by them, or the Befiegʻd incommoded. Materials
,
(a) Beſides, theſe Contributions by way of Excife, are a Means to reftrain the Exceſs of Luxury, and Profuſeneſs
. People
need only forbear making magnificent Feafts and Entertainments, and wearing fine Clothes, and then they will not pay
much. But if they will, at any rate whatſoever, indulge their Appetite, and humour their Vanity ; they ought to
blame no Body but themſelves. See Hochfteteri Collegium Puffendorfianum, &c. Exercit. xi. Se&. 12. (6) Vid. Tacit.
in Agricola, c. 19 Where he ſays, that if Agricola rais'd the Tribute upon the Britains, or obliged them to pay a greater
Quantity of Corn, he made them amends, by allowing them proportionable Favours, and by taking away all thoſe Ex-
actions and Oppreſſions which were more inſupportable than the Tribute it ſelf ; for they had been forced before to wait
ridiculouſly at the Granaries, though they were ſhut againſt them, and to buy their own Corn, and fell it again at a ſet
Price ; and it had been common to ſet them new Roads and Places at a great Diſtance, that the People mighĩ carry their
Corn from the Incampments that were neareſt to them, to thoſe that were fartheſt off, and in the worſt ways, that fo
what lay open for all, "might turn to the Advantage of a few. Vid. Cic. in Ver. A&t. 3; And it was too ſevere an Anſwer,
Pefcennius Niger gave the Jews, when they begg'd him to leſſen the Taxes upon their Eſtates; You would have me
take off the Tax upon your Lands, but I affure you, if I could, I would lay one more upon the Air you breath, Spartianus,
(c) Garcilaj dela Vega. 1. 5. c. 6. Moreover, as to what relates in general, to the manner in which a Prince
ought to manage ſo as to make the Revenues of the State conſiderable, without oppreffing the People: See Charron de
la Sageſſe, Liv. III. Chap. II. Se&. 21. the Parrbafana, Tom. I. p. 274, &c. and Mr. Buddeus's Philoſophie Pratique,
Part III, Chap. V. Seet. ;. Ego l. 8 c. 5, 6. (d) Dominium Eminens. (1) See above in B. 4. c. 6. 1. 3, &c.) See
Mr. Buddee's Hiftory of the Law of Nature, in his Sele&ta Jur. Nat. f. 53. Beſides we muſt remember, that every thing
that lies in the Territories of a State, and has no particular Proprietor, belongs originally to the State, unleſs it is other
wife left in common by a conſtant and receiv'd Cuſtom. See Mr. Titius in his Specimen juris publici Romano-Germanici.
Lib. II. Cap. III. (2) Séc Grot. B. 1. c. 1. f 6, and c. 3. f. 6. and B. 2. c. 14. f. 7, 8. and B. 3 c 19. f. 7. and c. 20. 1. 7, Sc.
c. 7.
*
* L 2
private
84
Of the Power of the sovereign,
Book VIII.

it ap- in ſome States hath certain Goods
private Men lay by for their own Uſe, may be ceffity was univerſal, and every Subje& fufferd
taken and made uſe of in publick Fortifications. equal Loſs. For the Publick is concern'd no
In general Scarcity, the Store-Houſes and Grana- further than to take Care that the Subjects be
ries of private Subjects are ſet open. In the Ex not injured by any ill Conduct in Government,
tremities of State, Monies entrutted with the Go- but never obliged it felf to bear all the Damages
vernment are ſeized. And private Men's Coffers they might at any time ſuſtain (d).
are rifled when they are not kind or publick ſpi VIII. As to the publick Goods
rited enough, to offer their Money voluntarily by which belong to the Common- What Power the
way of Loan. As Xenopbon ſays Cyrus did (a). wealth it ſelf as ſuch, it is to Prince bath over
Perhaps what Cæfar did of this kind, when he obſerv’d, that in ſome Kingdoms belong to the bat
came to Rome after the Defeat of Pompey, is not they are divided into two Parts, Commonwealth
to be juſtified, though he be ſuppos'd a Lawful one of which is intended for the as ſuch. .
Prince. For as Dio relates it ; . He pretended Maintenance of the Prince, and
to borrow the publick Money, when he found the other to defray publick Expences for the Pre-
there was no other way of getting it, but con- fervation of the State (2). : (So Dionyſius Halicar-
tinued to threaten Force, and to demand it as naſſeus makes a Diſtinction between the Anuecia
his due; and yet was reſolved never to pay it xñois, or the publick Poſleſions, and the Tävissi Berner
back (6). So again, if there be no other way xaño, and the Patrimony of the Prince (e). And
to oblige a common Enemy to retreat, our own in China, one part in nine of the Land belongs
Country is to be laid waſte, and all things which to the Emperour (f). By that part intended to
might be ſerviceable, to be carried away, or maintain the Prince, I mean, That the Prince
2
pears, that Tranſcendental Propriety never takes out of the Publick, the Income of which is to main-
place, but in the Extremities and Neceſſities of the tain the Expences of his Palace. And of all theſe
Commonwealth. Tho' Bæcler in his Comment the Prince hath the full Profits, and may diſpoſe
upon Grotius, 1. 1. C. 1. f. 6. obſerves, " That the of what he hath coming in from them, as he
Necellity here meant hath its different Degrees, pleaſes; and what he lays up out of his Income,
and that it is not only at the laſt Extremity, where the Laws of the Kingdom do not provide
this Power may be made uſe of. But neither, otherwiſe, makes an Acceſſion to his own private
on the other hand, is this Power to be extended Patrimony (g). The Emperor Pertinax (b), upon
too far; but ſhould be reduced to Equity, as nigh this View refuſed to have his Name put upon any
as it is poflible. And a famous Example of this of the Imperial Poffeflions ; becauſe, as he ſaid,
we have in Livy, 1. 31. C. 13. From hence it They were not the Emperor's Propriety, but the common
may alſo be further infer'd, that the Prince him- publick Eſtate of every Roman. In Peru, under the
ſelf cannot releaſe-a Subject from the force of Empire of the Ynca's, the Lands were divided in-
this Tranſcendental Propriety. Becauſe the publick to three Parts ; one part belong'd to the Emperor,
Extremities of the Commonwealth muſt always another to their God the Sun, the third to the
be ſuppoſed to be unanſwerable Exceptions to all Commonwealth ; and therefore the Subjects paid
-ſorts of Privileges. For it is a Contradiction to no Taxes out of theirs (i). But fecondly, the
pretend to be a Subject, and yet to infiſt upon a Goods which are to defray the Expences for the
Right, utterly inconſiſtent with common Safety. Conſervation of the State, are only barely en-
But however, without Diſpute, They that have truſted to the Care and good Husbandry of the
loſt or ſacrificed their Fortunes to the publick Prince, who ſhould always have eſpecial Regard
Safety in ſuch Extremities, ought to have a Reſtitutin for the publick Good (3), and expreſs the ſame
on or Satisfaction made them, as far as it is poſſible Caution and Conſcience as a Guardian ought to
by the whole Commonwealth (1). Some indeed have for the Eſtate of his Pupil. From whence it
will make this Exception, when tho' the Damage may be eaſily infer'd, on which ſide the Right
ſuſtain'd be unavoidable, it might yet have been lies, to what a Prince gets or lays up in the time
eaſily foreſeen and prevented. For the purpoſe, of his Reign, on his or on the Commonwealtb's
.
when Houſes built in the Suburbs, are puli'd down For if a Prince grows rich out of chat Branch of
in time of War. For the Proprietors of theſe can the Publick Revenues which belongs to the Com-
demand no Compenſation for their Loſſes ; becauſe monwealth ; or by impoſing Taxes upon his Sub-
they knew before that they could not build in jects; or by the Expence of their Blood; or by
thoſe Places upon other Terms. And conſequent- employing them in any of thoſe Services which
ly, by building there notwithſtanding, did in a by common Obligation they owe the Common-
manner tacitely conſent to them. But much leſs wealth ; it is clear, that his Wealth muſt accrue
can any Compenſation be allowed, where the Ne- to the Publick, and not to his own private Eſtate:
(a) Xenoph. Cyropæd. 1. 8. (6) Dio Cafius, l. 42. (c) Critolaus, when the Romans were making War upon him,
agreed with the Achaian Magiſtrates, that all Suits for Debts ſhould be put off, and no Man ſhould be obliged to make
any Payment till the War was at an end, Vid. Polyb. Excerp. Leg. 144. c. 3. V. 1. 18. t. 3. 1 8. D. de leg. Commiſſoria.
Curtius, l. 3. c. 4. See Sueton, Ch. 42. of Jul. Caf. the Law made by Cæfar about the Payment of Debts.
(1) See Grot. B. 3. c. 20. f. 7. (d) Jo. Chriſtoph. Becmannus, Medit. Polit. Diff. 21. f. 8.
(2) Sec Grot. B. 2. c. 6. f. 11, (e) Dion. Halicarn. 1. 3. Antiq. Ronian, (f) Martin. Hift. sin. I 4. C. 24.
() Senec, de Benef. 1., 7. c. 6. Every thing belongs to Cafar, but to his Exchequer nothing but his own private For-
tunc ; every thing is at his Command, but his Patrimony only is his own by Propriety. (5) Herodian. 1. 2. c. 15:
6) Vid. Garcilaſi, de la Vega Comm. Ray, 1. s. C. 14 and Francis Hottomans Quali
, Illusto (3) See the laſt section of
this Chapter
But


Chap. V.
85
Over the Eſtates of the subjects.
,
be Totection
But ſuppoſe, as it may alſo happen, that a Prince pleas'd, and deliver them up to another's Power
may make all neceſſary Preparation for a War, and Command. And for this Reaſon the Peo-
and carry it on afterwards, without any Affi- ple of Guienne juſtly refuſed to be ſeparated from
ftance of the publick Treaſure, upon the Strength the Kingdom of England, notwithſtanding the
of his own private Riches and Eſtate, without en Grant and Donation of Richard the II. (c). But
gaging the Commonwealth, either in the Expence indeed there is one Exception againſt what was ſaid
or Hazard of it, or it may be perhaps, barely before, That a Part ought not to diſown or fe-
from the Profits and Revenue of his Crown-lands. parate from the Body, while it continues within
In fuch a War 'tis alſo clear, that whatever Ac. the ſame Dominions, and that is this; except it
quiſitions a Prince makes will be abſolutely his be in the laſt Extremities, and that it be impoflible
own Right, and that he may if he pleaſe ex. for it to preſerve it ſelf otherwiſe, than by ſub-
clude the Commonwealth. For I have an un- mitting to the Enemies Power and Authority,
deniable Right to the Profits of what I have the For in all Agreements of this Nature, the utmoſt
Uſe and Produce of
, and therefore may diſpoſe of Necellity ſeems of Courſe to be excepted; whicli
,
them as I think fit (a).
it is always allowed, gives a Man full Liberty to
MìX. I ſhall in the next place ſecure himſelf all the ways he can poſſibly. And
of the Alienation enquire, what lawful Power any therefore 'tis no more than what muſt be expe&ed,
of the Kiugdom, Prince may have to alienate the and is far enough from being criminal, That a
or any part of it. whole or any part of his Kingdom. Town after it hath made the beſt Reſiſtance it could
By which I do not mean a Patri- againſt an Enemy, ſhould at laſt chuſe rather to
monial Kingdom, but a Kingdom receiv'd by free ſurrender, than ſuffer it ſelf to be carried by
Conſent of the People. Grotius is very large upon Storm, and be put to the Sword. For ſince every
this Queſtion (6). The fflue of the Matter in Man that ſubmits himſelf voluntarily to Civil Go-
Diſpute in ſhort is this; That a Prince hath no vernment, had before from Nature, a Right to de-
manner of Power to transfer or give away his fend himſelf all the ways he could, and therefore
Kingdom by his own ſingle Authority; and that enters into the Commonwealth for the better Ata
his Subjects are not at all obliged by ſuch an sæt if tainment and Security of that Right : When the
People cannot juſtly take the Crown from their to be releas'd from the Ties they were under be-
Prince, ſo neither can he, without their conſent, fore, and to be at Liberty to conſult their own
ſet it upon whoſe Head he pleafeth. But in the Safety as they think beft. And without Diſpute,
Alienation of a part of a Kingdom, beſides the the Commonwealth it felf can have no other
Prince's Conſent, there is required not only the Right over the Members of it, than what was gran-
Conſent of the People, that are to continue underted and left by them that at firſt erected it. And
their old Prince and Government, but the Con- therefore as the Commonwealth engageth to pro-
ſent of that Part too eſpecially which is to be tect and defend every one of its Members, unlela
akenated. The Reaſon is, Becauſe they that at hindred or prevented by unavoidable Neceflity:
firſt erected the Commonwealth, and they that fo whenever it ſtruggles under ſuch a Neceſſity,
came voluntary into it afterwards, bound them. it is ſuppoſed, that no Man is forbid to provide
felves by mutual Compact, to be govern'd by one for his own Security as well as he can. In the
and the fame Government, as long as they thought Natural Body indeed, it is lawful to cut off any
good to continue in the Dominions of the ſame particular Member to preſerve the whole, becauſe
Commonwealth. And therefore, as every par- every Member lives entirely by the Life of the
ticular Subject acquired a Right by Vertue of Body, and cannot live otherwiſe; but in a Moral
that compact
, not to be violently, ejected out of or Politick Body, 'tis poſſible the Members may exiſt
the Commonwealth, nor to be given up to any and live in a ſeparate divided State, and there-
Foreign Power, except by way of Puniſhment; fore the Body Moral hath not the ſame Right over
fo the whole Body of the Subjects from the ſame his Members as the Natural. But if a Prince ſhould
Compact, acquires a Right to it ſelf over the par- be neceſſitated by Extremity of his Affairs, to
ticular Subjeæs, by which no Subject can put compound for a 'Peace with an over powerful
himſelf under a foreign Government or Power, or Enemy, by giving him a certain Country in his
diſclaim and renounce the Authority of his own, Dominions, and that Country ſhould diſown and
as long as he is allowed to live in any of the Dor deny the Grant ; in this caſe, it is my Opinion,
minions belonging to it. And therefore, ſince all that the Prince may draw his Forces out
of their
Commonwealths (as all Moral Bodies) are form’d Towns and Garriſons, and leave them naked, not
and grow by a Canſent of the Parts, we muſt look hindering the Congueror from taking Polellion of
back upon the original Deſign, and Intentions of them. But then that he hath no Power to oblige
the Primitive Founders of them, when we enquire, or force them to ſurrender themſelves, or to ſuba
what Power the whole Body hath over the Parts in mit to the Conqueror's Authority. Neither gan I
ſuch a Caſe as this. And it cannot be preſumed, think, that the Country is under any Obligations, if
that their Intentions were, that the Bady ſhould they have Strength enough in it, not to make
have a Right to cut off its own Members when it Reſiſtance againſt ſuch a Conqueror, or afterwards
(a) V. Grot. 1, 1. c. 3. f. 12.
16) L. I. C. 4. 1. 10, 830 1. 2. c. 6. 1. 3. (Upon both which Places fee Becler's Annotations) & 1: 3. c. 20, f. 5. Egoce
(c) Froil d. l. 4. Polyd. Virgil
. Hiſt, Angi. 1. 20.
2
86
Of the Power of the Sovereign,
Book VIII

or
o alie.
tor, walhall be for ſo long refign'd to the Credi- whether it be levied upon them afterwards to re-
non
if they can, not to erect themſelves into a diftin£t lienate thoſe Goods, the Revenues of which
Commonwealth. For thus when the Emperor are deſign'd, either to ſupport the publick Ex-
City Nifibis to the Perfians, the Citizens defired and Dignity of his Comrt. For in thoſe Goods
they might have leave to defend themſelves (a): the Prince is allow'd only the Uſe and Produce
By Tuch Agreements therefore, the Prince indeed of them, which can never amount to a Right
and People loſe their Right to ſuch a Country; but of Alienation (2), And tho perhaps he may think
the Conqueror, if they conſent to receive him and himſelf well enough provided for, for his
own
ſwear Allegiance to him, acquires a lawful Autho- Life, yet it should be conſidered that there are
rity and Power over them. As to that Opinion to be other Princes to ſucceed bim, who are all
fome are fond of, either with regard to all King to be maintaind agreeably to the Dignity, of
doms, or perhaps only to fome particulars, That Crown'd Heads. Buc however, we are to diſtin-
whatever Goods are appropriated to, or as they ſay, guiſh carefully between the Goods chemiſelves or
incorporated in the Crown, can never be any way the publick Patrimony, and the Profits or Produce of
alienated, and that neither the longeſt Courſe of them. The firſt the Prince hath no Power
Years, or another's quiet and peaceable Poſſeſſion nate, the other he hath free Liberty to diſpoſe of,
can ſecure them from an Aet of Reſumption, aç he pleaſeth. Thus where
e Right of what
any time after, it is without Diſpute, falle and the Sea or Rivers caft up and join to the Land, is the
groundleſs. And much more abſurd and ridicu- Publick Patrimony, or belongs to the Crown, che
lous is it to affert, chat any Kingdom may have Prince cannot make away, or transfer that Right,
Privilege to waſte and ruine others, and yet that to any one elſe; but I can ſee nothing that can
what it hath once ſeiſed, can never afterwards be oblige him, not to diſpoſe of whas is thrown up by
recover'd from it.
the Tidè or the Stream, as he thinks fit; becauſe this
X. From what hath been ſaid it is the Produce of that Right. So the Right of
is further evident, That a Prince Confiſcation may be a Publick Patrimonial Settlement
,
Kingdom a
cannot without his People's Conſent and the Canfifcated Goods be the Produce of that Settle-
Fief, or Mort- (1), make his Kingdom Feudatory to ment. The Firſt is appropriated to the Common-
gage it, with- another, or hold it upon Condition wealth, the Second belongs to the Prince. But
out Conſent of of (b) Forfeiture whenever the Feu- after all, a Prince that hath Power when Reaſons
dal Oath is violated, or that when of State require it, to levy new Subſidies upon
his Family is extin&t it ſhall devolve to the Prince the Subject as he pleaſeth, may when the Neceſ
.
it is held from: For if the Conditions be fuch as ficies of the Commonwealth command, Mortgage
theſe, the making the Kingdom Feudatory is in- any part of the Publick Patrimony. For as the
deed a Conditional Alienation. And again on the People are obliged to pay the Subſidies, ſuch a
other hand, the People may recal any A& of Ho- Prince lays upon them, upon ſuch Reaſons of State: :
mage which the Prince hath remitted without So are they obliged to redeem what was Mort-
their Confent. And it further follows that a gaged upon ſuch Reaſons. Since the thing is the
Prince cannot mortgage any part of his Dominions
, lame, whether they pay the Money before-hand,
ſo that the Government of it, and Natural Pof- to prevent the neceſſity of the Mortgage, or
the Conſent of his people, and the deem it. And here it is manifeft, that every par-
Part engag‘d by the Mortgage ; and much leſs if ticular Subje& is not the Debtor of that Money,
there be any Conditions of (c) Forfeiture annex’d. tho' every one be obliged to contribute his ſhare
Not only becauſe a fi- to diſcharge it (d), (3), So alſo, where the Prince
nał Alienation is generally the Conſequence of lays out Money for the uſe of the Publick out
Mortgaging; but beſides, becauſe the People when of his own private Eſtate
, the Commonwealth
they made Choice of their Prince, choſe to be go- muſt be ſuppoſed to Mortgage to him the Publick
vern’d by him, and not by any other
. And becauſe Patrimony upon that Account, till ſuch time as
it may juſtly be preſumed, that they that are the Debts contracted upon it are clear'd by the
ftri
,
Parts and Diviſions.
Capitulation, which provideth otherwiſe, and
XI. And it is alſo further evident, either enlargeth or confineth the Rights of the
That the Prince hath no Power, Prince or People.
any thing in-700
without Conſent of his people, to a- more feris bra
corporated in do za
10 nad zwierätse
word Vol bnb
A Prince can.
not make his
Nor Alienate
CM
че:
the Crown.
(6) Sub onere Commili
(a) Ammian. Marcellinus, 1: 25. c. 12. Zojimus, 1. 3: (1) See Grot, B. 2. c.
ex Felonia. 70
(C) Lex Commiſoria,
) Vid. Grot. ubi fupra, f, 11, 12, 13 entendre
Grot, B. 2. c. 6. f. 9.
Seneco de Beneficiis, L. 6. c. 2012 (3) See Grotius, B. 3. c. 2. f, 1.
* Alluvionum Jus. (d) Vid.
nu
. វែងបាន។
0211
: اگر مسافر زن را از بدن را یاد گا
C HA P.

Chap. VỊ.
87
Of the Right of War .
C H A P. VI.
Of the Right of War.
SIN
Man ; War ex-
INCE every particular Man form the Service their Maſters are pleas'd to uſe
The Diviſion of
in a Liberty of Nature hath the them in. But the Reaſon of that Obedience goes
what follows in
ſame Natural Right, States and
the Chapter.
no higher than the Fear of Blows, or the Temp-
Commonwealths have, to defend tation of Good Keeping; for the Senſe of any
himſelf againſt unjaft Violence, and to defend Obligation, without doubt, lies much out of
and affert his Rights by Force, when others injure their Reach. We find too, that Beaſts are ſel-
him in, or endeavour to deprive him of them: it dom inclin'd to hurt Men, or one another ; but
will
, I think, be a proper Method to enquire, this muſt be ſuppoſed either the Effect of Fear
First. What may be ſuppoſed Common to the and Weaknefs, or becauſe they find nothing to
Wars of particular Men, and Common-wealths. Provoke their Appetite. Again, there are others
And then Secondly, what hath either by Cuſtom of them that ſeem to be Fond of, and to Careſs
of Nations, or by Nature, been appropriated to and Aflift one another. But it is not to be fuppo-
the Latter.
ſed, that they do ſo, becauſe they are ſenſible
II. Firſt therefore, 'tis certain they are obliged to it (b). But notwithſtanding,
Peace the ordina. that nothing is more Conſonant it is very lawful, and may ſometimes be necefla-
ry proper State of to the Law of Nature, than that ry for Man himſelf to make War ; for Example,
traordinarily in-
no Man ſhould offer Únjuft Vio. when he finds that another Perſon hath mali-
dulged by Nature. lence or Injury to another; and ciouſly deſign'd to do him Harm, or denies him
on the other Hand, than that all his Right. For in ſuch Caſes, the Care he is ſup.
Men ſhould ſhow Kindneſs and Humanity to one poſed to have of his own Safety, giveth him
another, and be particularly exact in the Obſer- Power to Defend himſelf, and Affert his Right,
vation of Agreements and Compacts. And when what ways he thinks beft, tho' it be with the
Men duly attend to, and obey theſe Laws, they hurt of the injurious Perſon; or to recover his Right
may be ſaid to enjoy Peace; which is a State moſt by force, when he cannot obtain it by eaſier means (c).
agreeable to Human Nature, which tends moft For Nature hath not only given Man a quick
to promote its Happineſs and Security, and in. Senſe of Injuries, that he might not ſuffer him-
deed which the Law of Nature was given to Men ſelf to be Oppreſs’d and Inſulted; but ſhe hath
principally to Eſtabliſh and Preſerve (a). Nay alſo armed him with Strength and Agility of Bo-
further, Peace is a State proper to Human Nature, dy, that he ſhould not be forced tamely to ſubmit.
as ſuch, ſince it ariſeth from a Principle peculiar But then, when Nature permits War, Peace is the
to Mankind above the Brutes ; whereas War flows Price and Reward of War. And when Men are for-
from Principles common to both. Brutes indeed ced to fight, it is not becauſe they are to make
by Inſtinct of Nature will endeavour to Defend War perpetually, but that they may enjoy a laſt-
and Preſerve themſelves as well as they can (1). ing Peace and Security for the Future (d). Buć
But Man alone underſtands the Nature and Con- beſides, tho’the Perſon that doth Harm, doth im-
ftitution of Peace. For it is he only, that can vo mediately, as far as he is concern'd, give a Man
luntarily undertake or forbear the Performance of Power to make War upon him, yet it ought to be
any Action which may bring Good or Harm up- conſider’d, what Good or Evil may probably be
on another Perſon, upon a Conſideration of cer- brought upon himſelf or others that did him no
tain Obligations on one ſide, and certain Rights Injury by it. For Injuries, which do not entirely
on another. All which depends entirely upon the rob a Man of Quiet and Safety, ought not to pro.
Uſe and Exerciſe of Reaſon. Beaſts indeed, per. voke him to revenge them with War; when either
(a) Vid. Polyb. 1. 12. C. 14.
(1) Vid. Laftan Inſtitut. Divin. L. 5.c 19.
(b) To this purpoſe is that Parage of Quintilian, Declam.9. p. 128, 129. Ed. Lugd. Bat. Nature ſeems to have infuſed
into Man, more than into other Creatures, a certain Sociableneſs of Temper and Conſtitution, which has taught us to
think our ſelyes Happy in one another's Company and Converſation, to unite into Nations, and erect Cities and Common-
wealths; And among all the Impreſſions ſhe hath made upon our Souls, there is none that can be of greater Uſe to us,
than that of Kindneſs and Good-Will. For what can we imagine Happier than Mankind, if all the World could be
per-
fwaded to be Friends? We ſhould have no Wars, Seditions, Robberies, Quarrels, and Diſputes, or any of thoſe Evils
which we our félves add to thoſe of Fortune. It hath pleas'd Heaven indeed, that it ſhould be otherwiſe, but however
the World harh always been agreed, that Sincerity, Integrity, and Gratitude, ought to be the great Principles in the
Compoſition of every Brave and Noble Spirit.
(C) Di&tys Cretenfis, 1. 2.c 21. p. 44. Ed. Amft. Max. Tyrius, Differt. 14. p. 138 Ed. Ludg. Bat. A good Man never be-
gins a War but when he is forced to it, but a bad Man makes it his Choice. V. Bæcler in Grot. 1. 1. c. 3. f. 1.
(d) Ariftot. ad Nicom. 1. 10. C. 7. We make War that we may live in Peace There is no body that deſires, or makes Pre-
parations for War, purely for the ſake of the War it ſelf. For a Man muſt be of an Inhuman Temper, that will make
Enemies of his Friends, barely for the Satisfaction of the Quarrel. Tacit. Hift. 1 4. c. 76. There is no Body ſo for-
ward in taking Arms, that had not rather obtain that peaceably, which he truſts to the Deciſion of a War. And therefore
it is a very ill Character of fome, which Silius Italicus deſcribes, 1. 3 v. 330, 331.
d'Nec vitam fine Marte pati: quippe omnis in Armis, They think Life pleaſant when in Arms employ’d,
Lucis caufa fita eft, ego damnatum vivere paci,
But dull and worthleſs if in Peace enjoy'd.
the
88
Of the Right of War.
Book VIII
to us.
The Former (3) are,
up
Arms,
Plato in the ift
Adultery ſuppoſing Marriage ; whereas,
againſt any
the Inconveniencies he may bring upon himſelf
, ruining our Eſtates. Secondly, to affert our Rights
and thoſe that belong to him by it, are like to be when others who are juſtly obliged, refuſe to pay them
greater than the Advantages he can propoſe ; or
And laſtly, to recover Satisfaction for Da-
when others he at preſent is at Peace with, mult mages we have injuriouſly Suſtained, and to force the
by his War ſuffer fuch Evils, as by the Laws of Person that did the Injury, to give Caution for his
Humanity, on a quiet Submiſſion to the Injuries good Behaviour for the future (2). And hence arifeth
offer’d, he ought to defend them from.
And the Diviſion of juſt Wars into Offenſive and De-
therefore, That a Man is juſtly to be commend. fenfive. The Latter of which, I take to be thoſe
ed, that will not revenge an Injury, when he fores of Wars, in which Men endeavour to defend
fees that a War will, in all Probability, produce and keep what is their own.
greater Evils than Good.
when Men extort their Rights that are denied by
III. The Cauſes of juft War may be force, attempt to recover what hath been unjuſtly
War either reduced to theſe three Heads. (1) Firſt, taken from them, and require Caution for the
or before to defend our feldes and Properties againſt future. Sometimes indeed, the Party chat firft
five. other's that deſign to do us Harm, either by began the War, may have the Credit of being on
in al'aulting our Perſons, or taking away or the Defenſive. For Inſtance, ſuppoſe he be often
Wat we can
Taster
(1) When we make War, we complain of ſomething that has been done by thoſe againſt whom we take
me to those
We fay, that they have cheated us, that they have inſulted us, and taken our Goods from us.
• Alcibiad. p. 109 A. I. 11. Ed. H. Steph. 432; T. Ed. Wechel. Ticin. See Grotius Lib. 11. cap. 1. Sect. 1, 2. Our Author here
tacitly exelades from the Number of Lawful Cauſes of War, the Puniſhing of Criminal A&tions; by which we are not it-
jur'd ourſelves, But we have ſhewn above (Chap. IIl. Sect
. 4 Note 3.) that the Reaſon on which he eltabliſhes his
Opinion, is
very
ſolid. It is true, that from Equal to Equal, we muſt not lightly take up Aris to puniſh all forts of
Crimes, that do not relate to our felves, we muſt always uſe the following Precautions, which Grotius juftly recom-
mends to us. I. Not to take 'em up for puniſhing the Violation of the Maxims of the Law of Nature, which is contrary only
to certain Cuftoms, tho' receiv'd upon ſome Foundation, among ſeveral Nations ; ſuch as were almoſt all thoſe that gave the
Antient Greeks ſuch an Antipathy againſt the Perſians. For this Reaſon (ſays 7. Freder. Gronovius thereupon) King Darius
was to blame, to require the Cárthaginians to eat no more Dogs-Fleſh, and not to burn their dead Bodies; ſince theſe
two Cuſtoms had nothing in 'em to give a juft occaſion of War : But what he pretended, at the ſame time, I mean their
not offering any human Sacrifice, was manifeſtly founded upon the Law of Nature. (Juft. Hift Lib. XIX. cap. I. Num. 10.
Ed. Græv.)" 11. Not lightly to place in the Number of Thing's forbidden by Nature, thoſe which we are not well aſured are
contrary to it, and which are rather fimply prohibited by a Divine poſitive Law: ſuch are perhaps Conjunctions out of Mar-
riage, and thoſe which are call'd Inceftuous. Grotius here adds Uſury; but let us ſet aſide the Abuſe of it, and there is
nothing in it contrary to the Law of Nature, as we have fhewn in another place. III. To diſtinguiſh carefully the general
Principles of the Law of Nature, ſuch as, we muſt live honeftly, that is to ſay, after a manner conformable to Reafon,
and ſome others like that, but which are manifeftly inconteſtable, as when we ſay, that we muſt not take acvay another Man's
Goods ; from the Conſequences that we draw from 'em : Some of which are eaſie to be perceived, ſuch is the Prohibition of
,
we propoſe nothing but Evil for Evil, is criminal----As then political Legiſlators excuſe thoſe to whom their Laws have been
declar'd, or who are uncrpable of underſtanding 'em : So in matters of Natural Laws, it is juſt to excuſe thoſe that violate 'em,
through the Weakneſs of their Underftanding, or the Unhappineſs of an ill Education.-----IV. In ſhort, Wars undertaken only
to puniſh thoſe againft whom we take up Arms, are ſuſpected of Injuſtice, when the Crime is not undeniably plain, and
very
flagrant, or when there is no other Reafon beſides, that makes a juft War. This is what Grotius fays, Lib. II. Cap. 20.
Seet 41, 42, 43
In the following Paragraphs, to the end of the Chapter, he treats of religious Wars; that is of thoſe
which we undertake againſt ſuch as have on that account, fome Principle, or Practice different from ours (for as to the
reft, it is clear that we may defend our ſelves againſt thoſe who would hinder us from profeſſing that Religion which we
believe to be the beſt) all that he ſays amounts to this, that we cannot lawfully take up Arms for this lingle Reaſon,
adoring. (See Mt. Buddeus's Differtation on the Cruſades; in his Select Jur. Nat. & Gent. p.97, &c.) So far is a ſimple
difference of Opinion in other Tenets of Religion from giving any juſt Cauſe of purſuing by force of Arms, or diſturbing
in the leaſt thoſe whom we believe to be in an Error. However, I queſtion not but that' Proteſtant Princes
may with a
ſafe Conſcience enter into a Confederacy to deſtroy the Inquiſition, and force the Powers that ſuffer it in their Dominions,
to diſarm this grand Cabal, under which Chriſtianity has groan'd ſo long, and which under a falſe Pretence to Zeal, ex-
erciſes a Tyranny the moſt horrible and contrary to human Society that ever was. Thoſe who love to acquire Glory by
their Arms, cannot find a fairer or more lawful Occaſion of ſignalizing their Valour, fuppofing they had otherwiſe, a
fufficient ftrength to embark in this Undertaking; and never would any Hero have tam'd Monſters more furious and
terrible to Mankind, than he that could accompliſh the Deſign of purging the Earth of theſe villanous Souls, who ſo
iinpudently abuſe it under the ſpecious ſhew of Religion, only to haye wherewith to indulge themſelves in Pride, Luxu.
ry, and Lazineſs, and to make both Princes and Subjects depending on 'em, and live under their Subjection. Mr. Barbeyrac's
firſt Note on this Sect. p. 444, Egc.
(2) Upon which we muſt refer to our Obfervation in another place, that in a Caſe of Neceſſity, an imperfect Right is
chang'd into a perfe&t Right ; ſo that then the refuſal of him that will not yield up to us what he ought to do, gives a juſt
occaſion of War. His 2 Note, p. 455.
(3) In thc fourth Tom of the Obſervations Choifios, printed at Hall in Saxony. Obferv. VIII
Reflections, which I will here ſet down in the very Words of Mr. Bernard, who has given us an Abftra& of
in Nouvel. de la Rep. des Lett. Sept. 1704. p. 304, &c. 'Tis now a days the Cuſtom to excuſe the moſt un-
juft Wars, by faying they are purely Defenſive Wars. There are fome People that believe, that every unjuſt War,
onght to be callid Ofenfove, which is not true; for if there are Offenſive Wars that are juſt, as there is no
doubt of it; there are alſo Defenſive Wars that are unjuſt
, as when we defend our felves againſt a Prince who has
Reaſon to attack us. Neither muft we believe that he who is the firft Aggreffor, begins by that an Ofenfive War ; and
that the other who demands Satisfa&tion for the Injury receiv'd, is always only upon the Defenſive. There are
a great
many unjuſt Acts that may kindle a War, and which 'however are not the War ; 'as the ill
Treatment of a Prince's Am-
baffadors, or the plundering his Subjeêts': If then we take up Arms to revenge ſuch an unjuſt A&, we begin an Offenfive
but a juſt War; and the Prince who has done the Injury, and refuſes to give Satisfaction, commences Defenſive, but an
unjuft War. An Offenfive War then is not unjuſt, but when it is undertaken without a lawful Caufe ; and then Defenſive
War, which upon-other Occafions would be únjuſt, becomes juft. In general then, he that firât takes up Arms, whether
he does it juftly or unjuſtly, commences an offenfive War; and he that oppoſes that War, whether he has or has not Rea.
fon to do fo, begins a Defenfive one. Thoſe who look upon the Word Offenfive War, to be an odious Term, as containing
ſomething that is always unjuſt; and who conſider, on the contrary, a Defenfive War, as inſeparable from Equity, con
found all the Ideas, and perplex an Affair, which of it ſelf, would appear plain and clear enough. It is with Princesas
with private Perſons : The Plaintif who cointhences a Suit at Law, is fometimes in the wrong; and Tometimes alſo he has
right on his fide : It is juſt to with the Defendarit
. We are in the wrong not to pay a Sum that is juftly due ; as we are
in the right to forbear paying what we do not owe. Mr. Barbeyrac's Note, p. 456.

There are fome
cm,
alarm'd
Chap. VỊ.
Of the Right of War.
89

any
Ex-
We under-
any other Ting
fons on both fides. See Grotius, Lib. II. Cap. 23. Sect. 13. Mr. Barbeyrac's ſecond Note, p. 457. (3) See Grot, B. 2. c. 24.
Alarm’d and Harraſs’d with ſudden Incurſions bable, will be Effects of undertaking or forbear-
upon him, the Enemy retiring always when he ing the War. In theſe Caſes therefore, as no un-
appears to oppoſe him ; or ſuppoſe a Man be certain Pretenſions (3) ought to be made uſe of;
affured that his Enemy hath form’d Deſigns fo neither ſhould Men immediately ſeek Redreſs
againſt him, and ſo diſables him for the At- by Arms, but ſincerely endeavour, and that theſe
tempt, while he is making his Preparation (a). three ways eſpecially, to compoſe the Differences,
IV. But in general, the Cauſes (1), before they break out into a War. Firſt, by Con-
The Cauſes of of every War, and eſpecially of ference between the Parties, or their Agents (4).
War ought to
be manifeft.
the Offenſive, ought to be evident, Secondly, by Appeal to Arbiters (4). Or in the
and without mixture of Doubt and laſt Place by Lot (5) (b). But how evident fo-
Uncertainty (2). For it is very uſual in Caſes of ever the Cauſes of War may be, a wiſe Man be-
this Nature, for Doubts to ariſe ; either perhaps fore he draws his Sword, ought to conſider what
out of Ignorance of Matter of Fact, when it is Grotius ſays, that it is a great Folly in particular
not abſolutely certain, whether it was done or Men, as well as Commonwealths, not to accept
not ; with what Intention it was done ; or elſe of Accommodation, or hear of Reconcilement,
out of a negligent, Night Compariſon between while things ſtand whole on both ſides; But when
ſtrict Juſtice and the Laws of Love and Charity ; they have ſufficiently puriſhed and mortified one another,
or, it may be, from a miſtaken Computation of then quietly to give over, without giving any Body the
che proportion of the Utilities, which it is pro- trouble of pari ing them (c).
(a) Vid. Juſtin 1. 2. c. 3. n. 12,
(i) See Grot. B. 2. c. 1. f. 1 and c. 22, f. 2. Grotius (Lib. II
Grotius (Lib. II Cap. 1. Se&. 1. & Cap: 22.) divides 'em into jufti-
fying Peafons, and Motives of the War: (caufæ juftifice, Ego cauſa fuaforiæ) the firſt are thoſe that render or feem to render
the War just with regard to the Enemy, fo that we believe we do him no injuſtice in taking up Arms againſt him. The
Motives are the Views of Intereſt which oblige us to declare War. In a Wár, innocent upon all other Accounts, the
juſtifying Reaſons muſt not only be truly lawful, but muſt be blended with the Motives ; that is, that we muſt never un-
dertake a War but through the Neceſſity to which we are reduced of defending our ſelves againſt another's Inſults, of
making him give up what is our undoubted Right, and of obtaining a Satisfaction for an apparent Injury done us. Thus
a War
may be vicious or unjuſt, with regard to the Cauſes, Four ſeveral ways. Firſt, when we undertake it either without
any juftifying Caufe, or any Motive of Profit tho' never ſo little, but only out of a fierce and brutal Fury, that makes us
delight in Blood and Slaughter purely for the ſake of killing. But there is Reaſon to doubt, whether we can find
ample of ſo barbarous a War. (See Grotius, Lib. II. Cap: 22. Sect. 2.) Secondly, When we attack others only for our
own Intereſt, without their having done us any Injury. "And theſe forts of Wars, are, with reſpect to the Aggreflor,
down right Robberies. (See Grotius, ibid. Se&t. 3.) Thirdly, When we have fome Motives founded upon juftifying
Reaſons, but which ſtill have only an apparent Equity, and which upon a nice Examination, are found at the
bottom to be unlawful. Such are thoſe mention'd by our Author in the following Section, after Grotius (ubi
4
publick or private, but quite divefted of the juftifying Reaſons of the War in which we are engag d. (See Grotius, ibid.
Se&t. 17.) of theſe four forts of Wars, whoſe Undertaking contains ſomething that is juft, or unjuſt, the third and the laſt
are very common, there being very few People ſo barbarous and ſavage as to take up Arms, without declaring at leait
fome fort of juſtifying Reaſon. The third is alſo very common; but it is not difficult to diſcover the injuſtice of it
for the fourth, perhaps it is the moſt common of all, it is not ſo unjuſt in its felf, as with regard to the Diſpoſition and
Views of him that does it. It is beſides very difficult to be convinced of it ; the Motives being generally ſo impenetrable,
or the greateſt part of Mankind fo very careful in concealing them. Thus we are not obligd to reſtore what we have
taken from the Enemy in fuch a War, exactly to the value of the Damage and Injury he has doneus This is taken iala
moſt from Mr. Buddeus's Philoſophie Pratique, Part II. Cap. 5. Se&t. II, Bc. As he does very little beſides abridging
Grotius, in all this, I ſhall here make uſe of his Book, in ſome other Places ; and by that, as well as by Grotius himſelf,
and alſo by the Abftract de Officio Hom. Ego civ. I will ſupply what our Author wants, who has but lightly treated
of all that concerns the Right of War and Peace, without doubt becauſe Grotius had already almoſt exhauſted the Mat-
ter. Moreover, whoever is deſirous to ſee the Application of what we have juſt now faid in this Note, to remarkable
Examples ; need only, conſult Mr. Buddeus's Differtation intituled, Juriſprudentia Hiftorica Specimen, Se&t. 8. &.c. Seqg:
in which he examines the Juſtice of the Wars of the Romans. Mr. Barbeyrac's firſt Note upon this section. pag. 456, 457,
1. (2) See above, in B. 1, c. 3. 1. 7, 8. and Grot. B. 2. c. 23.1. 1, 2, 3, 4, 5, 6, and 16. Beſides, To the Queſtion whether
there can be a juſt War on both fides ; Mr. Buddeus in his Philoſophie Pratique, ſ 16. anfwers no, if we conſider the Juftneſs
of the Cauſe in its ſelf. For it implies a manifeft Contradi&tion, that two Perſons ſhould have equal Right, the one
to demand, and the other to refuſe one and the ſame thing. But it may happen, that one of the two that are
at War together, may have a very lawful Reaſon for it; and the other be in an invincible Ignorance of the
injuſtice of his Cauſe. In that Caſe, both of 'em make War juftly and unjuftly; the invincible Ignorance on his
fide, whoſe Cauſe is unjuſt, hindering his A&tion from being reputed unjuſt in its ſelf
. But that cannot happen but very
rarely'; for thoſe who engage in a War, examine, or at lealt ought to examine, with a great deal of Care, all the Rea-
& (4) See above, in B. 5 c. 13. f. 3. (5) See the fame Book and Chapter, ſ. 4, &c. (6) See the fame Book, c. 9.
(6) Valerius Flaccus, 1.5 v. 665, &c. adica
1999 An nullas preferre preces nec fædera Regis
Never to peaceful Overture to yield,
YnUlla ſequi caca ſed cun&ta impellere Pugnala unit
Or ſacred League, but in the bloody Field
Debuimus ? fic Thraces agunt.
Alway in Arms to breath relentleſs War,
None but the wildeſt Sayages will dare.
(c) Iſocrates Orat. ad Philip. p. 154. Ed. Min. Parif. This Period is taken from the Abftract de Officio Hom. Ego Civ. Lib.
II Cap. 16 Se&. 3. See Grotius, Lib. 11. Cap. 23. Se&. 11, 12, where he makes the two following Remarks, which
are worth our taking notice of here. The firſt is, that what Aſſurance foever we may have of the Juftice of our Cauſe,
if it is not in our Power to produce a Title ſufficient to convince him that detains what is ours, of the Illegality of his
Poffeffion, we cannot lawfully declare War againſt him on that account; becaufe in that Cafe, we have no right to
force him to deliver up to us the thing he is poffefs'd of. Beſides, if the Poffeffor is a Perſon of no honefty or ſincerity,
ſhould have loſt the Deeds, that were neceſſary to be produced before the Arbitrators ; that would diminiſh no-
thing from our Pretenſions, nor hinder us from purſuing our Right by force of Arms; as our Author has obſerv'd above,
* M
V. The


As
f 2, 3.
1

tho
we
90
Of the Right of War.
Book VIII.
recounted.
And
V. The Unjuft Cauſes of War are gainſt him (d). For as long as my Neighbour
The Unjuft recounted by Grotius, 1. 2. C. 22. f. doth me no Injury, and I do not apparently take
Cauſes of War
5,.&c. Some of them are manifeft- him in any Preparation for ſuch a Deſign, (for
ly Unlawful. Others of them have ſometimes an intended Injury, and bue begun,
ſome Colour to be thought Lawful, tho it be but may as juſtly be puniſh’d with War, as an Injury
weak and faint. Under the firſt Rank is to be that is finiſhed) 1 ought to preſume, he will al
placed Avarice and all extravagant Deſire of encrea- ways continue in the ſame Mind. But eſpecial-
fing Wealth, as alſo Ambition, and the Hopes of enlar- y, If I have his Word and Faith to affure me of
ging Rule and Dominion, of growing Great
, and pur- his Sincerity. And it would
be extreamly Unjuft
Chaſing a falſe Fame and Glory, by the Oppreſſion of o. in me to force him to give me Real Caution. Bes
thers. Avarice is a Cauſe of War uſually conceald cauſe thus he muſt be in a more ſuſpected Condi-
and diffembled with great Care, becauſe it fup. tion than my felf, being forced himſelf to rely
poſes a baſe and ſordid Spirit
. But Ambition is upon my Faith alone. Suppoſing indeed, that
generally favour'd in the World, under the Name there be Juſt Cauſe of War, the Growth and Power
of Gallantry and Fortitude. And it is common of Neighbours may very well deſerve immediate
ly thought Greatneſs and Bravery of Mind, to Conſideration and Regard, in Debates about it.
graſp after, and fight for what belongs to other For Experience hath often proved it crue, that
Men. But yet Princes as Philiſcus told Alexander (1), Men's Deſires of being Great, encreaſe in Pro-
Tho they are never fo Ambitious of Glory, ſhould not portion to their Strength and Power (e).
think it any, to be remember'd, as Famines and Peſti- it is Natural for Men to be ſuſpicious, and a-
lences are, as the Plagues of Mankind; but as the grea • fraid of being oppreſs’d, whenever they appre-
teſt Bleſſings, as Peace and Happineſs. For tho the chend that there is an Over-Balance of Power
Great GOD often makes uſe of War to Purge in their Neighbours;
in their Neighbours; for it is eaſie to imagine,
and Puniſh the World (a); yet when Princes that ſuch as have too great a ſhare of Strength,
make War without any other Deſign than that, it will find Reaſons when they pleaſe to make Ule
is the greateſt Impiety. And yet the Fews of it, upon them that are Weaker, tho' they do
thought that they were allow'd, when their San nothing to deſerve it. But now as for Utility, to
hedrin declared War, tho' without any other Rea. make that a Cauſe of War, or to pretend the ſame
ſon, than barely for the Greatneſs and Glory of Right from thence to what belongeth to Others,
their Nation, to invade their Neighbours, and if as Neceflity may give, is Unpardonably Impu-
they could, make an abſolute Conqueſt of them dent. Tho' it is no more than what the
Aibenians,
(b). Under the Latter Claſs may be Rank'd in Thucydides (2), ſaid for themſelves, " That no
Fears, which ariſe from the Strength and Power of Body is ſo much a Friend to Juſtice, as to neg-
Neighbours; and when Men think, as she Poet ſays
, lect an Opportunity of poflefling himſelf of
They don't want Will to do what they have Power (c). what he can get by Force, barely becauſe it is
But this ſingle Suſpicion is not ſufficient to make Unjuſt. Eſpecially, ſince nothing can be more
a Cauſe of War Fuſt, unleſs Men have very good oppoſite to the Publick Intereſt of Mankind, than
Moral Certainty, that they have form'd Deſigns to admit the Introduction of ſuch a Right, which
againſt them. For an uncertain Jealouſie of will give a Man leave to take away any thing by
Danger, may be reaſon enough to perſwade a Force from another Perſon, which he thinks will
Man to be Circumſpect, and Fortify himſelf as be an Advantage to himſelf. For it muſt be expect-
well as he can, but can never give him a Right ed that other Perſons will uſe him with the fame
to ſtrike the firſt Blow, tho' it be only with In- Liberty, he takes with them. And as to other
tent that the other ſhould give him Real Caution, Pretences for War, which Grotius mentions in the
as they call it, that he will attempt nothing a- fame Place, they may be anſwered the ſame way.

C
Book V. Chap. 13. Sect.8 Grotius's other Remark is, that when the Right is doubtful on both ſides, if neither of the
Parties is in Poffeſfion of the thing in Diſpute between 'em, or if both of 'em are equally poſſeſs’d of it; they muſt
decide the matter by way of Divilion ; and he that refuſes this Expedient, ought to be look'd upon to be unjuſt, and an
Enemy to Peace.
(1) Vid. Ælian. V. H. L. 14. c. 11. (a) As in Euripides, Hellena, v. 38, &c. Jupiter is ſaid to have engaged the
Greeks and Phrygians in a Quarrel.
To eaſe the Earth of her too numerous Sons.
(6) Seldenus, de J. N. & G. Sec. Hebr. 1. 6. c. 3. & 12. To which we may add a fine paſſage of Cicero's, up-
on the falſe Idea of Conquerors. “If this Greatneſs of Soul which they ſhew in bearing Fatigues, and expoſing them-
• ſelves to the moſt hazardous Dangers, is not adorn’d wich a large Stock of Juſtice ; and if they uſe it for themſelves,
• and their own private Advantage, inſtead of imploying it for the publick Good; ſo far is it from being a Virtue, that it
' is a Vice, and a downright Fierceneſs, that ſtifies all Sentiments of Humanity and Tenderneſs. de Officio Lib I. cap.
XIX.
(c) Lucan. Pharſal. 1. 3. v. 100, 101. (d) Gellius, 1. 7. c. 3. A Gladiator that prepares himſelf to fight, muft accept
of theſe Conditions of Combat, either to kill his Enemy, or to fall himſelf; but the Life of Man is not confin’d by any
ſuch hard and ſevere Laws, as to oblige us to do others Injuries Firſt, that we might not Suffer them our Selves.
(e) V. Cumberland. de Leg. Nat. C. 2. f. 15. in fin. Bacon's Eflays, c. 19. Seneca, Oedip. v. 542, 543. Stat ingens arbor at-
que
umbra
gravi ſylvas minores urget.
A lofty Tree that ſtands, which with its Shade
Oppreſſeth all the Under-wood.
Procop. Hiſt
. Goth. 1. 4. Herodes Orat. de Repub. Neighbouring Nations are never concern’d at the Miſchiefs which befal
one another from their own Domeſtick Broils and Quarrels; the weaker have no reaſon, becauſe thus they are ſecure
from being enſlaved, they that are equal in Strength, think of gaining a Superiority by it, and the ſtrongeſt of purcha,
fing an ealier Conqueſt
. Polyb. 1 1. c. 83. A Man ſhould never truſt another with lo much Power, as to place him out
his reach, when he is to conteſt with him about any Right that is confeffedly his own. Appianus Alexand. Lybic: P:32:
Ed. Steph. Tho' it be a Friend, yet it is neceſſary to be cautious how he is made too Great.
(2) B. 1. c. 76. Ed. Oxon.


2
My

Chap. VI.
Of the Right of War.
a Torre
as
ot
My Lord Bacon in his Advancement of Learning, gives me a Liberty to uſe Violence againſt him in
gives this for a ſufficient Reaſon for making War
up. infinitum, or as far as I pleaſe. Eſpecially fince,
on the Americans (a), which I muſt confefs, I if I am not allow'd this Liberty, bue neceſſarily
cannot agree with him in : That they were to obliged to confine my Violence within certain
be look'd upon as People proſcribed by the Law Bounds, and in no caſe to proceed to Extremities;
of Nature, inaſmuch as they had a barbarous the proper end of War, whether Offenſive or De-
• Cuftom of facrificing Men, and feeding upon fenſive, can never be obtain'd. And therefore
• Man's Fleſh. For it ought to be diſtinctly con every open publick War, ſeems to have ſomething
ſidered, whether Chriſtian Princes have ſufficient in it, like ſuch a ſort of Compact, Try your Strength,
Licence given them to invade thoſe Indians, as and I will try Mine. And this holds, not only
People proſcribed by Nature, only becauſe they where my Enemy reſolves to puſh things to the
made Man's (1) Fleſh their common Food ? Or utmoſt againſt me, but alſo, tho' he deſigns to
becauſe, they eat the Bodies of Perſons of their deſtroy me, without going to Extremities. For
own Religion; or becauſe, they devoured he hath no more Right to give me a ſlight
Strangers and Foreigners? And then again it Wound, than one that may prove Mortal. And
muſt be ask'd, whether thoſe Strangers they are therefore, it is not only ſo far lawful for me to
ſaid to kill and eat, come as Enemies and Rob- uſe Violence againſt my Enemy, till I have re-
bers; or as innocent Gueſts and Travellers; or pulſed the Danger he threatned me, or till I have
forc'd by ſtreſs of Weacher ? For this laſt Caſe recovered, or forced from him what he either
only, not any of the others, can give any Prince unjuſtly Deprived me of, or refuſed to pay me ;
a Right of War againſt them; and this to thoſe but I may further oblige him to give me Caution
Princes only, whoſe Subjects have been uſed for the future. Which if he fuffers to be forced
with that Inhumanity by them.
from him, he ſufficiently diſcovers, that he ſtill
VI. Tho' it be alſo common to entertains malicious Deſigns againſt me, and
Fraud lawful all ſorts of War, that the particular that one time or other, he may put them in Exe-
againſt an
Enemy.
Nature
, and, as I may call it, Genius of cution. Neither indeed is it always unjuſt, to
them is Violence and Terrour , yec it return a greater Evil for a leſs. It may tis true,
is alſo lawful to make uſe of Stratagem and Fraud, be objected, that Retribution ought to be made
againſt any Enemy; provided there be no Trea- in due Proportion ; but it muſt be ſaid, that this
chery or Violation of Compact and Faith in it. is to be applied only to Courts of Judicature, where
For as Agefilaus ſaid, To break the Faith of Articles Puniſhments are inflicted always by Superiours.
and Leagues, is no leſs than a Contempt of GOD. The Evils which are the Effects of a Right of
But to Circumvent an Enemy, is well enough conſiſtent War, are properly Puniſhments, becauſe they
with Juſtice, and may be attended with as much Glory are not inflicted by a Superiour as ſuch, nor have
as Succeſs (b). And the proper Senſe of that famed any Tendency to reform either the injurious Per-
Saying of Cleandridas, implies no more ; When ſon or any others, but only to defend or regain
the Lyon's Skin fails, it is neceſsary to put on the Fox's the Security of a particular Man's Rights and
(c).
Properties. In purſuance of which end, it is
VII. But the better to underſtand lawful for me to make uſe of ſuch Means as I
How far Vio- how far it is lawful to purſue Re- think will beſt prevail againſt a Perſon, who by
lence may be
venge, and uſe Violence againſt an his injurious Treatment of me, hath put me out
lawfully uſed
Enemy, it will be neceſſary to ob- of all Capacity of doing him any Injury, till
againſt an
Enemy.
ſerve; That there is a great deal of ſuch time as it ſhall be agreed between us, to
difference between the Liberties forbear Hoftilities. But now the Law of Humanity
which a State of Hoftility ſimply conſidered, gives would have Men confider, not only what art
a Man againſt his Enemy, and the Liberties which Enemy may ſuffer without Injury, but what it
the Mercifulneſs and Gentleneſs of the Law of may be proper for a generous Conquerour to inflict.
Nature would ſuffer him to take. The Law of And therefore they ought to be particularly care-
Nature obligeth Men to a mutual Exerciſe of ful, that as far as is poſſible, and their own ne.
the Offices and Duties of Peace; and the Perſon ceſſary Defence and future Security will per-
that firſt violates them to my Prejudice, releaſes mit, to proportion the Evils they inflict upon
me, as far as lies in his Power, from paying any their Enemy, to the Meaſures and Moderation
of thoſe Offices to himſelf: And in Conſequence, obſerved by Civil Courts in puniſhing Criminals
as long as he profeſſes himſelf my Enemy, he and offenders. Upon this Moderation Grotius, (2)
(a) De Augmen. Scient. p. m. 348.
(1) If thefe Anthropophagi eat only the Fleſh of human Creatures that die a natural Death, or are killed by others
and not themſelves, how barbarous and ſavage foever ſuch a Cuſtom was, it would give us no Right to attack 'em pure-
ly for that ſingle Reaſon But ſince they themſelves kill human Creatures, either to eat 'em, or facrifice 'em to their
Idols ; 'tis a thing ſo cruel, fo contrary to Humanity, and fo deſtructive to Society and Mankind in general, that we
cannot look upon, but as juſt and commendable, a War that ſhould be undertaken to endeavour to ħave the uſe of it
aboliſh'd; tho thefe Men pra&tiſe it but only among themſelves, and always ſpared Strangers. If our Author
maintains the
e contrary, 'tis becauſe he always argues upon a Principle, whoſe Falſeneſs. I have prov'd elſewhere. See
Note 1. Sect. 3. of this Chap. & Chap. III. Sečt. 4. Note 3. Mr. Barbeyrac's 5. Note on this Sect.
pag. 459.
(b) Plutarch Apophtheg. Lacon. p. 209. B.
(c) Cleandrid. in Polyen. Stratag. L. 2.6. 10. n. 3. Vid. Xenophon. Cyropæd. 1. 1. & Grot. I 3. c. 1. f. 6. add. fupr.
1.4.c. 1.1.19
(2) Grotius (Lib. III. Cap 1. Se&. 1, 2, 3.) lays down at firſt three general Rules, which ſerve to explain the extent of
the Rights of War Firſt
, all that has a Relation morally neceſſary to the lawful end or deſign of the War, is permitted,
and no more : For it would be to no purpoſe to have a Right to do a thing, if we could not make uſe of the Means nes
ceſſary to bring it about. But at the ſame, it would not be juſt, that under the Pretence of purſuing our Right, we
is
* M 2
92
Of the Right of War.
Book VIII.

is very large, 1.3.6. 11, &c. ad 16. And the panto, ſhould be well uſed at Rome, he turn'd to
three Rules he preſcribes, 1. 3. C. 1. $. 2, 3, 4, Mahomet and ſaid aloud, Learn to be Merciful
will give us a clear View of the Liberties of of Us, You that are generally ſo cruel and bar-
Hoftility. But beſides the Uncertainties and barous to Chriſtian Captives; to which the Turke
Túrns of Fortune, which may happen in War, replied, the Cruelty, Sir, You object, is, how.
ought to perſwade Men to be very temperate in ever pardonable in Us, becauſe we never knew
the Uſe of thoſe Liberties, for fear an Alteration before what it was to be Priſoners, and be left
in Affairs ſhould, as it were, make their own to the Mercy of an Enemy. The Turks under-
Weapons recoil, and return upon themſelves the ſtood well enough how to take Priſoners, but
Uſage they gave others (a). So when Colonna, never thought of being made fuch. How they are
in Gratianus (6), gave Orders that the Turks to be dealt with (1), that ſupply an Enemy
which were taken Priſoners in the Fight at Le- with
with what he wants, may be ſeen in the
ſhould ſuffer our ſelyes to do every thing, and carry on Matters, without any, manner of Neceſſity, to the laſt Extremity.
Secondly, The Right which we purſue by Arms, ought not to be conſider'd only with regard to the Cauſe which be-
gan the War, but ftill in reference to the freſh Cauſes that happen afterwards : Juſt as at Law, one of the Parties often
acquires ſome new Right before the ending of the Suit. There lies the Foundation of our Right to act againſt thoſe that
join with our Enemy, whether they are his Dependants or no. Thirdly, There are abundance of things, which, tho
otherwiſe unlawful, are permitted, becauſe they are inevitable Conſequences of War, and happen contrary :o our In.
tention : Otherwiſe there would never be any way of making War without Injuſtice, and the moſt innocent Actions would
be look'd upon as unjuſt, ſince there are but few, from whence ſome Evil may accidentally happen, contrary to the In-
tention of the Agent. (See above, Lib. I. Cap. 5. Seet. 3 Note 6, 7) Here now follow the Particulars of the Rights
that War gives over the Enemy's Perſon and Goods; with the Moderation that ought to be obſerv'd in 'em. Firſt, Then
it is certain that we may kill an Enemy; otherwiſe our taking up Arms would be to no purpoſe. And to conſider the
thing in it felf, it is no matter which way we rob him of Lite whether by open Force, or by Fraud and Stratagem,
by the Sword, or by Poiſon; tho' according to the Notions and Cuſtoms of civilized Nations, the not only cauſing any
poiſonous Draught to be given to our Enemy, but alſo the poiſoning of Fountains, Wells, Springs, Arrows, Darts,
Bullets, and other Weapons employ'd againſt him, is eſteem'd as a baſe and criminal Cowardife, (our Author, a little
lower, Se&t. 16. handles the Queſtion, whether it is lawful to Alfaffinate our Enemy), we may alſo kill him where ever
we find him, either in his own Territories, or ours ; in places that belong to no Body, but not in Neutral States; for
violent Means are not ſuffer'd in a Civil Government, where we ought to beg the Affiftance of the Magiſtrate. Now if it
is lawful to take away our Enemy's Life, much more may we Wound, Maim, or do him any, Damage in his Perſon,
any other way whatſoever. (See Grotius, Lib. IIL. Cap. 4.) But the Rights of War do not extend fo far as to authorize
the Outrages committed upon the Honour and Chaſtity of Women : For that contributes nothing towards our Defence, or
Security, or the maintaining our Rights, but only ſerves to ſatisfie the Brutality of the Soldiers. (Grotius, ibid. Seet. 19)
Beſides, when we can defend our felves, or have Satisfaction for the Injury the Enemy has done us, without making a
Slaughter, we ought to forbear it, and not ſhed human Blood unneceſſarily. Neither muſt we directly and deliberately
take
away the Lives of Priſoners of War, nor of thoſe that demand Quarter, and ſurrender themfelves; much leſs of
Children, Women, and old Men, and in general of all thoſe who are neither of an Age, nor Profeſſion fit to bear Arms,
or who have no other ſhare in the War tħan their being in the Country, or Party of the Enemy. (See Grotius, Lib. III.
Cap. 11.) Secondly, In Relation to the Enemy's Goods ; it is plain that we may carry 'em off, ravage, ſpoil, or entirely
deſtroy 'em, even without excepting Sacred and religious things, as they call 'em, that is things delign'd for the uſe of
Religion : For thoſe belong either to the State or the Sovereign, and they are not called Sacred but on account of a
certain uſe to which they are applied. Thoſe who believe, that they contain ſomething that is Divine and Inviolable, do
ill indeed to meddle with 'em at all; but it is only becauſe they act againſt their own Conſcience. (See Grotius, Lib.
III. Cap. 5. and Mr. Buddeus's Differtation, de jure Belli circa res facras among his Sele&ta juris N. & Gent.) However,
of what Nature ſo ever the things belonging to the Enemy, are, whether Sacred or Prophane, we ought not to deſtroy
or damage 'em but as it is neceſſary and conducive to the Deſign of the War, and the accelerating of Peace. To do Evil
to another, without a Proſpeet of doing our lelves any good by it, either dire&ly or indire&ly; would be a Madneſs
equally fooliſh and criminal. There are but few, for example, that are neceſſary after the taking of a Town, and
ruining the Churches, Statues, and publick or private Buildings; but we ſhould generally ſpare all theſe as well'as the
Tombs and Sepulchers. Mr. Barbeyrac's 1 Note, on this Seet. P. 460,
(a) Vid. Diod. sicul. I. 10. c. 47. Virg. Æneid. 10. v. 533•
Belli commercia Turnus
Suftulit illa prior, jam tum Pallante perempto.
(6) Gratianus de Bello Cyprio. l. 5.
(1) To give a clear and diſtinct Idea of this Matter, ſomething
muft here be ſaid in general about Neutrality, of which our Author ſpeaks no where. I ſhall here borrow, pretty near
what Mr. Buddeus ſays in his Elemens de la Philoſophie Pratique, Part II. Cap. 5. Sezt. 6. Se&. 36, &c. There is a general
Neutrality, and there is a particular Neutrality. The general Neutrality, is, when without being in an Alliance with
either of the two Enemies engag‘d in the War
together, we are very ready to do equally to both, the good Offices which
every State is naturally bound to render to others. The particular Neutrality is, when we are particularly engaged to
Itand Neuter, by fome Compact, either expreſs’d, or tacitly. This laſt ſort of Neutrality is, either fully and entire ;
when we act equally in all Refpe&ts, towards both parties ; or limited, as when we favour one ſide more than the other,
with regard to certain Things and A&ions. We cannot lawfully force any one to enter into a particular Neutrality, be-
cauſe every one has the Liberty of making or not making Alliances and Treaties, or becauſe at leaſt they are not bound
to do it but by Virtue of an imperfe& Obligation. But he that undertakes a juft War, may oblige other Nations to ob-
ſerve an exa&t and general Neutrality, that is to fay, not to favour his Enemy more than himſelf. This then is as it
were an Abſtract of the
Duties and Obligations of Neutral Nations. They are oblig'd equally to put in pra&tice towards
both
Parties that are at War together, the Laws of Nature, as well Abſolute, as conditional
, whether they impofe a per
feit Obligation, or only an imperfe&t one. If they do one of 'em any Office of Humanity, they muſt not
refuſe it to the
fides no Right to demand. But they are not bound to do Offices of Humanity to one Party, when they expoſe themfelves
to great Dangers by refuſing them to the other, who has as much Right to demand 'em. They ought not to furniſh either
of 'em
with things employd in exerciſing Acts of Hoftility, unleſs they
are empower'd by any particular
Engagement:
uſe their beſt Endeavours to bring matters to an Accommodation, that the injur'a Party may obtain Satisfa&ion, and that
the War may be brought to a Concluſion : And if they are under any particular or private Engagement, they ought to exes
cute it punđually. On the other lide, thofe who are at War
, muft exactly obſerve, towards Neutral Nations, the Laws
.
seſity, make themſelves Maſter of a Place fituated in a Neutral country ; provided that as foon as the Danger is over,

Author

Chap. VỊ.
93
of the Right of War.
Author mentioned before, 1. 3. C. 1. 5. 5. & c. 17. he is allow'd the uſe of his own force to refift
VIII. I come now to conſider only the preſent Danger. But the further Pu-
In a Common what Difficulties and Enquiries relate niſhment of the Injury muſt be referr'd to their
wealth parti. to Wars raiſed by Commonwealths and common Sovereign ; except it appears that the
cular private Civil Governours. And here it is Perſon who makes the Affault, intends to return
Men loſe their
Right of firſt to be obferv'd, that the Right of no more into his own Country, and hath left no.
War. War, which always attends all Men thing behind him that can make Satisfa&tion for
in the State of Nature, is taken away the Injury. But if a Man be aſſaulted in any ſuch
from private (a) Perſons in Commonwealths; Place by a Foreigner, he hath Liberty, if he can
and that therefore in Civil States, Subje&s are prevail againſt him, to bring him to the laſt Ex-
not to puniſh ſuch as injure them with their own tremities. And he may alſo enter an Aktion
Swords, and as they pleaſe ; nor endeavour to againſt him in the Commonwealth he is a Sub-
recover their Rights, when denied them, by their ject of, and there demand Satisfa&tion and Puniſh-
own Force; but they muſt apply themſelves to ment, and make uſe of the Interpoſition of his
the Magiſtrates in ſuch Cafes, whoſe Duty it is to own Commonwealth. And then if Juſtice be
take care that theirWrongs be redreſs’d,Satisfa&tion denied him, his own Commonwealth hath Right
be made for Damages ſuitain'd, Caution be given to demand Satisfaction for him in a way of War.
for the future, and that every Man be maintain’d And therefore if a Man be ſet upon in the open
in his own juft Rights (b). For cho' at fome Seas, he need not give himſelf the Trouble to
Times, and in ſome Caſes, private Subje&ts may uſe all his Force; but only juſt ſo much as will
be allowed Liberry to defend themſelves with their refift preſent Danger, becauſe when his Enemy
own Strength ; yet ſuch a Liberty is by no means comes back to his own Country, he may enter
to be called a Right of War. For a Right to make an Adion againſt him there.
War, implies a Power to begin it at my own Diſ- faulted by a Subject uſed to deſpiſe and defie the
cretion, to continue ic as long as I pleaſe, and Authority of the Magiſtrate, or the Magiſtrate him-
to put an End to it by Compa&t with the Enemy. ſelf openly refuſe to do Juſtice, he muſt Right
But Subjects are never to be permitted to defend and Defend himſelf as he can, when ever he
themſelves by their own Force, except in Dan- goes out of the Dominions of his own Common-
gers unavoidable ( 1), and then no longer, wealth. But if the Magiſtrate ſhould excuſe him-
than till they have overcome them. And as nó felf, by pleading the Iniquity of the Times, or
private Subject hath a Right of War ; fo neither the bad State of the Commonwealth, and defi-
is it neceffary that Peace ſhould be made by any reth either that the Proſecution of the Cauſe
Compact of the Subjects, when the Authority of ſhould be deferr'd to ſome other time, or that
the Sovereign hath fufficiently fertled it before the negle&t of Juſtice ſhould be thoughe pardona-
Nay, tho' private Subje&s be perfe&ly reconciled ble in the preſenc unhappineſs of the Common-
to one another, yet when all is over, the Ma- wealth; every Senſible and Good Man ought to
giftrate may, if he pleaſeth, puniſh the Injury, acquieſce in, and be ſatisfied with the Anſwer.
which firſt gave occaſion to the Quarrel. But, IX. War is commonly Diſtingui-
it may indeed ſometimes happen, that any private fhed into Solemn, and Leß Solemn (2). War either for
Subje& may affume the ſame Right of Defence, In the firſt, it is neceſſary the War
ſolemn.
which he would have had in a Stare of Nature; ſhould commence and be directed
for Inſtance, if he happen'd to come into any by the Supreme Authority on both ſides, and that
place which belongs to no Conmonwealth, but it ſhould be Duly Proclaim d. (3). The Less Solemni
continues in its primitive Liberty of Nature. But Wars are thoſe that either are not publickly De-
then in this caſe it is to be conſidered, whether clared, or elſe that are levied by, or againſt pri-
the Perſon be aſſaulted by his Fellow-Subject or vate Subjects. The firſt looks like an Incurſion or
by a Stranger. For if we ſuppoſe by the Firſt, Depredation of Robbers. The ſecond ſuppoſes
they reſtore it to the right Owner, and make him Satisfa&tion for the Damage he has receiv'd by it. See what our Au.
thor has ſaid, Book II. Chap. 6. Se&t. laſt, at the End ; and Grotius, Lib. III. Cap. 1. Se&. 5. and Cap. 17. Moreover, as
to what relates to the Queſtion, whether we may hinder Neutral Nations from trading, during the War, with the Ene-
my ; See a little Letter
of our Author's publiſh'd about three or four Years ago, in a Book printed at Hamburgh, and
intituled ; Jo. Groningii Bibliotheca univerſalis Librorum Juridicorum, &c p. 195. of the Treatiſes that are in the Begin-
ning of it, and Boecler's Differtation, intituled, Quies in Turba, p. 1004. of the Colle&tion of his Diſſertations, printed
in 1701. Mr. Barbeyrac's 2 Note, on this Se&t. p. 461.
(«) Not only from private Perſons in a Commonwealth, but even from a whole entire Body of People, that are under
the Dominion of any other, or a Sovereign. However, the ancient Kings of Perfia did often permit their Subje&s to War
with one another. 'See Efther IX. 6, 896. and Mr. Le Clerc's Commentary upon it.
(6) Vid. L. 50. t. 17. 1. 176. D. de reg. juris, & L. 4. t. 2. D. Quod metus caufa geftum erit, 1 11 12, 13. & L. 43.4.
24.27.4. 3. D. quod vi aut clam. (1) See above, in B. 2. c. 5. f. 7, 8. (2) See Grot. B. 1. C. 3. 1.4
(3) The Declaration of War, conſider'd in its ſelf, and independently of the particular Formalities of every People,
does
not fimply belong to the Law of Nations, taking this Word in the senſe that Grotius and others give it, but to the
Law of Nature. Indeed, Prudence and natural Equity, equally demand, that before we take up Arms againſt any one,
we ſhould try all amicable Ways, to avoid coming to ſuch grievous Extremities. We ought then to ſummon him that
has done us any Damage, to make us a fpeedy Satisfaction, to fee if he will have regard to himſelf
, and not put us to
the hard Necellity of purſuing our Right by forcible Means. See Mr. Buddeus's Elemens de Philoſophie Pratique, Part.
II. Cap. 5. Se&. 4. Se&. 8, 9. and his Diſſertation intituled, Juriſprud. Hiftorice Specimen. Se&t. 34, where it appears,
that the Declaration of War has no place but in Offenfive Wars : For when we are a&ually attack'd, that alone gives
us Reaſon to believe, that the Enemy is abſolutely reſolved to enter into no Treaty of Accommodation. From thence
it alſo follows, that we muſt not begin A&ts of Hoftilities immediately upon declaring War; but muſt ſtay till he from
whom we receiv’d the Damage, plainly refuſes to give us Satisfaction, and has put himſelf in a Condition to receive us
with Bravery and Reſolution : Otherwiſe the Declaration of War would be nothing but a vain Ceremony, without any
Efect. See Grotius, Lib. III. Cap. i where all this matter is treated of. Mr. Barbeyrac's firft Note, on this Sect. p. 462.
that
* *
94
Of the Right of War.
Book VIII.

©
bath no
look'd upon as only a confluence of Robbers, ment than a War; yet that the Destruction of the
that one ſide or other is in Rebellion, or at leaſt der a miſtake when he ſays, 2.4.6.4.6: 4. That
in ſuch a way of Life, as can at no time make if we conſider the Thing without Relation to
the War Juft. And thus Civil Wars may happen
the Civil Laws, every Magiſtrate as he ought
to be a Species of the Leſ Solemn, when the Com- to protect the People under his Charge, ſo if
mon-wealth is ſo divided, that it doth not appear he be oppoſed by Force in the exerciſe of his
on which ſide the Sovereign is engaged. And Authority, he hath a Right to make War
. For
here it is obſervable with regard to Solemn Wars, the Defence and Protection of the People, pro-
that Authors uſually cail two diſtinæ People their perly belongs to the Sovereign, and a Magiſtrate
Generals and Governours concern’d in them Juſt E- entruſted with Furiſdiction, is only ſo far io de
nemies, in oppoſition to Robbers and Pyrates (a). fend them, as he is obliged to guard the Poor and
So Cicero ſays 66), "A juft Enemy is one that Weak by Juſtice againit the Oppreſſions of the
hath a Common-wealth, Courts of Juſtice, Rich and Great. To which End there is no ne.
and publick Treaſure under his Command. ceſſity he ſhould have a Right of making War
. By
And beſides alſo, the Conſent and Agreement the way it may be obſerved, that cho"the Slaugh-
of his People, and Power, when occalion offers ter of about Three Thouſand Men, at the Com-
it felf, to make Peace, or enter into League. mand of Moſes, upon the Idolatry of the Golden
Tho' a Common wealth is not therefore to be Calf, may with more Propriety y é
when it hath been publickly guilty of ſome Un- Benjamites (e), looks more like a Rout in War
juſt Things. Neither on the other Hand, can a than Puniſhment, tho’Eraſmus is of a different O-
Company of Robbers aſſume to themſelves the pinion (f). And here it will not be improper to
Honour of a Common-wealth, though perhaps add ſomething in General, of the Power of Mili-
there be ſome appearance of Juſtice among them tary Magiſtrates, or of Generals and Leaders, to
(c).
whoſe Condu£t the War is entruſted by their Sove-
X. And here upon what Grotius reign. A General therefore ſent to take the Field
A Magiſtrate as aſſerts, l. 1. c. 3. 8. 4. A Queſtion with an Unlimited Power, may uſe what Meaſures
is moved, Whether a Magiſtrate he thinks fit, either to Diſquiet and Offend his
Right to make
properly ſo call’d, as ſuch, hath Enemy, or Defend himſelf; but as he is not im-
Power to make War? Which I powered to levy any New War; ſo neither when
think is to be denied. For ſince War is a matter War is begun, can he make Peace without the
of that Nature and Conſequence, that it may in- Authority of his Sovereign. But Generals confined
volve the whole Common-wealth in Danger, to by Limited Commiſſions have, 'tis plain, no further
give the Magiſtrate, as ſuch, Power to Declare, Power than thoſe give them. However ſo much
and Determine War by his own Authority, would Power every General, whether his Commiſion be
be the ſame Thing with giving him the Sovereign Unlimited or not, may juſtly affume, to ule what
Power (d). It muſt be allowed indeed, that what- Method he thinks beft, to Defend himſelf againſt
ever Branch of publick Buſineſs the Sovereign en- the Enemy, when they have Advanced too far,
to give him all the Power neceſſary to the due dif- nourable Retreat." And in ſuch a Cale as this
,
charge of his Duty in it
. And therefore it is a only what Tully faith ought to be allow'd (8)
Maxim of the Roman Law (1). That every . That in Affairs of ſuch unexpected and ſtreight-
Magiſtrate that hath Juriſdiction, as ſuch, hath ning Circumſtances, a Man ſhould not think
a mixt Authority; which mixt Authority is de of ſtaying for the Inſtructions of the Senate,
' fin’d by a Moderate Power, to puniſh Obſtinate
a Senate to himſelf, and do what he
• Offenders, as far as is neceſſary to ſupport his thinks will be beſt for the Advantage of the
Juriſdiction, and a due Adminiſtration of Common-wealth. But a Defence indeed, doth
Juſtice. But when a Magiſtrate who is entruſt- not conſiſt only in a brave Reſiſtance, or in repel,
ed with Juriſdi&tion, uſeth Force only to reduce ling or avoiding the Enemy's Attacks; but alſo
a few Diſobedient Subjects, it is not to be fuppo- in making an Aſſault upon him, and returning the
fed that he is making Wimbi for Womercial Feeming ple, an Admiral at Sea, who is by his ordered be
for a coercive Power o- ſame Treatment back. And therefore for Exam-
to lie entirely between Equals
, or at leaſt thoſe only on the Defenſive, may yer notwithſtanding
that pretend themſelves to be fuch. But if the fuch a Confinement, upon Provocation ſufficient,
Number of the Malecontents, or diſaffected Per. break in upon the Enemies Fleet, and link and
ſons grow ſo incurable, as to make it to be fear'd, burn as many of their Ships as he can; all that
that an Attempt to Suppreſs them would endanger he is forbidden is to Challenge the Enemy Firſt,
the Safety of the Common-wealth, and the com when they don't think of Fighting. And
mon Officers of Juſtice are too weak to reduce General at Land, tho” his Inſtructions be not to
them, the Magiſtrate ought to expect the Reſolu- Engage the Enemy, may yet if he be Attack'd in
tions of his Sovereign to direct him in his Procee- his Intrenchments, not only Repulſe them when
dings in the Matter. And therefore Grotius is un- they would force his Camp, but make a Sally,
War.
w
F1
Cat
(a) Vid. L. 50. t, 16.1. 118. D. de verb. fignif. L. 49. t. 15. 1. 21.S 1. Egal 24. D. de captiv. &c.
(6) Cic. Philip (c) Vid. Grot. 1. 3. c. 3. f. 2. (d) Vid. L. 48. t. 4. 1. 3. D. ad L. Juliam Majeft.
(1) V. D. L. 2. t. 1. De Fuxifditione, 1. 3. V. etiam L. 1. & 21. De officio ejus cui mandata eft Juriſdi&tio, L. 5.f. 1. 29
(e) See Exod. XXXII, 27, &e; and Judges, XIX. 20. (f) Erafm. Epift. 1. 6. ep. 29.
miliar. 1. 10, c. 16.
Noi
(8) Cic. Ep. ad Fa-
and

Chap. VI.
95
Of the Right of War.
C
and give them Battle; and if he be ſet upon in it is left to the Sovereign, whether he will own
his March, and finds he cannot make a Safe and an the Action of his Miniſter or not. If he owns it,
Honourable Retreat, he may juſtly venture a the War muſt be look'd upon to be Solemn, And
Fight. And therefore a Governour of a Province this Ratification doth as it were, reflect back an
or Town, eſpecially if he hath any good Num- Authority upon the War, ſo that the whole Com.
ber of Souldiers under his Command, ought to mon-wealth is obliged by it. But if the Sovereign
make the beſt Reſiſtance he can, when he is inva; diſown the A&tion of his Governour, the War muſt
ded by an Enemy, without expecting Inſtructions be look’d upon to be a ſort of Robbery; and if the
from his Sovereign.
But he is not to carry the Governour be given up or puniſh'd at home, and
War into a Foreign country; without Expreſs Com. Şatisfa&tion be made for the Damages ſuſtain'd,
misſion. An Inferiour Commander that is left in the Commonwealth is not engaged in, or obli-
truſt with a Body of Souldiers for the Defence of ged by the War. And this was the reaſon why
a Town, or Fort, is obliged to do the utmoſt he the Roman Ambaſadour demanded of the Carthagi.
poflibly can for its Security; and indeed, to hold nians, Whether Hannibal laid Siege to Saguntum.
out ſo long in Defence of it, till he ſees the Place by his own or by the Publick Authority (b)? To
muſt inevitably be carried by Storm, and his which the Carthaginians rightly Anſwered, That
Forces cut off. And therefore from what has the Queſtion Firſt to be determined was, whether
been faid, we may judge of the Action of Pina- the Siege of Saguntum was contrary to any Ara
rius, mention'd in Livy, 1. 24. C. 37. His Orders ticles of League, between them and the Romans?
were to Defend the Caſtle of Enna ; and to deli That before this was decided, the Romans had
ver up the Keys of it to them of the Town, would no Reaſon to enquire, whether a Subject of
have forfeited his Head; and therefore when he Carthage did any thing by his own or Publick Au.
ſaw that both himſelf and Souldiers muſt neceſſa-
thority (c).
rily have been left to the Mercy of the Enemy and XI. It may be further enquired,
be put all to the Sword, unleſs he prevented it whether a Prefect or Governour, that whether he may
by ſuppreſſing the Inſurrection that was forming hath no General, or Particular Com-
Preſumption
in the Town againſt him ; he did nothing beyond miffion to warrant him, can juſtly of bis Prince's
what the Powers he had would allow him, in put- make War upon a Foreign State or Confent.
ting the faithleſs Citizens to Death; except, per- Prince, only upon Preſumption, or
haps, it was in carrying his Severity too far becauſe he believes his Sovereign will approve his
without Neceſſity, after he knew, the Danger Action? Which in my Opinion muſt be denied
was over. Neither can it be ſaid that Pinarius (1). For it is not ſufficient tº know what it is
rais'd a New War (a). For the Publick. War was probable his Sovereign would approve, if he were
at that time carried on in Sicily, againſt the Car- conſulted in ſuch a particular Poſture of Affairs,
thaginians and their Allies, with whom They
, of but it ſhould rather be conſidered, what it is pro-
Enna endeavoured to join. But whether particu- bable he would defire ſhould be done without
larly when a War is at an End, the ſame Arms his Advice, when the Matter will bear Time,
may be turn'd againſt them that aſſiſted the Ene. and the Point is nice and difficult, if a Law weré
my with Succours and Supplies, is more than a to be made upon it, where he muſt determine u-
Grneral hath power to determine. But if a Go- niverſally of all ſuch caſes. And then no doubt
vernour of a Province, at a great diſtance from the it will appear that it would be provided, that no
Metropolis of the Empire, be empower'd to make Miniſter ſhould undertake any Action in which
War or Peace with his Neighbours ; the Wars he the Common-wealth is nearly concern'd ; (ſuch
undertakes muſt be look'd upon to be Solemn. Be- as a War is, and eſpecially the Offenſive, which is
cauſe he that gives another power to do a Thing, the proper Subject of the preſent Enquiry, and
muſt be ſuppoſed to be the Author of what he which will Generally well enough admit of De.
doth, in Virtue of that Power.
that Power. But if a Gover- lays) without the Advice of his Sovereign. And
nour that hath no ſuch Power, make War upon therefore, though it ſhould happen that the so-
another, without Authority from his Sovereign, vereign ſhould at the ſame time think a War with
make War upon
a
(a) As Manlius made War upon the Gallo-Graci. See Liv, 1 38.c. 45, Soc. and 1. 41 c. 7. and Florus, 1. 2. c. 11.
(6) Livy, l. 21. c. 18. (C) Vid. Xenophon rer. Græc 1. 5. Where the Juſtice of the A&tion of Phábidas in ſeizing
Cadmea, is diſputed.
(1) 'Tis Grotius's Deciſion ; Lib. I. Cap. III. Se&. 5. Num. 3. Upon which Gronovius
pre-
tends that this great Man, ought not abſolutely to maintain the Negative, but to diſtinguiſh between Defenſive and Of-
fenfive Wars : for, adds he, there is no doubt, but that a Governour of a Province, eſpecially if he has any Forces ready in Pay,
as it is the uſual Cuſtom in Frontier Provinces, may, without exceeding the Limits of his Power, oppoſe his Neighbours, upon
their attacking him, and repel Force by Force, without playing for a particular Order from his Prince
. For my Part; I cannot
conceive, how it is that this Commentator has contrivd it, that this Exception is not underſtood of it ſelf? The Gro-
tius had not explain'd himſelf here ; what he has ſaid elſewhere of the Privileges of Neceſſity, would have been more
than fufficient to have hinder'd us from attributing any other Thought to him. But is it not plainly expreſſed in the
preceeding Paragraph. Num. 3. Si ita prafens fit periculum, ut tempus non ferat eum conſuli qui fupremum in civitate jus ha-
bet : bic etiam Neceſitas exceptionem porriget. After which he inſtances in the Example of L. Pinarius, related by Grono-
vius himſelf, and by our Author alfo. And in the very place in diſpute ; Sed hoc magis vitandum, quod ille, ubi res mo-
ram fert.---Se cupiat fieri ; which manifeftly ſuppoſes, than when the Buſineſs admits of no delay, we are not obliged to
ſtay for our Maſter's Orders ; and that in ſuch a Caſe it is reaſonably to be preſumed, that he leaves us at Liberty to act
as we ſhall judge moſt proper. All the Difficulty that would here be in it, would be with Reſpect to the Application to
particular Caſes; as for Example, Gronovius defends againſt Grotius, the Judgment of Cicero, who in a Panegyrick on
O&avius and Brutus, commends and extols 'em, for taking up Arms upon their own Authority againſt Mark Anthony.
But I have no deſign to engage my ſelf in a diſcuſſion of this matter, which does not belong to my Subject in Hand.
Mr. Barbeyrac's Note, on this section, pag. 465.
96
Of the Right of War.
Book VIII.

Common-
wealth.
AVOTS
50 W
a certain Enemy neceſſary, yet to be ſure he Crime before it hath been Judicially tried, re-
cannot be pleaſed to ſee his Miniſter go beyond mains upon them that committed it; but after
the Bounds of his Duty. Thus Cambyſes put his Sentence is paſſed upon it, they are the Crimi-
Servants to Death that ſav'd Cræfus's Life, tho'at nals that neglect to put the Law in Execution
the ſame he was well enough pieas'd that they (e). The caſe of Reception, and how far the
had ſpared him (a).
Commonwealth gives Reaſon for War againſt it
XII. But now,
as Perſons felf, by receiving and defending Perſons that
How far an. In that live in a Liberty of Nature can- have injured others, may be ſeen at large in Gro-
jury, done by a
Subject, may
not juſtly be puniſhed with War, tius, 1.21. $. 3, 4, 5, 6.
give Reaſon for a unleſs the Injuries they themſelves XIII. The fame Author alſo, l. 3.
War againſt the
it 6. 3.
91 comes
comes to paſs, that in a Civil State, Nature of Repriſals, which are vio- of Reprizals:
or the Guilt of the Injuries, and the lent Executions made upon the Per-
Cauſe that
gives Birth to War, diffuſe themſelves fons or Goods of the Subje&s of a foreign Commons
from the Perſons that were immediate Authors wealth, that refuſeth to adminiſter Juſtice (1). In
of them over the whole Commonwealth, will be defence of the Equity of which, I further add, that
matter of further enquiry. This therefore is cer- as it is a Natural Conſequence of the Combination
tain, that no Community whether Civil, or Other- of Men into Civil Bodies, that the Injuries which
wiſe, is obliged by any Adion of Particular Mem- one Member ſuffers from a Foreigner ſeem to affect
bers, without fome culpable A&t or omiſſion of its the whole Common-wealth; ſo it doth not ap.
own. For how feverely foever the Common- pear to be unjuſt, that every particular Subje&
wealth may threaten, the Subjects are ſtill left to ſhould be obliged to aſlift the diſcharge of the
their Natural Liberty, to do otherwiſe if they publick Debts. Since whatever they pay upon
pleaſe. So that the Commonwealth can no way that account, muſt be refunded to them by the
be Reſponſible for the Actions of the particular Commonwealth. But if it ſhould be any Man's
Subjects (6). But among the ſeveral ways, the Misfortune to be a Loſer by the Publick, he muſt
Governours of Commonwealths are involv'd in look upon it to be one of thoſe Inconveniences,
Wars, from the Injuries committed by their Sub- that are almoſt unavoidable in a Civil State; and
jects; theſe Two I think, will moſt deſerve our confider that theſe are very tolerable Evils, in
Safferance and Reception. Compariſon of thoſe, which he muſt have felt in
As to the matter of Sufferance, it is manifeſt, that a wild Liberty of Nature. 1970
the Perſon who knoweth the Commiſſion of a 24 XIV. It is manifeſt that Men of-
Crime, and hath Power to hinder it, without ten make War, not only upon their For whom we
apparent Danger of greater Evil by doing it, and own accounts
, but alſo for others make
is obliged to do it, muſt be ſuppoſed to be guilty (2). But to anſwer for the Juſtice
of the Crime himſelf
. For it is neceſſary the of it, it will be neceſſary, firſt, that the Party
Knowledge of the Fad ſhould be attended with who is aſſiſted, ſhould have just Reaſons for War
. .
Power to hinder it; one of theſe ſeparately, not And Secondly, that the Party that affifts ſhould
being fufficient to communicate any Share' in be under fome particular Ties and obligations to
the Guilt (a). And che Governours of Common- him that is principally concern'd in the War.
wealths are preſumed to know what their Subjects Becauſe otherwiſe it would be very unjuſt to affift
openly and frequently commit, and their Power one Man againſt another ; fince as they are Men,
to hinder it, is always fuppoſed, unleſs the Want they both equally deſerve Favour (f). They
of it bé manifeſtly proved. The guilt of a therefore, whom we not only may, but are
Buna! Juta
org
RM 35
ombe ngon
og um
(a) Herodot. Thalia, p. 113. Ed. H Steph. Vid. Senec. de Irâ l. 1. c. 16. Concerning the A&tion of Piſo; Pro-prætor of
sicilý
, Livy, 1. 44. c. 10.1 (b) Vid. Grot. 1. 2. c. 21. 1. 2, and the Example he there produceth out
h out of Livy, 1. 29.6
16.1. 35.c. 31. 1. 45. c. 23. Valerius Maximus, 1.6.c. 6. f.
(c) Patientia & Receptus. (d) Vide L. 47, t.
6. I. 1.5. 1. D. la Familia furtum fecerit. (e) Lycurg. Orat, adverf. Leocratem. Polyb. I. 4. c. 27. ab init. Gratianus,
Cauf. 1. So 3. diſtinct. 36.
(1) This Definition of Reprifals is taken out of our Author's Abridgement De Offic. Hom. Ego Cio. L. 2. C. 16. f. To,
For he contented himſelf here with referring to Grotius. Lib. III. Cap. II
. To give a general Idea of the Matter, let us
add ſome Remarks which Mr. Buddeus makes in his Elem. Philos
. Prat. Part I. Cap. V. Se&t. 3. Se&. 6. Esc. Repriſals
being a fort of an A&t of Hoſtility, or at leaſt the Prelude and Fore-Runner of War, it is plain that no Body can lawfully
ufe this Right but with the Approbation of the Sovereign, who, before his granting that Permiſſion, ought nicely to exa-
mine whether the publick Intereſt of the State allows him to carry matters to that Extremity. The Occaſion on which we
make uſe of Repriſals, muſt alſo be very clear, and the thing in Diſpute of great Conſequence: For it would be equally
imprudent and unjuſt to accuſe a Foreign Magiſtrate of Connivance, or a malicious Denial to do Juſtice, in an obſcure
and litigious Affair, or in one of no Importance, or without having ſufficient proofs of the Infincerity of the Prince, to
whom we have made our Application But how juſt a Cauſe ſoever we may have to uſe Repriſals, we can never dire&ly
for that fingle Reaſon alone, put thoſe to Death whom we have Seiz'd upon; but only ſecure em, and not uſe 'em ill, till
we have obtain’d Satisfa&tion. So that during all that time, they are in the Nature of Hoftages. As for Goods feiz'd by
Right of Repriſals, we muſt take care of 'em, till the Time ſet for the Payment is expird; after which we may, either ado
judge 'em to the Creditor, or fell 'em to diſcharge the Debt, and return to him from whom they were taken the Overplus,
dedn&ting out of 'em all Charges and Expences
. But it is not lawful to make Repriſals
, but with regard to Subje&s properly
fo called, and their Goods; fór as to Foreigners, who do but paſs through a Country, or only come to make a fhort ftay
perfe& Manner, that we may indemnify ourſelves by them, for a Loſs we have receiv'd by any Original and perpetual
Subject, and by the Sovereigns refuſing to do us Juſtice. We muſt farther except Ambaſſadours, who are facred Perſons
no Priviledge,
unlels they have otherwiſe
got it by Virtue of fome Treaty. Mr. Barbeyrai's Nore on this Se&t. pag. 466.
(2) See Grotius, B. 2. C. 25. (f) Lucan. I. 4. v. 707, &c.
Quis conferre duces meminit? Quis pendere caufa's ?' The Cauſe belongs not to a General's Care,
Qua ftetit inde favet ; veluti fatalis arene
Their's he thinks Beft for whom his Arms Declare ;
obliged
IW ROTO
3, 5.
25000032
* *
Chap. VỊ.
Of the Right of War.
97

6
jects. And therefore in every Promiſe of Aid and niſh with War any perſon that hath done Ano-
obliged to defend, are firſt of all, our own Sub we are not obliged to ſend Alliſtance, when
jects. And that not only becauſe they are, as it . there is no Hopes of Succeſs for Society is
were, a part of the Government, but becauſe forni'd for Good and not Evil. But then it is
the end Men at firſt propoſed to themſelves by alſo to be conſider'd that it would be to no pur-
giving up their natural Liberty, and ſubmitting poſe to make Leagues, if we were to run no Ha-
voluntarily to a Civil State, was the Enjoyment zard, or ſuſtain no Loſſes in the Defence of an
of ſuch a Defence, So the Campanians thought allie. Next to our Allies are our Friends, or thoſe
that by yielding themſelves, and all that they had we have join'd our ſelves to, by particular Ties of
to the Romans, they laid a Neceflity upon them Kindneſ and Reſpect. To theſe, tho'we have not
to arm in their Protection (a). Tho' in this In- promiſed by expreſs Article of Treaty, to ſend a
ſtance it may be obſerved, that ſince the Campa- certain determinate Aid or Supply, yet the Na-
nians had exafperated the Samnites, and raiſed an ture of Friendſhip it ſelf ſuppoſeth an Interchange,
unjuft War againſt them before, the Romans could and Union of Faith, and that one Friend muft be
not juſtly reſolve to defend them, notwithſtand-concern'd for the other's ſafety, as far as the
ing that they had yielded themſelves to be their ſtricter Obligations he is under will ſuffer him, and
Subjects, till they had made Satisfaction for the that his concern ought to be much ſtronger for
Damages and defray'd the Expences of the War. Buc Him than that which is due from one Man to ano-
in defence of any particular Subject, the Govern- ther, by the common Affinity and publick Relations
ment can then only juftly make War, when it will of Mankind: Tho' ſometimes thoſe alone may
be no great Inconvenience, or Diſadvantage to be ſufficient Motives to us to undertake the De-
the whole, or the Majority of the other Sub- fence of a Perſon manifeſtly injured and abuſed:
jets ; becauſe the Government is obliged to have Eſpecially ſince it may eaſily be made our own
a greater Concern for the whole, than for a Part; Intereſt to do it ; and ſince nothing can tend
and the greater the Part is, the nearer it ap- more to promote Publick Good, than to puniſh
proaches to the Whole. The next to Subjects thoſe that take pleaſure in difquieting and inju-
whom we are obliged to aſſiſt, are thoſe Allies ring Others. And therefore Solon upon this view
that have made this particular Condition and Arm when he was asked, how there might be Fewer
ticle of League with us. But then all Allies are to Injuries committed in the World, anſwered, if
give Place to our own Subjects, when both can- they that were not injured, would be as much conterned
not be aſſiſted ; and that without any breach of as they that were (c). But then we are not to ima-
che League. For no Commonwealth can be more gine that eyery Man, even they that live in a
obliged to a Foreign State, than to its own SubLiberty of Nature, hath a Right to correct and pu-
Aſſiſtance the Commonwealth makes, this Limi- ther an Injury, barely upon pretence, that Com.
tation is implied, As far as is conſiſtent with the Oba mon Good requires, that ſuch as oppreſs the In-
ligations owing to the subject. And therefore it is nocent, ought not to eſcape Puniſhment, and
very abſurd to place any Confidence in a League, that what toucheth one, ought to affect all. For
which it is not the Intereſt of our Ally to obſerve. Otherwiſe, fince the Party we ſuppoſe to be Un-
But as we ought not to undertake any rash or un- juſtly invaded, is not deprived of the liberty of
juſt War, ſo neither can we be obliged by any uſing Equal Force to repel his Enemy, whom he
League to aſſiſt an Aliy, that engages only in ſuch. never injured, the Confequence then would be,
Tis true, this holds chiefly in Offenſive Wars, but that inſtead of One War, the World muft ſuffer
it nay alſo bear ſometimes in the Defenſive
. For the Miſeries of Two. Beſides, it is alſo contrary
if my Confederate is ſenſible, that he is much to the Natural Equality of Mankind, for a Man
weaker than his Enemy, and that his own Forces, to force himſelf upon the World for a Judge, and
and all I can ſupply him with, will not make him Decider of Controverfies. Not to fay what dange-
a Match for him; and yet is obftinately bent to rous Abuſes this Liberty might be perverted to,
hazard himſelf, tho’ it be to his certain Ruine, and that any Man might make War upon any
when he may treat upon tolerably good Terms; Man upon ſuch a Prerence. The wrong there
1 ſhould be a Mad Man to join my ſelf with him, fore another Man ſuffers, is not reaſon fufficient
n fo extravagant and hopeleſs an Attempt. And to engage me in his Quarrel, unleſs he calls me
thus far what Grotiu ſaith (b) is very true, " That particularly to his Aflittance, ſo that whatever I
Serie 300 do 2211257 Viooni ab gard to STOUT
od Muneribus, non ira vetus concurrerei cogit luiwelou As when in Bloody Shows apon the Stage, sb to od
saimio Productos, odere Pares, lesql i 210 stor The Gladiators generouſly, engage, puis Vilsiog
saiz yolu olses oa di 91003 204 viemer Not Malice, nor Revenge creates the Fight, to uvos
But rival Bravery, and equal Might. jod od sirds to
blaon) coingles o masia berbilloso youI
(a) Livy, 1. 7. c. 31. Florus, 1 1.... -7. Dvasid sai asit(a) Vide Grot
. 1.01111T 25. .
Gin his Differtation de comparatione Obligationum, quæ ex diverfos. bominum fatibus coriantur, i Seat
. 60.)
Says
,
we ought to eſteem thoſe of the fame Religion with us, more than our Friends and Allies; or elſe put 'em in
inder a Pretence of defending and favouring that Religion which wimbolisme be hat we must not think it lawful
,
every thing againſt
thoſe of another Religion, whatſoevero! Which is a deteſtable Maxim univerſally and juftly. blamed in the Conduct of
Roman Catholicks, but which, continues he, thoſe who have the greateſt Abhorrence of the Tyranny of the Romißh
Church, do not ſeem to be entirely out of Conceit with. Mr. Barbeyrac's-2---Note, on this Se&. p.-467.
(c) Plutarch, in Solon, p. 88. D. Quintilian. Inft. Orat. 1.4. c. 1. p. 270. 'Tis natural for us to pity the Diſtreſſed :
Euripides Suppl. v. 267, 268.
The Beaſts purſued, to Rocks, and Cliffs retreat,
porn
Eye xe và quy lu mẹ u Á Tev, 8c.
The Slave clings to the Altars of the Gods,
And States diſtreſs’d their Neighbours Aid'implore.
* N
undertake
98
Of the Right of War.
Book VIII

to kill an Enemy
forms us,
in War.
Of the Liberties uſual to extend the Liberties of War abridge my ſelf of the Liberty of making uſe of
undertake to do, is not to be charg'd upon me, XVIII. It may alſo in the nexo
buc upon the Perſon that deſires my help. But place, be particularly enquired,
Whether lawful
whether it be lawful to take Arms in Defence
whether it be lawful to Aſſaſſinate by Afaſſines ?
of the Subjects of a Foreign Common-wealth, a an Enemy? And here Grotius, (2)
gainſt the Invaſions and Oppreſſions of their Sovereign, thinks that there ought to be a Diſtinction made
is a Queſtion; for the Solution of which I refer between Perſons that violate their Faith whether
you to the Opinion of Grotius (1), the ſafeſt An. exprefly or tacitly given, as Sou'diers, Subjects, Val-
ſwer that can be given to it ſeems to me to be this, Sals, Refugees; and Perſons that were never bound
that we cannot Lawfully undertake to defend the by Faith. And that to employ the Latter as Af-
Subjects of a Foreign Common-wealth in any other Salines, is what no Law forbids (a): But that to
Cale, than when they themſelves may lawfully make uſe of them, who muſt by the A&t be guilty
take Arms to repreſs the inſupportable Tyranny of Falſhood and Treaſon, is what the more civilized
and Cruelties of their own Governourse
part of Mankind, always look upon as the greateſt
XV. Of the Declaration neceſſary Infamy and Baſeneſs. Tho' againſt Rebels, Pirates,
Of the Declara-
to ſolemn War, Grotius largely in- and Highway-men, the moſt ſcrupulous Princes
tion of War.
1.
3. c. 3.
never doubt to propoſe even Rewards to the Per-
XVI. The ſame Author, l. 3. C. ſon that can kill or apprehend them. Nor does
Of the Liberties
4, dc. gives us a long Account of any body blame the Conduct, or think the Mea-
commonly uſed
many Nations that never ſet ſure hard; becauſe theſe are known to be com.
bounds to themſelves in any of mon Enemies, and lie under the Publick Odium of
thoſe Liberties, which as I ſaid before, the Law all. The ſame Anſwer will ſerve that ocher
of Nature allows againſt Enemies. But here it is to General Queſtion, whether it be lawful to uſe
any
be obſerved ; That cho' Generals uſually give Laws Man's Service promiſcuouſly in War? Where we are
to their Spuldiers, preſcribing how far they are to diſtinguiſh between them that betray, or Revoli
to uſe Hoſtilities againſt the Enemy, and puniſh from their Maſters and offer themſelves voluntarily,
the Violation of them upon che Offenders ; yet and them that ſuffer themſelves to be corrupted in
this is not done becauſe they ſuppoſe the Enemy their Faith by the force of Rewards and Promiſes.
is or may be injured; but becauſe it is neceſſary By the common practice of the World the former
that the General's Orders ſhould be obey'd, and may lawfully be employ'd ; but as Grotius thinks,
that Military Diſcipline ſhould be ftri&ly obſerv'd. l. 3. C. 1. S. 21, 22. not the latter (b). Tho'ſ
So that tho' a Perſon, who in a Solemn War had think it may very well bear diſpute. For ſup-
behaved himſelf with greater Cruelty and Out. poſing the Cauſe I engage in, be Juft, I have
sage than the Law of Nature will permit, ſhould Right to diveſt my Enemy of all Forces and Suce
afterwards happen to be indicted or accuſed for cours, to make him as defenceleſs as, and to give
it in any third Commonwealth unconcern'd in the him all the Diſturbance, and do him all the Dan
War; it would be a very uncommon way of Pro- mage, I can, which are the things aim'd at, in
ceeding, ſhould He be ſentenced for a Ruffian or ſolliciting his Subje&s to a Defection. And I do
Murderer, and be uſed as ſuch. Becauſe as it does not ſee any ſufficient Reaſon, why I may not
not belong to the People of one Nation to en- purſue that End, by tempting my Enemies Sub.
quire what others are guilty of abroad; ſo there jects with the Hope of Rewards, as well as any
ſeems to have been a tacit kind of Agreement of other way. Eſpecially ſince it is on all hands
Nations that one ſhould not paſs Judgment upon allowed, that an Enemies Subjects may be lawful-
the Wars another engages in. For why ſhould ly frighted by falſe Threats and ſhows of fear, to
one at a diſtance from the Diſpute, and no Ally ſurrender themſelves, and conſequently to defere
to either of the Parties engaged, give himſelf their Maſter. Which fort of Deſertion is not
the crouble of making another's Quarrel his own? wholly excuſable; ſince it is known that by the
Beſides, that, even in a juft War, it muſt be al- Laws Military, they that ſuffer themſelves to be
low'd difficult to know what are the juſt Meaſures impoſed upon in that Manner are as liable to com
of Self-Defence, in what Method to exact Satisfa. pital Puniſment, as they that are guilty of Pers
&tion for Damages, and what ways to take Caution fidiouſness and Diſloyalty. For Cowardice and Credu-
for the future. So that in ſhort, it is ſafer to leave lity are as inconfiſtent with the Duty of a Souldier,
theſe Things to the Conſciences of the Parties as Faithleſneſs and Treachery. And further, tho?
engaged in the War, than to venture to give Sen- Force is the moſt lawful, and the braveſt way of
tence upon an Affair, the Condemning of which attacking an Enemy, yet this doch not make it
may be of dangerous Conſequence to our ſelves; unlawful, to have recourſe to fraud. And tho?
eſpecially ſince the Parties at War themſelves by theſe Deferters I ſpeak of, are certainly criminal
orabite the free mpo che need, either to encreaſe themſelves, yet there is no reaſon, why the
Party that ſollicited them to a Deſertion, ſhould
XVII.How far in particular it is bear any ſhare in the guile of it. Becauſe I don't
of
21fed upon the
Perfon ofa n E- upon the Perſons of the Enemy
be ſeen at large in the ſame An the eaſieſt Methods to obtain my Right, only be
Bolo ther, b.3.C. 4. Insavis cauſe by doing ſo, I may give them occafion to be
ITCI Sub
nemy.
11.00
pornic
teu 707 16191 T OTO
(1) B.2. c. 25. [ 8.
(2) L. 3. c. 4. f. 18,
6) Vid. Quintil. Decl. 255.
(a) Mori Utop. 1. 2.
༢ འ ས :
)
guilty
00
Chap. VI.
99
Of the Right of War.

C
C
from the
guilty of Sin, who have already by the Injuries roſity of Spirit, when a Man hath it in his Pow.
they have done me, broken off all Communication er, to refuſe to make uſe of ſo eaſy a way of Ac-
of Right with me. And why may it not be law- quifition. Beſides that, ' It is certainly true (a),
ful for me to win thoſe with my Money, whom that a Man that accepts the Service of a Tray-
I might otherwiſe conquer with my Sword? E tor, tho’ upon the heat of his Succeſs, he may
ſpecially ſince after all the Propoſitions and Solo' think himſelf obliged by him; yet afterwards
licitations I can make to them, it is ſtill left to when he reflects upon the Action, he will begin
their own Choice, whether they will look upon to ſuſpect and then to fear, and ſo to hate, the
me for an Enemy, or buy my favour by entring Traytor, tho' he loved the Treaſon, becauſe he
into my Service. But in time of Peace there are • knows he hath had already ſufficient Expe-
theſe cwo Reaſons, why Iought not to importune rience of the Inſincerity of his Faith (b).
another Man's Servant, or Subjeđ, injuftly to XIX. How far the Liberties of
deſert froin his Maſter, and come over to me. Firſt, War may be extended upon the Things Sacred
becauſe I have no lawful Power to intercept any Goods of an Enemy, and things we from the Liber-
thing that belongs to Another. And Secondly, call Sacred, we are inform'd by ties of War.
becauſe I cannot juſtly puniſh, or do any harm Grot. I. 3. c. 5.
to him, tho' he ſhould refuſe to deſert, and make XX. The Laws of Nature and Con-
me his Maſter. Both which are manifeſtly al- ſcience in a juſt War allow (1) a Man Things, how
lowed me in the Caſe before us. As therefore to make ſuch Acquiſitions out of what we wired in
the Propriety my Enemy hath to what he calls his Enemy poffeífeth, as will either
his own, is no manner of reaſon to me, why I reſtore him what was due to him, or give him an
may not take it from him ; fo the right he hath Equivalent to it (2), further, and all that, the re-
over his Subjects is ſo far inſignificant with me, fuſal of the Payment of which, gave Birth to the
as I am under no Obligations to be in the leaſt War; And beſides, to ſatisfie himſelf for the
concerned, that he ſhould always inviolably en- Charge he was at in recovering his right by
joy it. And therefore the Obječtion uſually made Force ; and to all if there be any thing elſe,
againſt this Opinion, that a Man cannot incite a- which he thinks neceſſary to ſecure further to
or that, That Man is guilty of Sin himſelf who Enemy. And therefore if a Man inſults and op-
ſupplies another with a Cauſe or Occafion of Sin, preffeth his Neighbours, upon the Confidence he
feems to Me, to hold only becween ſuch as are repoſeth in his Riches when he happenech to be
not Enemies. For an Enemy in reſpeet to me, is over-powerd; it is but juſt he ſhould be deprived
in ſuch a State, that as long as I am in purſuit of of his ſuperfluous Wealth, that for the future he
my Right, and in Arms againſt him, I have no may learn to be more Quiet and Peaceable. But
reaſon to trouble my ſelf whether he takes from by the practice of the World, a Man makes him
thence, an Occaſion to fin or not. And therefore ſelf abſolute and perpetual Maſter and Proprietor
tho' perhaps my Promiſes, or my Money may be of every thing he takes from his Enemy in a
really the Inducement to another to be falſe and Solemn War, tho' much exceeding the Pretenſions
deſert; yet in Reaſon, the crime of Falſeneſs and the War begun upon, Vid. Grot. I. 3. C. 6. f. 1, 2.
Perfidiouſneſs cannot be charged upon me as my Where he allo ſhoweth, When both Moveables and
own; becauſe for the Preſent, the State of War Immoveables may be ſuppoſed to be taken (3.)
hath entirely broken off all Commerce and Where it is to be obſerv'd, that the Right to Ac-
Communication of Right , between him and quifitions of War is of force only againſt any third
me; and he himſelf
, as far as in him lay, gave dif- intereſted Party. But to give the Conquerour a
me an Unlimited, Infinite Power, and Liber- right of Propriety, that will hold good againſt the
ty againſt himſelf. And ſince it is not in the conquer'd, there muſt of neceffity be a Pacification
leaft unlawful to put an Enemy to the Sword, and Agreement between both the Parties, otherwiſe
when the State and Poſture of War requires it; the Right is fuppoſed to continue ſtill the old
I do not fee why it ſhould be thought Criminal, Proprietor, and whenever he is ſtrong enough, he
to offer him a Temptation that may poſſibly tempt may juftly ſtruggle to recover it.
him into Sin. For it is evidently a weak Argu- XXI. It is alſo diſputed, to whom
ment, which ſome produce to the contrary, that the Acquiſitions of
folemn War belong; To whom the
Acquiſitions
Faith ought to be kept by Enemies; and that whether to the whole Body of the
of War be-
therefore an Enemy's Subje&s are not be ſeduced people, or to any particular Perſons longos
to Deſertion. But after all
, a Man ſhould be cau. among the People, or to them that
tious, that he don't ſet an Example to others, made the firſt ſeizure? (4) Which Controverſy
that one time or other may be of dangerous Con- I think may thus in fort be concluded.
It is
ſequence to himſelf. And without Diſpute, it is certain that the Right of War is lodgʻd in the so-
an Evidence of uncommon Greatneſs, and Gened vereign, under which Right is comprized that
VN os bloco ei
od lisasi
VSI 03
(a) Procop. Hift. Goth. 1. 1. c. 8. 0709o lo
(6) Vid. Valer. Max. 1. 6. c. 5. f. 7.
(1) This is ſhewn above, in B. 4. c. 6. f. 14.
(2) Provided they are his : For it is not ſo with thoſe Effets
that are found in his Country, but belong to Strangers, with whom he is in Peace ; unleſs they have ſent them to him
with a Deſign to aflift him in the preſent War. As for the Cargo of Ships belonging to the Enemy, they are lawful
Prize, as long as Strangers have not demanded and clearly juſtified what Effeets might have been in 'em. Mi, Barbeyrac's
Second Note upon this Je&tion p. 470.
(3) Vid. Grot. d. l. [ 3. 4.
(4) See Grot. B. 3. c. 6. C. 8, 9, &c.
other

* N 2
SOO
Of the Right of War.
Book VIII.

ز
other, of arming the Subjects, of leading, or ſend. And therefore Cato us’d to ſay, that no Man bad
ing them abroad upon Expeditions, as allo the any Right to fight an Enemy that was not a Souldier (d).
Right to raiſe Money upon them, and other Ne-
XXII. As to the Acquiſition of
celjaries for War. But ſince War, are undertaken things Incorporeal, it is to be para reai, model for more
either to recover the Rights or Dues of the private. ticularly obſerved, that they are
quired in War.
Subject, which the Enemy wilfully refuſech to never acquired but with the Sub-
pay, or elſe upon ſome publick Cauſe
, which con- jeđt they inhere in. The Subje&s they inhere in,
cerns the whole Common-wealth; ic eaſily ap. are either in Perſons or in Things. Thus to in
pearech, that in the firf Caſe, the principal thing stanice, in things; there are often certain peculiar
to be taken care of is
, that the Perſons, upon Rights inherent in certain Lands, Rivers, Ports,
whoſe Wrongs the War began, may be reſtored to Towns and Countries, or rather the Perſons, that are
their Rights. And the Overplus in This inſtance, the Proprietors of thoſe things, are inveſted with
and in Wars that begin from a more Publick Cauſe, certain Rights, over other Perſons and Things. But
all that is taken is firit acquired to the Sovereign, as here it is to be conſidered, whether this Righe be
to him that gives Authority to the War, whatever annexed to this particular thing, by perſonal Com.
Hands it firſt fell into, Whether the Mercenary Soul- pact, or by real ; or whether the Perſon that first
diers, or Subjects obliged to Military Service upon united this Right to the Thing, agreed by Com-
Summons without receiving Pay (a). But becaule pact, that that Right ſhould continue in the Pro-
War lies heavy upon the Subjects, whether they are prietor of the Thing, whoever he might happen to
only taxed to lupport it, or are obliged to ſerve in be, or by what Title foever he came to the Poffef.
it themſelves, it is no more than a good Prince, fion of it; or whether he intended that the Right
that hath a Love for his Subjects would yield to, jould be no longer valid, than certain Perſons
that the Subjects ſhould be allowed in Return to ſhould poſſeſs the thing by a certain Title. If the
make ſome advantage to themſelves by the War. Right be annex'd to the thing in this latter Method,
Which may be done. either by afligning to them it is manifeft, that it is not every one that poſſeſſech
a certain Pay from the Publick, when they go out himſelf of the thing by any Title whatever at Ram-
upon any Expedition (b), or by ſharing the Booty dom, that hath Power to exerciſe that Right; buc
among them, or by giving every one leave to it muſt be confidered, whether that Right ought
keep the Plunden he gets himſelf, (as the Cuſtom to follow a Title of an Acquiſition of War, by its
was among the Greeks, when they proclaim'd firſt Inftitution. But thoſe Rights (1) which
War, to declare at the fame ciine, that every Man are immediately, and in themſelves applied, and
ſhould have free Plunder (c), ) or elſe by giving annex'd to Perſons, relate either to other perſons
the Booty to the Publick, in order to eaſe the Sub. Things. The Rights which are annex'd to Perſons,
jects of the burthen of the Taxes for the future. over other Perlons, ſince they are not obtain's
Mercenary Souldiers have no right to any thing but with the conſent of the Perſons themſelves
but their Pay. What is given them above that, and this Conſent doch not reſpect any Man Pro-
is Matter of Bounty; or perhaps Reward for their miſcuouſly, but only ſome certain Men) cannot be
good Service, or Encouragement to their Valour; ſuppoſed to be acquired with the Perſons, tho’
Grot. in the place above mention'd is very large perhaps, the Perſons they were annex'd to, and
upon this Subjeđ. But upon his diftin&ion of lodg’d in, may fall into their Enemies Power.
Afts of Hoftility into publick and private Aets, Thus for inſtance, tho' a Prince happen to be
which are undertaken only upon the occaſion of made Priſoner of War, his Enemies have not there-
the publick War, it may be obſervd, That it may fore acquired his Kingdom with him. And the
be very juftly queſtiond, whether every thing taking an Husband, or à Father, doth not give an
taken in War by private Hoftilities, and by the Enemy power over the Wife or Children (e). When
bravery of private Subjects, that have no Commiſfion indeed an Enemy hath taken the Wife and Hus-
to warrant them, belongech to them that take it. band together, he hath a Right over the Captive
For this is alſo part of the Right of War, to appoint Wife, but not becauſe he took the Husband with
what Perſons are to act in a Hoftile manner againſt her, but folely becauſe he hath made her his Pria
the Enemy, and how far. And in Conſequence, Soner. Neither would he have had more or leſs
no private Perſon hath Power to make Devaſtations Power or Right, whether he had taken her Huf.
in an Enemies Country, or to carry off Spoil or band at the lame time or not. Neither doth the
Plunder, without Permiſion from his Sovereign. Conquerour acquire any Conjugal Power over the
And the Sovereign is to determine how far private Captive Wife, but barely ſuch a Right as is uſually
Men, when they are permitted, are to uſe that acquired over Captives. As to the Rights that re-
Liberty of Plunder; and whether they are to be late to Things, we muſt diſtinguiſh, whether the
fole Proprietors in the Booty, of only to Thare a perſon be Member of a Commonwealth, or live
part in it. So that all that a private Adventurer in out of Civil Government, in a state of Nature. If
War can pretend Right to, is no more than what he livech in a State of Nature, the Enemy chat
his Sovereign will pleaſe to allow him. For to be taketh the Perſon, is ſuppoſed to have taken all
a Souldier, and to a& Offenſively in an Heftile manner, the things with him, or at leaſt to have poffeſsd
a Man muſt be Commiffion'd by publick Authority. himſelf of power to take them, becauſe there is
(6) Vid.
or mor
OSO
(a) Ælian. V. Hift. 1. 6. c.6. The Spartan Souldiers were not allowed fo much as the Spoils of the Enemy.
Liv. 1. 4. c. 60. & 1. 5. c. 4.
(c) Vid. Polyb. 1. 4. c. 26, 36. (d) Cic, OH, I, I, 6, 11. Add. Ziegler upon
Grot. 1. 3. c. 6. f. 23.
(1) See Grot, B. 3. c. 7.1.4 and c. 8. f. 4. (e) Vid. Grot. d. 1.
no
Chap. VI.
IOI
Of the Right of War.

War.
no Body to reſiſt him, or that hach any Right to to me, what the Debtor owed before to my Captive
hinder him from ſeizing upon all he had. But in is now become due to me. And thus Alexander
Commonwealchs the thing is not loſt with the might, if he pleasd, have made himſelf the Cre-
Perſon, but the Right of it devolves to other Perſons ditor, in the Inſtance before us, tho? he had left
of the ſame Commonwealth, or upon Default of the Theban Commonwealth ſtanding, only by forcing
theſe, to the Publick. And therefore if a Subject of them to transfer their right to the Debt to him.
any Commonwealth be taken by an Enemy. And indeed, he muſt be ſuppoſed to have made
his Goods that were not taken with him, are himſelf ſucb, ſince he made himſelf abſolute Ma-
not acquir'd by his Conqueror, but fall to him that iter of Thebes, without any Exception. And there.
would have been his Heir at Law, if he had died fore had a Right, either to demand the Debt of the
a natural Death. But if the Enemy hath taken Theſſalians, or to forgive it then. Nay, he might
the Goods with his Perſon, that the things ta- immediately have forced the Thebans to remit che
ken are Prize of War, is Title enough to juſtify Debt. And therefore when Alexander gave up the
his Propriety in them, and it is perfe&ly needleſs Inſtrument of the Debt, to the Theſſalians, iic is not
i for him to derive chat Propriety from the Perſon of to be ſuppoſed, that he did it for fear the City of
the laſt Poffelor, whom he took with them. And Thebes, which he had then laid in Ruins, might
ſo the thing is the ſame, as far as concerns the ſometime or other afterwards demand the Debt of
Right of the Conqueror,, to the things he hath taken, them, but to give them Affurance, that he him-
whether he take the Proprietor with them or not. ſelf would never require any thing of them upon
XXIII. The fam'd Queſtion that Account. Fifthly, It is abſolutely falſe,
A Loan, whether
once moved in the Great Council of that as long as there is any one Subje& of a Com-
acquirable in
Greece may ſerve to illuſtrate what monwealth left alive, that he muſt be fuppoſed to
hath been ſaid, which Quintilian be the Creditor of the whole Debt, and conſequent-
(a) fays, was occafion’d thus. When Alexander ly, that he hath the ſame Right the Common-
the Great took and deſtroyed the City of Thebes, wealth had to demand its Debts
. For thoſe par-
he found an Inſtrument, in which it appear'd, that ticular Perſons that oud-live the utter Diſſolution
che Thebans had lent the Tbefalians an hundred of the Body of the Commonwealth; can have no
Talents
. Alexander, becauſe the Theſſalians were manner of Pretence to aſſume to themſelves the
in his Service, freely gave them up the Inſtrument. Right of the Commonwealth ; ſince it is not to
The Thebans who afterwards were reſtored by be fuppoſed that they any longer conſtitute it.
Callander demanded the Debt. The Reaſons the And it is manifeſt that Alexander totally diffolv'd
Thebans brought to juſtifie their demand, are to and extirpated the Theban Commonwealth, fo
be ſeen in the fame Place in Quintilian. . To that they, that eſcaped the general Deſtruction,
which the Thellalians might have anſwered. Firſt, could not be look'd upon to be a People. And
that what was taken away by juſt force cannot they that afterwards re-eſtabliſh'd the Common.
be demanded again. That by the Cuſtom of wealth of Thebes; were manifeſtly a new People
.
Nations, the Hoftilities committed in folemn War And tho' perhaps the ancient Thebans might have
are look'd upon to be Juft ; and in Conſequence, had certain peculiar Righıs, yet theſe new inbabi-
the former Proprietor can
have no Prefenfion left to tants could not pretend to aſſume the ſame to
any thing that was taken from him, after a Peace themſelves, barely from the Place they livd in,
is eſtabliſhed. Secondly, that a Right of War is a unleſs they obtain'd all anew. Which was
valid Title, when a Thing comes to be diſputed in not done with Relation to the Theſalian Debt.
the Civil Court. For after a War is ended, if any Sixchly, The Theſſalians did not take any unjuſt
Controverſie ariſes about any thing I have taken in Methods to obtain the inſtrument, but received it
the War, 'tis enough to plead that I have a Title from one that voluntarily offer'd it to them, and
to it as prize of War. Thirdly, that what is taken who had. Thebes, and all that belong'd to it ac
in a juli War may very juſtly be retain'd in Peace, Mercy, purely with Intent to pardon them the
eſpecially after the Articles of Peace are ſettled and Debt. Weiteres
agreed upon on both ſides. For then, every
XXIV. Conquer'd Nations, as
thing is ſuppoſed to be left entirely to the Poffel- well as particular. Perſons, may
Dominion over
for, which he is not exprelly obliged to reſtore be brought under Dominion : but
the Conquerid,
by the Articles of Treaty. Fourthly, thoſe Rights that it be lawful and oblige the wa
ways acquired.
which are properly and ultimately founded in the Conſciences of thoſe who ſubmit
be acquired with the Perſon to it, it is requir'd, that the vanquiſh'd promiſe
that is made Captive, ſuppoſing the Captive giveth exprefly or tacitly to acknowledge the Conqueror
his Conſent to transfer them to me; which conſent I for their Maſter, and that he for his part will not
have
power to force him to by threatning him with treat 'em any longer as his Enemies (1).
ſome
greater
Evil. Wherefore as I can make over
XXV. I ſhall now briefly enquire
an Actiun of Debt to another Man, and the Effect how things loft in War return to the Things loft in
will be, that the Debtor muſt be obliged to pay ancient Proprietors and Maſters
. And War, how re-
his Debt to him, as much as he was before to me; here in my Opinion, nothing can
ſo if a Captive conſent to make over his cation be more agreeable to natural Equity, than that
them
how many
.
(a) Inft
. Orat. 1. § c. 10. 387, 388. Mr. Titius in his Obſervat. in Compend. Lauterbach. Obf, 1438, and Francis Hot-
tonian's Queſtion. Illuſt. Queft. V.
(1) This Paragraph is taken out of our Author's Abridgment de Offic, Hom. Ego Civ. B. 2. c. 16. [ 14. Sec Grot. B. 3. c.8.
15. See above, in B. 7. c. 7. f. 3, 4.
ſuch
102
Of the Right of War.
Book VIII.
kow reſtored to
Liberty.
ſuch as have been made Priſoners of War, when XXVI. A whole Nation, when
they find Means to eſcape out of their Enemies it hath either by its own Strength, Whole Nations,
Reach, and are under no Obligations of Faith to or by the Affiftance of Friends and
them, and return to their own Country, ſhould not Allie's, fhaken off an Enemies
only recover their former Quality and State in the Yoak, without doubt recovereth its Liberty, and
Commonwealth, but be alſo reſtored to all their ancient State. And if any part of what they were
Rights
, Goods and Fortunes. But with Reſpect to poſſeft of remains ftill in the Enemies Hands;
things, whether they be Moveables or Immoveables, they have juſt Pretenſions to attempt to recover it,
if while the War continues, they are retaken from as long as a War is kept on Foot, and Peace is
exhe Enemy, either by our Selves
, by our Subjects or not yet concluded. Buc if a third Commonwealth
by our Souldiers, it is juft and reaſonable, if they reſcue a Nation by a War, which was overpowerd
are to be diſtinguiſh’d, that they ſhould be reſtor'd and enſlaved by Enemies, in its own Name, and
to the ancient Proprietors
. For ſince the Common. for its own Advantage, the Nati:n only changech
wealth is engaged to defend and ſecure the Sub- its Maſter, but is as far from Liberty as ever. And
jects as far is poſſible, in their Goods and Properties, we may ſay the ſame of a part of any Nation.
there muſt;it is evident, be the ſame Obligations up- But if a part of a People be recovered by the People
on the Publick to take care that what is taken from they were for ſome time divided or corn from, or
-them be reſtored. And it is no Exception, that the by their Allies, they again incorporate with the old
Goods were recovered by the Souldiers. For Soul- Body, and return to the Place and Rights they had
diers are only the Hands of the Commonwealth, before. Tho' perhaps indeed, with an Ally it
and what they win with their Swords, they acquire may be agreed, that he may keep what he won
to the Commonwealth, and are not to make their from the Enemy, tho' it before belonged to us.
own private Purchaſe
. And ſince it would be op- Demetrius, in Juſtin, when he loſt his Kingdom,
preſſion and Injuſtice in the Commonwealth to re choſe rather to yield it to Philip, than leave it to
cover thoſe Goods only for it felf, which the private the Romans (b). But tho' a part of a People affere
Subjects loft in War, there can be no way left but their own Liberty, and ſuppreſs their Enemies by
to recurn them to the ancient Proprietors (a). Thus their own Strength, they muſt return of Courſe to
in Homer, 'tis ſaid that the Booty was divided their ancient Body, and muſt not pretend to ere&t a
among them, that had loſt to the Enemy before. Separate Commonwealth by themſelves, when the
How the Roman Laws provided in ſuch caſes, old Commonwealth hath not quitted its Right to
fand eſpecially with regard to the Poſliminium, is them, as a part of its Body.
with much Exa&tneſs explain’d by Grotius, l. 3. c.9.

(a) Vid. 1 Sam. XXX, 22 &c. Homer. Iliad. 1. 11. Yas alſo Mr. Buddeus, in his Elemens de Philoſophie Pratique, Part. 2.
Cap. V. Se&. VI. Sc&t. IX. to which we may add Mr. Lock’s Principles thereupon, in his Treatiſe of Civil Government.
Chap XV. A Conqueror, ſays he, even in a juft War, acquires no Power over thoſe that have been the Companions of
his Conqueſt. 'Tis only but over thoſe that have concurred or conſented to the making an unjuft War on him. The
Power, he acquires over thoſe whom he ſubdues, is altogether defpotick, with refpe&t to their Lives; but not with refpe&
to their Poſſeſſions. The Reaſon of this laſt Article, which at firſt ſeems to be a Paradox, is, becauſe we may kill
thoſe who have taken up Arms unjuſtly, to take away their Lives, if they could have done it, that have conquer d 'em:
But that being only a perſonal Fault in thoſe that made an unjuft War, their Poſterity ought not to feel the Effe&s of
it. Now the ſame thing would happen, if we ſhould ſeize upon all their Eſtates, deſigned for the breeding up, and
Maintenance of their Children; which we ſhould by that means reduce to Beggary on account of their Fathers Crime.
All that a Conqueror can do with Juſtice, is to endemnify himſelf, if he has ſuffer'd any Lofs. Thus the People,
whoſe Predeceſſors and Country have been oppreſs’d by Force, have always a Right, according to Mr. Lock, to recover
it, and to uſe the ſame Means to regain their Liberties. Indeed it would be abſurd to fay, that a Prince has a right to
take all he can, and that after he has been in Poffeffion of it for fome time, the People that ſhall be born in thoſe
conquer'd Countries
, in after Ages
, are before Hand, by a Divine Right ſubject to his Dominion ; and that theſe People
may never Attempt to take away from the Deſcendents what one of their predeceſſors ſeiz'd on by Force. « The
" Truth of it is, (adds Mr. Le Clerk of whom I have borrow'd this Abftract) there are great Difficulties in this matter on
« account of the Misfortunes of Civil Wars, which we ought to endeavour to prevent, as much as poflible we can. But
“ lince it ſeems that all the Right that we can
Sovereign Law; we mult conſider whether what we are undertaking will in all probability do more harm thang
the Publick Good, which is the
good
to the Government. If it be ſo, then what we do becomes unjuft; but if the good which acerues by it, is much
than the Evil, the Enterpriſe may be caļlºd júft. Biblioth. Univerſal. Tom. xix. P: 586. Mr. Barbeyrac's Note,
474. See according to this Law de Poftliminio what Men acquire by their return into their own Country, or that of
their Friends and Allies (ex reditu in limen) Grotius Lib. JII. Cap. 1x. and Mr. Buddeus's Elem. Phil. Praet. Part I!.
Cap. V. Se&. 6. Se&. 25. & feqq. As to the Ideas of the Roman Law, we ſhall find ſeveral Remarks in Mr. Bynckerſhock's
Obfervations, Lib. I. Cap. XX, Lib. III. Cap. VI. Mr. Barbeyrac's ift. Note, p. 475.
(b) Juft. I. 29. c. 2. I si has starts 109
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C H AP.

greater
b.
O in
Chap. VII.
103
Of Compacts that relate to War.
CHA P. VII,
Of Compacts that relate to War.

bave no Tena
whether valid.
1
T may now be proper to take a extend to this Caſe; that ſuch as enter into Compact
The Diviſion of view of that fort of publick with one another, do by that very A&t renounce all Ex-
presuppose War Compacts, which preſuppoſe a ceptions to one anothers Perſons, which may make them
State of War. And theſe are of two ſuspect one another to be falſe to their Faith. For
ſorts. Firſi, Such as put an end to War. Secondly, where both Parties do ſeriouſly renounce all ſuch
fuch as do not put an end to it; but only in ſome Exceptions, they are already ceaſed to be Ene.
Reſpects, qualify and confine it, but becauſe I con- mies. But where they openly profeſs that they in-
lider theſe compacts in particular, I ſhall firſt en tend to continue Hoftilities ; the Evidence of Fact
quire in general, into the Validity of thoſe of the confutes their Promiſes. And therefore a Mari
latter fort.
muſt rather ſuppoſe that they only deſign to im-
II. All Compacts therefore made pofe upon and enſnare one another, and by
Compacts that with an Enemy, ſaith Grotius in ge- . making one another heedleſs and ſecure, to lay
neral, ought to be obſerved, 1. 3. c. 19. Trains for further Miſchiefs. So when Narſetas,
dency to re-
move the War,
which indeed is true of Compact's in Procopius, ſent to ask Totilas, what Day he
that tend to Peace;, but is I think would let for Battle,his Anſwer was,after eight day's
liable to diſpute with Relation to I'll meet you in the Field. Upon which, they that
ſuch as leave us in a State of War, without a De- were fent return'd and told their Maſter what was
lign to remove it. For I queſtion, whether it be agreed to. But he ſuſpecting ſome Falfhood, fput
a Concluſive Argument, thac becauſe a certain himſelf in a Readineſs to give his Enemy Battle
particular Man underſtands what is done, and the next day, and he proved not to be miſtaken,
hath Power to give his Conſent to it; therefore for the next Morning, before Intelligence could
that from his Promiſe another Perſon may derive a be brought by the Scouts, Totilas was advanced
Right, and he himſelf may contract an Obligation and marching towards him with all the Body of
to the other. For a State of War, as ſuch, hath his Army (a). But then, neither can the Perſon
no other Meaſure of A&tion but Force. The proper that happens to be ſurprized by ſuch a Compact,
uſe of Faith is to advance Peace. And therefore claim any new Right againft the Perſon that be-
it looks like an Abſurdity to employ Faith with- tray'd him by it; becauſe the State of Hoftility it
out Thoughts of reſtoring, or preſerving (1) felfalready gives him as much Liberty as he deſires.
Peace by it, and much more to make uſe of it, to If it be ſaid, that ſuch Compa&s ſhould be obſerv'd,
protract and carry on War, rather than put an end for fear the Enemy when he finds himſelf deluded,
to it. Beſides, when I enter into Articles of ſhould be exaſperated, and parſue the War with
Treaty, 'tis implied, that I defire the Perſon I greater Rage and Obſtinacy : 1 anſwer, That
treat with ſhould believe me and rely upon my this Obje&ion allows, that theſe compacts are to
Faith : But now it is a ſort of a Contradi&tion, to be meaſured only by the uſe and advantage of them.
require of him ſuch a Dependence upon me; And I confeſs it is true, that when the time or place
and yet at the ſame time to profefs, that I reſolve for Battle is agreed upon with an Enemy, it is a ſort
to continue his Enemy; that is, to do him all the of Injuſtice to fail in either, becauſe the revenge of it
Miſchief every way I can. For a State of Hoftili. will generally recoil upon the cruel and faithleſs (b).
ty in it ſelf gives a Man unlimited Liberty, to take We are not always obliged indeed to make uſe of
all the Advantages he can againſt his Enemy. the utmoſt Liberties of War, nay; it is often
And it is a Contradi&tion to my A&ions to make a the greateſt Glorý to ſpare an Enemy, when it
Proteſtatiin not to uſe the Liberty of an Enemy, is in our power to ruin and deſtroy him. But
while I perſiſt to continue in an abſolute State of ſince War becomes lawful upon this account,
War. And therefore what I ſaid before doth not namely, when it is tieceſſary we ſhould defend or
SIS
10
an
азу
Me-
(1) Notwithſtanding whatever our Author here afferts, I am of Opinion that theſe ſorts of Compatts ought to be as re-
ligiouſly obſerv'd as any other. His Reaſons prove nothing, becauſe they prove too much. Por in ſhort, if the Law of
Nature did not impoſe on
with the Enemy during the War, if it was lawful, for example, to break on purpoſe a folemn Truce, to detain without
having any Reaſon for
itPerſons to whom we had given Paſs-ports, &c. I do not ſee what Crime it would be to circum-
vent the Enemy even under a Pretence of negotiating Peace. When a Treaty is ſet on Foot for this laſt Deſign, we are
notwithſtanding nevertheleſs Enemies; 'tis properly but a ſort of Truce, which we agree to, to ſee whether
of Accommodation can be found out. The Negotiations prove unlucceſsful ; it is not then a new War that we
commence a fince the Differences which occafiond our taking up Arms, are not yet adjuſted, but only a Continuation of
the Buſineſs of Compa&ts which tend to the eſtabliſhing of Peace, than with reſpe&t to thoſe which only relate to the
moderating or Suſpenſion of A&ts of Hoftility ; and this would be a perpetual source of Jealoufies, which would occa-
fion eternal Wars, and would create an invincible Obſtacle to a Peace of kind. All that our Author ſays then ona
ly proves, that we ought to be very cautious how we engage our Word to the Enemy ; lince Mankind are apt to break it
for their own Intereſt, eſpecially when they have to deal with People that wiſh 'em ill, or hate them ſelves
. But from
the
very
Moment that the Treaty is concluded, we muſt keep it exa&tly, till either the time is expir’d, or the Enemies
Violation of the Engagement on his fide, diſpenſes with the obſerving ours any longer. Mr. Barbeyrac's Note, on this Seet.
P: 475.
(a) Procopius Hift. Goth. 1.4
(6) Ambrof. De Offic 1. 1. c. 29.
allero
any
Odo
104
Of Compacts that relate to War.
Book VIII.
oras, hobana
out
tion of Tru-
ces.
6
qualifie is to time, to.
aſſert our own Rights, where they are not to be ly limited to few Days, and not to thoſe which
obtain'd by peaceable means, we ought to think put a ltop to all Hoſtilities
, and Preparations for
that the ſhorteſt way to the Attainment of that "War, and for the time they laft, are little diffe-
end is moſt agreeable to Nature. And therefore
rent from an abſolute Peace ; particularly where
ſince by Compatts, that tend only to moderate and any Clauſe is inſerted in the Truce, that mentions
greater Length ; 'tis evident they muſt be contra wards the ſettling a full and entire Peace. But it
Iy to Nature (4). But however this be, it is a muſt be obſerved, that tho' Truces of this lacrer
Cuſtom which among others hath obtain'd in the fort, do generally comprehend all the Territories
more civiliz'd part of the World, (perhaps out of and Dominions of both the Parties engaged in the
a particular reſpect to Military Bravery, ) that fuch War; yet it may be, and often is agreed, that
Cumpacts ſhould be look'd upon to be valid which the Truce ſhall be obſerved only in certain particu-
were not intended to put an end to the State of lar Places, and that the War may be carried on,
War, but only to abate the Heat of it, and give as it was before in others. For inſtance, thoſe
the Parties engaged, Liberty to take breath. Of Nations in Europe that have Plantations in the Eaſt
this fort are Truces for certain Days,and ſometimes or Weft-Indies, may make a Truce, that ſhall be of
Hours to bury the Slain ; the Agreements to grant Paf: Force only in Europe, and continue the War all the
ſage through one anothers Guards (1); And ſome- while in the Indies.
times that no Hoſtilities ſhall be uſed in certain Places, IV. But it is a Queſtion, Whether
up in certain Perſons and Things; that there ſhall be if Peace be limited to any determinate of the Dura-
Celation of Arms at ſuch a particular time; that Time; for Inſtance, that it hall
certain Weapons and Inſtruments of War Shall not continue for Twenty or Forty Pears, or
be made uſe of. Olearius relates (6), That the like, it ſhould be look'd upon to be a Truce?
the Turks and Perſians made an Agreement, Now I confeſs, that in my opinion, every Peace
that the Merchants on both ſides ſhould is in its own Nature Eternal, that is, when ever
have free Exerciſe of Traffick and Commerce, and a Peace is concluded, both Parties agree never to
Liberty to paſs to and fro unmoleſted; becauſe take up Arms again upon that Controverſy which
it was the Intereſt of them Both to continue firſt gave birth to the War; but that the Diſpute
their Trade with one another. For fince Men, ſhall be abſolutely filenc'd; or be refer'd to the
to gratifie their Ambition and Avarice, will of- Deciſion of Mediators, or be ſome other way
ten raiſe Quarrels and foment Wars in the World ; amicably Compoſed. And the Perpetuity of fuch a
it may be thought abſolutely neceſſary to the Peace is not to be ſuppoſed to be interrupted, tho'
State of Human Affairs, to make War a ſort a freſh War afterwards breaks out a between the
of Trade and Profesſion, and to form it into an Art ; ſame Parties upon new Reaſons, and different from
that ſo at leaſt, the Injuries which the Innocent the former. For it is not to be imagined, that a
muſt ſuffer may be leſs inſupportable, when the perpetual Peace obliges Men always tamely to fub-
Liberties of the Sword and the Miſeries natural to mit to another's Injuries, without oppoſing him,
a State of War are more reſtrain'd. Beſides, the or making Refiftance. And therefore tho’ the
Reputation of being falſe and treacherous, and of Word Peace may be uſed, yet if the particular time
deluding others by Compacts, is generally of dange- be limited for its Continuance, ſo that the Diſ-
rous Conſequence to Perſons often engaged in Wars; pute upon which the War began, is not entirely
Since no Wiſe Man will be impoſed upon more t an end, it can amount to no more than a
than once.
But after all
, a cautious Man can Truce; which as long as it continues, ovliges
never lay any great Streſs upon ſuch Compacts ; them mutually
, to exerciſe the Offices of Peace
.
becauſe if he perſwades himſelf into Security by Thus the Lacedemonians (3) are faid to have made
them, he leaves himſelf open to the attempts of a Peace for Fifty Years, but yet when the War
his Enemy. And therefore he ought to be careful
, broke out again Six Yeans after, they were com-
how he agrees to any ſuch without manifeſt ne-, plain d of, only for breach of Truce
. But then,
ceflity, unleſs he is in a Capacity, upon any foul on the other band, it may ſeem abfurd to make a
Play, to give himſelf Satisfaction, or hath other Truce, as Romulus did with the Vejentians, for an
ſufficient Cautiin to depend upon.
Hundred Years (c) Tho' Dionyſius Halicarnaffems,
III. Among other Compacts, which 1. 2. calls it ſimply a League, becauſe there can
A Truce,
do not put an End to the War, but hardly be an Injury, but muſt be worn out of
what. only y Suſpend the Effects of it; muſt be Memory, in ſo long a courle of Time; ſo that
number's Truces, which are Agree to defer: the Revenge and Proſecution of ir to
ments to furbear Hoſtilities for a particular time, the another Age, feems Unreaſonable Livy indeed
Wur
ſtill continuing: Which Definition is explained fays, 1.7. 6. 20.
by Grotius, 1. 3. c. 21. S. 1. For Truces are ſome- Cerites, but that the A&t of the Senateyrun only for
times granted for ſeveral Years. But in that place, 1 an Hundred Years Truce. But I am inclined to think,
they had regard only to ſuch Truces, that are u- not ſeem to leſſen their own Authority, by appear-
ſually made when the Armies on both ſides are in ing eaſy in pardoning fo fenfible an Injury (d).
the field and in Motion (2), which are general. Thus iallo Theodofius the Second, made a Truce with
Adoldion yr 91191
or vildi ogt flertal Woo
(a) Vid. Hobbes de Cive, c. 3. f. 27.
(1) See Grot. B. 3- c. 21. [ 14. ECONOM
(6) Itin Perfic. 1.5. с. 20. (2) V. D. L. 49. t. 15. De Captivis & de Poftliminio, &c. 1. 19. (3) Iuftin. 1. 3. Ci
(c) Liv;, 1, 1. c. 15.
(d) Vide. Sozom. Hift
: Ecclef. 1. 9. c. 4. 9(n)
the

10 A 107853 TA
LUS 20W.11107) or
bow
@ 957 41.

Chap. VI.
Of Compacts that relate to War.
105
ces.
new Decla-
ration of
War when
the Perfians for an hundred Years. And Diodorus the Enemy lay ſtill, without offering any Action
Siculus, 1. 12. C. 60. mencions a Peace made for an in the ſame manner as is uſual upon formal Agree-
bundred Years, between the Ambraciote, and the ments, or Truces..
Acarnanians. And thus Ferdinand King of Spain, VIII. As for the Time Truces are of the Be-
and Alphonſus the firſt of Portugal, agreed to a Peace generally limited to, I refer you to ginning and
for an bundred and one Years (a). d.
End of Tru-
Grorius in the place before-cited, S.
V. Since therefore, notwith- 4. But I cannot by any means allow
A Truce leaves
ſtanding the Truce, à State of War what he there inſiſts. upon, that the Day from
the Diſpute, the continues; which could not be, which the Meaſure of the Time is to commence is
War began upon, unleſs the Pretenfions were ſtill not included within that Meaſure or Compaſs of
undecided.
kept on foot, and the Controverſy Time, becauſe (ſays he) the force of the Prepoſi-
the War begun upon remained undecided ; it is tion (From) implies, Separation and Diviſion, and
evident, that it would be abſurd to deſire to not Union and Conjunction. For certainly, the
make only a Truce with an Enemy, and yet Beginning of any thing is a part of that which it
require him to give up all his Pretenſions. For Begins. And therefore if, for inſtance, it be
if this be done, an abſolute Peace is concluded. agreed that there ſhall be a Truce for ten Days,
And it would be unreaſonable to defire to have from the firſt of July, I believe it would be diffi-
Liberty to renew the War without Grounds, cult for any Man to interpret this otherwiſe,
when ſuch a particular time is expired (b). than to take in the firſt Day of that Month within
di VI. And it is further evident from the Compaſs of the Truce. Beſides, it is not true
No need of a the Nature of Truces, that if after the that the Particle (From) hath always ſuch a
Truce expires, Hoftilities begin a-freſh, Force as to divide what it is join'd with, from what
there is no need the War ſhould be follows it. For it often fignifies a Beginning com-
the Truce proclaim'd again (c). But yet, where prebended within that which it begins. Thus
expires. the Truce is of long Date, and hath what Expreſſions are more common, than from
entirely put a ſtop to the progreſs and Head to Foot, and from the Beginning to the End
appearance of War; and where there is any (1)?
Clauſe in the Truce, that expreſly mentions Con IX. When Truces begin more par-
ferences to be held in order to put an end to the ticularly to oblige the Subjects on both The Subject
Diſpute; if it be not neceſſary, it is at leaſt Honoue lides, we may find in Grotius, in the
when obliged
rable, ſometime before the Truce expires, to ſignify Place before-cited, s. s.
by Truces.
our Deſign to the Enemy, and to make ſuch X. What Liberty a Truce allows and
What Liber
Overtures as may convince him, that we take what it forbids, Grotius alſo accounts
no Delight in War, and that it is no fault of ours, for in the ſame Chap. S. 6, &c. But allows, and
that the Peace is not concluded.
to here I confeſs I am of opinion, that what forbids.
VII. It may alſo be further ob- Aets barely Defenſive are lawful in
and made by ex-
ſerved, that all Truces which have Truces of any fore; tho' perhaps Truce was deſired
prefs Compact.
any binding Force and Obligation in and obtained upon ſome other Pretext. Thus for
them, are contracted either by inſtance, tho' Truce be granted only to bury the
expreſs Compact, or by Asts that bear ſuch an Aff. Slain, yet I ſhould not think it unlawful to make
nity to Friendſhip and Peace, as they can be referr'd uſe of it to Retreat to a Place of better Defence,
to no other Cauſe. Tho' Treaties of Peace have or to Repair or Raiſe a Fortification ; or if a Be-
not in themſelves the force of Trúces, except it ſieged Town requeſt Truce only to defer the Aſſault,
be exprefly ſo agreed. And therefore an Enemy I Thould not queſtion but that they meant alſo to
can have no good reaſon to conclude, that becauſe take in freſh Supplies of Men and Proviſions. And
I forbear Hoſtilities for a little time, therefore I Grotius's Reaſon to the contrary, ſeems to me to
conſent to give him Truce. Neither can he charge have no force in it, l. 3.c. 21. 8. 10. that ſince the
me with Breach of tacit Faith, if after ſuch a Truce makes for the Adrantage of one Party, the
Ceſſation of Arms, which he hath been ſo unhappy other that granted it ought not to be prejudiced
as to grow ſecure upon; I make a ſudden Deſcent by it. For lince Men cannot by any ſort of Com.
upon him, and ſurprize him. And in this Senſe paet give up their right of Self-Defence ; the Party
are thoſe Authors to be explain'd, that give ſuch that granted ſuch Truce can only charge the Fault
accidental Intermiſſions of Hoftilities without Come upon his own Eafineſs and ill Conduct, that he did
pact, the Name of tacit Truces, as Juſtin and not take ſufficient care that the Enemy ſhould
Livy frequently do (d); but which muſt be ſup- have no Opportunity to re-inforce himſelf (e). So
poſed to mean no more than that for ſuch a time Tilaphernes in Xenophon, made Truce with Ageſilaus,


ties a Truce
Truces contracted


(a) Conne&tagius de Unione Lufitan. 1. 1.
(b) Vide Baudium de Induciis belli Belgici, p. m. 128.
(c) Vide Grotium, 1. 3.C. 21. 1. 3.
(d) Vide Juft. I. 6.c. 7. Livy, l. 2. c. 18. & C. 64. I. 23. c. 46.
(1) 'Tis becauſe the Latin Prepoſition à which in this place anſwers to our From, ſeparates the two words to which it
relates, from what is between 'em; ſo that, according to Grotius, when we ſay from the firſt of June, to the firft of
Auguſt, thoſe two days muſt be underſtood excluſively. But our Author fays, that this Prepoſition alſo includes very
often, the two Terms, as in the following uſual ways of ſpeaking, a capite ad calcem; ab ovo ad mala. Beſides, tho
the Generals of two contending Armies, ought to forbear all Ass of Hoftilities from the very Moment of the concluſion
of the Truces; yet the Soldiers on both ſides are not bound to obſerve it, till it has been publickly proclaim'd in their
Camp. But all Asts of Hoftility, that may have been committed during that time, are of no force, ſo that we muſt en-
demnify thoſe that have been Sufferers by them. Mr. Barbeyrac's Note upon this section, p. 478.
(e) Vide Xenophon. Orat. de Ageſil
. laudibus. Cornel. Nepos. Ageſil
. c. 2.
* O
but
106
Of Compacts that relate to War.
Book VIII,
Truce.
but continued his Preparations for War all the time. the Treaſures and conſecrated Veſſels of the Church
And I do not think that if he really ſignified his are ſometimes juſtly given for Ranſom (c). The
Circumſtances to his Mafter the King of Perſia, Practice indeed of the Old Romans is known to
and had leave from him to enter into Articles with have been contrary (d): For when Hannibal per-
the Lacedemonians, that he was guilty of Perjury mitted them to redeem their Captives, the Senate
only for arming, and putting himſelf in Readineſs, anſwered, That they that would be made Priſoners .
to expect any Event (a).
when they had Arms to defend them, were very unnecel-
mood XI. When the Truce ex- Sary Subjects (e). And Plato (f) determines,
Whether a Man, taken pires Grotius ſays, that a: That in his Commonwealth, if a Souldier were made
in an Enemy's Country, Man taken in his Enemies Priſoner be ſhould be left to the Enemy's Mercy, tbo'
may be kept Prifoner af- Territories, and forcibly ſtop-i they were willing to give him Liberry
. Nor were
ter the Trucc is expired. ped, may be detain'd Priſoner, they without reaſon thus ſevere. For (as the
76 1. 3. C. 21. S. 9. (1.)
Declaimer ſays) (g), The greateſt Glory in
Int: 7o .
XII. When either Party breaks War is Victory, and next to Victory, the great-
What enſues upon Truce, the Party injured is at Li- eft is to die for the Cauſe you engage in: There
Violation of the
berty to renew the War without is indeed a third way too, but that a diſhonou-
eleon making new Proclamation of it. rable one, which is to fly when there is no
Tho' if he thinks it convenient he may forbear hopes of Conqueſt. But then it may be ſaid
till che Truce expires. But if it happen'd to be Sin excuſe for ſuch a Perſon, that he reſerved
agreed, that the Party that firſt broke Truce ſhould himſelf for a ſecond Trial, and that he hath
be liable to pay a certain Sum of Money by way ' ftill Courage to meet his Enemy once more.
of Penalty; where the Money is demanded and . But a Man that yields in the heat of Fight,
paid accordingly, it is evident that there is no chat lays down his Arms and tamely ſubmits to
Pretence for War left. For the reaſon why the the Conquerour’s Mercy, muft for ever be given
Party pays the Money is, becauſe he is willing to for loft. For what hope can be entertain'd of a
keep himfelf ſecure from War. But on the other Perſon that had rather be a Slave than Free, and
Hand, if the injured Party make War, he muſt that makes Captivity his Choice? What is to
be ſuppoſed to recede from his Right to the Penalty. to be obſerved upon this fort of Compacts may be
Tho' it muſt certainly be contrary to the Agree- ſeen in Grotius, 1. 3. C. 21. S. 23, &c. to the 28th
ment, to declare War immediately and neglect the section. I ſhall only add this Story (b) out of the
Penalty. For it is not uſual in ſuch Compacts, to Life of Caftriot ; a young Man of the barbarous Na-
leave it to choice, whether the Penalty ſhall be tions, that happened to be made Priſoner, was pre-
accepted, or the War renewed (b).
ſented to Muſachius for his ſhare of the Booty;
XIII. Compacts that relate to who agreed to give him his Liberty for two hun-
Of Compacts that Safe-Conduct that ſecure free dred Pieces in Gold. The young Man immediate-
relate to ſafe Con- Påſage, and return through Places ly took the Money out of his pocket and offer'd
duct.
in an Enemies Power, and how to give it for his Ranſom: But Muſachius refuſed
they are to be interpreted are largely explained by to accept it, or give him Liberty, telling him that
Grotius, 1. 3. c. ar. S. 11, 12. to whom I refer That Money was his own before when he became
you.
Maſter of his Perſon. But when the caſe was
XIV. Compacts relating to Re- brought before Caſtriot, he determined in favour
Of the Redemp- demption of Captives (2) are al of the young Man.
tion of Captives. lowed much favour among Chri XV. Of Compacts of Generals
ftians, eſpecially when the Cap- of Armies, and what Obfervati- of the Compa&ts
of Generals.
tives are detained in barbarous Countries; and even ons may be made upon them *




Note
P. 478.
(a) See Montaign's Eſſays, l. 1. c. 6. (1) Mr. Buddeus, in his Elem. Philofoph. Pract. Part 11. Cap. v. S. vii. Se&. 16.
is of Opinion, That it is the part of Humanity to let thoſe go who are ſeiz'd as Priſoners in a Country, not through any
fault of theirs; ſince no Body is reſponſible for an Accident. I muſt add, that there is a great difference between thoſe
that are found in the Territories of another State, immediately after its declaring War againſt their Prince; and thoſe
who, after Truce ſtay in the Enemy's Country, by an unforeſeen Accident. There has been no Cempact between the
firft, and the Prince in whoſe Territories they are"; whereas the other demand nothing but what is manifeſtly purſuant
to the Execution of the Treaty of Truce. For, ſince by virtue of that Engagement, we are obligʻd to grant 'em
the full Liberty of going and coming during the whole time of the Truce ; we ought alſo to give 'em, in my opinion,
the fame Permiſſion, even after the Truce, if it plainly appears, that any violent Misfortune, or unexpected Accident
has hinder'd them from making uſe of it, during the time agreed upon: Otherwiſe, as theſe ſorts of Accidents may
happen every Day, we ſhould not be ſo earneſt in ftipulating ſuch a permiſſion, which would hinder us from being al-
ways in fear of a Surprize, and would be as it were a Snare to make us fall into the Enemy's Hands. Mr. Barbeyrac's
(6) 'Vide Grot. 1. 3. c. 21. f. 11, 12. - (2) See Grotius in the Place above-mentioned, f. 23, 60cm
(c) Vide L. I. t. 2. 1. 21. C. de S. Ecclef. Gratian. Jus Canon. Cauſ. 12. Quæft. 2. c. 13, 14, 15,
(d) Livy, l. 22. C. 59, 61. Horat. Carm. L. 3.Od. 5. Silius Italicus, l. 10.
Noxam ſuperaverat omnem,
Armatum potuiſſe capi------
(e) Eutrop. 1. 3. c. 6.
(f) De Republ. 1. 5. p. 662. Ed. Wech.
(8) Quintil
. Declam. 339.
(b) Vide Marinus Barletius de Vitâ Caftriota,
The Sovereign is oblig'd to keep the Compafts which are made by his Generals, Commanders, and other Military
Officers, when they contain nothing beyond the Power that their poſts, or the Extent of private Orders they were
charg’d with give 'em, whether they are executed openly in the view of the whole World, or privately known to thoſe
with whom they treat. But if a compatt be made without Orders, and afterwards ratified by the Sovereign, by an.co
preſs, or tacit Conſent ; it is plain, that in that
Cafe it ought to be kept, the very ſame as if it had at firſt been made by
his Authority
. Nay, when an Officer has gone beyond his private Inſtructions, the Sovereign is no leſs oblig'd by ſuch
a Compact : Otherwiſe the Execution of all ſorts of Treaties would or might be evaded. See Grotius, Lib. III Cap. xxii
.
ſee

1. 7.
Chap. VIII.
107
Of Compacts that reſtore Peace.
C
C
of private Pero
fons in War.
Whether Compacts Should now conſider that the External Dominion, as he calls it, of what be«
fee Grotius. But to the 8th Section of it, I add, and reſtoring what had been loſt on either ſide
That Generals have power only to grant Truces of in War) If any perſon happen'd to complain of
shorter Date, and not ſuch as withdraw all Appear another's Falſeneſs to him, he only carried pub-
ance of War ; for theſe are to be granted only by lickly a Glove or Gantlet upon the top of his
the Sovereign Power.
Spear: And this they look'd upon to be the
XVI. Laſtly, How far private greateſt Diſgrace that could be inflicted. Nor
of the Compa&s Perſons have power to make com was it uſual for Perſons that had thus violated
pacts with an Enemy, may be ſeen their Faith, ever after to be receiv'd by Friends
at large in the ſame Author, 1. 3. or Relations, or ever to be admitted to the AC-
C.23. (1). To which I add the Cuftom obſerv'd quaintance or Converſation of Perſons of Re.
formerly between the Engliſh and Scots, with re. putation or Quality. It was alſo a Memorable
gard to Compacts of this kind. If any perſon (ſays Compaεt which happen'd to be made between a
the Hiſtorian Buchanan, I. 9.) did not make his Roman and a Gothick Souldier, mention'd by Pro-
Appearance at the Day appointed, this was his copius, when they were both fallen into the ſame
Puniſhment. . In the publick Meetings upon Pit (a), by which they promiſed to aſſiſt one ano-
the Borders between the two Nations, (which ther, and the Goths afterwards ratified their Agree-
6 uſually were held in order to the recovering ment.
(1) · Theſe ſorts of Compatts ought not to paſs for valid but when they are authoriz'd by the exprefs or tacit Conſent
of the Sovereign, or State ; and in that caſe, the Sovereign may force thoſe that have made 'em, to keep 'em. Now
the Laws and Orders of Sovereigns ought always to be explain'd, as enjoining and commanding nothing above human
Capacities. Mr. Barbeyrac's Note upon this Section. p. 479.
.
(a) Procopius Hift. Goth. 1. 2. c. 1.
CHA P. VIII.
Of Compačts that reſtore Peace. Loisimen de la o
I
ſort of Compa&ts which en- longeth to the Enemy. If therefore the Vanquiſh's
of Peace are inva- tirely put an end to War ; but Gro- return a ſolemn War upon his Conquerour, however
lidated by an Ex-
ception of Fear.
tius is ſo large on this Subject, 1.3. he may have no other juſtifiable Reaſon for doing
C. 20. that all I can add upon it, it, beſide that of Fear ; yet if he happeneth to
will be only a few things he happend to omit. The be ſucceſsful, he will not only recover what he
Principal doubt on this Head is, whether an Excep- himſelf loft before to his unjuſt Enemies, but pof-
tion of fear unjuſtly given,is ſufficient to diſannul or ſeſs himſelf alſo of what he can win from his
reſcind theſe compatts which Grotius in the Cafe Conquerour. And therefore a Man muſt be very
of a ſolemn War denies, l. 2. c. 17. S. 19. and l. 3. impudent, that imagines to ſecure himſelf in the
6. 19. S. 11. Becauſe it is contrary to the common Poffeflion of what he hath unjuſtly gotten, but
Practice of the Laws of Nations ; and becauſe it by the fame Force and Violence that made him
would be otherwiſe impoſſible to put an end to at firft Maſter of it. And it is equally abſurd in
this ſort of Wars, which are known to be very fre a Conquerour, after he hath forced the Vanquiſh'd to
quent, when it is the publick Intereſt of the ſubmit to hard Terms and Conditions of Peace, not
World that there ſhould. But it muſt be ſaid, That to ſee them obey'd while he hath him under his
the Extortions and Ravages of unjuſt War, can Reach, and at Mercy : But to content himſelf
never be retain'd or defended by Conſcience. barely in the Agreement and Compact of the Van-
And as it is beyond Diſpute, that an unjuft Cona quiſh'd, and then leave him in a Poſture which
querour is obliged to make Reſtitution; ſo I may give him Power to turn the Game upon
cannot think it appears by any Law of Nations, bim (). And therefore in Reality, the Caſe ſeems
that it is unlawful to plead an Exception of Fear to be this, if a Prince be invaded with an unjuſt
againſt him. And tho' there were ſuch a Low, War, and after he hath offer'd peaceably to Cona
yet I confeſs I do not apprehend, what Injury it cert and Compoſe the Difference, be forced to Con
it would be to the common Quier and Security of ſent to rigorous Demands, and accept an bard
Mankind, if no notice is taken of it. For accord- Peace, he is under no Confinement from any Law,
ing to Grotius (1), whatever be the juſtifiable Cauſe while the Peace continuerh unſettled, not to ob
of Solemn War, the Effect of it is the Acquiſition of ject his Exceptions of Fear; or afterwards as he





ز
(1) Grotius only means by that, a Right of Property allowable before ani human Tribunal, ſo that no Body can lawe
fully uſe Violence to diſpoſſeſs us of what we have thus gotten ; beſides our diſpenſing with the Reſtitution of it, in our
own Conſcience. See B. 3 c. 7. f. 6.and c. 10. f. 5.
(a) Vid, Guicciardin. Hift. 1. 16. fub fin. & 1. 17. ſub init.
* O 2
Teeth
108
Of Compatts that reſtore Peace.
Book VIII

How far, upon a
Goods of private
Subjects may be
ſeeth Opportunity, to endeavour to give himſelf Subjects can have, their Allegiance to their so-
Satisfaction for the Injury. And ſo Polybius, 1. 3. vereign (b).
c. 30. pronounceth, that the Carthaginians had - III. What Power the Common-
juſt Reafons for their declaring a ſecond War againſt wealth hath to excuſe the Goods
the Romans upon this account, becauſe while (c) of the private Subjekt upon a Pacification, the
they were embroil'd in Troubles and Confuſions Pacification, muſt be diſcovered
at home, the Romans forced them to give up Sare from the nature of (d) the Tran- excuſed.
dinia, and extorted a vaſt Sum of Money from fcendental Propriety (2): Upon the
them. And therefore faith that Author, the Oppor- force of which, the Goods and Fortunes of private
tunity the Carthaginians took to revenge themſelves, Men, whatever Title purchaſed and poffeffed by,
was of the ſame kind with that the Romans had taken may be given up, whenever the Neceſſities of the
to injure them. But the State and Deciſion of the State and publick Intereſt require it. But with
Caſe will be different, if the Parties engaged in a this Confideration, that the State is obliged to
War conſent at firſt, as it were, to a Contra&t of make good ſuch Loſſes to the Subject, out of the
Fortune; That is, if while the Reaſons of War publick Revenues, either immediately, or at leaſt
lie yet in Diſpute, they reje&t all Terms of Ac- afſoon
as it is able. But whether a particular Sub.
commodation, take Arms, and commit the Juſtice je&t's Goods ought to be excuſed, or taken from
of their Pretenſions, and the Purſuit of their him, muſt in a Monarchy be determined by the
Revenge, which might have been determined Prince. And the whole Body of the Subje&ts, upon
and ended by Treaty, or ſome other way of com- his Command, is obliged to make Satisfa&ion to
poſition, to the Event of War. For in this caſe, the Perſon that has ſuſtain'd loſs upon the publick
the Sword is evidently made Judge of the Diſpute, account beyond his own Proportion. But the
and both Parties put the Controverſie upon this Foreigners that are left to the Poſſeſſion of ſuch
Iſſue, either I will Right my ſelf, and Redreſs the In- Goods, need not trouble themſelves to enquire,
juries I have ſuffered, or or loſe ſuffer more; and they whether it was for the Intereſt of the Common-
that begin a War with ſuch Reſolutions as theſe, wealth to part with them or no. For the A& of
have no more Reaſon to complain of the injuſtice the Prince is ſufficient to give them a juft and law-
done them, than a Man would have that is hired ful Propriety ; becauſe of the Preſumptions that attend
to fight a Duel, and happeneth to be wounded in the Actions of Princes, and becauſe there could be
it. And therefore, where a Man puſhes on the no way of negotiating with Foreigners, without
Conteft to ſuch Extremities, and then finds the admitting that things are juſtly diſpoſed, when
fate of the Day turn againſt him, he muſt be con- managed under the Conduct of the Head of the
tent to ſay as one of Plautus's (1) Sofia's did to Commonwealth. Beſides, as the Laws of Society
tother, Well, do as you pleaſe, ſince you have the obligę
, the reſt of the Subjects, to make good
Arongeſt Arm (a).
03 1902 what hath been given up to the Enemy; ſo they
II. It hath likewiſe been a Que- ſeem to engage them alſo to the Relief of thoſe
Whether a peace ſtion variouſly diſputed, whether Perſons that have ſuffered Loſſes by the War;
the Commonwealth or Govern- eſpecially if it began without any particular Fault
ment is obliged to obſerve a Trea- of theirs (e). Though it is too evident, that the
ty or Peace made with rebellious Subjects: Grotius is unfortunate Subjects have hardly any where other
very large in the Affirmative, 1. 3. C. 19. S. 6, &c. Redreſs or Satisfaction, than to be told that it
But in my Opinion, the Caſe in a ſhorter and was an unforeſeen and unavoidable Calamity,
clearer View is this. A Prince that hath ſuppreſſed IV. If the Time be limited, in
his rebellious Subjects, may deal with them as he which the Conditions of Peace are to The Term limi-
ſees beft; but if he recovereth them by Compakts, be performed (3), it muſt be in. ted for the Per-
the very Nature of ſuch a Negotiation is an Evi- terpreted in the ſtricteft Senſe; Conditions of
dence that he pardons the Crime. So that the ſo far as to exclude all Excuſes Peace, to be
Compact is not to be declared void, upon pretence for the leaſt Delays, except ſuch ftri&tly interpre-
of the Rebellion : But the Rebels are by that Accom- as are manifeſtly the Effects of ted.
modation, reſtored and re-united to the Common- Force and Neceflity, and ſuch as
wealth, and are ſuppoſed to promiſe Obedience give no Jealouſy of Deſign and Subterfuge. The
to it. And the Obſervation of thoſe Compacts by Reaſon is plain; becauſe a ſhort Delay may
the Commonwealth, the Rebels may well ſuppoſe make a ſtrange Turn and Alteration of Affairs.
to be the Condition of the Obedience they promiſe. If therefore either of the Parties ſhould be indul-
So that in Kingly Governments eſpecially, ſuch a ged in deferring Performance of the Conditions, it
Compoſition may ſometimes obtain the Force of a would be eaſy for them to find Occaſions, to e-
Capitulation or Fundamental Law. But as Gramondus lude the agreement. Beſides that, it muſt be a
obſerves, When Subjects rebel purely that they vaſt Expence to a Prince to maintain a ſtanding
may force their Princeto yield to their Demands, Army; as he muſt in Prudence be obliged to do,
they certainly quit the only Bond of Security till the Articles of Peace are put in Execution.

made with Re-
bels is valid,
(1) Plaut. Amphitr. A&. 1. Scen, I. v. 240. (a) Vide L. 47. t. 10. 1. 3.f. 3. D. de Injuriis, & L. 9. t. 2. 1.7.1.4:
D. ad L. Aquiliam.
(b) Gramond. Hift. Gall
. 1. 2018
(c) Circa condonanda Bona,
(d) Dominium eminens.
(2) See Grot. B. 3. C. 20, ſ. 7, 8, 9, 10.
(e) Vid. L. 17. t. 2. 1.52. T. 4. D pro Socio, o t. t. D. de lege Rhodiâ, de ja&tu, L, 14 t. 2.
the above-cited place, Sect. 25.
(3) See Grotius, in
V. Some-

Chap. VIII.
109
Of Compatts that reſtore Peace.
which ſometimes only two particu- to be diſputed betw, but where the Quarrel is left
Blood, and to reduce the Miſeries and Calamitis
V. Sometimes (1) the Peace and which deſtroys the Enemies, or puts them into
How if a Peace the Conditions of it, are left to be ſuch Diſorder, that they are not able to make
be refer'd to the determin'd by a deciſive Battle ; in longer Reſiſtance.
Deciſion of the
Sword.
lar Combatants for both ſides, and Plunder of the Field, The burying the Slain,
ſometimes two, and ſometimes three on each ſide, The lodging upon the Place of Adion, The of-
and ſometimes whole Armies engage. And here fering Battle a ſecond time, are not in themſelves
a difficult Queſtion occurs; Whecher the Fate of any Proof of Victory; ſince all theſe may happen
the Common wealth may tawfully be committed when the Battle is fought with equal Bravery and
to the Fortune of ſuch a Fight? This ſeems in- equal Loſs. But if other Circumſtances concur,
deed to be a way to prevent a greater Effuſion of there may perhaps be Arguments enough to
prove the Enemy fled. And certainly when an
of War to leſſer Compaſs. But then on the other Enemy retreats ſo far as to quit the Field after
ſide, it is more ſatisfactory, promiſeth fairer, and the Engagement, it is a juſt Suſpicion that he is
looks like a better Venture to ſtand the Shock e. fled. But when neither Side can ſhow any good
ven of a bloody War, than to loſe the Security and Arguments to prove a Viktory ; Matters continue
Liberty of the Common-wealth all at once in ſuch in the Poſture they were in before the war, and
an Engagement. Since, on the other hand, the the Parties muft either come to a new Tryal by
War may be ſet on foot again, and perhaps the the Sword, or end the Diſpute by Treaty (b.) Thus
Succeſs of it be changed after two or three un- when the Diſpute was between the Lacedemonians
happy Encounters or Defeats
. But indeed when and Argives about the Thyreatick Lands, it was
there are no Hopes of making
a good End of a agreed in a general Aſſembly
of the States of Greece
,
War, though the whole Force of the Common- that the Controverſy ſhould be decided by Battle
wealth ſhould engage, if the Enemy will admit between a ſelect Number of Subjects on both
of it, the Diſpute may juſtly be decided by ſome fides, and that the Lands ſhould fall to the Con-
fuch ſort of Combat, as the leaſt of two Evils. querors. The Lacedemonians pitch'd upon Othrya-
Nay, and where Princes themſelves make War up- des for their Part in the Engagement ; and the
on their own private Diſputes, without any Rel. Argives made choice of Therlander. Two of the
ped to the Intereſts or Rights of the Common. Argive Party ſurviv'd the Fight, Agenor and Cro-
wealth, the State may eaſily give them leave to nius, who came home and brought
News of their
decide the Controverſy between themſelves by own Victory to the State: But after the Battle
fingle Combat
. And we have an Example of this had been ſome time over, Oshryades
, with the
Nature in Diodorus Siculus, 1. 4. c. 60. (a). Tho' little Life he had left, made a Shift to ſupport
Princes ought not to proceed to ſuch violent Me- himſelf with Pieces of broken Launces, took off
thods while the Matter in Diſpute is doubtful and the Shields from the dead Bodies, and erected a
uncertain. But here it muſt be obſerved, that Trophy with them, leaving upon it an Inſcription
they that leave the Iffue of the Controverſy to in his own Blood, To Jupiter Guardian of Trophies.
the Event of Combat or Battle, may determine as Formy part I ſhould make no doubt to pronounce
they pleaſe of what themfelves are poſſeſſed of, the Victory for the Argives (c)
but cannot transfer or loſe to others any of thoſe VI. As to Hoſtages (3) given for
Rights which are not in their power to diſpoſe of the Ratification of the Peace, beſides
An Hoft age fuca
And therefore if a Prince ſet his Kingdom to Stake, what we find in Grotius (4), it may ceeding his
except it be his in a Patrimonial Right, it will fig. be further obſerv'd, that if the
no longer detai.
nify nothing, unleſs he hath his Peoples and their Hoſtage happeneth to be the Prince's ned.
Conſent for it, that have by Birth a Right of Succeſ- Heir and Succeſſor that giveth him
fion. But farther, in ſuch pitch'd Battles it often up, when that Prince dies, he is no longer to be
comes to a Diſpute on which ſide the Victory lies. detain'd as an Hoſtage, though the League doth not
And here it is to be conſider'd, that generally ſuch expire at his Death. For this
Caſe is ſuppoſed to
Fights are Deciſive, and put an End to the Con- be tacitly excepted; That he ſhould be no longer
troverſy they began upon. And therefore where an Hoſtage when he ſucceeds himſelf in the room
two particular Combatants engage, the Victory of the Principal: But then he is obliged to ſubſtie
muft' be declar'd for him that kills his Enemy, tute another in his ſtead whenever it is demanded.
or at leaſt that ſo weakens and diſables him, as to VII. There is alſo another way of
force him to confeſs himſelf conquer'd; as Turnus, ſecuring Peace, and that is when - Of the Medi-
when he was wounded, doth in Virgil (2). Where thers, and eſpecially ſuch as inter-
ators of
a greater Number fight, That Side is Victorious poſed as Guarantees and Mediators of

Prince can be

Peace. .

(1) Vid. Grot. ubi fupra, f. 42, Soc
. and Mr. Buddeus's Diſſertation intituled Jurisprudentia Hiftorice Specimen, Se&t.
211t. to the 30th, excluſively. This Cuſtom was fo firmly eſtabliſh'd among the Ancients, that there have ſometimes been
Princes, who have loſt their Crown, and been forced to reſign it to another, becauſe they would not ſubmit to it.
'Twas thus the Poſterity of Theſeus loſt the Kingdom of Athens. Conon Lib. 39. apud Phot. Cod. 186. ſee the Differ-
tation de pretorio by Mr. Perizonius, p. 6, 7. Ed. 1696. (a) Dionys Halicarn. 1. 3. p. 149. 150. Ed. Lips. When the
Generals deſign only to aſſert their own power and Authority, the ſingle Combat between them is an honourable and
neceſſary way to end the Diſpute ; but when the Commonwealths themſelves contend for Superiority, the Uncertainty
of ſuch a Trial, makes it mean as well as unſafe to venture it,
(2) Virg. Æn, 12. v. 931, Soc.
(6) Vid Plut in Parallis Herod Clio. (c) Vid. Jo. Meurſ. Mifcell, Lacon. 1. 4. C. 14. (3) See the ad Chapter of this
Book, Sect. the laſt. (4) See Grotius, B. 3. c. 20. ſ. 52, &c
the
ILO
Of Leagues.
Book VIII
this Se&t. 482. (3) Vid.
the Peace, engage their Faith that the Articles ſhall trary to Treaty againſt the injurious Aggreſſor (c).
be obſerved on both fides ; which Engagement of But the Guarantees are not obliged to ſend Aids to
theirs implies a fort of Agreement, by which they any War that begins upon other Reaſons, than
oblige themſelves to aſſiſt the Party invaded con- the Violation of the Articles of Peacs.
(a) V. Diod. Sicul. 1. 4. C. 55:
CH A P. IX.
Of Leagues.
Salou
I
Shall in the next place conſider Sicul. 1. 12. C. 4. 'Tis certain the Athenians look'd
The Diviſion that Species of Publick Compact (1), upon ſuch Leagues to be neceſſary; eſpecially
of Leagues. which is uſually called, Leagues (2). between Nations that never had Intercourſe with
Pliny in his Natural Hiſtory, l. 7.c. 56. one another before. And no wonder, ſince the
gives Theſeus the Honour of being the Firſt that greateſt part of the World had loſt the Senſe of
made or uſed them: which is not to be allowed, that Law of Nature, that there was a fort of Natural
in
any other Senſe, than that perhaps he mighe Kindred between Men; and therefore that it was high-
be the Firſt in Greece that entred into League, orly Criminal for them to injure one another without
that perhaps annex'd certain Rights and Solemnities Grounds of Provocation. Nay, ſo far was this Truth
to be obſerv'd at the making of them. The moſt unknown to them, that the common Opinion
proper Diviſion of them ariſes from the Matter of was, that Offices of Humanity were due only to
them; And from thence they may be divided, Fellow Subjects; that all Strangers and Foreigners
Firſt, into Leagues that conſtitute what was an were Enemies, and might lawfully be treated as
Obligation of the Law of Nature before. Secondly, ſuch upon any Proſpect of Advantage (b). How-
into Leagues that ſuperadd ſome Particulars to the ever, at this time of day, when all Nations almoſt
Duties of Natural Law; or at leaſt that, where know more of the Law of Nature, are more ſtrict
theſe are too General and indefinite, reſtrain them to in the Obſervation of it, and more poliſh'd in
certain and particular Articles.
Jual their Manners, ſuch Leagues may be ſuppoſed ab-
II. Under the firſt Head may be ſolutely unneceſſary (4) ; unleſs, perhaps it be
Leagues that
rank'd all Leagues (3.) that provide allow'd, as it is between particular Men,) that
eftabliſh nothing barely for the Exerciſe of Civility when the Firſt Advances are made towards Ac.
due by the Laws and Humanity, or to prevent Inju- quaintance, Good Breeding ſhould make the Pre-
ries on either hand, See Genef. XXI. liminaries to Friendſhip a little ceremonious and fo-
23. And in the League the Lacede- lemn, As Cicero ſays in his Epiftles (C), In e-
monians made with the King of Perſia there was very new Acquaintance muſt be conſider'd,
this Article (a), Whatever Towns and Countries the ' what are the firſt Steps to be made, and by what
King is at preſent in Pofeſion of, and were before in the Recommendation the Paſſage is to be opened
Polleſſion of his predeceſſors, ſhall continue in Subjection to Friendſhip. In any other Reſpect, ’tis a
to him. And no Lacedemonian or Ally to the Lace- Scandal to human Nature that any Civil People
demonians, ſall make War upon them, or injure them hould enter into any Treaty, the Articles of which,
any other way, or demand Tribute from them upon any have no further Intent than to provide that the
Pretence whatſoever. The King ſhall bave the entire Law of Nature ſhould not ſimply and directly be
free Rule in his own Dominions. But perhaps it may broken; as if a Man could not have a proper
be thought that by this Article the Lacedemonians Senſe of his Duty, unleſs he bound himſelf under
renounced all claims and Pretenſions whatever, in ſuch an Obligation. Such Leagues indeed are
Aſia: For Afia was the King's notwithſtanding commonly call'd no more than Treaties of Friend-
the Lacedemonian League. And 'cis Eſſential to all ſhip. But certainly the ſtrict proper Notion of
Propriety, both that what is mine ſhould be free Friendſhip, alſo includes much more than the com-
from the Invaſions of other Men, and that I mon Offices of Humanity. For tho' the A&tions due
ſhould have Liberty to do with it as I pleaſe. to Friendſhip are not ſo determinate, as thoſe due
With this League may be compar'd the Treaty of by Compact; yet in general every Man will allow
Peace between the Athenians and the Perſians, Diod. that it is the Duty of one Friend to impart himſelf
(1) See Grot. B. 2. C. 15. ſ. 1, loc. (2) I could not find a more proper word to expreſs the Latin Term Fædera
by. Treaties would have been too general ; for 'tis plain that the Author here excludes all Compacts made during the
War, whether to moderate or fufpend Acts of Hoftility, or barely to treat of Peace, having already treated of 'em in
the
preceeding Chapters. Beſides, he fays himſelf in this very
Chapter, Sect. 3. Utraque fcedera inire poti ſimum folent
O BALIQUAM SOCIETAT & M contrahendam,&c. ſo that the word League may not be very improper here,
tho' it is generally reſtrain'd to Treaties, by which ſeveral Princes or States unite,
confederate, or league together, to
Grot. ubi fupr. f. 5.
(a) Thucyd. 1. 8. c. 18. Ed. Oxon.
(b) V. Grot. I 2. c, 15. . 6.
(4) See above in B. 2.c, 2. 1. 11. (c) Cic. Ep. ad Fam, L. 13. Ep. 10.
and

of Nature.
C


Chap. IX.
III
Of Leagues.

and his Fortunes to the Relief of the other, to Offenſive and Defenſive ; or in ſhort, to any other
provide for his Happineſs and Security, to affilt Matter
. Equal Leagues relating to Commerce, may
him with Advice, ſupport him with Counfelbe various. For example, Suppoſe it be agreed
and Comfort, to protect him as far as he has that none of the Subjects of the Confederate Com-
Power from Evils and Dangers which threaten monwealths, ſhall be obliged in any of the Ports,
him; and that all this is to be done with greater or any other Parts of the Territories belonging to
Intenſeneſs of Paſſion, than common Offices of one another, to pay Cuſtom or Toll; or not more
Humanity pay'd to other Men indifferently require than is paid at preſent; or not above a certain
Further, under this Head Grotius reduces all Rate or Quantity; or not more than Subjects, or
Leagues made for the Eſtabliſhment of mutual Cor- other Allies pay ; and the like. Equal Leagues re-
reſpondence and Hoſpitality, and of Trade and Com- lating to a Community of War are ſettled thus ;
merce, as far as due by Right of Nature (a), But When for example, it is agreed that both the
that all are not properly Allies and Confederates, Confederates ſhall furniſh out an equal Aid of Men
who have made an Agreement barely to obſerve and Ships and other Neceſſaries for Wax ; and that,
common Duties of Humanity, may appear from either both when either of the Confederates is inva-
Livy, 1.41. c. 24. Where the Achaians upon Dif- ded by Enemies, or make War upon others, or on-
pleaſure conceiv'd againſt King Perſeus, forbid the ly when either Party is invaded. Sometimes sids
Macedonians their Country. Whereupon Mace- and Supplies are promiſed only for a particular
donia became the Refuge to all their fugitive Slaves, War, or againſt a particular Enemy, or againſt all
the Achaians not daring to attempt to recover Enemies in general, excepting only the particular
them by purſuing them thither. But Perſeus to Allies of each Confederate. Laſtly, Leagues about
regain their good Opinion promiſed them, that any other Matter are equal, when it is agreed that
if they would take off the Prohibition of Inter- one ſhall have no Forts upon the others Confines; that
courſe between Macedonia and Achaia, he would one ſhall not defend the other's Subjects, or receive
ſend them back their Slaves. Upon which the them into Protection, but apprehend and ſend them
Mateer was debated in the Meeting of the States back to the other ; that one ſhall not give the other's
of Achaia. Callicrates oppoſed their gratifying the Enemies Pallage through his Country; and the like.
King, for fear of giving Umbrage to the Romans; IV. Having thus explain’d the equal of Unequal
and on the other Hand, Arco contended that not- Leagues, it will be eaſy to underſtand Leagues
.
withſtanding their League with the Romans, they what are the unequal (3). And theſe
might ſafely accept the King's Offer, and ſatisfy are when either the Promiſes are unequal; or
his Deſire, urging, That the thing in Debate, was when either of the Parties is obliged to barder Con-
not whether they ſhould enter into any new Alliance or ditions. The Promiſes may be unequal
, either with
Confederacy; but only whether they would give and regard to the ſuperior or inferior Confederate. The
take the Liberty of Trade ; to let their Country be open first happens when the more powerful Confederate
to the Macedonians, that they might have free Paf- promiſes his Aſliſtance to the other, without re-
Sage into theirs, and that their Slaves might not be out quiring the like; or when the Aids he promiſes,
of reach when they fled thither. And that all this are greater than what the other promiſech; or
was not inconſiſtent with their Alliance with the when the other is not bound to bring Proportionate
Romans, ſince that did not oblige them to act par- Aids. The latter happens, when the inferior Con-
ticularly againſt Perſeus.
federate is obliged to Conditions of larger Extent
III. Secondly, Leagues which than the other. Some of this ſort of Leagues in-
Equal Leagues fuperadd to the Duties Men owe clude a Diminution of the Sovereign Power
. Of
which, and
what sorts of
one another by the Law of Nature this Nature was the League between the Romans
are of two forts, fome equal, others and Carthaginians, in the end of the ſecond Punick
unequal. The firſt are ſuch as are War; by an Article of which the Carthaginians
alike on both ſides (1); or, when not only the were not to begin any War without leave from
Engagements and Promiſes are either ſimply, or, in the People of Rome. And thus Armenia Major re-
proportion to the ſtrength of either Party, onceived its Kings from Rome, tho'it paid no Tribute
both ſides equal; but alſo when the Manner of to the Romans (6) (4). On the other hand, Thoſe
palling them is equal, ſo that neither of the Parties Leagues are no Diminution to the Sovereign Power
is obliged to harder Conditions, or left any way ob- which include only a * Tranſient Burtben ; or one
noxious to the other. The unequal I ſhall conſider which may be complied with once and for all.
by and by. Ifocrates (2) diſtinguiſhes after the For inſtance, if when a Peace is concluded, one
fame manner, ' That Covenants or Leagues are Party is obliged to pay the other's Army ; to de-
equal, when the ſame equal Right is divided to fray the Charges of the War; or to pay a Sum of
both Parties; and that "That is a Command or Money by way of Mulet ; or when either Party
unequal League, when one hath harder Terms is obliged to diſmantle Towns, demoliſh his Forts,
'than the other, (for I ſee no Neceſſity of ad evacuate certain Places, remove from certain
ding contrary to Juſtice.). The end of both forts is Countries, give Hoftages
, deliver up Ships, and
chiefly the Advancement of Society. And this Society Arms, and the like. Thus in the Articles of Trea-
either relates to Commerce, or to Community of War; ty, which Porſenna allowed the Romans upon their
Or to mutual Promiſes of Aid and Supplies in Wars Excluſin of the Kings; it was particularly men.
them.
(a) Vid. Supra, 1. 3. c 3. f. 9, II, 12.
(1) See Grot. B. 2. c. 15. f. 6.
(2) Ifocrat. Panegyr. p. 132.
(3) Vid. Grot, ubi fupra, f. 7: (b) Appianus Alexand. Præfat. p. 2. A. Ed. H. Stepò. Vid. Procop. Hilt. Gothic. L. 1,
c. 6. The Agreement Peter made with Theodatus, concerning Sicily.
(4) V. 7. Liv 1. 30. c. 37.
* Onus Tranfitorium.
tion'd,
1 1 2
Of Leagues.
Book VII:
C
tion'd, That they ſhould have no Inſtruments of Iron jects to appear and ſtand their Tryals in his Courts,
for any Uſe, but in Husbandry (a). And here by and to puniſh them according to Sentence given.
the way, the Story which Procopius relates in the The Story of Decius Magius in Livy, is an In-
fourth Book of his Hiſtory of the Goths, may per- ftance of this (d). But particularly, that which
haps deſerve Obſervation. • When the Truce Pauſanias relates (e). When upon the Motion
was made between Juſtinian and Cofroës, by the and Inſtance of Callicrates, the Roman Legate
· Conditions of it, Juſtinian was to pay two Thou- charged the greateſt Men among the Arbenians
• ſand Libræ of Gold; whereupon Iſdiagunus the Per- with being in Perſeus's Intereſt; Xenon, who was
fian Ambaſſador demanded immediate Payment; one of them, upon Confidence of his Innocence
but Fufinian propoſed rather to pay every in that Mater, anſwered, That he did nor doubt
Year four hundred, thinking by that means to but he could clear himſelf of that Charge, even
lay the ſtronger Obligations upon Cofroës, not before the Roman Senate it ſelf; which the Legate
to break the Truce. But the Romans complied immediately took che advantage of, as if he had
at laſt, and paid the entire Sum, for a yearly appeald to Rome, and thereupon he and ſeveral
Payment might look like Tribute. So common others were ſent to Rome. And yet Polybius informs
(faith the Hiſtorian) it is for Man to be more afraid us (f) ſpeaking of thoſe that were ſent thither
,
of a diſhonourable Name, than diſhonourable Aětions that the Senate did not think that it belonged to them to
But here it may be ask'd, Whether ſuch unequal bring them to a Tryal. And therefore, the Anſwer
Leagues as are attended with permanent and perpen to the Difficulty mention'd is eaſy, that the
former
tual Burebens do always and in themſelves lefſen part of the words muſt be underſtood of the Pri-
and impair the Sovereign Power ! or, Whether an mitive Times of the Roman Commonwealth,
unequal Confederate may be ſuppoſed to retain his when they were ſtrict in their Obſervance of the
Sovereign ? Now permanent and perpetual Burthens Laws of Confederacy, and uſed to make a Diffineti-
are ſuch as theſe, when the one is obliged to have on in their Carriage and Treatment, between fuch
the ſame Allies with the other, and not on the con as voluntarily entered into an Alliance with them,
trary ; when one Party is obliged not to build and ſuch as their Arms had conquered. And this
Forts in ſuch particular Places, not to levy Forces Cicero confeſſes, That the old Romans thought
or raiſe an Army ; (and this was one of the Condi- themſelves obliged to protect their Allies, and never
tions of the League, between the Romans and the aſſum'd the Command over them (g). And Scipio
Latines, that the Latines ſhould make no Levies of made it a particular part of their Commendation,
Men, nor ſet any Officers of their own over them, that the Romans did not confine the Foreign Nations
or ſend them out upon any Expedition. The to their Intereſt by Severity and Servitude
, but by
neceſſary Conſequence of which was, that the the Tyes of Friendjhip and Alliance. But the latter
Romans pafs’d the Decrees of War or Peace, and words refer us to after Ages, when the Reſpect
that the Allies were Partners only in the Toyl, and Reverence they had to their old Confederacies
while they took the Conduct themſelves, and en ran low, and their Allies as well as the conquer'd
joyed the Honour and the Benefit of the Victo- Nations were reduced to equal Terms of Slavery
ry) (b). That one ſhall not have above a certain (b). So Sylla forced all the Roman Allies that had
number of Ships, ſhall not build new Cities, ſet been free till his time to pay Tribute
. At which
out Fleets to Sea, raiſe Souldiers in ſuch particular time it was alſo common to bring the Subjects of
Places; and the like; but eſpecially when one the Confederate States to Rome, to be tried, and to
of the Confederates is obliged to pay a Deference puniſh them there, as Roman Subjects. But it is
and Submiſſion to the other ; or what is the ſame evident, that in the Epiſtle of Proculus, between
thing, to acknowledge him Superiour in Dignity, the former and latter Words, there were ſeveral in-
and to expreſs a Reverence to him in all his Acti- termediate things mention'd. But here Grotius
ons (). Thus the Athenians allowed their Allies after he hath tediouſly recounted the ſeveral kinds
their ſeparate Liberties, and erected a popular of Diſputes, which might happen between Allies
Form of Government among them; but reſerved and Confederates, at lait diſmiſſeth the Difficulty,
Superintendence and ſupreme Direction of Affairs without anſwering any thing to it (i). How-
to themſelves. Grotius anſwers this Queſtion, L. ever, it is well obſervd by wile Men that it
gene-
1. c. 3.5. 21. out of L. 49. t. 15. 1: 7. 5. 1. D. de rally happens, That if the Party Superiour in the
Captivis
, &c. But the Difficulty lies in the fol- League, be conſiderably ſtronger, and more
lowing Words of the Civilian, At fiunt apud nos rei powerful than the other Confederate, he will by
ex civitatibus fæderatis, & in eos damnatos animad- Degrees arrive at an abſolute Sovereignty over them,
vertimus. But the Subjects of our Confederates are eſpecially if the Confederacy be Perpetual, and
brought to Tryal before us ; and we paſs Sentence, and allow him a Right to place Garriſons in their
puniſh them. For this certainly implies Subjection, Towns (k).
when another hath a Right to Summon our Sub-

(a) Plin. Nat. Hift. L. 34. c. 14. See alſo, 1 Sam. XIII. 19, 20.
(6) Vid Dionyf. Halicarn. 1. 8.
(c) Vid Ifocrat. Panegyr.
(d) Livy, 1. 23. c. 7.
(e) Pauſanias in Achaicis,
(f) Polyb. Excerp. Legat, 105. (8) Cic. Off. 1. 2. c. 8. (H) Vid. Liv. 1. 42. c. 1. Appian. de Bello Cio. 1. 1.
*) Vid. Anton. Matth. de Criminibus, ad tit. ad L. Jul. Majeftatis, c. 1. f. 5, 6.
(2) Vid. Bodin. de Repub. 1. 4. c. 6 Iſocrates Archidam. p. 214. People that are jealous of their Liberty, ſhould avoid
all'unequal Confederacies, for there is hardly any difference between them and Slavery.
V. Another.
Chap. IX.
113
Of Leagues.
V. Another Queſtion Grotius enters pires upon a Change of Affairs with his Confederates ,
of two Con-
upon, (a) is this, Suppole two Parties muſt charge the misfortune upon himſelf, that he
federates,
which athird
boch Allies, and Confederates to a third, did not make ſtricter ſearch into the Circumſtances
ought to ajift make War upon one another, which of his Ally (i). Tho' an honourable Confederate,
of them the third Confederate ought when he finds that the Poſture of Affairs he is in
to aſſiſt (b)? In which Place it may be added, will not ſuffer him to continue any longer in the
that in all Leagues which a Prince enters into with Alliance, ſhould give advice of it to the others that
his Neighbours, upon the Points of Aſſiſtance and are concerned, that they may have time to prou
Supplies, this Exception ought always to be ſup. vide for themſelves, and ſecure their own Intereft.
poſed, if the Condition and Circumſtances of my own For it is certainly the higheſt pitch of Buſeneſs poſſible,
Kingdom will permit ? For that Conſideration to facrifice a Friend to ſave my ſelf (k). And therefore
ought always to over-balance, not only any pri- in all Leagues of War, it is look'd upon to be a
vate Reſpect, but even the Ties of Blood and Af. very important and neceſſary Article, that no one
finity (c). For ſince it is impoſſible a Prince of the Confederates ſhall make a ſeparate Peace with
ſhould be under nearer or ſtricter Obligations to the common Enemy, excluding the reſt of the Al-
an Ally, than to his own Subjects ; 'tis plain he lies. Tho' 'tis reaſonable this Article ſhould be
can make no Promiſe that can be binding to any underſtood with this Limitation, ſuppoſing the other
Confederate, when it is manifeſtly, inconſiſtent Confederate or Confederates, do not refuſe to comply with
with the good of his own Subjects. It was ſaid by fair Terms and proper Overtures of Peace. For in
King Francis I. in Guicciardine, that he thought the ſuch a Caſe, this looks like a Violation of the Con-
Oath he took at Rhemes was of the ſtrongest obliga- federacy, and in conſequence the other Ally may
tion; and by that the Kings of France were obliged not juſtly take ſeparate Meaſures for his own Security.
to alienate any part of the Patrimony of the Crown (d). But then this alſo muſt be allowed in a mitigated
And in this Senſe, what my Lord Bacon ſaith, in Senſe only, and with certain Alleviations, that it
his Wiſdom of the Ancients; c. 5. may be very well may not be a Pretext to elude Confederacies, and,
admitted. * That there is but one true and pro. that one of the Allies may not in ſome Senſe be
per bottom of Faith among Princes, and that made the other's Judge (1).
! is Neceſſity (a Deity of great Power with the VI. Another celebrated Diſtinction Leagues
Great) the danger of the State, and the Com- of Leagues is that which divides them Real, com
.
munication of Profit. And Ariſtotle ſpeaks very into real and perſonal. The latter art
plainly (e). Advantage ſeems to be the main ſuch as are made with the Prince, purely with
• cauſe of Confederacies, between Common- Relation to his Perſon, and expire with him. The
wealths (f). Polybias ſays of the Rbodians (8), former are ſuch as are made with the Kingdom and
that they made no Alliance with the Romans for a Commonwealth, rather than the Prince or Governa
hundred and forty Tears together, tho' they ſent ment; and theſe outlive the Miniſtry and the Go
them Aliſtance in ſeveral Wars; and the Reaſon of vernment it ſelf under which they were firſt made.
this, he faith, was, . Becauſe they were willing To which of theſe every League belongs, will ap-
to appear fair to all the World, and to give pear from what follows. This therefore is certain,
every Prince hopes of their Aſiſtance and Friend- that whatever Leagues are made with a free People
ſhip, but at the ſame time unwilling to abridge are in their own Nature Real, and muſt continue
themſelves of any part of their Liberty, by till the Term limited in the League, notwithſtand-
binding themſelves under Oaths and Compacts
, ing that the Government by whoſe Intervention the
to adhere to the Intereſts of any one Nation. Leagues were made, may die or be changed. And
Sir Thomas Moor would have his Utopians forbear hence we may infer, that if a free People enter in-
entring into Confederacies upon other Reaſons (b). to a League, and afterwards the State of the Com-
But a Prince that ſuffers by an Alliance, that ex. monwealth happen to be changed from a Demo-






(a) L. 2. C. 15, f. 13. His Deciſion is reduced to this : When two Allies make War unjuſly againſt each other, we muſt
allift neither of 'em. But if the Cauſe of one of the Allies is juſt, we muſt affiſt him, not only againſt Strangers, but
even againſt one of our Allies ; unleſs there be any expreſs Clauſe in the Treaty that does not ſuffer us to undertake the
Defence of the firſt againſt the laſt, tho' he is in the wrong. But if leveral of our Allies enter into a Confederacy
againſt a common Enemy, we muſt then equally aftft 'em all, as far as poſſible: And when it is not in our Power to
alift 'em all at the ſame time, we muſt give the Preference to the moſt ancient Ally. See Mr. Buddeus's Diſſertation,
de Comparatione Obligationum quæ ex variis hominum Statibus oriuntur ; and that by Mr. Thomafus de Sponfione caudina,
Seet. 17. & ſeqq
(6) Vid. Simlerumde Repub. Helvetiorum, 1. 1. p. 119.
(c) Vid Gellium, 1. 2. c. 29.
(d) Guicciardine, Hift. 1. 16.
(e, Arift. Nicom. 1. 8. c. 5.
1) Arift. Rhet. l. 3. c. 14. 'Tis incredible, that any Man ſhould chooſe to do a thing without any proſpect of
Advantage by it. Valer. Flaccus, 1. 4.
Certa fides animis idem quibus incidit hoftis.
They're certain Friends that have a common Foe.
Ifocrates Orat. ad Philip. p. 156. A Commonwealth hath no regard, either to Enemies or Oaths, or any thing elſe,
further than it thinks it tends to Advantage : Thus Polybius, 1. 2. c. 47. faith of Aratus, that he knew Kings naturally
look'd upon none, either as Friends or Enemies, but rated Friendſhip and Enmity, purely according to their own Pro-
fit. Andr. Maurocenus, Hift. Venet. 1 1. ſpeaking of the State of Venice, faith, We meaſure our Alliances, and Friend
fhips only by the Credit and Intereſt chey bring us. (8) Polyb. Excerp, Legat. 93. c. 6.
(b) More, Útop. I. 2.
(i) Vid. L. 50. t. 17. 1. 19. init. D. de reg. juris.
(k) Euripid. Iphigenia in Tauris v. 605, 606, 607.
) V. Job. Labard. Hift. Gall, l. 5. 6. 313. Ed. Paril. An. 1671.
* P
cracy,
114
Of Leagues.
Book VIII
cracy, into a Monarchy, the League is ſtill in force, VIII. But how far a Succeſſor is
becauſe the People is the ſame, tho' the form of the obliged by the Leagues of the Of general Marks.
Commonwealth be changed. And becaufe a Prince his Predccellor, is what we may take a more
Prince call'd to the Throne by the free Voice of the distinct View of
. For in the firſt place 'cis certain,
People is always ſuppos’d to take the Sovereign Powe that if the Predeceffor make a Peace, the Succellar is
er upon him, together with all the Obligations con- obliged by it. For by a Peace 'tis manifett, all
tracted by the People
, when it lay in their Hands. paft Injuries that gave birth to War are forgotten,
Beſides, Leagues are made by them that are in the Articles of the Peace being duly obſerved!
veſted with Sovereign Power. The Common Sub- And then Secondly, 'tis beyond Diſpute, that the
ject of which Power is the Commonwealth; and Succeſſor is obliged to ſtand to all thoſe lawful A
Sovereign Power is the fame, both when it is exer- greements, by which his Predeceſſor transferr'd any
ciſed by the common Suffrages of the whole Body of Right to a third Perſon. And again thirdly, It is al
the People
, and when it is afterwards entruſted to ſo certain, that when one of the Confederates hath
a Prince, created by the Conſent of the People. But performed what the League obliged' him to, and
here all thoſe Leagues are excepted, that were made the Prince dies before he Jatisfies what was required
only for the Preſervatin of the preſent State of the on his Part, the Succeffor is obliged to ſatisfie it.
Commonwealth. For Example, ſuppoſe two free For ſince what the other performed upon a Condi-
Commonwealths enter into a Confederacy, by which tion of an Equivalent to be paid him, did either
they agree to Aid and Alift one another, againſt really, or at leaſt was intended to promote the
all ſuch as ſhall endeavour by force to ſubvert the Advantage of the Commonwealth; it is evident,
preſent Eſtabliſhment of the Government in either that unleſs the Equivalent be paid him, he hath a
Commonwealth. For if afterwards, either of Right to demand Reſtitution or Satisfa&tion, for
the two Nations freely conſent to an Alteration of what he perform’d, in a manner before it was
the State of their commonwealth, the Reasons due ; and confequently, that the Succeſſor is on
ceaſing, the Confederacy is ſuppoſed of courſe to bliged to refund all back, except he chooſeth to
expire. But however in the General, tho' every pay the Equivalent, according as the Articles of
League made with a free People be Real; yet it does Confederacy before determined. Laſtly, as to theſe
not follow on the other Hand, that therefore Leagues, where nothing hath been performed on
every League made with a Prince is perfonal, and either Hand; or where the Performances have been
dies with him. For the inſerting a Perſon in a equal, it may I think be ſaid in general ; that the
Compact, doth nor make the Compact perſonal, Prince if he entred into the League as head of his
but only ſhows by what perſon's Intervention the People, and with deſign to advance the publick Good
Agreement was made (a). But becauſe it is evi- by it; muſt be ſuppoſed to have made a real League
dent, that Princes make ſome Leagues with no and to have obliged his Succeſſor by it. Becauſe
farther Intention, than that they ſhould con- fuch a League affects the whole Maſs of the People;
tinue till their Death; and others with De- and the ſucceeding Prince the Head of them, en-
fign to derive them down to their Succeſſors ; ters upon the ſame Rights, and takes upon him
it muſt therefore be enquired, what are the the ſame Incumbrances with his Predeceſſor. But
Marks whereby we may diſtinguiſh, which where the League directly regards the Benefit of
fort every Regal League ought to be reduced the Prince's Perlon and Family; 'tis evident that
orta his when he dies, or that is extinct, the League muſt
VII. And it is Grotius's Opinion alſo be at an end. But it is grown into a Cuſtom
Which may be (b), that it is eaſier to diſcover this, upon any new Succeſſion, to renew the Leagues,
diftinguiſh'd
from the Forin "and Phrafe of the tho' in themſelves undoubtedly real, at leaſt in
League it ſelf, than from any general general Terms, for fear any Diſpute or Exception
Rules or Obſervations. And thus ſhould ariſe, that ſince the Commonwealth hath
all Leagues will appear to be Real, in which ’tis ex not yet perceived the uſe and advantage of ſuch
preſly mention'd, either that they are to be perpe a League, that therefore it hath no other Bottim
tual; or that they are made for the common Good; but his Faith that made it, and doth not deſcend
or made with the Prince and his Succeſſors; or when to the Succeſſor
. And eſpecially fince the deſign of
a particular time is limited for the Continuation every League is to promote the publick Gaod; and
of them. But beſides, the other Words of the ſince the Succeſſor may perhaps have Sentiments in
League Sometimes, and ſometimes the matter of it, Relation to that different from his Predeceſſor, he
and Jometimes the Motives of entring into it, may hath in conſequence a Right take different
make a Conjecture eaſy in this Caſe. If the Meaſures; and therefore may neglect a League,
Conjectures are equal on both ſides, favourable (0) which he thinks is now grown uſeleſs and unſer-
Leagues muſt be ſuppoſed to be the real, and the viceable to the Commonwealth (c). And here it
(*) odious, the perſonal. The favourable Leagues may be obſerved, that where ſeveral different
are thoſe that are made for the Advancement of Leagues have formerly paſs'd Interchangeably be.
Commerce. Not that all Leagues of War are Odious; tween Nations, and they afterwards renew them
for the Defenſive generally incline to the favourae in general (1), the League that was laſt made, muft
ble part ; the Offenſive have more of that which is be fuppos'd chiefly to be renewed. Since the
odious in them.
latter always lefſen the Force of the Former.





to.
either by par- to
ticular.

(a) Vid. L. 2. t. 14.1. 7. f. 8. D. de Pattis. (6) Grot. L. 2.c. 16. f. 16.
(c) Ved. Johan. Labard. Hift. de Reb. Gall. L. 5. P. 74, 75. Ed. Par, An, 1671.
In the Beginning
(t) Favorabilia. (*) Odiofa.
(1) See above in B... Ć. 12. f. 6.
(
6)

Chap. X.
LIS
Of Leagues.
can bave the Bene-
newed.
1
A
Former (a). And therefore it was unpardonable In- it is this (b), That it was no Breach of League
advertence and Negleat in the Ambaſſadors, that either for the Carthaginians to make War upon the
went to renew a League with King Ptolomy, and Saguntines, though after, they were taken into
in them too, who ſent them without knowing Alliance by the Romans, or for the Romans to under-
what Treaties and Leagues had formerly paſſed be take to defend them. For it may happen without
tween that Prince and the schaians, or which of Breach of League, that of two Confederates, one
them, the Achaians were deſirous to renew, may make War upon, and the other aſſiſt the
IX. And here Enquiry may ſame Party. And it is uſual in Leagues to make
Whether exil'd and be made, whether if one of the Articles that relate particularly to ſuch caſes,
Depoſed Princes
Princes of a League happen to be ſee the Leagues made between the Romans and
fit of their Leagues. exposed and expell d by his own the Carthaginians in the time of the Tarentine War,
Subjects; the other Confederate Polyb. 1. 3. c. 25. Tho'when Confederates are ſo far
be obliged to ſend him the ſame Aids and Supplies, engaged in oppoſite Intereſts, 'tis evident, they
which were promiſed when he was in Poffeſfion muſt be upon the Brink of an open Rupture. For
of his Kingdom ? Grotius, in the Chapter before the Senſe of Pain is the ſame, whether the Wound
quoted, s. 17. affirms that he is. Becauſe a be given in another's Name, or in the Striker's
Prince unjuſtly depoſed and expelled, hath ftill a own, but it is yet clearer, when the Seat of the
Right to his Kingdom, tho' he hath loſt the Poſlefior. War happens to be carried into the aſſiſting Prince's
To me, ſo much in this caſe ſeems to be certain, Country (c).
That if the Terms of the League exprelly mention XI. And it is to be further ob-
and intend the Defence of the Prince's Perſon
Prince's Perſon and ſerved, That Leagues limited to a Leagues not to
Family, he ought to be allifted in the Recovery of particular time, when that expires, be tacitly re-
his Kingdom. But if the League was formed for muſt not be ſupposid to be tacitly re.
publick Good onlý, 'tis a diſputable Point, whether newed. Both becauſe no Man can
the exild Prince can demand Aſiſtance in vertue of be preſum'd to bind himfelf raſhly by new Obli-
his League. For the Aids mention'd, are preſumed gations (1); and becauſe otherwiſe it could
to have been promiſed againſt foreign Enemies, never be known how long a League is to continue.
without View of this particular Cafe. Not but And therefore if after the League expires, ſome
that ſtill ſuch a League leaves Liberty to aſſiſt a Acts of ſeeming Alliance are continued, they are to
lawful Prince againſt an Uſurper.. And thus įf þe look'd upon as Acts of Kindneſs and Good Nature,
while we are engaged in League with a free People, but not as Arguments of the Renovation of the
an inteſtine Domeſtick Enemy endeavours to en- League. For Friendſhip continues after the Leagie
fave them, we may with Juſtice ſend them Afift. is at an end. Again, it is evident from the Na-
ance to ſuppreſs him, before he is grown into a ture of all Compacts (2), That where one of the
lawful Prince. For the * Qualities in Leagues (as Parties refuſeth to ſtand to the Conditions of the
ſuppoſe it be expreſly mentioned, that the League League, the other is at Liberty to break too. Cos-
is made with the Prince and his Succeſſors,) imply a federates may indeed agree, that though one Article
Ariet and proper Right, and intend ſuch Princes one of the League be neglected, yet the reſt ſhall be in-
ly as have a juft Title to the Kingdom, not that violably obſerved. But then the other Party is
keep it by bare Uſurpation, or that have no other not obliged to perform the Equivalent to the neg-
Title to depend upon, but Force and Power. lected Article, and ſo not to ſuffer any poſitive
X. It is alſo a famous Que- Evil by it.
Future Allies, whe- ftion, whether it be provided XII. I come now to con-
ther comprehended
by the League, that neither of ſider the Nature of * Engage- What Obligations lie
under the Name of
Allies in general.
the Confederates ſhall injure or ments, or thoſe publick Compacts upon the Engagers,
invade the other's Alies? By which are made by Miniſters ments are not own'd
Allies is meant ſuch only as were Allies at the time of State ( 3 ), in Negotiations and confirm’d.
the League was made, or fuch as were afterwards relating to the Sovereign Power,
taken into Alliance on either ſide. What was but without Advice and Command from it. And
urg'd in a Diſpute of this kind between the Ro- here, the firſt Queſtion is concerning that diffi-
mans on one Hand, and the Carthaginians on the cult Cafe, where if the Engagement is paſs’d ab-
other, at the beginning of the fecond Punick Solutely without Proviſo, or Condition of being ac-
War, niay be ſeen in Polybius, 1. 3. C.25. 27. and cepted and ratified by the Sovereign, and the Sove.
Livy, 1.21.c. 19. The Deciſion Grotius makes of reign afterwards refuſe to give it any Ratificati.n;


f. 15.
(a) Vid. Polyb. Excerpt. Legat, 41.
* Qualitates.
(6) Grot. I. 2. c. 16. f. 13.
(c) v.Juftin. 1. 3. c. 7.
(1) See Grotius, B. 2. c. 15. f. 14. (2) See the above quoted place of Grotius,
* Sponfiones. (3) As our Author no where explains in expreſs Terms, the Right of AMBASSADORS,
and has only but juſt mention'd it by the by ;, Lib. 1, Chap. 3, it will not be improper to treat of it in general and
ſuccin&tly, 'ſince Treaties are uſually negotiated and concluded by the Power of theſe Miniſters. I ſhall borrow from
Mr. Buddeus's Elem. Phil. Pra&t. Part II. Cap. 4. Se&t. 5. S. 19. & feqq enough to give a ſhort and clear Idea of this
Matter, by the Principles of the Law of Nature, common to all Men, and not of the Right of Nations, taken in
Grotius's Senſe, (Lib. II. Cap. 18.) for a tacit Compact of all people, or at leaſt the greateſt Number. We can then
make it
appear,
that theſe ſort of Miniſters are to be eſteem'd as facred and inviolable Perſons, independently of this
pretended Compact. We cannot doubt, but that it highly concerns Mankind in general, and 'Nations in particular,
not only to put an end to Wars and Diſputes, but alſo to eſtabliſh and maintain Friendihip
and Commerce between
each other. Now Ambaſadors are neceſſary to procure theſe Advantages. God then, who without Diſpute commands
every thing that contributes to the Good and Preſervation of human Society, cannot but forbid, by the Law of Nature,
the 'doing any Injury to theſe fort of Perſons. We abuſe an Ambaſſador, either by refuſing to receive him, without
wha:



* P 2
116
Book VIII:
Of Leagués.

what the (1) Engagers are obliged to do in Satis, their Magiſtrates could oblige them to nothing without
faction to the Party they made the Engagement to ? their own Conſent and Command, if the Samnites had
This was a Cafe once warmly diſpuced among demanded any thing that was unreaſonable and
the old Romans, upon the Engagement made at the inſupportable. But 'tis clear, the great Mortifi-
Furce Caudine. The Story is at large in Livy, 1. cation to that proud ambitious People was, that
9. c. 8, &-c. (2) And indeed if the Meaſure of that their Ármy was forced to ſubmit to the Ignominy
Matter were to be given by ſtrict Juſtice, it muſt of paſſing under the Jugum. Which was indeed
be ſaid that the Romans were neither obliged to very ill Conduct in the Samnite General. For thae
ratifie the Engagement, nor to ſet things in the Po- Diſgrace did not leſſen the ſtrength of the Romans,
ſture they were in before. But then it had been but only provok’d, and exaſperated that fierce Peo-
enough for them to ſurrender up the Perſons that ple to revenge the Diſhoncur. However the
made it (a). But if the State of the Caſe be Roman Army very well deſerved the Treat-
rather eſtimated by Equity, certainly the Romans ment they met with, for venturing rafhly to paſs
ought to have ratified the Agreement, however it a Place they were Strangers to, without fending
was concluded without their advice and Conſent. before to diſcover it. And it was certainly their
The Conſuls indeed had not Power to determine wiſeſt way to ſubinit to the Diſgrace, rather
War, conclude Peace, or enter into League with an than ſuffer the ſtrength of Rome to be cut off.
Enemy without particular Inſtructions and Commiſſions And here the Arguments Lentulus offered to per-
from their Maſters, the Senate and People : yer ſwade the Engagement may be conſider'd, Liv. 1. 9.
ſince they did not preſume upon the People's Con- c. 4. And further, that a Commonwealth may
ſent without very good Reaſon ; when it was im- often be obliged to ratifie the Acts and Promiſes of
poſſible otherwiſe to ſave the Lives of many its Generals
, becauſe of their Authority, and to
thouſand Citizens, the Flower of all the Roman oblige them not to go over to the Enemy. Hence
Commonwealth ; and when the Enemy had per- Tacitus faith, Ann. 12. " That Mithridates was ac
form’d all that could ſeem Equivalent to a formal a loſs whoſe Pity he ſhould addreſs himſelf to;
Peace and League; the People in reaſon, ought to becauſe none of the Romans had Powers large
have confirmed the Conditions, eſpecially ſince there ' enough to give him any Aſſurance in depend-
was nothing intolerably bard or unjuſt in them ing upon their Promiſes. But in the Caſe be-
(6). For it would have been enough for the Peo- fore us 'tis manifeſt, that the haughty Romans
ple to have ſtood reſolutely to their
Principle, that never confider'd, that they might ſome time or
If any
having any powerful Reaſon to oblige us to do fo; or by doing him fome Injury either in his Perſon, his Goods, his
Honour, or his Domeſticks, &c. We may lawfully diſpenſe with receiving an Ambaſſador, when his Maſter, for ex-
ample, has already cheated us under Pretence of Embaſſies, and we have reaſon to ſuſpect the like Deceit; or when he
that fends the Ambaſſadors, has betray'd us, or is guilty with reſpect to us, of any other heinous Crime ; or when we
are aſſur'd, that under Pretence of Negotiations, the Ambaſſador comes only but to raiſe fome Diſturbance, or as a Spy,
&c. But if we have no reaſon to miſtruſt any thing of the like Nature, we muſt honourably receive every Ambaffador
that is ſent to us, and not do him the leaſt Ínjury, not even by the Right of Retaliation, or Repriſals ; Gince by our
bare receiving him in that Character, we have renounced, with regard to him, the Right which we might have had
otherwiſe upon
that account. Ambaſſadors then muſt be regarded as facred and inviolable Perfons, that is to fay, as far
as the deſign and nature of their Embafly requires it. Thus an Ambaſſador cannot be puniſhed by the Prince or State to
whom he is ſent : For as he repreſents his Maſter, he treats in that Quality, with the Power to whom he is ſent, as one
of an equal Rank with him. But if he has committed any Crime of Importance fufficient to demand Satisfaction,
and we have intereſt enough to get him puniſh'd, we muſt apply our felves to his Maſter : And then, if his Maſter re-
fuſes to give us Satisfaction, we muſt uſe againſt him all the Rights that we have againſt a Prince that boldly tolerates and
approves of the Crimes of his Subjects : Nay, it is allowable, when the Buſineſs requires it, to ſeize upon his Perſon im-
mediately, as a declared. Enemy, to impriſon him, and even put him to Death, if it appears abſolutely neceſſary for our
Preſervation: For we are not to bear every thing from Ambaſſadors, neither does the delign of their Émbafly require it
,
Nor does this Chara&ter oblige an Enemy to their Maſter, to refpe& 'em in their Paſſage through his Territories to ano-
ther State, or hinder him from doing them any Injury : It not being neceſſary to the deſign of the Embaſſies that their
Rights ſhould extend ſo far; unleſs there be ſome particular Compact made for that purpoſe. What we have here ſaid
concerning Ambaſſadors, is alſo to be applied, in ſome fort to their Domeſticks, and their whole Retinue.
one of their Domeſticks has done any. Damage or Injury, we may require his Mafter to deliver him up to us : otherwiſe
he makes himſelf acceſſory to his Crimes, and in that Cafe, he gives us Right to act againſt him as if it were his own pero
fonal Crime. Now he cannot puniſh his Domeſticks himſelf ; becauſe this Right contributing rothing to the deſign of
his Embaffy, it is not to be preſum'd that his Maſter has given it him. As for his Goods, we cannot ſeize
fo:
upon
'em
Debt by way of Juſtice, for that would ſuppoſe a taking away from the Juriſdi&tion of the Sovereign to whom his
Embaffy is made : But if he refuſes to pay his Debts, we muſt take the ſame Meaſures with him, as we have already ob-
ferv’d, are to be uſed in obtaining Satisfa&tion for the Damage and Injury he has done us. As for the Right of Privileges;
it is a Conſequence of the nature and deſign of Embaſſies. Nevertheleſs, if we have once granted it to Ambaſſadors of
a certain State, nothing authorizes us to revoke it, as long as the good of the Commonwealth does not require it.
Neither muſt we refuſe, without preſſing Reaſons, to grant Ambaſſadors, the other Rights and Honours, which are
ſettled by the common Conſent of Sovereigns, for then this would be a ſort of an Affront to 'em. Mr. Barbeyrac's firſt
Note upon this Section. p. 490. (1) Sponſores. (2) See Mr. Buddeus's Diſſertation, intituled Furifp. Hiftorice
Specimen; as alſo thoſe by Mr. Thomaſius de Sponfione caudina igo numantina, which are the 6th and 14th of the Colle-
&tion of his Diſputes maintain'd at Leips. (a) V. Grot. 1.2.c.15 f.16. Val. Max. 1. 4. c. 8. f. 1. fo. Mariana. Hiit. Hifp;
1. 21. c. 11, (b) See Guicciardine's Hift. L.12.1.m.342, & 344. Where he talks of the Treaty that La Trimoville concluded
with the Swiſs at Dijon, without the King of France's Orders. Sir W. Temple
, in his Obſervations upon the Government of
the United Provinces, faith, That in the Year 1668. he prevail'd with the states-General to conclude Three Treaties, and
ſign the ſeveral Inftruments in the ſpace of five Days, without any Recourſe to the Provinces, and
from them to the feveral Cities, where by the Intereſt and Arts of others, the Affair would have been oppoſed and eluded
tho' it was of the greateſt Importance to the States that it ſhould be concluded. He adds, That doing this without Com-
miſſion from their Principals, they ventured their Heads if they had been diſown’d by their Provinces.
upon them draw
up
and
other

Chap. X.
Promiſcuous Compacts of Sovereign Princes.
117
other be forced to accept as hard Conditions to be yielded up, and were not accepted, re-
themſelves as they had impoſed upon others. turnd back to the Roman Camp, ſua fide liberati,
However it was a Strain of Generoſity in the Sam- abſolv'd from their own Faith and Engagement -;
nités not to accept the ſurrender of the Sponſors: but he adds doubtfully, forfan da pública, and per-
And it was an extravagant Action in Pofthumius, haps from the Publick.
when the Surrender was offer'd, to ſtrike the
Fecialis, XIII. The laſt Queſtion uponu u
arid then cry out that he was a Samnite Subject, this Subject is, If the Sovereign 1 An Engagentent
and thạt, contrary to the Laws of Nations, he had knows that his Miniſters have paſs'd whether ratified
injured a publick Miniſter ; and therefore, that Promiſe and Engagement, and is filent the Sovereign.
the Romans might carry on their War with more upon it, whether it may be infer'd
Fuſtice. The Judgment of Livy upon this whole from thence, that he owns and approves it? But for
Proceeding may perhaps deſerve our Obſervation, an Anſwer to this, I refer you to Grotius, L. 2.
the Sponſors, ſays he, after they had been offer'd C. 16. S. 17.
Stots bus
is on
Pos. 151497bv.: bek ve
por 98 foto
20
C H A P, X.
Promiſcuous Compacts of Sovereign Princes.
1.I in
I.
The Diviſion of
ſider the Difficulties which der their own Conduct, and are Judges in their
the Chapter
relate to any ſort of promiſcuous own Affairs ; ſo if they are unjuſtly injured in
Compacts made by Sovereign Princes, their Contracts, they may by their own Authority
which may be reduced to theſe three Heads (1), demand Reſtitution, or Amendments to be made to
Firſt, Whether a Sovereign Prince has any particu- their Agreement ; on Suppoſition the Prejudice
lar Power, with regard to Compacts that affect and Injury they ſuſtain be viſible and manifeft.
himſelf ? Secondly, What Liberty he hath in Ob. For when the thing is diſputed, the Matter muſt
ligations contracted with his Subjects? And Thirdly, be referred to the Deciſion of Arbitrators. And
How, and how far he can oblige his Succeſor. therefore if a Prince, ſince he is ſtill in Poffeffion
II. The firſt Difficulty of his Natural Liberty, find any abuſe put upon
How far a Prince may therefore is, That ſince a him in the Terms he has conſented to, he may by
reſtore himſelf to his
Prince has the power to re his own Authority declare to the Party concern'd,
Right, when injured
verſe any Contract made to that he will not be obliged to ſtand to any ſuch
in Compact by a Fo-
reigner.
the Prejudice of his Subjects, Compact. And there is no Neceſſity that he ſhould
and can reſtore them to the procure a Releaſe, ſince the thing is in its own
State they were in before ſuch a Contract was Nature uncapable of producing Obligation or
made, or upon juſt Reaſons releaſe them from their Right. Thus Lewis XIII. of France declared,
Obligation to obſerve it: Whether he cannot make That there lay a juſt Appeal from the King under Con-
uſe of the ſame Power in Caſes that concern finement and Bonds, to the King at Liberty. But
himſelf ? For example, Suppofing that by Fraua becauſe it may ſometimes happen, that ill Men
dulence or Force, or through Indiſcretion of Age, when they have a Mind to put a Cheat upon the
he ſhould have agreed to prejudicial Terms; or hath World and falſifie their faith, may pretend an
been any other way notoriouſly abuſed in his Abuſe or Fault in their Contracts to cover their
Contracts"; or bound himſelf by any raſla Oath? own Frauds and Perfidy; therefore under Civil
(2) And here it is to be obſerved, that the Queſtion Government it is very neceſſary to enact, what Afts
as it is ſtated in this rude Form, and as the Words ſhall in their own Right be look'd upon to be in-
of it lie, implies a Contradiction. For to reſtore valid and null, and what are to be examin'd into
Perſons to the State they were in, and to releaſe and determind by Sentence of Court.
from Oaths, are Acts which bear Relation and III. But when the Caſe lies be-
How far, when
Tendency to another Perſon; and which are de- tween the Prince and his Subjects, by his own Sub-
je&ts.
rived and flow from one inveſted with Power and the Difference of the Circumſtance
Authority over the Perſon that is to be reſtor’d and will, I think, deſerve a diſtinct
releas’d. And therefore the Queſtion ought rather Conſideration. A Prince's Minority is ſuppoſed to
to be ſtated thus; Whether, when a Prince has continue as long as the Adminiſtration of the Go-
prejudiced himſelf, by conſenting to certain Ob-vernment and Affairs of the Kingdom remains in
ligations and Conditions of Contract, upon a Senſe the Hands of his Governours and Tutors'; and
of the Injury he ſuffers, he may by his own Au- during their Adminiſtration, the Prince himſelf
thority declare, that by Reaſon of certain Faults can make no Contract with any Perſon of a foreign
adhering to the Contract, he looks upon himſelf State : But if he enter into any Contract with a
to be releaſed from the Obligation ? To which it Subject, and afterwards find himſelf injured in it,
may be anſwer'd ; That as Perſons that live in a I ſee no Reaſon why he ſhould not enjoy the
(1) See Grotius, B. 2. c. 14.
(2) See Grotius, in the place above-mentioned, Seit. 1, 2, 3, 4, 5,
fame
118
Promiſcuous Compa&ts of Sovereign Princes.
Book VIII.

fame common Benefit of the Law which he al- Place where he had with ſo much Bitterneſs re
lows and ſecures to other Men, otherwiſe bis viled and curſed David. But Divine Providence fo
Condition would be more confin'd than that of diſpoſed, that he ſhould break thoſe eafy Conditi-
private Subjeas. Nor can any Renunciation of ons which he had himſelf approved and conſented
Exceptions which might be made to his Minority, to, that there might be juſt occaſion given to take
be ſuppoſed of force fufficient againſt the Pre- off ſo ill a Man by puniſhing him as he deſerved.
ſumptions of the real Weakneſſes that Age is liable IV. But here it is to be obſer-
to. A Prince cannot diſannul the Treaties and ved, That however Princes, when The Contracts of
Princes, how far
Compacts that were lawfully made by his Governcurs they enter into any particular Aěts
with foreign Powers or Perſons, when he is come to with their Subjects, not as Princes the Civil Laws.
exempted from
Age, upon Pretence that chey were made in his but as other private Men, are pre-
Minority. Becauſe then, nothing could be paſs’d ſumed always to comply with the poſitive Laws of
with any Security under a Prince that happen'd the Commonwealth which relate to the Validity
to be a Minor. However the Prince's Governours of ſuch Acts; yet ſince they are above the Civil
the Regents are obliged to give an Account of Laws, they are under Neceſſity of following thoſe
their Adminiſtration. But no Exception whatever Laws always in their private Acts. And therefore
of Fear, Injury, or Fraud is of force againſt any if they voluntarily and adviſedly enter into any
of thoſe capitulations, which in limited Monarchies Contract, that would otherwiſe be Invalid in Law:
the People propoſe, and the Prince conſents to, They are ſuppoſed to have exempted that particular
at his Acceſſion to the Government. For if the Capi. Contract from the force of the Laws, where there
tulations or Conditions ſeem'd too ſtrict and ſevere, are ſuch, and to declare that no Nullity ſhall en-
the Prince had his Liberty of accepting or refuſing fue upon that account. For otherwiſe, all that
them ; the People would not have forced him to was done would ſignify nothing (a). And I think
take the Government upon him. And it is not to it is very reaſonable to allow, that if a Prince find
be ſuppoſed, that any People would be ſo incon- himſelf very much injured in a Contraét, which at
fiderate, as to tie up the Hands of their Prince firſt he did not perceive, he may if he pleaſe an-
with ſuch Laws as muſt make the Sovereign Power nul, or at leaſt correct and amend it. (b).
weak and feeble, and his Government unačtive and V. That no Prince hath Power
unprofitable. And here I will by the way en to releaſe himſelf from his Oath, A Prince cannot
quire, whether David could have retracted his when there lies no Objection either diſpence with
Oatb, when he ſware not to puniſh Shimei that againſt the Validity of his taking he hath taken.
curſed him as he fled from Abſalom? And I con- it, or the Matter containd in it,
feſs in my opinion he could not. For the King or the Circumſtances belonging to it, upon Pre-
was under no Apprehenſion of Force or Fear when tence that it is lawful for him to relieve his Sub-
he gave him his Oath, neither could he be thought jeěts in ſome particular Oaths, I think is evident.
to have ſworn out of Raſhneſs or Indiſcretion; For the Oaths which he has Power to vacate in
but on the contrary, rather with mature Confi- his Subjects, have always this Condition annex'd to
deration and Deſign, that upon foremarkable an them, If it pleaſe the Sovereign. And 'tis certain it
inſtance of his Clemency, the People that had would be impoſſible to bind any Obligation upon a
been engaged in the Rebellion, might return the Man, if he reſerves to himſelf a Power to break
more willingly, and with greater Aſſurance of from it, whenever he thinks fit (c).
being pardon'd, to their Obedience. Neither VI. But though Princes are as
was the Promiſe of Impunity in it ſelf unlawful; much obliged in Conſcience by How far a Subje&
for the King might very juſtly, and without In- their Promiſes and Compacts as
jury to any Man, pardon a Crime which was private Men; yet in this reſpect,
againſt his Prince
upon Matter of
committed purely againſt his own Perſon. But there is a Difference between Contrat.
it hath given further Matter of Diſpute to ſome, the Obligation of a Prince and
whether he can be excuſed for leaving ſuch a that of a Subject, that 'tis eaſy for the Prince to
Remembrance of Shimei's Crime in ali his laſt force the Subject to ſtand to eaſy Terms, when per-
Commands to Solomon. In my Opinion, David haps he would willingly go back ; but a Subject,
did nothing in this, contrary to his former Oath ; as long as he is ſuch, hath no way to oblige his
for he did not leave any Command with his Son to Prince to give him his Due, when he refules it.
puniſh Shimei for his Crime ; but only adviſed But no wile Prince will ever refuſe to ſtand to a
him to keep a ſtrict Eye upon that malicious bad lawful Contract ; ſince he muſt neceſſarily con-
Man and Enemy to his family, and to take Care ſider, that his Honour and Security depends upon
that he did not create him any freſh Diſturbance; the Credit he hath of obſerving his Compacts; and
and that if he ſhould afterwards find him guil- that it is the worſt thing that can be ſaid of a
ty of any Miſdemeanour, not to be eaſy to Prince, that he obſerves not himſelf that Juſtice
forgive him. And therefore Solomon commanded which it is his Duty to adminiſter and ſupport. But
him to live in Feruſalem under the Eye of the Court, however, if a Prince upon Contraet give the Sub-
and forbad him to paſs over the Brook Kidron, jet Liberty to enter an Action againſt him in his
that he might not inſult upon his Impunity, nor own Courts, the Action it ſelf proceeds rather upon
conceive any ſecret Satisfaction in ſeeing the natural Equity than the Civil Laws; as if it were

may have an Action


(a) of the A&tion of Philip II. of Spain. That by a Fetch of Law, would have releaſed bimſelf from paying bis Debts.
See Grot. Hift, Belg. d. 5.
(b) Vid, Gret. 1. 2. c. 14. 1. 2.
(C) Vid, Grot, 1. 2.C. 14. [ 3.
implied,
Chap. X.
Promiſcuous Compatt of Sovereign Princes. 119
red
to be over-ruled
cording to the ſtrongeſt Probabilities of Argument (a).. bability in Reaſon for what he attempts, cho' per-
implied, that upon the Knowledge of his Obligation, wealth, ought to be ſtrain'd no farther than the
he would not refuſe the Performance of it. And Prince can have good Reaſons for Contratting the
therefore the End promiſed by ſuch an Astion is Debt. But then again, neither ought the Prince to
not to force the Prince to ſtand to the Contract, be ſo far limited, as not to have power to devolve
but only to make it appear to the Subject, that any Debts upon the Commonwealth, but whac
in ſuch Tryals, there ſhould; be no regard had to Honour (tho' 'tis fit Inferiour Magiſtrates ſhould be ſo con-
ar Greatneſs, but Judgment ought to be given barely at hind (a). But 'tis fufficient if he hath a fair Pro-
VII. It may alſo happen that haps the Event may fall out contrary to his Ex-
The Contracts of the Subje&ts may be depriveduof pectations. And therefore upon the whole, all
the Subject liable
a Right acquired by Contract (1), Contracts made by the Prince, oblige the Commod-
by the Tranſcen. either by way of Puniſhment, or wealthisi unleſs when they are manifeſtly abſurd
dental Propriety. by the force of the Tranſcendental or unjuft. And when the caſe is doubtful, 'tis al-
Property *. Always fuppofing in ways to be preſumed in favour of the Prince. And
this Caſe, chat the Neceſſities of the Commont fuch Contracts as theſe, alſo oblige the Succeffor, as
wealth demand it, and that the Publick ought to he is the Head of the Commonwealth, Nay,
make Reftitution. And therefore for the ſame the People themſelves will be obliged by them, if
reaſon the Prince may defer his Payments, when they ſhould change their Form of Government, and
any preſſing Ewigence of State obliges him to turn erect a free State. And ſo whatever a free People
the Money another way, which ſhould have contract, devolves upon and obliges the Perſon they
been paid the private Subject. And from hence it afterwards confer the Sovereignty upon, tho they
appears, what is to be determined about the Tat give him never fo full and abſolute a Power. And
bula nova, or general Diſcharges from Debts or Oba this I think is a better way of deciding the Que-
ligations, which Solon call d Eerrex Gera, or the ſaki ftion, than by diſtinguiſhing between the greater
ing off a Burtben (6).
and the leſſer Injuries. For in the Adminiſtration of
VIII. But Laſtly, that it may publick Affairs, the Probability of the Means ougho
How far Succeſſors
appear, whether and how far a to be allowed a fairer Conſideration than the Suc-
are obliged by the
Prince hath Power to tranſmit an ceſs of the Event, fince an unforeſeen Accident
Contracts of their
Predeceſſors. Obligation upon a private Contrast may ſometimes break and diſtract the wiſeft Mea.
down to his Succeſors; it is to ſures and Deſigns.
be firſt conſidered, whether the Prince's Kingdom IX. What hath been ſaid of the
be his Patrimony, or whether he poſſeſs it only as Contracts of Princes, may alſo be The Grants and
Donations of
it were upon an Uſufructuary Righi. A Succeffor to applied to their Grants and Dona-
Princes wherler
a Prince that holds his Kingdom in the former Right, tions (2), viz. that they cannot revocable.
.
fince he ſucceeds to all his Goods and Poffeflions, be recall d by the Succeſſors where
muſt be ſuppoſed to inherit all Debts of Princes they were made upon fair and favourable Reaſons
that poſſeſs their Kingdoms ; in the latter, Grotius (d). Yet 'tis certain on the contrary, thar Galba
1. 2. c. 14. S. 10, &c. is of Opinion, that the endeavoured to recover the Largeſles and Donatives
Succeſſors are not immediately, and purely becauſe made by Nero, allowing no Man to keep more
they ſucceed them in the Kingdom, obliged to diſ- than the tenth part of his Liberality (e). So alſo
charge them. For ſuch Princes do not derive their the Roman Senate reduced thoſe Cities to a Tributary
Right to the Throne from the King their Immediate State, that had bought their Privilege or Immunity
Predeceſſor, but from the People themſelves. But of Sylla. Cicero indeed thought them too ſevere
ever befé Succeſſors are obliged by the Debts of in it (f). And I think indeed it had been but
their Predeceſſors, mediately and by Interpoſition of reaſonable to have refunded them their Money,
the Commonwealth, not as upon their own Account, ſince it had been employ'd in Publick Uſes. And
but as they are Heads of the Commonwealth. For ſo Baſilius of Macedon, when his Predeceſſor Michael
in the laft Reſort the Debts of the Prince affect the had exhauſted the Publick Treaſure, publiſhed an
State it felf, as they were contracted by the Head Edi&t, commanding all Perſons that had received any
and Governour of it. And the truth of it is this, of the Money, and could give no fair Account, why,
that Princes have power to devolve Debts upon the or for what they received it, to return it again, or at
Commonwealth it ſelf, is evident from hence, that leaſt the balf part of it (g). But indeed as to
ſometimes it would be impoſſible to ſupply the Grants of this Nature, it ought to be conſidered
Neceſſities of the State otherwiſe than by contract- out of what they are made. If the Prince give
ing luch Debts. And ſince the Adminiſtrations and out of his own Pocket, or Estate, without Diſ-
Security of the Commonwealth is entruſted with pute the Grant is irrecoverable. And if he diſtribute
the Prince, he muſt be allowed to have the Com- his Bounty out of the Revenues or Income of thoſe
mand of thoſe Means, without which that End Goods or Pollelions which are intruſted to his Ad-
cannot be purſued or obtain'd. But then on the miniſtration, it ought always to be conſidered,
other hand, this power to oblige the Common- upon what Reaſons and with what Caution and Mo-

(a) Heliod. Æthiop. 1 x. (1) See in Grot. the place quoted, f. 7. * Vi Dominii eminentis.
(6) Vid. Plutarch. Solon Cic. Off. t. 2.6.24. ad fin. (c) Vid. L. 12, t. 1. 1. 27. D. de rebus Creditis, &c.
(2) See Grof. ubi ſupra, f. 13. (d) Vid. Sueton. in Tito. c 8. Plin. L. 10. Ep. 66. Gratian Cauſ. 25. Quæſt.
1. c. 15
)
(f) Cic. Off.1.
(8) Vid. Hieron. Oforium de Reb:
geft. Emanuel, 1, 1. Where he gives an Account of the Grants King John made juſt before his Death.
deration
3. 6. 22.
1 20 Promiſcuous Compacts of Sovereign Princes.
Book VIII
Rights (a). What hath been ſaid with Relation that State, and gave them all back again by the
deration the Donations were made. For as no Body things are of far greater Concern than the un-
denies but that the Prince hath Power to reward wary Eaſineſs of the Prince. And indeed all
the Services of his Friends and Subje&ts out of the Privileges are to be confin'd under ſuch Limitations
Publick Monys, as far as the Riches and Occaſions of and Reſtrictions, whenever they begin to lie
the State will allow; ſo if the Money of the Nation beavy upon the other Subjects (c). So when the
be profuſely ſquander'd away upon Perſons that Romans demanded an áid of Men and Money
do the Commonwealth neither Credit nor Service, from the Celtiberi, and they thought to excuſe
and the publick Stock is laviſh’daway only to ſatisfy themſelves by pleading the Privileges that had
their Ambition ; in my Opinion, they fhould be been granted them by the Romans themſelves
,
repleniſhed from their Purſes, that at firſt exhaufted the Hiſtorian fays, That what they infifted
ic. It was the wiſeft Method Ferdinand King of upon was allowed to be true, but that the
Arragon obſerv'd, never to part with any of the
Senate when they gave ſuch Privileges, always
Lands that belonged to his Crown; and his Rea annexed this Exception, that they were to continue
fons were good, that Princes that alienated their in force as long as it should ſeem good to them and the
Lands, generally created themſelves more Enemies Roman People, and no longer (d). Lewis King of
than Friends by it, becauſe they made ſome of their France, after he had reduced the Genoeſe that had
Subjects ſo great by it, that they would always, be revolted from him, diſannulld all the Agreements
Suspicious and fearful of being deprived of their and Treaties formerly paſs'd between him and
to Grants, may alſo be applied to (6) Privileges way of Privileges, not as Compoſitions or Com-
and Immunities, namely, that it ought to be con- pacts; that ſo it might be always in his Power
fidered upon what Reaſons, and with what Caution
to recal them. Perhaps indeed that was not to
and Moderation they were given; and whether hold with relation to Privileges of all kinds, but
they are conſiſtent with the summon Peace and
to ſuch only as were to have barely a precarious
Security of the State. For without Diſpute, theſe Dependence.
C


a
(a) Vid. Bæcl. ad Grot, L. 1. p. m: 107. Grot. L. 2. C. 14. 1. 12. Laurentius Valla de rebus geſtis Ferdinand. Arrag.
L. 3. (h) See upon this Subje&t the Obfervationes Selett. ad rem Litterariam ſpectant, printed at Hall in Saxony, Tom. III
.
13, 14, 15 or Mr. Bernard's Abridgment of 'em in the Republ.des Lettres Auguſt 1704. P. 190, c. See alſo
Mr. Le Clerk's Biblioth. Choiſie, Tom. I. p. 41, &c. To which we may add, that the Revocation of lawful Privileges, is
nice Point, and requires a great deal of Prudence. For: to uſe Mr. La Bruyere's Words (Caratt. ou Moeurs de ce
Siécle, p. 316) There are certain Circumftances of Affairs, in which we cannot bumour the People too much. You may to
day deprive this City of its Liberties, Rights and Privileges; but to morrow, do not so much as think of regulating their very
Signs. Indeed (as me. Le Clerk ſays in the place I have cited) we cannot make the Duration
of all ſorts of Privileges de
pend upon the variable Caprice of Princes, without expofing the State to Diſturbances, which
would be difficult to appeaſema
What Efteem could we have for Privileges that were to laſt no longer than the Prince's Will and Pleaſure ? Thus in ſetting
up Princes above Privileges, we do them as much Injury as the People, , Mr. Barbeyrac's II. Note, on this section. p.494.
Vid L. 43. t. 8. 1. 1.1.16. D. ne quid in loco publico, &c. Demofthen. Orat. adv. Leptin.
(d) Appian. Iberic, Guicciardine Hil. %.
СНА Р.
Chap. XI.
1 2 1
How Subje&tion ceaſes.
C H A P. XI.
A
when his Prince
dies without a
monwealth.
How Subjection ceaſes.
A Man ceaſes to
Mong the
Jeveral Ways by ſuppoſed at liberty to uſe. But if this gives no
be a Subject
which Men ceaſe to be un- Light to the Matter, and the Compact of Subjection
der Subjection, it is by ſome makes no mention of it ; it must be preſumed,
Succeſſor. thought to be one, when a Prince that every Man reſerv'd to himſelf the Liberty to
dyes and leaves no Heir or Succellor remove at Diſcretion, and that he choſe rather to
behind ; or gives his Kingdom for loft. For then be a Citizen of the World, (as Socrates ſaid,) than a
(they ſay.) every particular Subject is left free to a Subje£t in any particular Commonwealth (b). For
Liberty of Nature.
But ſince it is clear that a when a Man enters himſelf into a Commonwealth,
Kingdom in ſuch a Caſe, is not abſolutely diſſolvd, it cannot be ſuppoſed that he gives up all Care of
but only reduced to a State of Interregnum ; it himſelf and Forcunes, but rather that by ſo doing
follows, that tho’the Obligation of the Subjects to he takes the beſt Expedient to defend and ſecure
the Prince they have loft, are indeed at an End; both. But becauſe it often happens, that the
Yet that they continue ſtill united to one another, Nature of the Government does not ſuit with every
by the Original Bored and Compaet of Society. private Man's particular Circumſtances, or he
II. But now the uſual way thinks at leaſt he can make his Fortune with more
Or, if he Removes by which Subje&tion ceaſes is, Advantage elſewhere; and ſince it would be un-
out of the Com When a Man by Permiſſion of his reaſonable to Reform and make Alterations in the
own Commonwealth voluntarily Commonwealth at the deſire, and for the benefit
removes into another, and ſettles only of a few private Subjects; the only Method
himſelf and his Effects, and the hopes of his For- left is, to give them leave to Remove, and provide
tune there ( 1). How far ſuch Voluntary Removes for themſelves where they thiok beſt.
“ So De-
may be permitted, muſt be diſcovered by the
maratus, the Father of King Tarquin, fled with
Methods by which Subjects are admitted into the ' his Family to Corinth, and ſettled there, becauſe
Commonwealth. For ſome Perſons are forced ' he could not bear the Inſolence of the Tyrant
to put themſelves under the Protection and Govern Cypſellus, wiſely preferring Liberty, thó' in
ment of certain Coromonwealths, by being con Baniſhment, to Servitude at Home (c). So alſo
quered in War, or reduced to the laſt Neceſſities. fomerimes it is known, that there is not ſufficient
And what Liberty is allowed to theſe muſt be Encouragement allowed to Men of Parts in their
known by the Laws of thoſe Commonwealths. own Nution. And ſome have found it true by Ex-
But if a perſon abſolutely free, that never knew perience, that a Prophet hath no Honour in his own
what it was to be Subject, (ſuch as the Patriarchs Country (3). For Men of bale natures are apt
and Maſters of Families of old,) or is at preſent free to look with envy upon Perſons that would riſe
from all Subječtion he had been under before, volun- by their own Worth to an Height of Greatneſs
tarily joyn himſelf to any Commonwealth; it above their reach; when perhaps they remember
must alſo be determined by the Conſtitutions of that themſelves once Superior, at leaſt upon the Level
Commonwealth, what Liberty to remove thence with them; and as Lacydes ſaid (d) Statues ought
was left him (2). For in fome Commonwealths no to be ſeen at a diſtance, becauſe too near a View
Man is permitted to leave them without the ex leffens the Beauty of them. Now to deny ſuch
preſs Conſent of the Government. In others, a Perſons the Liberty of Removing would in effect
Man may be allow'd that Liberty, if he will ſub- be all one, with laying a Command upon Men
mit to certain Impoſitions ; as ſuppoſe, if he will free and at their own Diſpoſal, not to preſume
pay a certain Sum of Money, or leave part of his to riſe above the Rank and Condition of their An-
Goods behind him (a). But where there are no ceſtors.
ceſtors. But the Commonwealth alſo it ſelf may
Laws about the Matter, we muſt be determined make Advantages by theſe Removes, by inviting
by Cuſtoms arriving from the Nature of Civil Sub- in Perſons of Worth and Eminence from Abroad.
jettiin. What Cuſtom admits of, every Subject is ‘ By the Conſtitution of the Roman Common-
(1) See Grot. B. 2. c. 5. f.
24.
(2) V.D. L. 49. t. 15. De Captiv. & de Poftliminio, Esc. 1: 12. f. 9.
(a) Ovid. Metam. I. 15. v, 28, 29. ſpeaking of the Argives,
Prohibent diſcedere leges,
The Laws forbid my flight, and threaten Death
Panaq; mops pofita eft patriam mutare volenti,
To thoſe that leave the Land which gave them Breath:
(b) Valerius Flaccus, Argon. L. 7.V. 227, Egoc
Omnibus hunc potius communem animantibus orbem,
The World to all her ample Fields extends,
Communes ego crede Deos ; patriam inde vocato,
And God and Providence are common Friends;
Qua redit itque dies ; nes nos diis nata Malignis
Where e're the Day diſcovers diſtant Earth,
Cluſerit hoc uno femper fub frigore mefis.
The Country's mine ; nor are we doom'd by Birth
Eas mihi non habiles, fas y tibi linquere Colchos.
To this cold frozen Soil : but unconfin'd
May change our Country, as we change our Mind.
(c) Cic. Tufc. Quæft. 1. 5. G) Lule IV. 21. (d) Diog. Laert. 1. 4. f. 60.
Q
wealth
I 22
Book VIII
How Subjection ceaſes.
C
$
wealth, no Citizen could be forced to leave the all they could from it, leave it to ſtruggle with
Commonwealth, or if he pleaſed, not to leave Misfortune by it ſelf. But then it muſt be ob-
it, when he was made a Member of another ſerved, that by Removing in this place I under.
he prefer'd to it. And therefore Tully ſays (a), ſtand the departing out of the Dominions and Terri-
That a little before his Remembrance, ſeveral tories of the Common wealth, and not the denying
Citizens of Rome, Men of Credit and Fortunes, its Authority, and continuing to live in its Domia
voluntarily left that and ſettled themſelves in nions. For the Commonwealth, when it bounds
other Common wealths. And the Way, ſaith its Power within certain Limits, is ſuppoſed at the
be, lies open from every State to Ours and from ſame time to prohibit every perſon to inhabit with-
Ours to every other”. And this Right he very in that Compaſs, who will not acknowledge its
often highly extols (b). Or is it any Objecti- Authority. And therefore it may be obſerv'd by
on againſt what is here ſaid, that the Father the way, that the Grandees of Spain were very
of Families, who at firſt erected the Common- much miſtaken, when they thought themſelves
wealth, may be ſuppoſed to have bound one releaſed from the Obligations of the Commons
another by Compact, to aſſemble and unite their wealth, by renouncing the Laws of their Coun-
Itrength in common. For even in other Societies try, and then retiring to other places. Tho'it
any Member has Liberty to leave it, ſo it be not was uſually ſuppoſed that when that was done,
with fraudulent deſign, at an ill time, or to the they might lawfully take up Arms againſt their
Prejudice of the other members, eſpecially if the Prince, and begin open Hoftilities, without incur-
Society were not eſtabliſhed with any particular ring the guilt of Treaſon and Rebellion (d). From
Limitation of Time. And therefore many Com- what has been ſaid we may infer, what force thoſe
mon wealths have appear’d to be very little con- Avocatory Commands may be ſuppoſed to have, by
cern'd when their subje&ts left them, as being al- which the Commonwealth endeavours to recall its
ready overſtock'd with Men, and glad to have Subjects from Employments in Foreign Countries.
their Numbers leſſened.
For Inſtance therefore, if a Subject that is under
III. But however, ſince 'tis no particular Ties or Reſtraints remove from his
What to be obſerv'd generally the Intereſt
, of every Commonwealth, where that Liberty hath always
in ſuch a Remove. Commonwealth to know the been promiſcuouſly allowed, and ſettles himſelf and
Number of its Subjects; they his Effects under the Protection of a Foreign State;
that remove ought in point of Duty or Honour to the Commonwealth he left hath no longer any
fignifie cheir Departure ; unleſs a Man has good Authority over him. And therefore it is to no
Reaſon to fuppoſe, that it will be no Publick con- purpoſe to think to reduce ſuch an one by threat-
cern whether he leaves it with ſuch Ceremony ning him with loſs of Fame, which is the utmoſt
or not. But all Perſons that have engaged them- that can be done, when he is determined not to
ſelves in any particular Service or Employ for a obey. But the Commonwealth hath ftill Autho-
certain time, ought without queſtion to have the rity over Subjects that depart either contrary to the
expreſs Conſent of the Commonwealth for their Laws, or are obliged to it by any particular Ties,
Remove. For Example, Subjects that are ſent on or hold Poſſeſſions of Goods, eſpecially of Immove-
Embaſſies, Expeditions
, or that are entruſted in any ables under its Dominions, or are abſent only upon
ocher Buſineſs which they undertook upon parti- Travel, and reſerve to themſelves the Right of
cular Compact and Agreement. But beſides, a Re- Subjects
. And by the way, it was a prudent Law
move ought to be at a proper time, and when it is of Solon's which Plutarch (2) mentions in his Life
,
not dire&ly againſt the Intereſt of the Common- by which he obliged the Athenians, ' To admit
wealth to ſuffer it. For Example, (to make uſe of no Perſons into their Commonwealth, except
the Inſtances in Grotius in the place above quoted,) ' ſuch as were condemn’d to perpetual Baniſh-
when the Publick Debts are great, a Subject ſhould ment from their own Country, or elſe ſuch as
not have leave to depart, except he would pay his remov'd with their whole families to Athens,
Share of them before he Remove; nor when the for the convenience of Trade and Employment
Commonwealth is engaged in War upon Preſump- ' in the Arts they profeſs’d. And this Law it
tion of the Number or Bravery of Certain Subjects; was ſaid he made, not ſo much to keep out
and eſpecially when there is danger of Invaſion, Foreigners, as to invite them to ſettle at Athens,
or of being beſieged; except the Subject that would by giving them aſſurance of incorporating
depart can be ſure to leave others behind him, " them into the Body of the Commonwealth.
every way as fit to defend the State as himſelf (c). For he made no doubt, but both theſe ſorts of
Neither can they be good Subjects that ſerve their People would make very good Subjects, the one
Country, as Horace (1) ſpeaks of his Friends, Dif- . becauſe they voluntarily quitted, and the other
fugiunt cadis cum face ficcatis amici, ferre jugum pa becauſe they were forced out of their own
riter doloſi, that is, who when they have drain'd Country'. But further, ſince the Commonwealth
C
(a) Cic. Orat. pro Balbo, c. 13. (6) O jura praclara, atque divinitus jam inde à principio Romani nominis à ma-
joribus noftris comparata, &c. Cicero d. 1. What noble Rights are theſe! Which by the Bleſſing of Heaven have been ena
joy’d by us and our Anceſtors, ever ſince the Roman State began, that none of us ſhould be forced to leave our Country:
or to ſtay in it againſt our Wiils
. This is the immoveable Foundation of our Liberty, that every Man is Maſter of his
Right, and may keep or reſign it as he pleaſes.
(c) Vid. Lycurg. Orat. contr. Leocratem. (1) B. 1. Od. 35, v. 26, 27, 28, (d) Vid. Mariana de rebus Hiſp.
L, 13., 11. (2) Plutarch, p. 91. F.
really
Chap
1 2 3
XI.
How abjetion ceaſes.
really hath no Power or Authority over Perſons free its Neighbours, any more than it is that any par-
from all Civil Obligations to it, it is manifeft, that ticular private Man fhould be worth ſo many
if the new Commonwealth they ſettle in, ſend Thouſand Pounds, tho''tis true indeed, chat neither
them in Quality of Ambaſſadors or Publick Miniſters one nor the other ought to be reduced to a lower
to the State they left ; that they ought to be re- Condition by unjuft Means. And therefore I
ceived agreeably to their Characters, and enjoy think there is but little Force in Grotius's Argument.
all the Privileges of Amballadors, one of the chief For though perhaps, this or that particular Com-
of which is to be free from the Authority and Power monwealth may be much weakned, or perhaps by
of the Commonwealth they are ſent to. For if this continual Drains in time be utterly diſpeopled,
be thought too great an Honour to be ſhown to where the Subjects are permitted to deſert in Num-
Perſons who have formerly been Subjects, 'tis bers together ; yet Civil Society among Men is in
eaſy to deny them Reception. Nay, to carry the no Danger of being abſolutely diſſolved by it. For
thing farther, if for inſtance, a Subject in the the Corruption of one Commonwealth is the Genera-
Fame of his own Commonwealth engage his Faith tion of another, and what is loff in one place is
to a Foreign State, in order to take upon him to gain’d in another. Nature, when Men began to
Negotiate for it there, under the Character of Am- encreaſe and ſpread themſelves over the World,
baſſador and publick Miniſter; the Commonwealth formed and divided them into Civil Societies, but
muſt be ſuppoſed to have releas'd him from all never gave Command that ſuch or ſuch a particu.
Civil Obligations to it ſelf. Since it is impoſſible lar Commonwealth ſhould ſtand for ever in an
the fame Subject ſhould be capable of two Obli- uninterrupted Courſe of Greatneſs and Fortune.
gations of the Same Nature. And in conſequence, Babylon was exhauſted by Seleucia, and that by
ihat Perſon muſt from that time be admitted to ail Ctefiphon (b). However, when Companies depart,
the Rights and Privileges of an Ambaſſador in his they are obliged as well as particular Subjects, to
own Country, which by a ſort of Fiction he is ſup- depart out of the Dominions and Territories of the
poſed to have changed.
Commonwealth. For otherwiſe there muſt enſue
IV. But however to depart in fuch Diſtractions and Confuſions, as would ne-
Whether lawful to
Companies, great Numbers to- ceſſarily be fatal to all Governments; that is, if
remove in great
Companies.
gether, Grotius (1) thinks un whole Cities or Provinces were allowed Liberty,
lawful for this Reaſon, becauſe to withdraw at pleaſure from their Obedience, and
ſuch a Liberty would be utterly inconſiſtent with the either to put themſelves under the Protection of
Nature of Civil Society. And in Morality that muſt Other, or to erect ſeparate States of themſelves.
be judged neceſſary, without which, an end propoſed V. I ſhall now in the next place
cannot be attain'd ; and that inconſiſtent with it, enquire, Whether and how far Whetker lawful
to counterfeit a
which prevents or deſtroys the End (a). But the thoſe Perſons may be juſtified, that
Refuge.
truth of this Opinion may I think be queſtion d' pretend to be Refugees and Deſerters
(2), forif it be lawful for particular Subjects to re- only with deſign to injure them that receive them,
move as they pleaſe themſelves, why is it not law- and to bring ſome Advantage to their Prince or
ful for greater Numbers to take the ſame Liberty, Country: It is not indeed to be excuſed from great
who ali propoſe to themſelves the like Conve- Imprudence, to be eaſy in giving Credit to fuch
niencies of bettering their Fortunes by changing ſort of Men, 1 Sam. 29. 4. nor does the World
their Country ; ſuppoſing none of thoſe Objecti- generally appear diffatisfied, that Traitors are pu.
ons againſt it that were mentioned before? For niſhed though their Trenfor hath taken Effect (c),
it is nothing to the purpoſe to anſwer that by this Yet it ought not to be thought therefore lawful
means the Commonwealth muſt be enfeebled and
or honourable for me to betray a Man, becaufe
diſſolv’d. For where a Perſon hath no Right to I find him of an eaſy Temper, and likely to be
det ain me contrary to my own Inclinations, he taken by the Train I have laid for him. Nor is
ſuffers no Injury, tho' perhaps by my Departure any Man obliged to ſerve his country at the Ex-
ſome future Benefit, but not yet due, is intercepted pence of his Honour and Conſcience, as has been
from him. There is no neceſſity ſuch a particular already ſhewed. And without Diſpute, for a
Commonwealth ſhould have ſo many Millions of Man to engage his Faith, purely with Deſign to
Subjects, or ſhould always appear formidable to make Advantage by the Violation of it, in doing

(1) Ubi ſupra. (a) V. Liv. I. 41. c. 8, 9: (2) Mr. Wernher, Profeſſor at Wittemberg, anſwers our Author, (in his Ele-
menta 7. N. and Gent. Cap. 26. Sect.) that tho' particular Members of a Body, taken one by one, have ſuch and ſuch
Rights
, it does not always follow, that a whole Multitude muſt have 'em alſo, becauſe there may have been ſome reaſon
which hinders the granting to a great number of Men, what is allowed to a ſmall one ; as it is here, where it plainly
appears,
that it is the Intereſt of the state, that their Subjects do not remove out of it into another, in large Bodies.
Beſides, that is contrary to the original Contract, which forms Civil Governments, and by Virtue of which the Subje&s
are bound to aệt nothing that tends to the Deſtruction of the State. And it fignifies nothing to ſay, that one State makes
an Advantage of the Ruins of another. For the Compat here in Diſpute, relates to the Advantage of that State into
which they enter ; and it is not with refpe&t to Civil Governments in general; but in relation to the Interefts of every par-
ticular State, that we muſt judge of the Extent of Engagements and Duties of Subjects. This is the manner in which
that Author'defends the Opinion of Grotius. However, the Cafe here in queſtion can ſeldom happen but when Princes -
have made them odious and inſupportable to their Subjeéts by their tyrannical Government; and then, it is certain their
Buſineſs to alter their Meaſures, if they are unwilling to ſee their Countries depopulated. Otherwiſe all the Prohibia
tions in the World would not be very prevailing, nor hinder their being forced in time to reign over vaft Deſarts.
Mr. Barbeyrac's Note upon this Se&tion. p. 496.
(6) Vid. Plin. Nat. Hift. 1. 6.c. 26.
(c) Vid. Vopiſ, in Aurelian. c. 23,
Q2
Harm

1 24
How subjedion ceaſes.
Book VIII,
ز
Harm to a ſecure and heedleſs Enemy, is a very that where a Deſerter owns he deſerted without rea-
great Sin. And it was no queſtion an execrable ſonable Cauſe, his Faith can fignify little ; ſince it
Saying of Lyſander's, or Philip's, That Children muſt either tend to advance new Treaſons, or to
were to be cheated with Trifles, and Men with Oaths continue the old; and therefore that it muſt be
(a). If therefore a Deſerter expreſly engages his very great Imprudence to lay any Streſs upon it
Faith, he cannot break it without Sin, whatever (c). But Deſerters therefore, that propoſe to ingra-
Pretence or real Deſign he may have of advancing tiate themſelves with them that receive 'em, and
their Intereſt he deſerted from. It may perhaps be yet, to carry on their ſecret Deſigns under the Mask
replied, That ſince they that give Reception to De- of Refugees; generally pretend that the inſuppor-
Serters, know before-hand, that they can do them table Nature of the Injuries they ſuffered, forced
no Service without Sin, and that no Man can lay them to take this only way for their security.
any binding Obligation upon himſelf to commit The Stories of Zopyrus (2) and Sextus Tarquinius
Sin, and therefore that the Faith given by Defer- are very well known; and what Arts the one uſed
ters, ſignifies nothing ; it follows, That no In to gain upon the Credulity of the Babylonians,
jury is done them, if they are impoſed upon by and the other upon the Gabinians (3). So Mezera's
their own Credulity in depending upon ſuch ſender the Syrian as Florus calls him, or Abarus the
Arguments. But I anſwer, That ic is Foreign to Arabian as Appian, or Ariamnes as Plutarch, that
the Queſtion, to enquire whether it be a Sin or drew Craſſus into the Plains, gained Credit with
not, to make uſe of the Service of Deſerters. For him by extolling the Favours and Obligations he
it does not follow, that if I fin my ſelf, in employ- had received from Pompey, and by relating the
ing ſuch a Perſon in my Service, that therefore, Misfortunes he had ſuffer'd in eſpouſing the Ro-
for that Reaſon he hath a Right to do me an Injury. man Cauſe. Virgil (4) ſeems to deſcribe the
As it does not follow, That becauſe if a Man hire Cunning of Simon with more than uſual Life and
a Ruffian to commit Murther, he contracts the Beauty, chat he might free the Trojans from the
ſame Guilt with the Villain himſelf, therefore it is Imputation of being an imprudent credulous Peo-
lawful for the Ruffian to kill alſo the Perſons that ple. For firſt, Simon pretends he was a Perſon
hired him. It is commonly ſaid indeed, that mortally hared by Ulles, a Man the Trojans would
Deſerters are received by the Laws of Arms †; that eaſily think bad enough to be guilty of any Fraud
is, that it is contrary to the Laws of Arms, not to that could be charged upon him, and to whom
give Admittance to Perſons that leave the Enemy to be an Enemy was with them the greateſt Re-
and come over to us, as Grotius and Cujacius explain commendation. The Cauſe of this Animoſity
that Law (b). But whether we ought to under- between Ulyſſes and himſelf he then derives from
ſtand this Paſſage of the External Laws of Arms (as , the Death of Palamedes, who was put to Death
Grotius calls it,)
or of the Internal, may very well for having impoſed the continuing the War. He
be Matter of Diſpute. But however, if a Man goes on with his Story, That he was at laſt doom'd
will defend that all Perſons have abſolute Liberty to be ſacrificed, not by any Oracle or Command
to make uſe of the Aſſiſtance of Deſerters; me from the Gods, that he might not ſeem to have
thinks it ſhould not be thought ſo proper for that refuſed even to be made a Vidim for the common
Purpoſe to inlift, That even God himſelf makes Safety ; but only by the Malice of Calchas, who
uſe of the Actions of the Devil and wicked Men; was ſuborn’d and hired to do it by Ulylles. And
as to plead the Favour which ought to be allow'd certainly an Injury of ſo high a Nature as this
to the Juſtice of Arms taken up, either to puniſh might very well juſtify him in ſaying, He thought
the Infolence of an injurious Enemy, or to allért himſelf now releas'd from all Obligations to his
and regain juſt and oppreſſed Rights (í). For up. Country. And yet with much Perſwalive Art
on the Suppoſition of this Favour, a Prince en and Cunning, he firſt of all beſeeches Heaven
gaged in a juſt War, needs not think himſelf o that it might now be lawful for him to renounce
bliged to make a curious Enquiry, whether the Faith and Love with thoſe Greeks, that were ſo un-
Deſerters gave over Hoftilities againſt him upon Ho- juſt and unkind to him, tho' he had once conſide-
nourable Motives or not. And ſince he may pre- red them as Country Men and fellow Subjects.
ſume, that they had good Reaſons that moved And yet all he could ſay was hardly enough to
them to relinquiſh the Cauſe they were before overcome the Trojans, till the Gods themſelves
engaged in, he cannot contract Guilt by ſeeming ſeem'd to confirm the Truth of what he had ſaid
to give Encouragement to unjuſt Deſertions. But by a very Ominous Accident. But after all, 'cis
however this be, 'tis certain, that it is utterly certainly true, That a Deſerter that comes over to an
unlawful to make Faith an Inſtrument to deceive Enemy fingly by himſelf, without betraying fome confide-
and abuſe Mankind. And again, 'tis alſo certain, rable Advantage to him,brings but a poor Prize with bim



(a) Vid. Ælian. Var. Hift. 1. 7. C. 12.
Grot. I. 3. c. 1. f. 22.
1 V. D. 1:41. De acquirend. rerum dominio, 1. 51, (b) Cujac. Obl.4.c. 9;
(1) See the Sixth Chapter of this Book, Se&t. 16. (c) Liv. 1. 22. c. 22. Ved, at eund.
Orat. Indibilis, 1. 27. c. 17. and that of Cn. Marcius to the Volſci, in Dionys. Halicarnall. 1. 8. And that of Segeftes
, in
Tacitus, Ann. l. 1. c. 58. Neque odio patrie, &c. This I did, not out of any ill Will I bear to my Country (for Traitors
are hated even by thoſe they deſign'd by their Treaſon to oblige) but becauſe I look'd upon it to be the common Concern
both of Romans and Germans, and becauſe I was more inclined to Peace than War, v. Amm. Marcellin. 1. 18. c. 11. in fin.
(2) V. Herodot. 1. 3. & Juftin, 1. 1. c. 10.
(3) Liv. 1, 1. c. 53, 54.
(4) V. Virgil. Æneid. l. 2.

57, c.
either
2
Chap. XI.
125
How Subje&tion ceaſ eso
either of Credit ar Value. But however ſuch Per- in Colonies. Tho' Colonies indeei generally conſiſt
ſons are not to be look'd upon as Deferters, that of Perſons that voluntarily offer themſelves, either
go privately to an Enemy with Deſign to ſurprize, upon the Hopes of mending a broken and decay'd
or make a ſudden Attack upon him, without en- Fortune; or elſe, that are out of Humour with
gaging their Faith to draw their Swords in his the Government, and willing to be out of its Sight,
Alliſtance. And it is not to be ſuppoſed, that when they find they are not to expect Favours
ſuch are under any tacit Engagement upon this Ac- from it. So Iſocrates perſwaded Philip to build (a)
count, becauſe 'tis not probable they would make Cities in Aſia, and to people them with ſuch fort
any Attempt againſt an Enemy, when they were . of Perſons whoſe Poverty forced them to lead
within his Reach. For ſuch a tacit Obligation can ' looſe vagabond Lives, and to rob and pillage
be preſumed only in Perſons, who go over to a ' the Country ; in ſhort, with the Scumm and
foreign State in time of Peace, and not in War. Refuſe of the People. And he commends the
VI. The next Enquiry I ſhall Prudence of that Method in the Athenians (6).
Whether the Com- make is, Whether the Common- What Account is to be given of that Cuſtom,
monwealth may wealth on the other hand can common among the Ancients, both of barbarius Na-
eject a Subject
when it pleaſes,
forcibly eject the Subject at Plea- tions as well as the Greeks, of ſending out great
without Reaſon.
ſure, and without antecedent Numbers of their young People in ſearch of new
Tranſgreſſion. Cicero, in the Seats, as it were under the Conduct of ſome
Paſſage before cited, niakes it one of the Founda- Titular God, to whom they were ſuppoſed ſacred,
tions of Liberty, that a Subject ſhould not be forced to may be ſeen at large in Dionyſius Halicarn. I. 1.
change his Counıry
. But now admitting this to be. And the ſame Author is of opinion, that the
true, the State of the Commonwealth is not Aborigines were a Settlement of this kind, that is
therefore granted to be Inferior in the leaft to that of young people, who after the Cuſtom of their
of private Subjects, becauſe they are allowed to Countries had been conſecrated to the Gods, fent
have Liberty to reinove as they pleaſe, when the in Queſt of new Seats, and that ſettled where.
Commonwealth has not Power to force them to ever their Valour or Fortune carried them (c).
depart againſt their Will. For when a Man puts And ſo Pliny tells us, That the Picentes were fent
himſelf under the Protection of any Common out by the Sabines, upon a Vow which they look'd
wealth, he does, at leaſt for the preſent, entruſt upon to be ſacred. And Strabo ſays the Samnites
himſelf and Fortune entirely with it, and that, at were deſcended from the Sabines the ſame way
leaſt, muft neceſſarily be expoſed to Diſtračtion (d). ' So Lydus and Tyrrhenus (as Paterculus tells
and Ruin, if he may at any time be forcibly ejected the Story) upon a great Scarcity, threw Lots
from it. And ſince this would be the greateſt which of them ſhould take his ſhare of the Peo.
Hardſhip imaginable upon the Subject, every Man ple, and go in ſearch of new Seats (e). And
muſt be ſuppoſed to have made an Agreement with Paulus Warnefridus + gives very near the ſame ac-
the State, That he ſhould not be forced to leave it con count of the People of Scandinaria. But Colonies
trary to his own Demerits. But now on the other may be, and often are ſettled in different Me
hand, the Commonwealth doth not build its For- thods. For either the Colony continues a part of
tune and Security upon a few common Subjects, the Commonwealth it was ſent out from; or elſe is
and therefore loſes little or nothing by the De- obliged only to pay dutiful Reſpect to the Mother
For where the Commonwealth, and to be in a Readineſs to defend
parture of ſome few of them.
great and particular Truff is placed in any Subject and vindicate its Honour, and ſo is united to it by
of extraordinary Value, 'tis uſual to oblige him by a ſort of unequal Confederacy; or laſtly, is ereded
particular Ties and Agreements not to leave the into a ſeparate Commonwealth, and aſſumes the
Commonwealth without Licence from the Govern- ſame Rights with the State it is deſcended from,
And certainly it hardly deſerves any Man's VII. A Man ceaſes to be a Sub-
Envy, that the Subjeâ in this particular, ſhould ject againſt his Will, when for ſome of Baniſhment:
be allowed to have more Liberty than the Com- Crime, whether truly or wrong-
monwealth. For the other Advantages which the fully laid to his Charge, he is ejected out of the
Commonwealth enjoys more than, and beyond, Commonwealth. For when the Commonwealth
the Subject, are of much larger Extent.
Só refuſes to own any Man for a Member of it, and
when a Subject refuſes to conform to the Com. forces him to depart the Dominions ; he is re-
mands of the Sovereign, 'tis an eaſy thing to leas’d from all Obligations which before, as a Sub-
force him to comply. But when a Subject is dif- ject, he ow'd to it. Upon which he is left to his
fatisfied with the publick Adminiſtration, he hath own Choice to ſettle where he can. And as long
nothing elſe to do, but to ſubmit and be patient, as he continues in this Exile
, the Commonwealth
But however, there is fometimes a
hath no Authority over him. So Jolaus (f) (1)
leſs invidious way made uſe of in Commonwealths ſaid. That the Argives had no Power to bring him
remove ſuipe&ted or uſeleſs Subjects, or away from Athens, when they had before con-
burthenſome Numbers of them, to make room
demnd him to Baniſhment. But certainly to be
for the others; and that is, by ſending them abroad forced into Baniſhment, if upon a falſe Accuſation,

ment.
or to remove.
to
(a) Orat. ad Philip.
(6) In Panathenaic. See Bacon's Eſſays, c. 33. (c) Dionyf. Halicarn. 1. 2. Plin. N.
H, I. 3. c. 13.
(d) Strabo, 1. 5. Vid. Juftin. 1. 24. C. 4. &go Feftum in Ver ſacrum ĉo in Mamertini Liv. L. 34. c. 44.
(e) Paterculus, I. 1. c. 1.
+ Paulus Warnefridus de geſtis Longobardorum, 1. 1. c. 2. (f) Eurip. Heraclid. v. 186,
(1) See Grotius, B. 2. c. 5. 1. 25.
is
I 26
Book VI.
How subje&tion ceaſes.
con-
is a very great Injury, (though a Man of Cou- it is to be confefs'd, that when Baniſhment is in-
rage will not wanc supports under ſuch a Misfor- flicted, Care ſhould be taken that the Common.
tune.) And if upon a real Crime, a very ſevere wealth may be fecure fron all Danger that
Puniſhment
. Philo the few thinks it worſe than happen, by making the Perſon baniſhed an Ene
Death it ſelf (a). For though the exiled Perſon my co it. For which Reaſon fome Nations never
may perhaps be allowed to enjoy the beſt or great- puniſh with Baniſument ; as the Turks and Mol-
eſt part of his Eftate in his Baniſhment, yet the covites now, and formerly the Fews tho they
Difficulties and inconveniencies that muſt attend might be rather ſuppoſed to have Regard to other
removing it to another place are unavoidable. It Reaſons, viz. That they might nor change their
muſt be allowed too, that 'tis a very ſenſible Afili- Religion. The Relegatio is a milder ſort of Puniſh-
ction to a Man to be forced to part with his Re- ment, by which the Criminal is not entirely di-
lations and Friends ; and belides, to be judged a veftéd of the Right of a Subject, but is only con-
Perſon unfit to live any longer in the Common. fined to inhabit within a particular Diſtrict, or
wealth is a ſevere Diſgrace, and muſt leave a foul elfe prohibited coming within a particular part of
Blot upon a Man's Honour and Memory (b); the Dominions, They that lay under this latter
Nor can a Man have loſt leſs than all ſenſe of Penalty, were by the Romans properly called
Shame, that'can have no Apprehenſions of the (Interditi) Perſons interdicted (h). But to be ba-
Infamy of it (c). Tully faith much on the other niſhed ſome particular Countries and people, may
hand to the contrary, but it does not ſeem to well enough be thought no Puniſhment; as Diogenes
me of much force (d). Baniſhment, ſays he, is ſaid when one told him that the Sinopenſes had
« ſo far from being a Puniſhment, that I think it demn’d him to Bariſhment, and I have condemn'd
a Refuge only and Security from it. For when them to ſtay where they are.
• Men fly from Puniſhment and Misfortune, they VIII. Again, A Man is
only change the Air and Soil, remove and ſet- forced, againſt bis Will, to
A Man is deprived of
the Privileges of a
• tle in other Countries. And therefore, by the change his Commonwealth,
Subject when over.
• Roman Law, Exile is never made a Puniſhment, when he is ſubdued and ma-
powered by an Ene-
as it is in thoſe of other Commonwealths. But ſtered by a powerful Enemy, my.
• when Men would avoid Impriſonment, Death, is forced to put himſelf under
or Ignominy, or other Puniſhments which the his Protection, and to ſubmit to his Authority as a
Laws appoint, they take Sanctuary in Exile ; if Subject, whether at the ſame time he be removed
they chooſe to ſtay in the Commonwealth, and into another Country or not. And this Method
< ſuffer the Law, 'tis certain they cannot be de- muſt be allowed to be lawful, not only for parti-
prived of the Right of Subjects, but with their cular Subjects to take, at leaft for ſuch as are under
· Lives ; but becauſe there are none that will none buc the common Obligations of Subjection ;
make that Choice, their Rights are not forcibly but alſo for entire Cities and Provinces, when they
s
taken away from them, but they voluntarily re find no other way left for their Safety and Preſer-
linquiſh and reſign them (e). It was indeed pe- vation (i).
culiar to the ancient Roman Conftitution, that IX. Sometimes alſo it happens, Whether a Subjet
no Man ſhould be forcibly deprived of his Right thac a Subject upon Injury done furrendred to an
of being a Member of that State (f). And by by him to a Foreign Commonwealth; accepted,continues
the Porcian and Sempronian Laws it was provided, is by his own Sovereign deliver'd a Member of the
that no Magiſtrate ſhould inflict Capital Puniſh- up to the injured State, to prevent Commonwealth.
ment on any Citizen without the People's Conſent. Wars that might otherwiſe follow
But that Criminals might not enjoy abſolute Im- upon his Account. Herodotus, in his Calliope (1),
punity, and none ſeem to be ejected, or forced gives us the Story of Timegenides and Attaginus to
to quit his Privilege of Citizen ; they would have this purpoſe, who had been Authors of engaging
had it believed, that the Citizens voluntarily choſe the Thebans in an Alliance with the Perſians. And
Exile to eſcape Puniſhment (g). But the Neceſ. here a Queſtion is moved, Whether a Subject ſur.
hty of the Delinquents leaving his country was rendred by his own State or Commonweaith, but
fufficiently implied in the forbidding all that were not accepted by the other, continues a Member of
condemn'd to Capital Puniſhment, the uſe of Fire that which was his own or not (2)? P. Mutius
and Water within the Roman Dominions. Though was of Opinion that he did not (3), becauſe

(a) Philo Judæus de Abrahamo, p. 359. A. Ed. Pariſ. (6) Oppian. Halieut. 1. 1, v. 274, &c. (c) As Juvenal
deſcribes Marius, Sat, 1. v. 47, 48, 49.
Hic damnatus inani
-Contemns his Infamy,
Judicio, &c.
Can riſe at Twelve, and get him drunk e're Three.
Exul ab ostava Marius bibit Ego fruitur Diis
Enjoys his Exile, and's condemn’d in vain.
Iratis
(d) Vid. Cic. Orat. pro Cæcina, c. 3. (e) V. Polyb. 1. 6. c. 12. (f) Cic. pro domo fua hoc jus à majoribus pro-
ditum, &c. C. 29. This is a Right we all received from our Anceſtors
, That no Roman Citizen ſhould ever loſe that
Privilege but by his own Choice. (8) Diodorus Siculus, 1. 3.c. 5. mentions an Inſtitution of a quite contrary
Nature
among the Æthiopians. Salluft. Bell. Catilin. Cafar in his Oration to the Senate tells them, That there were Laws, by
which no Citizen's Life could be taken from him, but that after Condemnation he ſhould be permitted to go into Exile ;
and again afterward, Baniſhment was always allowed the condemn’d Criminal.
(b) Vid. Briſſon. Sele#. Antiq. 1. 3, c. 5. Anton. Matthæ de Crimin. ad Tit. de Poena, c. 1. f. 6, 10. (i) Vid. Grot. L. 2.
c. 6.1.5. (1) Pag. 344. Ed. H. Steph. (2) See Grot. B. 2, c. 21. f. 4. (3) Vid. D. L. 50. t. 7. De Legat. 1. 17.
when
Chap. XI.
How Subje&tion ceaſes.
127
when a Subje&t is deliver'd up by the publick refuſe the offer, and decline the Acceptance of the
Voice and Conſent of the People, he ſeems to be ſurrendred Perſon, the State that offered the Sur-
as much eje&ted out of the Commonwealth as he render may diſpoſe of him as it pleaſes, and may
would be, had he been forbid the uſe of Fire and either abſolutely eject, or puniſh him according
Water. And the ſame Queſtion was diſputed with to the Demerits of his Crime. But if no Puniſh
great Heat in the Caſe of Mancinus (1), who ment happen to be inflicted on him, it is not to be
had been furrendred at Numantium, but not re- ſuppoſed that he hath loſt the Right of a Subject
.
ceived. For when Mancinus afterwards offered to For the Act of Surrender is in its self only a Tender
go in to take his place in the Senate, Rutilius the made to the Foreign State of that Right, which
Tribune of the Commons ſtop'd him, and refuſed every Commonwealth hath over its own Subjects,
him Admiſion; telling him, That when the Pater and not an utter Abdication and Renúnciation of
Patratus, to releaſe the Commonwealth from him. And therefore the Surrender doth not in it
the Obligations of the Treaty he had ſign’d, ſurren- felf deprive any Man of the Right of a Subjedt,
dered him up to the Enemies of the Roman State, unleſs it be declared by any particular Law in ex-
he then ceaſed to be a Roman Citizen. However, preſs Words, That in a Concurrence of ſuch
when the Cafe was debated and put to the Vote, Circumſtances, the perſon ſhall be ſuppoſed to
the Majority declared in Favour of him; and have forfeited all Rights of a Subject. And Cicero
among others for chis Reaſon, That no Perſon is of the fame Opinion, For, ſays he (a), A
could properly be ſaid to have been delivered, Citizen that hath been delivered by the Pater Patratus,
who was not accepted by the Party the Offer if he is not accepted by the Enemy; retains the Rights
was made to. Now to me the State of the Con- and Privileges of a Citizen entire (2). But from what
troverſy ſeems to be this, The Commonwealth hath been ſaid it may be infer'd, That if the Sur-
that ſuffer'd the Injury, hath a Right to proſecute render is accepted, and afterward the Perſon that
the Subject of the Foreign State with War. But by was given up ſhould happen by ſome Chance or
the Surrender of him, he is entirely conſigned other to return to his own Country again; he
over to the injured Commonwealth, and may be cannot be admitted as a Subject, but by a new
puniſhed as one of its own Subjects. And if he Grant of Favour (b). For the Right of Poftlimi-
be received, the Commonwealth he was formerly nium belongs only to Perſons forced to ſubmit to
a Member of, muſt be ſuppcſed to quit all Right an Enemy's Power, contrary to the Conſent and
to him ; ſince by publick Conſent and Approba- Approbation of their own Commonwealth, not to
tion, he is delivered up to the Authority of the thoſe that are voluntarily given up to Foreign
Foreign State. But if the injured Commonwealth Authority by their own State.

(1) Vid. Freinſhemii Supplementor. Livianor. Decas, in Lib, 55. (a) Cic. Orat. pro Cacina, c. 34:(2) Vid. Ciceron: Topic:
in c. 8. Vid. etiam de Orat. 1.1. C. 49. Ego 1. 2. c. 32. (6) Vid. L. 49. t.15. 1. 4. D. de Captiv. Som Poftlim, &c.
CHA P. XII.
of the Changes and Diſſolution of the Commonwealth.
The People continue
CHO
Hanges happen in the Com- that a free People ſhould in ſome War with a Sove-
the ſame, tho' the
monwealth three Ways; reign Prince, be reduced to ſo entire a Subje&ion,
Form of the Com-
Firſt, It may be ſo changed as
as to be made an Acceſſion to his Patrimony, yet
monwealth be
changed
ſtill to continue the ſame; they do not ceaſe to be the ſame People as long as
Secondly, It may be ſo changed the Conqueror governs them as a diſtinct and
as ſtill to continue, tho' not the ſame it was be- ſeparate Kingdom, and does not annex them as a
fore; Thirdly, It may be fo changed as to be ut- Province to another
People. For ſince the People
terly deftroy'd. The Firſt ſort of Change happens in a large Extent, may be ſuppoſed to comprea
when the Form of the Commonwealth is changed; hend the Sovereign Power, it is no material Diffe-
as when a Monarchy changes into an Ariſtocracy, rence, whether the Prince exerciſes the Govern-
or an Ariſtocracy or Democracy change themſelves ment over them in the moſt full and abſolute
into a Monarchy (1). For in either of theſe manner, or not. For either way he is Head of
Changes the Eſſential form of Civil Government is one, and the ſame Body.
ſtill preſerved, only the accidental Form which re II. From what hath been ſaid, The Debts of the
ſults from the proper Subject of Sovereign Power is the Queſtion propoſed by Ariſtotle
changed (2). So that the People are the ſame, (3) may be anſwered, Whether if
not diſcharged by
whether the Government be Monarchical, Ariſto- a Commonwealth from a Tyranny, or Form of it.
a Change in the
cratical, or Popular. Nay, tho' it ſhould happen, an Oligarchy, become a free Popular
Commonwealth
(1) See Grot. B. 2. c. 9. f. S.
(2) See above, in B. 7. c. 5. f. 1.
(3) Ariftot. Pol. 1. 3. c. 3.
2
State
I 28
Book VIII.
Of the Changes and Diſſolution
may
The Thirty that governd the Athenian State, bor. Cale when they bought them. All which
State, It be obliged (1) after ſuch a Change to of it to hînı; The League, the Donation, and the
obſerve the Treaties, Capitulations, Paéta Conventa, Sale, mult continue in Force after the Uſurper is
and other Acts, made during the Government of depoſed. For the Foreign Commonwealth acquires
the Tyrant or Oligarchy? The Reaſons of the Ne a folid Right from ſuch Acts, becauſe it agreed
gative are, That the Aets of a Tyrant or Oli- upon them with the Uſurper as Head of his Com.
garchy are not sets of the Commonwealth, and that monwealth, and in Appearance for its Intereſt
the Commonwealth can be obliged by its own Acts ; and Advantage : And there was no Reafon why
That the Commonwealth is concern'd only where the Foreign Commonwealth ſhould concern it reif
the Advancement of the publick Good is conſider'd, what Title the Uſurper might have to his Governa
and that where it is otherwiſe, the Right and ment ; ſuppoſing there be no other Fault in the
Name of a Commonwealth is abuſed, and Force and Aas ſuppoſed. But then the Difficulty is, if any
Violence only have the Rule. But theſe Reaſons Uſurper by Oppreſſion and Violence rifle his own
are certainly weak. For not to repeat what was Subjects of their Goods and Fortunes, and fell
ſaid before (2) concerning Tyranny ; A diſtem- thein to Foreign States, whether upon Diffolution
pered and diſordered Head is certainly a Head; of Government, They can demand them back
and the Axts of an Head, though indiſpoſed, are again ? Bæcler (c) thinks they may, and that if
look'd upon to be Afts of the Commonwealth. they that bought them did it adviſedly and deli-
And a Commonwealth muſt not be denied a berately, they ought to acknowledge their Fault,
Being, becauſe it is in ſome Diſorder. There and be content to part with what they could
was a Diſpute of this Nature formerly among neither buy, nor the other ſell, without Injuſtice.
the Athenians which begun upon this Occahon. He adds, Nay though they knew nothing of the
rowed Money of the Lacedemonians upon publick perhaps appear reaſonable enough in Foro Coma
Faith : after the Athenians had ejected the Thirty Scientiæ ; but if we conſider the general Practice
and recovered their Liberty, the Lacedemonians of the World, I don't ſee how the Sufferers can
demanded their Money of them; the Matter was recover what they have been thus deprived of.
debated at Athens, and it was reſolved that it was For as long as the Uſurper continues his Oppreffi-
Juſt, and for the Peace of the State to pay it, ons, he is look'd upon to be an Er.emy to the Com-
Demeſthenes's Opinion of the Caſe was (a), That monwealth, and the Spoils he takes from his Sut-
the People chofe rather to pay the Money, than not jects when transferr'd to Foreign States, are re-
make good their Articles of Agreement ; And again, tain'd with the ſame Pretences of Right as other
(he ſays) ſpeaking to the Athenians, And then you Acquiſitions of War (3). But if the Uſurper's Gow
conſented to pay your Money to thoſe that had injured vernment has been confirmed by the Conſent of
you, rather than go back from any part of your Articles his Subjects, Foreigners may pretend Right to the
(b). Nay, though a Commonwealth ſhould be Goods of his Subjects, as lawfully Confiſcated. For
reduced to a Province, and loſe the very Nature as in other Caſes, Nations at Peace with, and un-
of a Commonwealth, yet the Debts it has contract- concern’d in the Wars of their Neighbours, treat
ed are ſtill due. For Debts being founded in the the Parties engaged with equal Reſpect, attending
Commonwealth, not preciſely as ſuch a Com- only to the Event: So Foreign States are not fup-
monwealth, but as poſſeſſed of certain Goods, poſed to be concern'd what Meaſures their Neigh-
whoever is Maſter of thoſe, muſt take the Debts bours take in their Government at Home. But the
with them.
unjuft Acts of Uſurpers which are confin’d within
In. But tho' the Caſe ſeems to the Commonwealth, may, when their Govern
The A&ts of an be beyond Diſpute, as to the Debts ment expires, be reſcinded and repeal'd by a lawa
Ulurper how far contracted for the Uſe of the ful Power, as far as the Occaſions of the Com-
valid after his
Government is
Commonwealth, and ſuppoſed tomonwealth require. And by the Afts is alſo
expir’d.
continue upon the whole Body meant, not only the Laws they made, but all
of it ; yet whether all the Acts Grants and Alienations whatſoever, contrary to
of an Uſurper will fall under the like Determina- the Conſtitutions of the Commonwealth.
tion, when he is depoſed or ejected, is ſtill a Que IV. In the next Place, it is a
ſtion. If an Uſurper indeed make a League with common Queſtion, What Place What Place a Com-
monwealth may
a Foreign State for mutual Supplies of Aid againſt ought to be allowed Princes that Challenge after's
ſome common Enemy, and then either divide the have raiſed themſelves to Sove- Change in it.
Booty of War with his Confederate, or ſell Part reign Power over People before

or by ſuch
(1) V. Grot. ubi fupr. (2) In B. 7. c. 8.1. 3, S. (a) Demofthenes contra Leptin. The Author propos'd this for two
different Reaſons, and yet afterwards he refutes it himſelf but as one ſingle reafon. Indeed there is but one with its
Proof. For if the Commonwealth is not obliged to diſcharge the Debts, and obſerve the other Afts and Engagements of
an abſolute Monarch, or of a ſmall number of Men, who had got the Adminiftration of the Government into their
Hands ; 'tis, according to them, becauſe what was done is not look'd upon to have been done by ſuch a King,
Magiftrates. And the reaſon why it is not look'd upon as being done, is becauſe the Dominion of thoſe Men was not
founded upon the publick Good, but only upon the Superiority of their Force and Violence; and conſequently that it was
not lawful: From whence they would infer, that the People ought not to ſtand to what they did in their Name, but
without their Confent. (6) See Iſocrates in Areopag. (c) Becler. Diſſert. de eo quod agit Civitas.
B. 3. c. 9. f. 4.
☆
Free
(3) See Grot.
Chap. XII.
529
Of the Commonwealth, an
2

into one.
wealth may
divide into
more.
Free, and what to Free People after Extirpation of but only as in a natural Generation, one Com-
Kingly Government? To this Grotius anſwers (a), monwealth gives Birth to another. But where a
that a Commonwealth may challenge the ſame Kingdom divides-by.common Conſent into two or
Place after ſuch a Change, which it had by it ſelf, more diftin&t Commonwealths, the Publick Patrimony,
of Repreſentative in any Aſſembly before. But with all the Debts and Incumbrances upon them ;
to me it ſeems neceſſary to diſtinguiſh, whether ought to be equally ſhared among them. Tho?
for Example, the Prince that has obtain’d the Go- indeed when ſuch Separations are made by mutual
vernment of the People before free, continue in the Agreement, there is commonly expreſs Proviſion
Allembly or Syſtem he was before Member of: Or made for ſuch caſes:
whether he divides from it, and enters upon a VI. Another Change in the
Separate Adminiſtration of his own Affairs.' For Commonwealth, and by which More may snite
in the forf Caſe, without Diſpute he can have no it ceaſeth to be the ſame, is where
Pretence to any other Place than what the free two People unite (not by way of Confederacy or Sub-
People were before contented with, notwithſtand- jećtion to one common Sovereign, but) in fuch a
ing that Greatneſs and Majeſty with which the manner that the two States grow entirely into
Perſons of Sovereign Princes are inveſted. And ſo one. In which Caſe Grotius (2) chinks, that the
on the other hand, a free People after Extirpation of Rights, which the particular Commonwealths that
Kingly Government, may deinand the ſame Place in make the Union enjoy'd before, are not loft, but
any Common Aſſembly which was allow'd to their communicated to the whole Body, as alſo the
Princes before. But if the Prince or People ſeparate Debes and Incumbrances, unleſs the contrary hath
from their old Aſemblies or Syſtein, the Place that been particularly agreed upon (c). But it muſt
anciently belonged to them ought to be no Pre- be conſidered, whether the two or more people
,
judice to them, or be any Argument for the Pre- unite with deſign to ere&t a new Commonwealth,
cedence of others that had formerly that Privilege where all are to enjoy the fame Rigbis; as ſupa
in the Common Allembly ; ſince all Sovereign Porvers poſe two diſtine People ſubject tò a Government of
are naturally equal.
the Populace aboliſh their Form of Conſtitution and
V. Changes which ſo diſguiſe the unite into one Kingdom ; or two Kingdoms take
One Common Commonwealth, that it appears away their Fundamental Laws, diſplace the ancient
no longer the ſame, happen gene. Line Royal, and ſet up a new Kingdom. By this
rally theſe two Ways ; either Firſt, Union 'tis manifeft, that their former Common-
when one Commonwealth breaks wealths are ſubverted, and a new one erected upon
into two or more ; or Secondly, when many diſtinct their Ruins. But when one Commonwealth unites
Common-wealths unite into one. The Firſt, may, with anothér, in ſuch manner that one keeps its
be che effect either of mutual Confent, or elſe of Government and States, and the Subje&s of the
force of War (1). Different Commonwealths may other change their Country, and are taken into the
be form'd out of one by common Conſent, by Rights and Privileges of the foreign cominona
ſending out Colonies in the manner uſual in Old wealth, it is evident that one is ſwallowed up
and
Greece. For the Romans afterward, (who are fola loſt in the other. But that which remains doch
low'd now by the Nations of Europe,) when they not ceaſe to be the ſame, tho? from ſuch an Aca
ſent a Colony Abroad, continued it under the ceſſion it receiveth a conſiderable increafe in
Juriſdi&tion of the Mother Commonwealth or greater Strength and Power. But there are no ways of
Country. But the Colonies planted by the Greeks, uniting diſtine Commonwealths, ſo that each
and, after their Method, conſtituted partitular ſhall preſerve its own ſeparate Conſtitutions, and
Commonwealths, were oblig'd only to pay a kind be as it was before ; but by ftrict Alliance and
of Deference and dutiful Submiſſion to their Mo- Confederacy, which rather gives Riſe to a Syſtem
aber Commonwealıb (6). But however, a Colony than a Commonwealth, properly calld.
ſettled after this Form is not obliged to pay the VII. The laſt Change, that by
Debts contraced by the Mother Commonwealth, which the Commonwealth en-
The People, how
unleſs that Article was expreíly agreed upon when tirely ceaſech to be, happens
the Colony was ſettled. Becauſe all Publick Debts when the People themſelves are either diſolu'd or
in the laſt Reſort affect the Goods and Effeets of deſtroy'd (3). It is a common ſaying, that Kings
the Commonwealth, which the Colony ("tis ſup- are Mortal, but Commonwealtbs Eternal (4). By
poſed) hath no ſhare in. And tho' particular which it is not meant, that it is impoſſible that a
Perſons in the Colony might perhaps have enjoy'd People ſhould ever be ſcatter'd or utterly extin-
the Benefit of thoſe Debes while they were Mem- guiſhed by any Violence or fatal Period; buc
bers of the old Commonwealth; yet when the that they do not ſuffer ſuch Decays of Nature,
Mother Commonwealth diſmiſſes them free, ii as particular Men do, after a certain courſe of
ſeems to declare that they ſhall not be liable to Years.
Years. For tho' Individuals change, yet there
pay any thing upon that account. But indeed; continues a conſtant Succeſſion, either by Re-
upon a ſtricter View, the Commonwealth is not fort from neighbouring States, or by the natural
really in it felf changed upon the ſending out Iſſues of Procreation at Home. By a continual
Colonies ; neither doth it ceaſe to appear the ſame; courſe of which Succeſſions, the People always
eternal ?
(a) L. 2. c. 9. 7 8. (i) See Grot. ubi Supra f. 10. (b) Vid. Thucyd. 1. 1. Hen. Valefius ad Excerpt. Peireſi.
p. 6. & 7. Hobbes de Cive, c 9. f. 8. (2) Ubi Supra, f. 9. (c) Vid. Liv. I. 1. c. 52. init.
(3) V. Grotium, ubi Supra, 1. 3. (4) Tiber. apud Tacit. Annal. L. 3. c. 6.
appear
*R
530
Of the Changes and Diſſolution,
Book VIII.

appear the ſame, and poſſeſs the ſame Rights and thought Theſeus's Ship (about which they had ſo
*Privileges
, tho' particular Subjects are frequently many Diſputes, the ſame ; tho' in Tract of
changed (a), as Virgil faith of his Bees,
Time it went through ſo many Repairs, that
hardly any thing remain’d of the Materials it
Ergo ipſas quamvis anguftus terminus avi
was firſt built with (e). Plutarch ſays on this
Excipiat, (neq; enim plus ſeptima ducitur æftas)
Subject (f). A Commonwealth is one entire Body
genus immortale manet, multofq; per annos
Stat fortuna domus, o avi numerantur avorum.
which comprebends a Number of Members, and relem
bles the natural, that it neither loſeth its nature by
Tho' ſeven ſhort Springs conclude their vital Date, Succeſſion of Years, nor is it liable to Change by altera
Yet by repeopling their decaying State,
tion of time, but always preſerves the Same Affections
Their Ancient Stocks eternally remain,
And in an endleſs Race their Children's Children reign. and properties, that are agreeable to its Confiitution,
Mr. Addiſon. as long as it continues united by common Ties and obe
ligations, and preſerves the Unity of a publick Body.
The Senſe of the old Philoſophers upon the Diverſity. He adds, That particular Men are more expoſed to
of Bodies will perhaps give us a clearer view of the Injuries of Time, than Commonwealths; for if a
this matter.
And Plutarch tells us, (b) that ſome Man be abſent from his Friend but a few Years; at
Bodies (according to them) are compounded of bis Return be diſcovers a Change in his Conftitution
Parts disjoin'd, as a Navy, an Army, and the like ; and Face, and often ſuch Alterations in his Humour
others conſiſt of compačted Parts, as an Houſe, a and Bebaviour, that he hardly knows him again. But
Ship, &c. a third ſort are framed of united Parts, if a Man after thirty Years 'abſence, come again into
ſuch as are combin’d into one Nature, as every the Same Commonwealth, be not only finds the fame
particular Animal (c). Which in other Words may Houſes and Buildings, but the ſame Inſtitutions, and
be thus expreſs’d; a Body in general is a thing the ſame Manners and Diſpoſitions in the People (g).
contain’d by ſome Habitude, Coberence, or Tie, ſo Tho' indeed it is impoflible but in long Courle
that it conſtitute one. The Ligament, or Tie, by of time, a Nation ſhould receive fome Altera-
which the Parts of a Body are join'd and united tions, and not appear the ſame as to all Effects (h).
is threefold, natural, artificial, and moral. The Hobbes (Philof. Prim. c. 11. 1. 7.) chooſes to ex-
natural Tie or Bord, is that by which natural preſs the ſame thing thus, When any thing is deno-
Bodies are contain'd, the artificial is that by which minated from ſuch a Form, which is the Principle
things otherwile divided in Nature, are by Hu- of Motion in it, as long as that Principle remains, ibe
man Induſtry brought to Unity and Community ; Individual is the ſame.
and the moral Tie laſtly, is that by which ſeveral VIII. But notwithſtanding
Individuals are connected by Human Inſtitution, the Truth of all this, it is pol. How the Materiale
of the People may
and ſuppoſed to make one Body. And this fible for a Commonwealth to
be deſtroy'd:
Body may indeed conſiſt of Beaſts, as in a Flock be utterly deſtroy’d; and that
or Herd: But here I ſuppoſe it to extend no either when the Materiale of the People or whole
further than to a Combination of a Number of Number of Subjects periſh or ſcatter, or when the
Men. And from theſe different Modes of Union, moral Tie which joins the People together is utter,
reſult thoſe three ſorts of Bodies, the Natural, ly broken and diſſolved; the Materiale or Body
Artificial, and Moral. All which are ſuppoſed to of the People periſhes, either when the Parts ab-
continue the ſame, as long as that Connection which ſolutely neceſſary to the Subſiſtence of the Body
at firſt join'd the Parts together, is not all at once are taken away, or when the Body it ſelf is de-
diffolved and broken. And thus therefore a Man ftroy'd. Grotius (i) gives ſeveral Inſtances of
ftill appears the ſame, tho' innumerable little Nations utterly deſtroy'd all at once, by publick
Particles of his Body perſpire ; and are conſtant- Fatalities.
. And here Enquiry may be made,
ly ſupplied with new, from the Nutriment he whether if after ſuch a general Deſolation ſome
takes in (d). And tho' ſome of the Ancients weak Remainders are left that cannot be call’d a

(a) Vide Lucianum, in amoribus, p. 888. Ed. Amft. T. 1. Nature, being ſenſible that we were all framed of periſhing
Matter, and that Fate had given ſó Thort a Period to every Man's Life, provided that the Loſs of one man ſhould be
repair by the Birth of another ; and balanced the Number of them that died with a new Generation, that ſo by con-
tinued succeſſions we might in fome ſenſe, live to Immortality, Virg. Georg. 1. 4. v. 206, &c.
(b) Plutarch.
conjug. Præcep. p. 142. F. (c) Vide L. 41. t. 3. 1. 30. D. de Uſurp. Uſucap. & L. 6. t. 1. 1. 23. f. 5. D. de rei vindicat.
Seneca Epift. 102. (d) Brown. Relig. Med, S. 36. This very Body I carry about me came in at my Mouth, and all this
bulk of Fleſh lay once upon my Trencher ; in fine, we devour our own' ſelves. Seneca Epiſt. 53. Plut. de Ei apud
Delph. edit. Xyland, p. 392. A. B. Lucret. 1. 3. v. 360, &c. But this Paſage muſt be cautiouſly interpreted, that it may
not reach the Article of the Reſurrection. (e) Plut. Theſeus. p. 10. C. Vid. L. 5. t. 1. l. 76. D. de Judiciis. Vid. L. 7:
t. 4. I. 10. D. quibus modis Uſusfructus amittitur.' Tho' this Law ſeems to be contrary to thoſe in L. 46. t. 3. 1. 98. S. ult
.
D. de Solution. in 1. 83. f. 5. Vid. Dionyfium Halicarnafſæum 1. 1. de Casâ Romuli. Alex. ab Alexandro l. 3. c. 1. Mich.
Piccardus ad Polit. Ariſtot. 1. 3. c. 3. (f) Plutarch. de fera Num. Vindict. P: 555. B. C. Edit. Wech. He alſo ſays,
p: 559. ibid. that a Commonwealth may be compared to an Animal, that does not become unlike it felf, by the different
Changes that happen to it with Time, and which has different Ages, without ever changing for all that its Nature ; but
has always the fame eſſential Properties, and is anſwerable or commendable for every thing it does or has done as ſuch,
as long as the ſame Ties and Compacts which unite it, remain pure and undifturb’d, ſo that to conceive a Common-
wealth as different, only becauſe the Members that compos'd it are a new Generation of People, is as if one Man were
made ſeveral diſtinct Perſons, as being a Child, a Youth, and an old Man.
(9) Vid. Grot. 1. 2.c. 9. (5) Vid. Supra. 1. 8. c. 3. f. 29. (i) L. 2. c. 9. 1. 4. Vid. L. 7. t. 4. 1. 21. 21. D.
quib. modis Uſusfruct amit. &c.
People




Chap. XII.
531
of the Commonwealth.
People, they may be ſuppoſed to retain the Rights when upon Peſtilence, Diſcontent, or Sedition
of their ancient Nation? Grotius is of Opinion, I. 2. they voluntarily deſert and ſcatter ellewhere; or
C. 9. S. 4. chac the Propriety which the People elſe are difuniced and forcibly carried away, lo
had, as they were private Perſons, might ſtill ſub. that they can never meet or make Head again.
lift in their Remains, but that nothing belongs to And therefore it was Flattery rather than Truth,
them which agreed to the People as ſuch : That is, when the People of Ilium boaſted, that they
that they may claim Inheritance of the Polſeſſions were Anceſtors to the Romans (e).
and Subſtance of thoſe that were once their Fellow IX. The Form or Species of the
Subjects, but have no Right to aſſume Sovereign People is deffroy'd, (1) if either How the Formale.
Power, or any of thoſe Rights that
are the neceffa- the whole, or the perfe& Commu
ty Conſequents of ic (a), But however, if the nity of Right be loft
. The Community of Right and
few that are left were reduced to fo thin a Num- Government is entirely loft, when the Subjects
ber not by War, buc ſome other caſual Misfor. ſcatter different ways and ſettle in different com-
tunes,
and are able to defend themſelves againſt monwealtbs, whether they recain Perſonal Liberty,
the Invaſions of their Neighbours, till either by or are forced to ſubmit to a Condition of Slavery,
Supplies of their own Growth, or by Invitations the Story of Capua is an Example of this Nature
to orbers to ſettle among them, they grow up (f). A perfe&t Community of Right between the
again into a People, I ſee no reaſon why they Members of the Same Commonwealib is loft; when
may not claim the Rights of the former People (b). tho' the particular Subjects are allowed their
Eſpecially ſince it has not yet been agreed what Perſonal Liberty, and are permitted to inhabit their
number of' Maſters of Families is neceſſary to make own Cities, and live in their own Country, yec
a People ; and ſince when firſt Mankind divided they are under the Government and Dominion of a
into Nations, a very ſmall Number made a People. Foreign State. And ſuch a people are uſually ſaid
In Juſtin (c) Hrraxerxos's fifty Sons are caild to be reduced into the form of a Province. But
Tantus Populus, and Niobe calls her fourteen Children barely the changing Country, evacuating Towns;
& People
. '(d). Again, a Multitude of Men of Law of Forts, are not Alterations ſufficient to make
which a l'eople conliſts is broken and diſſolved, a People ceaſe to be che fame.
when not every particular Sæbject periſhes; but
(a) Vid. D. d. l. (6) Vid. Juftin. l. 5. c. 6. n. 5. (c) L. 10. c. 5. n. 6. Ovid. Met. 1. 6. v. 197. (d) Apuleius
Apolog. Fifteen Freemen make a People. vid. L. 3. t. 4. l. 7.f. 2. D. quod cujuſcunque Univerſit. Soc. Where the Title
4 Community (a Corporation, not a Commonwealth) is ſaid to remain in one Perſon, but that he is under a Neceffity of
taking in Aſſociates in time. e) Vid. Buchanan Rcr. Scot. 1. 4. fin. How the Scots were diſpers'd by Maximus, Jul...
18. 6. 1. & 1. 31. c. 8. (1) Grot. ubi Supra, f. 6. () Vid. Liv. I. 26. 6. 16.
>
k i
AN
FINI S.
te 91 ci hoie
bre
7
INDEX of the AUTHORS Explain'd, ,
Cited in the Text or Notes of this Edition,
Or referr'd to in Monſ. Barbeyrac's Tranſlation.
A
(.) .
huinan and wicked Expedient he approves of, to Itop
cerning Doubts. 1. 3. 9. 1. 4. 7. 1. 5. 5. De Pal, II. 3. 14.
sky
AN
OR
The Roman Characters refer to the Book, the Firſt Figure to the Chapter, the Latter to the
Section.
Gathias (Hiſt.) I. 7. 6. II. 9. 9. II. 4. 13.
upon the Power of a Mother over her Children. VI.
Ælian (Claud.) 1.1, 10. I. 5. 2. Ib. 14. I. 6.3. 2, 2. Reflections upon what he ſays of the Condition
II. 4. 13. II. 4. 19.
of Children in Compariſon with that of Slaves. VI. 3.
Alvarez (Erane.) 'Of the Practice of Thieves in Aby.linia. 9. His Thoughts upon War when juſt or not. VIII. 1.
II. 3. 8.
8.
Ambroſe (Saint II. 3. 3.
Busbequius. Of the Practice of the Colchians in relation to
Theft. II. 3. S.
ims in relation to Sinners, I. 3. 12. cired I. 5. 13. 14.
C.
I. 6. il. I. 7. 15. II. 2. 7. II. 3. 10, 14, 15, 21. II. 4.
4, 5, 15.
Cato (Marc.) T, 3. 7. Cenſured. V. 7. 10,
Ariſtophanes (Poet) I. 4. 8.
Chamberlain's preſent State of England. I. 5. 14.
Ariſtotle Philof.) 1. 2. 4, 6, 7. I. 4. 8, 9, 10. I. 4. 1, 4, 6. Cæfar (Ca. Jul.) Bel. Civ. 11. 2. $. Bel. Gal. Ib. f. 10.
His Contradi&tion in relation to Pleaſure and pain. 16. f.
7. I. 5. 7, 1o. His eileepThu.cle. Ib. f. 13. I. 6. 11, 18, Charron (Peter) cenſured for his Thoughts upon the Fa-
His Thoughts upon Juſtice. 1. 7. 12, 13. Falſe Reaſoning. culties of Beaſts. I. 3. 1. I. 4. 5. II. 1.4, 6, 7. II. 2. 7.
1b. f. 17. His Notion of Injury. Ib. f. 15, 16, 17. II. 1. 3. 7, S. II. 4. 4, 10, 11, 13, 16, 19. A Reflecti-
6. II. 2. 7. Jul. 5. 6, 8, 9. II. 4. 10. His Definition of on upon what he ſays of Revenge. Víll. 3. 23. cena
an Oath explain d. IV. 2. 18. His Falſe Reaſoning to [ured VI. I, 10.
** decry, lending Money upon Uſury. V. 7. 10. The in Cicero (M. Tullius) I. 1. 1, 7, 14. I. 2. JO.
in his Tufcul. Queft. explain d. 1. 3. 3. 1. 3. $. How
the too great Increaſe of Citizens. VI. 1. 8. His Falle he ought to be underſtood concerning the Foundation of
Rcaſoning upon the Antiquity of Monarchical Govern. Honeity and Juſtice, II. 4. 3. 1. 4. 7. I. 5. 5, 9, 10, 12,
Inent. VII. 5.4. His Thoughts upon mixt Goverment. 14. 1. 6. 6, il, 14. I. 7. 2. I. 8. 4. II. 2. 4, 6, 7, 8.
Ibid. f. 12. Reflection upon what he ſays of Abfolute Mo II. 3. 6, 13, 14, 15, 16. II. 4. 4, 5, 13, 14, 5,
narchy VII. 6. 5.
19. II. 5. 3, 4, 14. Defended againſt Laftantius. II.
Arrian upon Epictetus. I. 3. 11. 1.4. 3. I. 5. 14. 1. 6. 5, 56 14. A Paſſage of his off. cenſured. II 2. 2. See his
12. I. 7. 9. II. 2.9, 16, 23. II. 407, 10, 13, 15. II 5. 3. Defence in Barbeyrac's Nores, N.4. A Refle&tion upon
Mulus Gellius. I. 5. 14. II. 4. 13, 15. II. 5. 4. A Paſſage what he ſays of Promiſes made to Robbers and Pirates.
of his explain d. V. 4.5.
III. 6. 2. In what ſenſe he ought to be taken con-
Author de Principiis Juſti & Decori. I. 5. 13. His Kca cerning Diffimulation. IV. 1.9. What he ſays of an
ſons not ſtrong enough to eſtabliſh a Twofold Natural Oath made to a Pirate, defended againſt Grotius. IV. 2.
Law, Divine and Human. II. 3:5, 11, 12. II. 4. 18.II. 8. A Paffage about an Oath explain'd. IV. 2. 15. His
too rigid Determination about Merchants. V. 3. 4. Cen-
B.
furçd for what he ſays upon Promiſes which one is not
oblig'd to keep. V. 12. 22. See his Defence in Mr. Bar.
6 Bacon (Francis) 1. 4. 5. I. 4 6 II. 3. 15. II. 4. 4, 5. 13, beyrae's Notes, Ib. N. 1.
14, 15. Examination of what he ſays in Defence of Claudian (Poet) 1. 5. 11. II. 2. 2. 10. II, 4. 9, 10. prais d
taking up Arms againſt the Americans. VIII. 6.5.
VII. 6. 3.
Balſamon (Theodore) What he ſays upon Self-Defence re Connanus (Francis) An Examination of what he ſays in
futed, II. 5, 9.
Relation to limple Promiſes. III. 5. 9, &c.
The Author of the Political Ballance conſider'd. VII. 5. g. Corinthians ( 1 Epift.) VI. 12. VII. 6, 7, 8, 9. I. 2. 3.
Benzo Hiſt. Nov. Orb. II. 4. 4.
VII. 38. II. 3, 21. A Paſſage in the XI. Chapter
Bion Idyll. II. 4. 10.
explain'd. v. 3. 10 Mr. Barbeyrac's Notes, N 3,
Boccaline (Trajan) His Reaſon of Mahomet allowing Po. Cujacius (James) cenſured for what he fays of one Law.
lygamy, confider’d. VI. 1. 16.
of the Twelvé Tables. II. 5. 17. Concerning Preſcrip-
Bodin (Fohn) His harmonious Proportion of vindicative
tion. IV. 12.7.
Juſtice, unjuſt. VIII. 3. 25. The weak Reaſon he Cumberland (Richard) I 2.4. 5, 6, 11. 1. 3. 2, 3. I. 4
alledges in the Matter of Divorce VI. 1.22.
4, 7. 1. 6. 4.
An Examination of his Opinion upon
Bueller on Gratius. 1. 6. 25. II. 2. 4. II. 3. 22, 23. cena the San&tion of Natural Laws. I. 6. 14. I. 7. 13. II.
fured in relation to the Right of Self-Defence. II. 5: 3. 1, 3, 5, 7, 8. II. 3. 5, 10, 15, 16, 20, 21. His
proves not fully that an equal Diſtribution of Goods is
Prolegom. II. 3. 12. His Maxim about Marriage cen-
commanded in the Decalogue. IV. 4. 4. Examination of ſured. VI. 1.7. His Arguments againſt Hobbes. VII. 2. 4.
his Thoughts upon the Original of the Propriety of
Geods. Ib. 12, 13.
D.
Boetius (de Conſol. Philol.) II. 4. 3.
Brugere (De La) One of his Thoughts taken from Seneca. Des-Cartes. (Renat ) 1. 1. 7. cenſured for what he ſays con-,
III. 6. 1.6.
Budeus (fo. Franc), expreſſes not well Hobbes's Thoughts Demofthenes (Phil.) 11. 5. 6. 7, 14.
Diodorus

II. 3. 14
A Paſſage




An I N D E X
of the AUTHORS Explain'd, &c.
VI. I, 7. .
Diodorus Siculus. I. 5. 14. 1. 6. 14, 17.
J. 8. 3. II. 2.
Why thc Action of Rabab is commended in Scripture,
His falſc Hy-
1b. . 15. Cenſured for what he fays about the Oath
2, 10. 11. 3. 10. 20. Il. 4. 13, 15, 19.
that Laban made to Jacob IV. 2. 4.. Defended, fee
potheſis upon the original of Mankind. IV. 4. 8. The
ineaning of the Law of Charondas, which he relates, Mr. Barbeyrac's Notes, Ib. n. 2.
A Refutation of his
Thoughts upon the Oath of Joshua, Ib f. 7. Concera-
Dio Cryfoftom. II. 3. 3, 12, 18, 20. His Definition of a ing the Obligation of an Oath, 16. f. 6. An Exami.
State. VII. 2. 13. Sec his Defence in Mr. Barbeyrac's nation of his Thoughts upon the Original of the Com
Notes, N. 1.
munity of Goods. IV. 4. 9.
A Remark upon his
Dio Cafius. I. 6. 13. II. 2. 10.
Proof, that one may have a Propriety in a River. IV.
Diogenes Laertius. I. 5. 15. I. 8. 1. II. 3. 1, 8, 10, 14. 5. 3. A Paſſage of 'Ovid is miſapplied by him. IV, 6.
Il. 4. 4.
8. A Remark upon what he ſays of the Acquiſition of
Dionyſius Halicarnaffeus. I. 5. 8. 1. 6.2, 10.
Propriety by the Right of the firſt Poffeffor. IV. 6. 14.
An'Obſervation ill founded upon one of the Roman
E.
Laws concerning Acceſſions. IV. 2. 5. A falſe Expli.
cation of ſome Terms which concern the Meaſures of
the Limits of Lands. IV. 7. JJ. An Examination of
& mpiricus (Sextus) IT. 2. 10. II. 3. 7. cenſured. II. 8. 9.
his Definition of a Will and Teſtament. IV. 10. 2.
Epictetus. I. 2: 7. II. 3. 14.
Euripides (Poct) 1. 5. 10. 1. 8. 5 II. 2. 2. II. 3. 5, 9.
The Power of diſpoſing of our Goods by Will is derived
from the Law of Nature. IV. 10 4. An Examination
II. 4. I, 4, 10, 11. VIII. 6. 5. Hipp. VI. 1. 1o.
Euſebius (Eccl. Hift.) de Præpar. Eyang. II. 3. 8. Eccl. of his Thoughts concerning the Foundation of Pre-
Hiſt. II. 4. 19.
ſcription. IV. 12. 8. A falle Application of ſome Ex-
Euſtratius upon Arift. A falſe Maxim which he advances
amples to the Poſſeſſion of the Goods of another upon
concerning Adultery. I. 4. 9. 1. 5. 13.
Credit. IV: 13. 4. A Reflection upon what he ſays of
Exodus, III. 4 I. 1. 14. Iļ 14, 16. II. 5. 3. XXIII, 4, 5. the Natural Meaſure of the Price of Things. V. 1. 4.
Ib. The Reaſon of a Law, concerning things bor Examples of a mixt Contract oot rightly apply'd. v.
Towed and loft. V, 4. 6. Sec Mr. Barbeyrac's Notes, 2. 10. Why the Seller ought to diſcover the Faults
N 12.
of the thing fold. V. 3. 3. Explication.of what he
F.
ſays concerning Commiſſions. V. 4. 5. An Examination
of his Deciſion in Cafe that Two buy the ſame thing.
Felden (id Grot.) 1. 6. 7. 1. 7. 12. II. 3. 23
V.5. 5. His Miſapplication of the Aation of Joſeph
Filmer (Robert) cenſured concerning the Foundation of the the Patriarch. Ib. 1:7. An Example from Strabo mif.
Right of Propriety. 1V.4.4 Concerning the Founda apply'd, Ibid. An Examination of what he ſays con.
tion of the Authority of Kings. VI. 2. 10.
cerning ones Labour being ſerviceable to many at once.
Florus (Lucius) II. 4. 19. Il. 5. 3.
V.6.4. A Remark on his Thoughts upon Uſury. V. 7.
Il. Of his Diftin&tion of things Favourable and Odious.
G.
V. 12. 12, 13, EgoC. A Remark upon a Rule he gives in
Caſe two Negative Laws claſh. Ibid. 23 An Examina-
Gajendus (Syntag. Epicu.) 1. 7. 13. II. 3 10.
tion of what he ſays concerning the Diviſion of so-
Gramond (Bartholomew) A Reflektion upon a Maxim of vereignty. VII. 4. 14.
That Princes are above
thar Hiſtorian. Vill, 4. 21.
the Law. VII. 6. 3. See Barbeyrac's Notes, N.
Grafwinkel (Theodore) A Remark upon what he ſays con An Examination of his Thoughts on the Autho-
cerning Natural Inſtinct. VI. 1. 3:
rity of the Roman Dictators. Ib. f. 15. That the
Grand (Le) 1. 4. 2. 1. 4. 7.
Chriſtian Religion does not permit the Reſiſtance of the
Gronovius (John Frederick) explains not right a Paſſage of Supreme Power. VII. 8. 5. An Examination of what
Grotius. V. 6. 2. about Princes are above the Laws, he ſays of Juſtice, to which the Impoſition of Puniſh.
VII. 6. 3. Againſt the perpetual Superiority of the ment belongs. VIII. 3. 5. A Reflection upon what he
People over the Prince, lb. 5. Concerning Debts con ſays of ſome Sins which ought not to be panifh'd before
tracted by the Prince's Predeceſſor. Vil. 7. 12. Cons a Human Tribunal. 16. 14. A Reflection
upon
the Throne.
cerning Diſputes about Succeſſion to
ing that there is Room for Pardon even antecedently to
Ib. 15. Of the Power of a Governour of a Province. the Penal Law. Ib. f. 16. The Reaſons for granting
VIII. 6. I.
Pardon. Ib. f. 17. An Explication of his Maxim con-
Grotius (Hugh) cenſured for what he ſays concerning the cerning the Succours that one ought to grant to an Al-
Foundation of the Morality of Human A&tions. I. 2. ly. Vill. 6. 14. A Remark of what he ſays of thoſe
6. Defended, ſee Mr Barbeyrac's Notes on Il. 3. 4. n. to whom belongs the Booty taken from the Enemy. Ib.
4. The Application he makes of ſome Paſſages of f. 18. An Examination of what he ſays, that all Com-
Scripture. 1. 2. 6. Defended, ſee Mr. Barbeyrac's Notes. pa&ts made with an Enemy ought to be obſerv'd. VIII.
An Examination of what he ſays concerning. Doubts in 7. 2. Cenſured for what he ſays concerning the Time
Matters of Morality. I. 2.9. Cenfured for his Defini that Truces are limited by. Ib. f. 8. A&s of Hoftility
tion of Law, I. 6.4. A Reflection upon what he ſays are Unlawful during the Trucc. Ib. f. 9. Concerning
of the Sins of Infirmity. I. 5. 8. What he ſays concern Men taken in the Enemy's Territories when the Truce
ing Doubts of Conſcience. I. 3. 8. Concerning his Divi, expires. Ib. f, 11. That 'tis Unlawful for Subje&ts to
fion and Thoughts of Juſtice. I 7. 11. His falſe Ap de part in great Companies out of the Kingdom. VIII.
plication of a Paſſage in Plutarch. II. 3. 4. His Defini-
II.4.
tion of Natural Law, Ibid. An Examination of his O. Gunther (Poet) 1.4.4. A Remark on what he ſays of
pinion, That the Laws of Nature wou'd take place, the Emperor Frederick Barberofs. VIII. 5. 2. Ser Mr. Bar-
even if there were no God, Ib. f. 19. A Remark upon beyrac's Notes.
the Reaſon he gives of Moſes's Law concerning Thieves.
Il. 5. i8. What he ſays about the Lawfulneſs of taking
H.
another Man's Goods in extream Neceflity. II. 6. 6. Å
falſe Application of a Maxim of the Civil Law, libid. Herodotus. I. 4. 5. I. 5. 8. II. 3. 9. II. 4. 19. V. 1: 13.
A Refutation of what he ſays concerning the Repara Hefiod. II. 3. 2. II. 5.3.
tion that a Thief owes when the thing ſtolen is quite Hobbes (Thomas) cenſured for what he ſays concerning
hoſt or periſh'd. III. s. 11. An Examination of what inanimate Beings. I. 1. 12. A falſe Reaſon, that he
he ſays concerning the Right of pafling through another alledges to prove that Morality and Polity are capable
Man's Ground. III 3.5. Concerning Tranſportation of of Demonſtration. I. 2.4. Cenfured for what he ſays
Merchandize. Ib. f. 6. Concerning forced Promiſes. III. of Liberty. I. 4. 2. and of the Nature of Good. Ib. 4.
6. 12. A falſe Explication of a Law of the Digeft. and of the common Rule of Vertue and Vice, I. 4, 6.
Ib. f. 15. An Examination of his Opinion concerning A Refle&tion upon what he ſays of Counfels. I. 5. 14.
unlawful Promiſes. III. 7. 8. An Explication of what 1. 6. 1. Ib. f. 2. Cenſured about the Foundation of the
he ſays concerning the Conditions annex'd to a Promiſe. Obligation of Natural Laws. Ib. 4. and II. 2. 20.
III. $ 4. A Reflection on what he ſays concerning and about the Foundation of the Sovereignty that
Equivocations. IV. 1., 13., Concerning his Reaſon God has over Men, I. 6.10. An Examination of what
why one may ſpeak a falfc thing to Children, 16. f. 15. he ſays of Diftributive Juftice. I. 7. 9. Of Juffice,
+
Injuftice



his fay-





An INDE X of the AUTHORS Explain'd, &c.
About Paper
what he ſays of Diſtributive Fufice, I. 7.9. Of Juſtice, Juvenal. A Thought of that Poet concerning Nobility,
Injuſtice and Injnry. Ib. f. 12. His Compariſon betwixt taken from Salluft, VIII. 4, 31. See Mr. Barbeyrac's
the state of Nature and that of a Society. II. 2, 3. Of Notes.
the Foundation of natural Law. Ibid. and II. 3, 16, @goo.
A Refutation of his Principle, That the State of Nature
L.
is a State of War. II. 2,5, &c. What he ſays of Robbery
authoriz'd among the Ancients. Ib. f. 10. Cenſured
about the natural equality of Men, III. 2, 2. What he Lactantius. II. , 1. Ib. 4, 18. II 4, 19 Concerning
fays of Lots examin'd, III. 2, 5. His falſe Opinion of Self defence, II. 5,14. His falſe Explication of a Para
Atheiſm, III. 4, 4. An Examination of his Opinion fage in Virgil, IV.4, 8.
about the nature of conveying a Right, III, 5, 2, 3. Laertius (Diogenes) I. 5, 11. I. 7, 13. 1.8, 1. II. 3, I
Fear of being deceiv'd does not juſtify the Non-perfor Ib. 8, 10, 14. II. 4, 4.
mance of a Contract, III. 6, 9. Of the Validity of Law (Roman) How Juſtice isi defin'd by it, L. 7. 6.
Promiſes and forc'd Contra&s, Ib. . 13. Concerning his
The Definition of natural Law, H.2, 2. By the De-
Maxim, That 'tis ſufficient for one to do all he can to livery of the Deeds, the Creditor forgives the Debat.
keep his word, III. 7, 4. Whether a Man can by Co V. II, 7. Concerning an. Article of a Leaſe. Ibid. A
venant oblige himſelf to ſuffer fuch Evils, as exceed Limitation of that Maxim, That what is Null in its
the ordinary Strength of human Nature. Ib. 5. His diffc Original, cannot be made Valid by an After-A&t.
rence between fimple Pacts and Contra&s, V.2, 1. Of III. 6, 14. An Explication of a Law concerning fim-
the Foundation of the Authority of Fathers and Mo ple Promifes, III, 6, 15. Of another which relates to
thers, VI. 2, 2, 3: That a ſeparate and independent Strumpets, Ill. 7, 9. Of the Law that permits the
Family is a Stare, VI. 2, 10, VI. 3, 1. Of Slaves, VI.V ſwearing againſt i a Woman, that ſhe is to not with
3, 7, 8. Of the Means of living ſecurely in the State Child, IV. 2,2. A Remark upon the Inſtitution of
of Nature, VII. I, 8. That there is no Covenant be the Emperor i Frederick, concerning the Oaths of Chile
tween a Sovereign and his Subjects, VII, 2, 9, c. dren in their Minority, IV. 2, 11. Pigeons and Peal
That the People rule in every State. 1b, f. 14. Of the cocks are falfely reckon'd amongſt thoſe Fowls which
Conſtitution of Democracy, VII. 5, 6. Of Ariſtocracy, are term’d wild, IV.6, 5. A Remark on what they
Ib. 1. 8. Of Criminals, who are executed without the fay of wild Beaſts which recover their Natural Li-
ordinary courſe of judicial Proceedings, VII, 6. 12. berty, ib. f. 12A Defence of that Maxin,) Thác
That Sovereignty is abſolute, Ib. f. 13. Of Kingdoms Plants go with the Soil, IV.1.7, 5.
eſtabliſh'd by a free Conſent of the People. Ib. I. 17.
and Parchment, ib. f. 7. Concerning Specification or
Concerning Interregnums, VII. 7, 9. Of the Succellion turning a thing into a new Form or Shape, ib. f. 10.
of Hereditary Kingdoms, lb. 11. That Frugality is not Diſputes about Poffeflion, IV. 9, 7. Of the Defini-
a Vertue in Princes, VII. 9, 10. That Civil Laws ought tion of Preſcription, IV. 12, 2. Of the Diviſion of
not to be contrary to natural Laws, VIII. 1, 2. That Conventions and Contracts, V. 2, 2, 3. An Examina->
the Precepts of the Decalogue are Civil Laws, Ib. f. 4. tion of a Law, which preſcribes what Damage is
There was not juſt or unjuſt before the Civil Govern fufficient to make void a Contract, V. 39. Of
ment, 16. f. 9. Of the Foundation of that Power that another Law which permits one Man to over reach
Sovereigns have
over the Lives of their Subje&ts, VIH. another. 16. f. 10.
16. f. 10. A Defence of that Law, which
3, 1. Of the Definition of Pain, Ib. f. 7. 'Of Crimi concerns Judges whoſe Opinions are different VII. 2,
nals guilty of High-treaſon, Ib. f. 33. 'Of Duelling, 18. A Remark upon a Diviſion of Obligations, VIII. 3,
VIII. 4, 8. Of the Foundation of Honour, Ib. f. 13. 5. Examples of an unjuſt Partiality in puniſhing
Of the Fables of the Heathen Poets, Ib. The Right Crimes, ib. f. 25. A Reflection on what the Civil Law
that Sovereigns have to the Goods of their Subje&ts, faith concerning the Infamy of the Fact, VIII. 4. 7.
VIII. 5, 1.
Libanius, I. 3, 15. 1. 5, 14. 1.6,14.I 7, 2, II. 1, 6. 11.3, 15,
Homerus (Poet) A Remark upon a Refletion that he 18. II. 4, 7. 11. 5, 2, 12.
makes of He&tor, IV. 2, 14. Whether Money was us'd Lipſius (Juftus) A falſe Maxim in Politicks that he ada
in the time of the Trojan War, V. 5, 1. See Mr. Bar. vances, IV. 1. 19.
beyrac's Notes.
Livy (Titus) 1. 2, 4. I. 4, 10. I. 5,9 1.6, 10, 14. I. 7, 4. A
Horáce (Poet) I. 4, 5. I. 8, 5. II. 2, 2. Ib. f. 6. II. 3, 10. Paffage explain'd, VIII. 9, 2.
II. 4, 9, 10, 15, 17. II. 5, 1.
Lucian's Dialog. 1.4, 3. 1. 5, 14. II. 3, 18, II. 4, 3, 13.
Hornius (John Frederick) The falfe Reaſon he makes uſe In conviv. H. 4, 13. Il. 5, 3.
of to prove, that ſome Societies are callid Simple, VI. Lucretius (Poet) II. 2, 2. II. 3, 10. II. 4, 9. A Ree
1, 1. Of the Foundation of the Authority that a Huf flection on what he ſays againſt Pyrrho's Sect. V. 12, 19.
band has over his Wife, Ib. f. 12, &c. How Civil See Mr. Barbeyrac's Notes,
Societies are form’d, VII. 1, 5. Of the Original of
Sovereignty, VII. 3, 3. His Opinion of Free States
M.
cenſur'd, VII. 5, 5. "Of Conqueſts, VII. 7, 3, 4.
Mattheus (Anton.) A Refutation of what he ſays of Men
I.
reduced to extream Neceſſity, II. 6,7. Of Oaths ex-
torted by unjuſt Fear, IV.2, 8. Of Julius Cæſar's Oath
to the Pirates, ibid.
lamblicus Protrept. II. 1, 6. II. 3, 15, 18. Explain'd,
6. II. 3, 15, 18. Explain'd, Milton (Fohn) An Examination of his Reaſons concern-
15. f. 20.
ing Divorce, VI. 1, 24.
Jofephus (Jewiſh Hift.) cenſur'd about Cain, IV. 4, 6.
Foflua (his Book) in Chap. IX, of his Oath to the Gi- Montaigne, Michael) 1. 8, §. II. 3,,7, 8. 11. 4, 19. V. 4,
5. What he ſays of a Prince of Lithuania. VIII. 4, 6.
beonites, IV. 2, 7.
Iſocrates ad Dem. I. 4. 8. IV. 2, 2. Ad Nicocl. IV. 1, 1.
P.
VI. 1, 19. VII. 9, 2, 4, 5, 8. Nicocles, VII, 5, 22.
Paneg. III. 2, 8. IV. 5, 8. explain'd and defended.
VII. 2, 13. See Mr. Barbeyrac's Notes, VIII. 9, 3. 4. Plato (Philoſopher) Of his Community of Goods. IV.
Ad Phil. II. 3, 7. VIII. 6, 4. Ib. 9, 5. Ib. 11. 6. 4, 7 And of Women, VI. I, 15. A Refle-
Archid. I. 3, 7. VIII. 4, 12. Ib. 9, 5. Areop. I. 7, Štion on what he ſays of the Puniſhment of in-
11. II. 3, 10 lb. 4, 15. V. 9, 1. VII. 2, 13. Ib. 9, 4. VIII. corrigible Sinners, VIII. 3, 10. I. 2. 6. I. 3, 8. I. 4, 3,
4, 5. Ib. 12, 2. De Pace, VII. 1, 2. Ib. 5,
5, 8, 13, 14. I. 6, 10. II. 3, 2. His Opinion of the
Hel' 11. 4, 13 Bufir. II. 4, 15. An unfit Epithet ap State of Nature, II. 2, 3. II. 3, 1. ib. 7. II. 4, 13,
ply'd to Nile, IV. 5,,,7. VIII. 4, 12. Of Nobility, 19. II. 5, 14.
Ib. 1:25. VIII. 3, 17. 16.4, 14, and 5, 6. Panath. Of Plutarchus. His Opinion of Providence, I. 6, 13, 17.
the Triballians, II. 2, 10. The Perſian's Hatred of the I. 7, 10. II. 1, 8. II. 2, 2, 10. II. 3, 3. ib. 1o. explain'd.
Greeks, III, 2, 8. IV. 1. 13. VII. 9, 5, 11. VIII. ib. 20. II. 4, 7, 13, 14. II. 5, 2. What he ſays of Civil
1, 3. Ib. 11, 6. De Parm. II. 5, 3. VIII. 3, 10, 27. Society, VII. 1, 11. Falſe Hiſtory concerning the Pa-
Trapez, V. 13, 9. Adv. Call. I. 6, 2. II. 5, 2. III. 4, tricians, VIII. 4, 28.
I, VIII. 4, 7. Ægin. IV, 11, 18.
Pliny
II.
An INDEX of the AUTHORS Explain'd, &c.
Pliny (Sen.) I. 4. 8. II. 1. 6, 8. II. 3. 14. II. 4 13, 15,
15. Of thoſe that inyented the Cuſtom of snaking
T.
Slaves. VI. 3. 5. Of the Original of Alliances. VIII.9.1,
Tacitus (Cornelius) A Remark upon a Paſſage of that Hi-
Q.
ftorian. IV. II. 18.
Terence (Comed.) A Thought of that Poet explain'd and
Quintilian. A Reflection on a Paſſage of his concerning defended. VIII. 3. 20. See Mr. Barbeyrac's Notes. N.
Advocates for Criminals. IV. 1. 21. His Opinion about
reſtoring a Charge. V. 4. 7. Of Puniſhment. VIII. 3. 4.
V.
R.
Valerius Maximus. I. 5. 14. I. 6. 17. 1. 7. 4. II. 3. 7. II.
4. 9. II. 5. 15. A Paſſage explain'd. III. 1. 6.
Roy (Hugb de) An Examination of the Principles, on Vaſquez. An impious Maxim of that Caſuilt. II. 3. 4. A
which he founds the Right of Preſcription. tv. 12. 6. Reflection on what he ſays of Penal Laws. VIII. 3. 5.
Velthuyſen (Lambert) An Examination of what he ſays of
S.
Moral Cauſes. I. 5. 3.
Of his Fundamental Principle
of Natural Law. II. 3. 6, 12. His Opinion of Shame.
VI. I. 30.
Samuel (Firſt Book of) An Explication of a place of this
Book. VII. 6. 9.
Vittoria (Francis de) An Examination of what he ſays in
Sanderſon (Robert) A Remark upon what he ſays of Oaths.
Favour of the Spaniards. III. 3. 9. Concerniog the Li-
IV. 2. 2.
berty of Commerce, Ibid. f. 12.
Sharrock (Robert) A Remark upon what he ſays of this Virgil. An Explication of a Paſſage in that Poet
Rule, .Quod tibi fieri non uis, &c. II. 3. 13.
Lactantius. IV. 4. 8.
againſt
Selden (Jobn) That Slaughters committed in War are a
fort of Puniſhments. VIII. 3. 4.
Seneca (Philoſ.) A falſe Opinion of his concerning Con-
traets and Bonds of Obligation. III. 6. 16. About Part Ziegler (Gaſpard) confounds two ſorts of Moral Certainty.
don. VIII. 3. 15. Of Communion. IV. 4. 2.
A Remark upon what he ſays of the Obliga-
Sidney (Algernoon) A general Remark upon his Book of tion of repairing a Damage. III, 1. 4. Concerning the
Government. VI. 2. 10. See Mr. Barbeyrac's Notes, Gain that'a Man makes. ib. f. 7. Of ſecuring the Legi-
N. 2. A Reflection upon what he ſays of a Thought timate Children from any Damage by an adulterous off-
of Ariftotle. VII. 6.5.
ſpring 16. f. 9. Of a Contradiction attributed to Grotius.
Sophocles (Traged.) A Paſage of that Author explain'd. III. 3. 6. Of Negative and Poſitive Communion. IV. 4.
11. 4. 6. See Mr. Barbeyrac's Notes, N. 6.
2. Of the Original of Propriely, Ib. f. 11 Of the Pro-
Spinoza (Benedi&t.) A Remark upon what he ſays of the priety in Wild Beaſts taken as Game. IV. 6. 7. Of wild
Foundation of Natural Law. II. 2. 3. Of Atheiſts. Beaſts which return to their firſt Owner. lb. f. 12. A
III. 4. 4.
falſe Application of a Law of the Digeſt IV.13. 5. A Re-
Strabo (Hiſtor,) commended. IV. 1. 15. A Pallage of that
flection ill founded on a Diftin&tion of Grotius, concerning
Paternal Power. VI, 2.7.
Author explain'd. V. 2. 3.

2.


AN

AN
INDEX of the moſt Material THINGS
W H I CH ARE
Mention'd or Explain'd in the Text or Notes :

А
Ibid. Action upon
V. 4, 1.
;
ic
con-
Perſonal action upon a Right to a thing, lb. 9, 8. A
A,
Real action upon a Right to a thing, Ibid. Actions in
fixt Forms of Proceeding, V. 2, 7.
Unſeaſonable
Bandon'd; how a thing abandon'd may return to its action, III. 4, 5. Inſcripti maleficii. VIII. 1,, I In.
firſt Proprietor, IV. 6. 12.
ftitoria, III. 9, 1. Exercitoria, Ibid. De tigno junéto,
Abdication ; What it is, 16. II, II.
'IV. 7, 6. Noxalis & pauperiei, III. 1, 6. Of Robbery,
Abraham ; Whether Abraham acted prudently in calling Ibid. 1, 4. Aition founded upon Commiſſion V 4, 2.
Sarah his Siſter, IV. I. II.
Quod juſu, III 9, 1. A&tion of falſe Debt, IV. 9, 4.
Abſent : Abſent Members, when not to be conſider'd in Of things given upon a certain Cauſe, which Cauſe' did
Aſſemblies, VII. 2, 19.
not follow, Ibid. f.4. Actions whereby one may recover
Abſurdities ; To avoid them General Terms are to be re a thing given, and when not,
ftrain'd, V. 12, 19.
concealing the Qualities of any thing fold, igc.
Acceptance ; It is neceſſary to make Promiſes irrevocable, V. 3, 2. Of Condemnation, Ib. 1, 15. Rerum amo-
III. 6, 15. Whether a third Perſon may accept in our tarum, VIII. 1. 3. Negotiorum geftorum, IV. 13, 13.
behalf a Promiſe made to us by another, lb. 9. 5.
Acceſions ; What they are, IV. 7. 1. Rules to deter Adam, He had the ſole Propriety of every thing, while
mine to whom they belong, Ib. 2, E C. When a Prince he was the only Man in the World, IV. 4, 11, Whe-
out of his own Income may make an Acceſſion to his own ther his Poſterity are beholden to him for their Right
Patrimony, VIII. 5, S.
to the Goods of this World, Ibid. f. 4, II. Whether
Account How
he
many ways one gives an account of his gave Names to all Creatures agreeable to their
Conduct, VII. 6, 2.
Natures, Ibid. 1, 4.
Accuſations ; Unjuſt are diſadvantageous to the Perfons Addi&tio in diem ; What it is, V. 5, 4.
accus’d, VIII. 4, 7. None wou'd be innocent, if it Adoption ; What it is, ibid. 12, 11. An Adoptive Father
were enough to bring an Accufation againſt a Man, Ib. ſhould be preferr'd to a Natural Father, and the Rea-
Accuſer; Why he ought to lay open all the paſt actions fon of it, IV. II, 13.
of the Delinquent, Ib. 3. 22.
Adpromiſſor ; What it is in the Roman Law, V. 10, 11,
Accuſed; Whether the Perſon accuſed may innocently Advantage of another ; How many ways
may
be
pro-
deny the Fact with which he is charg'd, VI. 1, 20. cured, III. 3, 2.
An agreement with the Accuſer is ſuppoſed a Adventure ; If one may adventure Money, IV. 7, 12
feffion of the Crime, VIII. 4. 7. Why the Perſon Advocate ; He ought not to take Money of both Parties,
accuſed may appeal to his paſt Conduct, Ibid. 3, 22. A
V. 1, 5. He ought not voluntarily to undertake a
Man does not become infamous by being barely accuſed, bad Cauſe, IV. 1, 21. If he may uſe falſe Colours,
Ibid. 4, 7.
feigned Arguments to defend his Party, ibid.
Acquittance or Diſcharge; What it is, V. 11. 7.
Adultery; What it is, I. 1, 6. VIII. 1, 3. A juft Cauſe
Acquiſition ; Originary, IV. 6, 1. Derivative, and the of Divorce, VI. 1, 21. Whether the Husband, who
forts of it, Ibid. 10, 1. Natural and Civil, Ibid. 6, 11. lies with his own Wife, taking her for another's,
Aft; How far thoſe who concurr'd in the ſame 4et of commits adultery, I. 3, 16. Whether the Adulterer
Damage, are all Reſponſible for it, III. 1, 5. There ought to indemnify the Husband and his Children, III.
are Dividual and Individual A&ts, Ibid.
I, 9.
A&tors upon the Stage ; They had a mark of Infamy ſet Affairs ; When one manages another's Affairs at his own
upon them by the Roman Laws, VIII. 4. 6.
Coſt and Charges, the other ought to requite the Pains,
Aition ; In what caſes one Man may be anſwerable for and refund the Charges, ibid. 6, 2. IV. 13, 13.
the Aftions of another, I. 5, 14. Becauſe an Astion is Affinity ; When it ceaſes, VI. 1, 36. What degrees of
advantageous or hurtful, it does not follow that 'tis
affinity are forbid, ibid. f. 35.
morally good or evil, Ibid. 2, 6. Good Aftions are the Age ; its different Degrees, I. 1, 10
Age"; its different Degrees, I. !; 10. What age is capa-
fureſt Foundations of Glory, VIII. 4, 12. In what ble of meditating Guile, ibid. What is the founda-
ſenſe Human Actions are indifferent in themſelves, I. tion of that Reſpect and Honour, we pay to old
Actions Pure and Mixt, what they are, Ib. 7, 7. Age, VIII. 4, 12.
When a Man is ſaid to be compellid to act, Ib. 4, 10. Aggreſſor ; He is not always the Aggreſor, that firſt takes
Mixt actions, Ibid, f. 9. A&tions, which make a part or up arms, I. 5, 6. If one may, always ſlay an unjust
no part of Commerce, Ibid. 7, 7. What it is that ſets Aggreſſor, II. 5, 1. and Seet. 3d. Or one that a faults
a greater value upon thoſe, that make a part of Com another by miſtake, ibid. f. 5. Or one that is more
merce, V. 1, 6. What a Moral A&tion is, İ. 5, 1. What nfeful than the Perſon aſſaulted, ibid. f. 14. Or who
is the matter of it, ibid. f. 2. The Form of it, ib. f. 3. only would maim, not kill, ib. ſ. 10. Or who makes
It has the Nature of a Poſitive Form, Ib. f. 4. How an attempt upon another's Honour, or Chaſtity, ibid.
its Effects are diſſolved and extinguiſh’d, Ib. 9. 6. How ſ. 11. Or for giving a Box of the Ear, ibid. f. 12. If
many different Qualities it can have, Ibid. 7, 1, the aggreſor who firſt gave the Injury, may fairly
Quantity or abſolute Eſtimate, ibid. 8, I. Its Re-
relift the other Man when he endeavours to revenge it,
lative, Ibid. f. 5. What Moral Action is perfect in its
ibid. f. 19.
kind, Ibid. f. 4. What is meritorious, Ib. 9, 5. A&tions Air; Wherher it may be appropriated, IV. 5, 2.
neceſſary or indiſpenſable, and lawful or allow'd, Ib. 7, Alienation ; A Conſequence of full Property, ibid. 9, 1.
2. Good or Evil,' lb. f. 3. Indifferent, lb. f. 5. One good Its neceſſary Conditions, ibid. f. 2, 3.
Whether in
Action is not better than another, 16. 8, 1. Actions juſt, the alienation of Property, delivery is requir’d, ibid.
Ibid. 7, 7. Unjuft, Ibid. f. 14. When it is not imputed f. 5, Ego. The Right of Alienation is not always join'd
to the immediate Performer of it, ibid 5, 14.
with a Right of Property, ibid, 4, 2. See Mr. Barbeyrac's
Action in Law; There are actions wholly priviledg’d by Notes, N. 8. Alienation is either ſimple or conditio-
the Civil Law, V.II, 15. Actions after a conſtant ſi nal, ibid. f. 4. If the Alienation of a Kingdom, or
lence for Thirty Years utterly drop, IV, 12, 2.
A
any part of it is in the Power of the King, VIII. 5, 9.
Alliance
2, 6.

Its

An INDEX of the moſt Material THINGS, &c.

2, I'I.
rance, Ibid.
II. 3.
ib. 6, 14. ,
Alliances ; What they are, and of how many forts, VIII. Afalines are infamous, Vill. 4, 5, If one may make uſe
9, 1. They are made by both Parts in proſpect of ſome of them againſt an Enemy, ib. 6, 16. They cannot de-
Advantage, ib. l. 5. How they may be broke, ib. f. 11. mand their Reward, nor be compellid to commit that
Real and Perſonal Alliances, ib. f. 6. Rules to diftin Murder, they were engag'din, Ill. 7, 7. Whether the
guiſh them, ib. f. 7. 8. Equal Alliances, and their Man that only makes an Attempt to kill another, ought
different forts, ib. [. 3. Unequal Alliances, ib. f. 4. to be puniſh'd with Death, VIII. 3, 23.
Alliances for the Eftabliſhment of ſome things, as far Aſembly; How many Perſons' it ought to conſiſt of, VII.
as they are due by a Right of Nature, ib. f. 2. and II. 2, 19.
Aſociates or Partners ; Their Mutual Offices, V. 8,4. If
Allies; If by Allies are meant ſuch only as were Allies, one Aſſociate is reſponſible to the reſt for the Loffes oc-
when the League was made, or ſuch as are afterwards caſion d by him, ib. He ought to have a part of the Profit,
taken into Alliance on either ſide, VIII. 9, 10. He that that partakes of the Lofs, ib. f. 3.
hath bound himſelf in an unequal Alliance with another, Aſurance ; A Contract of Aſſurance, VII. 9, 8.
doth by that very A&t acknowledge a Superiority of Aſylums, or Places of Refuge; Why they were eſtabliſhid
Worth and Dignity in the other, ib.4, 15.
Whether an under the old Law, 11.5, 15. If thoſe who fled thither
unequal Allie does not thereby endanger his Sovereignty, were not liable to repair the Damage, III. 1, 7.
9,4. Every Allie is to have his Share of the Booty, Afrology; It is contrary to Religion and Morality, Ir.
ib. 6, 18. In what Caſes he is oblig'd to aſliſt his Allies, 4,4
make War upon one another, which of them the Third they have any true Idea of Duty, Right and Obligati-
Allie ought to aſſiſt, ib. 9. 5. When he may
break his on, Il. 4, 3. If they ought to be tolerated, VII. 4, 2.
Alliance, ib. Suppoſe it had been ftipulated between If one may juftly puniſh them for their Infidelity, IlI.
Two Allies, that one ſhould not paſs through the other's 4, 4. If one may place any Truſt in them, ib. 6, 9. If
Territories with an Army, what is to be done in point a Society of Atheiſts would not be more corrupted than
of Convenience in Time of War, V. 12. 4.
thoſe which keep the Fundamental Principles of Re-
Ambalies; Law of Ambaſſies upon what founded, II 3, ligion, though mixt with Error and even Idolatry, II.
23
3, 19.
Ambaſador; His general Duties, VII. 8. 10. He is not re Atheiſm ; It wholly deſtroys all natural Obligation, IIT.
ſponſible for what he ſays by his Maſter's Order, I. 5. 4, 4. It is not a ſimple Fault of Imprudence or Igno-
14. When he can return home of himſelf, V. 12, 20.
When he may be looked upon as a private Perſon, Auction (Publick) What it is, V. 5,6. The Law of this
VIII. 4. 21. Whether an Ambaſſador of a Republick fort of Sale, V. I, 10.
ought to yield that of a King, ib f. 20. Whether Re Avocatory Commands; What they are, and of what Force,
priſals may be made upon an Ambaſſador, ib. 6, 13. Ego VIII II. 3.
ib. 9, 12. Whether he is to enjoy the Privileges of an Authority; What it is, VIII, 4. 12. How it may be the
Ambaſſador in a State whereof he was a Member, ibid. Principal Cauſe of Moral Actions, 1. 5, 14. The Au-
thority of Maſters is a Hindrance to the Diſcove.
Ambiguities; How they may be explain’d, V.12. 5.
ry of Truth, II, 4, 13. See Mr. Barbeyrac's Notes,
Ambition; A general Evil, VII. 1,7. That of Conque N. II.
rors does not make a War Juſt and Lawful, VIII.
B.
Analogy ; It ought to yield to Uſe, IV. 1, 4.
Anceſtors; Their Glory terves but to ſet in a clearer Light Bail ; See Surety.
the Shame of their Degenerate Poſterity, VIII. 4, 31. Bailiffs; Why their Office is accounted diſhonourable in
Their Pofterity is frequently reſpected upon their ac many places, VIII, 4, 6.
count, ib. 3, 17.
Baniſhment; When it is lawful or not, VIII. 11. 7. He
Animals; To whom belong their Breed, IV. 7, 4. Tamed that is condemn'd to it, ceaſes to be a Member of the
and Wild, ib. 6,5 Sociable Animals, VII. 1, 3.
State, ibid.
Antiquity alone hath no real Honour in it, VIII. 4, 17. Barbary ; Part of Africa, if the People of it ought to be
Apology; If thoſe who make an Apology for a bad A&ion look'd upon as wholly infamous, VIII. 4, 5.
are anſwerable for the Damage, ill. 1, 4. If one can Barrenneſs ; It is not a ſufficient Cauſe for breaking Marri-
make juftly an Apology for the Crimes of his Prince, VIII. riage, VI, 1, 21.
I, 7.
Baftards; They are as near related to their parents as
Apprentice ; If one may juſtly exact of every Apprentice ſo Legitimate Children, IV. 11, 6. Maintenance is due
much as he alone ſhould pay, if none elſe were to be to them, ib. They may ſhare with the Legitimate, if
taught the ſame thing, V. 6,4
their Parents die Inteftáte, ib. How they are look'd
Approver; *If he ought to be puniſh'd as much as the Au-
upon in many States, VIII. 4, 6. Their Legitimation
thor of an evil Action, III. 1, 4.
or Reſtitution in the Blood does not change the Nature
Arbitrators ; Who they are, V. 13, 3. How many forts of the thing, but only produces certain Moral Effe&ts,
there are of them, ib. f. 5. The Duties of an Arbitra ib. 26
tor, ib. f. 4. Whether there may be any Meeting be Batchelor ; If he is always free to remain ſo, VI. 1, 7.
twixt the Arbitrator and the Parties concern'd, ib. If one If the Civil Laws can oblige certain Perſons ro it, ib.
is oblig'd to acquieſce at his Determination, juſt or f. 8.
not, ib. What Perſons ought not to be Arbitrators, ib. Beaſts; Wherein conſiſts their Liberty, II. 1, 4. There
After what manner he ought to execute_his Sentence, are Two Extreams to be avoided in Reaſoning upon
ib. f. 10. Of referring a Matter to his Judgment, V. the Springs of their Motions, I. 3, 1. Morality taken
from their Example is not folid, 1!. 3, 2. No Law
Ariſtocracy; What it is, VII. 5,3. How it is formed, ib. common to them and Men, ib. f. 2. and IV. 3, 5. If
f. 8.
we may Lawfully kill and eat them, ib. f. 4, 5. We
Arms; What we underſtand by the Word in Treaties, V. ought to fpare 'Thoſe which are ſerviceable to us in
12, 7.
our Husbandry, ib. f 6 Why God forbid the Iſraelites
Army ; What is underſtood by it, V. 12,4. If one ſhould to eat ſome Beaſts, ib. f. 2. If the owner of a Beaft
give Paſſage through his Country to a ſtrange Army, is reſponſible for the Damage it cauſes, III. 1, 6. and
III. 3, 5.
IV. 3,5: When our Neighbour's Beaſt falls into a Ditch,
Coats of Arms ; Their Uſe and Antiquity, VIII. 4, 30 we ought to help it out, though he is our Enemy, III,
Arts ; Men are intirely inſtructed in ſuch Arts as are moſt 3, 4. Why the Law of Mofes order'd the Beaſt to be
neceſſary for Life, 11. 2,4.
Plain with the Man that had abufed it in an unlawful
Articles; The particular Articles of a Contract are as fo ma way.
II.
3, 3. Wild Beaſts of a Park or Foreſt, to
ny Conditions, 111. 8. 8.
whom they belong, IV, 6,11. How they may be re-
Aſcendants; They ſucceed upon Failure of Iſſue in the ſtored to their firit Owner,ib. f. 12. If the Marks which
Deſcendants, IV. 11, 13.
one puts upon them is ſufficient to preſerve his Property
Afs; The Deciſion of a pleaſant Diſpute about the Shadow in them, ib.
of an Afs, V. 1,5
Herd
6, 5.
13, 3.

An I N D E X of the moſt Material TH IN GS, &c.
yet
2. 7.
V. 9, 7.
Herd of Cattel ; How to take Poffeffion of a Herd of Cattel, Captain ; If a Captain of a Ship may leap into the Air
IV. 9, 7. The Right of putting them to drink in a without being guilty of Self-murder, VIII. 2, 4.
Neighbour's Field, IV. 1, 12.
Cardinals ; The vain formality that Cardinals uſe in entring
Beatitude. See Felicity,
into the Conclave, IV. 2, 5.
Beauty; It is not a lawful Reaſon to pardon one convinc'd Care ; Three Degrees of it, 1. 7,16.
of a Capital Crime, VIII. 3, 17. Disfiguring the Face Career ; If one ought to give the Reward propos’d to
of a Virgin requires compenſation, III. 1, 8.
thoſe that arrive the ſame time at the End of the ca-
Bees; They are wild by Nature, IV. 6, 5. The Difference reer, V.-12, 14.
between their Communities, and human Societies, VII. Carthage; How we ought to underſtand theſe words of
2, 4. Whether that Man is guilty of Treſpaſs, who, the Treaty concluded with the Romans, Carthage frall
by poiſoning the Flowers of his Garden, cauſes the abide free, V. 12, 16.
Death of his Neighbour's Bees, III. 1, 3.
Cauſes; In what ſenſe Natural Cauſes furniſh us with
Beggars ; The profeſſion of Luſty Beggars is Shameful and Matter for an Imputation, I. 5,6. The invariable and
highly Blameable, II. 4, 15. III. 3, 2. Upon what inevitable Concatenation of Cauſes and Effects, is an
Condition they ought to be regarded in States, where Opinion contrary to Religion and Morality, II.
they are tolerated, VIII, 4, 5.
4, 4. Moral Cauſes, I. 5, 3. The Principal Cauſe,
Being ; What a Phyſical or Natural Being is, I. 1, 2. A Subaltern Cauſe, and Collateral Cauſe of an A&tion,
Moral Being, ib. C. 2, 3. Who is the Author of Moral I, 5, 14. Cauſe ( in Matters of Law ) what it is, v.
Beings, ib. Their Original and End, ib. f. 4. Their
2, 3.
Effexts and Vertue, ib. Their different forts, ib. f. s. Certainty, (Moral) There are two forts of it, I. 2. 11.
How they are deſtroy'd, ib. f. 23.
Charges, (Publick) See Employment.
Benefice; When 'tis vacant, V. 12. 8.
Chance; The Injury that is done by meer Chance, is nor
Beneficence; The Excellencies and Rules of that Virtue, to be imputed, 1. 5,5. III. 1, 6.
III. 3, 15.
Children ; If one may do a Child an Injury while he is
Benefactor; If in the Inheritance of an Inteftate he ought in his Mother's Womb, I. 1, 7.. Why they cor-
to be preferr'd to Parents, IV. 11, 16.
reet Children, ib. 5. 1o. If a Child can have
any
Benefits; What they are, III. 3, 15. We ought not to be Right or Property, IV. 4, 15. VI. 2, 8. If his Pro-
curious in enquiring into the Motives of it, III. 3, miſes are Valid, ill. 6, 3. Why one ought to take
16. It is not a Benefit to abſtain from doing us harm, great Care of hindring them from Lying, IV. 1, 7.
I. 9, 4., Nor to bring one out of that Danger, into How long they are incapable of contracting any valid
which he had brought him, III. 3, 16. if ’ris of Obligation, III 6, 4. If it is lawful to tell them any
greater Worth from an Enemy, than from a Friend, thing that is falle, IV. 1, 15. Whence comes the
VIII. 3. 20
Eaſineſs that they have to diſcern Juft from Unjuſt,
Benevolence ; It is moſt Agreeable to Human Nature, II. JI. 3, 13. If one ought to put an Enemy's Children
to Death, VIII. 6, 7. A Child which is but conceiv'd,
Blank; What the Effect of Blank Papers ſubſcribed, is regarded in many matters of Law, as if he were
III. 9, 2. What a Blank is, and how it is legitimate, already in the World, IV. 12. 10. The Rights which
9
ought to paſs to a Child not yet born, but even con-
Body; In what the Care which every one ought to take of ceiv'd, ib.
his Body conſiſts, II. 4. 14. How many ſorts of Bodies Children; (Sons or Daughters) What is meant by them in
there are, VIII. 12. 7.
the Law, IV. 15. 6. One may make them periſh to
Body of Men, (Community) How it may be reduced to fave their Mother, but not kill or expoſe them, VI.
one only Perfon, VI. 2. 19 Men attribute to it diffe 2,6. To whom a Child that is expos'd belongs, IV.
rent things which differently agree with it, VIII. 3. 29. 6. 14. VI. 2, 3. If a Father may pretend to the Succelli-
How it may be puniſh'd, ib. I. 28. Crimes committed on of his Child, IV. 11, 13. Children do not always re-
by a Body are effac'd by length of Time, ib. ſ. 29. The femble their Fathers, VIII. 3, 33. ib. 4. 25. In what their
dífferent ſorts of ſubordinate Bodies of the ſame State, Dependance on their Parents conſiſts, and what is the
VI. 2. 21. 22.
Foundation of it, VI. 2. 1, Soc. If they may marry
Borrower ; His Engagements, V. 4. 6. ib. 7. I.
without the Conſent of their Parents, ib. f. 14. The
Booty ; How a Man acquires the Propriety of the Booty, Duties of emancipated Children. ib. 1. 12. Legitimate
which he takes from an Enemy, IV. 6, 14. VIII. 6, 17. Children ought to be acknowledg’d ſuch by their Fa-
To whoſe Profit it is, ib. 6, 18. To whom that which thers, IV. 11. 10. They are prefer'd to Natural Chil-
is retaken ought to be reſtor'd, ib. f. 22.
dren in Succeſſions abinteftate, ib. f. 9. Children pafs
Brothers ; In what Order Brothers, both of the ſame Mo before all other Relations, ib. f. 3. If they ought to
ther (Uterins) as well of the ſame Father as Mother inherit what is beyond their Nouriſhment, ib. f. 7. If
ſucceed abinteftate, IV. 11. 17.
their Fathers and Mothers are indiſpenſibly oblig'd to
Buildings; Whether they go along with the Ground, nouriſh them, ib. f. 4 If they may be puniíh'd for their
IV. 1, 6. The Right of raiſing a Building higher, Father's Crimes, !. 9. 10. VIII. 3, 33. ib. 4. 32. If 'tis
ib. 8, II.
properly a Puniſhment for them, to be excluded from
Buyer ; Whether one Man is oblig'd to buy the Commo the inheritance, or have the Goods of their Fathers con.
dities of another, III. 3, 12. Obligations between the fiſcated, ib. 3. 31 Ego 32 How one imputes to them the
Buyer and the Seller, V. 5. 5. The Buyer ultimately good or evil A&tions of their Fathers, 1. 9. 2. The Num-
refolyes
upon
the Price of any Commodity, ib. 6. i. ber of Children was (according to the Emperor Adrian)
Who takes any Commodity without agreeing upon the a good Reaſon for alleviating the Puniſhment of their
Price, is ſuppos'd to oblige himſelf to the common Fathers, VIII. 3, 17.
Price, ib. Whether the want of any Commodity can Chriſtianity; The Precepts of Chriſtianity are not contrary
juſtify the ſelling it the dearer, ib. 1,4. Whether the to the juſt Defence of a Man's-ſelf, 11. 5, 14
not wanting it can juſtify a Man's buying it too cheap, Citizen; what he properly is, Vil 2, 20. An Idea
ib. f. 10. Whether the Buyer can innocently, give for of a good Citizen, ib. 1, 4. VIII. 6, 14.
Their
a Commodity leſs than the Price appointed by the neral and particular Duties, VII. 3, 10. A Citizen
Law, ib. f. 8. If Two buy the ſame Commodity, how ought, notwithſtanding an Oath to the contrary, to dif-
it is decided, ib. 5, 5. IV. 9, 8. See Mr. Barbey cover the Plots that are contriy'd againſt the Prince or
rac's Notes.
State, IV. 2, 9: If he ought to facrifice his Honour
for the Good of the State or Sovereign, VIII, 4, 10. If
C.
they have a Right of requiring Indemnity for the
Cabals; See Factions.
Loſſes they have fuſtain'd upon the Publick Account,
Calumniators ; They cannot be too ſeverely puniſli’d, ib. 8. 3. What Rank Citizens of ſome States ought
VIII. 3, 27.
to hold amongſt thoſe of another, ib. 4. 24. If every
Capacity: The Natural Capacity of commanding is not of one is a Debtor for the Sums borrow'd in the Name
it felf a Title ſufficient to give us any Authority over of the State, ib, 5, 11. If he
If he may be deliver'd to any
thoſe who are not in a Capacity of governing themſelves, Foreign Power that demands him, ib. 2, 5. If he
III. 2. 8.
may

An INDEX of the moſt Material THINGS &c.
may, retire when he pleaſes, VilI. 11. 2, 3, 4. If he Confederation ; A perpetual Confederation is the moſt ftrict
may be baniſh'd without having merited it by ſome of all Leagues, Vill. 9, 6.
Crime, 1b, 86, 7. If fome Citizens aſſembled in fo lit- Confederate Powers ; How one ought to regulate the Order
tle a Number, that they cannot make up a Body of the
of Ranks and Precedency amongſt many Confederate
Srate, preſerve the Privileges of the ancient People, VIII. Powers, ib.4, 22.
12. 8. * See more under the word Subjects.
Conſequences; The neceſſary Confequences of an Action
Civility; One ought not to puth Civility too far, VIII.
entring in the Eſtimation of Damage, ill. 1, 3. The
Conſequence of a Crime render it more grievous and
4, 15
Clauſes ; The different ſorts of them, JII. 8. 1. What is worthy of greater Puniſhment, VIII. 3, 13.
the Effe & of thoſe, where one declares that all poſterior confidence or Truft; What a Contract of Confidence, or
A Ets or Ordinances ſhall be Null, I 6. 6. What a Com-
Truft is, V. 10. 8. One ought not to make it to evade
miffary Clauſe is, V.5.4.
VII. 5, 17.
the Force of the Law, ib
Clemency ; How many parts it hath, VIII. 8, 23.
Confiſcation, To whom the Right of Confifcation belongs,
Cognati ; Who they are in the Roman Law, V. 12, II
VIII. 5. II.
Cheler ; (Anger) It ought to be repreſs’d with a great deal Confuſion; What it is, (in the Style of the Law) V.
Il, 14
Collaterals; When they are call’d to Succellion, IV, 11. Conjectures; The Uſes of them for the Interpretation of
14, 17.
things, ib. 12, 5, EC.
Collegues ; How many forts of Collegues there are, VII. Conjunctions ; Thoſe which are againſt Nature, are unlaw-
ful, as well as confus'd Conjunctions, VI. 1.4, 5
2, 19.
Colonies; The Uſe and different ſorts of Colonies, VIII. 11, Conquerors ; They have no Right over thoſe who have been
6. Ego ib. 12. s. If a Colony, which forms a new State, their Companions in their Conqueſts, VIII. 6, 21
ought to acquit the Debts of that from whence it pro- Conquefts; The Foundation of the Right of Conqueſts, ib.
ceeds, ibid.
Juft Conqueſts, Vol. 7, 3. Urjuft, ib. f. 4.
Combats; If fingle Combats, or thoſe of an entire Army, Confanguinity; What Degrees of it are forbid, and why,
made to decide a Difference are legitimate, Vill. 8. 5.
VI. 1. 32, 34
Thoſe who prais'd themſelves for a Fight with Beaſts Conſcience; What it is, and the different A&tions of it, I.
were declar'd infamous amongſt the Romans, VIII. 3, 4. Different forts of it, ib. f. 5, Sc. The Rules
4,6
which it ought to follow, ib. Its Sentiments are not a
Commerce; The general Law eſtabliſh'd in Commerce,
Bridle ſufficient to reſtrain the Malice of all Men, VII.
3, 10. The juft Bounds of the Liberty of Commerce III.
amongſt all People, 111. 3, 11, 12. IV. 5, 10. VIII
. 5, Confent ; The Conditions that are eſſential to every true
4. The different ſorts of Alliances in Matters of Com Conſent, III. 6, 3. The Signs of Conſent, ibid. f. 16. Con.
merce, ib. 9, 3. The Treaties of Commerce run upon a
ſent is the Foundation of every Obligation impos'd by
favourable thing. ib. f. 7.
Promiſe or Conventions, ibid. 1 1. Expreſs and Tacit
Commiſion; The different ways of giving a Commiſſion, Conſent, ib.ſ. 2. If it is neceſſary to ſuppoſe a Preſum'd,
V. 4, 5. How one ought to execute it, ib. ſ. 2, 3. If or Féign'd Conſent, as the Roman Lawyers do, ib. f. 2.
it can be ſatisfy'd by an Equivalent, ib. f, 5. He who Conſent ; (an agreement of many Perſons to acknowledg
gives a Commiſſion to commit a Crime, is as Culpable the ſame thing) if the Conſent of the People is the
the Author of the A&tion, 1: 5, 14.
Foundation of Natural Law, II 3: 7, 8.
Common; How many ways a thing is ſaid to be common to Conſolidation ; What it is in the Itile of the Law, IV.
many, IV.4, 3
Community; How the primitive Community of things hath Contract; The difference between Contracts and fimple
been aboliſh’d, ib. f. 6. How it was prejudicial to So Pacts, V. 2, 1. The eſſential, natural and accidental
f How many
7.
Qualities of a Contract, ibid. 10. 2. Obligatory on
forts of it one may con-
ceive, ib. f. 2.
one fide, or two, or mixt, Ib 2, 5. Real or ſimple
Compafion; It is an intereſted Settlement, III. 3, 4.
Conſent, or verbal, Ib. ſ. 6. Nam'd or nameleſs con-
Compenſation ; What it is, and in what things it hath tracts, ib. f. 7. Gainful and chargeable Contracts, ib.
place, V.11, 5, 6.
f. 8. Of Truſt and ſtrict Right, ibid. f. 9. II. 6. 8.
Complements ought not to be taken, at the End of a Letter,
The different forts of Chargeable Contract, V. 2, 9.
as if they engag'd to any thing, III. 5, 10.
Mixt Contra&ts, ibid. ſ. 10. There ought to be an E-
Compulſion; there are two ſorts of it, I. 5,9. In what quality in Chargeable Contracts, ibid. 3. 1, &c. But not
it differs from Obligation, I. 6, 5. III 4, 6. If it al in Gainful, ib. f. 7. In Chargeable, nothing is to be
ways'hinders one from having the Guilt of an A&tion, taken upon preſumption that 'tis a Gift, ibid. I. 8. What
to which he was forc'd, imputed to him, 1.5,9.
a Contract of Eſtimation is in the Roman Law. ibid. 2, 9.
Conduct; How many ways one may give an account of his Contracts which are enter'd with hazard, ibid. 9. What
Conduct, VII. 6, 2.
is the meaning of the Diſtinction of voluntary and invo-
Concourſe; How in a Concourſe of many Perſons to the luntary Contracts in Ariſtotle, I. 7. 12. VIII. 3, 5. A
ſame Action every one is reſponſible, III. 1, 5.
Contract concerning any thing belonging to another,
Concubines; What is meant by Concubines, VI. 1, 36. What but of which one is in Poſſeſſion by Truft, is null, IV.
Claim the Children of a Concubine have to the Succeſſi 13. 5. See more under Pact.
on of their Father, IV. 11, 9.
Contracting ; (The Parties) The Infidelity of one Party
Condition; What it is, III. 8, 2. What are the Effects diſengages the other, V. 11. 9. They ought and are
of it, ib. f. 2. If they have ſometimes relation to ſuppos'd to know the ſtate and intereſt of each other,
the preſent or time paſt, ib. f. 3. Tacit Conditions,
II]. 6, 2. Ego ib. 8, 1. Chargeable Conditions cannot Contradictions; How one ought to reconcile ſeeming Con-
be added to a Promiſe afrer the Moment it hath been tradictions, V. 12, 6. And manifeſt ones, ih.
offer'd and notify'd, ib. 9,7. Conditions poſſible or im Converſation ; If in Converſation one may expreſs himſelf
poſſible, ib. 3. 4. 5. Conditions Caſual, Arbitrary, and after a manner, which may make a third conceive a
Mixt, ib. f. 4. Conditions which include ſomething falſe Opinion, IV. 1, 18.
unlawful, ib. f. 5. A Condition is held for accom Corn ; Ears of Corn may be pluck'd by thoſe that paſs by,
pliſh'd, when the one Party hinders the Execution of III. 3; 4. One ought to leave for the Poor the glean-
Conditions; (Eftate of Life ) The Difference of Con- Corporal ; Things Corporal or Incorporal in the ſtile of the
dition does not make one Man more Honeſt than an Law. See Things.
other, VII. 4, 3. When it comes to paſs, that cer Correction ; If any one may uſe Correction towards all on
tain Conditions pafs for diſhonourable, although they thers, VIII. 3, 10,
do not of themſelves include any thing vicious, ib. Counſel; It is in ſome reſpects Sacred, III. 3, 3. In
f. 6. One ought to be content with his Condition, II. what it differs from Law, 1. 6, 1. How they, who
4, 9.
give Counſel, which engages to Sin, participate of the
Crime
8, 7
ciety, ib. ſ.
VI 1. 9. 5.
it, ib.
ings, ibid.
An INDEX of the moft Material THINGS &c.
Crime of another, ib. 5, 14. How they are Reſponſible the order according to which they who concur in the
for the Damage, 1I[. f; 4.
cauſing a Damage are oblig'd to repair it, ibid. f.
5.
The
Counſellours of a State ; Their Duty, VII. 8, 10. If they indiſpenſable neceſity of repairing á Darrage which
are Reſponſible for the Damage, for not having oppos'd one has cauſed, ibid. f. 2. The general Rule which
the pernicious Deligns of the Prince, III. 1, 4.
the Author of a Damage ought to follow to make an
Country ; How one renders himſelf Maſter of a Defart Eftimation of it, ibid. f. 7.: If a Magiſtrate may diſ-
Country by right of firſt Occupant, IV. 6, 3, 4. All pence with this Reparation of a Damage, VIII. 3, 4.
that is inclos'd, not belonging to any particular Perſon, İf in the Reparation of a Damage cauſed without De-
belongs to the State, ib.
fign, one ought to take account of the Efteem thac
Cowards; A Stratagern which the Cowards amongſt the the Perſon endainaged had for the Thing that is ſpoil'd,
Romans made uſe of to avoid going to the Wars, and or made worſe, V. 1. 7. The Aetion which one had
how they puniſh'd thoſe who had recourſe to this Ex by the Roman Law, to oblige him from whom one
pedient, VIII. 2, 3.
apprehended a Damage, which was not yet happen'd,
Courtiſans See Whore,
but which one had cauſe to fear , ' to prevent it,
Creatures : It is with the permiſſion of GOD that Men II. 6, 3. Damage Direct, or cauſed by Accident. VIII.
make uſe of Creature, IV. 3, 2.
3. 31.
Credit ; What it is, V.5, 4. They who fell upon Credit, Danger; No Danger
No Danger ought to make us abandon our
may ſet a great Price on their Goods, ib. I, 10.
Duty, II. 4, 18. When one is in danger of his Life,
Creditor ; What is meant by a Creditor in the Roman Law, he ought to think of nothing but Saving it, II. 5, 2.
V. 11, 1. In rendring his Bond of Obligation he quits III. 7; 8.
che Debtor, III. 6, 2, 16. How he ought to uſe the
Dart ; If with a Dart one may take Poſſeſſion of an Im-
thing given in Pawn, V. 10, 14.
movable, by right of firſt Occupant, IV. 6, 8.
Crime ; It is Perſonal, VIII. 3, 33. Legiſlators cannot David; If King David might revoke his Word which he
determine at their Will, the nature of Crimes, ibid. had given to Shimei with an Oath, and if he violated
1, 3. One muſt diſtinguiſh in every Crime, the Vice his Oath-by the Orders which he gave to Solomon at his
and the Puniſhment, IV. 1, 20. By what Circum Death, VIII 10.5.
ítances one judges of the Greatneſs and Enormity of a Day; What they intend by that in a Treaty of Truce
Crime, VIII 3, 15, Egoc. In what ſenſe Crimes are ſaid by Example, V. 12.7.
to be perfected, even before their Execution, I. 7, 4. Days; Services for Days, IV. 8. 11. 4!!
VIII. , 18. Crimes to come cannot be imputed by Death ; How one muſt underſtand that common Masim,
a retroactive Effect, I. 5, 12. One ought not to be
That Death puts an End to all in matter of Engage-
puniſh'd for another's Crime, VIII 3, 33. How one ments, III. I, 11. V. 11, 12. It is not abſolutely
may be as guilty as the Author of a Crime, I. 5, 14. above the Firmneſs of human Spirit to fuffer Death,
When it is that one puniſhes a Crime that is but in III. 7, 5. Why ſeveral expoſe themſelves to Death
its Birth, VIII. 3; 14. What Crimes carry Infamy, to ſave the Perſons they love, II. 3, 14. Civil Death,
ibid. 4, 7. If there are properly any publick Crimes,
III. 6, 3.
How many ways a Crime may be aboliſh’d, Dying Perſons ; Whether one ought to execute their ormai
I. 9. 6. One ought not to commit a Crime to obey a ders, IV. 10,8.
Superior, VIII. 1, 7: It is not a good Deed nor Debts; Active Debts are taken according to the number
a Merit to abſtain from a Crime, I. 9, 4, 5. When of the Creditor's Goods, I 6, 11. If one may acquire
it is that the proſecution of a Crime before Civil them by Right of War, VIII. 6, 20. Whác Pallive
Tribunals hath Preſcription, IV. 12, 2. The Crimes Debts are in the Roman Law, V. ii. 1. If one may
which often paſs unpuniſh'd, ought to be puniſh'd remit them, or give Delay to the Debiors, when they
more ſeverely, II. 5. 17. Thoſe which have been arc Men that are very Neceſſary in the time of War,
committed a long time, ought not to be puniſh'd ſo VIII. 5, 7. Or in ſome other Circumſtance, where
Exactly, nor with ſo much Rigour, as thoſe which
the Good of the State demands it, ib. io, 7. How the
are quite recent, VIII. 3, 29. Princes ſometimes Members are bound to the Debts contrated in the
puniſh Crimes by which they get an Advantage; as Name of the Body, VII. 2, 22. The Debts of Kings,
Treaſon, ic. III 7, 8.
They, who get ſome
if their Succeffors, or the People, ought to acquic
Profit from a Crime committed by their Conſent, can them, VIII. Io, 8. The Changes which happen in a
not coinplain of the Author of the Crime, ibid. State do not annihilate publick Debts, ibid. 12. 2. If
The Crimes againſt which it is moſt hard to pre a Colony ought to contribute to the Acquitment of the
caution ones felf, are thoſe which deſerve the moſt Rin Debts of the State from whence it proceeds, ibid,
gour, V. 8, 4.
f. 5. Whom the Debts fall upon, when two or more
Criminal ; If he may to avoid puniſhment, fly, or deny diftin&t States are formed or reunited into one, ibid.
his Crime, IV. i, 20. VIII. 3, 4. It is not
a valid
Debtor; What is meant by Debtor in the Roman Law,
Excuſe for him to have Accomplices or Companions V. 1, 1. When it is that he is acquitted by having
of his Crimes, ib. f. 17. If he who marches of him recovered his Bond, III 6, 16. If he
may
be
ſelf to the Place of Puniſhment, or mounts the Lad quitted by the giving up his Goods, V. 10, 10. He who
der, is guilty of his own Death, I. 5. 3. The Crimi fwears not to pay, is not acquitted by that, IV. 2, 6.
nals to whom one ordains to kill themſelves, VIII. If another may diſengage him, V. 11, ! I When a
3, 1. If a Criminal may be puniſh'd by another Per Debtor is held inſolvable, III. 7, 3. All the Goods of
fon as culpable as himſelf, ib. f. 7. If one ought to per a Debtor are tacitly mortgaged to his Creditor, V.
mit Criminals the choice of their Puniſhment, ibid. 3, 10. If he is obliged to reimburſe to thoſe who
1. 4. Why they puniſh thoſe who forbear "ſaving
have paid without his Order, ib. II, 2. Privileged
them, ibid. I. 32.' If one may ſometimes pardon a Cri Debtors who are only oblig'd to what they can do with.
minal, ibid. f. 15, Egoc.
out incommoding themſelves, III. 7, 3
Criticiſm ; The general Rules for it, V. 12, 3. What Decalogue ; If the Commandments of the Decalogue are
che Uſe and Neceſſity of it is, 11. 4, 13.
Civil Laws, VIII. 1, 4. It only mentions the moſt
Curious ; How one may gull People which are ridiculouſly Enormous Criines of every kind, ibid. If the Diviſion of
Curious, IV. I, 18.
Goods is a Commandment of the Decalogue; IV. 4.. 4.
Cuftom ; If thoſe Cuftoms which have relation to the Law
Deceit ; What it is, III. 6, 8. Real Deceit oppos’d to
of Nations are Obligatory, 11. 3, 23.
Perſonal Deceit, ibid. How Deceit annuls a Covenant,
Ib. f. 8.
D.
Decimation ; Why there is a Decimation of Souldiers, VIII.
Damage; What it is, III. 1, 3. In what it differs from Declaration ; If Natural Law indiſpenſably requires a
Injury, 1. 7. 13.
How many ways
cauſes à Declaration of War, ib. 6.9. If it is neceſſary after
Damage, ILI. 1, 6. Rules for judging whether one The Term of a Truce expir’d, ib. 7, 6.
is bound or not to repair it, ib. f. 4. Exteriour Da- Defet; One ought faithfully to diſcover the Defects of
mage, ibid f. 3. Who they are that one ought to re the thing about which he treats, V. 3, 2, Egoc. If a
gard as the Authors of a Damage, ibid. f. 4. What is Defect perceiv'd after, breaks the Contract, III. 6. 7,
T

acim

3, 28.
one
An INDEX of the moſt Material THINGS, &c.
IV.2, 5.
any In-
8, 5:
Nor to
ib. 5, 5.
It impoſes an indiſpenſable Obligation to repair the Divinities; The Ideas which Men form of the Divinities
Damage done to him who makes the Contract, V. 3, 9. of Paganiſm are pernicious and contrary to good Mo-
A conliderable Defeet annuls a Contrat made even with rals, as well as true Religion, II. 4, 4.
an Oath, IV. 2, 11.
Divorce ; If a Divorce is entirely contrary to Natural Law
Defendent; In an Equality of Voices the Defendent is ac and the Goſpel, VI. 1, 22, &c.
quitted and abſolv'd, VII. 2, 17,
Doctrines; How and how far a Sovereign has Right to
Defence; If the Defence of ones ſelf by A&tion is per examine Do&trines, and Defend thoſe which appear
mitted, or preſcrib'd by Natural Law, II. 5, 1, falſe or pernicious, VII. 4, 8.
How far one may uſe it in a Natural Liberty, ib. f. 3. Doctor; One ought not to receive an ignorant Doctor,
And in Civil Society, ib. f. 4. Upon what its Right V. 1, 5. The Intention of him who inſtalls a Doctor,
is founded, ib. f, 5.
does not hinder him from being receiv'd in Forin,
Deformity; Whether in the Reparation of Damage, one
ought to have regard to the Deformity caus'd by the Dominion ; See Propriety.
Hurt, III, 1, 8.
Domeſticks ; The reciprocal Duties of Domeſticks, and
Delegation; What it is, V. II, 13.
their Maſters, VI. 3, 4, 1.
Deli&tum ; What it is, I. 7. 12. By what one judges of Doubt; The general Rule of conduting ones ſelf in a
its Enormity, VIII. 3, 18. &c.
Doubt, I. 3, s.
Delivery is either real or ſuppos'd, IV. 9, 9. It is done Lowry is a favourable and privileged thing, V. 12, 12.
either in ſhort, or by a round-about way, ib. If it is The Recovery of a Dowry, IV. 9, 4
abſolutely neceffary for the Alienation of a thing, ibid.
Dreams; If one is reſponſible for them, I. 5, 11.
f. 5, égc. If when it is not founded upon any Title Duels ; The Antiquity of them, VIll. 4, 8. There is
it transfers Propriety, ibid. f. 5.
no real Diſhonour' in refuſing a Duel, ib. He who in
Demand ; How one ſometimes eludes a Demand, III. a Duel kills or wounds his Man does not do
jury to him properly, I. 7, 13. And is not bound to
To Demand ; He who demands is under a greater Obliga have him healed at his Expence, III. 7, 8.
tion than the Poffeffor, to try all poſſible ways of Xc indemnify his Wife or Children when he is dead,
commodation, V. 13, 3.
V. 9, 3. He who goes to a Rendezvous, cannot al-
Demerit; What it is, 1. 9. 5.
ledge for an Excuſe, the Neceſſity of a juft Defence
Demeſne; What a Demeſne of the State is, and what that of himſelf, II. 5, 9 The Means to prevent Duels,
of the Crown is, VIII. 5, 8. If the King may abfo and render the Laws Effe&tual, ib, f. 12. Why they
lutely diſpoſe of it or engage it, ib. In what ſenſe it were formerly permitted, V. 9, 3.
is as mortgag'd to the King, ib. The King hath the full
uſe of it, If the Goods incorporated to the Demeſne of
E.
the Crown are entirely unalienable, ib. f. 9.
Democracy; What it is, ' VII. 5, 3. Its Conſtitution and Ecclefiafticks; The Duties of them, VII. 8, 10. Their
proper Characters, ib. f. 6, 7. There is a Sovereign in Negligence and Ignorance in what concerns the Study
it as well as in other Forms of Government, ib. 2, 8. Ego of Morals, they do not Right in attributing to
themſelves, Mal a propos, the firſt place in Aſſemblies,
Demonftration ; What it is, and what are its Principles, as well Politick as Eccleſiaſtick, VIII, 4, 22. And in
1. 2, 2, 3. What is that which is made a Pofteriori, Publick Prayers, ibid. As well as in the Numeration
II. 3, 7.
of divers Orders or Eſtates of a Kingdom, ib. They
Depoſitum ; See Truft.
have no particular Privilege which authorizes them
Dereli&tion ; Tacit Dereli&tion is the Foundation of Pre to diſpence with Vows and Oaths, IV. 2, 24. The
ſcription, IV. 12., 8.
fame sin notoriouſly committed by an Ecclefiaftick is
Deſcendents; What we underſtand by them, V. 12, 13. greater, than if it were a Perſon of another Order
Deſertion ; A wilful Deſertion is a juft Cauſe of breaking that was Guilty, VIII. 3, 20.
Marriage, VI. 1, 21.
Edifice; One cannot build a laſting Edifice upon a Ri-
Deſerters; If one may lawfully receive and make uſe of ver, without the Permiſſion of the Sovereign of the
Deſerters, VIJI, 6, 16.
Country, III. 3, 8.
Defires ; They ought to be proportion'd to the juft Price Education is the proper Duty of Fathers and Mothers,
of things, II, 4, 9.
and a Matter of the greateſt Conſequence, VI. 2, 6.
Deſtiny ; The Opinion which eſtabliſhes it, is contrary very
much conduceth to the Good of the State,
to Religion and Morals, ib. f. 5.
VII. 9, 4. It is alſo the Foundation of the perpetual
Devotion, without Probity and an exact Practice of our Obligation of Children, VI. 2, 12.
our Neighbour, is but Hypocriſy, Effects; How Natural ones may be imputed, I. 5,
6.
cqually contrary to Religion and good Morals, ib. f. 4. Retroa&tive Effe&ts. See Civil Laws.
The Devotions which they practice in Japan, and Ele&tion ; How Election of Sovereigns is made, VII.
ſome other places,
places, are contrary to
Natural Law,
ib. f. 18.
Eloquence ; The Art of it is often pernicious, II. 4, 13.
Dictators ; If they were Sovereigns at Rome, VII. 6, 15. Emancipation ; How it was made amongſt the Romans,
Differences ; If in a Natural State there is any one who V. 10. 8.
may, with Authority, decide Differences, v. 13.
lạ. Emperors ; What the Dignity, and Authority of the Ro-
2, 3
man Emperors was when there was more than one at
Diffidence; The Neceſſity and juſt Bounds of it in a Na a time, VII. 5, 15.
tural State, VII. 1, 7, &c.
Empire ; What Reaſons oblige us to ſubmit to the Em-
Dignities ; When they are really Honourable, VIII. 4, pire of any one, ib. 6, 5. If every Empire is founded
23
upon
the "Conſent of thoſe who are ſubjected to it,
Diſabled Perſons; They ought to be maintain’d at the III. 4, 4. If there is amongſt Men any Natural Empire
publick Expenee, ib. 2, 1.
which excludes all Liberty abſolutely independent,
Diſcipline ; (Military) It ought to be very ftri&t, ibid.
II. 2, 4
And why ſo, ib. 3, 26.
Employments ; Which are moſt honourable, I. 1, 9. How
Diſcovery ; One ought to communicate all Diſcoveries
one ought to confer publick Employments, and what
which are profitable to Life, III 3, 2.
Degree of Honour one ſhould allow to every one,
Diſinheritance; There ſhould be juſt Cauſes for diſinhe VIII. 4, 23. One ought not to give them Singularly,
riting Children, IV. II, 7, 11.
as to the Nobleneſs of their Birth, ib. f. 3. It is bad
Diſpenſations ; What they are, and how one ought to Politicks only to prefer Men of a certain Order, ib.
manage them, I. 6, 17
No Citizen hath a perfect Right to pretend to have
Diſent ; The mutual Diſſent of the Parties difannuls Employments before others," whatſoever Merit he
the Engagement, V. 11, 8.
hath, he hath only a Right to require them, III. 1, 3.
Diſimulation ; It is a neceſſary Conſequence of Silence and They who have given them to unworthy Perſons are
Secrefy, IV; 1, ,7. In what Cales it is permitted or reſponſible to the State or Sovereign for the Evil that
cven laudable, ib. I.
proceeds from them, ib. If they who have a publick
Employ-
It
7, 6.
An I N D E X of the moſt Material T HINGS, &c.
V. 6. 3.
f. 23.
Expences : What Expences one muſt put in the Line of Flattery ; It is a kind of injury, and mockery, VIII. 4, 13,
Employment may quit it, and retire any where elſe Faith ; If one ought to keep his Faith to one who has
wirhout the Conſent of the State, VII. 1. 3. How none, Il.. 6, 9.
pernicious and blameable the ſelling of Ecclefiaftical Fairs ; One ought to let Strangers carry from Fairs, what
Employments is, V. 1, 5. What an Honorary Employ they have bought, ib. ſ. 2.
ment is, l. I,
6.
Falſity ; All Fallity is not a Lye, IV. 1, 9.
End; Of what' Actions of the Will the End is the Ob- Family; if a ſeparate and independent Family may paſs
ject, I. 4. 1. How inany ſorts there are of it in general, for a State, VI 2, 20. The Intereſt of
great Families,
ÍII. 6, 10. One ought to propoſe one which is conforma requires that the Eldeſt have ſome Advantage in the
ble to our Nature, II. 4. 6.
Succeſſion, IV. 11. 8. One fometimes pardons a Man,
Enemy; What Acts of Hoftility one may lawfully exer becauſe he is the laſt of an Illuſtrious Family, VIII.
ciſe againſt an Enemy, VIII, 6, 7. If one may deceive 3, 17.
him by falſe Diſcourſe, IV. 1, 19. If it is permitted to Farmer, If the Accidents, which befal a Farmer, afford
defame him without a Cauſe, ib.
a jult Reaſon for diminiſhing the Rent agreed upon,
Enmiiies; They ought not to be perpetual, V. 13. I.
Entities; What a Phyſical or Natural Entity is, I. 1, 2. Fathers; Whence comes the great Tenderneſs, which a
What a Moral Entity, ibid. ſ. 2, 3. Who is the Author Father hath for his Children, II. 3, 14. The extreme
of Moral Entities, ibid. f 3. Their Original and Grief that Fathers have to know their Children wicked,
End, ib. f. 4. Their Effects and Virtue, ib. Their VIII. 3. 32. What Authority they have over their Chil
different forts, ib. f. 5. How they are deſtroy'd, ib. dren, (See Paternai Power) If a Father has more than a
Mother, VI. 2, 5. If he can ſell his Children, ib. f. 9.
Envy is a Paſſion entirely vicious, Il. 4, 12. And a Senti He ought to nouriſh and educate them, IV. 11.4, 5.
ment contrary to Humanity, 11. 3. I.
Why he has Right to chaſtiſe them, VIII. 3, 10 If he
Equality; What Equality there ought to be in Contra&ts, can fayour any of his Children in the Diviſion of his
v. 3. The Natural Equality of Men is either Phy Eſtate, IV. 11. 8. He has the Profit of his Children's
fical or Moral, III 2, 2. The laſt ought to be ac good Advancements, ib. 8. 7. When he ſucceeds his
knowledg'd by every one in relation to others, and how, Children, and when he is excluded from their Succelli -
ib. One ought to procure himſelf Equality of Mind, on, ib. 11, 13: The Foundation of the Right of Life and
II. 4, 6.
Death, which Fathers of Families have over their Chil-
Equity ; The different Significations of it, V. 12, 21. In dren and Slaves, in ſome States, VIII. 3, 13 How they
terpretation according to Equity, 1. 6, 17.
may become Sovereigns in the independent State of Na-
Equivocations ; if one may ſometimes uſe them, IV. 1, 13. ture, VII. 3, 6.
Error ; The different Sorts and Effeets of Error, I 3: Adoptive Father; The Roman Law did not permit an A-
11, @c. In Regard of Promiſes and Contracts, III 6. doptive Father to marry his Adopted Daughter, VI.
6, 7. Oaths, IV. 2, 7. It diminiſhes the Enormity of
1. 32.
a Crime, VIII. 3, 19 If one may caſt others into any Fault'; What a Fault is, and how many ſorts of it, I. 7.
innocent Error, IV. 1, 8. That which one is caſt into 16. If the ſmalleſt Faults are real'sins, ib. 5. 8. If
by the Diſcourſe of publick Doctors is more Excuſable they ought to be puniſh'd at Human Tribunals, VIII.
than that into which one falls by following the Princi-
3, 14.
ples of particular Men, VIII. 3, 19.
Favourable ; What it is in the Style of the Law, V.
Eſtates; See Heritage.
12, 12.
Efteem ; What it is, ib. 4, 1. How one ought to ſeek Fear; 'Tis a Paſſion hurtful to Men, II. 4, 12. What
it, 11.4, 9. How many ſorts there are of it, Vill. Fear induc'd Men to form Civil Soc'etles, VII. 1, 7. If
In what, fimple Efteem conſiſts, and how it Fear annuls the Oaths which it forc'd Men to take VI.
may be impair’d, ib. 1. 2. Efteem of Diſtinction, ib. f. 2, 8. if the Fear of being deceiy'd, or an unjuſt Fear of
Evil, annuls Pa&ts, III, 6. 9. 10, ?1. If the 'Feir of 2
Eſtabliſhment; Every human Eſtabliſhment always fup Neighbour's Power is a juſt Reaſon to make War againſt
poſes the Exception of a Caſe of Neceſſity, II. 6. 2. him. Il. 5. 6. VIII. 6, 5.
Event ; One ſhould not judge of Actions by the Event, Felicity; What Felicity one may promiſe himſelf in the
Ib. 4, 8.
World, II. 4. 8.
Eunuchs ; If it is permitted to make Eunuchs, VI. 1, 6. Feller of Wood; See Wood
If natural Law permits them to inarry, ib. f. 25, Felony, What it is, and what is the Conſequence of it, IV.
Exactors of Publick Taxes ; We ought to hinder their Im-
poſitions, VIII. 5:5.
Fiefs ; What Fiefs are, ibid. Their Original, VII. 4, 30.
Examples; Of thoſe who induce others to a Crime by When they return to the Lord, IV. 8. 12.
their Example, I. 5, 14. How pernicious Evil Exam Fine, We ought not by paying it to inſult the Magiſtrate,
ples are, VIII. 3, 22.
VIII. 3, 4.
Exchange; What it is, V. 2,9. ib. 5. 1. There are two Firſt'An Explication of the Maxim, that the Firſt in
forts of it, ib. If it is a Contra&t which hath a proper and
Date bath the beſt Right, III. 7. 1. He that hath Firſt
peculiar Name, V. 2, 7. Dry Exchange, ib. 7, 12.
committed a Crime, ought to be puniſh'd more ſeverely,
Exceptions ; Tacit Exceptions, III. 6, 2. Peremptory Ex than they who are feduc'd by his Example, VIII.
ceptions, ib. f. 12.
3. 22.
Execution if the ſimple Execution of an Order_manifeft- Fiſhing; Upon what is founded that Right of Fiſhing
ly unjuſt, is Criminal, VIII. 1, 6. Imperfe&t Execution which particular Men have, IV: 6.5. Whether one can
when puniſhable, ib. 3, 27. Of the Execution of Crimi-
appropriate to himſelf the Fiſhing upon any part of the
nal Promiſes, III. 7, 8.
Sea ib. 5 7.
Executioner ; He is not guilty of Murder in executing his
Fiſhers; They ought not to fiſh (according to a Chineſe
Office, VIII. 4, 5. Why his Office is infamous, ib. f.
Philolopher) but with Nets with large Mathes, ibid. 3.6.
Why the Roman Law forbids them to burn Fire upon a
Expiation ; The Expiation of a Crime is not one of the Na-
River in the Night time, III 3. 4
tural Ends of Puniſhment, ib. 3, 12,
Flatterers ; How pernicious they are to Princes, VII. 9. 2.
Account, in ſtating the Price of Merchandize, V.
If they are oblig'd to repair the Damage that proceeds
from their flattery, III. 1. 4.
I, 10.
F.
Fleſh, If in a great Scarcity of Vi&tuals, one may eat Hu-
man Fleſh, II. 6. 3. If the Cuſtom of it which is eſta-
Fables; If one may invent Fables, IV, 1. 15.
bliſh'd amongſt the Savages of America, is a ſufficient
Faction ; What it is, VIII. 2, 23.
Reaſon to declare War againſt them, VIII. 6.
5.
Faculties; Why the Faculties of our Soul have been prin- Flight; Whether in caſes of Aſſault, a Man is oblig’d,
cipally given us, II. 1, 5. How the Effects of the Na-
if he can conveniently, to betake himſelf to flight, II.
tural Faculties of the Body and Mind, may be imputed 5. 13. Whether in flight one may break down
to any Man, T. 5, 7.
Bridge behind him, or ſhut a Gate, when by that he
leaves
4, I.
II, Coc.
8. 2.
5, 6.

a
An INDEX of the moſt Material THINGS, &c.
16. 8, 3.
a
4)
ib. 65.
leaves his Companions expos’d to the Fury of the Ene VIII. 3, 19. Any Good thing be communicated gratis
my, or run over an innocent Perſon, who is in his
and without any Motive, 1.9, 2. How one may do ano-
way,
ther a real Good Turn, Ill, 6, 13.
II. 6. 3.
Force ; If Force alone produces any Obligation, I. 6.9, 10. Goods ; (Riches) They are the object of the greateſt Part
Whether Contracts made by Force are null and void,
of the Law, and are as it were the Life of Mortals, IV.
III. 6, 10.
3, 1. The Inequality of the Goods of Fortune are not
Fornication ; Whether ſimple Fornication be contrary to contrary to the Natural Equality of Men, III. 2, 2.
the Law of Nature, VI. I, 4. How it was look'd
upon
If we may lawfully kill him who would take them
in different Nations, ibid.
from us, 11. 5. 16. The Prince may direct what Uſe
Fortifications ; If, to make them, one may take the Gar.
we ſhould make of them. VIII. 5, 3. If has a Right
dens, Houſes or Lands of particular Perſons, and the of diſpoſing of them abfolutely, ib. !, 2. If he can
Materials which were prepar'd for their own uſe, Vlil. give up at a Pacification, the Goods of private Subje&ts,
5, 7.
Fortitude; If they can demonſtrate that Vertue without Goods of another ; Every one ought to abftain from them
ſuppoſing the Immortality of the Soul, II. 3, 19.
Religiouſly, IV. 13, 1. If one may take them in ex-
Fortune ; Men caſt upon Fortune, the evil Effects of Falſe ireme Neceſſity, JI. 6. 5. 6. If one may deſtroy them
Meaſures which themſelves take imprudently, 11. 4, 8. to ſave his own, ib. f. 8. Promiſes of another Man's Goods
Found; A Man that has found any thing, ought to endea are null, 111. 7, 10. The Duty of him who is entruſted
your that the Owner may recover it, IV. 13, 4. When with them, IV. 13, 2, &c. Different ways of having a
a Man becomes lawful Owner of what he has found, Right over the Goods of another, ib. 8.
ib. 6, 12.
Publick Gords; How many ſorts of them, VIII. 5, 7.
Fountain ; One ſhould not ſtop it up, or conceal it, after How far the Prince has the Power of diſpoſing of
he has made uſe of it, III.
3, 4.
them, ib.
Fraud ; It is put in the ſame rank with Violence, with re Goodneſs; The Goodneſs of an A&tion is not abſolutely in
lation to the Validity of Contracts, ib. 6, 10. Whether it ſelf fuſceptible of Quantity, 1. 8. 1. Wherein it con-
it makes Oaths void, IV. 11. 17.
fifts, ib. 7. 3:
Friends ; We ought to ſuccour them, VIII. 6, 14. If in Good-luck; See Felicity.
Point of Succeſſion, they ought to be preferr'd to Re Government ; (Civil) 'It binds ſtronger than Government
lations, IV. 1, 15. Injuries done by a Friend affect us form'd by ordinary Compact, VII 4, 9. If accidental
more than thoſe of an Enemy, or a Stranger, VIII. Circumſtances change the Form, ib. 5. I, 12. What
regular Government is, and how many forts there are,
3, 20.
Friendſhip ; Wherein confifts its Duties, ib. 9. 2. Friend. ib. f. 3. Irregular Governments, ib. ſ. 14, 15. Whether
Ship and Faith two moſt ſacred Things, V.
they are reckon'd among mixt Governments, ib. f. 13.
Fruits; What they are, and how many ſorts of them, IV. The Difficulty of the Art of Government, ib. 9, 2. What
7,3. To whom the Off-ſpring of Living Creatures be is the beſt Government, ib. 5, 22. The Government
longs, ib. Whether Fruits are reckon'd in the Eſtima may be different according to the Genius of the People,
tion of Damage, III, 1, 3.
Fruition ; What it is, 1.4, 1.
Governour of a Province Whether he can of his own head,
Fun&tiox; No Member of a State ought to render him. make War or Peace, VIII. 6. 10.
ſelf incapable of Military Functions, VIII. 2, 3. Gowns-men; They are as Profirable as Swords-men, ib.
4. 30.
G.
Grafts; Whether in Acceſſion, they follow the Stock on
which they are grafted, IV. 7: 5.
Gain; Whether the Gain, that a Man that is kill'd, could Grapes ; They ſhould be left after Vintage to poor People,
have made, may be reckon'd in the Eſtimation of Da-
IIL 3, 4.
Gratitude; The Neceſſity and Rules of this Virtue, ib f. 16.
mage, III. 1, 7.
General of an Army; What the Extent of his Power is, A Compariſon betwixt its Duties, and thoſe of Benefi-
VIII. 6. 10. He can aſſign every Man his Poft, ibid. cence, V. 12. 23.
2, 4. If he may tell his Soldiers any thing that is not Guarantees of a Peace; What they are oblig'd to, VIII.
true, IV. 1, 16. If the Sovereign is oblig'd to ratify 8. 7.
the Agreements which the Generals or other Officers of Guefts; If they fit down to Table at a Publick Houſe,
War make with the Enemy, VIIl. 7, 13.
they are oblig'd to pay their Scott, tho' they made no
Generation ; Whether it be the Foundation of Paternal Agreement with the Hoſt, III. 6. 2.
Authority, VI. 2. 4, 12.
Gulf; To whom it belongs when
many
different Nations
Geſtures; They are imperfect Signs of Conſent, III. 6, poffeſs the Lands on its Shores, IV. 5. 8.
16.
Gutters ; The Services of Gutters, ib. 8. 11.
Gebionites; Whether the Trick they us’d to Joshua be
Criminal, IV. 2, 7.
H.
Glory ; In what true Glory conſiſts, VIII. 4, 12. Vain Glo-
ry is nothing but an imaginary Good, ib. 3, 19.
Habitation; The Right of it what it is, IV. 8.9.
God; Although God cannot do certain things, he is ne Habit ; What Influence it has upon Moral A&tions, 1.4. 6.
vertheleſs Omnipotent, II. 3, 4. If his Sovereignty is ib. 5, 13. The Terms which conſtitute it are capable
founded upon his Omnipotency, I. 6, 10. He is not of any Latitude, ib 2. 10.
the Cauſe of the Malice of human Actions, ibid. Hatred, We ought not to nouriſh it, Il. 4, 12.
7. 5. Univerſal Liberty void of all Hindrance and Hazard; Of Contracts wherein is Hazard, V.9.
of all Defeet, is applicable only to God, II. 1, 3. In Heard ; In what Caſe one is Culpable for having heard 2
what Senſe God is a Law to himſelf, ib. If there is
any
thing ſaid, I. 5. 14.
Law common to God and Man, ib. 3, 5. If Men can Hereticks; How unjuſt the Animoſity is which Men have
do any meritorious Thing in relation to him, 1. 9, s. againſt them, and how Deteſtable that Opinion is, which
A general Idea of the Duties of Man towards God, permits a Violation of Faith with them, II. 4. 4.
II. 4, 2. His Will is the Foundation of the Obliga- Heritage ; Heritage in the City (Prædia Urbana) what they
tion we lie under to obſerve the Law of Nature, ib. are in the Roman Law, IV. 8. 11. Heritage in the Coun-
try (Prædia Ruſtica) ibid.
Good; What it is, and how many ſorts there are of it, Heir ; He is thought to have the Propriety of the Fruits
1. 4, 4. Real and imaginary, VIII. 3, 19. In what of the Deceas'd," before the Formality of taking Por-
ſenſe Good or Evil depends upon the Determination ſeſſion, IV. 4, 10., Whether he can lawfully, receive
of the Sovereign, or of the Civil Law, ib. 1, 5. Good in the Name of the Deceas'd, the Offers which he
which happens to Man is of Three forts, Il. 3, 21, had refus’d, III. 9. 6. Whether he can claim any of
The Scarcity of a Good thing does not make it more the Fruits of the Grounds, of which the Deceas'd
valuable in it ſelf, V. 1, 6. When the Profpe&t of had the Uſe and Profits without the Property, when
án Agreeable and Profitable Good leſſens a "Crime, he dies before Harveſt, IV. 8.7. If he finiſhes the
Time

3, 20.
An INDEX of the most Material THINGS
&c.
VIII. 4, 31.
Time of the Preſcription which run before the Death the Diigrace of the Immodeſty of a Woman reflets upon
1
of the Deceas'd, IV. 12, 4. How far he is liable to
, io. If
pay the Debts of the Deceas'd, ib." 11, 20. And to an Priſoner, the Enemy thereby gets any Right over his
Iwer for his Oaths, ib. 2, 17. His Promiſes or Con-
Wife and Children, VIII. 6, 19.
tracts, ibid. If he ought to pay the pecuniary, Repa-
rations to which the Deceas'd had been condemn'a,
I.
VIII. 3, 3, 33. If one may infliet any infamous Pu-
nilhment upon him as he is an Heir, ibid. To what the Ideot ; His Promiſes are null, III. 6, 3.
Heir of a Thief is lieble, III. I, II.
Idle ; One ought not to affift idle Men, ib. f. 6.
Hermits ; Whether they do well to withdraw themſelves Ideas ; (innate) If there be ſuch, II. 3, 13.
from human Society, II. 4, 15.
Jealouſy ; If it be Unjuſt and Ridiculous in it felf, VI. 1,
Hiring or Renting ; What it is, V.6, 1.
15.
Hiftory; What the Knowledge of it is neceſſary to, II. 4, Ignominy ; Marks of Ignominy are little mortifying to thoſe
who have many Companions, VIII. 4. II.
13.
Hiftorian; He is indiſpenſibly oblig'd to tell the Truth, as Ignorance; Its different forts 1. 3. 4. The A&tions
far as it is known to him, IV. 1, 7,
which proceed from it are more involuntary, than thoſe
Homage ; Forc'd Homages are no real Marks of Honour, which Fear cauſes, ibid. 7, 17. Invincible Ignorance
VIII. 4, 14.
excludes all Imputation, ibid. 5, 10.
Homicide ;
what it is, I 1, 6, Whether it is Culpable Immoveable Goods ; What is meant by them, IV. 6, 3.
when one only intends a Wound, ib. 3, 6. How the How one makes himſelf Maſter of them by Right of
Damage done by it ought to be repair’d, III. 1, ,7. firſt taking Poffeffion, ibid. f. 3, 8. When 'tis that they
Whether it ſhould always be puniſhi'd with Death, are taken by the Enemy, VIII, 6, 17.
VIII. 3, 26. See more in Murder.
Immunity ; How one can lawfully grant an Immunity,
Honeſt ; If the honeſt and diſhoneſt are ſuch of themſelves ibid. 5, 6. No one extends to a Caſe of Neceflity, ibid.
or by Appointment, I. 2, 6. II. 3, 4. The Ideas of ſ. 7. and ib. 2, 1. ib 4. 33. They who have Immu-
Honeſty ſeparated from the Relation which they have nities ought not to abuſe them, by making the
to the Will of God, are nothing but fine Chimæra's, Goods of others, which are not free from Imports,
or barren Principles, lI. 3. Every one is ſuppos’d paſs under his Name, V. 10 8. They ought not to be
Honeſt, as long as they cannot prove to the contrary, given purely and ſimply for the ſake of the Nobility,
VIII. 4, 3.
Honour ; (of Diſtinction or Preference)
Preference) What it is, Impoffible; An Explication of that Maxim, No Body is
IV. 4, 11. What are its Foundations, ib. f. 12. How oblig'd to Impoſſibilities. I. 5, 8. II. 7, 2, &c. Evil
one muſt ſeck it, II. 4, 9. Whether Honours depend A&tions are eſteem'd Impoflible in the Roman Law,
abſolutely upon the Will of the Sovereign, ib. f. 32. 1. 7, 2. How one muſt explain it, when one finds
Honour; (the Reputation of an Honeſt Man) Whether Impoſſible in a Law, Contra&t, or in a Will, ib. 5, 8.
it depends upon the arbitrary Determination of the Impoffibility; It is either Phyſical or Moral, ibid.
Sovereign, Vill. 4, 9. Whether one can without a Impofts ; Who has a Right to exact them, VIII 5, 4.
Crime facrifice it for his Prince, ib. [ 19.
Rules which one muſt follow in their Eſtabliſhment,
Honour; (Chaſtity) Whether 'tis lawful for a Woman and in the Taxing of every particular, ib. ſ. 5, 6, 8.
and ib. 9, 10
rather to kill 'her ſelf, than loſe her Honour by being
raviſh’d, II. 4, 19.
Imprudence; In what it conſiſts, I. 2, 6.
Point of Honour ; The vanity of Point of Honour in rela- Impotency of Husbands; When it is incurable it annuls
the Marriage, VI. 1, 25.
tion to Duels, ibid. f. 8.
Hope ; How it ought to be ruled, ibid. f. 12. If one Impunity; Why 'tis given to certain Crimes, I. 6, 15.
may ſometimes make a Man conceive falſe Hopes, III. One ought not to grant it to certain Perſons without
very great Reaſon, VIII. 3, 17. Frequent Examples of
5, 5.
Hoſpitality ; In what its Rights conſiſt, ib. 3, 9.
Impunity leſſen the Heinouſneſs of a Crime, ibid. f.
Hoſtage ; If one may give himſelf an Hoſtage, II. 4, 18
If the Sovereign can force us to it, VIII
. 2.6. if he Impurity ; If thoſe Inconveniencies caus’d by them, which
are mention'd in the Law of Moſes, were Puniſhments
engages the Life of Hoftages, or only their Liberty,
properly ſo callid, ib. 3, 4.
ibid. If they fhould be puniſh'd for the breach of a
Treaty, ib. If when an Hoft age comes to be Heir to Imputation ; Whence it proceeds, when a thing is capa-
him, who ſent him, he be bound to ſtay, ib. 8, 6. Of ble of Imputation, I. 5, 5. What things are capable
of it, ib. 1. 6, &c. What is an Imputation which is
Hoſtages given to Robbers, III. 6, 11.
grounded upon Favour, ibid, 9, 2.
Humanity; Wherein the Duties of it conſiſt, ib. 3, 1, Sc.
An Imputation
In what they differ from thoſe of Juſtice, ibid. 4, I. concerning Right, ibid. . 3. Simple Imputation and
To what Nations one may refuſe them, ibid. 3, 3. and Powerful Imputation concerning Right, ib. f. 6.
Inceſt ; What it is, ib. 2, 6.
VIII. 4, 5.
Wherher one can commit
it to preſerve one from Death, ib. 5, 9.
Humour ; If the Inconſiſtency of Humours be a Reaſon
Inclinations ; To what their Diverſity tends, II. 17, 9,
fufficient for the diffolving of Marriage, IV. 1, 22.
Humility ; In what honeſt and reaſonable Humility conſiſts, Incorrigible. Perſons ; it would
be better for them to be dead,
III. 2, 6.
VIII. 3; 10. Whether none but incorrigible Offenders
ought to be puniſh’d, ib. f. 10.
Hunting ; 'Tis an Exerciſe fit for Nobility and Princes,
IV. 8,'6. To whom the Right of Hunting belongs Inequality; Whence come thoſe Inequalities between
ibid. f.
Men, III 2, 9. How one ought to ſet right that In-
How one may make the Laws concerning
5.
equality which appears in a Contract, V. 3, 9
Hunting valid, ibid. f. 7.
Huntſman ; If the Beaſts he hath taken contrary to the Infamy; How one is marked with Infàmy, viiť 4, 6, 7.
Laws belong to him, IV. 6, 7. If a Beaſt belongs to Infamy, de jure Ego de faéto, what it is among the Law-
hiin after the Moment he has kill'd it, ib. f. 10.
yers, ib., 1.,7. How, and by whom, Infamy can be
wip'd off, ib. f. 10.
Hurt ; One is not hurt for being fruſtrated of that whch
Whether one is oblig'd' to incur
others owe us by virtue of an imperfect Obligation, real Infamy to obey ones Sovereign, ib. [ 9.
III. 1, 3. He who is hurt is not oblig'd to content Infant ; See Children.
himſelf with the Puniſhment of the offender, ibid. Informers ought to take care not to be guilty of the ſame
Crimes of which they accuſe others, ib. 3, 7. Altho'
Husband; His Authority does not neceſſarily imply the they be ſuborn'd by their Sovereign, they commit an
Evil A&tion, ib. I, 7.
Power of Life and Death, VI. 1, 13. The Foundation
of his lawful Authority, ib. II, &c. Whether he be Ingrateful ; Whether one can lay an A&tion of Injuſtice
Reſponſible for what his Wife does, I. 5. 14. If when againſt ungrateful Perſons, III. 3, 17. In what places
he conſents to the Proſtitution of his Wife, ſhe com it is impra&ticable, ibid.
mits Adultery, ib. 7; 7. The Laws abſolve him who Ingratitude; The Baſeneſs of that Vice, ibid
kills his Wife with her Gallant, ſurpriz'd in the very is more ſhameful and odious than Injuſtice,ib. Complicated
Fact, II. S, 15. VIII. 3, 13. Whence it comes that Ingratitude, ib,
22.
f. II.
Why it
An INDEX of the moſt Material THINGS, &c.
3
If one
A leſs gives
.
Or
f. 3.
Injury; What it is, I. 7, 15. In what it differs from of the State, and the Intereſt of Kings that their Au-
Damage, ib. ſ. 13. From Injuſtice, ibid. And from thority be limited, ibid. 1. 9. Who are Kings, whole
Fault, ibid. From Misfortune, ibid. f. 16. Injuries can Authority is not inviolable, ibid. 8, 8. Kings ought in-
produce no Right, Ill. 6, 10. How they judge of diſpenſibly to keep the Oaths they have made, VIII.
its Greatneſs, VIII. 3. 20. Every one has a Natural 10, 5. In what ſenle their Contracts are above the
Right not to ſuffer Injuries, III. 2, 4. Rules of Pru Rules of the Civil Law, ib. f. 4. How long their Mi.
dence which they ought to follow who have receiv'd nority endures, ib. f. 3. If Contracts made in their
any, II. 5. 3. There is ſometimes a Greatneſs of Name during their Minority are valid, ibid. How he
Mind to deſpiſe Injuries, VIII. 4, 8. When it is that may
free himſelf from Engagements made to Stran-
an Injury is eſteem'd morally not done, I. 9. 3. How gers, ib. f. 2. And to his own Subjects, ib. 1.
they make Compenſation for Injuries, or Benefits with King really, ought to give place to any other King,
Injuries, V. 11, 6.
ib. 4, 2. If he may leave the Deciſion of a Quarrel,
Injuſtice ; What it is, I. 7, 14. It can produce no Right, or of Articles of Peace to a ſingle Combat, or to a
nor impoſe any Obligation, III. 6, 10.
Battle of two Armies, ib. 8, 5. if when he is fallen
no more Right to its Author than a greater. ibid.
into the hands of his Enemies, they become thereby
Innocence ; It does not always find its Defence in it ſelf, Maſters of his Kingdom, ib. 6, 19.
If his Alliance
VII. 1, s.
with a King who hath been ſince chas'd from his
Innocent; It is better to hazard letting a Criminal cſcape, Kingdom, do ſtill continue, ibid. 9, 9. See more in
than to puniſh an Innocent, I 3, 6. In what caſe one Prince and Sovereign.
can hazard the periſhing of an innocent Perſon, ib.5; 3. Kingdom ; What it is, VII. 6, 17. A Patrimonial King-
Inftin&t ; Whether thoſe things to which natural Inftinét dom, ibid. f. 16.
What Power the Maſter of ſuch a
carries us, can be the Matter of any. Obligation, 'VI, Kingdom hath over the Goods included in his Domi-
1, 3. When it is we muſt reſtrain it, ibid.
nions, viII. 5, 1The Order of Succeſſion abinteftate
Inftrument ; They ſpoil exterior Inſtruments ſometimes to ſuch a Kingdom, VII. 7, 11. A Kingdom etta-
as well as thoſe inanimate and deftitute of Reaſon, bliſh'd by the free and voluntary Conſent of the
II. 3, 3. How the Nature of the Inſtrument tends to People, ib. 6, 17. If the King of ſuch a Kingdom may
aggravate a Crime, VIII. 3, 20.
alienate it, either wholly or in part, VIII. 5, 9. Or
Intention ; What it is, I. 4, 1. Full Intention, and im engage it, or make it a Fief to another, ib. f. 16.
perfect Intention, ibid. The good Intention does not diſcharge a Vaffal of his Kingdom from the Homage he
render an A&t materially good, ibid. 7, 4. In Judgment, owes him, ibid. If a part of a Kingdom may be ſepa-
When there is a doubtful or equivocal Intention, it rete it felf from the whole Body, ib. f. 9.
muſt be taken on the mote favourable ſide, ibid. 8, 3. Knowledge ; An indifferent Knowledge of profitable
What fort of Intention is neceſſary to make a moral things is more valuable than a perfect Knowledge of
Action good before the Divine Tribunal, ibid. f. 2. un profitable things, II. 4, 23. The Neceflity of the
How far it has Regard in Human Tribunals, ibid. Knowledge of Ones felf, ib. f. 5.
Intereſt of Money lent; Whether natural Right forbids
L.
abſolutely to take it, V. 7, 9. Intereft lucratory and
compenſatory, what it is, whether both of them are Labours ; If one may ſhorten his Life by hard Labour, ,
Lawful, ibid.
II. 4. 17. When Labour is in the place of Puniſhment,
Interpretation ; How one ought to take it in that of Laws
and Conventions, V. 12.
Lands;
If one may make a Diviſion of Land amongſt Men,
Interregnum ; What it is, VII. 7, 7.
IV. 5, 4. If Strangers may without the Permiſſion of
Invention ; One ought to communicate the Inventions of the Sovereign ſeize on the vacant Lands which they
things neceſſary to human Life, III. 3, 2.
find in a Country, II!. 3. 10. What Lands are, IV.
Joy; How, and how far, that Paſſion is Lawful, II. 4, 6. 3. How they take Poſſeſſion of them, ib. 9, 7. If
12. Malignant Joy for Miſchief which happens to a little is better than more, when Money circulates in
another, is contrary to Humanity, ib. 3. 1. Whether
a great Quantity, V. 1, 16. If 'tis for the Intereſt of a
the Joy one ſhews at the Wrong which one ſees done State to permit Subjets to bequeath their Lands by
to any one, obliges one to repair the Damage, III. 1, Will, IV. 11, 18.
Landlord ; In what Cafe the Lofs that happens to the
Foſhua; Whether the Oath which he made to the Gibe Tenant ought to be charg'd upon him, V.6, 2.
onites be valid, IV. 2, 7.
Languages ; °of their Original, IV. 1, 3. To what the
Judge ; He ought not to ſell Juſtice, V., 5. Whether Knowledge of divers Languages tends, II. 4, 13. It
he who pronounces an unjuſt" Sentence, but by order of is no matter in what Language a Contract is wrote,
his Prince, commits by that any Crime, VIII. 1, %. In provided the Parties underſtand one another, III.
what conſiſts the Equality which he ought to obſerve in 6, 16.
the Exerciſe of Juſtice, ibid. 3, 23. When it is that Latitude ; (Moral) In what it conſiſts, I. 2, 8, &c.
he can adminiſter the Oath to Parties, IV. 2, 22. Law; What it is in general, I, 6, 4. What difference
Whether he can uſe an Artifice to diſcover a Crime that there is between Law and Counſel, ib. f. 1. Between
is not proved, ib. I, 20.
it and a Compact, ib. ſ. 2. Between Law and Right,
Fuft ; Whether there was any thing of Juſt and Unjuft, ib. ſ.
3.
The eſſential Parts of a Law, ib. f. 14. Its
without the Eſtabliſhment of Civil Laws, VIII. 1, 6. Matter, ib. f. 16. and I. 8, 4. Its different forts, ib.
Juſtice ; Of the Juſtice of A&tions, I. 7, 7. Of that of ſ. 18. An Obligatory Law, and a Law of Simple Per-
Perſons, ibid. 1.6. Juſtice univerſal and particular, ibid. miſſion, ib. f. 15. If one ought to divide it into Di-
f. 8. Diftributive, ibid. f. 9. Commutative, ibid. f. 10. re&tive and Coa&tive, ib. I. 14. In what ſenſe the Law
Avenging or Vindicative Juſtice, VIII. 3, 5. In what aets, ib. and VII. 6, ul. It ought to be known by
conſiſts the Inequality which one muſt obſerve in the them for whom it is made, ib. f. 13. Who ought to
Exerciſe of it, ibid. I. 23. Its Exerciſe is capable of being explain the obſcure Parts of it, ibid. Imperfect Laws,
underſtood, both with relation to Clemency, and to ib. f. 14. Who thoſe are whom the Laws oblige, ibid.
Kigour, I. 2, 10. Whether Satisfaction to Juſtice be f. 17. Who can diſpenſe with them, and how, ibid.
a Natural End of the Puniſhment of Crimes, VIII. 3, Laws Affirmative and Negative, II. 6, 2. V. 12. 23.
Whether all Laws ought to be publiſh'd by Writing,
K.
1. 6, 4. and II. 3. 20. Caſes of Neceſſity are tacitly
excepted in Laws, II.6, 2. Why particular Cafes are
Kings; To whom it belongs to give the Title of King, not expreſs'd, I. 2, 5. Rules for the Interpretation of
VIII. 3, 9. If the Power of a King flows from Pater Laws, V. 12. An Oppoſition between two Laws,
nal Authority, VI. 2, 10. If a King is above all his I. 3, 8. V. 12, 23 The Cincian Law, I. 6, 14.
People, VII. 6, 5. If the People may depoſe their Civil Law; What it is properly, VIII. 1, 1. How they
Kings as they think good, ibid. 5, 9. The different ought to be made, VII. 9. 5. We muſt diſtinguiſh
forts of Promiſes Kings make at their coming to the two Reaſons upon which they are founded, VIII. 3,
Throne, ibid. 6. 12. How Important it is for the Good 17. If they can be contrary to Natural Law, ib. ſ. 2.
3:

VIII. 3, 4.

I 2.
An INDEX of the moſt Material THINGS, &c.
zb. 1.15
VII. 9, 5.
3. If the Nature of Crimes depends abſolutely upon
their Determination, ibid. Why they do not give all
M.
the Force of the Civil Law to all the Maxims of the
Law of Nature, 16. 1. 1. and ib. 3. 14. The Publick In- Madneſs; If it ſeizing a Man makes his Compacts null and
tereſt requires that their Rigour go ſometimes beyond void, III. 6, 3. if a Madman have any Right of Pro-
Juſtice, I. 2. 10. Neceſſity obliges us ſometimes to miti-
priety, IV. 4, 15. One may diſguiſe the Truth to him,
gate, or quite aboliſh them, Vill. 3, 17. They ought
to have been very few, before the Eſtabliſhment of the Magiſtrate ; What he is, I. 1, 12. VII. 2, 24. Magiſtrates
Propriety of Goods, IV. 4, 13. If the Conſent of the
ought to judge according to the Laws, Vill 3, 17. If
People be always neceſſary to make thein oblige the
they ought to puniſh Crimes, which they themſelves
Conſcience, I. 6, 13. How far they extend their Power
are guilty of, VIII. 3, 7. If they may uſe ſometimes a
with relation to thoſe who are ſimply in an Error, ib. Lie, IV. 1. 17. Their Conniyance is Criminal, I. 5.
3, 2.
When the Laws are extended to Cafes not ex 14. In what Caſes they may uſe Conniyance, VIII.
preſs’d, ib. f. 17. They ought not to be purely Penal, 3, 17.
VIII. 3, 4. Of Laws whoſe Prohibitions are Condi Majority ; What it is, I. 1,10 ib, 5, 1,
tional, ibid. How the Civil Laws ought to be made, Malice; In what the Malice of an Action confifts ib. 7. 3,
Man ; His Natural Weakneſs, 11. 1, 8. He is more
Laws; (Fundamental) What they are, ib. 6. 10. If a Prince wretched than the Beaſts, ib. c. 6. If he can be Socia-
can dilpenſe with them, VIII. 10. 3.
ble, and live without Laws, ibid. 1. If he naturally
Law; (Licinian) What it is, ib. 5.4..
loves Society, VII. 1, 2, He is liable to correct the
Law; (Mofaick, if it is the whole Rule of Puniſhment, Evils which trouble Society, ib. f. 4. If all Things
ib. 3, 26.
were created for Man, IV. 3. 2. If all Men have
Will
Law of Nature ; What it is, I. 6. 18. If its Principles be and Power to hurt one another, II 2, 6. What Right
innate, Ij. 3, 13. What is the Foundation of the Obli he has over the Goods of this World, IV.3, 1. If he is
gation which it impoſes, ib. ſ. 20. In what conſiſts its always in a State of War with the Beaſts, ib. f. 5. He
San&tion, 1. 6. 14. II. 3. 21. III. 4. 6. If it has not
ought not to abuſe the Right he has over them, and
the Force of a Law, as it is publiſh'd in the Holy Scrip why, ibid. If they have Power, to confer of them-
tures, II. 3. 20 If its Precepts are always in force,
felves, on one of their Equals, a Power fo Eminent and
IV.4, 13. If Equity has a place in its Interpretation, Abſolute, that it may exempt him from all Obligation,
V. 12. 21.
with relation to them, III, 8. If it be unjuſt for one
Law ; (Penal) What it is, VIII. 3. 16.
Man to puniſh another, VIII. 3, 6. What care Men
Law ; (Poſitive) What it is, 1. 6. 18. If there are Divine ought to take of themſelves, II 4. 1. They ought to
Poſitive Laws which oblige all Mankind, ib.
be Eaſy and Complaiſant one to another, IIC 2, 4. To
Law; (Rhodian) II. 6. 8.
do good to each other, ibid 3. 1. If ſuppoſing they
Laws ; (Sumptuary) How they are profitable to the State, had continued in a State of Innocence, they would
VIII. 4. 3. Their End is ſometimes Alternative, ib. have Eſtablih'd a Poſitive Law, or Civil Society, 1. 1. 11.
3, 4.
Mandate; See Commiſſion.
Leagues; See Alliances.
Market; Strangers which are permitted to come to Mar--
Legiſlators ; How they may be known, I. 6. 13. In what
kets, ought to be ſuffer'd to carry away what they have
Sence they may force Men to obey, iba f. 14. They can bought, III. 6, 2.
not ſpecify and foreſee all Chances, V. 12. 17. What Marriage; It is the Nurſery of Human Kind, VI. 1, 2.
Rules they ought to follow in the Determination of the
The Foundation of the Order of Civil Sociery, ib. f. 5.
Obligation to which they would give the Force of the
Irregular Marriages, or according to the faſhion of the
Civil Law, III. 4. 6. VÍII. 1, 1.
Amazons, ib. f. 9. The Laws of regular Marriage, ib.
Legacies (Pious) for reſtoring the Frauds and Thefts which
f. 10. Whether a Marriage be valid, when one has ſwore
have been committed, are contrary to Religion, II. 4, 4. not to marry him or her whom one eſpouſes, IV. 2, 11.
The Sovereign can preſcribe Bounds to Legacies, VIII.
Whether Conſent of Parties Conſtitutes Marriage, VI. I,
14. Natural Obſtacles which hinder Marriage, ib.
5.4.
Libels; They are Culpable who publiſh them, III. 1, 4.
1, 14. and f. 25. Moral Obſtacles, ibid. ſ. 27, Soc. Juſt
Liberality; The Excellency of that Vertue, ib. 3. 15. The
Reaſons of diffolving it, ibid. 21, Sc. It ought not be
Rules which all Men ought to follow in the Exerciſe of
broken without great Reaſons, not even by the Conſent
of the Parties, ibid. 5. 20. Whether one can be oblig'd
Liberty ; A Faculty of the Soul, I 4. 2. II. 1. 2. Its In-
to enter into an Engagement of Marriage, and how far,
difference, I. 4. 3.
ibid f. 3, 6, 7. Of forced Conſent or Error on the Sub-
Liberty ; (Independency) If that of the State of Nature be
ject of Marriage, ibid. 1, 26. Whether a Marriage a-
contrary to Nature, II. 2. 4. Why Liberty is calld an
gainft the Conſent of Parents be null, ibid. 2, 14. Whe-
ineſtimable Good, V. 1.5. There are two ſorts of Ob ther the Sacerdotal Benedi&tion be neceſſary by the
ſtacles to that Liberty, VII. 3. 10.
Law of Nature to finiſh the Marriage, ibid. 1, 4
Of
Lie ; Wherein it confifts, IV. i. 8. 9
Marriages of Conſcience, ibid. ſ. 36. How they annul
Life'; What uſe one ought to make of Life, II. 4. 15. If Marriages, or ſtrip them of certain Effe&ts, ibid
The
an active Life is preferable to a contemplative one, ib. 3. facility of Marriages is very uſeful to the State, VIII. 5,
15 and ib. 4, 13. In what Caſe it is permitted to ex-
3. Whether one be indiſpenſably obligʻd to permit
or facrifice it for the Advantage of another, ib. f. 17. Strangers to contract Marriages in our Country, IlI.
The Life of a free Perſon is not capable of Eſtimation,
3, 13
III. 1. 7.
Maſters; How far they extend their Power over their Do-
Loan; A Loan for ſpending, V. 7. 1, @c. What a Loan
meſticks, VI. 3, 4.
for Uſe is, ib. 4. 6. If a Loan for Uſury is cont
Mathematicks are uſeful Sciences, II. 4, 13.
Natural Law, VII. 7.9. What a Lender is oblig'd to, Mediator ; The difference which is between a Mediator
V. 4.6.
and a Perſon fimply charged to notify and declare the
Lot; A Deciſion by Lot is not always the Voice of God, Will of any one, Ill. 9. 4. Of Mediators of Peace, V.
ib. 9. 2. Why 'tis made uſe of, įíl. 2. 5. V. 9. 23. 13, 7.
Lottery; What it is, and what Conditions are neceſſary to Members of Human Body ; whether of themſelves they
make it lawful, ib. f. 6.
are capable of Eſteem, I11. 1, 8. What Power Neceſſity
Love;
When 'tis lawful, II. 4. 12.
II. 4. 12, Self-Love is the ſtrong gives us over our Members, II. 6. 3.
eft of all Inclinations, ib. 3. 14. Well underſtood it is
Members of an Aſſembly ; Whether they ought to be pủl-
one of the three great Springs of the Law of Nature, ib. niſh'd when they have adviſed any thing contrary to the
f. 15. and ib. 4. 1.
How far the Love of our Neighbour deliberation which had prevailid, VIII. 3, 28.
ſhould carry us, ib.5. 14. To love our Neighbour as our Merchant; How he ought to ſet a Price on his Mer-
ſelves, in what fenfe it is to be taken, ibid.
chandizes, V. 1, 10. Why an inſolvent Merchant is
Linexury; How it is Pernicious to a State, VIII. 5. 3. Means treated more Rigorouſly than a Debtor that does not
to make it ceaſe, ib,
trade, Ill. 7. 3. Whether one can ſometimes compel
the

it, ibid.

pore
ntrary to
An INDEX of the moſt Material THINGS, &c.
3, 6.
II.
f. 14.
1, 6.
6, 7.
one
upon ſome
, ,
the Merchants to feli their Merchandizes or Wares, V.
Nature ; The Excellency of it does not ſuffice for giving
a Right to impoſe any Obligation upon another, 1.6,
Merchandize; the loſs of it fold but not delivered, upon
his account, whoſe it is, ibid. 5. 3. Whether one has a Nature; (Human) Its Constitution is the Foundation of
Right to Tranſport his Merchandizes through the Lands
the Law of Nature, II. 3, 14.
of another, III 3, 6. Whether one can eſtabliſh the
Natural; What Force it has with Relation to the Pro-
Rights of coming in, and going out, upon Merchandizes
duction of Moral A &tions, 1.4, 5.
or Wares, ibid. f. 7. Upon what foot one ought to re Naturally; The Senſe which that Term has ſometimes,
gụlate thoſe Rights, VIIL 5, 5.
V. 3. 10.
Merit of a Perſon; What is its Foundation, II. 4, 7 One Nakedneſs; Whence comes the Shame of Nakedneſs, VI. 1.
cannot preciſely mark the degree, I. 2. 10. It is the
30, 31.
only reafonable foundation of Fifteem and Honour, Neceſſary ; That which is Phyſically ſo, cannot be imputed
Vill. 4, 12. It however does not ſuffice for giving a to any one, I. 5,6.
perfe&t" Right, to require the Marks of•Honour, ib. Necesity; There is an abſolute and a conditional Necelli-
ty, 11. 3. 4. In what the Priviledges of Neceſſity con-
Merit of A&ions, What it is, and what is its Foundation, lífts, and what is its Foundation, ib. 6. 2, &c.
1. 9.5.
Negligence ; How many ſorts of it there are, I. 7, 16. It
Metals, which are proper for Money, V.1, 12. To whom does not diſpenſe with repairing any Damage. III.
they belong which are hid in the Entrails of the Earth,
IV. 6, 4.
Nephews; In what order Nephews, both by the Father's
Mine and Thine ; Whether it is the Cauſe of Diviſions and and Mother's ſide, come to the Succeſſion Abintefiate, IV.
Wars, ib. 4, 7.
I', 17.
Minors; Whether the Engagements of a Minor be always Neutral ; To what Neutral Nations are obliged, VIII.
invalid of themſelves, ibid. 2. 11.
Whether he who
borrowed without the Approbation of his Tutor be o News; Whether, one can ſpread falſe News to raiſe the
blig'd to pay, 111. 4. 5,
caft-down Courage of the Soldiers, IV. 1, 16. Whether
Minifters (Publick) of the State or the Prince, VII. ther one can fometimes be Reſponſible for the Evil
2, 24. Their Duties in general, ib. 8. 10. What Per which falſe and uncertain News, which one has ſpread,
ſous the Sovereign ought to chuſe for his Miniſters,
cauſes, ib [.8.
ibid. 9, 9. How knows when they act in his Nobility is not a thing which belongs truly to us, VIII.
Name and in his Authority, I. 6, 13. Whether a fim.
4, 17. Nor a
Nor, a Natural Title of Diſtinction, ib. f. 25.
ple preſumption of the Will of their Maſter Autho.
Its Rights depend only upon the Inſtitution of the
rizes them to exceed his Orders, VIII. 6, u. Whe Laws of every State, ib. f. 26. They ought notwith-
ther to avert å great Evil with which the State is Me-
ſtanding, and are even ordinarily founded
naced, they are bound to Expoſe themſelves to any Merit, "ib. ſ. 27. The Hiſtory of the Original, and
Diſgrace, ibid. 4, 10. To what they are Revolutions of Nobility among the Romans, ib. ſ. 28,
obliged who have concluded any Publick Treaty, 29. In what it conſiſts now among moft of the Na.
without Orders of the Prince or State, ibid. 9, 12. tions of Europe, ib. f. 30. The too great Multipli-
Means to avoid Conteſtations for the Precedency be cation of Nobility is contrary to the Grandeur of a State,
tween the Miniſters of many Potentates, ibid., 4, 21.
Miniſters of Religion, their Duties in general, VII. Novation ; What it is, and how
many
8, 10
I1, 15
Modes; What it is, and how many ſorts there are, I. 1, 3. Nouriſhment ; What they mean by that, IV. 11, 5.
Simple moral Faſhions, ibid. f. i7.
Moderation of Soul ; One ought to procure one's-ſelf that,
O.
II. 4, 6
Monks; Their Life is of it ſelf contrary to the Law of Hu Oath; What an Oath is, IV. 2, 2. Its Uſe, its Significati.
manity, Ill. 3, 2. The greateſt part, even of their So-
on, and its inviolable San&tity, ibid. It ought to be in.
cieties, do not agree with the Maxims of Religion and
terpreted conformably to the Religion of him that takes
Right Reaſon, II. 4, 4, 15:
it, ib ſ. 4. In what ſenſe the Intention of ſwearing and
Monarchy ; What it is, and how it is formed, VII. 5, 3. 9. engaging is requiſite, ib. f. 5, 15. Obligatory Oaths,
In what ſenſe the Will of the King is in a Monarchy ib. I. 19. If in theſe ſorts of Oaths the Obligation of
the Will of the State, ib. 2, 14.
an Oath is diſtinct from the Engagement ot it, ib. f. 6.
Monarch; Whether there are Monarchs for a time, ibid. The Inter poſition of an Oath doth not render an A&tion
6. 14, 15
valid which is null of it fell, ibid. A poſterior Oath
Money ; Its Original and Uſe, V. 1. 2, 13. Whether it doth not annul a Convention which is otherwiſe valid,
Whether
was in the time of the Trojan War, ib. s. 1.
ibid Error and Fraud, as well as Fear, annul Oaths, ib.
it is little worth in its own Nature, ib.
How So-
8. Every Oath which regards a thing unlawful, or
hinders a greater good is nuli, ib. f. 9, 10. An Oath
fick Value if ſubject to Change, ib, f. 16. Whether in
doth not change the nature of things to which one adds
reſtoring things' lent for Conſumption, one ought to it, ib. 1, 11. It excludes all perplexing Tricks and vain
have Regard to the extrinſick or intrinſick Goodneſs of
Subtilty, ibid. f. 12. But not Conditions and tacit Re-
the Money, ib. 7. 6. 7.
ftri&tions, ib. f. 14. The Words of an Oath ought to be
Monopoly ; Wherher all Monopoly be contrary to the Law underſtood in the ſame ſenſe as he that takes it under-
of Nature, ib. 5. 7.
ſtands them, ib. f. 15. How one may defer or refer an
Mortgage; What it is, ib. 10. 16.
Oath, ib. f. 21. If the Violation of a part of the Engage-
Muleteer ; How he is reſponſible for the Damage caus’d by ments to which a Man was entred, by one and the ſame
his Mules, III. 1, 7.
Oath, makes him guilty of Perjury, ib. f. 23. How one
Multitude; The difference which is betwist a Multi-
one is diſpenſed with, or diſcharged from an Oath,
tude and a People, VII. 2. 14. What it is, ib. f. 6. by a Superior, ib. f. 24. Oaths made in the Name of
I's Approbation is oftentimes à Mark of Error, ib. a Perſon abſent, ib. f. 16. What Oath of another
Man one is obliged to keep, ib. 5, 17. If one may de-
Mutilation ; One can to avoid it defend Ones-ſelf fo far
fer an Oath in Matters of Criminal Cauſes, VIII. 3, 4.
as to kill the Agreſſor, II. 5, 10. How one ought to be If a King may diſpenſe with keeping Oaths, ibid. 10
recompenſed, III. 1, 8.
5.
Obligation ; What it is, I. 1, 21. ib. 6, 5. What is that
N..
which makes capable of Obligation, ib. f. 6, and ſo
on; Its Vertue of what one can impoſe any thing up-
Names; To whom it belongs to impoſe proper Names on another, ib. f. 9. Why one cannot enter into an
upon another, IV. 1, 4. Whether it be permitted to Obligation with Ones-ſelf, ib. f. 7. Whether the In-
change a Name, ib.
preſlions which an Obligation makes upon the Conſci-
ib. f. 31.
forts there are, V.
7. 10.
{.7
[ 15.
ence
An IN DE X of the moſt Material TH IN GS,
&c.
ib. f. 13.
ib. 4, I.
4, 4
IV. 5, 9.
I 2.
4, II.
ence diminiſhes any thing of natural Liberty, ib. 4, 8. particular People don't make an Example for the
ib. 6, 5. Obligation exterior and interior, ib l. 6 Na Rights of a Natural State, II. 3, 10. There is no
tural and additional Obligation, 1 I. 4, 3. Natural and People which is entirely condueted by the Laws of Na-
Civil, ib. f. 5, 6. Perfc&t and Imperfect, I. 7, 7. Per ture, ib. f. 9.
petual and for a time, III. 4,-7. "Reciprocal and not People ; (Common) Whence comes that Facility that the
Reciprocal, ibid [ 8. V. 12, 2.3. Obligations con Common People have to diſcern Juſtice from Injuſtice,
tracted by an Attorney, III. 9
The want of ſatis-
fying an imperfect Obligation, does not engage one Perfection; A Man ought to endcavour his own Perfection,
to repair the Damage, ib 1, 4. The juft Meaning of
thoſe which one contraês voluntarily, V. 12, 2. The Permiſion; There are abſolute and imperfect Permiſſions,
Obligation appointed to a certain State of Life can be 1. 6, 15. ib. 7. 2.
The Permiſſion of Human Laws
drawn from many diftinct Principles, I. 1, 11. What
does not hinder a thing froin being contrary to the
Legiſlators have '
Regard to, in determining the Obli Divine, ibid, and VIII. 1, 3. How the Permiſſion of a
gations, to whom they give the Force of the Civil Law, Crime makes a Man Partaker in it, I. 5, 14.
III. 4. 6.
Perſecutions ; For the Cauſe of Religion are Criminal, II.
Oblige ; In how many ways one obliges Ones ſelf for
another, V. 10, 9.
Perfon; What a Moral Perſon is, I. 1, 12, The Rights
Occaſion ; What they mean by, that, I. 4
2. ib. 5, 5.
and Advantages of a Moral Perſon, ib. ſ. 13, 14.
Whether he who gives Occaſion to a thing, is always Feign'd Perſons, ib. f. 15. Free Perſons cannot be
the Cauſe morally ſpeaking, ib. f. 3.
taken for a Reward of Money, V. I, 5.
Ocean ; Whether the great Occan be capable of Propriety, Petitory ; What it is, ib. 13, 6.
Philosophy; Wherein it conſiſts according to Platö, VIII.
Odions ;
What it is in the Stile of the Law, V. 12, 4, 14.
Phyſick; The Uſe of that Science, II. 4, 13:
Offended Perſon ; What he ought to do when the Offender Place; What is meant by a trong fortify'd place, V.
makes Shew of repenting, II. 5, 3. V. 13; 1.
10. 4. How long a Commander ought to defend it,
Ofices ; Good Offices ought to be reciprocai
, ill. 24. VIII. 6, 10. When a Man may ſeize on a Place in his
Oligarchy ; What it is, VII. 5, 11.
own Country, II. 6, 8.
Olives; One muſt leave to the Poor, thoſe which remain Places of Honour ; How a Man may order Places of Honour
after one has ſhaken the Olive-trees, IIl. 3, 4.
to avoid Conteſts, VIII. 4, 21, 22.
Every Place is
Omillion ; When it is that the Omillion of a thing can be Honourable, where a Man finds himſelf posted for the
laid to one's Charge, I. 5, 5.
Defence of a State, ib. f.23.
Opinion ; What Opinions are contrary to Religion, II. 4,
Pleaders at Bar; Their Duties, V. 11, 6.
4.
To Pleaſe ; Who it is that a Man may be glad to pleaſe,
Orders ; (Command) Whether one can change or ex-
VIII. 4, 12.
ceed one's Orders, V. 4, 5. Secret Orders and known Pleaſure ; How a Man may ſeek after it innocently, II.
Orders, the Diftin&tion which one muſt make to that
What Pleaſures are the moſt lively in ali Crea-
Regard, III. 9. 2 Whether one can ſometimes inno tures, VI. 1, 1.
cently exceed the Orders of a Superior, VIII. 1, 6. Plants; They follow the ſoil in Caſe of Acceſſion, IV.
Oſtraciſm ; Honourable Puniſhment, ib. 3. 25.
7, 5
Outrages ; Wound the natural Equali'y of Men, III. 2, 7. Plebeians; What they were among the Romans, VIII. 4,
28.
P
Pledge ; What it is, V. 10, 12. If one Man may give
himſelf as a Pledge for another, 11. 4, 8.
Pafts ; See Contracts.
Poefie ; What it is, and of its Uſe, ib. f. 18.
Pagan's believed the Gods to be Authors of the Law of Point of Honour ; The Vanity of it
, VIII. 4, 8.
Naturc, II. 3, 20. The Deſcription which the Pagans Pond; To whom the Fiſh in it do belong, IV.6, 11.
made of the Life of the firſt Men, ib. 2, 2,
Polygamy; It is contrary to the Law of Nature, VI. 1,
Pardon ; Whether the Sovereign can give it ſometimes to
Criminals, VIII. 3. 15.
Portions ; What is meant by equal Portions in the Diſtri-
Parole ; Its Original, IV. 1, 3. Its natural Uſe, ib. f. 1. bution of an Inheritance, IV. 11, 8.
How it is that words ought ordinarily to be explain’d, Popelor; In whar the Right of the Popesor of another
V. 13, 3:
Man's Eftate upon Truſt conſiſts, ib. 8, 5.
Parting ; Rules which one muſt follow in the parting Pofjellion; What it is, ib. 9, 7. Natural or Civil, ibid.
things between many Perſons, who have no more right How it is interrupted, ib. 12, 4.
the one than the other, III. 2, 5.
Pofts; How a Man ought to allign perilous Poſts, VIII.
Partners ; See Aſſociates,
2, 4
Particular Perſons ; In what Cafe they can defend them- Poftliminie ; What it is, ib. 6, 12. If this Right is for
felves without attending the Help of the Magiſtrate, thoſe who had been deliver'd by the State and accepted,
VIII. 6, 8 How far the Conventions which they
ib. II, 9.
make of their own Head with the Enemy have Force, Power; What Power (Moral) is, and how many ſorts
ibid. 7. In what Caſes they can do themſelves Juſtice there are of it, I. 1, 19. In what the abſolute Power of
for certain Crimes, ib. 3, 13.
Sovereigns conſiſts, VII, 6, 7. If the abſolute Power
Parts ; (Natural) What Uſe of thoſe Parts is contrary to of a Princedoes of it ſelf give him the Precce
the Law of Nature, VI. 1, 4.
dency over another Prince whoſe Power is limited,
Patricians; What they were among the Romans, VIII. 4, VIII. 4, 19. The Power of making Taxes, VII. 4, 7.
28.
Judiciary Power, ib f. 4. The Power of making War
Pawn; What it is, V. 10. 13. Its different forts, ibid. and Peace, and of contra&ting Alliances, ib. f. 5. The
Power of eſtabliſhing Magiftrates, ib. f. 6. The Power
Pedantry ; It is a Vice of the Mind, and not of the Pro of inflicting Puniſhments, ib. f. 3. Legiſlative Power,
feflion, II. 4, 19:
ib. 1. 2. The Power of examining Doctrines, its juſt
People ; In what fenfe a People is immorral, VIII. 12, Bounds, ib. f. 8. Power is not the only Foundation
17. Whom the Oath of a People obliges, IV. 4, 17. of Honour and Authority, I. 6, 10. VIII 4, 13. 18.
If Preſcription hath place amongſt a People, ib. 12, 11. If the Suſpicion which a Man takes from the Power
If the Change of Inclination which happens to a People, of his Neighbour, is ſufficient to give him Right to
authorizes it to ſhake off the Yoke of a lawful Prince, attack him, II. 5, 6. VIII. 6, 5 The Law of an in.
V. 11, 13. VII. 6, 6. How it is diſengag'd from its ferior Power gives place to thoſe of a ſuperior Power,
Obedience to its Sovereign, ib. 7, 5. How the Form of V. 12, 23. What is the Foundation of paternal Power,
à People is deſtroy'd, VIII. 12, 9. How it is again VI. 2, 1, drc. How far it extends, ib. f. 1, EC. If it
reitor'd, ib. 6, 23 If its Confent is always neceſſary can be transfer'd to another, either wholly or in part,
ibid. f. 9.
How it haih besn taken or bounded in civil
to give Laws the Force of obliging in Point of Con-
ſcience, I 6, 13. The barbarous manners of ſome Societies, ib. ſ. II. How it ends, ib. f. 13,
Х
Power
1), foc,
1. 14.
An INDEX of the moſt Material THINGS, &c.
4, 1.
I, foc.
21.
Power (Phyfica!) does not always imply a Moral Power, III. of Promiſes, III. 7.
The different Caules which are
5, 3. IV. I, io.
capable of making them void, III. 6, 3, 6996. What
Prayer; The Impiety of thoſe Prayers which Men make acceptation is neceſſary to render them Irrevocable,
to deſire God to ſend Evil to their Neighbours, and to ibid. f. 15. If a third may accept a Promiſe, ibid. 9,
implore the Benediction of Heavens, or to give God 5. If this acceptation may be made by Heirs, ibid.
Thanks for advantageous Succeſs in an unjuſt War, II. f. 6. If a Man may add any burthenſome Condition
4, 4
to a Promiſe already accepted, ibid. [ 7.
Of Proo
Preſcription; What it is, IV. 12, 12. In what things, miſes made by the mediation of a Solicitor, ibid.
and at the End of what times it hath place, ibid. Ne f. 3, 4. Abſolute and Conditional Promiſes, III. 8, 1.
ceflary Conditions to make this Right lawfully prevail, Propagation; How Propagation of Mankind ought to be
ibid. f. 3, 4. Why it was introduced, and what is the
made, VI 1, 5:
Foundation of it, ibid. l. 5, &c. If it hath place amongit Propriety (of Goods) is a Moral Quality, II,
16. IV.
different Nations, ib. fi..
What it is, ibid. f. 2.. The different forts of
Precedency; Upon what its Kight is founded, VIII. 4, Propriety, ib. ſ. 22 The End of the Eſtabliſhment of
15, @c. A Man may have Precedency in one place and Propriety, 11. 6, 5. In what ſenſe it is from Natural
not in another, ib. f. 22.
Law, iv. 4, 14. What Qualities a thing ought to
Preſents ; Some are injurious, III. 2, 7. The Preſents have to be Capable of Propriety, ib. 5, 1. What Per-
which a Man makes of things that he doth not care for, ſons are Capable of enjoying ſome Right of Propriety,
are but ſottiſh and ridiculous Liberality, ib. 3, 3. V.7 ib. 4, 15. Duty as to the Propriety of Goods, ib. 13, 1.
Protektor ; He who makes himſelf Protector of a Crime is
Princes ; The Duty of Princes (ſee Sovereign and King) Reſponſible for the Damage which proceeds from it,
as they are Men, and as they are Sovereigns, VII. 8, 4.
III. I, 4.
It is eaſy for them to ſtrengthen and preſerve their Do Prudence; What it is, l. 2, 4. If it comes only from
ininions by juſt ways, ibid. 2, 10. The Maxims which Experience, lIl. 2, 2. A Man ought always to act
they ought to follow in the Diſtribution of Ho-
with Prudence, II. 4, 6.
nours and Recompenſes, and in the Government of Puniſhment; What it is, VIII. 3, 4. To what ſort of
places amongſt their Subjects, VIII. 4, 23, 31. How Justice it relates, ib. f. 5. To whom it belongs to
they may diſpoſe of the Goods of particular Men, infli&t it, ib. f. 7. What is the End of it, ib. f. 8. If
ibid. 5, , 7. And of publick Goods, as well thoſe it hath place amongſt thoſe who live in the Indepen-
of the Demeln of the State, as thoſe of the Demeſn of dence of a Natural State, ib. ſ. 2 All ſorts of Sins
the Crown, ibid. f. 8. How many ways
Princes
may
be
are not ſubject to the human Tribunal, ib. f. 14. The
injurious to their Subjects, vil. 8, 4. Of Prece Proportion of the Puniſlıment to the Crime cannot be
dency amongſt Princes, VIII. 4, 15.
How they may
exa&tly determined, I. 2, 10. They do not infli&t
meet without having any Diſpute of their Paflage, ib. 6, Puniſhment upon the ſame Crime twice, ibid. 9, 6.
What Rules à Man ought to follow in the preciſe
Priſoner ; What evil a Man may make a Priſoner fuffer, Determination of the Nature and Degree of Puniſhment,
who is not yet either Condemned or Heard, ibid. 3, VIII. 3, 23, Erc. A Man is not ſecure from Pue
4. If only becauſe a Man holds him Captive, he is niſhment, tho’ he have repair'd the Damage, III, I.
thought Maſter of all his Goods, without excepting 6. If Puniſhment can wholly be inflicted upon many
thoſe which he himſelf hath not in his own Hands, Perſons who have concurr'd in the ſame criminal
ibid. 6, 29. If he who hath been releaſed upon con Action, ib. f. 5. If Legiſlators are obliged to govern
dition of not ſerving againſt the Enemy, may be con themſelves, in the Determination of Puniſhments, ac-
ſtrained by the State to break his Promiſe, ibid. 2, 2. cording to what the Law of War permits in the In-
If he is obliged in Conſcience to come and put him dependenee of a natural State, II. ;, 17. The natural
ſelf into his Enemies Hands, when the condition upon Puniſhments of Sin, ib. 3, 21,
which he was releas'd, is nor fulfilled, ibid. If he who
eſeapes re-enters into the Poſſeſſion of all his Goods,
Q.
and all his Rights, ibid. 6, 22. The Conventions
which concern Priſoners of War, are a moſt favourable Quality; The different ſorts of Moral Qualitics, I. I,
Cauſe, ibid. 7, 12.
17. The particular Qualities of a Perſon are ſome-
Price ; What Price is, and how many forts there are of times a lawful Reaſon for pardoning him a Crime,
it, V. 12, &c. What is the Foundation of
intrinſical Price, ibid. f. 4: The Price of Things and Quantities ; The different ſorts of Moral Quantities,
A&tions is capable of a great Extent, I. 2, 10. What 1. I, 12. V. 1, I.
is the Reaſon there's no Price bound to certain
pro. Queſtions ; Why they make uſe of an Oath in Que-
fitable Things, V. 1, 5. What it is that
itions of Fact, and not in Queſtions of Law, IV.
diminiſhes the Price of Things, ibid. f. 6. The Price
of Inclination, ibid. f. 7. Legitimate Price, or Price Quit ; When a Debtor is quit, V. 11, 7.
ordain'd by the Laws, ibid. 1. 8. Ordinary or current
Price, ibid.' f. 9. The Meanneſs of Price is ſufficient
to demand an Indemnifying, or to Annal a Contract,
Rahab ; It ſhe did well to hide the Spies of the Iſraelites,
Privation does not conſtitute the Eſſence of a Thing, I. 7, and why, IV. 1, 16.
5
Rape; A Young Woman, to avoid a Rape, may kill
Privileges ; When a Man may revoke Privileges. Sec him who endeavours to force her, 11. 5. 11. Rapes
Immunities, VIII. 10, 9. A Man may renounce his ought not to be permitted in War, VIII. 6, ?.
Privileges when he can do it without Prejudice to a third, Rarity; It contributes very much' to raiſe the Price of
II. 5, 2.
Commodities, V. 1, 6.
Profit;'If a Man may never make any Profit of another's Reaſon; How one knows if a Maxim be agreeable or
Piſprofit, IV. 13, 6.
not to Right Reaſon, II. 3, 13. Its Light can diſcover
Promiſes; There are perfect Promifes, and imperfe&t the Foundation of Natural Right, ibid. If its Max-
Promiſes, III. 5, 6, 7. If a plain ſimple Promiſe ims alone impoſe any Obligation, ib. ſ. 20. The Uſe
obliges in point of Conſcience, ibid. f. 9, doc.
of Reaſon is abſolutely Neceſſary to give a true Cona
Promiſe without a Cauſe obliges, ibid. If all forts ſent, Ill. 6, 3.
of Incommodities and Damages have the vertue of Reaſon of State ; What it is, VII. 9, 3.
excuſing a Man from keeping his Promiſe, V. 12, 22. Reaſon of Law; What it is, V. 12, 20.
Promiſes of that which is already engagéd to ſome Rebels ; If a Treaty of Peace made with Rebels is valid,
other Perſon are null, II. 7, 11. And thoſe which
VIII. 8, 2.
are made of another's Goods, or of what depends on Recompenſe ; What it is, 1. 9, 5. When a Man has fuli
another, ib. f.10. If every Promiſe includes the tacit Right to demand a Recompenſe, ib. f. 3. There are
Condition, fuppoſing the Things remain in the ſame Natural Recompenſes of Vertue, and Arbitrary Re-
State or Condition, V. 12, 20. The lawful Matter
compenſes, II. 3, 21.
Refugees
proper and
VIII. 3, 17.
augments and
2, 18.
R.
ib. 3, 9,
If a
.
An INDEX of the moſt Material THINGS, &c.
2, 2.
22.
7, 12
3, 21.
f. 13.
10.
Refugees; if one ought to give a Retreat to Refugees, lII. Sages; If Sages have Right of exacting to the Rigour,
3, 10. If one is always oblig'd to deliver
up
thoſe which that thoſe which are leſs Wife and Provident than
are accus'd of any Crime, VUI. 6, 12.
they ſhould put themſelves under their Directions, III.
Refuſal; The blaineable Eaſineſs of thoſe who cannot
give a Refuſal to any one, III. 5, 10.
Sale; What a Sale is, and when it is accompliſh'd, V. 5.
Regents; The Authority of the Regents of a Kingdom da. 2. Of forc'd Sales, ibid. 3, 6. Of thoſe where a Man
ring the Inter-regnum, VII. 7, 8.
runs a Hazard, ib. f. 6. Of whole Sales, ibid. If in a
Relapſes; Frequent Relapſes aggravate a Crime, VIII. 3, Sale Men may deceive one another in Regard of the
Price, ib. f. io.
Religion ; The Opinions contrary to Religion, II. 4, 4. Salary; What it is, I. 9, 5. II 3, 21. V 6, 1. If one
The Sovereign may limit the Liberty of conſecrating may demand the Salary he had given for the Commiſſion
certain things to the Uſe of Religion, VIII. 5,4.
of a wicked A&tion, ill. 7, 8.
Render ; The ſenſe of that Maxim, That a Man ought to San&tion of the Law; What it is, I. 6, 14. Penal Sanctio
render to every one his own, ib. 3; 15.
ons are ſometimes Alternative, VIII. 3, 4. In what
Rents; Appointed according to the Price of Money, V. the Sanction of Natural Law conſiſts, l. 6, 14. II.
See more in Hiring.
Repentance; There is no true Repentance without Re. Satisfaction to Juſtice is not one of the Natural Ends of the
ftitution of what a Man hath taken unjuſtly, III. 1, Puniſhment of Crimes, VIII. 3. 12. The falſe Not:-
6.
ons of the Satisfaction of Jeſus Chriſt are contrary to Re-
Repreſentation ; What the Right of it is in caſe of Suc ligion and Morality, II. 4, 4.
ceſſion, and what is the Foundation of it, IV. II, 12. Scandal ; (Receiv’d) What it is, I. 5,3.
It hath no place in the Line of Aſcendants, ibid. Sciences; Some are profitable, ſome are curious, and ſome
vain, II. 4, 13. How one ought to ſtudy them, ibid.
Reprimands; Of an Equal to an Equal are not permitted Thoſe which teach a Science ought not to conceal any
but amongſt Friends, VIII. 3, 10.
thing that has relation to it, IV. 1, 7.
Reproaches of ſome Corporal Infirmity are abſurd and un Schools (Publick) are Neceſſary in a State, VII. 9, 4.
juſt, I. 5, 7.
School-mafter ; He has Right' to uſe moderate Corre&tion
Republick ; If all Alliances made with a Republick are towards the Children, which are under his Direction,
real, VIII. 9, 6. Moſt important Maxims for maintaine
Vill. 3, 10.
ing a Republick, V. 7, 9.
Scruples ; How a Man ought to cure himſelf of them, I.
Reputation ; What Care one ought to have of his Reputa 3, 9
tion, II. 4, 9.
Sea ; Of the Dominion of the Sea, IV. 5, s.
IV.5, s. Soc.
Reſervations ; (Mental) How ridiculous and abſurd they Secret ; If one may diſpenſe with communicating to others
are, IV, 1, 14.
an innocent Secret and profitable to Mankind, 11.3,
Refiftance ; Interpretative, or preſumed, Reſiſtanee, 1. 4. Eſpecially when he has taken an Oath not to diſcover
it, IV. 2, 10.
Retaliation ; (Law of) If one ought always to follow it, Seller ; His Engagements towards the Buyer, V. 5,5. He
VIII. 3,27
ought faithfully to diſcover the Defects of his Merchan-
Retention ; The Right of it, V. 11, 6.
dize, ib. 3, 2. See more in Buyer.
Retreat ; He who gives a Retreat to Evil-doers is as Guil Sentinel ; He is Reſponſible for the Damage occaſion'd by
ty as they themſelves, I. 5, 14. If a Man may ſometimes Fire happenning through his Inadvertaney, 1. 5. 14.
fall
upon his Sovereign for giving a Retreat to one who Separation ; If that of Body and Goods, the Pond of Mar-
has injured him, VIII. 6, 12.
riage ſtill ſubſiſting, is conformable to Natural Law, VI.
Revenge ; Simple Revenge is condemn'd by the Law of
I, 22.
Nature, II. 4, 12. ib. 5. 3. The Satisfa&tion which 2
Sepulture ; If one may refuſe Sepulture to thoſe that die
Man finds in it, is but an imaginary Good, VIII. inſolvent, V. 10, 12.
3, 19. How Ridiculous that is, that propoſes to it Services ; Of innocent Profit, II. 3, 3. If one may exact
ſelf the Death of the Offender, ib. f. 23. Particular Payment of one for Services which turo to the Advan-
Revenge is permitted in ſome States, and why, ibid.
tage
of many, V.6, 4. Services done to a State, by a
f. II.
Criminal, or even his Anceſtors, may ſometimes obtain
Revenge ; Why the Law of Moſes gave the Revenger of him his Pardon, VII 3, 16.
Blood Permiſſion to kill, out of the Bounds of the Servitude ; If God is the immediate Author of it, Vil 3,
Aſylum, hiin who had fled thither for Refuge, III. 1, 3. Its Original and Extent of Power that it gives to a
Maſter, ib. f. 4.
7.
Right; The Right of holding in Fee, IV. 8, 3. Diffe-. Sexes ; Why God hath eſtabliſh'd the Difference of Sexes,
rent Senſes of the Term Right, I. 1, 20. The Senſe of V. 1, 2. There are fome Foundations of Honour which
the Maxim, That he who uſes his own Right does not are common to both Sexes, and others which are parti-
injure any one, !: 5.3. VIII. 3, 31. If one ought al.
cular to one, VIII. 4, 12.
ways to grant others the fame Right, that he has him- Siege ; If in a Siege one may pull down the Houſes of
ſelf, III. 2, 4. In what ſenſe Right is the ſtrongeſt Will,
ticular Men, ib. 5, 7.
1.6, 12. In what the transferring a Right conſiſts, III. Signs ; There are Natural Signs, and Signs of Inſtitution,
5. 2, Sec. How the Right over Perſons and Things is IV. 1, 2. Wherein Signs of Conſent conſiſt, III, 6, 16.
acquired, ib. f. 4. Negative Right, IV. 9,7. Perſonal Without theſe, internal Action hath no Effect of Right,
or Real, VIII. 6.4. Perfe&t and Imperfect, I. 1, 19. ib. IV. 12, 28.
7, 7. in what ſtrict Right differs from Equity, ib. 2, 8. Silence ; In what a Man is oblig?d to keep Silence, ib. 1, 7.
See more in Law.
When it is Criminal, ibid. and 1. 5. 4. V. 3, 4. How
Riches ; How one may ſeek Riches innocently, II. 4, one ought to interpret the Silence of the Law, 1. 6. 15.
Long Silence is not ſufficient to make one preſume,
Rivers ; The Uſe of Rivers ought to be Common, III. 3, that a Man abandons his Goods, or Right, IV. 12. 8.
4. To whom they belong properly, IV. 5, 3. If Additi If upon the Silence of a Sovereign, one may preſume,
onal Lands go to them whoſe Banks Rivers augment, IV. that he ratifies a Treaty concluded without his Order,
7,11. If they improve in like manner private Eſtates,
ib. f. 12.
Simony ; What is is, V. 1, 5.
Robbers ; They are wholly infamous, VIII. 4, 5. If an Sin; How many things include the Idea of Sin, Vill.
Oath is Obligatory in Reſpect of them, ibid. ſ. s, &c 3. 2. Why it is compar’d to a Debt, ib. f. s. If Sins
III. 6, 11.
of Weakneſs are truly Sins, I. 5. 8. If alí Sins are
Robbery ; Amongſt whom it paſſes for an Honourable Pro Puniſhable at a Human Tribunal, v!ll. 3, 14. The
feflion, II. 2, 10.
Limitation of that Maxim, That thoſe who induce on
thers to Sin, fon themſelves, ib. 6, 16. If the Natural
S.
Conſequences of Sin are initead of Puniſhments, ib.
par-
10.
VII! 9, 13.
3, 40
Sacrifice ; What is meant by Sacrifice, V, 12, 7.
Sinners
An INDEX of the moſt Material TH IN GS, &c.
17.
ibid. 10.
А
us, ibid.
to
10.
Sinners ; Charity docs not permit is to deſpair of Sinners Stratagems are permitted towards an Enemy, IV. 1, 12.
Amendment without great Reaſons, VII. 3, 10
VIII. 6, 6.
Sifters ; In what Order Siſters ought to ſucceed, IV. 11, Subjecis ; Their Duties, See Citizens. if the state may
do them an Injury, ib. 8. 2. The unjuſt Complaints
Slavery, VI. 2, 3. In what its Inconveniences conſiſt, 16.
that they may fonietimes make againſt their Sovereign,
f. 10. What is the Original of it, ib. f. 4, 5. If there ib. f, 3.' They can promiſe nothing to the Prejudice
is any who is Naturally a Slave, 111. 2. 5. The Condi of bim, 111.7, 1. How the Sovereign may deprive
tion of Slaves is vile and diſadvantageous in many States, them of the Right they had got by Contract, VIII. 10.
VIII. 4, 6. In what ſenſe they make a part of their 7. How they may have an A tion at Law againſt their
Maſter's Goods, VI. 3. 7. If one may do them an Inju Prince, Vil. 6. 2. Vill. 10. 6. How far their Goods
ry, ib. f. 8. What is the Condition of the Children, ib. are in the diſpoſal of their Sovereign, ib 5. 1, Egoc. The
i. ... What is the Foundation of the Obligation of a Diſpoſal of places amongſt them depends upon their so-
Slave made by War to his Maſter, ib. f. 6. How a Slave vereign, ih. 4, 23. If they may ſometimes reſiſt their
is deliver'd from Servitude, ib. f. 11. If a Maſter is Re. Prince, VII. 8. 5.
(pontible for the Damage caus'd by his Slave, III. 1, 6. Succeffor: How he is obligd to the Contracts, Treaties,
The Right of having the Service of another's Slave, and other Engagements of his Predeceſſors, VII. 9. 8.
IV. 8. 10.
The General Foundations of Succeſſions
Sociability is the Foundation of Natural Law, II. 3, 15. Abinteftate, IV. i. 1, 2. Succellions by Heads, and
Man is diſpenſed with for not practiſing the Laws of Succeffion by Pedigree, ib. 6, 12. and 11. 2. The diffe-
Sociability toward them who violate 'em in regard to rent Ways that Succeſſions are rul'd by the Civil
Laws, ib. f. 18. Of Succeſſion to Patrimonial King-
Societies are Simple and Compound, VI. 1, 1. Society in doms, VII. 7, II. Of Succeſſion to Kingdoms eita-
general which is betwixt all Men, muſt not be confound bliſhed by the free Conſent of the People, and of the
ed with particular, II. 3, ! 7.. How one ought to rule different forts of them, ib. ſ. 12, c. What ought
himſelf in the Diſtribution of Advantages and Charges decide Diſputes in ſubject of Succeffion, ibid.
f. 15.
amongſt Members of the ſame Society, 1.7, 9. Society
may treat with one of its Members, as from a particular Suffrages; Why Plurality of Suffrages carries a thing in
to a Particular, ibid. In what Caſe one may lawfully Deliberations of Aſſemblies, ib. 2, 15. A Limitation of
renounce Society, VIII. 11. 2. The divers Means of con this Maxim in certain Aſſemblies, ib. f. 16. Of a Caſe
tracting a Society, V. 8. How they call its Parts, ib. where the Suffrages are Equal, ib. f. 17. When one
6. 2. Irregular Society, ib. f. 3. Univerſal, or of all ought to join or ſeparate them, ib. f. 18.
Goods, ib.° 1.4. How, and why Civil Society was eſta- Superior ; If one inay ſometimes execute the Orders of a
bliſh'd, VII. 1, 7.
Superior, which are manifeftly unjuſt VIII. 1, 6. How
Sodomy is a Sin contrary to Natural Law, VI. 1, 4.
a Superior may engage himſelf in Relation to the Goods
Soldiers; If they be oblig'd upon Pain of Death, firmly and 'A&tions of thoſe that depend upon him, III. 7,
to hold a Poſt, where they run the Riſque of Perishing,
III. 7. 5 VII. 2,4. If one ought to give fome Salary,
even'to Citizens, when the State is Rich enough to
T.
make ſuch Expences, ib. f. 1. It a Soldier who in Ex-
erciſing kills a Man undeſignedly is guilty of Homicide, Talents are only Ellimable as a Man makes good Uſe of
III. 8. 7.
them, VIII. 4, 12.
Son ; Every Son muſt be preſum'd to be the Son of his Tax ; How to order the Tax of Subjucts, i6, 5, 6.
Mother's Husband, IV. 11. 10. VI. 1, 10.
Time; If Courſe of Time gives any Right, IV. 12., 7.
Soul; How it ought to be taken Care of, II. 4. I, &c. The Effect of Time inſerted in a Promiſe, III. 8. 7. The
How one endamages another in Relation to his Soul, Times of Truces, VIII. 7, 8. The Time appointed for
III. 1, 3. The undeniable Poſſibility of its Immortality, ſettling the Articles of Peace, ib. 8. 4.
is fufficient to fix any Man's Reſolution upon a vertuous Terms; They fignify nothing but by Inſtitution, IV. 1, 3:
Life, II. 3, 21.
There is a principal and an acceſſory Signification of
Sovereignty, The Duties of a Sovereign in general Terms ib. f 6. Every one may fometimes forge new
VII. 9. His Rights and Power, VII. 4. 2, @gic. It's Terms, I, I, I. Two different Ideas, which one muſt
eaſy for him if he performs his Duty to make him diſtinguiſh in the Terms which relate to Morality, ib.
felf obey'd and lov'd by the greateſt Part of his Sub 2, 6. Of Terms which have many Significations, V. 12.
je&ts ih. f. 5: A Man ought to obey him rather than 11. If one may ſometimes make uſe of particular Terms
his own Father, V. 12. 2, 3. In a Matter of Doubt, IV. 1.. In a Contract the Terms ought to be underſtood
a Man ought always to preſume upon the Juſtice of according to the Cuſtom of the place in which the Con-
his Orders and Enterprizes, VIII, 1, 7. How far his tract is made, ib. f. 6.
Power of ordaining the Value of ſorts of Money ex Teftament; What a Teſtament or Will is, ib. 10. 3. If
tends, V. 1, 14. And of conſtraining his Subjects to one may in Conſcience make void a Will, where there
make certain forts of Contracts, ib. 3. 6. Of ruling is no Formality wanting, ib. ſ. 8. If a Teſtament may
Marriages, and of compelling, and bindring Men to be revok'd by the Teſtator, when there is a Clauſe intia
enter into this Engagement, VII. 1, 8. Of granting mating that every poſterior Teſtament ſhall not be valid,
1. 6. 6.
to ſome particular Perſons, or certain Societies, the
fole Privilege of driving certain forts of Commerce, Thefts, See Robbery.
V. 7. Of pardoning Criminals, VIII. 3, 17. If he Titles; Diverſe Remarks upon the Subje&t of Titles, ib. I.
máy
uſe mental Reſervations, or innocent Diſlimu. 18. If they of themſelves give a Prince Precedency 2-
lations, IV. 1, 17. He cannot out of a meer Caprice, bove another Prince who hath not fo proud Titles, VIII.
blot any of his Subjects with Infamy, VIII. 4, 2.
4, 19.
Nor baniſh an innocent Subject, ib. 11. 6. And in Traytors; If one may make uſe of them, ib 6, 16,
what Cale he is Reſponſible for the Injuries done by Tranfattions; How far the Tranſactions of a Crime are v3-
his Subjects, III. 1, 11. All A&tions cannot be re-
voked, T. 6. 6, 8, 0. See Princes, King. The Original Transfugees; If the Deſertion of Transfugees, true or
and Foundation of Sovereignty, VII. 3.
feign'd, is innocent, ib. 11. 5. If one may receive and
diftinet Parts it includes, VII. 4. I, &c. Its com. make uſe of them, ibid.
mon and proper Subject, ib. 6. 4. If there is a real Treaty; The Maxims of Prudence which one ought to
and perſonal Sovereignty, ibid
How far its Rights follow in making a Treaty, 111. 6. 9. If there is any
are inviolable. ib. 8. The different manners of ac-
need of making, a Treaty about thoſe things to which
quiring it, ib. 7. And of poſſeſſing it, ibid. 6. 14. If there a Man is already oblig'd by Natural Law, II., 2, 11.
may be a Sovereignty which is but for a time, ibid.
VIII. 9. 2.
Treaties ought to be more inviolably ob-
ſ. 15. If he receives any Taint by unequal Alliances, ſerv'd'hy a King than by a Common-wealth. IV. 2-
VIII, 9. 4. The proper Chara&ter of Sovereignty, VII. 17. If a Treaty of Alliance is renew'd tacitly, VIII.
6.1, &c. Why, and in how many manncrs it is limited, 9, 11. Of a Caſe where one renews many Treaties
different in certain things, ib. f. 8. If publick Trea.
ties
.
lid, ib. 31.
How many
ib. 1.9.
An INDEX of the moſt Material THINGS, &c.
1,
VIII. 9, 3.
6o
ties made without the Order of the Sovereign are valid, Utility; There are two ſorts of it, II. 3, 10. Particular
ib. f. 12.
Utility is aof the Foundation of Natural Law, ibid. Lo
Treaſure ; To whom a Treaſure which is found, ought to
10, oc.
belong, IV. 6. 13. What publick Treaſure is, and who
W.
may diſpoſe of it, VIII.
Iroops ; If one ought to give Paſſage to ſtrange Troops, Wager; How it is permitted, V. 9, 4.
III. 3, s.
One ought to give pothing to ſtrange War; What it is, 1. 10. S. How many. forts there are,
Troops which are enrolled beyond ſingle Pay, VIII. ibid. and VIII. 6, 1. War Offenſive and Defenſive, what
6, 18.
it is, ib. f. 3. Solemn and not Solemn, ib. ſ. 9. What
Iruce ; What it is, and how many forts there are of it, End they ought to propoſe to themſelves in making
ibid. 7. 3. If there is any tacit Truce, ib. f. 7. It leaves War, ib. f. 2. Juſt Cauſes of undertaking it, ib.
the Subje&t of the War, and the Pretenſions of the Par f. 3. The Juſtice of the Cauſes of War ought to be
ties ſubſíting, ibid. ls. What is permitted or not per clear and manifeft, ib. f. 4. : How far A&ts of Holti.
mitted, during a Truce, ibid. f. 9. Of the Duration of lity, can be carried, ib. 6, 7. How far the Cuſtom
a Truce, ib. T. 8. Of its Infra&tion, ib. f. 11. If the eſtabliſhed among Nations have carried the Licence of
Enemy may retain Priſoners, thoſe who by Accident are War, ib. f. 15. When it is that a Prince may under-
found in their Territories after the Time of the Truce take a War, VII. 9, 13. Whether a Subject can with-
is expired, ib. f 10.
out Crime bear Arms for his Prince in an unjuſt War,
Tutors; The Uſe of Tutors, and the different ſorts of them, VIII. 8. In a Civil Society no particular Perſon
IV. 4, 15. They have Power to uſe moderate Correctia has a Right to make War of his own Head, ib. 6, 8.
on upon their Pupils, Viii. 3, 10.
How it is, that in a Treaty, theſe words (To make
Tyrant*; If one may take up Arms to deliver Subje&ts from War) are to be underſtood, ÍV: 12, 15. Whether the
the Yoke of a ſtrange Prince who is become a Tyrant, Preſcription ought to run during War, ibid. f. 5. The
ib. 6. 14
diverſe ſorts of Alliances which have Relation to War,
Tyranny; What it is, VII. 5, 11.
Water ; If one may appropriate Water to himſelf, IV.
V.
5, 2. The Right of drawing it out of a Neighbour's
Well, ib. 8, 12. Services of Running-waters, ib, ſ. 11.
Vanquiſh ; By what one knows which vanquiſhes in a Com If one ought to let every one draw, III. 3, 3, 4.
bat, VIII. 5, 8.
Widows Marrying before the time were noted with Inc
A Valet cannot require that it may be permitted him frau famy by the Roman Law, VIII. 4, 6.
dulently to diſlipate his Maſter's Goods, V, 10. 3.
Will; What the Will is, I. 1, 2. Its different A&tions,
Vengeance'; The Content which a Man finds in it is an ib. 4, 1. If a ſimple Declaration of our Will, in the
imaginary good, VIII. 3, 19. How fottiſh and ri favour of another,' impoſes an Obligation upon us,
diculous that is which propoſes to it ſelf the Death III: 5, 5, When a Man may revoke his Wills, *I, 6,
of an Offendor, ib. ſ. 23. Particular Vengeances are How many diftin&t Wills are united, VII. 2, 5.
In
permitted in certain States, and why they are, ibid. what ſenſe Men ſay the Will is as Criminal as the
1. 11. Why the Law of Moſes gave a Revenger of
A&tion, VIII. 3, 18.
Blood Permiflion of killing out of the Bounds of Free-Will; Sec Liberty.
the Aſylum him who had fled thither for Refuge, IlI.
Will or Teſtament ; See Teftament.
I, 7.
Witneſs ; The Uſe of Witneffes, III 6, 16. Their Due
Virtue; What it is, l. 4, 6. The Profit of it, II. 3, 10. ties, V. 13, 9. What Witneſſes are receivable or re-
The Pra&tice of it is more ealy than the abandoning
fuſable, ib. Whence it comes that there muſt be Two
of it to Vice, ib. ſ. 21, The Exerciſe of moſt Vertues at leaſt, ibid. The Oath which they take, IV. 2, 20.
has much Liberty and Extent, I. 2, 10. No Vertue They ought to tell what they know even without an
counſels any thing which engages to a Crime, Vill. Oath, when they are required by the Magiſtrate, ib.
3, 19.
1, 20.
Vice'; what it is, I. 4, 6. It is equally diſhoneſt and Whores ; How they ought to be regarded in the World,
pernicions, II 3, 10. It is more fatiguing than Vir-
fue, ibid. I. 21. There are National Vices, 1. 4, s. VIII. Women; The Brightneſs of their Husband's Honour re-
3, 2:
Whence the Horror which we have for ſome Aets
upon them, ib. f. 12. Thoſe that fell their Fa-
Vices from our Infancy proceeds, ib. 2.6. What is the vours ſin doubly, V.1, s. If it is againſt Natural Law,
beſt of noting up Vices, Vill. 3, 14. What Vices That one Woman ſhould have many Husbands, or that
way
one ought to lcave unpuniſh'd, ibid. 25. If the particu Women ſhould be common, VI. 1, 15, If one ought
lar Vices of a Perſon authorize us to break our word with to permit Strangers to marry Wives in his Country, III.
him, III 6, 9.
3, 13. If one can ſwear that a Woman is not with
Vow; What a Vow is, and what Conditions are neceſſary to Child, IV. 2, 2.
render it Valid, ibid. c. 15. IV. 28. Abfurd and im- Toung Women ; Thoſe that let themſelves be debauch'd
pertinent Vows don't oblige, ibid. 2, 10. How one is cannot complain that their Gallants do 'em an Injury
diſpens'd with, and diſcharg'd of his Vows, by a Su properly ſo call'd, III. 7, 8. How one ought to in-
perior, ibid. f. 24. Fathers may aunul their Children's demnify a Young-woman he has abuſed, ibid. 1. 10.
Vows whilſt they are under Power, VI. 2, 1.
A Young-woman cannot demand when ſhe marries,
Volition; What it is, I. 4, 1.
that ſhe may grant any Favours to any other than her
Uſe of a thing, In what it conſiſts according to the Law Husband, v. 10, 3. She who is married againſt her
yers, IV. 8, 8. Uſe is the Maſter of Languages, ibid. Will is nevertheleſs oblig'd to be True to her Huf-
band, 1, 6, 11.
Uſury is Blameable, I. 7. 10.
Worſhip ; God himſelf allows one in a preſling Neceſſity
Uſurper; How, and how far, an Ulurper's Orders oblige to ſuſpend the A&tions of his VVorſvip, VIII. 3, 18.
Subje&ts
, during the Life of their legitimate Sovereign, Writings; They are the moſt fure Signs of Conſent, III.
VII. 8. 10. How his Empire may become Legitimate, 6, 16. What is the Force of Obligations by Writings,
ib. 7. 4. ib. ib. 8, 9. How far his A &tions, Contraets, and V. 2, 6
other Engagements are valid, after he hath been chaſed Writing-Mafters ; They ought not to debaſe themſelves in
writing Scandal, v. í, 5:

VIII, 4, 5.
1,6
away, VIII. 12. 3.
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